Sr. John Nisbet of Dirleton, Lord Advocate, One of the Senators of the College of justice, And one of his Ma.tie most Honble. Privy Council etc.  
DISC●●E JUSTITIAM  blazon or coat of arms  D. Paton delin. R. White sculp.   

SOME Doubts & Questions, IN THE LAW; Especially of SCOTLAND.  
AS ALSO, SOME DECISIONS OF THE LORDS OF COUNCIL and SESSION:  
COLLECTED & OBSERVED By Sir JOHN NISBET of Dirleton, Advocate to King CHARLES II.  
To which is Added, An INDEX, For finding the Principal Matters in the said Decisions.   printer's or publisher's device 
EDINBURGH, Printed by GEORGE MOSMAN, and are to be sold at his Shop in the Parliament-Closs, Anno Dom. M.DC.XCVIII.   

ADVERTISEMENT, TO THE READER.  
THE Deceased Sir JOHN NISBET of Dirleton, His Abilities in the LAWS, and generally in all Learning, procured him the Employment of King's Advocate, And one of the Lords of Session, and other Honourable Places deservedly conferred upon him, in the time of His late Majesty King CHARLES the Second.  
His long Practice and profound Knowledge, in Our Laws, gave the Rise to the following Doubts and Questions; Which, if he had Lived, he would have Answered and Cleared; as he has done many of them, to the great satisfaction of our Ablest Lawyers, and great improvement of our Law.  
The Decisions are, What his Leisure, from public Office, could allow him to Observe, and were ever thought so Succinct and Judicious, that most Lawyers were at Pains, to cause Copy them from the common Manuscripts, though neither full nor Correct; which now in the Printing is carefully helped.   

At Edinburgh, the fifteenth day of July 1697. Years.  
THE Lords of His Majesty's Privy Council, Do hereby Grant to George Mosman, Stationer Burges of Edinburgh, his Heirs or Assigneys, The sole Privilege of Printing and Selling a Book, Entitled, Some Doubts and Questions of the Law, Especially of Scotland; As also, The Decisions of the Lords of Session, Observed by Sir John Nisbet of Dirleton, Advocate to His Majesty King CHARLES the Second: Together with, An Index to the said's Decisions: And discharges all other Persons whatsomever, to Re-print, Vend, Sell, or Import, any of the said's Books, for the space of nineteen Years, after the day and date hereof, under the Pain and Penalty of the Confiscation of the said, Books, to the said George Mosman, for his own use and behoof, and of the Sum of an hundred pounds' Scots, to be paid by the Re-printers, Sellers, or Importers of the said Book to the said George Mosman.  
Extracted by Me GILB. ELIOT Cls. Sti. Cons.   

LIST OF THE Several Heads of the following Doubts and Questions.  

A.  
ADjudications. page 1  
Advocation by the Justices. 2.  
Alimenta. 3.  
Altarage. Ib.  
Annexation to a Barony in another Shire. Ib.  
Annualrent. Ib.  
Annualrent for Damnage. 4  
Right of Annualrent. Ib.  
Relics Annuity. 5.  
Annus Vtilis. Ib.  
Appellatio. Ib.  
Appellatio a Camera Imperiali. Ib.  
De Appellatione a Praefecto Praetorio, & aliorum Judicum sententiis. 6.  
Appellatio a Vicario. Ib.  
Approbatio. Ib.  
Arrestment. 7.  
Arrestment of Conditional Debts. 8.  
Arrestment Loused. Ib.  
Per Aversionem. Ib.   

B.  
Backbonds to the Exchequer. Ib.  
Bairns Part. 9  
Bond Heritable. Ib.  
Bond Movable. 10.  
Bonds of Provision to Children. Ib.  
Bond of Relief. Ib.  
Baron Courts. 11.  
Bastard. Ib.  
Bishops. 12.  
Bishop's Debts. Ib.  
Bodomaria page.  
burgh's Liferent Escheat, Ib.   

C.  
Camera Imperialis. Ib.  
Captions. Ib.  
Casualties of Superiority. 13.  
Causa cum qua Res transit. Ib.  
Cautioner and Relief. Ib.  
Chaplainrie. Ib.  
Charge to enter Heir. 14.  
Chattels Real. Ib.  
Children and Creditors. Ib.  
children's provisions. Ib.  
Civitas Ib.  
Clauses in Contracts of Marriage. 15.  
Coals. 16.  
Collation. Ib.  
Commission not to Expire morte Mandatoris. 17.  
Commissioners to the Parliament. Ib.  
Commontes'. Ib.  
Common Appendent. 18.  
Communio. Ib.  
Compensation. Ib.  
Composition for Entry. 19  
Compriser. Ib.  
Comprising. Ib.  
Infeftments upon Comprysing. 23.  
Conditio. Ib.  
Confession by Criminals. 24.  
Confirmation. Ib.  
Confiscation. 26.  
Confusione tollitur obligatio. Ib.  
Conjunct-Fiar. 27.  
Conquest. 27.  
Consensus. 28.  
Consensus Domini. Ib.  
Consent. Ib.  
Anent Consistories; Whereby the Usefulness and Necessity of these Courts is evinced, and Doubts and Prejudices, against them, are cleared. 29.  
Consolidation. 35.  
Decreets contra Consortes. 36.  
Corporations. 37.  
Creditors of the Defunct. Ib.  
Persons convict of Capital Crimes. Ib.  
Curator. Ib.  
Curatores ad Lites. Ib.   

D.  
Damnum. cum quis utitur Jure suo. 38.  
Deathbed. Ib.  
Debtor and Creditor. 39  
Nomina Debitorum. Ib.  
Stranger's Debts. Ib.  
Debitum Annuum. 40.  
Debitum in Diem. Ib.  
Decimae. Ib.  
Decreets of the Lords of Session. Ib.  
Deeds both inter Vivos, & Mortis Causa. Ib.  
Dependence. 41.  
Destination of Succession. Ib.  
Desuetudo. Ib.  
Dies coeptus. Ib.  
Dilapidation. Ib.  
Dishablitation. 42.  
Power to Dispone, notwithstanding the giving away the Right of Fee. Ib.  
Dispositio collata in arbitrium alterius. Ib.  
Disposition. 43.  
Actio ad Distractum. 43.  
Division of the Duties of Lands, betwixt Buyer and Seller. Ib.  
Donatio inter Virum & Vxorem. Ib.  
Donatio mortis Causa. 44.  
Donatio non acceptata. Ib.  
Donators upon Recognition and Forefaulture. 45.  
Duels and Hame-sucken. Ib.   

E.  
Emancipatio. Ib.  
Contractus Emptionis, a Pretio incipiens, aut Mensura. Ib.  
What way the Buyer may be urged to Enter. Ib.  
Entry of Assigneys upon Resignation. 46.  
Entry upon Resignation by a singular successor. Ib.  
Liferent Escheat. Ib.  
Escheat single. 48.  
Escheat without Backbond. Ib.  
Delivered Evidents. 49.  
Exception against the Cedent, if always competent against the Assigney? Ib.  
Executor. Ib.  
Executor Creditor. 52.  
Executor Nominate. Ib.  
Executory. Ib.  
Extent. 54  
Extinguishment of Rights. Ib.   

F.  
Faculty to alter. Ib.  
Faculty to Dispone. Ib.  
Jus Facultatis. Ib.  
Personal Faculty. 55.  
Quae Facultatis sint? Ib.  
Quomodo intelligendum, Facultati non praescribi? Ib.  
Faculty reserved to dispone. Ib.  
Fee. 56.  
De Feodo Pecuniae & Nominum. 57  
Feus'. 67.  
F uda Nobilia. Ib.  
Fire. Ib.  
Fiars of Bonds. 68  
Fiars in Tailʒies. 69.  
Fictio Juris. 70.  
Fiscus. Ib.  
Commissa Fisco. Ib.  
Flumina. Ib.  
Flumina Publica. Ib.  
Forfeiture. 71  
Forisfamiliation. 77  
Funeral Charges. Ib,   

G.  
Gestio Haeredis. 78.  
Gift. Ib.  
Gift of Escheat with Backbond. 79.  
Gifts of Forefaulture. Ib.  
Gifts of Recognition. Ib.  
Gift of Ward. 80.  
If Gifts of Ward and Nonentry prejudge singular Successors? Ib.  
Goods belonging to the Rebels at the Horn. Ib.  
Grana crescentia. Ib.  
Great Seal. 81.   

H.  
Heirs. Ib.  
Behaving as Heirs. 82.  
Heir of Conquest. Ib.  
Discussion of Heirs. 83.  
Heir and Executor. Ib.  
Heirs Male. 84.  
Obligements, in Contracts, in favours of the Heirs of the Marriage. 85.  
Heirs Portioners. 87.  
Heirs of Provision and substitute. Ib.  
Heirs of Tailzie. Ib.  
Quo casu, Heirs of Tailzie may be considered as Creditors? 88  
Haereditas. 89.  
Aditio haereditatis. Ib.  
Haeres Contrahens. Ib.  
Repudiatio Haereditatis. Ib.  
Servus Haeres. Ib.  
Vltimus Haeres. Ib.  
Heirship Movable. 90.  
Money consigned for Redemption, whether Heritable or Movable? Ib.  
Sums Heritable or Movable. Ib.  
Homologation. Ib.  
Horning. 91.  
How far a Husband is liable for his Wife's Debt? Ib.  
De Hypothecis, Vulgo Wadsetts. 92.  
Tacite Hypotheck. 94.   

I.  
Immobilia. Ib.  
Immobilia per applicationem & aliis modis. 95.  
Imposition upon the Pint of Ale. Ib. Impositions of Burdens upon Shires. 96.  
Impositions voluntary upon Shires Ib.  
Improbations. Ib.  
Impugning the Authority of Parliament. Ib.  
Incendiarium. 97.  
Incorporations. Ib.  
Infeftment of Annualrent. Ib.  
Base Infeftment. 98.  
Infeftment in a Right, both of Property and Annualrent. Ib.  
Infeftment for the use and beho of of another. 99  
Conditional Infeftments. Ib.  
Public Infeftments. Ib.  
Inhibition. 100  
Inhibition upon Teinds 101.  
Insinuatio. Ib.  
Instance. 102.  
Instantia. Ib.  
Instrumentum Guarentigiatum. Ib.  
Interdiction. Ib.  
Inter decem Dies. Ib.  
Intrometter. Ib.  
Invecta & illata. 103.  
Duobus Investitis per modum Confirmationis, sed posterius acquirentis Jure prius confirmato, uter sit potior? Ib.  
Investitura. 104.  
Jura complexa. Ib.  
Juramentum. Ib.  
Jurisdictio. Ib.  
Jurisdictio Camerae Imperialis. Ib.  
Jus accrescendi. Ib.  
Jus Mariti Ib.  
Jus Mariti & Relictae. 106.  
Jus Relictae. Ib.  
Jus Superveniens. Ib.  
Justice-General. 107.   

K.  
Nearest of Kin. Ib.  
KING. 108.  
King and Prince. Ib.   

L.  
Laudimium. Ib.  
Lawburrows for burgh's. Ib.  
In Lecto: Ib.  
Legacies. 110.  
Conditional Legacies. Ib.  
Legal Reversion. 111  
Legatars and Intrometters. Ib.  
De Legatis. Ib.  
Legatum rei alienae. Ib.  
Legatum a Legatario acquisitum ante mortem Defuncti. 112  
Res eadem duobus Legata. Ib.  
Legitima Liberorum. Ib.  
Legitimation per subsequens Matrimonium. 115.  
Marriage and Legitimation. 116.  
Leuteratio. Ib.  
Libellarius Contractus. Ib.  
Liberi. Ib.  
Liferenter. Ib.  
Executors of a Liferenter. 117.  
Liferents. Ib.  
Quando Dies cedit as to Liferenters? 118.  
Vasallus Ligius. Ib.  
Limitation of Fees Ib.  
Litiscontestation. 119.  
Quo casu Possessor in mala fide constituitur per Litiscontestationem, & quando non? Ib.  
Locus Poenitentiae. Ib.   

M.  
Mare. 120.  
Marriage. Ib.  
Marriage Clandestine. 123.  
Materna Maternis. Ib.  
Matrimonium. 124.  
Mensis. 125.  
Mensura Taxative & Demonstrative. Ib.  
Militia. Ib.  
Miln. Ib.  
Minister's Stipends in a Reddendo. Ib.  
Minor. Ib.  
Minor non tenetur Placitare. 126.  
Reduction upon minority. Ib.  
Decreet against Minors. Ib.  
Mobilia. Ib.  
Mobilium vilior possessio. Ib.  
Modus habilis. 127.  
Molendinum. Ib.  
Molendina aquatica: Ib.  
Molendina Bannaria. Ib.  
Molendina navalia Immobilibus accensentur: Ib.  
Molendina. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Ib.  
Districtus Molendini. 128.  
Quomodo qui sunt in districtu Molendini cogi queant? Ib.  
An qui sunt in Districtu alibi molere possint? Ib.  
An Extrui possit Molendinum quod noceat vicino? Ib.  
An Molendinum possit Extrui sine licentia Principis? Ib.  
Restagnatio Molendini. Ib.  
Vsus Molendinorum Juri Civili ignotus. 129.  
Vbi convenit, ut pro Familia molatur, quid Juris si aucta sit? Ib.  
If a Mother and her friends may succeed? Ib.  
Mutuum. Ib.   

N.  
Nonentry. 130.  
Novo damus. Ib.  
Nullitas ex verbis non licebit. 131.  
Clausula ex unnc prout ex tunc. Ib.  
Nundinae. Ib.   

O.  
Oath of Coronation. 132.  
Qualified Oaths. Ib.  
Correspective Obligements. 133.  
Mutual Obligements in Contracts. Ib.  
If Offices do Escheat by Horning? Ib.  
Omissa & male appretiata. Ib.  
Operae. 134.  
Order of Discussing. Ib.   

P.  
Pactis Privatorum non Derogatur Juri Communi. Ib.  
Parliament. Ib.  
Passing from a Right. 135.  
Patents of Honour. Ib.  
Pecunia Pupillaris. Ib.  
Pensions granted by the King. 136.  
Personalis Actus. Ib.  
Pignora. Ib.  
Plenishing; If a Wife be provided to a part of it? Ib.  
Possessor. 137.  
Poinding of the ground. Ib.  
Prerogative. Ib.  
Prescription. 139.  
Prescription against the King. 140.  
Presentation upon Forefaulture. 141.  
Process against Strangers. 142.  
Procuratories of Resignation. Ib.  
Promise to Dispone, not in writ. Ib.  
Protections. Ib.  
Provisions in favours of Bairns. 143.  
Provision in Bonds. Ib.  
Provisions in Charters. Ib.  
Provisions in Contracts. 144.  
Provisions in favours of Daughters. Ib.  
Publica. Ib.  
Pupils. 145.   

Q.  
Quartering. Ib.  
Quorum. Ib.   

R.  
Ratihabitio. Ib.  
Jus Ratium. 146.  
Jura Realia in Re & in Rem. Ib.  
Rebellion. Ib.  
Whether the Rebels Goods ought to be Liable to Creditors? Ib.  
Recognition. 147.  
Redemption Heretable or Movable. 148.  
Order of Redemption. Ib.  
Reduction. Ib.  
Reduction Ex capite Fraudis. 149.  
Infeftment after Reduction. Ib.  
Reduction Ex capite Metus. Ib.  
Reduction upon Minority. Ib.  
Reduction Ex capite Lecti. 150.  
Reentry after Redemption. Ib.  
Regalia. Ib.  
Regality. 151.  
Writs registrate, that cannot be found in the Register. Ib.  
Registratio. 152.  
Regum Contractus. 154.  
Relief of Cautioners. 155.  
Relocation. Ib.  
Reluitio seu Retractus. Ib.  
Remissions. Ib.  
Renounciation. Ib.  
Renounciation by Daughters at their Marriage. 156.  
Renunciatio Juri Publico. Ib.  
Res Fiscales & res privatae Regis. Ib.  
Re-seafin upon Reduction. Ib.  
Reservation in favours of Relics 157.  
Resignation. Ib.  
De Resignationibus. 158.  
An Resignatio in Manibus Domini Superioris, alienantem penitus devestiat? Ib.  
An ex Persona Resignatarii, & ejus vel obitu vel delicto, Custodia Haeredis & alia emolumenta Domino directo obveniant? Ib.  
An in Feudis, quae de Domino Rege tenentur, idem Jus sit, adeo ut per Resignationem Vasallus devestiatur? 159.  
Si Alienatione facta, & ex ea Resignatione; alia postea fiat, & ex ea etiam Resignatio in favorem alterius, isque primus Investitus fuerit: & post eum prius acquirens: Quaeritur uter Potior? 161.  
An is qui in Dominium directum successit Titulo singulari, teneatur Acquirentem in vasallum recipere ex Resignatione in manibus Authoris? 164.  
An Superior nedum Resignatarium ejusque haeredes, sed Cessionarios investire teneatur? 165.  
De Resignationibus a Domino directo acceptatis, An devestiant Resignantes? 166.  
Retention. 171.  
Retours. Ib.  
Retoured Duty. Ib.  
Return of Lands to the Superior, upon a Provision. 172.  
Return of Lands to the King, failyieing of Heirs Male. Ib.  
Reversion. Ib.  
Reversions of comprisings against appearand Heirs. 173.  
Reversion Personal. 174.  
Legal Reversion competent to Idiots, etc. 175.  
Rights made by Dyvours Ib.  
Fraudulent Rights in prejudice of Creditors. 176.  
Right a non habente potestatem. Ib.  
Rights ad Tractum futuri Temporis. Ib.  
Right in Trust. 177.  
Ripae & Ripatica. Ib.  
Quando Dies cedit in Grass Roums, when there is Question betwixt Fiars and Liferenters? Ib.   

S.  
Act Salvo. 179.  
Season. Ib.  
Registration of Seasins. Ib.  
Special Services and Precepts of Clare constat. Ib.  
Servitude and Extinguishment. thereof. Ib.  
Lords of Session. 180.  
Sheriffs. Ib.  
Ships. Ib.  
Solarium. 181.  
Sponsalia. Ib.  
Statuta. Ib.  
Steelbow and Heirship. Ib.  
Strangers.  
Goods or Debts belonging to Strangers. Ib.  
Subjects living Abroad. Ib.  
Substitutes. 183.  
Substitutio. Ib.  
Substitution in Bonds. Ib.  
Substitution in Legacies. 185.  
Successio in Maternis. Ib.  
Successio in Stirpes. 186.  
De Successione in Feudo amisso, & quo Jure censenda, utrum Haereditatis an Conquestus? Ib.  
Successor Titulo lucrativo. 191.  
Singular Successors. 193.  
Sums heretable and movable. Ib.  
Sums movable. 194.  
Eldest Superior. Ib.  
Superior mediate. Ib.   

T.  
Tack. Ib.  
Back-Tack and Prorogations. 196.  
Tack of Teinds. Ib.  
Tailʒies. 197.  
Tailȝie altered. 201.  
Teinds. 202.  
Teind of Fish. Ib.  
Proving the Tenor. Ib.  
Decreets for proving the Tenor. 203.  
Terce. Ib.  
Territorium. 205.  
Testament. Ib.  
Testament Execute. 206.  
Testament and the Wife's part. Ib.  
Testes. 208.  
Third and Teind. Ib.  
Titles of Honour. Ib.  
Titular. 209.  
Tocher. Ib.  
Quaestiones de Tractatu Suedico, & Bonis prohibitis Vulgo Counterband. 210.  
Posterity of Traitors. 214.  
Transumpts. 215.  
Trebellianica. Ib.  
Trust. Ib.  
trusties in Infeftments. Ib.  
A Trustee committing Treason. Ib.  
Tutors. 216.  
Tutor and administrator of Law. 217.  
Tutor Ratione Rei. Ib.  
Tutory. Ib.   

V  
Re-entering of Vassals. 218.  
Vectigalia & Pedagia. Ib.  
Vinco Vincentem. Ib.   

U.  
Union. Ib.  
Vniversalia Augmentum recipiunt. 219.  
Quando Vniversitas delinquit? Ib.   

W,  
Wadsets. Ib.  
Wadset Heretable or Movable. 220.  
Wadset proper. Ib.  
Ward. 221.  
Ward Lands. 222.  
Taxed Ward. 223.  
Warrandice. Ib.  
Infeftment of Warrandice. 224.  
Waste. Ib.  
Witnesses Remitted. Ib.  
Witnesses in case of Treason. Ib.  
Women Witnesses. Ib.  
Obligements to employ Sums of Money, for Provision of Wives. 225.  
A Woman's Jointure. Ib.  
Woods. 226.  
Wrack. Ib.   

Z.  
The case of the Admiralty of Orknay, and Zetland, Represented in behalf of the King, in Answer to the Duke of Lennox's Claim thereto. Ib.    

ERRATA in the Doubts etc.  
PAge 2. lin. 16, after posterior add first. p. 10. l. 21. given read got. p. 16. l. penult. deal or. p. 19 l. ult. place the comma after only. p. 23. l. 8. right r. burden. p. 25. l. 3. was r. is. Ibid. deal and. p. 26. l. 13. after Disponner add a me & de me. p. 61. l. 22. r. in comperto. p. 82. l. 11. of Kin r. Heir of Tailzie. p. 83. l. 12. after unless add, Tailʒied. p. 84, l. penult. Males ls. 1. Males are. p. 99 l. 19 after use add of. p. 102. l. 29. 1. Confirmatione. p. 114. l. 7. aditur r. auditur. ibid. l. 41. r. pertinebat. p. 122. l. 20. nor. r. but. p. 130. l. 7 Immediate r. mediate. p. 133. l. 10. against the Price r. against the Buyer. p. 170. l. 45. r. oblectari. p. 184. l. 11. null, r. Movable. p. 195. l. ●9. second r. first. p, 198. l. 8. deal male. p. 218. l. 14. after but add If,   

SOME Doubts and Questions, IN THE LAW, Especially of SCOTLAND.  

A.  

Adjudications.  
BY the Act of Parliament, upon Comprisings or Adjudications for a Sum of Money, The Superior may be forced to enter, or to pay the Debt, Quaeritur, If he may be urged to enter, upon Adjudications proceeding upon Dispositions, in prejudice of the Superior, by obtruding a Vassal; seeing in that case he has not Retractum Feudalem?  
A Vassal having made a Disposition, or granted a Bond for Disponing his Lands, will the Superior be obliged to Infeft upon Adjudication? Ratio dubitandi. That the Superior, by the Act of Parliament, is obliged only to Infeft Comprysers, or Adjudgers being Lawful Creditors, and he has Retractum Feudalem paying the Creditor: And the Debtor has Retractum Legalem, which is not in the case of Dispositions.  
If Lands should be Adjudged from the Appearand Heir of Ward-lands, Whether will the Appearand Heirs Marriage be due, and affect the said's Lands in prejudice of the Adjudgers? Answer. Albeit that it appears, that Marriage should be of the nature of Ward, which is not Real as to singular Successors; the Superior having only Right to the Duties, which he may uplift; And ex stilo of a novo damus, Marriage is not reckoned amongst real Encumbrances; Yet in the case of Thornidikes, the Lords has found Marriage Real.  
Whether, as Reversions that are comprysed need no Intimation, In Respect of the Series of Solemnities that is in comprisings, By which they become so public, that they are presumed to be known to the Person Liable, If there be not Eadem Ratio in Adjudications, being now of the nature of ordinary Decreets?  
If at least there be a difference betwixt Bonds and Reversions; So that, as to Bonds, when there is a Competition of Two Comprysers, The Posterior intimating should be preferred?  
If Superiors, who are Subjects only, will be obliged to receive Adjudgers to be their Vassals, having Adjudged not for Debt, but upon Dispositions? And if the King be in another Condition?  
If, upon a Disposition, The Receiver should obtain Sentence for Damnage and Interest against the Disponer his Heir for Implement, If in that case, the Adjudger ought to be received? Ratio Dubitandi, That Primordium inspiciendum est; and upon the matter there was not a Debt ab initio?  
If a Reduction Ex capite Minoritatis, not being intented at the instance of the Minor, Jus Actionis may be Adjudged?  
An Heretable Bond being Adjudged, Though there be no necessity of Intimation, because Adjudications and comprisings are public Rights upon Record. Quaeritur, If the Debtor, paying bona fide to the person, to whom he granted the Bond, will be in Tuto, the said Adjudication not being intimate? Answer. It is thought, that he should be in Tuto, seeing Intimations are required for Two Effects. Viz. Either to complete the Right be Assignation, or to certiorate the Debtor that he make payment to no other person: And though an Adjudication be sufficient, as to the said first Effect, an Intimation is necessary as to the other, unless the Debtor be called in the Adjudication.   

Advocation by the Justices.  
IF the Justices may Advocate to themselves Criminal Processes, depending before Lords of Regality, or other Judges? It is thought, The Lords of Justiciary cannot Advocate: The taking or Advocating Processes, from a Competent Judicatory, upon Reasons of Advocation, being a Power and Prerogative belonging to his majesty's Supreme Judicatories of Session and Council. And Reasons of Advocation, either upon Suspicion, or some other Reason merely Civil or of State, belong not to the Cognisance of the Justices, but to the Lords of Session and Council. If they were to Advocate, the Reasons of Advocation behoved to be first discussed; and what could be the method, since all Processes before the Justices are so peremptory, That Caution must be found both by the Pursuer and Defender.   

Alimenta.  
COnstituto semel Alimento, quo nihil in jure magis favorabile, aut magis personale, de eo nec Alienatio nec Transactio rité celebratur; datur enim ut persona exhibeatur & utcunque vitam toleret; Mirum igitur Advocatos primi ordinis tanto conatu & boatu summa ope annisos, ut Judicibus persuaderent aut imponerent, asserentes Alimentum, uxori constitutum juri Mariti obnoxium esse, vel saltem creditoribus Mariti esse integrum illud afficere; Quod enim ossibus haeret nec a persona cui competit avelli aut alienari potest, illud nec juris Ministerio, aut fictione transfertur; Quum igitur Alimentum adeo personale sit (ut superius diximus) ut alienari nequit, ita ut ab uxore nubendo in Maritum non possit transferri tacitâ & quasi alienatione: Sublato autem jure Mariti, jus Creditorum quod subit in consequentiam & ut accessorium corruit, nec subsistit magis quam accidens sine subjecto. Broomhall contra Darsie, Julii 7. 1678.   

Altarage.  
SOme Lands being Founded, by a Burges of Dumfermling, to an Altar in the Church of Dumfermling, for Maintenance of a Chaplain at Saint mary Altar there; And it being provided by the Foundation, that the Founder and his Heirs Male should Present the Chaplain; The said Lands being after Fewed, and since Disponed Quaritur, How shall the purchaser be Infeft? This case is not under the Act of Parliament anent Laic Patronages; The case there being of Patronages, whereof there is Infeftment holden of the King, whereas the Patronage in Question, is not by Infeftment, but provision as said is: It is thought, that the Chaplain is Superior: And if there be none, a Chaplain should be presented. Caribber.  
Quaeritur, The Patronage being to the Heirs Male of the Founder, and if they do not present within _____ Days, The Dean of Gilled of that Town should present, Whether the Heir-Male may Dispone the Patronage? Ratio dubitandi. The Provision in the Foundation, is not in favours of Assigneys, and the Founder had confidence only in his Heirs; And such an Interest being Religious, and provided to a Family, with the said substitution, is not in commercio. Randifurd.   

Annexation to a Barony in another Shire.  
WHat is the effect and import of Annexation of Lands, lying within one Shire, to a Barony lying within another? Whether it be Annexation only, that one Season may be sufficient, for all the Lands, though in several Shires: Or that Inhibitions, and other Diligence should be used at the Mercat-cross, where the Barony lieth?   

Annualrent.  
AN whole Barony of Land, being affected with an Annualrent, and being thereafter Disponed in several parcels to divers persons; If one of the said's Purchasers should be distressed, for the whole Annualrent, May he have recourse against the others, for their proportional parts, they being in rem correi debendi?  
A Person being Infeft in an Annualrent irredeemably, so that neither the Heretor may Redeem, nor the Annualtenter may require his Money, and the Annualrenter not being Creditor, but upon the matter Emptor annui reditus, Quaeritur, Whether such Annualrents will be liable to subsequent Laws, restricting and lessening Annualrents? Ratio dubitandi, These Laws do militate only in the case of Mutuum, which is not here; There being neither Sors, nor Vsura, nor Debitum, as to the principal Sum; And though such Annualrents be constitute with a respect to the Sum that was paid, and the Annualrents thereof current for the time, That does not alter the case; seeing the property of Lands is only bought with the like consideration, And the Annualrents of Money might have been heightened, and the Annualrenter wants the benefit competent to him in the case of mutuum, viz. In the case of Money lent out for Annualrent, he might uplift the Sum, and employ it more profitably than for a small Annualrent.  
An Annualrent being Disponed to be uplifted out of Lands and Teinds, and Infeftment following thereupon. Quaeritur, What will be the Effect of the said Right as to the Teind, seeing the Ground cannot be Poinded for the same; these not being Fundus? Answer, The Right of the Teinds may be apprised, and a personal Action will be competent against the Heritor of the Teinds, during his occupation.  
An Annualrent being disponed, to be by Infeftment out of several Lands lying discontigué; Quaeritur, If the Disponer may unite the same, so that one Infeftment, taken at one of the Lands, may be sufficient for the others?   

Annualrent for Damnage.  
Quaer. IF the Defender should be liable for Annualrent of the price, in so far as it is more, nor the Worth of the Lands? It is thought Not, because the Rate is not certain, and the Defender may get a Buyer at the same price; And that the Defender was in bona fide to contract with a Pupil so authorized, and if he have prejudice, he should have recourse against his Tutor's Representatives; And Annualrent is not due for Damnage and Interest until it be declared. Tweeddale contra Drumelziar, vide Reduction upon Minority litera M.   

Right of Annualrent.  
A Person having disponed Lands, with a Procuratory of Resignation and Infeftment to the Buyer of the Lands, and for security to himself of a part of the Price for an Infeftment of Annualrent redeemable upon payment of the Sum, and with a Clause likeways that the Infeftment shall expire. Quaeritur, 1. If there be prejudice to the Buyer, that his Right should be so affected, being his Ground-right? Answer, It is thought there is none;  upon payment, if the Party desire, There may be a Renunciation, upon the back of both Charter and Season, relating to another of the same Date, to the effect it may be registrate. 2. Quaeritur, If the said Right, being to be holden of the Superior, may be extinguished without Resignation? Answer. It, being only a redeemable Right, after Redemption, in strictness of Form, cannot be resigned, because it is loused. And formerly, in Wadsets of Property, the Superior, upon the Redemption, did grant Precepts; and a Right of Annualrent cannot be resigned for a new Infeftment given to the Heretors' Superior, that being inconsistent with the Property in one Person; And therefore, a Decreet of Redemption, with the Clause foresaid Resolutive in case of Redemption, relating to both, doth sufficiently extinguish it. And if there should be a Resignation in the Superiors hands, it should not be in favorem, for the Reason foresaid, or ad Remanentiam; But to the effect the Annualrent might be renounced, and consolidate with the Property, with the Superiors consent.   

Relics Annuity.  
WHen a Husband is obliged, and his Heirs, to pay an Annuity to his Wife in Liferent; If other Creditors be about to do Diligence and Comprise after his Death, Quaeritur If the Relict may not pursue the Heir to secure her, and for that effect to grant Infeftment of Annualrent, and upon a Decreet Adjudge an Annualrent upon that Ground? Quando aliquid conceditur aut disponitur, conceduntur omnia sine quibus non potest explicari: And the Obligement for the Annuity will be otherways Void.   

Annus Vtilis.  
ANnus utilis Duplex est, 1. Ratione initii, ut initium sit utile, & postmodum Dies continui. 2. Ratione omnium dierum, ut actor habeat potestatem agendi, reus respondendi, & Dies sint judiciales. Thes. Besold. in Lit. I. 51. vid. Injuria.   

Appellatio.  
APpellatio non permittitur in foro Saxoniae, sed in ejus locum successit Leuteratio, ad eum finem introducta, coram eodem Judice, ut gravamina errore forte litigantium, vel negligentia Judicis illata, brevi manu reparentur, sed hujus rei abusus perspicuus est. Vide Leuteratio, Besold. Thes. Litera. l. 53.   

Appellatio a Camera Imperiali.  
APud Germanos, cum sit ultimum Judicium Camera, ab ea non appellatur ne tamen sua potestate abutatur, constitutum est judicium Revisorium, ad quod ij qui per iniquitatem aut negligentiam Assessorum laesos se existimarent, provocare & Revisionem petere possent; per Commissarios Imperatoris, & Statuum Imperii, ad id deputatos, adversus sententiam sine dolo, non tamen sine errore, aut culpa latam. Fritschii Exercitat. juris publici, pars. 2. exercit. 1. n. 88 & sequen.  
Revisio habet effectum Executionis suspensivum, 91. Ibid.  
Judicium Camerale cum non a solo Imperatore, sed a Statibus suam acceperit authoritatem, tum Imperatoem, tum Status repraesentat, Ibid. n. 83.  
Camerae Praesidem & Assessores initio constituebat Imperator, sed Ordinibus, consentientibus, id deinceps mutatum, ut Assessores ab Ordinibus praesentarentur Ibidem.  
Imperator causas in Camera caeptas, avocare non potest; quia per modum Contractus in ordinationem Camerae consensit, & ideo ad ejus observantiam de jure tenetur, Ibid. n. 84.   

De Appellatione a Praefecto Praetorio, & aliorum Judicum Sententiis.  
LIcet ab iis ob eorum Excellentiam non liceat provocare, iis tamen qui Laesos se affirmant supplicandi Licentia permittitur, & remedium datur per Supplicationem ex gratia, non per viam Restitutionis ex Justitia, praesertim cum sententia lata est contra Jus Litigatoris. Thes. Besoldi. p. 557. litera L.   

Appellatio a Vicario.  
AVicario ad eum cujus est Vicarius, non appellatur, cum utriusque idem sit Tribunal. L. Romana 3. de appellationibus sexto Decret. L. 1. & 2. Cod. De Officio ejus, cujus vice alter judicat. Sigismond: Scaccia de Appellationibus. q. 8. n. 61.   

Approbatio.  
1mo. Nulla Exceptio aut allegatio in foro magis trita aut frequentior est illâ de Approbatione; aut (ut loquimur) de Homologatione, quae illâ regulâ niti videtur, quod approbo non reprobo: Sed cum omnis definitio in jure sit periculosa, & ista ut omnis materia Brocardica variis substringatur limitationibus; aut enim Approbatio juris alicujus, celebratur expressâ ratificatione & id agitur ut approbetur, & eo casu reprobare quod approbavit nulli licet, nec honestum est: aut aliud agitur, sed ex actu colligitur & infertur approbatio, & eo casu dispiciendum quid actum, & actus agentium ultra eorum mentem & intentionem haud operantur. v. g. Emi praedium, ratus illud ad venditorem pertinere ut optimum maximum, nec Servituti aut Reversioni (ut loquimur) seu Retractui obnoxium; emersit adversarius Sempronius asserens servitutem aut jus praedii Reluendi sibi competere; ejus vel potentiam veritus, vel alia ratione impulsus, cum eo transegi, isto jure vel mihi cesso vel acceptilato, sed Titius idem jus servitutis aut Retractus ab eodem authore adeptus, sed potius quia anterius: Si ex eo contra me ageret, mihi contra jus Retractus aut servitutis excipienti haud obtrudi posset me jus homologasse & approbasse; eo quod cessionem, aut acceptilationem ejus stipulatus fui, ea enim transactione id tantum agebatur, ut litis ansâ praecisâ, conditio mea melior non deterior foret; & ut mihi consulam acquirendo jus, si quod erat penes Sempronium, non vero ut jus aliquod a me alienem.  
2do. Eadem ratione, si juris mei ignarus praedium meum conduxi, aut post locationem Dominium ejus nactus, & domini forte haeres sum; in possessorio, locatore de mercede agente, de jure meo exceptio haud admittenda est, nemo enim sibi causam possessionis mutare potest: nec minus possessione reddita jus meum integrum & illibatum superest, nec in petitorio, aut declaratorio obest conductio, aut exceptio, Quod approbo non reprobo; conducendo siquidem praedium quod ignarus meum esse, alienum rebar & locantis, id mihi erat propositi, ut jus in eo consequar, non ut jus in alium transferam: & consensui, sine quo nec est, nec esse potest alienatio, nil magis contrarium quam error.   

Arrestment.  
IF Arrestment be Pignus Praetorium, and doth so affect, that in whatsoever hands the thing arrested cometh, it will be liable thereto? Or if it be only a Diligence, and upon the matter of the nature of Inhibition in mobilibus, so that the Debtor dying, or the subject that is arrested being Poinded or Comprysed, the Arrestment will be ineffectual?  
If the Goods in the Hands of the Debtor, upon Arrestment, may habili modo be craved to be forthcoming? Or if habilis modus of all Goods (but Money) be to Poind or Apprise: the Propriety of Corpora being only transmitted per Traditionem?  
If Arrestment upon a registrate Bond may be loused being before the Term of Payment?  
Whether, where there is nothing due by a Person in whose hands Arrestment is made the time of the Arrestment, the same will affect a supervenient Debt?  
If Arrestment die with the Debtor, or doth affect after his Decease?  
If a Bond for losing Arrestment be void through the Debtors Decease?  
If at least an Arrestment upon a Decreet, be of an other nature than that upon a Dependence, being in effect Pignus Praetorium, and Execution pro tanto; or if it should be at the most, like a Denounciation, whereupon Comprising has not followed in the Defuncts time, which therefore is void?  
Albeit an Arrestment doth not import a Right of Hypotheck, and that notwithstanding, an other Creditor may poind. Quaeritur, If at least, it should have that Effect, That the Person in whose hands the Arrestment is made, cannot pay the Debtor in prejudice of the Arrester: and that as he cannot pay the Debtor, so after his decease he cannot pay his Heir nor Executor, being eadem Persona?  
Executors being in Competition upon Arrestment to make forthcoming, Whether they should come in all pari passu, notwithstanding some be before, and some after; as in the Case of Comprisings being both at one time, though the Denounciation be at several times?  
Quaeritur, If an Arrestment doth affect Debts due by the Person in whose hands the Arrestment is made contracted after the Arrestment? Ratio Dubitandi, Inhibition doth affect Lands acquired thereafter; and Arrestment, as to such things as are the Subject of Arrestment, is of the nature of Inhibitions, and there is eadem ratio as to the Interest of the Creditor.  
Arrestment being made of a Sum, due by a movable Bond, bearing Annualrent, and of all profits due to the Debtor by the said Bond. Quaeritur, Whether the said Arrestment should be effectual, not only for the Annualrents already run, but these that should accrue thereafter? The same Question may be as to duties of Lands. Ratio Dubitandi, Quod non est, aut nullum est, nullum sortitur effectum. And Arrestment of what is not yet extant, is accidens sine subjecto. It is thought, That there is a difference betwixt a Debt, that is not neither in sp●, nor obligatione; and conditional Debts, which though the Condition be not existing, may be arrested; and the Condition existing, the Arrestment will be effectual: and a fortiori, Annualrents, and Nails, and Duties, may be affected by Arrestment, seeing, from the date of the Obligation, dies cedit, though non venit.  
If a Debtor be in Possession of a Coal, or of a Miln in his own hand, what course can be taken by a Creditor, at whose Instance there is a Dependence, to secure the Profits, in case he prevail?  
What is the Reason of Difference betwixt Arrestment and Inhibition, as to that Point, seeing Arrestment affects only what belongs to the Debtor for the time? Answer, The Arrestment relates to Goods and Debts, the time of the Arrestment; and Inhibition is simply, that the Debtor should not dispone his Lands and Estate; and Arrestments are a Diligence against the Party who is Debtor, or has any Goods in his Hands belonging to the Arresters' Debtor himself.   

Arrestment of Conditional Debts.  
IF a Creditor should arrest a Sum due to his Debtor upon a Wadset, in case of Redemption; What will the Import be of such an Arrestment? Answer. If redemption follow, and after the Order another Creditor arrest; It is thought, That the Arrestment before will be preferable; as in the case of the Arrestment of a conditional Debt, which will be drawn back, Existente conditione, vide Wadset Quaest: 1 ma. Litera W.   

Arrestment Loused.  
QVaeritur, If upon a Dependence, or Bond unregistrate, there be Arrestment laid on, and the same be loused; and thereafter, the Goods arrested be poinded, The Cautioner for losing the Arrestment will be liable? Ratio Dubitandi is, That the Goods were not fraudfully put away by the Debtor. Quaeritur, If after the Arrestment, the Debtor contract Debts, and the Goods be poinded for the said Debt, contracted after the losing the Arrestment, Quid Juris, Will the Cautioner be liable?   

Per Aversionem.  
AVersione emere, aut locare dicimur, cum universaliter & uno pretio vendimus aut locamus: Duobus enim modis locatio fit, vel per Aversionem vel ut in pedes, vel mensuras, merces praestetur. Thes. Bes. verbo Buschstauff. 127.    

B.  

Backbonds to the Exchequer.  
THE Exchequer having granted Gifts: v. g. of Recognition, or others, but upon Backbonds in favours of Creditors, and of the Wife and Children; So that they have reserved no Interest to the King, but to themselves only to regulate and arbitrate the dispenceing the Benefit of the Back-bond, in favours of Creditors and the Wife and Children; May they proceed, and apply that Benefit, in favours of such as apply to them, without calling the other Parties? It is thought, That the Lords of Exchequer are to be considered as Arbitri, and that their Arbitrium is regulatum, and should not be used, without citeing of all these, who have any Interest; that upon full hearing of all Parties, they may proceed.   

Bairns Part.  
IF a Son get a Portion in order to live upon it seorsum, and out of his Father's Family. Quaeritur. If he can be thought a Bairn, and claim a Bairns-part, seeing he has not granted a Discharge, nor accepted the same in Satisfaction. James Cheisly.  
There being Three Heirs of divers Marriages, and certain Provisions in favours of the Heirs of the Marriage, being made in the respective Contracts of Marriage. Quaeritur. If (there being no other Bairns in familia) they will have their Bairns-part, notwithstanding they are Heirs? And if they have, Quaeritur. If they must confer their Provisions, if they be unequal? Answer. They will come in as Bairns. And as to the second Quaerie, It is thought, they should not confer; seeing they have their Provisions, not simply as Heirs, but as Children, by the said Prosions.   

Bond Heretable.  
IF a Bond bearing an Entail of a Sum. Viz. To the Creditor and the Heirs of his Body, which Failyieing to a Brother, or Heir of a Brother, who would not succeed either him or his Children; be Herotable, in Respect of the Entail, though Executors be not excluded, neither doth it bear a Clause of Infeftment?  
A Band being granted to a Husband, and his Wife the longest Liver of them Two, and the Heirs of the Marriage, which Failyieing, to the Husband's Heirs and Assigneys whatsomever. Quaeritur. Whether the said Bond belongs to the Heirs or Executors of the Husband. Ratio Dubitandi, It is granted since the Act of Parliament 1641. And the Act of Parliament 1661. and the Act of Parliament 1641, are positive, that all Bands for Sums of Money bearing Annualrent are Movable, Except in the two cases therein expressed, viz. Of an obligement to Infeft, Or of a Clause Excluding Executors. And on the other part, the said Acts seem only to intent Bonds containing payment of Annualrent for profit, which upon that account before the said Act were Heretable after the Term: Whereas the Bond in Question is not only Heretable upon the account foresaid of payment of Annualrent; But because the same is expressly Tailʒied, and provided in favours of Heirs, and in the first place of Heirs of Provision of the Marriage: And the Sum is of purpose Heretably fixed for a Liferent to the Wife and a right of succession to the Bairns of the Marriage, so that the Husband cannot Test of it; And it cannot fall under Executory ab intestato, in prejudice of the said Tailzie: And is of the same Nature, as if a Bond were taken to a Man and his Heirs Male, which would not be Movable, seeing it implies the Clause excluding Executors.  
When a Bond is taken to the Creditor, and Failyieing of him by Decease to another person, bearing only Annualrent and no Hererable Clause, Quaeritur; If the Creditor to whom it is granted may Dispose of it by Testament? Ratio Dubitandi, it seems not to be Heretable by the Act of Parliament: On the other part the said Substitution imports the Executors to be excluded, and a Testator cannot dispose by Testament of what ab intestato could not fall to Executors: And though the Creditor be Fire and may dispose of the said Sum, yet he cannot do it on Deathbed; the same being an Heretable Sum.  
If at least after the Death of the Creditor the said Sum be Heretable in the Person of the Substitute? Ratio Dubitandi, The same is Movable by Act of Parliament; And the Substitute having now right to it, he is in the same case as if the Bond were granted to him: Ex adverso, the same being semel Heretable is semper Heretable, until it be made Movable by a Charge.  
If a Bond containing such a Substitution should be made Movable by a Charge, would it notwithstanding belong to the Substitute?  
If an Heretable Bond may be comprysed; And if the Legal expire will the Creditor have right to the sums contained therein, though far exceeding his Debt?   

Bond Movable.  
A Party having given a Bond to the end that thereupon a Comprysing may be deduced against the Granter, For settleing the Estate of his Father in his Person; And having granted a Back-bond to pay the person granter of the Bond a Sum of Money, with Provision That if he denude of the Comprysing he shall be free of payment of the Money. Quaeritur, If the Sum be Movable; So that the Relict of the Creditor may crave a part thereof Jure Relictae, in respect the Sum is in Obligatione: And to denude of the Right of the Comprysing is in Facultate Solvendi. Mr. Archibald Nisbet contra Dalgarno.   

Bonds of Provision to Children.  
A Father having granted Bonds of Provision to Children with a Clause That they should be valid though not delivered, Quaeritur, The same being granted in Liege poustie, If they should prejudge the Relict or Fisk? Ratio Dubitandi, The Granter is Master of them, and may Cancel and destroy them. Answer. Si absit Dolus and the Defunct did intent nothing but to provide his Children, they should be considered as a Debt.   

Bond of Relief.  
IF a Person obliged Conjunctly with another upon a Bond to be relieved may not after Registration of the Principal Bond charge for Relief: And for that effect to pay the Sum and poind for the same? Forbes contra Vdnic,   

Baron Courts.  
QVaeritur If the Superior may pursue before his Baron Court for Nonentry, or Ward, or Marriage? Ratio Dubitandi, That the said Casualties are fructus of the Superiority; And seeing the Baron may pursue his Tenants for the Fruits of Property, There is the same Reason, that he should pursue for the Fruits of his Superiority: And the Vassals have no prejudice, but rather Advantage, that they are not taken from their own Houses to answer before another Court, and to be at the Charges both of Attendance and Process, which are greater there: And if the bailie do wrong, it may be repaired by a Reduction.   

Bastard.  
IF a Bastard has disponed his Estate in Liege Poustie, and Infeftment has not followed dureing his Life, Will the King or his Donator be liable to fulfil the Disposition?  
If a Bastard's Relict and Bairns, will have their Legitime, though he cannot make a Testament? Answer. Affirmatiué.  
If having Children, he may make a Testament, and name a stranger an Executor; seeing the King has not prejudice: And his Children cannot complain, having their Legitime? Cogitandum.  
If at least he may leave Legacies: And his Children Executors nominate, at the least nearest of Kin, and Executors ab intestato will be liable to the same?  
If a Bastard has Testamenti factionem passivam, and may be named Executor, or Heir of Provision? Answer. Affirmative.  
If a Bastard may have an Heir of Tailzie and Provision? Cogitandum.  
If a Bastard, by a Deed inter vivos has disponed his Estate in Lands by a delivered Writ: and dyeth before the Right be perfected, Quaeritur, What way the same shall be perfected? or what Action is competent to the Person in whose Favours it is made, and against whom? Answer, It is thought, that the King being to succeed to the Bastard, his Officers may be pursued, and the Director of the Chancery, if the Lands hold of the King (and if they hold of another Superior, the said Superior) To hear and see the samen adjudged, and Precepts directed.  
Quid Juris, If the Deed be not a simple Disposition, but a Right to the Disponer in Liferent, and another Person in Fee; with the ordinary Clauses and Power to alter? Answer, There may be more Question in this case, being upon the matter Donatio mortis causâ.  
Quae Ratio, That a Bastard cannot make a Testament, whether or not ob maculam natalium: Or that by reason thereof they were as Dedititij in Law, swa that during Life they were liberi, but died servi and nulli, without power to dispose of any thing? Answer, That the said Incapacity was ratione natalium:  these who have no other Heirs (so that the King is to succeed as ultimus Haeres) have not Testamenti factionem.  
If a Father who is a Bastard will succeed to his Children? Answer, It is thought, he will.   

Bishops.  
IF Precepts granted by Bishops may be execute after their Death? If a Bishop being upon the point to be Translated, may accept a Renunciation of a Tack not expired, and grant a new Tack for more years, in prejudice of his Successor? Or if he may set a Tack?   

Bishop's Debts.  
seeing Bishops are an Incorporation and do not represent their Predecessor's Person, but only the Incorporation: and therefore are not liable to his Debts; Quaeritur, If at least he be liable to the Debts of the Bishopric, As v. g. If there be an Annualrent payable out of the same to a pious Use, and the preceding Bishop has not paid the same: Will his Successors be liable personally, at least will their Rents be affected by a real Action of Poinding the Ground, or like to the same?  
Quid Juris As to the Taxation; if a Bishop would be liable for these bygones that were due by his Predecessor: reserving Relief against his Heirs and Executors?   

Bodomaria.  
BOdomaria est Foenus Nauticum, quo sub spe majoris lucri pecunia datur Navis Patrono, hoc pacto ut saluâ nave tantum cum faenore reddatur, relicto interea Hypothecae loco navigii fundo, quo perdito & capitale interit. Besold. Thesaurus, Bodom.   

Burgh's Liferent Escheat.  
WHat Execution can be against burgh's for their Debt? If they may be charged with Horning, and if thereupon any Liferent Escheat may follow?    

C.  

Camera Imperialis.  
CAmerae sententiae, an ab iis appelletur; an Imperator eas avocare possit? de earum revisione, vide A. & ibi Appellat.   

Captions.  
IF Captions may be Execute after Sunset, seeing Poinding cannot be then executed? It appears there is difference betwixt Poinding and Caption, by reason other Persons that may have interest in the Goods may be concerned in the Poinding, which is not in Captions: And the King's Rebels may be taken at anytime, and there is no time so fit to take and surprise them as the night. Rothemay against Forbes. Before, the Council found that Captions should not be execute in the night.   

Casualties of Superiority.  
IN General It is thought that all Casualties, which are Fructus Dominit directi, are to be considered as fructus pendents of Lands, which pertain to the singular Successor; unless they be Collecti: and they are never thought to be Collecti, unless they be at least claimed and pursued for.   

Causa cum qua Res transit.  
REs transit cum sua causa, hoc est cum omni cominedo, & onere. Jus. Fluv. p. 775. n. 55.  
In conditionali dominio interest, an sub conditione ad nos pertineat, an verò. à nobis abscedat; priori casu quamvis Dominium in Aere stare non putest, tamen quoad nos est in pendenti & in spe tantum: altero, est actu nostrum sed existente conditione resolvitur: Nam meum est quod certâ lege meum est, Jus Fluviat. p. 790. n. 145. & deinceps.   

Cautioner and Relief.  
IF a Cautioner be Denounced for his Cautionry, will the Principal be liable to relieve him of the loss of his Escheat? Ratio Dubitandi, The Principal is obliged to relieve him of what he should pay for him, but not of the prejudice he should sustain for his Contumacy and Rebellion, through his not payment.   

Chaplainrie.  
Land's being holden of a Chaplain, a Bishop being Patron, if there be not a Chaplain and the Bishop delay or refuse to present, what course shall be taken by the Vassals Heir, or singular Successor to get Infeftment? If the Bishop may not be pursued, and the Director of the Chancery, to hear and see him discerned to present a Chaplain, and to exhibit to one of the Clerks of Session the Presentation to be registrat, to the effect it may be known and patent to the lieges, and that within _____ days after he be charged: And in case of disobedience, verified by a Horning against him upon the Decreet; The Director of the Chancery to direct Precepts for infefting of the Vassal.  
Seeing by Act of Parliament anent the Superiority of Chaplainries, and such like, The Patron to the Chaplain is appointed to be Superior to the Chaplains Vassals. Quaeritur, If Chaplains hold of the Bishops, the Bishop will be Superior? Answer, It is thought, not; seeing the said Act of Parliament is only in favours of Laic Patrons, and was made when the Bishops were suppressed.   

Charge to enter Heir.  
AN appearand Heir being charged to enter Heir in General, and renouncing, Quaeritur, If there may be a Comprising or Adjudication against him, unless he be charged to enter Heir in Special? Ratio Dubitandi, That frustra should he be charged to enter Heir having already renounced: Yet it is thought he ought to be charged, seeing a special Charge to enter Heir, is Instar and in place of a Special Service, and Infeftment thereupon: and the Heir may repent that he renounced, and may be better advised, when he is charged to enter Heir in Special.   

Chattels Real.  
LIferents, Non-entries, Ward, and such like Casualties, that are successive when they are gifted, they become real Chattels, and will fall to the Executors of the Donator, as is thought; Quaeritur, If when they are not gifted they should be considered also as Chattels, so as to belong to the Executors of the Superior, and not to his Heirs and Successors of the Land? Cogitandum.   

Children and Creditors.  
IF a Father grant Bonds to his Children, and thereafter contract Debt, so that he is not in a condition to satisfy both his Creditors and Children, Whether the granting of Bonds for Onerous Causes will import a Revocation of the children's Provision: At least will the posterior Creditors be privileged and preferable to the Children?   

children's Provisions.  
A Father having disponed to his Son of the first Marriage, the Fee of his Estate; with power to burden it with 40000 marks for provision of his remanent Children allanerly. Quaeritur, If he being then married upon a Woman of that age, that he could not have Children by her, should thereafter marry; May he provide any part of that Sum to the Children he had thereafter of the last Marriage? Or if the remanent Children, in whose favours the Faculty is reserved, can only be understood of the remanent Children of the first Marriage, he having then five besides the Heir, Mr. Alexander Gibson contra his Brother.   

Civitas.  
CIvitates & Municipia intelliguntur nomine Reipublicae: & eye competit beneficium Legis. leg. 3. cod. de Jure Reipub. Sc. Rempublicam ut pupillam extra ordinem juvari. Frischius Tom. 2. exercit. juris publici, exercit. 2. n. 17. & sequen.  
Praescriptio non currit minori sed Civitati, Ibid. 35.  
Propter tenuitatem civitas novum vectigal imponit, Ibid. 37.  
Gaudet Praescriptione centum annorum.  
Ex solo pacto sine traditione, quibusdam casibus habet in rem actionem Ibid.  
Vsus-fructus ei relictus durat centum annis Ibid.   

Clauses in Contracts of Marriage.  
THe Contract of Marriage betwixt Alexander sandiland's, and Agnes sandiland's his Wife Daughter to Robert sandiland's Dean of Gilled, beareth that provision, Viz. That the said Robert and his foresaids are obliged to the said Agnes and her Spouse that at Robert his Decease the said Agnes his Daughter shall be esteemed a Bairn of the House and Family; And shall succeed to her Part and Portion Natural equally with the remanent of Robert's Bairns to all Sums, Plenishing Goods and Gear; and others that should pertain to the said Robert the time of his Decease.  
The said Alexander is obliged and his foresaids, that whatever Benefit shall fall to the said Agnes, or her to succeed to by her Father's Decease, or by virtue of the said Obligement, to provide the same after he should get it, to himself and her in Conjunct-fee and Liferent, and to the Bairns betwixt them, which Failyieing his Heirs and Assigneys, 9 January 1657. Registrate 1 March 1671.  
The said Alexander is obliged to provide the Conquest to himself in Liferent; and their Bairns in Fee.  
The Contract of Marriage betwixt John Hamilton Writer and Rachel sandiland's the other Daughter of the said Robert, Bears, That they accept the Tocher in satisfaction of all other Sums, Executory, Debts, Goods, and Gear, and others whatsomever which was provided to the said Rachel, or which may fall or pertain to her, or may be claimed by her by Decease of the said Robert, or her Mother Mause Weir: All which she and her Husband Assigns to the said Robert, his Heirs, Executors, or Assigneys to be Disponed at their pleasure.  
By the Clause of Conquest the said John is obliged to provide the same to himself in Liferent, and the Bairns in Fee: And to that effect to insert the Bairns Names in the Writes.  
The said Rachel, if her Husband Decease before her, is to have (if there be no Children) the half; and (if there be) the third of the plenishing of the House the time of his Decease, which is to be made free of Debts by his Heirs and Executors.  
Quaeritur, If the Obligement to succeed to all that should pertain to the Father should be understood, only as to a Bairns Part, and should not be extended to the Deads-part?  
If what should fall to Agnes after her Father's Decease, should belong to the Bairns of the Marriage, though the Marriage be dissolved through the Husband's Decease before the Father Robert his Decease?  
If Rachel the other Daughter notwithstanding her Renounciation, will come in as one of the nearest of Kin, at least as to Deads' Part, Viz. Deads' third and the half of a Bairns Part.  
By Contract of Marriage, the Husband is obliged in the first place to provide 30000 Marks, to his Wife in Liferent, and the Heirs of the Marriage presently: And to the other Bairns 18000 Marks after his Decease. Quaeritur, The Heir being served, will there be a Confusion as to his Debt and Provision? 2do. If he may have Action against the Executors for it, as Heir and Creditor? 3tio. If he succeed to his Father in Land-Estate, though the Money was not employed, will not the Obligement be satisfied, pro tanto? 4to. Will the Bairns come in pari passu or must the Heir be satisfied in the first place out of the Movable Estate?   

Coals.  
A Woman being Infeft in Lands in Liferent; cum Carbonibus & Carbonariis. Quaeritur, If she may win Coal where there was none before in order to Selling? Ratio Dubitandi. That usus fructus est jus utendi salva rei substantia, and the Coal usu consumitur; And being digged non renascitur: It is thought therefore, that where there was no Coal before, The Liferenter cannot break Ground in order to Selling.  
Quaeritur, If the Liferenters at least may Win Coal, where there was no going Coal before in order to their own use and for their Fire, Refounding any Damnage that may be by breaking of the Ground. Cogitandum.  
Where there is a Coal going, Quaeritur, If the Liferenter may continue to Work and Sell? Answer. It is thought for the Reason foresaid the Liferenter cannot Sell, but may claim by the said Clause to have as much Coal as may serve for the Liferenters use only, unless it be expressly provided that the Liferenter may Win and Sell as the Fire might have done.  
If the Liferent be not constitute so clearly in the Terms foresaid, and it be only provided that the Liferenter shall Liferent the going Coal, Quaeritur, If the Liferenter may have the same benefit of the Coal as the Fire might have had, both for the Liferenters use and for Selling, providing that the Liferenter use the same as bonus Vir, and in the same manner as was in use formerly, and do not any thing of purpose to the prejudice of the Fire: putting in too many Colliers or otherwise?  
As there is quasi Vsusfructus of Money, if it ought to be so of Coal, and what is Winifrid should be valued, and the price should be valued to the Liferenter in Liferent and in Fee to the Heretor? To consider if this case has occurred elsewhere in the case of Sylvae caeduae.   

Collation  
BY Contract of marriage, the Husband is obliged to provide the Heirs of the Marriage therein specified; But there is a Clause subjoined, That if there be only Daughters, and they be more than one; The Eldest only should succeed, and the other Daughters should resign their parts in her favours, reserving to the Father to provide them which he did not: There being beside some Heretable Estate, Quaeritur, If the Eldest will not only have the Land, but her share of the other Estate as Heir Portioner? Ratio Dubitandi. That Law and Nature favours and intends Equality, betwixt Children; Especially where the interest and preservation of Families is not to be considered, and upon that account there is no Prerogative of Primogeniture and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is only competent Liberis Masculis, Daughter's being finis & caput familiae: And by the Contract the Eldest Daughter is not obliged to Marry one of the Name or who should take the Name. 2do. The Heir cannot be Executor unless he confer, or upon the foresaid consideration, and there appears to be Eadem Ratio in this case, Whitelaw.  
If an Heir, to the Effect he may share in the Executry offering to confer the Movable Heirship, ought not also to confer Lands, and other Heretable Estate? For the Executory may be very considerable, and it were hard that upon Collation of the Movable Heirship possibly of small value, he should both retain the Heretable Estate how great soever, and share in the Executory though very great.  
If there be Three Daughters, and the Eldest at her Marriage get a part of the Lands. Quaeritur, If she will share as Heir Portioner with the other Sisters, unless she confer; as in England.   

Commission not to Expire morte Mandatoris.  
IF a Commission may be granted by a Person to Friends for Selling Lands and to endure irrevocable, not only during his own Life-time; but after his Decease to bind his Heirs until it be Execute? Ratio Dubitandi, Mandatum expirat morte: And on the other part, there may be a necessity to Sell, and his Heirs may be Minors: Or upon some other considerations it may be fit that there should be such a Power given; And as he may bind himself by granting such a Commission, he may bind his Heirs being eaedem Personae.   

Commissioners to the Parliament.  
QVaeritur, If there be any case wherein Commissioners to the Parliament ought to consult the Shires whom they Represent? Answer. It is thought, that albeit by their Election they have Commission cum Libera potestate, It is to be understood that they may superstruere; But cannot evert or alter Fundamentals and the constitution of the Government either of Church or State: And if any thing of that nature be intended, it ought not to be done by Representatives, unless they have special Authority to that purpose.   

Commonties.  
THe Servitude of Pasture being either in common Muires, as Gladsmuire or such like; Or in Commonties belonging to Heretors and Superiors, and their Vassals by Rights from them; Or in Lands belonging to others and not to their Superiors. Quaeritur. If an Infeftment cum communi Pastura will be a Ground of Prescription, in all the foresaid cases, unless it be special as to the Subject, and the Lands to be Pastured upon? Answer. As to common Muires, if the Lands adjoining be Disponed, cum communi Pastura, by the King, it is to be presumed that before they be Disponed, the King's Tenants of the Lands Disponed were in use to Pasture in the said Muire: And therefore the Clause cum communi Pastura is to be understood with the Pasture formerly belonging to the King; And in that case, possession though not for the space of Forty Years by virtue of that Right is sufficient. 2do. There is the same reason as to Lands Disponed by Superiors having a Commonty within their own Property. v. g. in Dirletoun, unless there be some speciality. v. g. as in David Forrest his Precept of Clare constat, there is Nine Acres given without mention of Pasture in the Commonty of Dirletoun, and there is a Tenement and three Acres and an half cum communi Pastura in Communia de Dirletoun; So that the Right being granted unico contextu, the Right of the said Acre cum communi Pastura Excludes the same as to the other Nine Acres. 3tio. As to a Commonty within the Property of other Superiors, the Clause cum communi Pastura in the Tenendas will not be a ground of Prescription, unless there be a Right or Constitution by the Heretor, within whose Property the said Commonty is.   

Common Appendent.  
QVaritur, There being a Servitude of Pasturage or Commonty due to me out of Neighbouring Lands (which the English call Common Appendent) will the Servitude extinguish if I purchase the said's Lands, seeing res sua nemini servit? Answer. It is thought that it is Suspended but not extinct: So that if the Purchaser sell the Lands affected with the Servitude it will revive, unless it be provided otherwise: And Servitudes of that nature are Real, and pertinents Praediorum non Personarum.   

Communio.  
COmmunis Possessio, quâ vel ad pasculandum, vel ad alios fructus participandos vicini utuntur, non caret Litigiis; Divitibus proportionem Geometricam, pauperibus Arithmeticam affectantibus: Sed possessio Geometrica servari debet & Praedialis, ita ut qui majores habet possessiones magis utatur pascuis, qui minores minus. Jus Fluviat. p. 561. n. 25.   

Compensation.  
IF there may be Compensation on a Bond prescribed, For that reason, Viz. That quae sunt temporalia ad agendum they are perpetua ad excipiendum; And the ground of Prescription as to Personal Actions being Negligentia petentis, cannot be pretended in this case, the Defender being satisfied in his own hands.  
When in Processes for Sums of Money, Compensation is proponed, and the Pursuer Replies upon Recompensation, and the Defender again Duplyes upon Recompensation. Quaeritur, what course shall be taken by the Judge upon their several Recompensations? Answer, If it appear that the Pursuer or Charger is addebted in as much to the Defender, as the Defender to him, all the Compensations being considered, the Defender ought to be assoiled; and the Parties hinc inde should be discerned to give up and discharge the Grounds of the Compensation: And if all the Compensations being sustained, the Defender be found debtor to the Pursuer, a Decreet should be given for what is due: And if the Pursuer be found debtor to the Defender, the Defender ought to be assoiled, and the Pursuer discerned to pay what he is owing.  
An Assigney to a Debt for an Onerous Cause, having pursued for the same, Quaeritur, If it be alleged that, the time of the Assignation, the Cedent was the Defenders debtor, and that he hath present Action for liquidating his Debt; Whether aught Compensation to be sustained upon the said Ground, and a time granted to liquidate? It is thought, That the Cedent not being Inhibit, nor any Diligence done against him, the Sum assigned was in Commercio, and might be disposed of by him; there being then no ground of Compensation, which is de liquido in liquidum; and otherwise non tollit obligationem. vide Retention, in Litera R.   

Composition for Entry.  
IF the Superiority be disponed or comprised after Resignation, Quaeritur, Whether what is payable for receiving of the Vassal should belong to the former Superior: Or to his Successor by whom he is to be received, being pretium of his Entry.   

Compriser.  
IF after expiring of a Comprising, the Compriser may pursue for the Evidents, being incidents to the Right.   

Comprising.  
IF a Bond for an Onerous Cause, being granted by a Person not Inhibited, and public Infeftment thereupon, be preferable to a Compriser who had comprised before, but was Infeft after the Bond?  
If a Compriser of Ward-Lands die before the expiring of the Legal, Will the Marriage of his Heir fall?  
If it fall, Will the Debtor, if he redeem, be liable to refound the Avail?  
Comprisings of Heretable Bonds, though they be upon the matter Legal Assignations, so that the first Compriser will be preferred to the second intimating, in respect of the previous public Solemnity in deduceing Comprisings: Yet Intimation is  to put the Debtors in the Bonds comprised in mala fide.  
If there be a necessity of a Declarator of expiring a Legal, as there is of a Conventional? Seeing in many Cases there may be much Equity for purging the expiring; as if the Sum be all paid but a very little part, and the Lands exceed much the Debt.  
If the Compriser come to be Debtor in a Sum equivalent, Will the Compriseing expire?  
The first Compriseing being reduced at the instance of a posterior Compriser ex capite Inhibitionis, Will the first Compriser have Right to the Legal of the second?  
Though the Debtor be Inhibited, May he not assign the Legal?  
If Compriseing whereupon Infeftment is not to follow, and which formerly needed not to be allowed aught to be Recorded, conform to the Act of Parliament 1661. Act.?  
There being a Compriseing against a Principal and two Cautioners of their respective Lands; and the Right of the said Compriseing being acquired by a Person who had bought one of the Cautioners Lands, If that Person should dispone the Right of the other Lands with the Compriseing, Sums, and Grounds thereof, as to the said other Lands, only before the expireing of the Legal. Quaeritur, 1. If he hath not reserved expressly the Compriseing and Sums thereof as to his own Lands, but has only disponed in the Terms foresaid: Will the Compriseing extinguish as to his own Lands, seeing it could not subsist without the Grounds, and these are disponed? Answer, It is thought, It will not extinguish, in respect the Compriseing is not simply disponed, but only as to the other Lands, and the same not being disponed as to his own Lands, eo ipso it is retained together with the Grounds; and it was Actum that the Disponer, by acquiring the Compriseing, should be thereby secured as to his own Lands: And having disponed the same as to the said other Lands, Law presumeth that he has retained it as to his own Lands in the first place, and that it should be effectual as to the other Lands in the second place: And Acta agentium are to be understood to operate according to their Intention.  
Quaeritur 2do. If the Compriser of that Legal should Redeem, who should have right to the Sums; whether the Disponer, or these to whom he has disponed, as to the other Lands, at least to a part of the same? Answer, If the Disponers' Interest as to the Security of his Lands amounts to, or exceeds the Sums, he will have Right thereto entirely, seeing he is to be secured in the first place.  
If a Com●riser Infeft in Lands doth consent only to a Right made by the Debtor of a part of the Lands comprised, will that Consent secure the Buyer against the singular Successors of the Compriser, having Right from him by Compriseing or Disposition and Infeftment thereupon:  they may pretend that a Consent doth not denude habili modo.  
A Creditor comprised the Principal Debtors Lands, and some time thereafter the Cautioners Estate; and after the Compriseing against the Principal was expired (But yet the Compriseing against the Cautioners was running) he disposed of some of the Principals Lands. Quaeritur, If the Cautioner may plead that the Compriseing against him is extinct, In swa far as the Creditor has an irredeemable Right to the Principal's Estate, Exceeding his Debt: and is satisfied at least may be satisfied with his Intromission and disposing of the same?  
A Compryser, after expiring of his Comprysing of his Debtors Estate exceeding the value of his Debt, Intrometting with or disposing of a part of the same. Quaeritur, If he may comprise any other Estate belonging to the Debtor: Upon pretence that he is not satisfied: Or if the Expiring of the Comprysing and the making use thereof thereafter, putteth him in the same condition as if the Lands had been Disponed to him irredeemably, and datae and accepted in solutionem: So that both Principal and Cautioner, against whom a Comprysing is yet running, may pretend that the Debt is satisfied; At the least that the Creditor should denude himself of that Comprysing cum omni causa? Lamertoun contra Mr. John Fairholme.  
A Compryser of Lands holden Ward being Infeft. Quaeritur. If these Lands will ward by the Decease of the Compryser; And if the Marriage of the Appearand Heir will fall? Ratio Dubitandi, A Compryser is but an interim Vassal for security of his Debt: And upon that Consideration such a Right in England is considered as a Chattel.  
If the Comprysing be redeemed will the Debtor be Liable to refound the Damnage sustained by the Ward and Marriage?  
Quaeritur, If the Ward of the Comprysers' Heir, will determine and expire upon the Redemption?  
Quid Juris in that case of proper Wadsets, if the Debtor after Redemption will be Liable to Refound the foresaid Damnage? The difference being that a Comprysing is an involuntar Right, and the Wadset Voluntar, so that the Creditor seemeth to take his hazard.  
If Lands be Comprysed from a Person who has no Right thereto for the time but acquires thereafter a Right, whether the said jus superveniens will accresce?  
If there be a difference betwixt a Compryser and a Buyer from an interposed Person, who has acquired a fraudulent Right, Viz. That a Buyer acquires a Right for an Onerous Cause, and it is just and the Interest of Commerce that he should not be prejudged, whereas a Compryser does only Diligence upon his own hazard, and the Right Transit cum sua causa & labe?  
A Right being acquired bonâ fide, from a Person not Inhibited, after Comprysing, and being Infeft before the Compryser. Quaeritur, Whether he or the Compryser will be preferable? Answer. The Lords found in the case of Sir Patrick Nisbet and Hamilton, That the Compryser should be preferred: Which appears to be hard, seeing, a Comprysing is only jus ad rem and a Legal Disposition; And the first complete Right by Infeftment seems to be preferable, and a Comprysing does not import vitium Litigiosi seeing the Debtors Right is without Question: And the Question is whether the Compryser or the Receiver of the Disposition should have Right to that which is unquestionable in itself?  
The Debtor or these who have Right to the Legal, Redeeming from the Appearand Heir of the Compryser, whether doth the Redemption sister the course of the Ward and Marriage if the Heir be not Fourteen Years of Age? Answer. Affirmative. quia resoluto jure principali resolvuntur consequentia.  
Will not the Debtor be liable not only to pay the Debt but to refound the prejudice the Creditors Heir sustains upon occasion of the falling of the Casuality of Ward and Marriage by the Decease of the Debtor? Answer. Affirmative, and the Creditor and his Heirs should be Indemnes: It being the Debtors fault that they are forced to comprise, and that the Comprysing is not Redeemed.  
Whether a Discharge does extinguish a Comprysing, the Creditor granting to be satisfied; In the same manner that Intromission within the Years of the Legal doth extinguish the same? Answer. If there be no Infeftment a Discharge is sufficient: But if there be Infeftment, there must be at least a Renounciation Registrate in the Register of Reversions.  
A Comprysing being Redeemed, whether doth the Debtors Right and Infeftment revive, or must there be a new Season, and what way shall the Debtor be Reseased? Answer. There must be a new Season; and the same way is to be taken as in the case of a Regress:  the Compryser as he has a Legal Reversion, so there is a Legal Regress.  
Quaeritur. If a Comprysing as to all effects be equivalent to a Resignation? Ratio Dubitandi, That a Comprysing is not only a Legal Disposition but the Compryser may be immediately Infeft upon the same, as upon a Resignation, though the Debtor decease.  
If a Compryser get a Right to the Legal of his own Comprysing before it expire by another apprising; And so Deinceps if there be more comprisings whereof the first Appryser obtains Right within the Respective Legals. Quaeritur. when the same do expire? Cogitandum.  
If a Royal Burgh, or others having Power to receive Vassals upon Resignation, has Power likewise to receive upon comprisings: And if in that case any Composition be due to them?  
If the Lands be Comprysed how shall the Duties be divided? Answer. If any part of the Lands be sown before the Comprysing, the Increase will belong to the Compryser: And if the Lands be set, the time of the Comprysing is to be considered; For if the Comprysing be before Whitesunday the Compryser will have Right to the whole Duties; And if it be before Martinmass, he will have Right to the half: And if after Martinmass to no part thereof.  
The Superior being charged with Horning to receive a Compryser, and being Denounced, will he be Liable for Damnage and Interest: if either he Infeft a second Compryser, or a Precept be direct out of the Chancery for Infefting him?  
If upon the Redemption of a Comprysing, the Superiors will be obliged to Infeft the Redeemer Gratis?  
Quid Juris, If the Redeemer be another Creditor?  
Quaeritur, If comprisings be equivalent to Dispositions and Resignation following upon the same, so that the first Compryser is preferable to others even before Infeftment? Answer. That comprisings are only Legal Dispositions, and do not denude the Debtor without Infeftment, whereas Resignation being made in the Superiors hands and accepted doth denude.  
What is the reason then that after Comprysing, it is found that the Debtor not inhibited cannot Dispone in prejudice of the Compryser? Answer. That the Law, and the Judge who is Lex animata, having in subsidium Disponed to the Creditor the Debtors Lands; the same is so affected by the Legal Diligence, that the Debtor is denuded as to that effect that he can do no voluntar deed to prejudge the Creditor; Without prejudice nevertheless of more exact and complete Diligence of other Creditors, who obtaining Infeftment will be preferred to the first Compryser: as in the case of Movables after Arrestment, the Debtor cannot dispone the same, and yet may be Evicted by another Creditor by way of Poinding.  
If a Superior be content to take a Right to a Comprysing of Lands holden of him, not being willing to enter the Compryser. Quaeritur, If he may claim a Years Duty when the Lands are Redeemed? Answer. Negative: And he is in the same case as if he had Comprysed himself, so that as he cannot in that case neither in the other can he claim any Composition; in respect the samen is granted only that the Superior should not be prejudged by obtruding a Vassal, upon him against his will.  
If by the First Act of Parliament anent comprisings, a Composition was due to the King? Answer. It is thought, not: There being a difference betwixt the King and other Superiors; in respect the King is Pater Patriae and all the lieges being his Subjects, it cannot be said that he has any prejudice by the change of his Vassal, and long after the said Act of Parliament Signatures were not passed upon comprisings, but comprisings lay at the Signet and were the warrant of Charters under the Great Seal.  
To try when that Custom was changed, and what warrant was for changing the same.  
A Person having Comprysed Lands and having granted Bond that he being satified of the Sums due to himself, and of the Sums due to another person, and that other person being relieved of his Cautionry for the Debtor, The Compryser should denude himself in favours of the Debtor: And the said Compryser having thereafter Disponed the Right of the Comprysing, but with the Right of the said Backbond expressly provided in the Disposition and the Procuratory of Resignation therein. Quaeritur, If there be no mention in the Season that the Right is with the said Burden, whether the Compryser will be still Liable by the said Backbond to the Persons in whose favours it is conceived? And 2do. If the said Back-bond will militate against a singular Successor acquiring a Right from the Assigney to the Comprysing. Answer. It is thought both the Compryser and the person having Right from him with the Burden of the Backbond will be Liable. 2do. A singular Successor will not be Liable unless the said Provision, that the Right should be with the burden of the Backbond, be in Traditione and in the Season.  
Quaeritur, What way shall the Appearand Heir have the Right of the Lands comprised where the Comprysing is extinguished by Intromission, If it be not by a Service as Heir to his Father? Answer. He may give in a Bill to the Lords or intent Action against the Superior on that ground, That the Lands are in effect redeemed and satisfied by Intromission; And that the Superior and the Creditor being convened, it ought to be declared that the Lands are Redeemed, and the Creditor ought to renounce, and the Superior be discerned to Infeft.  
When a Person is denuded by Infeftment, and yet the Infeftment and Disposition whereupon it proceeds is Reduceible upon the Act of Parliament as being in Fraudem Creditoris. Quaeritur, What course the Creditor shall take, and whether he should first reduce before he comprise? Ratio Dubitandi. That if he comprise the Debtor being divested as said is, there is nothing in his person to be comprised. Answer. It is thought it is fit to Reduce and then to comprise; Because after the Creditor has been at the Charges of Comprysing, it may be there may be difficulty in the Reduction: And yet upon other Considerations, it may be fit first to Comprise; in Respect the Lands may be Comprysed both for the Debt of the Disponer and the Debt of the Person to whom the Right is given.   

Infeftments upon Comprysing.  
WHen there is a Clause in a Charter upon Comprysing, That if the Comprysing expire another Infeftment should be taken within Year and Day, otherways the Infeftment to be void. Quaeritur, What is the effect of that Provision, if it may be purged? 2do. If another Compryser may object the said Nullity?   

Conditio.  
COnditio est adjectio, quâ id quod dari, aut fieri volumus, confertur in aliquem casum & suspendit obligationem.  
Conditione impossibili adjecta, Contractus est nullius momenti, & contrahentes Ludere videntur, secus in sponsalibus & ultimis voluntatibus in quibus favore Matrimonii & ultimae voluntatis, tales conditiones habentur pro non scriptis. Christen. de Sponsalibus quaest. 14.   

Confession by Criminals,  
IF a Confession be emitted and signed before the Judge in the Criminal-Court may the Pannal Retract and not adhere to it before the Assize, so that the Inquest cannot proceed on it as an evidence and clear Probation?  
Minors having confessed heinous Crimes, may they desire to be reponed upon pretence of their Age, though they do not pretend and clear that their Confession was upon Error or Mistake?   

Confirmation.  
A Feu of Church-Lands being neither confirmed by the Pope nor King, If the Confirmation by the King of Rights granted thereafter by the Fever to be holden of the King; will supply the want of Confirmation of the Original Charter?  
When a Person is Infeft to be holden of the Superior and deceaseth, and both the Disponer and Superior that was for the time are deceased, yet the Superiority is conveyed to a singular Successor, Quaeritur, If after long time the singular Successor in the Right of the Superiority may confirm the said Infeftment: So that the Heir of the Person Infeft, though not confirmed in his own time, may be Infeft as Heir to him by a public Infeftment? Ratio Dubitandi, It cannot be said that his Father was Infeft by a public Infeftment: To consider therefore whether the Party infeft being infeft to be holden of the Superior, may be said to be truly infeft holden of the Superior; But that the Infeftment was not a complete Right, until the Superiors Consent and Confirmation was had, whereby it did convalesce, as if it had been from the beginning: Or if there be no mid impediment? And there is a Difference betwixt Vitiosum ab initio, & Incompletum; illud nunquam confirmatur, istud accedente complemento convalescit.  
Whether or not Confirmation may be granted after the Death of the Disponer? Vide Craig.  
If a Disposition be granted to be holden of the Superior containing a Precept of Season, and if it be confirmed by the Superior, but before Season follow thereupon the Superior is denuded of his Right in favours of his singular Successor, Quaeritur, If thereafter Season may be taken on the said Precept? Ratio Dubitandi, That Res devenit in alium casum, and the former Vassal not being denuded, he remains still Vassal to the succeeding Superior; So that by no deed without his consent, a new Vassal can be obtruded to him.  
Quaeritur, If Infeftments being to be holden of a Superior, may be confirmed after the death of the Person infeft? Ratio Dubitandi, Craig seemeth not to be clear, upon that Ground that the Superior and Vassal should both consent; So that the consent of the Vassal in taking the Infeftment and the Superiors in confirming the same be conjoined, which cannot be, the death of either interveening: It is thought nevertheless, that such Rights may be confirmed after the Death of the Receiver, though their Consents cannot be conjoined, which was only done, and when the consent of Persons is required ad integrandam Personam; as in the case of Pupils and Minors, it ought to be given before their decease, & in ipso acta; But where the consent and confirmation of Persons is ad integrandum & constituendum Jus, which is constitute and perfected per gradus & parts, The consent and confirmation may be at any time re integrâ, and where there is no medium impedimentum: as Exempli Causà, If there be a Compriseing against the Disponer, the Disposition cannot be confirmed.  
Item sometimes there must be Confirmation neither add integrandam Personam, nor Constitutionem Juris, but for confirming the Right constitute; as the Pope's Confirmation in the Right of Church-Lands, or the Patron's Confirmation; which are necessary in regard of their Interests, Et ne quid Detrimenti Ecclesia capiat: which may be at any time.  
If a Right be confirmed after the Death of the Receiver of the Right, and after the Disponers' Heir is Infeft upon the Retour, Quaeritur, If the Heir of the Person who receives the Right, may be served Heir to his Predecessor as having died last vest and seized, notwithstanding that the Right was null the time of his decease; and that there is medium impedimentum in the Retour, by the Infeftment of the Disponers Heir? Answer, It is thought he may be served Heir, and the said Infeftment is not an impediment; the Heirs of the Disponer being eadem persona and in effect his Author: And the said Infeftment is in effect to the use and behoof of the Receiver of the Right and his Heirs: And the Heir of the Disponer is in no other case than the Disponer himself, whose Infeftment is to the use of the Buyer until his Right be confirmed, and then ceases.  
If the King should confirm the Charter à me granted by Castlemaines' to Cesnock. Quaeritur, If in that case the Vassals will be in any hazard? Answer, It is thought, not; seeing it cannot be said that they were at any time Vassals to Cesnock: And though fictione Juris the Confirmation be drawn back as if Cesnock had been infeft immediately after his Right: yet it cannot be drawn back where there is medium impedimentum; the Vassals having acquired a Right before, and having never been Cesnock's Vassals but only to Castlemains before the Forfeiture.  
If an Heretor of Land dispone his Land to be holden of the Superior, and the Superior confirm the Disposition with all that shall follow upon it; But before Season be taken upon the Precept, the Disponer dies. Quaeritur, What way the Purchaser shall be Infeft? Answer, The Disponers' Heir is to be Infeft, and to grant a Precept relating to the former Disposition and Confirmation: Or if he will not, or think not fit to be Heir; the Lands may be adjudged from him as charged to enter Heir.  
Quaeritur, In the case foresaid, if the Superior, after he has confirmed the Disposition, die before Season thereupon; Whether a singular Successor in the Right of Superiority may question the said Infeftment? Ratio Dubitandi, That there is medium impedimentum, viz. The Superior is changed; and the former Vassal being his Vassal the time of his Right, thereafter another Person cannot be his Vassal without his consent: Et è contra, the former Superior having done all that he could do to perfect the said Right; and nothing resting to complete it but the deed of the Disponer or his Heir by giving Infeftment, the former Superior was denuded as to his Interest: So that his Successor cannot question the said Right, being perfected by the Infeftment.  
If at least the Successor of the Superiority may be urged to renew the Confirmation? Ratio Dubitandi, The singular Successor in the Superiority, may be urged to grant Infeftment upon Resignation in the hands of his Predecessor, Cogitandum. But it appears there is a difference, seeing by Resignation the Property is in the Superiors hands, whereas by the Confirmation, it is not: and the Vassal is not denuded before Infeftment upon the Charter confirmed, whereas he is denuded by Resignation, and by Comprising which in Law is equivalent to a Resignation accepted, seeing the Superior cannot refuse to give Infeftment upon Compriseings.  
If the Disponer be denuded of the Superiority, what course is to be taken against his singular Successor for renewing the Procuratory? Answer,  in the case in question, the Buyer was infeft according to the Tenor of the said Disposition, It is to be considered if the King may notwithstanding confirm the said base Right.   

Confiscation.  
IF a Person being at the Horn dwell within a Regality, and have Goods or Debts within another Regality, Will these also belong to the Lord of Regality where he dwelleth, upon that pretence that sequuntur personam?   

Confusione tollitur obligatio.  
BY Contract of Marriage, the Husband is obliged to employ 30000 marks to himself and his Wife in Conjunctfie, and the Heirs of the Marriage; and has obliged also his Heirs and Executors to employ at his decease 15000 marks to his Bairns besides the Heir, Quaeritur, If the Heretable Estate be short of 30000 marks, May the Heir pursue the Executor ad Supplementum? Ratio Dubitandi, he is served Heir and eadem Persona with the Defunct, & confusione tollitur obligatio: It is thought he may, and that Maxim militateth, when the Heir succeedeth in universum Jus & Patrimonium: But in this case the Heir having right only to the  Estate, there is no confusion of that Obligement which is prestable out of the Executory, to which the Heir has no right: as in the case of movable Debts due by the Defunct to his Heir either of Line or Tailzie, there is is no confusion for the reason foresaid.  
Item Quaeritur, If there be not so much in the Executory as may satisfy the Provision foresaid in favours of the Bairns, if they may have recourse against the Heir for their Provisions? Ratio Dubitandi, The Heir by the Contract was to be provided presently, and the Bairns at or after the Father's decease, and by and attour the Sum provided to the Heir: so that the Heir should have his Provision as Praecipuum and before the Bairns: Answer, It is thought, That the Heir being provided under the name of Heir, which is Nomen Repraesentationis, as he is liable to other Creditors, so he is liable to the Bairns, being provided under the notion of Bairns, who do not represent.  
If the said Provisions had been in a second Contract of Marriage, the Son of the first Marriage being Heir of Line, would be liable to the Son of the second Marriage though served Heir, and there would be no confusion for the Reason foresaid.   

Conjunct-Fiar.  
QVaeritur, If a Lady Conjunct-Fiar or Liferenter of a Barony may receive Vassals singular Successors upon Resignation or Confirmation or give Novo damus.   

Conquest.  
A Father being obliged to provide to the Heirs of the first Marriage the Conquest, and having acquired a Room during the first Marriage, and disponed the same to the Son of the third Marriage, Quaeritur, If the Heir of the first Marriage may reduce that Right, as given without an onerous Cause in his prejudice, being a Creditor by that Clause of his Mother's Contract of Marriage? Ratio Dubitandû, It is pretended not to be free Conquest, the Father having contracted Debt thereafter above the Sum of that Room: Whereunto it was Answered, That the said Room was Conquest, the price being then paid; and the Debt contracted thereafter.  
A Merchant being obliged to provide the Conquest during the Marriage to himself and Wife, and the Bairns of the Marriage, Quaeritur 1. Whether Conquest being Vniversitas, will fall under the Executory of the Bairns, though the subject, and what will fall under the Conquest be movable?  
2do. The Conquest being provided so, that the Right should be taken to the Husband and Wife and Bairns of the Marriage, whilk Failyieing the half to the Husband's Heirs and the half to the Wife's Heirs: Whether the Husband be Fire and the Bairns only Heirs of provision, though the subject be Movable?  
Though the Husband be Fire, if he can Dispone the Conquest without an Onerous Cause: or provide the same to other Heirs, in prejudice of Bairns being Creditors by such Provisions?  
The Husband being obliged in these terms to provide the Conquest, viz. Lands Heretages and Annualrents and other things; And to take the Rights in manner foresaid. Quaeritur, If the General other things be comprehensive of Movables, there being no mention of Sums of Money or Movables? And it seems that Conquest is to be understood properly of Heretable Interests, of which only, and not of Movables, Rights are taken: And other things may be understood of things Homogeneous, and of the same nature that the things expressed in particular are of; (Viz. Heretable) as Reversions, Tacks, etc.  
If at least Bonds bearing Annualrent though Movable, will fall under the conquest;  Rights are in use to be taken thereof: And by the Law they belonged to Heirs before the statute? This and the Four preceding Questions are in the case of Andrew Bruce, and his Conquest during the first Marriage.  
The ordinary Clause of conquest in favours of Wives being of Lands, Heretages, Annualrents. Quaeritur, If Bonds being Heretable because Executors are Excluded will fall under the same? Answer. It is thought, not; Because the Subject is only Lands, Heretages and Annualrents, whereupon there is or may be Infeftment: And Heretages comprehends only Lands, Teinds, and such Rights as are real by Infeftment or otherwise, or whereupon Infeftment may follow.   

Consensus.  
USV receptum est, ut in terrarum aut nominum & jurium alienationibus & Cessionibus, praeter contrahentes alii interveniant pro interesse & consensum accomodent & subscribant contractibus & instrumentis: Sed quisnam Consensûs effectus esse debeat ambigitur; quibusdam videtur, consentientes, contractus quibus consenserant haud reprobare nedum ut rescindantur agere posse, juxta tritam juris regulam quod approbo non reprobo. Alii opinantur cum nihil juris disponant ant tribuant, consensum haud extendi ultra id quod actum aut cogitatum, viz.  si quod jus eo tempore quo consensum adhibuerant suberat, aut juris umbra, ejus ratione aut praetextu Litem aut quaestionem intentare nequeant; Saluâ tamen libertate commercii, & jura si quae sunt penes alios quam contrahentes, potiora acquirendi; aut in ea succedendi: jis ex intervallo & post facto adeptis consensum haud obesse.  
Cogitandum an ea sit commoda distinctio, consentientes si in alia jura postea succedant iis uti posse; quae enim consentientibus tunc temporis haud competebant sed postea nec opinantibus forte jus detulit, ea antequam penes eos forent consensu ase abdicasse nec verisimile nec credere par est: Qui autem juri in alium transferendo consensit, si ejusdem rei jus & melius penes alium esse compererit & sponte & operâ suâ acquirat, ex eo adversus eos qui ipso consentiente jus alterum quaesierant agere haud audiendus: Nec enim juri nec bonis moribus consentaneum est, quod approbavit, aliquid moliri aut quaerere quo illud posset reprobare aut rescindere Broomhall contra Lady Darsie.   

Consensus Domini.  
COnsensus assumit naturam actus super quo interponitur: Sicut stipulatio, quae est stricti juris interposita contractui bonae fidaei. Bes. Thes. liter. L. p. 552.  
Dominus consentiendo, non praesumitur juri suo velle praejudicare; sed solum obstaculum, quod scilicet jus vasalli sine Domini Consensu alienari non poterat, removisse: Et remissio juris sui non praesumitur, nisi verbis apertis de eâ constet. Ibidem P. sequen.  
Regula, quod Domini consensus juri ipsius nihil officiat, procedit tantum in illis juribus; quae Domino consentienti competentia, separatam habent rationem a negotio cui consensus accedit, non autem in his quae ad robur & firmitatem actus pertinent. Idem. p. 554.   

Consent.  
QVaeritur, If an Appearand Heir consent to a Disposition, made in Lecto, after the Decease of the Granter, may another Heir quarrel the Deed upon pretence that the Consenter was not served Heir at any time? Ratio Dubitandi: The Consent of the Appearand Heir the time of the granting the Right, doth so validate the Right, that all Heirs are precluded from questioning it: And there appears to be the same reason when the Consent is supervenient.  
If the Consent will import Behaving?  
A Person being Infeft in an Annualrent to be holden of the Disponer; and in possession by payment of the Annualrent, Consents to a Disposition of the Lands. Quaeritur, If that Consent will prejudge a singular Successor; The Disposition being neither Registrate in the Register of Reversions, nor the Season upon the Disposition relating to the Consent?  
If the Consent of a Person having Right by Disposition whereupon Resignation has followed, will prejudge a singular Successor?  
In what cases Consent to a Right will prejudge singular Successors? Answer. It is thought that where there is no Infeftment and the Consenters Right may be transmitted by Assignation or Discharged, such a Consent may prejudge singular Successors: And will amount to an Assignation or Discharge.  
If a Consent of a Party having only Right to a Reversion, will prejudge a singular Successor unless it were Registrate?   

Anent Consistories; Whereby the usefulness and Necessity of these Courts is evinced, and Doubts and Prejudices against them, are Cleared.  
THE Question, whether a Judicatory be useful and necessary, and therefore to be Instituted, If it be not; and continued if it be already erected; or unuseful and therefore to be suppressed; Cannot be defined well à priori, but from the nature of the Subject, and Causes which are agitate in the Judicatory: And if the Subject be necessary and favourable, Notwithstanding any extrinsical Abuses (which may creep in to the best Judicatories) it may plead for a Reformation, but not a total Suppression.  
All Causes are of necessity to be decided, and Justice is always favourable, But in some Causes (as the Law speaks) praedominatur favour & publicum interest, and such, and only such are the Subject of the Jurisdiction of the Commissaries, as Causae Matrimoniales & Testamentariae, which are in themselves favourable; and the Causes of Orphans and Widows, of miserable Persons, of Persons slandered and defamed, of Ministers and their Readers for their Stipends, in which the Condition of Parties pleadeth for favour, not in the point of Decision (which should be impartial, and abstract from all respects) but in the way of Procedure, that it be both exact and summar; that those Parties be neither dwanged by a long and expensive attendance, nor wronged by a precipitant handling of their Business: which Qualities seeming incompatible in a Judicial Procedure, concur only when a particular Judicatory, is allotted for such Causes: and neither the throng of their Business can justle them out, neither the Judge can have a pretext for shifting them.  
The Gravity and Difficulty of Matrimonial and Testamentary Causes is so notour, and the favourable Eulogies of Law anent these Persons, recommending thereby a Circumspect, and as it were a Religious Handling of them, are so obvious and frequent, that they need not be repeated; and it is certain that there is no Subject debated either in the Law itself, or in the large Volumes of the Doctors, with greater Prolixity and Subtlety, than the Causes of Marriages and Testaments. 
(A) Authent. de nupt Novel. 22. in praesat. verba sunt eximia, alia omnia quae sancita sunt, non omnibus competunt hominibus, nec rebus nec temporibus, studium vero nuptiarum totius est humanae so bolis: ex quo etiam renovatur solo: & ampliori quam alia dignum est solicitudine: & humano generi Immortalitatem artificiosé videtur introducere. It is remarkable, that the whole ff. being divided in _____ parts, one whole part, viz. the 5th. containing 8 books, teacheth de materia testamenti. Videri possunt tit. cap. de testam, and the subsequent tit. to the end, decret. l. 3. tit. 11. de testam. l. 3, decretal tit. 26 de test. succest. lib. 42 per totum. Clarus de testam. §. testam. Covar de testam. genere tom. 1. per totum ff. de sponsalibus lib. 27. sequen. tit. ad fin. lib. C. de nuptils lib. 5. & seq. tit ad 27. 4. decretal. desponsalibus & matrimonlis per totum decret. causa 27. lib. 32. Inclusive. Covar. in 4. lib. decretal.   
It is to be observed from Law and History, that from these Reasons, Matrimonial Causes, and publicatio & insinuatio Testamentorum (which is with us the Confirmation of Testaments) were neither entrusted to the lowest sort of Judges, neither to Judges of great Employment about the decision of other Civil Actions, to be decided in a tumultuary Way, and promiscuously with other Causes, but by a considerate Choice of Judges, singled out, for these Causes: It was provided that neither the meanness of the Judge, nor the greatness, nor multitude of his other Employments, should prejudge Causes of so great Gravity and Importance. 
(B) Censores, albeit magistratuum omnium maximae reverentiae & potestatis, penes quos erat regimen disciplinae communis; And yet it was incumbent to them, Remp. tucri, & non judicare de controversiis privatis competent to be judged by the Centumviris, arbitri cognoscebant tamen de sponsalitiis, de Repudiis & divortiis, & matrimonio spreto & male tractato. Greg. Tholos. lib 47. C. 16. de Censoris potestate. Cujac, lib. 11 ad lib. 39 Soluto matrimonio. And with what Solemnities Testaments were confirmed, appears by the Title of the ff. and the Cod. de aperiendis testamentis, and L. repetita C. de Episcopis. It is clear, that Insinuatio Testamentorum competebat tantum magistro Census: And by the Law defensores Ecclesiarum are prohibited to meddle with the Confirmation of Testaments, as absurd to be assumed by Churchmen, quibus est se ostendere peritos disceptationum forensium, which words of the Law, insinuate the disputable Nature of Questions incident at Confirmation of Testaments; by reason whereof, Churchmen were inhibited to meddle with them, although many other Civil Causes were remitted ad Episcopalem Audientiam, in that superstitious time. The Law 18 Cod. de Testamentis, & Lex consulta divertia Ibid. are consonant to the Law Repetita, and bears the like inhibition of Churchmen, and intimation of absurdity if they should meddle. Thereafter the Confirmation of Testaments was entrusted defensoribus Civitatum, qui eligendi erant non vilissimi sed nobiliores, and have a limited Jurisdiction in Causis Pecuniariis, not unlike the Commissaries add 50 solidos, and thereafter 300 aureos, as appears by L. Jubemus C. de Epist. & authent. ibi inserta toto tit. C. de defence. Civitatum.   
Though the favourable Nature of Consistorial Causes, and the necessity of a several and peculiar Judicatory for them, be evident for the Reasons and difficulty foresaid, and from the Pattern of Antiquity; It will appear more clearly from representing the Inconvenients that will follow, if Consistories be suppressed, and by answering the Objections against these Courts.  
The Inconvenients are these 1. Omnis mutatio etiam in melius est periculosa; Especially of a Fundamental Law and Policy, which hath ever been also ancient as any monument of Law and Policy in this Country 
(C) The Antiquity of the Practic of Consistories, is evident from the Titles de Testam. In quot partes dividuntur bona testatoris, de testibus & executoribus testamentariis; and divers others of the Majesty, which were published in the time of K. David 1. about 500 Years since.  2. Unless there be a Judicatory appointed for these Causes, it cannot be conceived how Defuncts Wills shall be observed, how Minors, Orphans, Widows, Legators and Creditors shall be secured. 3. Whereas it may be conceived (and as we hear is urged by some men, who know not the nature of Testaments, nor use of Consistories) that a General Register may be keeped of Testaments, as of Sasines, and Hornings, without necessity of Confirmation: The keeping of such a Register cannot supply the want of Consistories, if they should be suppressed; Because albeit a Register could be keeped of Testament Testamentars' given up by the Defunct and presented to be registrate by Executors; The Registration of them cannot be urged, if the Executors be unwilling, or the nearest of Kin, who is possibly Interessed by the nomination of Executors, and leaving of Legacies, to keep up the Testament, except there be a Judicatory for Confirmation of Testaments; and Edicts served, and Intromittors charged to give up Inventar; Neither can any time be limited for registration of Testaments: And the Certification of Nullity, in case of not Registrations within the time appointed, should be Injustice; because Testaments are not the Deeds of Parties concerned, viz. Executors and Legators, but the Wills of Defuncts, which may be unknown to those who have most Interest: and therefore the not Registration of them cannot be imputed to them, as of Sasines and Hornings which are the Deeds of the Parties themselves, and cannot be unknown to them. 4. When Defuncts have not made Testaments, it cannot be conceived (if there be not a Judicatory for Confirmation of Testaments) how the nearest of Kin should be discerned and confirmed Executors Dative, how Licences should be given, quando dubia est haereditas, and apparently damnosa, and when haereditas est caduca; and neither an Executor is nominate, nor the nearest of Kin craveth to be confirmed; how the Defuncts Goods should be preserved to Minors and Creditors, if the Procurator-Fiscal be not discerned, and either become comptable, or a surrogation of Parties interessed: And when Testaments have been already confirmed, how shall Testaments, ad omissa & male appretiata & non executa be expede? How shall Executors Creditors be discerned? How shall the intricate Questions be discerned, and Disputs incident in the Confirmation of Testaments be decided, anent the Nullity and Falsehood of Testaments, the competition of the nearest of Kin, with the Executor Nominate, of the Executor ad omissa, with the Executor confirmed? Of the Executor ad non executa, with the Executor of the Defunct? Executors anent the Praelation of Creditors, and others of that nature?  
The Confirmation of Testaments, and the decision of Causes Matrimonial and Testamentary, cannot be devolved upon the Lords of Session, without great prejudice, 1. Because the Lords are already overburdened with great Business, and weighty Causes of Heretages, and great Importance; and therefore have been forced to discharge themselves of Actions possessory of Molestation, Jam. 6. Parl. 11. Cap. 42. 1587. Ratifying a former Act of of the said's Lords, whereby these Actions are remitted to other Judges; because the multitude of Affairs before the Lords empeaches greatly the ordinary Course of Justice: And it is not possible to the Lords to try the Verity so well, (which are the Words of the Act, and Motive of making of it.) 2. The Lords have not time to hear Parties, and urge earnestly calling and dispatch of the Businesses of greatest Consequence; far less can they have time to urge Parties to confirm Testaments, and to inquire, and take course anent Defuncts Goods, ne dissipentur to the prejudice of Creditors and Minors; which should be done, and is incumbent to the Commissaries ex officio, albeit Parties urge not. 3. The Lords Procedure by reason of multitude of Business before them, is not peremptor; and Parties after long and expensive attendance, having prepared their Business for hearing, cannot be assured to have them called and expede, whereas Process before the Commissars are peremptor; and Summons bear not continuations which is necessarily required in favourable Causes, concerning Minors and poor People who cannot attend; But especially in Edicts and Testaments, which cannot bide delay, lest Minors Goods should perish: And are so privileged that in Vacant and feriat times, they may be, and are ordinarily expede, without necessity of a licence. All Questions and Causes, and probation of Adultery on Impotency, the Disputs whether frigiditas sit naturâ vel Arte, utrum ante matrimonium aut superveniens; Vtrum maleficium sit solubile an insolubile, and others of that Nature, cannot be agitate verecundé, in so public and eminent a Judicatory, primâ instantiâ.  
These Causes much less can be remitted to Sheriffs, and other inferior Judges. 1. By reason of the Gravity and Intricacy of them 
(D.) Praetor, etsi Patricius & inter Maximos Magistratus. Cognoscebat de Legatis; & peculiaris Praetor constitutus est qui de fideicommissis jus dicat; hoc autem testamentariarum causarum membrum perexiguum est, L. Si cui Legatum ff. de conduit. & demonst. L. 2. ff. de origine Juris § 32, & ibi Cujac.  2. The Sheriffs have either their Offices Heretable and Patrimonial, or chosen yearly by his Majesty; The first cannot have their Right of Jurisdictions enlarged to Causes of such gravity, without a new Grant and Right from his Majesty; and here how little favourable Heretable Offices are, It is constant from Law and Reason, by the Act 44. Ja. 2. Parl. 11. It is Ordained that no Office should be given in Fee, and heritage; (Skeen de verb. Sign. in Verbo Sheriffs) Because in Jurisdiction persona eligitur, and both Heretable and other Sheriffs are known to be Gentlemen who understand not the Law, nor the way of Process, and are forced to delegate pedaneos Judices; and to depute their Friends and Servants, who have no knowledge of the Law, and being changed yearly, have no time to learn the least formality of Process; 
(E) Sheriff's should answer for their Deputs, Jam. 1. Parl. 1. C. 6. 1404. Ja. 3. Pa 5. C. 26. 1469.  3. Sheriffs, who in Conscience, and according to our Acts of Parliament, are liable to answer for their Deputs, may think it hard that Causes of such weight and Difficulty, which cannot be decided but by such as understand the Civil and Canon Law, should be remitted upon their perils to be Judged by Deputs. 4. The Sheriff's Jurisdiction both Civil and Criminal, is so large, (as is represented by the learned Skeen, de Verb. Sign. in Verbo Sheriffs.) that it cannot be extended, without great Prejudices, to Causes and Actions of a different nature; Because Remove, Molestations, Ejections, Services, and other Actions competent to be judged by the Sheriffs, are for the most part real and possessory, and may be easily decided by the customary Law of the Country, and Acts of Parliament; Whereas Testamentary and other Consistorial Causes, are in apicibus Juris; and cannot be decided, but by the Civil and Canon Law, not authoritative, but according to the equity of the said Law, which must be known to those who are Judges in these Causes.  
The prejudices and common Objections against Commissariots are these. 1mo. That they are Episcopal Courts. 2do. That Official Courts are suppressed in England. 3tio. Exorbitancy of Quots, and other abuses are great in these Courts.  
That the first may be cleared, It is to be considered that Jura Episcopalia are of two sorts. 1mo. Such as are usurped by Bishops as intrinsically inherent in the pretended Office of Bishops. 2do. Such as extrinsically belong to them by the Grant of Princes or otherways; These of the former sort (as their usurped Jurisdiction over their Brothers) are extinct with the Office. The last sort is not to be suppressed, if they be useful and necessary: Thus the temporal Jurisdiction of Bishops was Reserved to Bailies of Regalities, conform to the Infeftment to be holden of His Majesty: Thus Episcopal Patronages are not extinct, but are to be disposed upon as the Estates shall think expedient, & sic de caeteris. That the Jurisdiction of Commissaries as it is now established is of this kind. 
(F) There is an express Canon in decret. dist. 88 Episcopus tuitionem Testamentorum non suscipiat, and the gloss explains tuitionem. And it is clear from the _____ of the _____ of the decretal de Testamentis cap. 13. & cap. 17 executio Testamentorum devolvitur ad Episcopum tantum, cum aliquid Ecclesiae vel ad pios usus relinquitur, tunc enim secundum piissimas Leges voluntates dilatas Episcopali studio decens est adimpleri; Where the word Secundum piissimas Leges is considerable, and argues that they had that privilege only, by Imperial Laws which is received in the Gloss, and is cleared from the Cod de Episcop: audient: & de Episcop: & Cleritis; and from the Authent. That Matrimonial causes were competent only to be judged in Civil Judicatories.  It appears 1mo. Because it is clear from the Civil and Canon Law; That consistorial Causes non pertinebant ad Episcopalem Audientiam in the times of the greatest Grandeur, and in the most Superstitious Times; And that Churchmen were prohibit to meddle with them, as Absurd, and most incompetent to be Judged by them, as is evinced by Citations supra at the Letter (B.) But these Causes were assumed by these Judicatories in the Latter Times, upon pretext that they were pious and favourable, and by the Connivance of Prince's 
(G) Theologi Germanicarum Ecclesiarum in articulis Smalcaldicis hanc jurisdictionem ex postliminio tantum jure exercuerunt. & quidem non adeo veteri, ut ex Cod. & Novel. jure apparet, causas se: Matrimoniales à Magistratu politico diiudicandas, vide Altare damasc: p. 462. It is acknowledged by these who are most for enlarging Episcopal Government, That jure municipali tantum, confirmato Ecclesiastico, ad Episcopalem Jurisdictionem pertinet Testamenta probare & insinuari facere, Beza de Repudiis & Divortiis concludes, Jure certe suo non tantum Prophetae sed Christiani & Religiosi principes, leges de conjugiis posecrunt Vide Altar Damas'. cap. 6. per totum.  2do. The Jurisdiction of Commissaries as it is now established, was erected by Q. Mary in time of greatest purity and Reformation, and a Commission granted by her to the Commissaries of Edinburgh. An. 1563. And is warranted by divers Acts of Par. Viz. Ja. 6. P. 1. C. 28. 1567. (The which Year, the Lords of Session made certain Instructions for the Commissaries of Edinburgh, and other inferior Commissaries) By another Act of his 7 Par. 1581. which is the 26 in the Catalogue of the Unprinted Acts, and containeth a Commission for confirmation of Testaments and placing of Commissaries. By an Act of his 12. Parl. 1592. the 25. of his Unprinted Acts, Entitled a Ratification of the Commisariot of Edinburgh. By the Act. 179. of his 13. Par. 1593. Ordaining Letters of Horning to be direct upon Decreets of Provosts and Bailies of Burrows as is granted upon Commissaries Precepts. 3tio. It is most evident from the 6 Act of his 20 Par. 1609. That the Jurisdiction of Commissaries is a Temporal Jurisdiction, acknowledged by the Act to flow from His Majesty, as well as any other ordinar Jurisdiction, which His Majesty might have granted to any Subject as well as Bishops; And which is granted by the said Act to the Lords of Session, as His Majesty's great Consistory for Reduction of Commissaries Decreets; And which before he granted to the Earl of Argyle, whose Heretable Right of the Commissariot of Argyle, is reserved by the said Act.  
There is a great difference betwixt the Official Courts of England, and the Commissariots as they are Established in this Country, Because Commissariots being considered either Objectiué, In regard of the Object and Causes Consistorial; Or formaliter ratione modi quo versantur circa Objectum, in regard of the way of procedure in these Courts, Commissariots are Civil and Temporal Judicatories in both respects, in respect of Confirmation of Testaments and Testamentary Causes, and Matrimonial, de impotentia Maleficio & de Natalibus. Bastards and others of that nature are incompetent to be Judged in Sessions, Presbytries and Assemblies (which are the true Ecclesiastical Courts) and therefore is acknowledged to be merely Civil, because Summons are direct by the Commissaries under the Signet of Office, bearing His Majesty's Name and Arms, the Certification is Civil, Witnesses are Summoned under Civil and pecunial pains, and Letters are directed for compelling them to compear under the pain of Horning: The Execution of Sentences is Civil, by poinding or comprising for Liquidate Sums; Or by a Charge to fulfil what is in facto, upon the Commissars Precept; Or by a Charge of Horning upon the Letters; And by intenting Action of deforcement before the Commissaries or the Lords of Session. But the Officials Jurisdiction was Episcopale, Ecclesiastical in both the former Respects, and was continued as it had been in the Popish Church; The Bishops usurping the Jurisdiction that belonged to Session's Presbytries and Assemblies; and delegating to their Officials their Jurisdiction, both Objective, in Causes competent to be judged in Church Judicatories; And Formaliter in the way of procedure competent only to the Church. By the Canon of the English Church they were Judges in causa non modo instantiarum sed Correctionis & disciplinae, they had a Superintendance over Ministers, to advert that they should do their Duty in their Charges; Ministers and Churchmen were accusable before them, and being contumacious and not appearing might be Suspended and Excommunicate; They were Judges whether Crimen be notorium & publicum or not; And upon pretext that it was not public and Scandalous, poterant mutare poenitentiam in mulctam pecuniariam; They usurped Sacrilegiously the power of the Church and Ecclesiastic Censures, and by the fulminating at random Excommunications for small matters, as small Debts, Viccarrage Teinds, the Official and his Officers Fees, and for Non-compearance in their Courts: And by their easy Absolution upon small satisfaction and for Money, made Excommunication contemptible 
(H) Vide Altar Damasc. Cap. de officialibus. Calv. Instit. Lib. 4. Cap. 11. Sect. 6.  For these and other Abuses intrinsical to the Judicatory itself, These Courts have been long ago cried down on these grounds by divers Learned and well affected Men, and lately suppressed: But the instance of their ruin cannot with reason be adduced to subvert Consistories, they being altogether different and absolutely Civil in their Institution, object and way of Process, and no more Ecclesiastical than the Church Regalities, which had an Extrinsical dependence on Bishops in the way of holding.  
It is already cleared, That if any Abuses be in these Courts they are not essential resulting upon the nature and Constitution of the Judicatory, but accidental, which may be Reform, without the subversion of so old and so useful a Judicatory. 2do. If Commissaries either be not qualified or corrupt, It is wished they may be tried, and removed, and a solid course taken for obviating the like Abuses thereafter, that places be not venal, but proposed and disposed as rewards of Virtue to able and deserving Men 3tio. The Exorbitancy of Fees and Quotts may be Regulated, by taking course anent the presentation to settled places, that honest and ingenious Men be presented, that a Competency of settled and constant Fees be allotted to encourage honest and able Men to pretend to these places, and to enable themselves for them, and that they may live creditably and honestly in them, and Quotts may be abridged, and it may be provided that small Testaments may be free of Quot; And the Quots of great Testaments may be limited, not to exceed a certain Sum, which the Estates shall think reasonable to be the highest Quot: The Quot Silver which shall be thought fit to be taken may be employed (the Commissaries being satisfied of their Fees) to pious uses.   

Consolidation.  
A Person having Right by Assignation to a comprysing of Lands holden of himself, whether eo ipso that he has the foresaid Right, will the Property consolidate with the Superiority? Seeing a Comprysing is equivalent to a Disposition and Resignation thereupon: And the Superior having Right by an Assignation to a Disposition whereupon there is Resignation, and to the said Resignation; It seems that in that case there is Consolidation: In respect the Superior upon such an Assignation in favours of a Stranger will be obliged to Infeft him: And because he cannot Infeft himself, the Law doth introduce Consolidation. Ratio Dubitandi is, That Consolidation is upon the matter a Season of the Property; And a Season being facti, cannot be without some deed of the Person, in whose favours the Consolidation is to be made, Declaring that he accepts a Right to the effect foresaid. If it be not fit in such cases, that the Superior should before a Notar and Witnesses Declare, that seeing he has both a Right to the Property and Superiority in his Person, It is his will and intention that the Property should be consolidate with the Superiority; And that an Instrument upon his Declaration foresaid should be equivalent as if the Compryser had been Infeft and had resigned ad Remanentiam: And if such an Instrument should not be Registrate as an Instrument of Resignation ad Remanentiam?  
When a Person Infeft in the Property of Lands, acquires and is Infeft in the Superiority. Quaeritur, If eo ipso there be a Consolidation of both Rights? Item if the Superior succeed as Heir to the Right of the Property Quaeritur, If in that case there be a Consolidation, so that Dominium directum trahit ad se utile? Seeing the Superior could not Infeft himself, and by his purchasing of the Property he enters to the Right thereof, and so the Property is consolidate fictione juris, in the same manner as if he had been Infeft.  
If vice versâ, The Proprietar acquire the Superiority, If eo casu there be a Consolidation of both Rights? Answer. It is thought, not: And that Dominium utile cannot draw to it directum, without Infeftment by the Superior of the Dominium directum.  
If a Person being Infeft by his Father upon a Right granted to him and his Heirs whatsomever to be holden of the Disponer; be thereafter Infeft as Heir to his Father in the Superiority of the said Lands, which belonged to his Father and his Heirs Male. Quaeritur. Whether there will be a Confusion and Consolidation of the Property and Superiority? It is Answered. During his Life-time there will be a kind of Consolidation, seeing he cannot be Superior to himself: But it will cease by his Death, so that the Superiority will belong to his Heirs Male, and the Property to his Heirs whatsomever.  
If he intends that there should be a Consolidation, what course is to be taken to that purpose? Answer. If, as in the case foresaid, he was Infeft first in the Property and then in the Superiority, he must dispone the Property to a Confident; And the Confident being Infeft must resign ad Remanentiam, to the effect the Property may be consolidate with the Superiority to him and his Heirs Male and their Successors.  
If a Superior should succeed in the right of the Property. Quaeritur. If there be a confusion of both Rights in his Person? Answer. It is thought, though they may appear to be a Consolidation dureing his Life-time, they are nevertheless distinct;  the right of the Superiority may be to Heirs Male, and the Property to Heirs whatsomever: And the said Heirs may succeed Respectiuè.  
If the said Superior, being Infeft in the Right of the Superiority, succeed thereafter in the Right of the Property, what way shall he be Infeft therein, seeing he cannot Infeft himself? Answer. It is thought that it is not inconsistent, that the Superior may give Precept to give Season to an Actorney in his name and for his use.  
If the said Superior intent that the Property should be consolidate with the Superiority, what way shall it be done? Answer. He may direct the said Precept in these Terms for Infefting him: And seeing he has both Rights in his Person and intends that the Property should be consolidate with the Superiority; The Precept may be in these Terms, to give Season to the effect the Property may be consolidate with the Superiority; To be holden both of his Superior in all time coming, in the same manner as if they had never been severed.  
If a Precept may not be obtained in subsidium out of the Chancery, for Infefting the said Person in the property to be holden of himself, seeing he cannot Infeft himself? Answer. It is thought that a course may be taken upon a Bill to the Lords, ordaining the Director to the Chancery to direct a Precept upon the reason foresaid.   

Decreets contra Consortes.  
A Decreet of Reduction Ex capite interdictionis being obtained in foro; and the Wife being Liferentrix craving to be reponed, because Competent and omitted could not be alleged against her being sub potestate Mariti. Quaeritur. If she prevail, may the Husband crave the benefit of her Decreet? Ratio Dubitandi. Upon pretence that it is found that the Decreet against him was unjust upon the matter: And it cannot be just as to her and unjust as to him.  
This Question may occur in many cases; As that of two Heirs portioners, one being Major and another Minor: And after the Decreet against both, The Minor being Reponed and prevailing. And of a Decreet against a principal, having proponed a Defence of payment and having succumbed in probation: And thereafter the Cautioner being pursued, and upon probation of the same Defence, being Assoilied.   

Corporations.  
QVid juris as to Crafts and other Incorporations, and as to Bishops and other single Incorporations, if in any case they may oblige themselves and their successors?   

Creditors of the Defunct.  
IF the Creditors of the Defunct being Minors will be preferred to the Creditors of the Heir, though they do not Diligence within three Years?   

Persons convict of Capital Crimes.  
A Person being convict of a Capital Crime, and the Escheat of his Movables therethrough falling to the King, and he being keeped in prison many Years without a Remission, and dying in that condition. Quaeritur, Whether the Rents of his Lands in the interim not uplifted, will belong to the King and his Donator, or to the Heir? Ratio Dubitandi, His Escheat is only of what he had the time of the Sentence; after which he became civiliter mortuus; and being nullus in Law, he had nothing to loss; And the King by his Indulgence could not prejudge his Heir, unless he had granted him a Remission restoring him against the Sentence.  
Quaeritur, quid Juris, If after he is convict, he should commit Treason, whether he might be Forefaulted in prejudice of his Heir?   

Curator.  
A Female Minor being Married, Quaeritur, If the Office of her Curatory doth expire?   

Curatores ad Lites.  
JVre Saxonico, Faeminae sunt in perpetua Tutela, sed isti Curatores non habent Administrationem, & ideo Rationes non tenentur reddere; adhibentur enim tantum pro consilio & assistentia, & ad integrandam personam, maxime in Judicialibus.  
Ex consilio suo, quod fideliter impertiuntur, etiamsi non responderit eventus, conveniri nequeunt, quia nemo ex consilio obligatur: An idem dicendum in Curatoribus ad Lites? Thes. Bes. in litera K. 47. verbo Kriegerischer. per. totam pag. 474. & sequent.    

D.  

Damnum, cum quis utitur Jure suo.  
DAmnum est conjunctum cum injuria: Et non dicitur Damnum quod Evenit cum quis jure suo utitur.  
Si vero quis ita utatur Jure suo, ut vicino potius noceat quam sibi prosit, illicitum est, & prohiberi potest: Quia magis Jure suo abuti quam uti videtur.  
Si in meo aliquid faciam ad aemulationem & injuriam alterius, hoc est, non in meam utilitatem sed animo nocendi; alteri de Dolo Teneor.  
Secus si injuriâ faciam, non animo nocendi vicino sed ut mihi prosit.  
Si enim in meo praedio puteum aperiam, quo aperto, venae putei vel fontis vicini mei praecidantur, non teneor ex hujusmodi facto etiamsi promisissem de Damno infecto, quia jure meo & licite feci. Textus sunt expressi, Leg. 1. §. 12. & Leg. 21. ff. de aqua pluvia arcenda, Jus Fluviat. p. 67. n. 13.   

Deathbed.  
IF a Creditor may on Deathbed make an Heretable Sum Movable by a Charge of Horning?  
A Person holding Lands Ward, when he was on Deathbed did resign his Estate in favours of his eldest Son, with the Burden of Provisions in favours of his other Children; which course was taken of purpose, to prevent the falling of the Ward and Marriage, his Son being then Minor. Quaeritur. If his Son may question these Provisions as being in Lecto, upon pretence that though on Deathbed he might Dispone in favours of his Heir, yet he could not prejudge him? Answer. It is thought that the said Right being made suo modo, and he having accepted the same and bruiked by virtue thereof, after Majority he cannot question the said Modus and Qualification.  
A Person having provided his Estate both Heretable and Movable to his Relict in Liferent, and to his Daughter in Fee, and Failyieing of her by Decease to be divided betwixt his Relict and his Brother, being his next Heir after his Daughter and her Heirs. And the Brother having accepted of a share of the Movable Estate after the Decease of the Daughter. Quaeritur. If he might question the said Right as to the Heretable Estate as being made on Deathbed? Ratio Dubitandi. Vtile per inutile non vitiatur, and the Defunct might on Deathbed dispose on his Movables; And the accepting of the Right as to these does not hinder the Heir to question the same as to the heritage; Whereof he had no power then to dispose.  
A Husband having Disponed Lands by way of Gift to his Wife, and having thereafter revocked the said Gift  by a Disposition made on Deathbed in favours of another person. Quaeritur. If the Heir may question the said Disposition upon Deathbed? Ratio Dubitandi, The Heir is not prejudged, in respect the Lands would not have belonged to him but to the Wife: And the Revocation is qualified and only in favours of the Person to whom it is made on Deathbed, and to no other effect.   

Debtor and Creditor.  
IF for a Sum of Money, Land be Wodsett, so that the granter of the Wadset is not Debtor, There being no Clause of Requisition or Obligement for repayment, Quaeritur, If there be only a Reversion, Whether will the granter of the Wadset have the benefit of the Act Debtor and Creditor; so that the haver of the Wadset may be restricted to the Annualrent of the Sum contained in the Reversion? Grubet contra Moir.  
After a Comprising was deduced, an Infeftment of Annualrent was granted by the Debtor: And thereafter another Compriser having comprised, who pretended that his Compriseing should be drawn back to the first, being within Year and Day, and therefore should be preferred to the Right of Annualrent: And that the Debtor being denuded by the first Compriseing, had only a Reversion; and that an Infeftment of Annualrent is not habilis modus, to give a right of Reversion; and that it was not, nor could be clad with Possession; The second Compriseing being before the term of payment: The Lords brought in the Annualrenter with all the Comprisers, as if he had comprised the same day he was infeft. Colstoun contra Nicolas a Creditor of Dunglass. Gibson Clerk. Colstoun's Bond was 16 February 1669; Season 24 May 1669, Nicolas Compriseing 1669.  
If the first Compriseing and Infeftment should be considered as being to the behoof, not only of the Adjudger Infeft, but of the others, by the Act of Parliament, in the same manner as if the Infeftment had been so granted expressly by the Superior? Quaeritur, Quid Juris? Ratio Dubitandi, That even in that case the Adjudger Infeft is only Vassal, so that by him only the Superior has his Casualties. Bancrief.   

Nomina Debitorum.  
IF Nomina, which are not Res, But Entia Rationis, have Situm, when the Debtor is in Scotland animo remanendi, and the Debt is contracted with him, as resideing there? Ratio Dubitandi, They are thought and called a Personal Interest, and therefore should sequi Personam. Contrà, They are, Res in Obligatione & potentia. 2. If the Creditor be forefaulted in France, being a Frenchman, they do not forefault to that King, Quia subditus amittit only quae sunt civitatis. 3. They are liable in Scotland to extraordinary Taxations. 4. The Debtor is quasi servus, & servi habent situm. To consider Quid Juris elsewhere, as to Banks & montes Pietatis.   

Stranger's Debts.  
IF a Stranger contract with a Scots-man abroad, that he should pay him presently upon the Place, and the Debtor nevertheless come away without satisfaction. Quid Juris as to that Debt, whether it be construed Nomen Anglicum?  
Quid Juris as to English-debts, contracted betwixt Englishmen in England, if the Debtor withdraweth to Scotland? Answer, It is thought, that though actor sequitur forum rei, and the Law of Scotland has place in such Cases, quoad Ordinatoria, yet the English overrule such Cases quoad Decisoria: And a Testament proven in England is sufficient.   

Debitum Annuum.  
A Brother having given a Liferent-tack to his Brother of a yearly Duty of Victual out of his Lands, to be paid yearly during all the days of his life-time at Martimass; and the Tacks-man having deceased before that Term, will he have any part of that years Duty in which he deceaseth? And if there be a difference betwixt Debitum annuum & Legatum annuum, cujus dies cedit anni initio? Mr. William Turnbul Minister of Mokerston, contra Turnbul of Minto.   

Debitum in Diem.  
WHat course should be taken when the Debt is in Diem, and the Term of Payment not come; and the Debtors Estate comprised, and the Comprising for other Debts like to expire before the Creditor in Diem, can have a Decreet and Execution thereupon? Sir Robert Sinclair's Daughter.   

Decimae.  
AV Commencement Les dismes n'estoyent le domaine des gens d'eglise: et les dons des dismes que les Princes et Seigneurs ont fait aux Moines (qui lors n'estoient du nombre des Clercs) ont esté faites de leur biens propres?  
Plusieurs payoient les dismes par devotion sans contrainte, de ces payments fut faite coustume qui causa obligation qui Engendra action pour contraindre a payer les dismes. Grimand. de dismes lib. 1. cap. 4.  
La contrainte de payer dismes primierement, N'eut fondement certain sur l'authorité du Magistrat Civil, car il ne se trouve aucune constitution pour payement des dismes dans les Loix Imperiales, Ibidem.  
Charlemain fut le premier qui les commanda payer Ibid.   

Decreets of the Lords of Session.  
WHether the Sentences of the Lords of Session should be considered as Laws, and if notwithstanding thereof, these who are of another Opinion may in cases occurring thereafter, vote according to their own Opinion?   

Deeds both inter Vivos & Mortis Causa.  
IF it appear by a Paper in legitima potestate, That the Defunct intended to settle his Estate, both Heretable and Movable, Whether will the same be valide as to both, so that both a Testament and Deed inter vivos may be consistent in one Paper? Ratio Dubitandi, If at the same time there had been a Paper apart, in the same Terms, it had been a valid Right as to the Heretable Estate, being Delivered: And it appears that it were against Reason that it should be invalid because it is in a Paper containing a Testament, seeing utile per inutile non vitiatur. Captain Ross.   

Dependence.  
INhibitions and Arrestments may be upon Dependence of an Action: Quaeritur, If when two Citations are , the Summons with the first Citation thereupon, will import a Dependence before the second Citation?   

Destination of Succession.  
A Bond being granted to a Sister by her Brother for Provision, and to the Heirs of her Body, whilk failyieing to return to him and his Heirs: Whether may she assign it without an Onerous Cause? Jean Drummond contra Riccarton her Brother.  
Whether the said Bond be movable, and will fall under Executory?  
Humbie, By Contract of Marriage betwixt him and Wariestoun's Daughter, being bound to resign for an Infeftment to himself, and the Heirs Male of the Marriage; Which failyieing his Heirs Male whatsomever, Quaeritur, If there be no Heirs Male of the Marriage, will his other Heirs Male have action of Implement; The said Obligement being only in Favours of the Marriage?  
If as to other Heirs (That being only a Destination) he may alter it at any time, etiam in Lecto, in favours of the Heir whatsomever of the Marriage? Quod in Favorem introductum est, in odium non retorquetur.  
If a Bond were granted by a Person in the same Terms, and were lying by him, might he alter or destroy it in lecto?   

Desuetudo.  
LEx non dicitur sublata per non usum, sed per contrarium usum. Baldus ad Tit. ff. de Legibus & Cod. quae sit longa consuetudo, Heiring: de Molendinis, Quaest. 37. N. 38.   

Dies coeptus.  
IN Favorabilibus Dies coeptus habetur pro completo: v. g. Pubes dicitur annum decimumquartum complevisse, cum diem ejus ultimum attigit.   

Dilapidation.  
THE Act of Parliament 1585. against Dilapidations, provides, That Bishops to be provided thereafter, should find Caution to leave their Benefice as it was at their Entry: and if the Person so provided should do otherways, the Tacks and other Deeds should be void. Quaritur, If they should find Tacks set at their entry, Whether they may set new Tacks after the expireing thereof; the Benefit being in the same case by the new Tacks as at their Entry? Cogitandum.   

Dishabilitation.  
QVaeritur, If by our Law the Posterity of Traitors may be disabled, and what may be the import of the Dishabilitation? and whether etiam Antenati may be disabled?   

Power to Dispone, notwithstanding the giving away the Right of Fee.  
WHen Lands are disponed, reserving a Power to the Disponer to dispone the same in hail or in part, as if he were Fire, Quaeritur, If he be thereafter forefaulted, will the King have the same faculty by the Forfeiture? Answer, The said Faculty being Personal to the Disponer, upon personal Considerations, such Reservations being in Rights granted by Parents to their Children, to be Ties upon them that they be dutyful; and because Parents may come to be in that condition that they may need, and it is just that they have recourse to their own Estate:  the said Considerations do not militate as to the Fisk, the said Faculty cannot be pretended to be transmitted.  
Quid Juris, In the Case of a Compriser, whether the said Faculty can be comprised? Answer, That the Debtor having the Faculty foresaid aught to dispone for satisfaction of a just Debt; And if he be so unjust as not to satisfy the Debt, the Law may, and doth dispone: and in Law the Compriseing being a Legal Disposition, is equivalent as if the Disposition had been made by himself.   

Dispositio collata in arbitrium alterius.  
A Person not being satisfied that his nearest Kinsmen should succeed him, having a great Estate, and they but mean, and who, he conceived could not represent him creditfully; and not being fully resolved who should represent him, lest he should be prevented with death, did therefore dispone his Estate in Lands, to such two Persons most worthy of his Name; or upon Mortifications, or such Pious Uses, as Ten of his Friends named in the Disposition, being a Deed inter vivos, should think fit. Quaeritur, If the Friends should accordingly name two Persons, would the Right be valid? Ratio Dubitandi, 1. Mandatum expirat morte mandantis: And if he could not dispone himself on Deathbed, much less could he empower another Person to dispone after his Decease. 2. Paria sunt indebito tempore fieri & in tempus indebitum conferri. 3. A Deed cannot be said to be a perfect Deed inter vivos, unless it were consummate in substantialibus, and the Person Cui, is de substantia. 4. No Power can be given by a Person, who has no Right himself but as Procurator or Commissioner, and such Powers do expire with the Granter. 5. There can no Right validly be given incertae personae, or ex alieno arbitrio in futuro. 6. The Defunct could not give Power to the said Friends, to dispose of his Personal Estate after his Decease, and à pari or majori, he could not give such a Power as to his Heretable Estate. Mr. John Bayne of Pitcairly.   

Disposition.  
IF a Person get a Right and Disposition omnium Bonorum; Whether will he be liable to the Debt of the Disponer?   

Actio ad Distractum.  
EX Contractu non agitur ad Distractum, sed ad implementum: & Contractus & Transactio non aliter annullantur ex defectu Implementi, quam si praecesserit monitio ad implendum, & deinceps culpa implere Debentis. Hering. de Molend. Quaest. 11. N. 132. & 133.   

Division of the Duties of Lands, betwixt Buyer and Seller.  
BY the ordinary Custom when Lands are sold, If it be a Whitsundays Bargain, the whole years' Duty is assigned: If it be a Martimass-Bargain, only the half year. Quaeritur, If they be not assigned, Quid Juris as to the said Duties? Answer, It is thought, the Buyer will be in the Case, as we have said of a Compryser: But the Question will be if the Bargain be made after Martimass, and before Candlemass the ordinar Term of Payment of Victual? And then it is thought, that the Buyer should be in the same case, as if the Bargain had been made precisely at Martimass, if the price be then paid, or in condition to be paid, with the Annualrent from Martimass:  the Disponer is in no worse case than if the Bargain had been made precisely at Martimass.   

Donatio inter Virum & Vxorem.  
A Woman being induced to consent to a Right granted by her Husband of her Conjunct Fee Lands, and making Faith not to question it. Quaeritur. If she may so far revock a Donation as to her Husband, that she may crave the equivalent?  
Donatio inter Virum & Vxorem being ipso jure Null, But so that morte confirmatur. Quaeritur. If a posterior Creditor of the Husbands should Comprise Lands given to the Wife, during the Marriage before the Husband's Death, will his Death confirm the deed in prejudice of the Creditor; The Comprysing being medium impedimentum?  
If at least the Legal will belong to the Wife, The Husband not Revocking?  
If the Husband decease without Revocking. Quaeritur. If the Wife will have Action against the Heir upon that ground, that the Debt is paid out of her Estate by the Comprysing on the Husband's posterior Bond?  
Lands being Disponed by a Husband to his Wife, and thereafter he having Disponed the same to another person in Lecto aegritudinis. Quaeritur. If his Heir may question the Right in Lecto? Ratio Dubitandi, It is not made in his prejudice but of his Wife: And the Revocation is only in favours of the Receiver of the Disposition.  
A Debtor having contracted Debt after he had made a Right of Land or any other Donation in favours of his Wife. Quaeritur. If eo ipso he has revoked Tacité the said Donation? Ratio Dubitandi. The Donatio inter virum & uxorem is Null, and morte tantum confirmatur; And before it became valid the said impediment interveened: And since the Debtor might have revoked the said Gift and might have satisfied the Creditor that way; his Silence and not Revocking is upon the matter fraudulent, and in prejudice of the Creditor. It is thought, That it is to be considered, if the Debtor or his Heir have no other Estate, out of which the Creditor may be satisfied; In that case the Creditor may have recourse against the Lands Disponed to the Wife.  
If in the case foresaid the Wife may have recourse against the Heir for the Lands given to her so evicted? Ratio Dubitandi. That if the contracting the Debt after such Donations import Revocation, it ought to be only in favours of the Creditor and not of the Heir, who ought to be in no better case, and the Wife's Action against the Heir may be upon that ground, That out of the Estate belonging to her (unquestionably as to the Heir) the Debt whereto the Heir is Liable is satisfied.  
A Woman having made a Disposition to a third person to the behoof of her Husband, and having ratified and made Faith before a Judge. Quaeritur. If she may question the said Deed as being Donatio inter Virum & Vxorem notwithstanding her Oath? Answer. It is thought she may: And that Deeds that in Law are invalid cannot be sustained upon pretence of an Oath which ought not to be Vinculum iniquitatis; otherwise eâdem facilitate that a Wife is induced to give, she may be induced to Swear, and the Law should be Elusory: And such Oaths ought to be understood only, that they are not compelled, and that they shall not question such Deeds upon that head; But not in relation to any other Ground whereby they may be questioned; As v. g. Minority, and that the Wife has Curators not consenting: And that the Husband (if she has no other) is Curator and cannot Authorize her to any Deed in rem suam: And the Act of Parliament anent the Oaths of Wives is in favours of Strangers and not of Husbands.   

Donatio mortis Causa.  
THere being a Donation inter virum & uxorem. Quaeritur, The Donator Deceasing and the Donant Surviving and not Revocking, whether will the Gift be Valid? Ratio Dubitandi. Such Donations aequiparantur Legatis being always Revocable: And Legatars Deceasing before the Testator their Legacies are void.   

Donatio non acceptata.  
IF a Donation be made but not accepted. Quaeritur, If a Creditor may comprise the same and accept? Vide Legacy quest. 4.   

Donators upon Recognition and Forefaulture.  
AFter Lands holden of the King had fallen under Recognition, they fell also under Forefaulture, and after the Decease of the Forefaulted person a Gift of the said Lands was given upon the Recognition, and thereafter another Gift was given upon the Forefaulture; It not being known by the King or his Officers, the time of the first Gift, that the person Forefaulted had committed Treason; Quaeritur, Which of the Donators should be preferred? Ratio Dubitandi, That Recognition is but a Casuality; And after the Vassal was Forefaulted the property was thereby devolved to the King ipso jure; And all Casualties seem to be Extinct, and consolidate with the Right of property: And the Right upon Recognition does not belong to the Superior ipso jure before Declarator. Mcghie of Larg.   

Duels and Hame-sucken.  
IF Hame-sucken or Fight Duels be Capital though no person be killed?  
Qui in Duello occubuerunt, in Locis religiosis sepeliri non possunt, Perez. Lib. 2. Tit. 1.    

E.  

Emancipatio.  
IF by our Law, Children after twenty five years may Emancipate themselves, and live by themselves, and leave their Father and his Family? Cogitandum. And the custom of other Nations is to be considered.  
Whether if they go out of the Family without the Father's consent they may claim a Bairns part?   

Contractus Emptionis a Pretio incipiens aut Mensura.  
CVm emitur fundus tot jugerum, an si plura reperiantur jugera Emptori cedant, an venditori? Respondetur. Cúm pretium formatur a Mensura, & ab ea Contractus incipit, & in singula jugera certum pretium promittitur, quod superest ad venditorem redit, quod deest ab eo suppletur.  
Sin Contractus incipit a specie, licet demonstrative aliqua mentio de modo agri fiat; ut si vendo fundum centum jugera continentem, si plura reperiantur, cedunt Emptori, nec ad augendum pretium tenetur: falsa enim fuit Demonstratio, quae non nocet. Thes. Bes. in litera K. 9 verbo Kauffen. p. 453.   

What way the Buyer may be urged to Enter.  
IF the Buyer lie out what will be the remedy for the Superior? Answer. He may pursue to hear and see him discerned to Enter, and to pay Composition: And without prejudice of that Decerniture, if he continue to lie out, To hear and see it found that the Lands are in Nonentry; And that the Superior as to Casualties, shall be in the same case as if he were Entered.   

Entry of Assigneys upon Resignation.  
IF the Alienation and Resignation be Assigned, Quaeritur, If the Superior may be compelled to enter the Assigney, seeing both are in favours of Heirs and Assigneys? Answer. Negatiué, Unless a Composition be paid both for the Buyer and for the Assigney:  the Superior is not obliged to Enter any but the Buyer and his Heirs: And though the Right be to Assigneys it is to be understood such as the Superior should be satisfied with: And the Superior is not to be in a worse case than if the Buyer had been Infeft and had Disponed: And there is in this case Fictio brevis manus.   

Entry upon Resignation by a singular successor.  
WHat way a singular Successor in the Right of Superiority, may be urged to Infeft upon Resignation in his Author's time;  he does not represent him as Heir; And is not bound to the Buyer by Contract or quasi? Answer. There is obligatio in rem, as in the case of Servitudes and Annualrents; And he may be pursued summarily to hear and see him discerned to Enter the Buyer: And to that purpose to give him a Charter of the Tenor Exhibited: And upon a Bill the Director to the Chancery may be ordered to give out a Precept in subsidium.   

Liferent Escheat.  
A Vassal having granted a subaltern Right being Year and Day at the Horn, Forfaulteth only his own Right of Liferent without prejudice to the Sub-vassal: Whereupon it may be Quaeried, If a Vassal has Disponed his Right but so that the Party Acquirer is not Infeft, will notwithstanding the Disponers Liferent fall? Answer. Affirmatiué. And the Ratio Dubitandi is of no weight. Viz. 1. A Tacksman though the duty be not proportionable will not be prejudged. 2. If the Receiver of the Disposition be Rebel per annum, and the Lands hold of the King, The King will get eodem tempore Two Liferents of the same Lands. Viz. One by the Rebellion of the Disponer, and the other by the Rebellion of the Receiver. For as to the first, a Tacksman has a Real Right and Interest which militates against a singular Successor. And as to the second, there is no Inconvenient that the Superior should have the Liferent of his Vassal; And if the King be Superior that he should also as King have the Liferent of his Subject; And any benefit may accrue to him by the Disposition and Warrandice thereof during his Life-time.  
If a Person Infeft in Liferent be denuded by an Assignation of the Liferent, which is only habilis modus (in respect Liferents constitute by Infeftment are personal, and cannot be transmitted by Resignation) Quaeritur If the Liferenter be Year and Day Rebel after the Assignation, will the Superior have Right to the Duties?  
A Lady Tercer, or Tennent by Courtesy, their Lands holding of another Superior than the King, and they not being Vassals to him; Whether will their Liferent fall to the King, being year and day at the Horn?  
A Person being denounced in April, and continuing year and day at the Horn, Quaeritur, quando dies cedit, of the Liferent falling to the Superior of the Lands set to Tenants? And whether or not the Superior will be in the case of a Liferenter surviving the Fire; So that he will have right in the case foresaid, to the full Duty of that year that the Liferent falls, per lapsum anni & diei?  
Quid Juris, Where the Rebel laboureth himself, will he not be liable to the Superior for the Duty of that Year, as if he were a Tennent?  
If these Obligements that are ordinary in Dispositions to be holden of the Granter and Superior, That while the Buyer holds of the Granter, his Heirs and Successors shall be entered gratis, and shall not be liable to Nonentry nor Liferent Escheat, which are gifted to them now as then, Will bind singular Successors? And what way they may be made real, if there be any Question? Answer, It is thought, that they may be inserted both in the Charter and Sasine.  
It may be contended, that these being upon the matter Servitudes upon the Superiority, may be constitute as other Servitudes without Write; specially seeing it is intended they should hold either of the ways; and that the Right in the Person of the Disponer to be holden of the Superior, is in effect to the Buyers behoof, until they be confirmed: And Reversions were Real, even before the Act of Parliament anent the Registration of the same, Cogitandum. If at least Comprisers will be liable to such Obligements?  they comprise only such a Right as their Debtor had: and they are in use to comprise all Contracts and Dispositions, and therefore aught to be liable in rem to all Obligements upon the Debtor and his Successors, relating to the Lands comprised.  
To consider, If there be not a Difference betwixt Obligements as to Liferent Escheat and others; these as to Liferent Escheat being contrary to Law, and such as give occasionem peccandi; and if such an Obligement be not sustained, to whom will the Liferent belong? Whether to the mediate Superior, seeing the immediate has renounced? or to the King as ablatus ab indigno?  
If a Liferent Escheat be gifted to the Rebel himself, being yet at the Horn, Whether will it fall under his single Escheat, or Liferent to the King?  
If the Liferent be gifted by the Superior to the Vassal himself being relaxed; and if thereafter he be Year and Day at the Horn. whether or not his Liferent will of new fall to the Superior? Ratio Dubitandi, he cannot have two Liferents of one Person.  
If there be a Difference betwixt the Casualties of Ward and Nonentry, and a Liferent Escheat, which has also tractum temporis; in respect the Liferent Escheat falleth ex delicto, and but once, and is Jus collectivum of all Years falling under Liferent: Whereas Ward and Nonentry are of the Nature of Annua Legata, and are in effect annuae cessiones, which are only Effectual during the Cedents Right? Vid. Title, If Gifts of Ward and Nonentry prejudge singular Successors, in Lit. G.  
If a Person being at the Horn should suspend and relax, and thereafter the Letters being found orderly proceeded, should be Denounced, Quaeritur, If the time of the former Rebellion would be continued with the last as to the Question of the Liferent, as if the Rebel had not been relaxed?  
When Reversions, or Minute's bearing Obligements to dispone in favours of the Rebel, do fall under Liferent Escheat, Quaeritur, What benefit or Right will the Donator have? Answer, It is to be considered, what benefit the Rebel would have: and the Liferent thereof will belong to the Donator.  
If an Heretor be year and day at the Horn, and there being a Subaltern right holden of him for a small Feu-duty, the Superior would get his Liferent only as to that Feu-duty, there being no more his.  
Quaeritur, If there be a Liferenter holding of the Superior, and she having assigned her Liferent during her life-time, Whether or not the Superior will have right to her full Liferent, without respect to the Assignation? Et quae Ratio differentiae? Answer, The subaltern Right was a real and valid Right, constitute habili modo, which could not be prejudged by any Deed of the Heretor: Whereas the Assignation made by the Liferenter is only personal, as a Disposition made by the Heretor, which depends upon the real Right; and eo resoluto, falleth.   

Escheat single.  
IF an appearand Heir have right to a movable Heirship, and the same or nearest of Kin have right to be Executor, but neither the one is served, nor the other confirmed, and both be at the Horn: Whether will their Interest foresaid fall under Escheat, as in the case of Forfeiture;  Escheats are Forfeiture as to Movables?  
If a Tack being for many nineteen Years, should be assigned; Will the same fall under the single Escheat of the Assigney, seeing there is no Liferent as to him, and the Liferenters may all die in his life-time?  
Will not the Assigney have right for the lifetimes of the Heirs, though they be not served Heirs?  
The Tack being for three lifetimes, and certain nineteen years after, Quid Juris, Where the Tacksman has no Heirs, so that there is place to a Gift of Bastardy or ultimus Haeres?  
A Tack of Teinds being granted to the Tacksman and his Heirs and Assigneys, for three Liferents, and three nineteen Years; and being thereafter assigned, Quaeritur, If the Assigney be at the Horn, Whether it will fall under his single Escheat? Answer, It is thought it will: seeing it is not a Liferent Right as to the Assigney, and the whole Liferents may be determined during the Assigneys' life-time: and a Tack for three nineteen Years doth fall under single Escheat.  
Quaritur, If a Tack exceeding the Life of Men, v. g. for eight nineteen Years, falls under single Escheat?   

Escheat without Backbond.  
IF the King may regrant Escheats, without a Back-bond, and declare that it is his pleasure so to do? Answer, It is thought that the King in no worse case than other Superiors, who do always give Escheats of their Vassals Liferent, (and if they be Lords of Regality their single Escheat) without Back-bond.   

Delivered Evidents.  
A Person having a Bond of fifty thousand Marks, did assign the same to the Debtor; But so that the Debtor by the Assignation and accepting thereof, was obliged to pay the said whole Sum (reserving the Cedents Liferent) to the persons therein mentioned amongst them, Quaeritur, The Assignation being never delivered to the Assigney, and recovered after the Cedents decease, viis & modis, Whether it will be a binding Writ? Answer, The Case will not be without question. Ratio Dubitandi, That Deeds and Writs that are single and monopleura do not bind, unless they become the Parties Evident by Delivery: and on the other part, Contracts subscribed by two Parties retained in the hands of one, are valid though not delivered to the other: and the said Assignation is not a simple Deed, but bears reciprocal Obligements which are as binding as if they were subscribed by both. 2. The said Assignation, though it appears to be actus inter vivos, yet upon the matter is donatio mortis causa, and the Defuncts will as to her whole Estate, and to whom it should belong after her decease: and such Writes, being of the nature of Wills and Legacies, may be retained and are valid though not delivered. Lady Margaret Kennedy.   

Exception against the Cedent, if always competent against the Assigney?  
QVaeritur in general, If all personal Obligements, and Exceptions competent against the Cedent, be competent against the Assigney? And what reason there is, that Discharging Compensation, and the Suspending of Payment for a time, and such like; should be competent against the Assigney: and not such as are founded upon correspective Writs, which import Retention, or Suspending of Implement against the Cedent?   

Executor.  
IF the Executor ad omissa be countable to the nearest of Kin, who are not accessary to the Fraud of Omission?  
If the Creditors and nearest of Kin have such an interest in the Goods confirmed, that they are preferable to the Executors own Creditors? or if after Confirmation there be a Confusion, as in the case of an Heir?  
When there is only one Child, who is both Heir and Executor; Whether there will be only a Bipartite Division, betwixt the Defunct and Relict? Lady Craigleith.  
If an Executor Creditor be liable to Execute the Testament fully, or only so far as may satisfy himself?  
If the Defuncts Estate be so settled in the Person of the Executor by Confirmation, that there is a confusion of it with his own; so that his Creditors may affect, and evict it being in Money or in Goods; and doing prior diligence, will be preferred to the Defuncts Creditors? Ratio Dubitandi, The Executor is haeres in mobilibus: On the other part, he has only an Office, and the Administration is committed to him by the Commissars, and he findeth Caution to make forthcoming; and if he die before the Testament be Execute, another will be confirmed ad non executa, and upon the matter he is Curator Bonis.  
A Child being confirmed Executor to the Grandfather upon the Mother's side, and dying without Issue and either Brothers or Sisters: Will the Father have right to the Executory as Executor to the Child? 2. What if the Child decease before the Testament be execute? 3. Can the Father be Executor ad non executa to the Grandfather? Mr. Andrew Marjoribanks Daughter.  
Executors nominate (though Strangers, and not Universal Legators) before King James his Act of Parliament, had right to the whole Executory; and since to the Third; Quaeritur, If they decease before Confirmation, Will they notwithstanding have right as Legators?  
If they be Confirmed, and die immediately before the Testament be execute, Whether the Executor-Stranger will have right to the Third?  
The Office of Tutrix ceaseth by her Marriage, but not that of Executrix, Quaeritur, Quae Ratio Discriminis? Answer, She being in Tutela herself, cannot be Tutrix to another. 2. An Executor has not nudum Officium, but is Heir in mobilibus: and for that Reason, a Woman may be Executrix, though incapable munerum virilium.  
Testaments appear to be Executed by Sentences:  after Sentence the Executor may Assign.  
Albeit quod est Cessibile may be Comprysed, or affected with the Cedents Debt: Yet if after Sentence, the Debts and Goods be extant, The Creditors Legators and nearest of Kin will be preferable to the Creditors of the Executor: Because though they may seem to be secured by Caution, yet the same is that the Inventar shall be made forthcoming, and tutius est incumbere etc. And the Executor is Haeres fideicommissarius or Curator bonis, and if he Sell or Assign praesumitur That he doth so that he might satisfy Creditors, Legators and nearest of Kin; but where the same is evicted for his own Debt, it is upon the matter Unjustice and Malversation.  
Seeing the Interest and Right of an Executor is jus anomalum & Participium, being partly considered in Law and constructed to be haereditas in mobilibus; and partly Officium to execute the Defuncts Will if he Dye Tested, and the Will of the Law if he Dye Intested; And therefore if a Woman be Executrix, albeit she be only Dative, if she marry she is not in the case of a Tutrix and Curatrix: Albeit it may be thought that an Executor Dative is Curator datus bonis, and she ceases to be Tutrix and Curatrix if she Marry, because these are only nuda officia; But she continues still to be Executrix: And yet if an Executor Dye before Execution his nearest of Kin will not succeed to him in that Interest as Executor to him; So that he may be confirmed Executor to him in the Goods confirmed, but there must be a Testament and Executor ad non Executa, not to him but to the former Defunct: Whereupon divers Questions arise, And first, if an Executor nominate die after the Confirmation but before Execution, will he have by the Act of Parliament the third of all the Goods of the Deads' part, or only in so far as the Testament is Execute? Ratio Dubitandi, Before the Act of Parliament the Executor had the third entirely, viz. The Defuncts part without respect to the Execution, But only the confirmation being in place of addition: And by the Act of Parliament he is restricted to a third of that. And on the other part, since that Act of Parliament, It is presumed, according to that Law, The Defunct intended only the third of his part to be given to the Executor, in respect of the Trouble and pains he is at to Execute, and recover bona Defuncti, and therefore he should only have a proportion of what is Execute.  
If the Executor nominate Decease before he confirm, will he have any part of the Deads' part? Which will be cleared by an Answer to the former.  
When the Procurator Fiscal is confirmed after an Edict served, Whether will the nearest of Kin being Majors the time of the Confirmation, and not owning their Interest, be excluded; So that they can have no Action against the Procurator Fiscal or Bishop for the Goods contained in the Inventar?  
Quid Juris as to the nearest of Kin for the time; And if he be Reponed whether will he have action of Compt and Reckoning, or must he reduce the Confirmation so far as that he may be confirmed; The Procurator Fiscal being satisfied of all Charges? Ratio Dubitandi, That the nearest of Kin is not nomen juris to succeed, or to have any thing belonging to the Defunct unless he represent him, which he cannot unless he be confirmed Executor.  
Quid juris, In the case of an Executor Creditor after he is satisfied, will the nearest of Kin be excluded? And if not, what is the habilis modus to get a right settled in his Person? Ratio Dubitandi, In suffering the Creditor to be confirmed, it seems that he has disclaimed his Interest, and not without injury to the Memory of the Defunct: And the Creditor being once confirmed, the nearest of Kin cannot be confirmed: And having Forefaulted his Interest, it may seem, quod indigno aufertur, est Fisci; & quod nullius est, est in bonis Regis.  
Quaeritur. When Testaments are Execute, so that there is no place to a non Executa? And if as to Goods whereof the Executor is presently in possession it be not fully Execute? And as to nomina and Debts it be not Execute by Sentence, though they be not uplifted;  after Sentence the Executor may Assign? And in that case, may not the Executors Executor confirm the same as belonging to the Defunct?  
Though after Sentence the Debt be in bonis of the Executor, and confounded with his own Estate: If there should be a Competition betwixt the Executors own Creditors, and the Creditors of the Defunct or his Relict and Bairns; Would not the Creditors and the Relict and Bairns of the Defunct be preferred to the Creditors of the Executor, upon that Ground that they are not simply the Executors Goods but in Trust; and is a fidei-commissum for the use of the Defuncts Creditors and his Relict and Bairns: So that both the Executors Creditors and Fisk ought to be excluded upon any such Competition?  
If the nearest of Kin will not be Executor: Quaeritur, What remedy will be competent to the Creditors, not of the Defunct but of the Executor;  there is an Act of Parliament, in case of an Heirs not entering: But not in the case of an Executor in behalf of Creditors?  
If the Commissars should confirm the Creditor of an Executor nominate and the Executor decease, will the next nearest of Kin have Action against the Executor Dative to be Comptable? And whether that Executor will have the privilege of an Executor Creditor? And if he may be pursued at the instance of other Creditors who are not Creditors to the Defunct?  
An Executor being nearest of Kin and confirmed, but immediately dying, Quid juris, will his nearest of Kin be confirmed Executors ad non Executa, if there be another nearer to the first Defunct?  
To consider the Civil Law as to Haeres cum beneficio Inventarij: If an Executor be not Haeres in mobilibus cum beneficio Inventarij?   

Executor Creditor.  
A Creditor being confirmed Executor and dying before the Testament be Executed; Will not his nearest of Kin be confirmed ad non Executa and exclude all other Creditors, in respect of the Diligence of his Predecessor, and that Confirmation did affect the Goods for their satisfaction?  
Three Creditors being confirmed for their Respective Debts, and one of them deceasing before Sentence. Quaeritur. Will the Office and benefit belong to the Survivers entirely? Ratio Dubitandi. A Testament Creditor is a Diligence, and there is no other way of Diligence to affect the Movable Estate of a person deceased, and it is equivalent to diligence against Debtors on Life, affecting their Movables. And on the other part, Executory being an Office the Law preferreth the Creditor, If the nearest of Kin do not own it; But cum sua causa, and so that the nature of the thing is not altered: And therefore the Executor dying, the Office and Diligence doth vanish.  
Quid juris in the case of an Executor Creditor: If after he is satisfied the nearest of Kin will have an Action for the superplus?  
If a Testament be Execute by a Sentence against the Debtors, though payment be not made? Vide Hope.   

Executor Nominate.  
IF an Executor Nominate be Liable as a Tutor; not only for what is confirmed but what he might have confirmed and intrometted with? Tweeddale contra D. of Monmouth.   

Executory.  
WHether Vniversitas bonorum, That is an illiquid Right; Though the Subject may consist of Movables as a single Escheat, Conquest, Society as to a Trade or Shipping; Will fall under Executry?  
If Casualties of Ward, Liferent Escheat, Nonentry, Marriage, will fall under the same? Or to the Superiors Heir?  
There being a Bargain of Lands, in nudis finibus contractûs vel Dispositionis, will the Price belong to the Heir who must perfect the Bargain? Answer. It is thought not;  the Price is a Movable Sum: And it appears that the Defunct having sold the Lands had use for it, and did intent to uplift it.  
Whether a Gift of single Escheat will fall under Executry or belong to the Heir? Ratio Dubitandi, That the Escheat is jus Vniversitatis, And nothing is in use to be confirmed but either particular Movables or Debts, and plenishing estimate in cumulo,  
Item, Whether a Gift of Liferent Escheat (which as to the Donator is a Movable Interest) will fall under Executry? Ratio Dubitandi As in the former: And likewise that during the Liferenters' Life-time it cannot be construed, what it will amount to: And it has Tractum futuri temporis.  
The same Question may be as to a Tack Assigned.  
Whether the Heir who has Right to a going Coal, will have Right to Buckets, Chains, and other Instruments as being accessoria and destination addicted to the Coal, as the Colliers: Or if they will fall under Executry?  
A Person being about the building of an House; And the samen being begun and certain Materials (as Stone, Lime, Slats and others) being prepared o that use: Whether will they belong to the Heir (for the reason foresaid) or fall under Executry?  
A Daughter having accepted her Tocher and Provision by Contract of Marriage; in satisfaction of what might fall to her either by her Father or Mother's Decease, The Contract of Marriage being after her Mother's Decease. Quaeritur, If another Sister will have the Mother's part entire without respect to her Sister's Interest; being renounced as said is? Ratio Dubitandi, That the Father who is Liable for his Wife's Third, is in Effect Discharged as to his other Daughter's part of the samen: And on the other part, the Mother's part belonging to her Children, non jure Legitima as Bairns, but as Executors and representing her: If any of them Decease before Confirmation, or be unwilling to confirm, their Renounciation will be ineffectual as by a person not having Right.  
Quaeritur. If the the Sister who is not Excluded should confirm: If the Sister who is Excluded (as said is) may at least have Action against her for her part of the Mother's part: To the effect that the Discharge in favours of her Father may be effectual? It is Answered, That unless she be confirmed herself, she can have no part of that which belonged to her Mother: And albeit by the Act of Parliament anent Executors Nominate, the nearest of Kin has Action for the superplus of the Deads' part exceeding the third; That is only in the case therein mentioned, the said Act giving Condictionem ex lege in that case only: Whereas that Act doth not militate in other cases where there is no legitime, but only an Interest to represent; which cannot be effectual sine Aditione: Confirmation being in effect Aditio in mobilibus.  
Quaeritur, If a movable Escheat will belong to the Executor, seeing Movables belong to the Executor; and movable Sums, and other moveables fall under the same? Answer, It is thought that Escheat being Jus Vniversitatis, should belong to the Heir:  not only mobilia do fall under the same, but also such Rights and Interests as cannot belong to an Executor, as Tacks if they be not Liferent Tacks: And it is the stile of Gifts, that the Escheat should be holden of his Majesty; which does not quadrate, and is not proper to be said of such things as belong to the Executor.   

Extent.  
IF the Inquest be warranded to Extend, unless there were former Retours upon a Commission to Extend?   

Extinguishment of Rights.  
IF the Heretor of Praedium Dominans acquire the Right of Praedium serviens, Whether doth the Right of Servitude extinguish; quia res sua nemini servit; So that if he sell the Dominans, the Servitude doth not revive?  
If the Heretor of Land acquire a Right of Annualrent out of the same; Whether or not is the said Right of Annualrent extinguished or suspended only; So that it may revive if the Right of Property be taken away by Reduction?    

F.  

Faculty to alter,  
Land's being disponed with power to alter, without these Words, Etiam in Lecto; If that Faculty may be used in Lecto?  
A Person having reserved a Power to alter in Lecto; May he then use that Power, in favours of any other Person than his Heir; seeing he is not in legitima Potestate as to the disponing an Heretable Interest: and on the other Part, the Heir has no prejudice?   

Faculty to Dispone.  
BY a Writ granted by the Earl of Callender, to his Lady, he gives her power to dispose of the half of his Estate, Quaeritur, The said Power being Personal, without mention of her Heirs, and she not having used the said Faculty; If the said Power be Transmissible? Found by the Lords That the Earl of Dumfermling as Heir to his Mother, had right thereto: and he having assigned the same to his Son, he recovered thereupon the half of the Estate, To see the Decreet.   

Jus Facultatis.  
ATtendendum, an quis aliquid faciat jure facultatis an jure servitutis; Facultas enim non minus aliis quam nobis patet: quia usus qui alii magis ex occasione quam jure conting it, Servitus non est, nec in eo temporis Diuturnitas quidquam prodest, nisi accesserit prohibitio praescribentis, & patientia ejus contra quem praescribitur Jus Fluviat. p. 756. N. 71. & sequent.   

Personal Faculty.  
A Person giving a qualified Right, reserving Liferent and a Power to dispone: Quaeritur, If that Faculty may be comprised as a Personal Reversion?   

Quae Facultatis sint?  
ALiqua Dicuntur esse facultatis, quorum Libertas a Jure publico permissa est, quae non pariunt jus deducibile in Judicium: hoc casu nec nos contra alios praescribimus, nec alii contra nos; Exemplum est in Leg. viam. 2da. de via publica. Aliud Exemplum est in facultate privata, quae nullam antecedentem habet causam obligandi; ut si Rusticus sua sponte, nulla praecedente causa, per multos annos, Domino, certis temporibus, capones attulit; ex hoc actu merae facultatis nulla oritur Domino actio.   

Quomodo intelligendum, Facultati non praescribi.  
ALiqua dicuntur esse Facultatis ad acquirendum novum Jus, vel novam actionem; vel etiam ad eam Conservandam: atque ita pariunt Jus deducibile in judicium. Et hoc jus licet sit in libera potestate acquirere volentis, non tamen est in potestate illius contra quem acquiritur, vel conservatur, ut recusare posset. Sic adire haereditatem est merae facultatis, & tamen tollitur & praescribitur spatio 30 annorum; ergo & juri offerendi, & reluendi praescribitur. Hering. de Molend. quaest. 21. N. 17. & sequen.  
Jus publicum tribuit cuivis de Populo, ut uni ex multis, nec privative ad alium, etsi ad singulos inde aliquid commodi perveniat: Ind illud quod dicere solent, Facultati non Praescribi, Dicitur de his quae à natura, aut publico Jure tribuuntur; itaque quocunque tempore, nemo praescribit ut qua ierit in publico nullus alius commeet, etsi nunquam ea commearit.  
Ea quae de tali facultate dicta sunt, non recte Traducuntur ad ea quae proprii & privati cujusque Juris sunt; id enim Jus est quod ad privatum quemque pertinet privativé, ita ut non ad alium: Omni siquidem Juri aut facultati quae competit privato cuiquam privativé, potest praescribi. Idem Ibid. N. 20.   

Faculty reserved to dispone.  
IT being ordinary that a power is reserved by these who Dispone Lands, especially to their Friends, to Redeem or Dispone or Burden at any time dureing their Lifetimes. Quaeritur, Whether Lifetimes should be understood civility, during their Liege Poustie?  
Item, Quaeritur. If the Receiver of the Disposition be Dead and the Lands in Nonentry, whether the Disponer may notwithstanding Dispone and resign by virtue of the said Power? Ratio Dubitandi, The said Faculty is upon the matter a Heretable Commission and Procuratory, which cannot be Execute post mortem mandantis: and there is no person that has the Right Established in his person so that it may be resigned.  
Item. If the Lands be in Nonentry and Ward, will the Resignation by virtue of the said Faculty determine and put an end to the foresaid Casualties in prejudice of the Superior? Ratio Dubitandi. The Defunct by whose Decease they accrue was the Superiors Vassal: And though the Disponer has the same power, yet he should have used it debito tempore, while the Vassal was on Life, and before the pursuer had jus quaesitum: On the other part, the said power is of the nature of a Regress, so that quocunque tempore (as in the case of regress) Reentry may be desired by virtue of the said Faculty.  
A Charter being to be granted to a person conform to the said power; That Clause, Quaequidem pertinuerunt, what way it is to be conceived; and if mention should not be made of the person who is Infeft for the present, though he be not the person to whom the Right was Disponed with the said Power; But either an Heir or singular Successor?  
If the Faculty to Dispone be not upon the matter a Reversion, materially and as to the effect of the same; so that the person having the same, may Dispone albeit he has not jus in re; And albeit the Heretor be either Dead or Forfaulted; As an order may be used against an Appearand Heir, or against the King or his Donator, in the case of Forfeiture or ultimus Haeres?  
A Person who had the Faculty foresaid, having by virtue thereof Disponed, but deceasing before Resignation, Quaeritur, What way the Disposition shall be made effectual, seeing the Faculty was personal to himself?   

Fee.  
WHen by a Contract of Marriage a Sum is to be provided to a Husband and Wife in Liferent, and to the Bairns in Fee; Which Failyieing to the Father and his Heirs. Quaeritur. Before there be Children where is the Fee? And if it be not fit to take it to the Father to the use and behoof of the Children, which Failyieing to himself and his Heirs?  
When it is intended that by Contract of Marriage the Parents should be only Liferenters, and that certain Sums should be provided to the Children, so that they do not represent them, Quaeritur, What way the Fee can be provided to the Children that are not in being? Answer, The Father may be infeft in Liferent for himself, and in Fee for the use and behoof of his Eldest Son and his Heirs: Which Fee is to be to the Father and his Heirs, to the use foresaid: And they are to be obliged upon the Existence of a Son, to denude in Favours of him and his Heirs.  
By Contract of Marriage betwixt Knockdaw, Sir John Kennedy, and Gilbert Kennedy of Girvanmayns, The said Sir John having married the said Gilberts Daughter; The said Gilberts Lands and Estate are disponed to the said Sir John and his said Spouse, and the Heirs betwixt them; which Failyieing, to such of the said Gilberts other Daughters, as he should at any time appoint; which Failyieing, to the said Sir John's Heirs and Assigneys whatsomever: and now the said Sir John being deceased, and having a Son of the Marriage, Quaeritur, Whether the Fee did belong to him, so that his Son may be served Heir to him in the Estate? It is Answered, That in the case of the Duke and Duchess of Monmouth, The Conception of the Tailzie not being unlike, it was thought the Duchess was Fire; albeit the Limitation of the Heirs did ultimately resolve in the Duke's Heirs; upon that ground that there is a difference betwixt the case where the Lands are provided and Disponed to the Husband and the Wife, and the Heirs of Marriage; which Failyieing either to the Husband's Heirs, or Wife's Heirs: And in the case foresaid where after the Heirs of the Marriage there are divers substitutions, in favours of the Wife's other Heirs; and after all in favours of the Husband's Heirs. In the first, if the Wife's Heirs be only substitute Failyieing Heirs of the Marriage, the Husband is understood to be Fire; Because as it is the essence of a Fee to have power to Dispone, and if the Fire do not Dispone to transmit to the Fiars Heirs, and to be represented by them: And in dubio cujus haeredibus maxime prospicitur, That person is thought to be Fire. But in the second case, there being divers degrees of Substitutions and all in favours of the Wife and her Heirs, before her Husband's Heirs, The Wife is thought to be Fire: And upon the Failʒeure of all her Relations, the Husband's Heirs in the last place are Heirs of provision to her; And yet in the said case of Girvanmains, It is thought that the Husband is Fire, there being these specialties in that case. 1mo. The said Estate is Disponed to the Husband, and his Spouse the longest Liver as said is and their Heirs of the Marriage; and there is no Liferent settled on the Husband, whereas there is a Liferent of a part of the Lands given to his Wife in satisfaction of what might fall to her either of her Father's Estate, or of her Husbands. 2do. There is a provision that if there should be no Children of the Marriage to succeed to that Estate, the Husband should be obliged in that case, he and his Heirs to denude themselves upon payment of a certain Sum of Money; and he could not denude himself unless he were Fire: So that it was intended that the Husband should be Fire, but with the foresaid Provision to denude in the case foresaid, and to be restricted to a Tocher: For which and other Reasons arising upon the Contract, The Antecedentia and Consequentia being considered, It is thought that the Son should be Heir to his Father as Fire.  
A Bond being granted to a Man and his Wife, and their Heirs. Quaeritur, What Right the Wife will have to the Sum? Ratio Dubitandi, that there being no mention that the Sum should be due to the longest Liver, and the Heirs of the longest Liver, but to them both and their Heirs, It appears that the Heirs should be understood the Husband's Heirs as Personae digniores. Answer. It is thought that seeing there is an joint Right to the Husband and the Wife, and it is the custom of Persons of their Quality being mean Country Persons, that the longest liver should enjoy all: The Wife indubie should enjoy the hail in Liferent and should have the Fee of the half.   

De Feodo Pecuniae & Nominum.  
PEcuniae & Nominum nec proprie Ususfructus nec Feodum est; ususfructus enim definitur jus utendi fruendi saluâ, rerum substantia: pecunia autem sive in specie, sive in nominibus est res fluxa: Et si in specie sit facile diffluit & usu consumitur: Nomina autem etsi initio idonea; debitoribus decoquentibus, inania sunt. Quemadmodum vero ob utilitatem receptum est, ut pecuniae sit quasi usus fructus ita est quasi feodum: istud enim proprie loquendo est tantum in rebus soli & stabilibus & feudis tantum; non vero allodialibus (ita dictis quod nullo laudato & recognito alio dominio, ad proprietarium pertinent pleno & integro jure nec libato & diviso in Dominium directum & utile: Licet autem apud alias Gentes praedia quaedam allodialia sint, nobis omnia sunt feudalia.) Et Feodum quidem in feudis de proprietate & dominio dicitur, prout distinguitur ab usu fructu & aliis quae circa feuda versantur juribus: Per Metaphoram tamen Feodum transfertur ad pecunias & nomina ita ut is in Feodo esse dicatur cui jus summum & proprietatis competit: plaerumque vero evenit sive seculi vitio (in nova commenta prurientis) sive Notariorum Incuria aut imperitia ut Chirographorum stylus a primaeva simplicitate deflectat, sic haud raro nec immerito dubitatur penes quos sit pecuniae & Nominum Feodum.  

Quaestio Prima.  
SI igitur Sempronius Pater, Pecuniam crediderit & Chirographo stipulatus sit eam & usuras sibi solvi si superstes sit; Eo autem per obitum deficiente Titio filio suo & Titii haeredibus & quibus dederit, seu assignatis: Ita tamen ut Sempronio liceat de pecunia & Nomine disponere Titio & haeredibus ejus inconsultis nec consentientibus: Quaeritur, In ista facti specie ad quem nominis istius Feodum pertineat? Et videri possit Feodum ad Titium filium pertinere cum nulla sit mentio Sempronij haeredum: Et Feodi ea sit natura ut ad haeredem transeat, qui in jure eadem persona censetur: Dicendum tamen Sempronium in Feodo esse; penes Titium vero & ejus haeredes spem & jus successionis: Nam quae Feodi & proprietatis vel essentialia vel naturalia sunt (ut sciꝪ.) Dominus de re sua disponere possit & ut ea ad haeredes transeat) ea Sempronio competunt; potestas enim disponendi etiam non expressa inesset; & Titius Sempronio substitutus in jus ejus succedit & pro haerede habetur (provisionis saltem ut loquimur) idque ex eo elucescit quod si accessisset etiam hypotheca & sasina, terris pro Pecunia in hypothecam datis, i●sdem conceptis verbis Sempronio sciꝪ.) & eo deficiente Titio filio & ejus haeredibus & assignatis; Titius eo casu extra omnem quaestionis aleam haeres foret: ubi autem eadem sunt verba & eadem ratio, idem jus est & esse debet.   

Quaest. 2da.  
IN ista facti specie supra memorata, Quaeritur etiam an Sempronius de isto nomine disponere possit, nedum inter vivos sed Testamento aut codicillis eo legato; cum debitum Chirographarium & mobile sit?  
Respondendum videtur, Sempronium eo ipso quod tam haeredibus quam executoribus praeteritis, Titium elegit & substítuit sibi, instar haeredis provisionis, & interciso ordinario succedendi ordine quasi Tallia; Titium in ea re haeredem esse voluit: Voluisse etiam nomen esse haereditarium, de quo moribus nostris nisi inter vivos non licet disponere; nec de ea re est Testamenti factio: Nec ad haeredem institutum in mobilibus seu executorem nominatum pertinet, quod ab intestato ad Executorem dativum non pertineret.   

Quaest 3tia.  
IN ista etiam specie, Quaeritur, Si Chirographum in actorum codicem seu Regestum (sive ut loquimur Registrum) referatur, vel a Sempronio, vel eo mortuo a Titio, ut instar sententiae habeatur & ex eo sit executio parata: An eo casu Titio executio competat; ita ut Literis Executorialibus & Cornuationis (ut loquimur) impetratis, debitori mandari possit ut Titio solvat sub poena Rebellionis: Et comminatione ni pareat, eum Exlegem & Rebellem denunciatum iri?  
Respondetur. Titio actionem quidem competere adversus debitorem, non executionem summariam, cum non sit Creditor primarius & ab initio, sed jure successionis ut substitutus & haeres talliae aut provisionis: Haeredi siquidem ex Chirographo nunquam executio summaria competit, nisi a decessore in acta relatum & post ejus obitum in haeredem translatum sit; vel haerede agente per viam actionis ut in acta referatur, de ea re sententia sequatur.  
Quaestio ista, utpote de formula, haud magni momenti esse videtur; eventu tamen fieri potest ut sit maximi: Processus enim cornuationis ex longa & catenata serie diligentiae conflatus, magno temporis & operae & sumptuum dispendio ad ultimam forte metam deductus inanis corrueret; si constiterit Titium haud rite processisse, cum ei summaria executio haud competeret; adeo multum est bene coepisse: Sublato enim fundamento superstructa corruunt, & paria sunt in jure non fieri & non rite fieri.   

Quest. 4ta.  
IN specie supradicta Respondimus nomen in persona Sempronii primarii creditoris haereditarium: Superest tamen adhuc scrupulus & quaestio an in persona Titii substituti sit etiam haereditarium, an vero ut mobile ad executores Titii pertineat? Sed  
Respondetur, Nomen etiam quoad Titium haereditarium esse: absurdum enim foret, partim haereditarium partim mobile esse: & cum ab initio haereditarium sit non desinit esse haereditarium; nisi creditor vel substitutus facto aliquo declaret naturam nominis innovatam velle; literis forte impetratis & debitore jusso solvere sub poena Rebellionis.   

Quest. 5ta.  
IN illa facti specie superius memorata, cum essent quinque rei debendi in solidum, uno ex iis defuncto, Sempronius creditor de eadem pecuniae summa sibi dari curaverat ab haerede ejus syngrapham seu oblgationem corroborationis; sic dictam quod priore obligatione salva ad eam ut accessoria et auxiliaris accedat eamque corroboret: eaque obligatione stipulatus fuerat pecuniam sibi solvi, ipsoque per obitum deficiente non Titio ejusque haeredibus in principali obligatione substitutis, sed Gaio ejusque haeredibus: Quaerebatur igitur utrum post mortem Sempronii, pecunia ad haeredes Titii praemortui ex prima substitutione; an vero pertineat ad Gaium ex seounda?  
Respondendum, Videtur eam ad Gaium ejusque haeredes pertinere: Sempronius enim facultate usus quam sibi reservaverat, & quae etiam non expressa penes eum ut dominum & feudatarium fuisset, novissima substitutione priorem sustulerat: & licet notarii imperitia aut oscitantia haud cautum sit pecuniam solvendam tam ex principali quam accessoria syngrapha Gaio & ejus haeredibus; id tamen jus supplet & subintelligit: posteriora siquidem derogant prioribus; nec possibile est ut idem jus sit in solidum penes plures & diversos creditores: ad haec in ijs quae sunt facultatis & arbitrii, voluntas posterior operatur & praevalet utcunque expressa; & magis valet quod agitur quam quod concipitur.   

Quest. 6ta.  
HAud dissimili ratione, si debitum sit haereditarium (hypothecarium sciꝪ.) addito pacto de terrarum hypotheca; postea vero creditor nova syngrapha in corroborationem accepta stipuletur pecuniam sibi et executoribus solvendam; statim nomen haereditarium esse desinit: Licet enim posterior syngrapha sit in corroborationem et absque praejudicio prioris, ita ut ex utraque syngrapha pecunia debeatur et exigi possit; mutantur tamen nominis qualitates et accidentia extrinsica; ex principali siquidem obligatione haereditarium; ex accessoria mobile est: nec interest debitoris quos sibi velit creditor haeredes aut executores aut substitutos; adeo ea de re voluntas creditoris ambulatoria est & novissima derogat praecedentibus.   

Quest. 7ma.  
CUm in specie cujus saepius mentio facta est, Gaius substitutus sit Sempronio in syngrapha, in corroborationem data ab haerede tantum unius ex pluribus correis debendi: quomodo agere poterit adversus reliquos debitores nec ex principali nec accessoria obligatione Gaio obligatos?  
Resp. Actione utili in factum Gaium adversus omnes correos experiri posse (eam Angli vocant Action upon the case) narrata facti specie superius exposita: nec minus ut expeditior sit adversus debitores actio potest etiam agere adversus haeredes Titij substituti in prima obligatione, ut eam sibi cedant.   

Quest. 8va.  
CUm pecunia creditur, & Chirographo Sempronio creditori Titius ejusque haeredes & executores substituti sunt; diximus nomen istud haereditarium esse: verum sententiae isti refragari videtur constitutio novella, Caroli secundi Act 32, Parl. 1. 1661., Ea siquidem statutum est, omnia nomina ad executores pertinere, nec haereditaria esse nisi in casibus ibi exceptis; qui (ut vulgo dicitur) formant regulam in non exceptis: ij autem sunt tres viz. Si obligatione haeredibus tantum consultum sit & disertis verbis arceantur executores: si accedat hypotheca & investitura, quae est Ius reale & haereditarium, nec ad executores pertinet cum sint haeredes tantum in mobilibus: & si pactum sit de creditore investiendo ex quo investitura & sasina sequi potest. Idem Ordines prius statuerant tempore Turbarum & funesti inter Regem & populum dissidii Anno. 1641. Act 57: quod adhuc extat in Codice apocrypho actorum istius temporis: Nec injuste quidem, si materiam spectes, sed frustra & irritum defectu potestatis legislativae quae penes solum Regem est: Is enim solus sancit, unus sancit pro authoritate, sed praevio Ordinum consilio & consensu: sed,  
Resp. Utrobique, tam Regia constitutione, quam illo ordinum statuendi conatu, agi tantum de ea nominum specie quae vulgaris & frequentior est; Cum sciꝪ. Ita in creditum itur ut pecunia debeatur, & reddenda sit creditori ejusque haeredibus & executoribus; quo casu sancitur ea ad executores pertinere: in aliis vero casibus, ubi singularis aliqua ratio obest suadetque nomen nec creditorem voluisse nec posse ad executores pertinere; Lex ista locum non habet: Et cum varii casus nec de regula nec legis sint, nec de iis cogitatum, eos omnes excipere nec necesse vix possibile erit: in compertum autem est Sempronium creditorem cum Titium ejusque haeredes sibi substituerit, Executores exclusos voluisse: Et in genere, ubicunque pecunia (ut ita dicam) talliatur; & interciso ordinario succedendi ordine, haeredibus Talliae, aut provisionis prospicitur nomen haereditarium est; e. g. Si quis Chirographum acceperit sibi & haeredibus forte inter ipsum & uxorem procreatis, quibus deficientibus haeredibus de corpore suo, quibus etiam deficientibus aliis provisionis haeredibus; nemo ut opinor arbitrabitur nomen illud, quo consulto tot haeredibus consulitur haud haereditarium esse: licet in Chirographo nec de executoribus submovendis nec de investitura aut sasina danda caveatur.   

Quaest. 9na.  
QUod superius dictum est substitutum Sempronio ei in Jus nominis succedere & haeredem provisionis esse. Sed de ea re ambigitur, & Quaeritur an Sempronio haeres esse possit, qui eo defuncto e vestigio agere potest adversus debitores ex obligatione etiam sine alia aditione; licet ex inquisitione quindecemvirali (ut moris est) haud compertum & declaratum sit, eum Sempronio in ea re haeredem esse: accedit quod haeres succedit in universum Jus substitutus vero in isto nomine in rem unam & singularem & forte exilem? Tenendum tamen est substitutum haeredem esse Sempronio saltem provisionis: quandocunque enim dominium & feodum alicujus rei sive fundi sive nominis est penes aliquem tempore obitus, ea ad alium transmitti & transire nequit nisi haeres sit: nec alio Titulo aut Jure succedit substitutus ubi nomen est Chirographarium tantum; quam ubi est etiam Hypothecarium: certum autem est ubi debitum Hypothecarium est, sasina secuta, substitutum titulo haeredis, nec aliter posse, succedere: imo substituto praemoriente, Sempronio substituti haeres Jus nominis haud nanciscitur nisi Sempronio haeres sit; Et ex Inquisitione constiterit & declaratum sit eum esse haeredem.   

Quaest. 10.  
MOribus nostris haeres nullum Jus consequitur nisi haereditatem adeat, sive ea sit in praediis sive in aliis rebus haereditariis. In terris autem duo sunt modi adeundi, ut sciꝪ. a Superiore seu domino directo, vassallo defuncto, haeres agnoscatur & ejus jussu & seu praecepto (quod Clare Constat dicitur) ut haeres investiatur: vel ex inquisitione Judicis ad quem ea res pertinet constet, & ab eo renunciatum sit eum esse haeredem, & Sasina secuta sit: In aliis vero rebus unicus adeundi modus ex inquisitione sciꝪ. Cum igitur in casu superiori, substitutus nulla praevia Inquisitione secundum obitum Sempronii, statim & recte adversus debitorem agat, haud immerito dubitatur an Sempronio haeres sit? sed,  
Respondetur, isto casu aditionem haud deesse imo necessariam esse; cum enim haereditas aut opulenta aut damnosa sit; ut invito non datur beneficium ita damnum & injuria non debet inferri; nec ullo jure nisi civili apud Romanos haeres necessarius est, & apud eos unico tantum casu: substitutus autem ipso facto adit & haeres est, si debitum ut suum petat & ex Chirographo agat: Ideo autem solenni ex institutione adeundi modo haud opus est, cum ex Chirographoeum Sempronio succedere clare constat, neo in claris ulterius inquirere necesse sit.   

Quaest 11ma.  
UBi debitum hypothecarium est & sasina vestitum: substitutus post obitum creditoris nec recte agit nec aliquid Juris consequitur, nisi haereditatem adeat & a domino directe & sponte agnitus & sasitus sit, vel ex inquisitione Jussu & mandato Regis investitus: Quaeritur igitur quae sit ratio discriminis, cum Chirographarius substitutus statim mortuo creditore & jus habeat & debitum condicere possit; hypothecarius vero non nisi adita haereditate nec minus manifestum sit ex obligatione substitutum succedere!  
Resp. Rationem differentiae in promptu esse; In Chirographario siquidem debito cum Jus personale tantum sit, & ex Chirographo evidens sit substitutum succedere; ut substitutus adeat nulla alia formula opus est sed ex Chirographo agendo; vel alio quovis actu Jure suo agnito adiisse censetur: Sin debitum Hypothecarium sit, cum penes creditorem duplex sit Jus, reale sciꝪ. per Sasinam, & personale ex Chirographo; quod reali (utpote potiori & nobiliori) semper accedit; neutrum transit ad substitutum nisi adierit & sasitus sit, Sasina a domino volente & sponte data, vel ex Inquisitione & Jussu & Mandato Regis. Cum igitur ut Chirographarius succedat, unica voluntas substituti ejusque factum requiratur; In Hypothecario vero tam voluntas & factum substituti adire volentis quam domini directi eum in vasallum recipientis: Ideo Chirographarius Jus suum petendo, vel alio actu Jus suum agnoscens, confestim succedit; nec aliud agendum superest: In hypothecario vero, si dominus directus forte difficilior, substitutum recipere renuit vel cunctatur; Inquisitio necessaria est, ut ex ea rite facta domino Regi innotescat substitutum, creditori haeredem esse; quo comperto, superior praeceptis Regis ex Cancellaria sua morem gerens substitutum recipit Sasina data: Si vero ter monitus (ut moris est) haud obtemperat, in subsidium ex praecepto Regis per Vicecomitem Sasina datur.   

Quaest. 12ma.  
IN specie saepius repetita, cum Chirographo vel simplice vel hypothecario Pecunia debetur Sempronio; & eo deficiente per obitum, Titio ejusque haeredibus; si Titius praemoriatur Sempronio superstite, & postea mortuo; Titii haeredes in ea re haeredes erunt Sempronio; nominis enim feodum penes Titium nunquam fuerat: Ambigitur, an qui Sempronio haeres esse vult, etiam Titio haeres esse debeat actu & aditione; & ut practici loquuntur deservitione? An vero satis sit eum esse haeredem Titio habitu, & qui ei proximior & actu haeres esse queat si velit? De ista Quaestione licet magni momenti, & in praxi & quotidiano usu saepius recursante, nulla (quod sciam) decisio est; adeo ut mihi integrum sit dicere quod sentiam, salvo eorum Judicio, penes quos vel legis vel sententiae ferendae authoritas erit. Cum igitur pro utraque parte haud desint rationes, nec cae leves; in isto conflictu hae animum fluctuantem impulere ut pedibus in illam sententiam eam; requiri sciꝪ. ut qui Sempronio haeres esse vult etiam Titio haeres sit habitu & proximior; nec necesse esse ut ei Haeres sit actu & adeat: In omnibus dispositionibus mens & voluntas disponentium attenditur, in iis autem dominatur quae Voluntates dicuntur institutionibus sciꝪ. & substitutionibus haeredum; quae nedum in Testamentis sed inter vivos fiunt, sapiunt tamen naturam Testamenti vel donationis mortis causa. Cum autem quis haeredes Talliae aut provisionis (ut loquimur) instituit, id unice vult satagitque ut in rebus suis haeredes instituat: non vero ut aliis & in aliorum rebus vel instituat vel substituat haeredes. Et substitutio pupillaris qua pupillo, & exemplaris (ad pupillaris exemplum) qua furioso haeres datur, singularia sunt juris antiqui & municipalis Romanorum, nec alibi usurpata: Quando igitur Sempronius vel alius quilibet, Titium ejusque haeredes sibi haeredes aut Talliae aut provisionis substituit, ratio haud habetur civilis adeundi actus, sed Juris adeundi & sanguinis, ut qui ut alterius haeres ad successionem vocatur, eatenus alteri uni forte ex liberis aut cognato suo ea necessitudine junctus sit, ut alteri haeres esse possit si velit & e re sua sit; si enim adeunti vel exigua spes lucelli affulgeat, quod aditurus sit haud dubitandum; sin alterius haereditas damnosa sit, nec instituentis nec haereditatis ejus interest ut ei necesse sit alienam adire; quae nedum inanis sed etiam damnosa suam exinaniret quantum libet pinguem & opimam: Ut de vaccis proditum est per somnium a Pharaone visis adhuc deformibus & strigosis, etiam pinguibus & nitidis devoratis: Nec aliquid a ratione vel Jure magis alienum est, quam ut quod in favorem introductum est in odium & perniciem retorqueatur. Adhaec in materia haereditaria, tam in Jure quam praxi & usu & stylo, apud nos vocabulum haeres non pro eo qui adiit haereditatem sed pro adituro vel cuiadeundi jus est saepius accipitur; haereditas siquidem est jus successionis; & de adeunda (secundum doctores) magis proprie quam de adita dicitur: ubi enim adita est & successum, desinit esse haereditas & jus succedendi: hinc est quod ubi per Breve de morte antecessoris mandatur Judici idoneo ut inquiri faciat, quis defuncto sit legitimus haeres, intelligitur haeres habitu & cui Jus sit succedendi; non vero haeres actu & qui adiit; de quo cum jam adierit supervacanea esset tam inquisitio quam aditio.  
Id in ista specie facti luce clarius est, si quis enim liberis orbus, fratres habeat; & inter eos, qui sibi haeres futurus esset, virum prodigum & & obaeratum; & consulto eo praeterito substituit ejus haeredes: ut reor, nemo opinabitur eum voluisse ut sui haeredes prodigo & decoctori actu haeredes sint: Et quod una via solicite curaverat ne fieret fratre praeterito, fortunarum suarum naufragium & jacturam voluisse fieri alia via fratris haeredibus institutis, si haeredes nedum habitu sed actu esse debeant: Imo aliquando, cum quis alterius haeredes sibi adsciscit & substituit, evenire potest ut instituenti haeredes sint, alteri vero vix habitu haeredes esse possunt; si necessitudo & jus sanguinis haud desit obsit vero civilis aliqua ratio; ut v. g. fratris haeredibus institutis, si praemoriatur instituens fratre adhuc superstite, qui ei haeres fuisset si eo quo instituens diem obiit tempore decessisset; instituenti haeres erit, nec fratris mors operienda erit, & tamen ei haeres nec habitu esse potest qui instituenti succedit; Ea ratione obstante quod adhuc superstes haeredem habere nequit, vel si fratris haereditas integra & ex asse adita sit, adeo ut amplius haeredem habere nequeat, facultate adeundi per aditionem absumpta; quia si frater cujus haeredes vocantur praemortuus sit sine liberis & perduellionis damnatus, instituente postea defuncto; si alius sit frater qui perduelli haeres foret si ad pacem & fidem Domini Regis decessisset, & instituenti haeres erit licet neutro casu fratri nec habitu nec actu haeres esse posset; obstante sciꝪ. non naturali ratione & sanguinis defectu, sed Jure & ratione civili, ob eas quas supra memoravimus causas.  
Quae pro altera parte afferuntur, viz. quod ei quorundam sive opinio sive error (& magis communis) suffragetur; & vulgo dicitur error communis jus faciat, hisce presertim rationibus subnixus, viz.) cum quis vocatur sub modo aut qualitate ut alteri haeres sit qualitatem nedum adesse sed praeambulam antecedere oportere, nec instituenti haeredem esse posse nisi prius alteri cujus haeredes vocati sunt haeres sit: cumque Haeres nomen Juris sit non personae, alterius haeredem non admittendum esse, nisi ex Inquisitione alteri haeredem esse compertum sit; ex Inquisitione autem alterius haeredem renunciari moribus nostris nihil aliud esse, quam alterius haereditatem cernere, & actu adire. Istae inquam rationes facile diluuntur; nam cum patribus errasse utcumque excusat, errore autem ratione evicto & agnito, nemo adhuc errandum esse sentiet: Et communis error quando est in facto, & circa conditionem aut qualitatem personae, ut quondam. Barbarii Philippi; qui cum servus esset praetor Romanus fuit; in isto & similibus casibus, vel si forte praelatus vel notarius haud legitimus pro legitimo tamen tentus & reputatus sit, hactenus communis error Jus facit ut quae ab iis gesta sunt haud corruant, publica utilitate postulante; ne publicus & communis error Reipublicae noceat: Error autem in Jure non excusat nedum Jus facit; & qualitas sub qua vocatur haeres alterius, haud deest si haeres sit habitu & proximus, ut superius demonstratum est. Denique qui Brevi Regis impetrato postulat ut judex inquiri faciat an haeres sit instituenti, ejusque tantum haereditatem adit, licet alteri haeres sanguinis & habitu & esse & per inquisitores renunciari debeat.   

Quaest. 13.  
AN eo ipso quod Sempronii haereditatem adiret Titii haeres; etiam Titii haereditatem adiisse videatur, cum Titii haeredes Sempronio substituti sint; adeo ut provisionis haeres Sempronio esse nequeat nisi haeres Titii sit quaerendum est? parum quidem interesse videtur utrum Titio haeres esse ex inquisitione, & postea Sempronio ex alia inquisitione etiam haeres esse comperiatur; an vero ex una & eadem Inquisitione tam Titio quam Sempronio eum haeredem esse declaretur. Caeterum voluntas & propositum (nedum maleficia sed &) Civiles actus distinguit; cum itaque Titii haeres Brevi ex Cancellaria impetrato inquiri postulat an sit Titio haeres, sine dubio Titii haereditatem adit; Id enim unice agit & vult, ut Titio actu haeres sit: Verum ubi Brevi impetrato de morte antecessoris inquirendum curat quis Sempronio haeres sit, & clameo seu petitione exhibita petit ut declaretur se haeredem esse Sempronio cum haeres proximus Titii sit, eo casu nec adit nec ei propositum est ullam nisi Sempronii haereditatem adeundi: An vero Titii sit haeres inquiritur tantum obiter & tanquam de qualitate praeambula; sine qua Sempronio provisionis haeres esse non potest; non vero ut Titii haereditatem adeat, & ei haeres actu sit: sufficit enim ut superius disseruimus ut Titio haeres sit sanguinis & habitu: adeo in Jure iidem actus ex animo & fine diverso plerumque diversos habent & sortiuntur effectus.   

Quaest 14.  
NIhil quidem a Religione Judicantis magis alienum est quam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ea divino & omni Jure vetita aegre tamen vitatur; & quod de Marte & Venere & de Vulcani vinculis occultis sed tenacibus in fabulis est, verum est de Affectibus animum impedientibus, ne Verum & Justum cernere possit: imo ubi Lex & regula haud deest, interdum instar Lesbiae, colore aliquo eò torquetur, quò affectus impellit: ubi autem Lex aut regula deest, sibi homines Lex sunt ut ait Apostolus, sensu multum diverso: & Judicantis pro lege affectui gratificandi arbitrium sibi permissum arbitrantur. Curandum itaque quantum fieri potest, ne arbitrio, Legibus & Justitiae inviso, locus sit. Licet autem sit homonomia in ipso nomine Haeredis, & materia anceps & arbitraria; utrum haeres de eo qui est actu haeres, an de eo qui habitu & sanguinis haeres est tantum, intelligendum sit: Arbitrium tamen videtur istis regulis substringi & coerceri posse.  
1mo. Ubicunque alterius haeres ad alterius haereditatem vocatur satis est eum alteri haeredem esse habitu; utque ei facultas & jus sit adeundi si velit & prosit, non vero necessitas si nolit aut noceat.  
2do. Tum materia subjecta tum id quod agitur multum inspicitur: In materia igitur non successoria, ubi mentio fit haeredis, nec agitur ut succedat sed ad alium finem & effectum, intelligendus est semper haeres habitu non actu; e. g. In tabulis nuptialibus seu Contractu quem matrimonialem dicimus, synalagma est & mutua ultro citroque obligatio; sponso enim de dote; sponsae de doario cavetur; & liberis de successione: quia vero obligatio sine actione & executione inanis esset, nec uxor nec liberi sub potestate & ferula mariti futuri, contra eum agere queunt; ideo clausula executiva introducta est, qua cavetur; ut actio & executio competat Necessariis quibusdam & eorum haeredibus, ad ea persequenda quae uxori & liberis ex eo contractu debentur aut praestanda sunt: Eo casu si aliquis ex haeredibus egerit, ex ea clausula qua sibi non consulitur sed ob sanguinis & necessitudinis vinculum in aliorum rem officium & sollicitudo injungitur; nemo rationis compos nedum Jurisprudens opinabitur, eum summovendum nisi actu haeres esse velit; & haereditati damnosae se implicare non obstante Juris regula officium nemini debere esse damnosum. Haud aliter sentiendum eo casu quo decimae (ut plerumque fieri solebat) ad longum tempus locantur, conductori ejusque haeredibus & assignatis; ita ut locatio durante vita conductoris, & secundum eum trium haeredum successive duratura & aequaeva sit. Haeredes enim, cum quaeritur quamdiu locatio duratura sit, intelliguntur qui sanguinis & & habitu haeredes sunt, licet non actu; si enim (ut saepe evenit) locationis Jus cessum fuerit nec ad haeredem pertineat, haud credendum tres haeredes, Jure alienato, in aliorum rem alienanti haeredes fore actu, & adituros: Cumque locatio sit conductori haeredibus & assignatis, durante tot haeredum vita, non agitur ut penes haeredes Jus istud semper futurum sit, sed ut sive sit penes haeredes sive singulares successores, ut ejus duratio, cum ex natura locationis perpetua esse nequeat, definiatur ex vita trium haeredum.  
Sic in judiciis declaratoriis Juris, Nonintroitus forte aut aliis ejusmodi & Rescissoriis, quia non sunt actiones rei persecutoriae, nec iis aliquid dari vel fieri petitur sed agentis jus tantum asseritur & declaratur; necesse tamen est ut omnes quorum interest conveniantur; defunctis iis quorum interesse poterat haeredes eorum necessario citandi sunt; nec necesse tamen est ut sint haeredes, actu & vel adeant vel repudiant.  
3tio. Ubicunque haeredibus sanguinis consulitur, cavetur tamen ne actu haeredes sint; ne adeundo litibus aut debitis haereditariè subjaceant: Aequivocum haeredis nomen de eo qui proximus & habitu haeres sit intelligendum est, exemplum fuit insigne in ea cujus superius meminimus facti specie, cum sciꝪ. Frater adhuc liberis orbus, fratre parum frugi aut prodigo; ideo eo praeterito fratris haeredes resignatione facta sibi si non agnascantur liberi haeredes substituit; veritus ne si frater succederet etiam sua profunderet.  
Illud quoque addi potest, quod instrumentis sponsalitiis cum vir ad secunda vota convolat, saepius haeredibus prospicitur; ut a sponso terrae & praedia dentur vel acquirantur, aut ut certa pecuniae summa collocetur sub usuris; & terrarum aut ex iis annui reditus hypotheca; sed ea lege ut penes Conjuges ususfructus tantum sit, haeredes vero ex conjugio feodum & proprietas; ut superiore ita isto casu liquet id agi, ne haeredes patri succedant cum ex priore matrimonio liberos forte habeat ei haeredes in universum futuros: liberi vero ex secundo matrimonio in Terrarum aut annui reditus feudum ex pacto ipsis concessum succedere nequeant, cum penes patrem haud futurum sit: Ea igitur interpretatio fieri debet ut id quod agitur & actus valeat, & evitetur absurdum; maximum autem foret si quod una via prohibetur aut cavetur alia eveniat: & dum Charybdis evitatur, incurratur Scylla non minus exitiosa.   

Quaest. 15.  
SUperius Respondimus Titium ejusque haeredes, Sempronio in Chirographo substitutos, ei haeredes esse provisionis: Quaerendum an Sempronii Creditoribus teneantur? & quidem dicendum est eos teneri & obnoxios esse; nam omnis haereditas etiam particularis, & in Chirographo praedio aut alia re particulari, eatenus est successio in universum Jus; secundum haereditatis definitionem: ut nedum commoda sed incommoda & onera ad eum pertineant & redundent, sed quatenus debitis subjaceat & oneribus: quaestio difficilior nec levis momenti est, & alio forte loco ubi de haeredibus Talliae & provisionis & aliis particularibus haeredibus agetur, magis opportune ventilabitur.    

Feus'.  
IF a Fever may Refute as in the case of other holdings? The difference being, that Feuda are Beneficia, & invito Beneficium nec datur nec retinetur: Whereas Feus' are Emphyteuses and upon the matter perpetual Locations; and as in Locationibus either ad tempus how long so ever, the Conductor cannot renounce, so their appears to be eadem Ratio in Feus'.  
Whether there be Nonentry in Feus', and the Liferent Escheat of the Fever doth belong to the Superior, seeing they are not proprie Feuda? And yet it is thought sapiunt naturam Feudi.  
If there be Nonentry: Whether before Declarator, the Superior will have right to the retoured Duty, which is the Feu-duty, besides the Feu-duty due to himself: And after Declarator to the full profits?   

Feuda Nobilia.  
FEuda nobilia sine Nobilitate dari possunt: Adeo ut aliquis ab Imperatore investiri posset in Ducatu aut Comitatu, nec tamen Dux aut Comes sit. Thes. Besold. in litera I. 18. verbo. Innhabern. des. p. 428.   

Fire.  
1. WHen Lands are Disponed to a person, without mention either of Heirs or that he is Fire or Liferenter; or that they are Disponed Heretably. Quaeritur, If he be Fire?  
2. In Conjunct Fee where there are no degrees of Substitution, whether is the Husband or Wife Fire?  
3. When Lands are given in Conjunct-Fee to the Husband and Wife, and their Heirs; who is Fire?  
4. If the Husband be Fire, whether at least the Heirs betwixt him and her, are to be understood his Heirs: or his Heirs whatsoever?  
5. If Lands be Disponed to two Brothers by their Father, and their Heirs; if they be both Fiars ex semisse?  
6. If when Lands are Disponed by a Father to two Brothers and the Heirs of their Body; if one die without Heirs of his Body, whether it be substitutio reciproca?  
7. When Lands are Disponed to Husband and Wife and their Heirs of the Marriage; and these failyieing the half to the Husband's Heirs, and the other half to the Wives: Quaeritur, Whether the Husband be so Fire, that the Wife's Heirs, failyieing Heirs of the Marriage, will be Heirs of Provision as to the half?  
8. When it is intended that the Wife should be a Joynt-fiar: If the Right should not be to the Husband and her; and after their Decease the half to his Heirs and the other half to her Heirs?  
9 When a right is given to Two Persons and to the longest Liver of them Two, and the Heirs of the longest Liver, who is Fire? And if the Fee be in pendenti?  
10. When the Fee is provided by Contract of Marriage to Bairns; and accordingly a Right is granted in the foresaid terms, there being no Bairns for the time: Quaeritur, When a Child is born whether the Fee be immediately in its person?  
11. If it be in solidum in its person and thereafter others be born Quaeritur, Quid juris, and if concursu faciunt parts?  
12. In Conjunct-fees where there is no substitution, the Heirs determine the Fee.  
13. Where there are degrees of substitution, The person whose Heirs succeed first is Fire; And all the Substitutes thereafter are Heirs of Provision to the Fire by progress.  
14. When a Band is taken to a person and his Heirs; if his Grandchild by a Daughter decease having no issue, whether the Child being Heir, his Father will succeed to him; albeit his Father cannot be Heir to the Grandfather, and haeres haeredis should be haeres instituentis?   

Fiars of Bonds  
A Bond being in these terms, To a man and his Wife and the Heirs of the Marriage; which failyieing to the longest Liver of them two and the Heirs of the survivor, Quaeritur, who is the Fire?  
A Bond being granted to a Husband and his Wife and the longest liver of them two in Conjunctfee; and to one of their Sons expressly named and the Heirs of his Body: whilks failyieing to the Heirs to be procreate betwixt the Husband and the Wife; whilk failyieing to the Wife's Heirs and Assigneys, Quaeritur, Whether the Fee of the said Sum pertaineth to the Husband, or to the foresaid Son, or to the Wife? Ratio Dubitandi, That the Right of Succession terminates upon the Wife and her Heirs, which seems to import that she is Fire. 2do. As to the Son the said Sum being provided to his Heirs in the first place It seemeth that the Fee should pertain to him:  the Heirs of his Body are to succeed in the first place, and the Fee of Money (as it is said of the Vsufructus of Money, That it is quasi Vsufructus) is quasi feodum & Proprietas: and properly that is said to be Property which belongeth to a person and descendeth to his Heirs: And yet it is thought that the Fee of the said Sum doth belong to the Husband, in respect the Money being his own was lent by him in behalf of himself and the foresaid persons: and albeit when a Bond is conceived simply to a Husband and his Wife in Conjunctfee and to her Heirs and assigneys, she is Fire; for the reason foresaid, that it is to belong to her and her Heirs only. Nevertheless when there is divers degrees of Substitution of Heirs of divers people and of a Wife in the last place, the person whose Heirs are provided for in the first place ought to be understood to be Fire: and these in secundis tabulis and in a more remote degree, to be only Heirs of Provision Failyieing the former: and if the Son had survived or his Heirs, It is absurd that they should be Heirs to their Mother and not to their Father; And that the Mother being Fire should have power to Dispone of the Sum in prejudice of her Husband's Children. And albeit the said Sons Heirs be first named yet it is thought that he is not Fire, seeing he is to be Heir of Provision to his Father: as if an Infeftment were granted to his Father and Wife in Conjunct-fee; and failyieing of them be decease, to a certain person their Son and the Heirs of his Body: The Son in that case would be Heir of Provision.  
A Bond being granted to a Man and his Wife and longest Liver of them Two and their Heirs: And the Wife having survived, Quaeritur. If she will be Fire of the said Bond?  
A Person having Infeft his Creditors for security of Debts, and while they be paid respectively. Quaeritur, Quatenus They are Fiars whether in solidum, or ex parte: And qua parte? Respondetur, They are Fiars proportionally, and ex parte effeiring to their Debt.   

Fiars in Tailʒies.  
BY a Contract of Marriage; Lands being given in Tocher and the Right thereof so conceived that they were Disponed to the Husband and the Gentlewoman in Conjunct-fee and Liferent, and to the Heirs of the Marriage: Whilk Failyieing to the Heirs of the Husband his Body in any other Marriage: Whilk Failyieing to the Woman's Heirs and Assigneys whatsomever. Quaeritur, who is Fire? Answer. That though where there is but one degree of Substitution, (viz. Failyieing the Heirs of the Marriage the Woman's Heirs) The Woman is Fire; Because res pertinet ad eos quorum haeredibus providetur: But where there are divers Degrees of Substitution (as in this case) the Husband (cujus haeredibus maxime prospicitur) It is thought should be Fire;  not only the Heirs of the Marriage gotten by him, But in the next degree his Heirs of any other Marriage are substitute: and in ultimis tabulis, The Wife's Heirs, and as Heirs of Provision to the Husband: and the Husband having given a Jointure, it is thought to be in Lieu of the Tocher, and to belong to him as Fire and not as simple Liferenter.  
A Bond for a Sum of Money being granted to a Man and his Wife and longest Liver of them Two, and to their Heirs and Assigneys secluding Executors: And the Wife having survived the Husband, and a Bairn being likewise on Life of their Marriage: Quaeritur, Whether the Relict will be Fire?  
If a Bond be granted to Two Brothers in the terms foresaid, and one of them deceasing having left Children, and the other surviving having also Children: Quaeritur, who is Fire?   

Fictio Juris.  
QVaeritur, A Debtor being deceased what way can the Compriser be Infeft? Answer. The Decreet of Reduction putteth the Debtor quoad the Creditor in the same case as if he had not been denuded Fictione Juris.   

Fiscus.  
IN Dubiis ubi non est plena Probatio fisco non favendum. Besol. Thesaur. litter. L. p. 556. vide Auctores ibi citatos.   

Commissa Fisco.  
MErces committuntur Fisco ex causa fraudati vectigalis ipso Jure; ita ut statim desinant esse ejus qui deliquit: itatamen ut ob contradictionem partis requiratur sententia declarativa. De Jure fluminum. 206.   

Flumina.  
FLumina a Rivis distinguuntur magnitudine, vel aestimatione circumcolentium Hearing. de molendin. Quaest. 15. n. 4.   

Flumina Publica.  
FLumen publicum est illud quod perenne est. Th. Scipman. de Jure Fluminum seu. jus Fluviaticum p. 3. n. 20.  
Flumina publica sunt in potestate & patrimonio Principis, & de Regalibus sunt, idem P. 5. n. 52.  
Publica sunt superiorem non recognoscentis, & Majestate fulgentis, Ibid n. 7. & quorum usus omnibus Expositus est.  
Flumina publica sunt, quae sunt perennia & de Regalibus, plerumque navigabilia, & quae navigabile aliud faciunt, & ad principem pertinent: Vsu vero patent singulorum commodis & utilitati, non etiam commercio seu Juri emendi, acquirendi, alienandi. Quaest. eadem. Num. 10.  
Flumina Censitorum vice funguntur, & ex privato in publicum addicunt, & ex publico in privatum, dum uni adimunt & alteri addunt, Jus fluviat. p. 5. 24. etc.   

Forfeiture.  
A Subvassal being Forfaulted, Whether His Majesty's Donator will have Right to the Estate free of Servitudes, and Rights not consented to by the immediate Superior? Caldwells Relict contra Dalʒiel.  
When the Lands fall in His Majesty's Hands by Forefaulture, or otherways by the suppressing of Benefices, or any other occasion; if there be Vassals holding of the same; May he Dispone the saids Lands and Superiorities? Ratio Dubitandi; That a Superior cannot interpose. Answer. There is a difference betwixt Vassals holding Originally of His Majesty, and these who hold ab initio of other Superiors: As to the first they cannot be prejudged so as to be put to hold of any other than His Majesty, and to be more remote from the Fountain: The others are not prejudged, seeing they are put in the condition they were in formerly: and as the former Superior might have Disponed the Superiority, and resigned; so His Majesty cannot be denied the same Power: and His Majesty's Disposition is Fictione Juris equivalent to a Resignation, seeing there is no other Superior in whose hands the King can resign.  
If a Subvassal, to a Vassal holding of the King, be Forefaulted for Treason; will subaltern Rights granted by him fall under Forefaulture?  it is pretended that such Forefaultures belong to the King not as Superior but Jure Coronae and as Prince; & noxa caput sequitur: and the King has no prejudice having a Vassal. Yet I think that these Rights should fall, Quia resoluto Jure Dantis resolvitur Jus accipientis: And if the Subvassal should Forefault his Lands by Recognition, his Vassals Right would Forefault: And it is against reason, That Treason being Crimen gravius, The Forefaulture and poena should be Levior: And Treason is Crimen feudale and against the King as Superior paramount: and as the betraying of a mediate Superior will import Forefaulture, not only of the Subvassal but of his Vassals; there is the same or greater reason, that Treason against the King should have the same effect: and the reason that the Forefaulture of the Subvassal should belong to the King is, because the Crime is committed against him as highest Superior.  
If the King's immediate Vassal should confirm the Inferior Rights, if there be any alteration of the case? Seeing the King is in place of the Vassal, because the Crime is committed against the King as Superior, and he should be in no better case: and the Vassal if he were to have the benefit of the Forefaulture, could not Question the said Rights.  
If a person Infeft in Liferent be Forefaulted for Treason, will the Liferent expire though he survive?  he is nullus, and after Treason doth neither transmitt cedendo nor delinquendo.  
A Person being Infeft in Trust and to the use and behoof of another; Quaeritur, If he commit Treason will he Forefault the Right of the Lands to His Majesty? Seeing albeit his Right be to the use and behoof of another yet he is Vassal; and as the French say he is homme vivant & confisquant; and there is no reason the Superior should be defrauded; and the granter of the Right is to be blamed that he trusted such a person.  
By the English Law, though a person Dispone for Onerous Causes, he is not Liable to warrant unless he be expressly bound; otherways the acquirer is presumed to take his hazard: But with us no Warrandice, is absolute Warrandice.  
Quaeritur, If a Donator to a Forefaulture has Action for Exhibition and delivery of the Evidents?  
The Vassal of a Subject, having granted a subaltern Right to be holden base, and the same not being confirmed by the mediate Superior: Quaeritur, Whether the Subvassals Right foresaid, will fall under the Forefaulture of his immediate Superior being Forefaulted? Answer. It is thought that it will fall under the Forefaulture, in respect that if the person Forefaulted had committed a Crime against his Immediate Superior whereupon the Lands would have recognosced or Forefaulted to him, The Subvassal his Property would have fallen under the Forefaulture; and there is eadem if not major Ratio in the case of Treason, The King being Superior Paramount, and the Crime against him being also a Crime against the mediate Superior; there being no greater wrong than to be a Traitor to the Superior. Caldwell and Glanderstoun.  
Quaeritur, Quid Juris, If the mediate Superior had confirmed the Subvassals Right?  
Quid Juris in the case of Forefalture for Treason? And if there be a difference in the case of Forefaulture in Parliament and before the Justices?  
Lands being Comprysed and a signature being passed upon the Comprysing, but no Infeftment being taken thereupon: Quaeritur, If the Debtor commit Treason in the interim, whether the same will fall under Forefaulture? Answer. It is thought that it will not, seeing the Debtor was fully denuded; there being no vestige of Right in his person; seeing he is divested by the Comprysing as if he had resigned, and the Superior had accepted the Resignation.  
Quaeritur, Quid Juris, If there were only a Comprysing without a Signature? And the Question may be more general; Viz. If in all cases the Heretor be so denuded that he cannot prejudge the Compryser, by any Deed whereupon Recognition or other Forefaulture may follow, in favours of the Superior: otherways a Malicious Debtor may, of purpose, do such a Deed to prejudge his Creditor.  
To consider if there be a difference betwixt a Disposition and Resignation accepted by the Superior: And a Comprysing; whereupon nothing has followed?  
Item. If the presenting of a Signature on a Comprysing to the Exchequer, be equivalent to a Resignation in the Superiors hands and accepting?  
Item. Whether a Charge to other Superiors to enter the Compryser be equivalent to a Resignation?  
If after a Person is Forefaulted, an Estate should fall to him, as appearand Heir to any person, he being yet on Life; whether would the same pertain to the King or to the next Heir, as if he were Deceased?  he is nullus being Forefaulted, and is not in a Capacity to be Appearand Heir.  
If a Forfaulted person have Children that are ante nati; Whether or not will they be prejudged by their Father's Forfeiture: as to any Capacity or Estate belonging to him? Whether will they succeed to their Grandfather or any relation upon the Father's side;  their Blood is corrupted and they cannot represent their Father being nullus as said ?  
A person having Married an Heretrix, and being thereafter Forfaulted, Quaeritur, If the Blood of the Children be so tainted and corrupted That they cannot succeed to their Mother? 2do. If the Mother should not dispone in her owned Life-time; Whether her Estate will fall to the King by the incapacity of the Children, being her appeirand Heirs?  
An Heretrix being Wife to a forfaulted person, If als long as he liveth the King will have right to the Nails and Duties Jure Mariti? 2do If she may dispose of her Estate without his Consent seeing he is nullus in Law: And yet is her Husband, the Marriage not being dissolved with the Forefaulture?  
A Father having Disponed his Estate to his Son, with Reversion and power either to Redeem or Dispone; Quaeritur, If the personal faculty may, notwithstanding, be comprysed during the Father's Life; and may be used even after the Death of the Father? There is the same Question as to Forefaulture.  
A Woman being Heretrix of Lands in Scotland; and the same being Tailʒied to the Heirs of her Body, whilk Failyieing to certain other Heirs: with the ordinary Clauses irritant that she and they should not have power to prejudge the Tailzie; Quaeritur. If her Husband being Forefaulted, the Blood be so corrupted that her Children cannot succeed, and if their Interest of Succession will fall to the King?  
If a Tack set for an Onerous Cause and for payment of Debt; will prejudge the Donator to the Forefaulture?  
The Creditor having an Action of Reduction competent to him for Reduceing an Infeftment as being in defraud of him; if thereafter the Debtor should be Forefaulted, and the Creditor reduce the said Right; what way shall he be Infeft; seeing he cannot comprise or Adjudge; the Debtor being Forefaulted?  
There being a Minute of Contract anent the selling of Lands, and the Buyer being thereafter Forefaulted; Quaeritur, If the King or his Donators will have Right to the said Minute in the same manner as the Buyer? or if the Seller can raise a Declarator to be free of the Minute? Seeing albeit where there is a clear Right and Interest belonging to a person Forefaulted, the same will pertain to the King; yet when a Bargain is only in fieri, and there are divers obligements upon the part of the Forefaulted person, the Seller ought not to be in worse case, and in place of a Subject have so powerful an Adversary. The Earl of Terrace, and the Heirs of Walter Riddel.  
The Laird of Cesnock having acquired from Castlemaines' the Barony of Castlemaines', but not being Infeft but base before the Forefaulture, Quaeritur, If by his Forfeiture, these who had Rights holden of Castlemaines' not confirmed by the King will be in any hazard? Answer. It Is thought not:  any Right Cesnock had to the said's Lands, was not as the King's Vassal: In which case the subaltern Rights would have fallen; and Castlemaines' remaining the King's Vassal, Cesnock had only the Right of property holden of Castlemaines': And as to Castlemaines' Right holden of the King, Cesnock had only Jus ad rem by the Contract or Disposition; so that thereby the King by the Forefaulture may come to Castlemaines' Right, and force him to denude himself of the same; but it cannot be said that the said Estate came in the King's hand by the Forefaulture of a Vassal.  
Sempronia having Right to certain Lands which are parcels of a Barony Feved to her Authors by the Earls of Argyle who held the same Feu of the Arch-Bishops of St. Andrews; who did confirm the subaltern Rights granted by the saids Earls: Quaeritur, Whether the said's Lands belonging to the said Sempronia do fall under the Forefaulture of the Earl of Argyle, notwithstanding the confirmation granted by the Bishops: In respect the saids Rights are not confirmed by the King?  
In Answer to the said Querie, It is thought, that the said's Lands do not fall under the Earl's Forefaulture, for these Reasons.  
1mo. The Earl of Argyle did Forefault only what did belong to himself, Nam noxa caput sequitur; and the said's Lands did not belong to him in Property, but only in Superiority: And there is a difference betwixt the said case, and the case of Lands holden immediately of the King himself; which by the Forefaulture of his Vassal are Forefaulted; and does return to the King as he did give them pure and free, and without the burden of any other Right granted by the person Forefault, but such as the King did consent to and confirmed: Whereas in the case in Question, The said Earl did not hold the foresaids Lands immediately of the King but of the Archbishop, who stands still His Majesty's Vassal: And as his own Right is not prejudged by the said Forefaulture, so the Right of the sub-Vassal consented to and confirmed by him, is not prejudged by the said Forefaulture.  
2do. Lands holden of the Bishop waird, or which would fall in his hands upon Recognition or otherways by the deed of the Earl of Argyle, being Disponed by the Earl to be holden of himself; will not recognosce by the Earl's Deed in Disponing the Superiority or otherways, if the Bishop had confirmed the Subvassals Right; And there is the same reason in the case of Forefaulture, in respect by the common Law when Lands do fall and are confiscate, they fall to the immediate Superior: And by our custom in the case of Treason the King has that Privilege, that the Lands which are Forefaultare Confiscate and Forefaulted to him; because the Crime is committed against him. And therefore the Lands holden of other Superiors do Forefault to the King, no otherways than they would belong to other Superiors, if the Forefaulture did belong to them; In which case the confirmation of the Subaltern Rights by the immediate Superior of the person Forefaulted, would save the Subaltern Rights that they could not fall under Forefaulture.  
3tio. By the Law and Custom of the Kingdom it is lawful Subinfeodare; and albeit it may be pretended that if the Bishop had not confirmed the Fews granted by the Earl of Argyle they would have fallen by his Forefaulture though lawful ab initio, seeing res devenit ad aliam causam & resoluto Jure dantis resolvitur jus accipientis: Yet in the case of confirmation by the Bishop, there is a great difference; seeing the Subaltern Right doth not only depend upon Argyl's Right so that it falleth with it; but has another Foundation whereupon it does subsist; Viz. The Bishop's own Right and the confirmation granted by the Bishop; and specially in this case, seeing it appears by the confirmation that the same is granted not to gratify the Subvassal, and to prevent prejudice to him by the Forefaulture of Argyle if it should fall out, but in order to the Bishop's own Interest and Advantage; In respect by the confirmation there is reserved to the Bishop, beside the Feu-duty payable to Argyle, a Feu-duty to himself and his Successors; with a Clause irritant if it be not paid: And fictione brevis manus, the Fevar is in the same case as if the Bishop ab initio by one Charter had Disponed the said's Lands to the Earl of Argyle in Superiority, and to the Fevar in property for payment to the Earl of Argyle of the Feu-duty mentioned in Charter, and to the Bishop the said other Duty: In which case Argyl's Forefaulture could not prejudge the Fevar of the Right of Property granted by the Bishop himself, nor the Bishop of the said Additional Duty.  
4to. By the Acts of Parliament K. Ja. 2d. and K. J. 4. anent the setting of Feves and by custom ever since, The setting of Fews was so speedful and  in order to the policy of the Kingdom; That Vassals are not only allowed but invited to set their Lands in Feu; which in effect is a general confirmation of all Fews; so that the Fewers should not be in hazard either by the Waird or Nonentry or by any Deed or delict of their Superior; but should be liable only to pay their Feu-duties to these who should have Right upon occasion of the same: and the said Barony being of a large and vast bounds, albeit it was Fewed to the Earl of Argyle; yet for the labouring and bringing it in, it was necessary to set it in parcels to other Fewers holden of him: and the Fews in Question are granted before the Year 1606.  
A Subvassal holding of a person Forefaulted, and his Right not being confirmed either by the Forefaulted persons immediate Superior, or by the King, Quaeritur, If his Right will fall under the Forefaulture? Ratio Dubitandi; Licebat infeodare, & noxa caput sequitur: and yet is thought it will fall under the Forefaulture; Because resoluto jure dantis etc. And though it be lawful to grant Sub-altern Rights yet it is always cum sua causa.  
A Superior being Forfaulted, and his Vassals Right not being confirmed, and so falling: Quaeritur, If His Majesty should confirm the Vassals Right, if that will be habilis modus to secure against a poster or Donator? Ratio Dubitandi; The Vassals Right being altogether extinct by the Forefaulture, there is nothing to be the subject of a confirmation, which cannot be of non entis; and the Vassal should have obtained a Gift upon the Forefaulture. And contra, The Vassals Right not being null of itself, but such as could not prejudge the King when Lands return to him by the Forefaulture of the Superior, because he did not consent to the same; his consent thereto at any time may convalidate the Right before Jus be quaesitum to a Donator.  
If, after Forefaulture His Majesty having granted a Remission, the person Forefaulted is redintegrated to his Estate, as if the Forefaulture had not been: or if he should take a new Right upon the Forefaulture?  
When a Forefaulted person has Right to succeed to any other person as Heir; so that not only his own Estate but what would belong to him if he had entered Heir, would fall to the King by his Forefaulture; Quaeritur, will the King be Liable to the Debts of the Defunct; seeing he does not succeed to the Traitor's own Estate and Patrimony, but in haereditatem quae est nomen universitatis, both as to the Debita and Bona: and there is no reason that the Defuncts Creditors should be prejudged, unless they had been in culpa either themselves or their Debtor.  
His Majesty having presented, upon Forefaulture, a Vassal; If that Superior should be thereafter Forefaulted; Quaeritur, If the Feu not being confirmed, will fall under his Forefaulture? Ratio Dubitandi: The Fever is in the same condition with other Subvassals; so that if he do not apply for confirmation he is liable to the same hazard. And yet on the other part it may be thought, that the reason why Confirmation is necessary is, because when Lands return to the King they return as they were given free of all Rights and Burdens, but such as the King did consent to; which doth cease in this case; seeing the King is not only Consenter to the Subvassals Right but is Author by the presentation.  
A Person having committed Treason, and thereafter his Kinsman to whom he might have succeeded, being Deceased, Quaeritur, If that Defuncts Estate will fall to the King, or go to the next Heir? Ratio Dubitandi: That there seems to be a difference, betwixt the case in the fifth Question of the Title Heirs, when a person being Appearand Heir, and having haereditas delata before he commit Treason, the same should fall to the King; seeing he was Haeres habitu, and had jus radicatum in his Person before his Treason, and therefore Forefaults the same to the King. Whereas in this said other case, when the Succession fell, the Traitor could not have any Right in his Person being nullus and incapable of Succession: So that it cannot be said that he is Legitimus and propinquior haeres.  
A Person holding Lands Ward of the King did give an Infeftment to be holden of himself Blensh, and the same being confirmed by the King, the granter was thereafter Forefaulted, so that the Subvassal did come to hold of the King: Quaeritur, Whether he will hold as he did formerly, or Ward as his immediate Superior did?  
A Person being Appearand Heir both in Land and Heretable Sums, but not being served Heir; And being Forefaulted after the Decease of his Predecessor: Quaeritur. If he doth Forefault not only the Lands but the said other Heretable Estate? Answer. It is thought there is a difference betwixt Lands, and any other Heretable Estate; seeing the Appearand Heir is obliged to enter to his Lands to the Effect the Superior may have a Vassal Liable to Service or other Duties; so that his not entering is delictum, vel quasi; and the Lands are in Nonentry: And he is in the same case in Relation to the Superior, as if he were entered: Whereas, as to any other Heretable Estate, he needeth not own or claim the same but if he pleases; and he cannot have Right unless the same be settled upon him by a Service: and consequently cannot Forefault that which is not his. Vide supra, in the Question concerning Cesnocks Forefaulture.  
A Band being granted to an Englishman, but bearing Registration in Scotland; and being granted by a Scotsman: If the Person Creditor be guilty of Treason, whether it will fall under Forefaulture in England, or Scotland?  
Cum essent Sempronio duo filii, Primogenitus patre adhuc vivo perduellionis damnatus fuerat; postea patre mortuo, utroque filio superstite (nam perduellis fuga se subduxerat) de haereditate patris ambigitur an ad primogenitum & ex ejus persona ad Fiscum pertineret? Nam Jure civili quod indigno aufertur fisco quaeritur: & Jure nostro haeres apparens, Majestatis damnatus, nedum sua sed bona haereditaria & praedia quae sua forent, si adita esset haereditast, amittit & ad fiscum transfert.  
Sed distinguendum, Et multum interest, an filius, praemortuo patre, crimen postea admiserit; an vero (ut in casu praedicto) ante patris obitum Majestatis reus & damnatus sit: priori casu cum primogeniti persona adhuc integra sit, confestim a morte patris dies cedit & haereditas ei delata est; adeo ut qui etiam patre superstite haeres fuerat in spe, Jam incipit haeres esse habitu & spe certa & radicata, cum libuerit actu & aditione haeres futurus: si igitur postea maximam capitis diminutionem patiatur, haereditas ipsi delata & jus succedendi infiscum transit: altero vero casu, filio ante mortem patris damnato, haereditas patris morte nec delata est nec deferri potuit, utpote poena servo, & qui in jure nullus, nec personam habeat in qua successionis jus radices agere queat: his consequens est, fratrem juniorem patri haeredem fore; quia absurdum esset patrem a crimine alienum, & forte tam suis quam familiae meritis commendatum, ex delicto filii nihil amittere dum viveret (noxa enim caput sequitur) morientem autem tum bona tum familiam & memoriam perdere: nec perduellis aut fisci melior debet esse conditio, quod damnatus poenae se substraxerit: & extra quaestionis aleam est, secundogenitum patri haeredem futurum primogenito patri praemortuo.  
2da. In ista specie facti suboritur quaestio, viz. si venia data restituatur primogenitus, an frater desinit esse haeres? Et quidem distinguendum est, 1mo. An cum restituitur, haereditas integra & ex asse adita sit, fratre ex inquisitione haerede renunciato, & in omnibus quae patris fuerant praediis investito (cum enim terrae in haereditate sunt, ante investituram haud censetur esse aditio) isto casu restitutio quae est ex gratia nemini nocet nisi concedenti; nec adimit jus fratri quaesitum: & quod rite constitutum & quaesitum est haud corruit etsi casus evenerit a quo incipere non poterat.  
2do. Sin restituatur primogenitus, haereditate nondum ullatenus adita; eo casu quia res adhuc est integra & sublato obice per restitutionem, qui oberat ne haeres esse possit; incipit haeres esse habitu & aditione actu haeres erit.  
3tio. Haereditate partim adita partim non, fratre in quibusdam terris investito in quibusdam haud sasito; novissimo isto casu frater in iis quidem terris in quibus investitus est haereditatem retinebit; in reliquis primogenitus haeres erit: tantum adeo discrimen est inter jus inchoatum & id quod penitus consummatum & quaesitum est: Multa enim cadunt inter calicem supremaque labra.   

Forisfamiliation.  
QVaeritur, If the granting of a Provision to a Child importeth Forisfamiliation; so that the Child cannot claim a Bairns part? Or if it be to be considered what the subject of the Provision is? Viz. Whether it be Heretable or Movable:  in the first case it seems that the Provision being out of a different Subject should not exclude from a share of Movables? David Scot Son to Walter Earl of Buccleugh.   

Funeral Charges.  
IF Funeral Expenses should be deduced as a Debt off the whole, or only off the Deads' part?  
If the Funeral Charges for Burying the Husband, should affect the whole Movable Estate, or the Deads' part? Answer. It should affect the Deads' part; seeing it is not a Debt contracted during the Communion: And the Deads' part cannot be used or employed better than to Bury him.  
If the Funeral Charges should be deduced in Relation to the Quot, so that the Quot should be only of the Deads' part free of the said Debt? Answer. It is thought, it should not be deduced, for the reason contained in the preceding Querie.    

G.  

Gestio Haeredis.  
IF an Appearand Heir meddle by entering to the possession of Lands, whereof the Defunct was in possession; but his Title is found thereafter to be void: Will his medleing import Behaviour & aditionem passive.   

Gift.  
THE late King having granted to a certain person the Gift of an Office at His Majesty's presentation; There is a Gift of the said Office granted to another person by one having Right by a late Gift to present to the said Office; notwithstanding that the person who had the former Gift ad vitam or culpam is yet Living and is not deprived: And it is now desired, that His Majesty should not only ratify the said late Gift, but that of his certain knowledge, proper motive, and by virtue of his prerogative he should give a new Gift of the said Office; Revocking and annulling the former Gift granted by the late King to the present incumbent; and giving power to the person to be presented by the New Gift, to enter presently to the Exercise and benefit of the said Office, by himself and his Deputes: And ordaining the present Incumbent to deliver up the Registers; and recommending to the Lords of Session to construct His Majesty's Gift with the greatest latitude that their Nobile Officium can allow: And containing a promise to ratify in Parliament.  
Quaeritur. Whether a Gift of the Tenor foresaid be according to Law? It is Answered, That the samen is altogether against Law and Form, for these Reasons.  
1mo. By the common Law there can be no valid Gift of an Office or place, unless the same be Vacant, and the manner of Vacation expressed in the Gift; seeing the Office belonging to another who has Right to and in possession thereof, the same is not in the hands and power of these who has Right to present, so that they may give the same. 2do. If it be pretended, that it may be taken periculo petentis, and that the Incumbent may be thereafter deprived or may decease; and that the Gift may be effectual in either of the said cases: Such a pretence is both against Common Law and our Practic; seeing it imports votum captandae mortis: And, by an express Act of Parliament, Gifts of Escheat should not be given before they fall by Horning: and there is the same Reason as to all other Gifts. 3tio. That a former Gift granted, by the late King, who undoubtedly had Right to give the same, should be revoked and Annulled without a previous citation of the person concerned; and without so much as a hint of any reasons why his Right should be taken from him; is a Stretch not only against Law and Form but against Humanity and Justice which is defined Jus suum cuique tribuere, & neminem laedere. 4to. That, what cannot be done in Law and Justice, should be desired to be done by virtue of His Majesty's Prerogative, is an Injury to so just a Prince; And it is of a dangerous preparative that His Majesty's Prerogative should be pretended for Favours to private persons, that are Unjust and Illegal. 5to. Whereas it is desired, that it should be recommended to the Lords of Session, to construe His Majesty's Gift, if it should be granted, and if there should be any Question upon the same; with the greatest Latitude that their Nobile Officium may allow; The said Desire and Stile is Illegal, and without any precedent; and should not be a precedent hereafter: seeing there aught to be no prelimitation upon the Lords of Session: And it is their Duty, and may be expected from them, that they will construe His Majesty's Grants according to Law and Justice: And their Nobile Officium; being as the Highest Judicatory, to do Justice according to Law, they have no Latitude to recede from the same.   

Gift of Escheat with Backbond.  
IF a Backbond do so affect the Gift of Escheat, that the Donator cannot Assign the same?   

Gifts of Forefaulture.  
Land's being Disponed by His Majesty, as being in his hand upon Forefaulture, conform to a certain Decreet of Forefaulture mentioned in the Right, with the Clause cum omni Jure; and the King having, the time of the granting the Disposition, Right to the Land as being in his hands for committing another Deed of Treason after the former; whereupon there was not a Decreet the time of the Disposition: Quaeritur. If the said former Decreet be taken away, whether the Donator will have right to the Lands upon the Supervenient Deeds, and new Decreet of Forefaulture following thereupon? Ratio Dubitandi, The said Right is upon a special Ground, & causa limitata limitatum producit effectum: And the Clause ●um omni Jure is only Clausula executiva; and is only to be understood of Inferior Rights to Nails and Duties, by reason of Ward, Nonentry or otherways; and not of the right of Property upon other Grounds. Swinton.   

Gifts of Recognition.  
A Gift of Recognition bearing Lands holden of the King Ward, to have been Disponed; but not specifying the same; or special as to the Lands but not as to the persons in whose favours the Disposition is made: if it will be valid?   

Gift of Ward.  
THE Superior having gotten a Gift of his own Ward, either to himself or to another for his behoof, gratis; Quaeritur, If the Sub-vassals may claim the benefit of the said Gift, and to be free of the said Ward? Ratio Dubitandi. That in effect the said Gift is a Discharge of the Ward; which being Discharged to the Superior is Discharged to the Subvassal, whose Property falls in Ward only consequentially: and on the other part, as the Superior and Donator to the Ward, may take advantage of the same both against the Vassal and Subvassals; the Vassal ought not to be in a worse case than another Donator.   

If Gifts of Ward and Nonentry prejudge singular Successors.  
THere are some Casualties which are Fruits of Superiority, and have Tractum temporis as Ward and Nonentry etc. And these being Gifted will be effectual, during the whole time of their endurance; as to the Granter and his Heirs: But there may be question as to singular Successors; Whether the Donator will have right to the Ward and Nonentry, for Years after the Giver is denuded? Ratio Dubitandi; That resoluto Jure dantis resolvitur jus accipientis; and such Gifts are of the nature of Assignations to Nails and Duties, which are not effectual but during the Right of the Cedents: And the Ward and Nonentry do belong to the Superior by reason he wants a Vassal to serve him; and the singular Successor having that prejudice, he ought after his Right to have the benefit of the Casualties. Vide Liferent-Escheat. Quaest. 7. in Lit. E.   

Goods belonging to the Rebels at the Horn.  
A Creditor having affected the Movables of the Defunct, by confirming himself Executor Creditor; and having got possession of the same whereby he is satisfied of his Debt: Quaeritur, If the same may be evicted from him by a Donator to the Defuncts Escheat? Answer. It is thought, they cannot be evicted: , in favorem commercii, Goods belonging to Rebels may either be Disponed and given by themselves in payment of their Debt, or poinded or otherways affected, before Declarator and Diligence, done by the Donator to affect the same.   

Grana crescentia.  
WHat is the reason for the astriction of Grana crescentia? Answer. Fevers are in effect Coloni and perpetual Tacksmen; And they ought not to be in better case than Tenants, whose Grana crescentia were upon the matter thirled, the Food and Expenses of Labouring being deduced, it is thought the Tennent will have no more than will entertain him.   

Great Seal.  
A Gift of the Estate belonging to Bastards or Forefaulted persons whereupon there was no Infeftment, being granted under the Great Seal, Quaeritur, will it be valid? Ratio Dubitandi, The ordinary way of passing such Gifts is under the Privy Seal.    

H.  

Heirs.  
A Child being served Heir to his Mother, and thereafter the Child's Father being served Heir to the Child; Quaeritur, if he can be said to be Heir of Line to his own Wife, and aught to be discussed before other Heirs?  
A Woman being Married to a Bastard, and having a Child, Quaeritur, as the Child will succeed to the Mother, whether the Child having no other Heirs, his Father being a Bastard; (so that he cannot have any Cognati upon the Father's side) will his Mother be Heir to him? Ratio Dubitandi, That by the Common Law the Mother does succeed; and as the Child does succeed Ratione Cognationis and Relation to his Mother, it seems that for the same reason she should succeed to him, the Relation being mutual.  
Quaeritur, If a Son of a former Marriage having Right to succeed by Substitution, in the case where the Father provided Lands to the Son of a second Marriage, and the Heirs of his Body: Whilks Failyieing to the Fathers other Heirs and Assigneys, for implement of his Contract of Marriage: There being no other Children of the second Marriage, must he be Heir to his Father; the substitution being (as said is) in favours of the Father's Heirs? Ratio Dubitandi, That in many cases the word Heir to another person than the person De cujus successione agitur, is to be understood haeres habitu vel potentiâ, & non actu; As if upon considerations a Brother should pass by his Brother of purpose, and Failyieing his own Heirs should substitute the Heirs of his Brother's Body: But in this case it would seem by the Obligement of the said Contract of Marriage and the said right, he has intended that he should be represented himself, Failyieing the Heirs of his Marriage. Vide the tenth and eleventh Questions in the Title, Successor titulo Lucrativo, Litera S.  
If that should be the Construction; Quaeritur, Quid Juris, If the Son of the second Marriage should decease, the Father living:  the Son of a former Marriage cannot be served Heir to his Father? Cogitandum.  
Lands being entailed to divers persons substitute and the Heirs of their Bodies, whilk Failyieing to the other Heirs of Tailzie successiué, Quaeritur, If one of the said Heirs of Tailzie be Forefaulted before the Death of the person in Fee leaving descendants of his own Body, whether will the next Heir of Tailzie succeed? Ratio Dubitandi; Because the next Heir who would succeed, Failyieing the Forefaulted person and the Heirs of his Body, cannot be said to be proximus; seeing the Children of the Traitor are nearer: And though they be nulli and mortui civiliter they are not naturaliter nulli: So that they being incapable; and the others not having jus sanguinis; it may appear quod nullius est pertinet ad Regem. It is thought, that the nearest of Kin should exclude the Fisk;  qui sunt nulli, they are not to be considered as to any effect; and especially in that which is odious and exclusive: And it is hard, that the Estate should be Forefaulted by the Crime of a person who had never Right to it.   

Behaving as Heirs.  
QVae Ratio, That the owning a Title of Honour, and sitting in Parliament doth not import Behaving as Heir; and yet the owning and intrometting with a Sword, or Armour, or any thing else will import Gestionem? Answer. That Creditors being to be satisfied out of the Goods and Estate belonging to a Defunct Debtor; If the Appearand Heir doth meddle with any part of the samen, Eo ipso adit passive, quia miscet se rei, which should be Liable to the Executors Execution: But a Title of Honour is not such an Interest, as could be any way Liable to the Creditor, and the Appearand Heir in owning the same non libat haereditatem.  
Quaeritur, If a Ratification by any Appearand Heir of a Right granted by the person he was to succeed to, being yet on Life; will import Gestionem? Ratio Dubitandi; That he could not be Heir nor Gerere during the Defuncts Life-time: And on the other part, the ratification is granted because he is Appearand Heir, and might question the Right: And as one may be Liable passive by accepting a Right in the Defuncts time, whereby he is Successor titulo lucrativo; so he may Behave by a Deed in the Defuncts time.   

Heir of Conquest.  
THere being three Brothers, and the middle Brother having an Estate and deceasing after the decease of his Elder Brother, who had divers Sons; and the Younger Brother being on Life, Quaeritur, Who will succeed to the middle Brother as Heir of Conquest? Ratio Dubitandi; 1mo. The Younger Brother being Heir of Line; and who would be Tutor to the Children of the middle Brother, if he had any; it may be doubted if there should be a representation in conquest; the Heir of Conquest not being properly Heir? 2do. Conquest ascending gradatim, whether would the Youngest or Eldest Son of the Elder Brother succeed as Heir of Conquest, being both collateral to the Defunct?   

Discussion of Heirs.  
A Person, having provided his Estate to his Daughter, with power to Dispone and Redeem, is obliged that if he should make use of that power in prejudice of his Daughter, he and his Heirs Male and Successors, in that Estate and Dignity, should be obliged to pay a certain great Sum of Money at the first term after his Decease: Quaeritur, whether his other Heirs or Executors, and not only the Heir Male, will be Liable to pay the said Sum, at the least in subsidium, The Heir Male being first discussed? Lauderdale and Lady Yester.  
Quaeritur, Quo ordine, A Successor Titulo Lucrativo should be Discussed? Answer. It is thought, that he should be discussed before the Heir of Tailzie, being in effect a general Heir: Unless Lands be Disponed to an Appearand Heir of Tailzie, in which case he should be considered as an Heir of Tailzie.  
When the order of Discussion is Renounced; If the Heirs of Tailzie or Provision may have recourse for their relief against the Heir general; who by Law is first Liable to the Debts: Albeit as to Creditors that order be Renounced?   

Heir and Executor.  
GIfts of Ward, Marriage, Nonentry, Do these belong to the Heir or Executor? Answer. They are in rem, and some has tractum, and therefore belong to the Heir.  
A Person being obliged by a Bond to Dispone Lands for a certain price, and the Creditor having charged upon the said Bond, and being content to pay the price, and in the interim the Debtor deceasing; Quaeritur, If the Creditor obtain a Decreet for implement against the Heir, whether the party bound to Dispone, his Heirs or Executors will have Right to the Price? Answer. It is thought, that the Heir will have Right; seeing there is no Sum due to the party bound; but if he Dispone, which is only in obligatione, the said Sum becometh due upon his Disposition; and is not due to any but to a Person who is to Dispone; and the Heir only can Dispone.  
If by Contract one of the Parties has Disponed and is obliged to Infeft in Lands; and the other is obliged to pay a Sum of Money as the Price. Quaeritur, If the Seller decease before the Disposition be fulfilled, whether the Sellers Heirs or Executors will have right to the Price? Ratio Dubitandi, The Heir only can fulfil, and therefore aught to have the Price; and on the other part, the Heir is Liable to fulfil by the Disponers' Obligement: But the Disponer having taken the Obligement to pay the price in favours of himself his Heirs and Executors, the Sum by the Act of Parliament should pertain to the Executors; And it appears that the Disponer, in place of his Lands, intended to have a personal and Movable Estate.  
What is the Reason of Difference betwixt the last and former case? Answer! In the last, there is a Movable Obligement for payment of Money: And in the other there is no Obligement upon the Creditor, but upon the Debtor to Dispone; But so that if the Disposition be made, a Sum is to be paid, which cannot be paid but to the Disponer's Heir after his decease, who only can Dispone, the Debtors Executors can have no right to the same; and it was in the Creditors option either to charge for implement or not, so that the Money was not in Obligatione but in Conditione or modo, If implement should be craved.  
When an Order of Redemption is used, and the Money consigned, and thereafter the person against whom the order is used deceases; Quaeritur, Whether the same will belong to his Heirs or Executors? Answer. It is thought, it should belong to the Heir, for the reason foresaid in the last Querie; Specially seeing an order of Redemption may he used against an Appearand Heir: And if that Appearand Heir should after Consignation decease, the Money could not belong to any representing him, who had no Right; and therefore it can belong to no other, but to the Heir, who should be thereafter Heir, and Infeft and should Renounce: And therefore it is thought, that the Money being the Redeemers Money, and upon his hazard until Declarator, it is never Money of the person against whom the order is used until Declarator; and then being his in specie is movable, and belongs to his Executors.  
If a Wadset be granted to a Man, and his Wife, and the longest liver of them two, and the Heirs of the Marriage etc. And an order of Redemption be used and declared against the Husband; and thereafter he decease: Whether in that case, the Money consigned will be heretable, and aught to be given up to be employed for the Wife in Liferent, and the Heirs in Fee? Answer Affirmative.  
A Bond being ab initio heretable by Obligement to Infeft, and Infeftment thereupon; And thereafter there being a Bond of Corroboration granted for the same Sum, but not heretable; bearing to the Creditor only his Heirs and Executors: Quaeritur, Whether the Sum be Heretable or Movable? Ratio Dubitandi, The same is due, both by an Heretable and Movable Bond; and the Movable Bond being Posterior seems to be a Novation of the former, & posteriora derogant prioribus. Et contra, the said Sum is due still upon Infeftment, and the subsequent Bond is only in accessorio; So that jus principale & primordiale is more to be considered, as to the question concerning the nature and quality of the Right.   

Heirs Male.  
A Father, his Eldest Son being Dumb, of purpose to exclude him, as being unable to manage, Doth by a Bond of Tailzie settle his Estate upon another Son, and the Heirs Male of his Body; Whilk Failyieing to his other Heirs Male; with a Provision, That his said other Son and his foresaids should be obliged to entertain the Elder Brother: And if the said dumb person should at any time have the Faculty of his speaking, he should succeed, and the said Bond should be void: Quaeritur, If the Brother who has got the Estate decease before the Elder, without Heirs of his Body; If the Elder Brother would succeed to him, as Heir Male? Answer. It is so evident, that it was intended, that the Elder Brother should not succeed, except in the case foresaid, if he should have the said Faculty of his speaking, And the said Tailzie being made of purpose to seclude him: It is thought, that he cannot succeed by virtue thereof; And his Heirs Males is to be understood his other Heirs Male, by the Dumb Person, who is excluded.   

Obligements, in Contracts, in favours of the Heirs of the Marriage.  
A Person being obliged by his Contract of Marriage, with a second Wife to resign certain Lands, for an Infeftment to himself, and the Heirs Male of the Marriage; and to employ also 60000 lib. for the Heirs of the Marriage; And his Eldest and only Son of the first Marriage being bound by a Bond granted thereafter, for implement of the said Contract of Marriage, in the same manner, as if he had been obliged by the Contract; And the Father having accordingly resigned, and taken Infeftment; and the Son of the second Marriage being Infeft as Heir of Provision, in the Lands provided as said is in favours of the Heirs of the said Marriage: Quaeritur, If the Son of the first Marriage, being after the said Contract Infeft in the Fee of the Fathers other Estate, will be Liable to relieve the Heir of the second Marriage, of the Debts contracted after the said Fee, as Successor Titulo Lucrativo; or being bound for his Father as said is: Upon that pretence, that his Father ought to perform the Obligements of the said Contract cum effectu; and to free the Heir of the second Marriage of his Debts? It is thought, that the Contract being once fulfilled by taking the Infeftment foresaid, and by employing of the said Sum; both the Father and his Cautioner, the Eldest Son, were immediately Liberate, the said Obligement being satisfied; The import of the same being, that the Son of the second Marriage should succeed as Heir in the saids Lands, but not that he should be free of his Debt: Or that being free, the Father could not Dispone the Lands for an Onerous Cause. But if the Father had Disponed the Lands, provided by the Contract, without an Onerous Cause, after the Elder Son his Fee; or had resigned of purpose, to defraud the Heir of the second Marriage; the Father would be Liable de Dolo, and the said Deeds reduceible: But the Eldest Son, being once Liberate, by implement, would not be Liable. Tweeddale contra Drumelʒior.  
There being Heirs General, and Heirs Male, and of Provision; and Heirs of a second Marriage, being provided by their Mother's Contract of Marriage to certain Provisions, whereunto they have Right as Heirs of Provision: Quaeritur, quo ordine will the Heirs of the second Marriage be liable to Debts and Discussion? Answer. It is thought, that they being Heirs upon an Obligement & quasi creditores, it would appear that they should be Liable in the last place in subsidium, all others being discussed.  
In Contracts of Marriage, The Husband being for the most part obliged to provide and resign his Estate, for Infeftment to himself and the Heirs Male of the Marriage; which Failyieing to his Heirs Male of any other Marriage; which Failyieing, the Heirs Female of his own Body, the Eldest succeeding without Division: Quaeritur, If the Husband should resign and take such a Right upon Resignation; but thereafter should resign in favours of other Heirs: Whether the Heirs of the Marriage may question the said alteration, and what way? Ratio Dubitandi, That an Heir is eadem persona, and cannot question the Deed of the Person whom he represents. Answer, He is not simply Heir, but Heir of the Marriage: And as to Obligements in his favours he is Creditor. 2do. It is thought, he may pursue a Reduction of the foresaid Deed, as being in prejudice of him as Creditor: or he may pursue the Heir of Provision by the posterior Right, for implement of the said Obligement.  
Quaeritur, When by such Provisions, there are other Heirs substitute to the Heirs of the Marriage: Whether the Husband may alter the Destinations as to the said other Heirs? And if he do, if they may question the Deed? Answer. It is thought, that the Heirs of the Marriage are only in Obligatione: And the other Heirs in destinatione mariti, which he may alter.  
A Person being obliged by Contract of Marriage to resign certain Lands in favours of himself and his Wife in Liferent, and the Heirs Male of the Marriage; whilk Failyieing, his Heirs whatsomever: And likeways being obliged, that what he should get by his Wife, by any Legacy, or Right. or Assignation in her favours, to secure and employ the same to himself, and her in Liferent, and to the Heirs of the Marriage; which Failyieing to his Heirs whatsomever: And he having accordingly resigned, and taken Infeftment, to him and her, and the Heirs foresaid: And a Sum of Money having fallen to her, and being uplifted and Discharged, both by him and his Wife, before Inhibition; and thereafter there being Inhibition upon the said Contract at the instance of certain Friends, at whose instance Execution is appointed to follow: These Questions do arise. 1mo. If notwithstanding the said Inhibition, he may Dispone the Lands? Answer. He may Dispone the same, being Fire: And the import of the said Obligement is, that the Right of Succession, as to the said Lands, should be secured to the Heirs of the Marriage, in case the Father should decease in the Fee of the same; so that he cannot provide them to other Heirs: But it is not intended thereby, that the Father should not have the Right competent to all Fiars: Viz. That they may dispose of the same, if their condition requires.  
Quaeritur, If he may at least Dispone the same without an Onerous Cause? Answer. It is thought not, seeing all Obligements should be understood, ut actus valeant & operentur: And though the Father be Fire, his Fee is by the said Obligement so restricted in favours of the Heirs of the Marriage, that he cannot, fraudulently, and to evacuate the said Obligement, Dispone without an Onerous Cause.  
If the Inhibition will be effectual as to the Sum e. g. of 10000 lib. neveremployed? Answer. It will be effectual as to the Wife: But as to the Heirs of the Marriage, there may be question. Ratio Dubitandi, That there being an Obligement, it ought to be once fulfilled by employment to him and his Wife, and to the Heirs of the Marriage: And on the other part, seeing notwithstanding the Inhibition he might have disposed of the said Sum, if it had been employed; there is eadem Ratio, if it be not employed;  his Condition may be such, that he cannot employ the same.  
If it be not to be considered, what truly his Condition is? And if it be such that he cannot employ the said Sum without Ruin; That he should not be obliged to employ it Dicis Causa to be thereafter uplifted? And if a Process may be intented against his Children, to hear and see it Found and Declared, that he should have power to Dispone notwithstanding of the said Inhibition and Obligement foresaid, both as to Lands and Money? Seeing if the Money were employed, he could, and might dispose of the same being Fire: And he is not in that Condition to raise the said Sum, and employ it. Watson of Damhead.   

Heirs Portioners.  
WHen Women succeed as Heirs whatsomever (v. g. Three Daughters) they succeed as Heirs Portioners, without any privilege of Primogeniture. Quaeritur, if the Three Daughters succeeding be deceased, leaving each of them Sons and Daughters: Will the Eldest Son of any of them exclude the rest of the Children, and be Sole Heir Portioner to the Grandfather? Ratio Dubitandi, As Primogeniture is introduced for the preservation of Families, which does not militate in successione Foeminea, Women being finis & caput Familiae; There aught to be no respect to the same in the second Degree, & nepotibus, as there is not in primo gradu in filiabus: There being utrinque eadem Ratio.  
Where there is a plurality of Heirs Portioners, and some of them become Lapsi: may the Debt be recovered in solidum, from these who are Responsal? Cogitandum.  
If a Barony descend to Heirs Portioners, will all have Right of a Barony?  
If any Superiorities belong to the Barony, will the Eldest only be Superior?   

Heirs of Provision and substitute.  
WHatever belongeth to a Defunct in Fee and Property (whether Land or any other Interest) the time of his decease, cannot be transmitted but to Representatives; or these who are instar haeredum, and bonorum possessores, as in the case of Lands provided to Bairns of the Marriage, the Bairns are in effect Heirs of Provision: And if Sums be provided by way of Substitution to another person, after the decease of the Creditor; the Substitute will be Liable to the Creditors Debt, other Heirs being discussed.  
Heirs of Provision being oftimes Strangers, and in re certa: Quaeritur, will they only be Liable secundum vires?  
If a Right of Lands be given to a person without mention of his Heirs; And Failyieing of him by decease, to another and the Heirs of his Body: Quaeritur, Will not the said person who is so substitute be Heir of Tailzie? And if it be so in Lands, why not so in Bonds granted to persons and Failyieing of them by decease to other Substitutes?   

Heirs of Tailzie.  
QVaeritur, If there be no Heretable Estate belonging to an Heir of Line, out of which the Executor may be relieved of heretable Debts: Will the Heir of Tailzie be obliged to relieve the Executor of such Debts? Ratio Dubitandi; Heirs of Tailzie are not properly Heirs, but Bonorum possessores; and Liable to Debts only in subsidium: whereas the Heirs of Line and Executors are properly Heirs: and the Heir of Line, if the Executry be great and more considerable than the Heretable Estate, may Confer: which is not competent to the Heir of Tailzie or Provision.  
The same Question may be betwixt an ultimus haeres and the Executor nominate of a Bastard Legitimate.  
Haereditas being successio in universum Jus; Quaeritur, Why is an Heir of Tailzie called Hoeres, who succeeds only in rem particularem, as Fundus? Answer. He succeeds in omne Jus talliatum, & non singulari Titulo; But as representing the Defunct in ea re: et non interest Whether there be any thing in haereditate quando haeres succedit eo jure; et majus et minus non variant speciem.  
If after a person has succeeded as Heir of Tailzie to a certain Barony, the same be evicted; whether will he be Liable to the Defuncts Debts? Ratio Dubitandi; semel haeres semper haeres, & sibi imputet that adit damnosam haereditatem: On the other part, the Heir having succeeded, and having contracted quasi aditione with Creditors; intuitu, that the said Land was to be his; the said quasi Contractus should be considered as ob causam datam & non secutam.  
Heirs of Provision and Tailzie, who are to succeed only in rem singularem, albeit Titulo universali: Quaeritur, If they will be Liable to the Defuncts whole Debt, though far exceeding the value of the Succession: Or if they should be considered as haeredes cum beneficio Inventarii; and should be Liable only secundum vires: There being no necessity of an Inventar, the subject of their Succession being only as said is res singulares? Answer. It is thought, that if one be served general Heir Male, without Relation to a singular Subject (as to certain Lands) he would be Liable in solidum: But if he be served only special Heir in certain Lands, he should be Liable only secundum vires.  
There being a Right made in favours of a Person as Heir of Provision of a great Estate; and in favours of another as likeways Heir of Provision of an inconsiderable parcel; Quaeritur, If the person succeeding almost to all the Estate will be considered as Heir of Tailzie, and will be Liable to relieve the other as Heir of Provision?  
When there are two Heirs of Tailzie in divers Lands, of which the Rent is not equal, but the one much disproportionable and less than the other; Quaeritur, If they will be Liable to the Debts equally, or proportionally?   

Quo casu, Heirs of Tailzie may be considered, as Creditors.  
ONe having Tailʒied his Estate by a Disposition to One and the Heirs of his Body, whilk Failyieing to other Substitutes; and by a Contract betwixt him and the Person to whom he Disponed his Estate, he having taken the said person obliged to do no Deed in prejudice of the Tailzie, but to preserve it inviolable: Quaeritur, If he the Disponer should make a Disposition notwithstanding; may the Heirs of Tailzie pursue Reduction of the same, as being made in Defraud of them, being Creditors by the said Contract?  
If after the said Contract is Registrate, the Heirs of Tailzie have Jus quaesitum: So that the Contracters cannot Discharge, or prejudge the same?   

Haereditas.  
OMnis haereditas quandocunque aditur, cum tempore mortis defuncti continuatur, Perez. Lib. 2. inst. tit. 14.  
Haereditas jacens sustinet Personam Defuncti. Ibidem.  
Si Haeres instituatur sub impossibili conditione; instituitur pure; & conditio habetur pro non adjecta. Perez. ibidem.  
Idem, Si institutio fiat ad tempus: habetur enim tempus pro non adjecto, & utile per inutile non vitiatur, Ibidem.   

Aditio haereditatis.  
ADitur haereditas, vel verbo, vel facto; verbo declarat (scilicet voluntate) se velle haeredem esse: Facto vero Gerendo pro haerede, & immiscendo, Dummodo sciat delatam ad se haereditatem: Regula enim est, Omnia quae animi destinatione agenda sunt, non nisi vera & certa scientia perfici possunt. Perez. Lib. 2. tit. 19  
Aditio haereditatis non requirit hodie solennia verba, ut olim Cretio. Ibidem.   

Haeres Contrahens.  
HAEres videtur contrahere cum Creditoribus & iis satisfacere debet.   

Repudiatio Haereditatis.  
QVi repudiavit haereditatem, non amplius ad eam admittitur: qui tamen a Creditore rite interpellatus est ut haereditatem adeat, & repudiat; non prohibetur eam adire quoad alios Creditores.  
Qui haeres institutus est sub conditione, ut non adire, ita non potest repudiare ante eventum conditionis: Regula enim est, Quod quis si habere velit habere non potest, repudiare nequit.   

Servus Haeres.  
INstituto servo haerede; eo ipso datur libertas sine qua haeres esse non potest, Perez. lib. 2. inst. tit. 14.   

Vltimus Haeres.  
IF a Donator by a Gift of Vltimus Haeres will be Liable to the Defuncts Debt personally Effeirand to the Estate? And if he be not, what course shall be taken to affect it?  
If such Universal Successors be Liable in solidum, (If they be found to be Liable Personally) unless they give up an Inventar? And what shall be the method of giving up an Inventar?   

Heirship Movable.  
IF a Son that is Forisfamiliat, and has a Family, will get a Movable Heirship by his Father? Ratio Dubitandi, He is sufficiently instructed, and aocomodated as Pater Familias: And e Contra, the other Children, though Forisfamiliat will be Executors, and Exclude him; and in that case there is no Reason, that all should be Executry, and the Heir Excluded.  
Whether a Coach and Cart will fall under Heirship with the Horses belonging thereto the time of the Defuncts Decease? And whether not only the Plough, but Oxen or Horses that goes in the same, will belong to the Heir?  
An Heretrix being Married, Quaeritur, If she may have a Movable Heirship? Ratio Dubitandi, That she is in Familia Mariti, and has none of her own? Lady Levin.  
Quaeritur, If a Jewel may fall under Heirship; upon pretence, that it is the Jewel of the Family? Ratio Dubitandi, Jewels are only Jocalia; and Heirship is properly Instrumenta fundi, or Domus: And in England are called Heir-looms.  
In Saxonia & finitimis regionibus peculiares quaedam species sunt in quibus proximus agnatus succedit; quas Heergewettam, vel res expeditorias vocant.  
Inter reliquas res, ad eum pertinet equus optimus cum ephippio viri mortui, gladius, optima armatura, etc. Besold. Thesaur. litera H. 33. Heergewettam.   

Money consigned for Redemption whether Heretable or Movable?  
MOney being consigned upon an order of Redemption, Quaeritur, If after Decreet of Declarator the same be heretable or movable? Ratio Dubitandi, That it belongs to the Creditor, and is movable, and as it were in Cash; which of its own nature is movable: And on the other part, Surrogatum sapit naturam surrogati, and as the Relict would have a Terce, so the Heir, who only can Renounce, aught to have right.   

Sums Heretable or Movable.  
A Sum being due by Contract, whereby the Buyer of Lands is obliged to pay the price; But so, that it is provided that it should be retained for payment of annualrent, until an infeftment of warrandice upon the Lands be purged: Quaeritur, whether the said sum be Heretable or movable?   

Homologation  
Sir William Ker having got a Right under the great Seal to debateable Lands upon the borders, wherein Ker of Cherrytrees pretended a Right and Interest and Property by a prior Gift; and Bennet of Grubet an interest of Commonty: The said Sir William Ker and Cherrytrees did by a minute oblige themselves to communicate their Rights, so that Sir William Ker should dispone to Cherrytrees his Right as to the part of the said's Lands Cherrytrees was in possession of; and that Cherrytrees and his Successors should be obliged not to question Sir William Ker his Right: Thereafter Cherrytrees offered to assign the said minute to Grubet: Quaeritur, whether or not the accepting of the said assignation would import an homologation of Sir William Kers Right, and a passing from Grubets Right: And if Grubet by the Obligement forsaid, would be obliged not to question Sir William Kers Right as to Grubets part of the said Commonty? Answer, That actus agentium non operantur ultra eorum intentionem; and Grubet did not intent to prejudge himself, but to better his Right and to be free of a plea; and he could not question Sir William Kers Right upon that which he was to have from Cherrytrees; But could not be barred to question the same upon his owned Right which he had not from Cherrytrees.  
A Tailzie bearing a clause irritant, That the course of Succession should not be altered, and that the Contraveener should Lose the Right; And the Heir of Tailzie in minority having resigned in favours of other Heirs that were not contained in the Tailzie, and being infeft upon the said resignation; Quaeritur, if the said Heir after majority continues to possess and to administer, and has granted Commission for doing other deeds concerning the Management of the Estate intra quadriennium utile, but before intenting of reduction Ex capite Minoritatis: Will he be thought so to homologat the said alteration, that he cannot question the same, and cannot be reponed against the committing of the said clause irritant? Answer. It is thought that the possession will not import homologation, seeing it may be ascribed to the former Right which cannot be said to be altogether extinct by the said other Right; the same being null at Least annullandum and reduceible. Vide Tailzie altered in Litera T.   

Horning  
IF a person charged may be Denounced year and day after the charge without a new intimation?  
If a Pupil may be charged and Denounced, and taken with Caption? It is thought not, seeing he can neither Velle nor Nolle, nor obey nor disobey.  
There is not Eadem Ratio as to Minors.  
If it may be objected against a Judge that he is at the horn, seeing Parties may be debarred from pleading as not having Personam; And there is the same Reason to debar Judges a Judicando?   

How far a Husband is liable for his Wife's Debt?  
seeing the Husband by his Marriage has Right Jure Mariti to all movable Estate belonging to the Wife; and acquires the same per Vniversitatem, as if she had made an Assignation and Right in his Favours. Quaeritur, Whether he will be liable to all her Debts, at least Movable; quia penes quem commoda penes eundem incommoda? At least if he will be liable peculio-tenus, in quantum locupletior factus est?  
If there be any difference betwixt a Husbands getting a Tocher, and when there is no Tocher but Jus Mariti? Seeing in the first case, he is a Creditor by Contract singulari Titulo: And in the other, he has right Titulo Vniversali omnium bonorum, which are understood Debitis deductis.  
If a Husband may be liable for his Wife's Debt, the Marriage being dissolved?  
Item, If after the Marriage is dissolved, any Debt come to his knowledge, that did belong to his Wife during the Marriage: Whether he might pursue for the same?  
How far the Husband will be concerned in his Wife's Debts, Actiué or Passiué?   

De Hypothecis, vulgo Wadsetts.  
LIcet tam instrumento alienationis quam Charta a Domino directo concessa terrae ipsae alienentur, Jus proprietatis nonnunquam haud transit; sed inferius, Hypothecae forte ceu impignorationis: Cum enim juxta regulam plus cautionis sit in re quam persona, aliquando praedia a debitore alienantur in majorem cautionem & securitatem ut loquimur. Hypotheca autem terrarum alia apud nos impropria dicitur, alia propria, nec minus ista, haec magis propriè est impignoralis. Pignus siquidem & hypotheca proprie datur, ut Creditori caveatur, non vero ut utatur nisi die solutionis adveriente, debitor in mora aut non solvendo sit: impropria vero Invadiatio ea dicitur, cum creditor praedii jus & investituram nanciscitur ut sibi tam de sorte quam usuris cautum sit, sed ea Lege ut praedii possessio penes debitorem remaneat, non jure proprietatis qua prorsus exuitur, sed conductionis: id fit pacto in Instrumento alienationis inserto, quo Creditor qui per alienationem Dominus et vasallus est, praedium ut suum relocat debitori, stipulatus annuam mercedem quae solennes et licitas pecuniae usuras haud excedit; addito etiam pacto de reversione seu retractu, seu redimendo, quando aut debitor aut creditor voluerit; aut prout convenit inter contrahentes: Hypotheca quae propria dicitur ea est, quando sciꝪ. praedium non tantum in Cautionem sed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alienatur; & tam terrae quam pecunia quasifunctionem recipiunt; ita ut pecuniae usus quaecunque sit ad Debitorem; praedii vero usus & possessio etiam naturalis ad Creditorem pertineat; sed sub modo & pacto de retrovendendo: Ex his varia nec levia emergunt Dubia.  
Inter ea est illud, si ex delicto Creditoris qui ex Investitura vasallus est, feudum ad Dominum Superiorem redierit; terris forte (si praedium militare sit) ultra modum licitum & semissem alienatis, aut alio delicto feudali, vel ex crimine laesae majestatis: An Dominus illud habeat ut optimum maximum, & quale ab initio charta originali ab eo aut ejus Decessoribus aut Authoribus profectum fuerat: vel tantum ut Hypothecatum aut Impignoratum, & Retractui & Juri reluendi obnoxium.  
Plerisque (ut arbitror) videtur Creditorem mulctandum jure suo tantum, salvo debitori ejus culpae haud affini jure suo & Retractu, cui Dominus Superior consenserat pacto isto de redimendo in ipsa charta inserto: & pro hac sententia stare videntur trita illa Juris Axiomata; Noxam caput sequi, Nec ullum facto suo sive ex facto sive ex delicto, plus juris in alium transferre posse quam ipse habet.  
Verumtamen acriore & fixo obtuitu penetrantibus & ut par est omnibus rationum momentis ultra citraque scrutinatis, Jurisconsultis adversa ut opinor placebit sententia, earum (quae sequuntur) rationum suffragio subnixa, siquidem illud quod agitur magis inspici quam quod concipitur, & actus agentium ultra eorum intentionem haud operantur: quicquid autem inter Debitorem & Creditorem agatur, id inter Dominum & Creditorem vasallum agitur, ut ex alienatione prioris vasalli isti is sufficiatur & ei vasallus sit, eodem nec alio modo aut jure quam prior, Dominio directo & ejus fructibus & compendiis salvis & illibatis: interea haud autem exiguum est, ut, ex Recognitione ob alienationem aut quovis delicto Feudali, Feudum domino commissum, ad Dominum remaneat quale ab initio fuerat, aut rediturum fuisset, si prior vasallus deliquisset: Nec praesumendum Dominum, pro laudemio quod in Hypothecis si non minus haud majus esse solet eo, quod pro alienatione simplice dependitur, Dominium suum ejusque fructus velle carpere aut imminuere.  
Accedit, quod pacta ista inter Debitorem & Creditorem, quoad Dominum sunt extrinsica; nec ejus jus aut Dominium directum sed vasalli & Dominium utile afficiunt: Quamdiu igitur Creditoris Jus & Dominium utile adhuc durat, pactis istis subjacet; eo autem sublato & amisso, pacta ista, quae ei inhaerent & accessoria sunt, cum principali evanescunt.  
Adhaec; feudo ex delicto Creditoris qui vasallus est Domino commisso aut ob Perduellionem amisso; vel praedium ad Dominum pertinebit, quale fuerat ante Hypothecam, aut jus tantum Hypothecae: Dici autem nequit Hypothecam Domino committi, ea enim est cautio in rem pro pecunia, & inanis & accidens esset sine subjecto, si Domini esset sine pecunia, quae, ut nunquam ejus fuit, ita demum redire nequit.  
Nec obstat illud, Neminem plus juris in alium transferre quam ipse habet; multis enim casibus Jus quod vasalli fuerat, sed facto suo imminutum, & vel servitutibus, vel Juri Retractus ab eo concesso obnoxium, plenius ad Dominum redeat, feudo ex delicto commisso.  
Nec magis officit, quod Dominus pactis istis videtur consensisse; ea enim non inter Dominum & Debitorem & Creditorem inita sunt, sed a contrahentibus ipsis apposita & chartae inserta ne personalia videantur; & ut afficiant vasalli jus ad quoscunque ejus successores perveniat; non vero ut imminuant aut laedant jus Domini directi; id ex ipso pacto de reversione ejusque verbis elucescit; eo enim cavetur praedium per Debitorem ejusque haeredes & assignatos redimi & relui posse, sed a Creditore ejusque haeredibus & assignatis in jus creditoris succedentibus; Dominio autem utili ex delicto caduco & extincto nillum jus superest creditori, in quod ejus haeredes aut assignati succedant; quodque ab iis redimi & retrahi possit; nec Dominus, vasallo ob delictum dominio utili privato, in id creditori succedit: Jus enim suum ex delicto amittit quidem, non autem transmittit nec amissum transferre potest: utque unaquaeque res ad naturam suam facile redit; ita plena proprietas, quae ante concessionem vasallo aut iis a quibus causam habet domini fuerat, eorum jure extincto ad dominum redit & reviviscit.  
Porro, si ex delicto Creditoris, qui solus in feudo & vasallus est, non committatur feudum ipsum quale a domino profectum fuerat; sequitur illud tum incommodum tum absurdum, Latifundia sciꝪ. & Baronias quae pro modicis pecuniarum summis in cautionem & Hypothecam impropriam dari solent, spreto domino impune alienari posse; debitore penes quem est jus reversionis illud cedente; ex ejus enim facto & alienatione nihil domino obvenit aut committitur, in quem nihil commisit aut deliquit jure suo usus, cum in feudo & sasina haud sit nec ulla inter eum & dominum necessitudo & obligatio interveniat, quae alienationem impediat.  
Ex supra dictis conficitur, in Hypothecis, vasalli jus quoad Debitorem pactis de retrovendendo & relocando substrictum & obnoxium esse; quoad vero superiorem liberum & solutum: & creditorem eodem quo alii vasalli jure censeri: nec queri potest debitor, cum creditoris fidem & conditionem suo periculo elegerit; & si locuples sit adversus eum pro damno resarciendo agere possit.  
Si haec sententia durior videatur, facile erit ejus rigorem emollire pacto de retrahendo, ita ut diserte caveatur praedium, nedum a creditore ejusve successoribus, sed & a Domino si ad eum pervenerit ex delicto creditoris, retrahendum; pecunia credita ei persoluta: sic domino scienti & volenti nec fraus nec injuria fiet.   

Tacite Hypotheck.  
QVaeritur, If a Tacite Hypotheck being not only of Fructus, but Instrumenta Fundi, Quid Juris in Grass-Rooms, where there is nothing paid but Silver?  
What is the effect of a Tacite Hypotheck? And if a Tennent should sell his Corn in a Mercat, may not the Master pursue Actione Hypothecariâ against the Buyers, who should know the condition of these with whom they Deal?  
The Heretor of Lands or Master having a Tacite Hypotheck for a Years Duty: Quaeritur, If the said Hypotheck be also well for the Stocking upon the ground, as of the growth and Increase?  
Quaeritur, If the Rests of divers Years amount only to a Years Duty; whether the Master will have any Hypotheck as to an Years Duty so made up? Or if it be understood only of the Rests of the immediately preceding Year?    

I.  

Immobilia.  
QVAE res inter Immobilia computentur? Thes. Bes. litera L. p. 597. ad finem.  
Poenae & mulctae non exactae immobilibus accensentur Ibid. Item servi ascriptitii, Ibidem.  
Munitiones cum castro consideratae tormenta & arma bellica, si testator res pretiosas in Familia servari jussit. Ibidem p. 597.   

Immobilia per applicationem & aliis modis.  
IMmobilibus accrescunt & accedunt mobilia variis modis; quod enim applicatione perpetua corporibus alterius naturae affixum infossum aut inaedificatum est, Immobile fit; nam mobile Immobili cohaerens Immobile censetur, Hering. de mol. quaest. 8. N. 18. & 19  
Per immutationem res mobiles sortiuntur naturam Immobilium, ex quinque causis. 1. Facto hominis, ut Affixione, Infossione, Adjectione. 2. Legis potestate & fictione, ut cum colonus ascriptitius aut mancipium rusticum glebae serviens pro re Immobili censetur. 3. Attributione seu destinatione, ut lignum ad aedificium destinatum inter Immobilia computatur. 4. Subrogatione ut, quibusdam casibus, pecunia. 5. Subjecto v. g. quando Jura nomina & actiones ad Immobilia competentes aut mobilia pro talibus habentur. Hering: de. molend. Ibidem. n. 20. & sequen.   

Imposition upon the Pint of Ale.  
QVaeritur, If the Gift of the Town of Edinburgh and other burgh's, of Two Pennies upon the Pint of Ale, or Two Marks upon the Boll of Malt, may be questioned by any concerned, upon that ground, that being a burden upon the People it could not be laid upon them, without consent of Parliament? Answer. It is thought, it may be questioned. 1. For the reason foresaid, being the fundamental of the Liberty of the People. 2. The whole Country is concerned, and has prejudice thereby, In respect that they who dwell within the Lothians, will suffer as to the price of their Bear; which will be less in consideration of the said burden of Two Marks upon each Boll, and consequently the whole Country will be prejudged; The price of the Bear in Lothian being the standard almost of the whole Country, Edinburgh being Communis Patria; And the Drink upon that occasion being both worse and dearer: And the Shires of Lothian having concurred they came, in end, to a condescendence, that the Town should be obliged never to desire the like: And it is thought, that the Gift, both in passing at the Exchequer, and ratification thereof in Parliament, was so qualified. 4. A Bond was given by the Town to that purpose to the College of Justice, and also to the Shires, and both were trusted to one of the Commissioners for the Shires to be keeped; and, it's informed, was given back by him viis & modis, 5. The pretence of Debts, and alteration of the way of living of the Magistrates is frivolous,  the Town ought not to Contract Debts, the Magistrates being only in effect Curatores; And the King could not lay a Burden upon the Country for payment of his own Debts; and the Debt of the Town is no less than it was formerly before the first Gift: and the Magistrates should not live upon what is given to the Town. 6. As to the pretence of his Majesty's Prerogative; it is against Law, and the common stile of the Chancery, which should not be altered; and His Majesty doth make use of his Prerogative to remit the rigour of Law, but not to give Illegal Grants, rei alienae, to prejudge and Burden others: And therefore such Grants are ever understood Salvo Jure, and to be periculo petentis. 7. The dispensing with the former Bond is of dangerous consequence; His Majesty's Prerogative being never against Justice; and for taking away the Bonds and Rights granted to the People, without their own consent: otherways there should be no security for Liberty and Property.   

Impositions of Burdens upon Shires.  
seeing Shires are not Incorporations, Quaeritur, If upon any Pretext whatsomever, The Major part may lay any Burden upon the Shire, or any part of it without their Consent?   

Impositions voluntary upon Shires.  
WHen any Charges for Banner, Trumpet, or Coat etc. for the Heretors, are to be paid, Quaeritur, Whether the same are to be paid viritim & per capita; or proportionally according to the Valuation? Answer. They are Personal and not Patrimonial: and are to be paid with respect to the persons, and not their Estates.   

Improbations.  
IF Pursuers of Improbations should consign? Of late some are of Opinion, That Consignation is to be made only when Improbation is proponed by way of Exception: But the Act of Parliament anent Caution in Improbations, in place of which Consignation is come, is clear as to all Improbations by way of Action or Exception.  
It appears, there should be a difference betwixt a general Improbation, at the instance of Heretors and Buyers, which is a Tentative used to try the condition of the Lands if they be affected with any latent pretences: And the case of special Improbations, and Improbations of certain Writes; and that in this case there should be Consignation; but not in the other: unless upon Production, a particular Right be taken to be Improven.  
When in Improbation Writes are produced, and certification craved contra non producta; and it is alleged that the Defender has produced sufficiently to exclude the Pursuer: Quaeritur, If notwithstanding certification should be granted? Answer. By the late Practic the Lords are in use to hear the party's debate upon the Right: which is thought hard, seeing if the Defender be confident of the Right he has no prejudice by granting the Certification, and having gotten long terms he ought to produce all Writes called for:  Improbation est processus tentativus, and in order to try the Defenders pretence, and not to debate a Right.   

Impugning the Authority of Parliament.  
BY an express Act of Parliament, The Impugning the Authority of the Parliament consisting of three Estates, is Treason. Quaeritur, If the misconstrueing, or Impugning the proceed of the Parliament, if they amount to Treason? Answer. There is a difference betwixt Impugning Authority, and Proceed of Judicatories; seeing Judges may have an unquestionable Authority, and yet their proceeding may be questioned: And Papists, and Heretics cannot controvert the Authority of Parliament, and yet may be dissatisfied with and misconstrue the proceed of the same: Which practice, though Criminal, doth not amount to Treason. Traquair. Item, The Earl of Argyle.   

Incendiarium.  
INcendiarii. vide in Thes. Bes. Lit. M. 72. p. 647.   

Incorporations.  
IF a College or Corporation, being in Law a Body, may Forefault the Rights of the Corporation, and in what case? Ratio Dubitandi, Magistrates are only Curators, loco Curatorum; and the University never Dieth; and Bishops, and such other sole Corporations, though they commit Barratry, do not Forefault in prejudice of their Successors.  
When a Town or Incorporation, that has Power to Contract Debts, do grant Bond obliging the Magistrates and their Successors, and bearing Horning and other Executorials, Quaeritur, If succeeding Magistrates may be charged with Horning? And if they be denounced, will the Escheat of their own Movables fall, or only of Movables belonging to the Town? Ratio Dubitandi, Officium nulli debet esse damnosum; and they are not bound themselves personally, but only they and their Successors in officio in behalf of the Corporation: And on the other part, if they should not be Liable, the Execution would be elusory: and though it is not just that they should pay such Debts out of their own Estate, yet they are liable to pay the same out of the Estate of the Corporation: and if they cannot raise so much for the time, out of that Estate; they should Suspend, and make it appear, that they are neither in mora nor in culpa.  
Quid Juris, As to Comprysing or Adjudication as to such Bonds? Whether it should be only of the Public Estate, or of the present Magistrates likewise? Specially after the Letters are found orderly proceeded, upon a Suspension discussed against them.  
After the Magistrates are denounced and Year and Day at the Horn, Quid Juris, as to the Liferent Escheat, whether will that of the Town fall? and how long their Liferent shall be thought to endure? Or if the Liferent of the Magistrates, and each of them will fall?  
If the succeeding Magistrates may be charged summarily, and if they be Denounced will their own Escheat fall?   

Infeftment of Annualrent.  
Land's being affected with two annualrents to divers persons, and being comprised for the bygones of the first; Quaeritur, If after the expireing of the Comprysing, the Compryser (the Lands being sufficient to pay both annualrents) will be Liable to the second Annualrenter? Seeing the Lands were affected therewith the time of the Comprysing: And though the first annualrent was prior, the Debtor did no prejudice to give the second; the Lands (as said is) being able to pay both.  
If the second Annualrenter may redeem?   

Base Infeftment.  
LAnd, holding Feu, being disponed to be holden either of the Disponer or of the King; And the Disponer being obliged to infeft by two Infeftments, the one to be holden of himself Blensh; and the other of the Superior as the Disponer held: Quaeritur, If the Buyer think fit to hold of the Disponer and does not make use of the Procuratory; Whether during the time that he continues to hold of the Disponer will he be liable to relieve him of the Feu-duty?   

Infeftment in a Right, both of Property and Annualrent.  
A Sum of Money being lent, and thereafter (for further security) the Debtor having granted a Disposition, whereby he is obliged to infeft the Creditor in an annualrent out of certain Lands; And likeways to infeft him in the property of the Lands (being extended to a twenty pound-land) for security both of the principal Sum and annualrent; So that he might have Recourse both to the Lands and Possession of the same; until he be satisfied, both of the principal Sum and bygone Annualrents: And that by two Infeftments under reversion: and that he may have recourse to either Right as he should think fit: and though he should make use of either, that he should not be precluded, but make use of the other also oft as he thinks fit: which Right is granted by a Charter and Season following upon the same. Quaeritur, There being a Nonentry of the Creditor; whether before Declarator, the Retour-Duty of the Lands, or the Annualrent of the Sum (being one hundred pounds sterling Yearly) will fall and belong to the Superior? Seeing the Annualrent valet seipsum. It is Answered. That it is thought, the Right being instar Hermaphroditi, and neither properly a Right of Annualrent nor Property, and yet both, It is thought, that in Law (as a Hermaphrodite is repute to be sexus praevalentis) so in this case Jus proprietatis trahit ad se Jus inferius: And it being the Design of the Creditor, to secure both the principal Sum and Annualrent, and that the Debtor should continue in possession (and in Wadsets improper, where the Debtor is to possess either upon a Back-tack, or otherways, the Annualrent is not Debitum fundi) It is therefore intended that there should be a Right of Property; But so that the Annualrent should be secured in manner foresaid: As if in a Right of Wadset with a Back-tack, it should be also provided, that the Back-tack Duty should be Debitum fundi, and that it should be lawful to the Creditor to poind the Ground for the same, as if it were secured by an Infeftment of Annualrent.   

Infeftment for the use and behoof of another.  
IF a Right be granted to the use and behoof of another, will the Right Forefault by the Treason of the Vassal, in prejudice of him to whose use it is? de quo vid. Wadset Heretable or Movable, Let. V q. 4.  
And farther if the Vassal be Year and Day at the Horn, whether will his Liferent fall in prejudice of the Vsuarius? And if the Vsuarius be Year and Day at the Horn, whether will his Liferent fall to the Superior or not? Ratio Dubitandi. That Vsuarius is not Vassal, and yet has real Interest out of the Lands holden of the Superior.   

Conditional Infeftments.  
A Mother, being debarred from her Jointure many Years, upon occasion of Incumberances, and upon that Ground being Creditrix to her Son for a considerable Sum of Money; and likeways out, of respect to her Son, having taken a Right to a Comprysing for certain great Sums, Did Assign to her Son (being the only Son of her Marriage with his Father) both the said's Interests, to himself and the Heirs of his Body, whille Failyieing to herself and her Heirs; with a provision that he should not have Power to alter the said Destination; and if he should alter the same, the Assignation should be void: But the Son, having made no use the said Comprysing, and there being no Infeftment thereupon, is Infeft in the Estate as Heir to his Father, Quaeritur, What way his Mother and her Heirs may be secured, so that the said provision may be effectual to them, in case the condition exist by the Failyieure of the Heirs of his Body? Answer. It is thought, that the Son should give her a Bond, making mention of the Mother's favour to him, and of the said Substitution and provision, and that it is just it should be made effectual to her in the case foresaid, if it should fall out; and that by the Assignation her Right is Liquidate in the case foresaid, to 40000 Marks, to be paid to her and her foresaids: Therefore, without prejudice of the said Assignation and Provision, he should be obliged and his other Heirs succeeding to him in his Estate, Failyieing Heirs of his Body, to pay to her and her Heirs the Sum foresaid at the first Term of Whitesunday or Martinmass after the existence of the said Condition, and the Failyie of the Heirs of his Body: And for her better security he is to be obliged to Infeft her, and her foresaids in an Annualrent effeirand to the said Sum out of his Estate, beginning the first Terms payment, at the Term of Whitesunday or Martinmass after the Failyie of Heirs of his Body in case they fail; with this provision, that in respect the said Infeftment is not to be effectual, but in the case foresaid, it shall not be prejudged nor questioned upon pretence of any length or lapse of time or Prescription: And that the same shall not Commence or begin to run, until the said Right become effectual in the case foresaid.   

Public Infeftments.  
IF an Annualrent to be holden of the Disponer, be confirmed by the King: Quaeritur, If that Confirmation will make it public?  
If an Annualrent be Disponed out of divers Lands, to be holden of the Granter; and a Decreet of poinding of the Ground be got as to some of the Lands, will it make the Right public as to others?   

Inhibition.  
INhibitions upon Bonds or Contracts, if they import only, that nothing should be done in prejudice of the same and execution thereupon? So that the person having reduced upon the Inhibition, cannot make use of the same to sustain any Right, but such as Depends upon the Ground of the Inhibition?  
Both the person Inhibited, and the person receiver of a Right being out of the Country the time of the Inhibition: Quaeritur, If the Right be Liable to Reduction? Ratio Dubitandi, Both the Inhibited and the party Receiver should be certiorated, and put in mala fide: And as the Person Inhibited is not certiorate, if he be out of the Country, if the Inhibition be not Execute at the Peer and Shoar of Leith, so there is eadem Ratio as to the Liege's.  
An order being used upon a Conventional Reversion or Legal, against 〈◊〉 Person Inhibited: Will the Inhibition affect the Renounciation granted by him; seeing he may be forced to give it, and it has Dependence upon a Right before the Inhibition?  
If an Inhibition being Execute against the Debtor only, and being in cursu only as to the Inhibiting the Liege's, where the Lands lie being at a great distance; and Intimation in the mean time to the party who is about to bargain with the Debtor; will put the said party in mala fide; So that there may be a Ground of Reduction, Ex capite Inhibitionis against the party Inhibited; and that the said Right is fraudfully made and accepted, without a necessary cause, in defraud of the Creditor, and after intimation of his Diligence?  
A whole Barony of Land being affected with an Inhibition, and being thereafter Disponed in several parcels to divers persons: If one of the said's purchasers should be distressed by a Reduction ex capite Inhibitionis may he have recourse against the others for their proportional parts, for his Relief they being in rem correï debendi? Vide Annualrent Quaest. 1ma.  
If after an Inhibition is Registrate, and Forty Days are past; if the Creditor getting notice that his Debtor has Lands within other Shires, may inhibit the Liege's there, and Registrate within Forty Days? And if in that case the Debtor must be himself again certiorate?  
By a Minute, an Estate much encumbered being Disponed; and the price being agreed upon at a certain rate per Chalder or 100 Marks, But so that the Incumberances should be purged by the price pro tanto, and any Ease by the Creditors should redound to the Seller; and the whole incumberances being purged, the Buyer should Compt for the superplus of the Free-Money, and should pay beside 20000 Marks, after all is purged: Quaeritur, Whether the Benefit of the said Contract can be affected with an Inhibition, or with Arrestment, at the instance of Creditors of the Disponer? Ratio Dubitandi; The said Benefit is not Liquid.  
If Inhibition does affect Lands acquired after Inhibition? Answer Affirmative, The Debtor not being Discharged to Dispone the Lands he has presently, but simply his Lands and Estate.  
If at least it affecteth such Lands as are acquired, within the Shire where the Inhibition has been used?  
Quaeritur, If Inhibition doth affect Bonds though Movable by the Act of Parliament, so that the Creditor cannot Assign the same?  
Quaeritur, If Inhibition doth affect Bonds, so that the Creditor cannot thereafter Assign the same? Ratio Dubitandi, That it is thought, they affect only real Estates and Interests; and there is no mention of Bonds and Debts which are Personal; and they come not under the General of Goods and Gear, which are real things: Whereas Debts are Nomina, and Entia Juris & Rationis.  
If Inhibitions affect Lands acquired thereafter? The Ratio Dubitandi is, No Diligence can affect non Ens, and what did not belong to the Debtor: And if Inhibition will not affect Lands when it is not Execute at the Mercat Cross where they lie, much less can it affect Lands that has not Situm as to the Debtor, and does not pertain to him: and the narrative of the Inhibition is, that the Debtor intends to defraud his Creditor, by putting away his Lands, which does not militate, as to Lands which he has not then.  
A Bond being granted after Inhibition, and thereupon the Debtor being denounced, and his Escheat Gifted, Quaeritur, If the Horning and Gift may be Reduced ex capite Inhibitionis? Ratio Dubitandi, That the Ground being taken away the Superstructure falls, so that the Bond being reduced the Horning doth fall. Contra, The King is not concerned upon what Ground the Rebel is at the Horn, if the Horning be valid and formal; and the Inhibition doth import only, that the Debtor should not give any voluntar Right, whereupon his Estate (which is the subject of Execution for Debt) may be taken away: but not if he should commit Crimes, either of Treason, or should be Rebel, or do deeds whereupon Recognition may follow; That the King or other Superiors should be prejudged of their Right and Casualties of Forefaulture, Liferent-Escheat, etc. George Marshal contra   

Inhibition upon Teinds.  
IF Inhibition upon Teinds interrupteth prescription, without a citation; specially where the possessor is in possession by a Right?  
If Inhibition puts a party bruiking by a Right, in mala fide; so as, before his right be reduced, to be liable for bygones after the Inhibition? Tweeddale.  
If to the effect foresaid he be in mala fide, because being Commissioner for the Earl of Lauderdale; he prevailed upon the same Grounds against Oxenford.   

Insinuatio.  
DOnationes, quae excedunt summam quingentorum solidorum sive aureorum, insinuandae sunt; ut effusae donationes coerceantur, & ne fraus struatur Creditoribus falsis donationibus. Insinuatio est publicatio donationis apud acta, vel ejus quod agitur apud Judicem in scripturam redactio. Perez. Inst. Lib. 2. tit. 7.   

Instance.  
BY the common Law of the Romans, and by the custom of France, Instantia perit after three Years, as to all effects of it, v. g. Interruption of Prescription: But without prejudice of the Action, if it be not prescribed, so that a new Action may be intented.   

Instantia.  
INstantia perempta omnia acta perire dicuntur, quod intelligendum de ordinatoriis non de decisoriis: & Instantia perempta vitium Litigiosi non attenditur. Thes. Bes. in Liter. I. 22. verbo Instank.   

Instrumentum Guarentigiatum.  
INstrumentum quod Doctores vocant Guarentigiatum (seu confessatum habet Executionem paratam, & vim sententiae. Besold. Thes. verbo Guarentigiatum Instrumentum. p. 338. Sect. ultima.   

Interdiction.  
IF Interdictions be null, because the Executions do not bear Oyesses? Park Gordon.  
If a Person having no real Estate, but personal Bonds, may he not be interdicted if there be cause? at the least that he cannot give away his Estate without an Onerous Cause? Ratio Dubitandi, Interdictions, are thought only to affect Immovables. Mr. John Bruce Minister.  
If a Husband can be interdicted to his own Wife, being in ejus potestate & cura?  
If an Interdicter can consent to a Deed in his own Favours?  
If Interdiction be loused, will Debts contracted in the interim be valid? Ratio Dubitandi, That by the losing it is acknowledged that he is not prodigus: And seeing no Act of Prodigality or Facility before or after can be instructed, ex extremis praesumitur medium, and that he was not prodigal in that interim.  
If the Heir of a Person Interdicted will be liable to a Personal Execution, or real against his Movables?   

Inter decem Dies.  
DIctio (Intra) includit sua extrema, & excludit ea quae sunt extra: & si Terminus assignetur ad aliquid faciendum Intra decem Dies, qualibet die dictorum decem dierum actus fieri potest. Thes. Bes. Lit. I. 16. verbo Inner.   

Intrometter.  
THere being a difference between an Executor confirmed after Intromission, and a Donator to the Defuncts Escheat though declared: viz. That the Executor is liable to the Creditors, but not the Donator. Quae Ratio, that the Escheat declared should free the Intrometter?  
If the Declarator be after intenting of the Cause, will the Intrometter be free?   

Invecta & illata.  
IF a Person astricted as to Invecta & illata tholing Fire and Water, should buy unground Malt, and after he had brought it within the bounds astricted has sold it; will he be Liable for astricted Multures?   

Duobus Investitis per modum Confirmationis, sed posterius acquirentis Jure prius confirmato, uter sit potior?  
CVm praedia alienantur de superiore tenenda, id fit vel per modum Resignationis vel Confirmationis: si igitur Alienatio fiat de Domino superiore tenenda, per modum Confirmationis, & ex ea sasina secuta sit: postea vero alienatio terrae eodem modo tenendae alteri fiat, & ex ea nedum sasina sed Confirmatio accesserit, ac denique prioris acquirentis Jus sed posterius, confirmatum furit: Quaeritur, Ex iis acquirentibus uter potior sit? Et quidem dubitationis si ulla, ea subesse videtur ratio, quod per Resignationem alienans penitus devestitur: sasina autem cum sit in re, plus posse & tribuere videtur quam resignatio quae ad rem tantum est: verum explorati Juris est posterius acquirentem potiorem esse, cum prior nactus sit jus perfectum & omnibus numeris & partibus absolutum, idque a potestatem habentibus; alienans siquidem nec alienatione nec sasina priori data Dominus esse desiit, & penes quem est Dominium penes eum remanet potestas alienandi per quam Dominium definitur: sicut autem alienatio alienanti Dominium haud adimit cum sit jus personale, nec in re tantummodo sed ad rem consequendam, ita nec sasina ex ea dissasitur, cum sit prorsus nulla & irrita utpote praedii de Domino directo tenendi: nam sasina praedii de aliquo tenendi inanis & sasina haud censetur, nisi is de quo tenendum est praedium vel per se vel per balivum suum eam dederit; vel per alienantem dandae vel prius datae confimatione sua consensum & autoritatem accomodaverit.  
Ex istis elucescit quanti momenti sit habilis agendi modus: ut enim apud Physicos tria rerum naturalium dicuntur esse principia, Materia Forma & Privatio; totidem etiam apud Jurisconsultos rerum agendarum statuuntur principia, Potestas scilicet Voluntas & Modus: sine potestate velle vel conari dementia est: sine voluntate potestas iners, nec in actum sese exserit: si adsit utraque tam potestas quam voluntas etiam enixa, desit autem modus habilis & ad actum explicandum idoneus, actus nullus & inefficax est; Forma enim & Modus (ut vulgo dicitur) dat esse rei: Et haud fieri, & haud rite & debito modo fieri, paria sunt: Cum igitur acquirens omisso modo acquirendi per resignationem, quâ resignatione factâ, tam alienanti quam alteri, tum alienandi tum acquirendi potestas praeriperetur, istum per confirmationem maluerit; in eum quadrat (quod multis aliis casibus locum habet) illud Brocardicum, Quod potuit noluit, quod voluit facere nequivit.   

Investitura.  
INvestitura est vel propria vel abusiva, per illam possessio vacua in accipientem transit; per hanc haud transit, nec enim in possessionis substantia sed in signo & praeambulo quodam consistit. Jus fluviat. p. 737. n. 77.   

Jura complexa.  
JVra complexa as Escheats single, Societies for certain Years, do these fall under Executry? Ratio Dubitandi, The subjects are mobilia: Contra, they are not liquid and cannot be valued, so that there can be no appretiatio or male appretiata.   

Juramentum.  
JVramentum sortitur naturam, & conditiones contractus cui adjicitur, & intelligitur rebus in eodem statu permanentibus. Thes. Besold. verbo Ehegelubd. p. 207.   

Jurisdictio.  
MOribus Jurisdictio non datur Jure Magistratus sed in agris consistit, ab iis inseparabilis sicut servitus in gleba, & sigillum in cera: & est super territorium prout nebula super paludem, per potentiam activam.  
Proinde si territorium dividatur, minime Jurisdictio separatur, sed una cum partibus dimembratur. Thes. Besold. Litera L. p. 547.   

Jurisdictio Camerae Imperialis.  
AN Caesaris morte, Jurisdictio Camerae Imperialis expiret, vel sit in Suspenso? Besold. Thes. verbo Camergericht. 136.   

Jus accrescendi.  
WHen a Sum of Money is payable to a Widow in Liferent, and to the Children of her late Marriage in Fee: Quaeritur, If any of the Children should decease, Whether their part will accresce to the Survivers? or if they must be Executors or Heirs to the Child deceased? Ratio Dubitandi, That the Fee is not given to individuals nominatim, but to Bairns & Liberis; and before it be declared that they have Right as Liberi and so the Fee established in their person, they are deceased; and therefore locus est Juri accrescendi: as in the case of Heirs Portioners before they be served Heirs, if some of them decease, their Right will accresce to the Survivers.   

Jus Mariti.  
MArriage being dissolved within Year and Day, by our Custom the Husband has neither Tocher nor any other Benefit by the Law as Courtesy: Neither the Wife, if she survive, will have Jointure or Terce, if there be no Children. Quaeritur, if the Husband has not Jus Mariti as to Movables, whether Extant or consumed? Ratio Dubitandi. These other Provisions are presumed to be in respect of a Marriage durable and standing, at least for the said space; whereas the Right foresaid is founded upon the Relation of Maritus; & ipso momento that he was Married he was Husband: But it seemeth, that seeing the Wife would not have Jus Relictae by the Death of her Husband, he should not have Jus Mariti; ne Societas iniqua & Leonina sit: But as to bona consumpta, it seemeth that fecit sua, being bona fide Possessor.  
If a Husband lying at the Horn, and being thereafter relaxed, will lose only the Nails and Duties of his Wife's Lands resting before and becoming due during Rebellion? Or if his Jus Mariti and Right to these Nails and Duties, during the Marriage, will fall entirely; seeing he might Assign his Jus Mariti, and his Right not being during Life he is in the case of an Assigney to a Liferent, which falleth under the Assigneys single Escheat?  
If a Provision in a Contract of Marriage with a Widow (having given a Tocher) that her Husband shall not have Jus Mariti to a certain Sum, nor to any other Sum except the Tocher (specially she having divers Children of her first Marriage) be not valid? Lady Red-house.  
A Bond being conceived in favours of a Woman conditionally, who thereafter Marrieth, and dieth before the condition exist: Quaeritur, If the Husband will have Right Jure Mariti? Answer, he will; per Legem quae Legata. ff. de Reg. Juris.  
Quid Juris, As to conditional Legacies, if the condition exist after the Husband's Death, if they will belong to herself? Vide the said Rule and the reason of the Difference.  
If his Jus Mariti may be Comprysed? And if it may, whether the said Right will fall under the single Escheat of the Compryser?  
If a Husband be Forefaulted; Quaritur, If his Jus Mariti falleth under the Forefaulture? Ratio Dubitandi. The Husband has Jus Mariti, upon pretence and in order to Administration; and the Law presumeth that he will Administrate as he ought: and the Relation and Jus Mariti haeret ossibus and is personal.  
There being a Provision in a Contract of Marriage; that the Woman should be excluded from any Interest in Terce or third of any other part of Movables; so that the Terce is no Communion as to her; Quaeritur, If notwithstanding there will be Communion as to the Husband, so that he will have Jus Mariti, as to any Movable Estate belonging to his Wife?  
A Woman having Right to an heretable sum, if Diligence and charges be used for payment, Quaeritur, If ipso Jure it becomes movable, so that the Husband has thereafter Right Jure mariti? Answer, It is thought that, as to the Decision of this question, much will depend upon circumstances; and if diligence be used in order only to secure the Sum, and that the Debtor be suspect, the Sum will be still heretable: specially if adjudication follow in favours of the wife and her Heirs.  
Quaeritur, If a Provision in a Contract of Marriage, that the wife should retain a Right of sums belonging to her, and that she may dispose of the same without consent of her Husband, be valid and to be sustained? Answer Affirmative, seeing such pactions are not contra bonos mores or jus gentium; But on the contrare, are conform to the Roman Law: and when any advantage is introduced in favours of a Husband, or any Person jure positivo or municipali, they may renounce the same. Mr. john Arthur.  
Quaeritur, If the Husband be Liable to the Wife's debts & quatenus? Answer. It is thought, he should be Liable; quia penes quem Emolumentum, penes eum onus; But it is thought he should be Liable only quatenus Locupletior, and according to his intromission and as a Tutor, the Wife being in Tutela mariti: and though he has Right jure mariti & Communionis, to that which belongs to his Wife, that should be understood Debitis Deductis.  
If, after the Marriage is dissolved, it be found that there was a Debt belonging to the Wife during the Marriage, Quaeritur, If the same will belong to the Husband surviving, Jure Mariti? Answer, It is thought, The Law gives what belongs to the Wife, to the Husband as Administrator; And the Law presumes that he Administers behoovefully: But if a movable Debt was not known the time of the Marriage, and is yet due, there may be some Question; and yet it is thought, that it should fall under the Communion.  
If the Wife be provided in satisfaction of Terce or Third; Quaeritur, In that Case, If such a Bond will fall under Communion, or if it will belong to the Husband Jure Mariti? Cogitandum.   

Jus Mariti & Relictae.  
IF the loss ariseing by the act of Parliament anent Unlawful Ordinations and Marriages, be understood to be a Privation; so that such Rights cease as if they were not Married; amittuntur, non commutantur: and the wife and Husband have Right to their own estate, free of jus mariti & relictae, as if they were not Married? Lady Aitoun.   

Jus Relictae.  
A Woman, by contract of Marriage being provided to a Liferent of all that should be Conquest, whether Lands, Sums, or Goods, Quaeritur, If she will have Right to the half or third of the moveables jure relictae? or if eo ipso that she is provided to, and accepteth a Liferent, it appeareth that she renounceth her Communion? Whereas on the other part, that provision being in her favours, and she not being excluded; it seemeth she and her Executors should not be excluded by it.  
If the Husband may, by Donations in Liege poustie, prejudge the wife and bairns of their part? Answer the nature of the Gifts is to be considered, if they be so immodicae & inofficiosae, as it may be presumed, they are given of purpose to frustrate them.   

Jus Superveniens.  
IF a Person having no Right to Lands should dispone the same, so that the acquirer should be infeft upon his Resignation; and there after the disponer should acquire the same, and being infeft upon the resignation of the Heretor, should dispone and resign in favours of another for onerous causes so that he should be infeft: Quaeritur, which of these, who acquired these Lands, from the same author will, be preferred?  
That Brocard Jus Superveniens etc. will it hold in the case, where the Right is supervenient not to the disponer, but to his heirs? or where the Heir to the Disponer had Right himself the time of the disposition?  
Quaeritur, quo casu Jus Superveniens accrescit? And if it should be understood of the Right only of moveables, and such things as may be transmitted without infeftment? And not of Lands and others, which cannot habili modo be conveyed, much less accresce, without Infeftment?   

Justice-General.  
IF the Justice-General may be Judge to Riots, or any Crime or Delict, whereof the pain is not defined by Law, but left arbitrary?    

K.  

Nearest of Kin.  
THE Interest of the nearest of Kin is, that they may be confirmed Executors, and if they die before confirmation they do not transmitt: and yet if the Testament be confirmed by any person, nascitur actio against the executor, who is Liable to the nearest of kin which they transmitt.  
There being three persons who are nearest of kin to a Defunct, and the edict is moved and served at the instance of the Procurator-fiscal, and two confirmed only: whether will the third have action against the other two as nearest of kin for a part? Ratio Dubitandi. That these who are executors of Law cannot have Right de facto; unless they confirm; that being modus adeundi in mobilibus: and the nearest of kin by the act of Parliament has only an action in the case where he cannot adire, there being executors nominate and confirmed who have Right to the office and a third part, so that the nearest of kin may pursue for the rest.  
When the nearest of kin have action against the Executor Nominate, if some of them decease before confirmation, whether will they transmitt the forsaid action? Ratio Dubitandi, it is not Officium but Jus legitimum, which may be transmitted, as the relics part and bairns part, without respect to the confirmation: and on the other part, it may seem, that seeing they did not intent action before their decease, they do not transmitt; and in such cases the intenting of action is instar aditionis, and there is no representation in moveables.  
There being two Daughters, of which one, being Married, by her Contract of Marriage accepts her Tocher, in satisfaction of what she could Pretend to by the decease of her Father and Mother, Quaeritur, the Father having survived the Mother, whether will the other Sister have entirely her Mother's part as nearest of kin to her? Ratio Dubitandi, The other had renounced: And on the other, part the Mother's part did entirely belong to herself and to her nearest of kin: and the said sister that renounced is also near to her Mother as the other? Vide Renunciation, Litera R.   

KING.  
IF the King take burden, in a Discharge granted by a Minor, that he shall ratify at perfect age, Quaeritur, whether the King's successors will be liable representing their predecessors? Ratio dubitandi, The King succeeds not as Heir but Jure Coronae: as in the case of single incorporations, V: G: Bishops, who are said to be successors, and are not Liable to the debts of their predecessors, or in the case of feuda ex pacto & providentia? Cogitandum. Earl of Tweeddale and Duke and Duchess of Monmouth.  
If the King be in the case of other Minors? So that a revocation is not sufficient, unless a reduction be intented Debito tempore, intra quadriennium utile?   

King and Prince.  
IF the King and Prince be to be considered as incorporate, so that these who succeed are in the case of successors of Churchmen, and do not succeed by Inheritance, but by succession?    

L.  

Laudimium.  
LAudimium debetur Usufructuario, non Proprietario. Thes Besoldi verbo Handlohm. P. 359. versus finem.  
Licet Dominus directus, post alienationem ab Emphyteuto factam, novum possessorem investiat, nulla facta mentione Laudimij aut ab eo censum recipiat, tamen suo juri non censetur renunciare, sed Laudimij integram exactionem habet, nisi expresse donaverit, Ibid. p. 360. sect. 2.  
Laudimium nondum exactum connumeratur inter fructus pendentes: & si Emphyteusis pertinet ad parochum, illud non exactum, ad haeredes haud transmittitur; sed cedit ei qui in beneficio succedit. ibidem.   

Lawburrows for burgh's.  
IF a Burgh be Liable to find Lawburrows for their Burgesses? The Lord Thesaurer-Deput.   

In Lecto.  
IF in Lecto, a Person, having children, may marry their Mother, in order to their Legitimation, in prejudice of his Heirs?  
If after a criminal and capital sentence, a person condemned be in Legitima potestate?  he cannot be said to be in Lecto, and the Sentence doth not affect immobilia.  
If a man on deathbed be accessary to Treason, whether will his Estate forefault in prejudice of his Heir? It seemeth, that though in Lecto Lands cannot be sold or annailȝied any way in prejudice of the Heir, that being only the case of the old Law of deeds in Lecto: Yet consequentially a man on deathbed may do many deeds in prejudice of the Heir, and a Traitor on deathbed may be taken out and punished.  
If a Band being heretable, may be made movable of purpose in Lecto? Executors of Colonel Mathison. George Hadden.  
If an infeftment be given, of Lands holden Ward, upon the resignation of the Father in Lecto; and a reversion apart to the Father to redeem upon a Rose-noble; Quaeritur, if the Ward and Marriage be cut off? Answer. if the Lands hold of a Subject, Sibi imputet that he did not inquire and know the condition of the Disponer: But if they hold of the King, there may be some question;  the King's Grants may be questioned upon Obreption or Subreption, and the negligence of his Officers should not prejudge him: and it appears the course forsaid, was taken of purpose to defraud the King of his casualties, being in spe proxima; and the disponer having Provided for himself that he should be master of his Estate by the Reversion foresaid: It is thought there is a Decision in the said case, in favours of the King which should be tried.  
A person on deathbed having made a Disposition in favours of a Creditor, but to the Prejudice of his other Creditors (The Defuncts whole estate being disponed in favours of the Creditor forsaid) Quaeritur, If the Defunct could on deathbed prejudge his other creditors, and prefer one to all his other Creditors? Seeing persons being on deathbed are not in Liege Ponstie as to any deeds But the making of Testaments; and not as to deeds inter vivos; and if the Defunct in his Testament had made such a Conveyance in favours of a Creditor it could not have been sustained; and any deed done on deathbed is upon the matter but a Legacy or codicil: and a dying person should not be allowed to do any fraudulent deed; and it is a fraud where, there are many creditors, to give one the whole estate: and a person in Lecto cannot Prejudge his Heir; and a fortiori aught not to prejudge his creditors, who would be preferable to Heirs: and as in the case of comprisings within year and day all creditors should come in pari passu; So Dispositions on Deathbed ought to be to the behoof of all other creditors? Cogitandum.  
A Defunct having on deathbed made a Disposition relating to a former and in corroboration of it did nominate two of his Name to succeed; Quaeritur what will be the import and effect of it? Answer. It being on Deathbed it cannot have the effect of a Disposition unquestionable; but only of a declaration of the defuncts will, which ought to Determine (at least to have weight with) the friends.  
If a person stricken with a Palsy, So that he cannot go abroad, but otherwise having sound Judgement and Memory; if after a considerable time he decease in that condition, will he be thought to be in Lecto after the contracting the Palsy? Ratio Dubitandi, That persons Paralytic cannot be said to have morbus sonticus; and divers, after they have been so, have been able to do affairs and have had Children; and therefore it is thought, that it is to be considered if there be a Complication of any other disease, of which it may be thought that he died; and from the time of the contracting that sickness he is to be esteemed to be in Lecto.  
What is the reason that a third party acquiring a Right made in Lecto, though bona fide will be liable to reduction?   

Legacies.  
Quaeritur, If an universal Legacy, which upon the matter is a Testament and ultima Voluntas de universitate Bonorum, may be proven by the oath of the nearest of Kin? Answer. It is thought it may be so Proven;  Scriptura is not the forma Legati; and a Legacy not exceeding an hundred pounds may be proven by witnesses; and a Legacy exceeding that value is not probable by witnesses, not because That Scriptum is de essentia, but ob fluxam fidem testium: and therefore whatever value it be of, it may be proven by the oath of the nearest of Kin.  
If a Person being named Executor and universal Legatar shall be forefaulted before he be confirmed, will his interest forefault to the King? Ratio Dubitandi. albeit a Legacy will forefault, yet in this case the Legacy being universal, and being subjoined to the Nomination, is of the nature of Institution; which, being an office, does not forefault.  
If a Legatar should commit Treason before the Testators decease, will his Legacy be void, as in the case of his decease? Answer, The Legatar not being capax tempore mortis Testatoris, having committed Treason, the Legacy is void.  
If a Legatar do not own the Legacy may a creditor affect the same? and if there be a difference betwixt the Legacy and a Donation? vide Donatio non acceptata. in Litera D.   

Conditional Legacies.  
A Legacy being Left to an appearand heir, with that provision, that the Legatar should not question the Defuncts will, having disponed his estate both heretable and movable to another, both by Disposition and testament: and a clause irritant being adjected to the Legacy, That the legatar should both not impugn, and should ratify the Defuncts deed; and should dispone and convey any Right he had, in favours of the said other party; and if he failyied or contraveened in either, that he should lose his legacy: Quaeritur, If the appearand heir should pursue an Exhibition ad Deliberandum, and being required should not be free to ratify and dispone presently; whether the clause irritant be committed? It is answered, That the said legacy is not left in these terms, that if upon Deliberation having a time granted for that purpose; he should think it his interest rather to accept the legacy than to own his Right of succession, he should have the said legacy: But the samen is left, in case he should cheerfully acquiesce to the Defuncts will, which he is obliged to do presently; being obliged to dispone Sine die: & ubi Dies non adjicitur praesenti die debetur.   

Legal Reversion.  
IF a Minor have a Right to a legal reversion, as singular successor to the Debtor, Quaeritur, If he will be in the same case as a Minor that is heir to the Debtor, so that he may redeem at any time before he be of the age of twenty five years? Or if there be a difference, upon that account that the Heir or his predecessor has Right ab initio; whereas the singular successor Incidit in jus; and the reversion being Limited by the Law in favours of the Creditor, it ought not to prorogate by the deed of the debtor Hamilton of Wishaw.   

Legatars and Intrometters.  
IF Legatars may pursue Intrometters, and if the Defenders will be heard to debate whether there be free Gear?   

De Legatis.  
LEgata sunt Testamentorum appendices, & legatarij quo dammodo haeredes. Perez Lib. 2. Tit. xx.   

Legatum Rei alienae.  
QVaritur If a person on Deathbed should name his appearand heir Executor; and should leave in Legacy to another an Heretable interest, or should otherwise dispone Lands; whether or not the Heir confirming the Testament may question the same as to the Legacy foresaid? But in this case the question will be, how far Res aliena (or such as is aliena as to the power of disposing the same in Lecto) may be Left? and Testaments being , and the Intention of Testators being most to be considered, whether or not the Executor should redeem that which is Left in Legacy being Heretable, and be liable in estimation and to the value thereof if it be res aliena? Or should satisfy the Legacy if it be res sua but Heretable, at least so far as the executry will extend. v the Death-b d. Quaest. 2 & 3. Literá. D.  
Res aliena si Legetur, non debetur nisi sciverit Testator rem alienam esse; non enim praesumitur Legare voluisse si scivisset rem alienam esse. Perez. Lib. 2. Tit. xx.  
Incumbit autem Legatario probare Testatorem scivisse rem esse alienam, nisi conjunctis personis Legata fuerit: pro quibus praesumitur ex affectu eum Legaturum fuisse etiamsi alienam, Perez. ibid.  
Vbi Legaturres haredis valet Legatum, nec refert sciverit Testator, an non haeredis esse; facile enim praestetur nec redemptione opus est. Perez. ibidem.  
Dominium rei suae legatae transit in Legatarium statim a morte Defuncti. Ibidem.   

Legatum a Legatario acquisitum, ante mortem Defuncti.  
SI Legatarius, vivo testatore, rem Legatum consecutus est Titulo oneroso emptionis vel alio, haeres tenetur solvere pretium quod dederat Legatarius; nec enim censetur habere rem cui pretium abest; sin vero Legatarius eum adeptus est titulo Lucrativo, aliter dicendum est, nihilque ab haerede petere potest; nihil enim ei abest & duae causae Lucrativae in unum hominem, & unam rem, concurrere non possunt. Ibidem. si ex duobus testamentis.   

Res eadem duobus Legata.  
CVm eadem res pluribus Legatur conjunctim, singulis debetur in solidum sed concursu fiunt partes; & ideo si unus defecerit, vel sprevit Legatum vel decessit vivo testatore Collegatarijs accrescit. Perez. Lib. 2. Tit. xx.   

Legitima Liberorum.  
MOribus nostris Primogenitus est Haeres ex asse; & in universum Jus immobilium; Terrarum scilicet & aliorum quae immobilibus accensentur: nec minus ex mobilibus libat & praecipit mobilia haereditaria, vulgo Moveable Heirship: Et apud Anglos Heirloom, optione permissa optimum quodque eligendi tam ex supellectile quam ex instrumentis rusticis, & militaribus Armis, Equis, aliisque ejusmodi; ut tam Domi quam Ruri ad colendum, & si opus fuerit ad militiam & profectiones tum in bello tum in pace utcunque sit instructus: reliqua autem mobilia sive res sive nomina, Marito & uxori & Viri liberis, etiam ex diversis Matrimoniis (si adhuc in Familia) communia sunt, deductis debitis, si Pater-familias obaeratus aut Debitor sit; nec enim aliter bona intelliguntur nisi aere alieno subducto: Ea communio licet sit inter conjuges & liberos habitu & spe; haud cedit tamen nec actu vim suam exerit, nisi Matrimonio dissoluto per alterius conjugis obitum. Matrimonio durante, rerum communium non solum Administratio sed Dominium est penes Maritum, & potestas disponendi haud aliter quam de suis: nec ut communio ista cedat, opperiendum est ut conjux emoriatur & penitus fato defunctus sit, sed confestim ut mori incipit potestas illa Legitima (vulgo Liege poustie) desinit, & communio effectum sortiri incipit. Mori vero incipit, imo civiliter, pro mortuo habetur, postquam morbus invasit Lethalis & sonticus, qui cuique rei agendae impedimento sit; adeo ut nec domo proreptare possit, nec negotiis (uti solitus erat) superesse, eundo ad Templum aut Forum & loca publica ubi plerumque salus animae & negotia procurantur: quamdiu enim animus Ergastulo corporis coercetur & ejus Ministerio & organis necessario utitur, vix fieri potest ut corpori aegro mens sana sit: Accedit, Quod ubi Cadaver ibi aquilae, & moribundis adsunt & advolant plerumque (amici ut videri volunt sed) corvi & haeredipetae, ut captent & eblandiantur aliquid; nec id difficile est: aegri siquidem tam corpore quam animo infirmo, & assiduis eorum (quorum opera tunc opus habent) officiis & Blanditiis impares & obnoxii, facile dant & jactant quae propediem sua haud futura sunt: ex eo tempore igitur quo aeger sese domi abdidit, nec amplius in propatulo, Foro aut Ecclesia sui copiam facit, licet ex morbo non decumbat lento sortasse eoque magis periculoso, dicitur esse in Lecto aegritudinis & in extremis agere: & alienatione Terrarum, aut rei alicujus haereditariae ei prorsus interdicitur: Et si secus faxit aut alienarit, haeredi actionis rescissoriae remedio facile succurritur: Sic non sine summa ratione prospectum est haeredibus, ne quid in eorum fraudem fieret a parentibus aut decessoribus in extremis, cum sui parum compotes sunt: idque non semel cautum Jure veteri, quod Libris Majestatis aliisque Libris Juris continetur; iis Elogium illud, quod Libri Juris nostri sint, haud negarunt Principes nostri; nec immerito, quod dictum velim pace viri Consultissimi Cragii iis paulo iniquioris: Quemadmodum enim Virgilius aurum ex stercore colligit Ennii; Juris Studiosis ex Libris istis (& non tam stercore quam Juris nostri veteris sive ruderibus sive Rudimentis) licet multa colligere aurea & scitu nec inamoena nec inutilia.  
Sed moribus nostris & usu Fori (cum eadem subsit ratio) idem Jus introductum est in favorem Viduae & Liberorum; & ut plerumque ubi Jus deficit Senatus supremus supplet instar Praetorum, ita ex aequitate accommodavit remedium utile ne Legitimis suis fraudentur, nec liceat Patri familias in Lecto aegritudinis, conjugis aut Liberorum, mobilium partes & Legitimas imminuere, nedum abalienando penitus eripere: quin etiam in Matrefamilias praemoriente, ex communione ejus Legitima cedit statim eâ in Lecto aegritudinis constitutâ; nec ex eo tempore Marito, quam vis Domino & in Legitima potestate permittitur aliquid facere in fraudem uxoris, aut eorum qui in Jus ejus succedunt: multum autem interest, uter viran uxor praemoriatur; viro enim superstite cum Liberis, ex obitu uxoris cedit communio, & Legitima tantum uxori ejusque proximis & successoribus, iis mobilium triente ceu quatuor unciis & partibus decisis: quae supersunt Bes, viz. Ceu octo unciae & partes adhuc communia sunt Patri & Liberis. Sed ut superius dixi habitu tantum & spe; fieri enim potest & saepe evenit, ut Communio inanis sit, Liberis Patri praemorientibus, vel Patrimonio acciso, vel aliquo casu defecto: ubi autem viro contingit in fata concedere uxore & liberis relictis, communio cedit ad omnes effectus tam uxori quam liberis; adeo ut ex mobilibus triens uxori, alter triens accedat liberis, tertius Patri-familias relinquitur, de eo, nec ultra testari potest si voluerit: si intestatus decesserit, suum trientem liberis relinquit adinstar haereditatis, adeundum Jure quasi haereditario, sed haerede submoto & excluso: Liberi enim trientem Patris haud vindicant ut suum & Legitimam, sed in eum succedunt, quasi haeredes in mobilibus modo solenni: & haeredi legibus satis superque consultum est, cum solus haeres sit ex asse in immobilibus, reliquis liberis praeteritis & exclusis: Sin haeres e re suâ esse duxerit, haereditate omissâ, inter liberos admitti & ex Patrimonio paterno sive haereditate & terris, sive mobilibus, aequo cum caeteris nec ampliori Jure aut parte, Potiri; id ei facile permittitur; unicuique enim licet renunciare Juri pro se introducto: nec minus haeres haereditatem adit, & in Terris (si quae sunt) investiendus est, ut rerum haereditariarum Jus adeptus, Fratribus habili modo eas conferre & impertire possit. sic collatione facta, defuncti Patrimonium, quod ad haeredem vel ad liberos ut liberos, aut Executores, aut proximos cognatos pertineret, ab intestato ultra citraque inter haeredem & liberos communicatur. Testamento autem facto si ex liberis aliquis vel Executor vel Legatarius sit, quod ex Testamento consequitur haud tenetur conferre; nec enim id habet ut legitimam & ex dispositione Juris vel ut unus ex liberis, sed Testatoris voluntate & ut quilibet; verum cum penes haeredem sit optio, maturè & re integra debet eligere; si enim haereditatem adeat purè nec testatus se velle conferre, vix postea aditur nec ad collationem admittitur, elegit enim nec eligenti licet variare.  
His altius positis & praemissis, uti par erat in materia usu quidem & moribus satis obvia, sed (quod sciam) in libris non satis enucleata, ex iis eliciendum, Quid Juris sit in ista specie facti.  
Diem obiit Sempronius sed intestatus, Maevia uxore superstite cum tribus liberis Caio, Titio, & Publio; Viduae triens mobilium Jure relictae (ut loquimur,) Titio & Publio alter triens cesserat ut Legitima & liberis, tertius etiam triens iis obtigit sed ut executoribus & quasi haeredibus mobilium ab intestato; adierant etiam dati a Judicibus ad quos pertinet Testamentorum probatio & Executorum datio; sed Caius promogenitus cui delata erat haereditas decessit haereditate haud aditâ, eo forte peregre profecto aut aliter impedito; ejus morte ea ad Titium secundogenitum devenit & adita est: Contra Titium agebat Publius frater condictione ex causa ut restitueret quae ex mobilibus, vel ut Executor, vel unus ex li beris nactus fuerat; cum res ad alium casum devenerat & eum a quo non potuisset incipere; quod ea habuerit causam & unicam fuisse quod haeres non fuerat sed unus ex liberis, & cum eo effectum evanuisse; eum nunc haeredem & integrâ & opimâ haereditate locupletatum, eâ debere esse contentum; nec sine injuria aut invidia ex mobilibus aliquid libare aut retinere posse: & in Libro isto cujus mentio superius facta vetus reperitur Decisio. 1553. Julii, quâ contra haeredem Judicatum in causa Alexandri Law contra Robertum Law.  
Sed cum ista ex libris Curiae & Regestis Decisio haud promatur, sed ex compilatoris nescio cujus libro & notis, saluâ rerum Judicatarum Authoritate quae apud me magna est, integrum mihi esse reor ut in contrariam sententiam pronior sim, iis adductus argumentis: Cessit siquidem Legitima liberorum ejusque semis ad Titium pertinens confestim a morte Patris; 
Theoph. lib. 2. Titul. de Legatis. §. 20. Theoph. eodem libro Instit: titulo. 19 de haeredum qualitate & differentia §. 5.  cedere autem tum Legitima tum Legatum dicitur cum actio pro iis competit; & two, quibus Jus cessit, si decesserint antequam res ab eo sibi debitas consequantur, Jus tamen & actionem ad haeredes transmittunt. Ea autem est definitio Juris consummati & perfecte quaesiti: Jus igitur, Titio ita quaesitum & in eo quasi fixum, quomodo avelli & ei eripi queat haud video: alia quidem est ratio defuncti (ut loquuntur) partis ceu trientis, ejus semis ad Titium pertibat ut unum ex proximis cognatis & executoribus; is a morte Sempronii statim Titio delatus est: haud cessit tamen ex eo tempore sed tunc demum cum Titius adiit, & Patri Executor datus est: Jura enim haereditaria, vel quasi, quae pertinent ad aliquem ut haeredem & successorem in alterius Jus universum, non cedunt nec quaeruntur nisi haereditate adita; in mobilibus autem Executoris datio & confirmatio est instar aditionis: utcunque enim suppositum sit Titium Executorem datum a judice, defuncti triens cessit Executoribus & istius semis Titio, Jus adeo firmum & ad haeredes transiturum, si Titius Caio praemortuus fuisset, morte Caii intercidere & irritum fieri, a Jure & Ratione videtur alienum. Ad haec mortuo Patre-familias, cum de patrimonio quaeritur, an integrum & ex asse ad eum pertinuerit coelibem forte & orbum, an vero commune fuerit uxori & liberis; Et quota uxoris & liberorum pars sit, utrum semis an triens; Et liberorum Legitima an ex asse unius sit; An si plures sint liberi in quot uncias & partes dividenda sit: Tempus mortis Patris-familias inspicit Lex, de futuro haud solicita, nec quae tunc sunt quotae augeri aut minui possunt; quamvis Patrimonium rerum quae in eo sunt interitu & fructuum & foetuum accessione augeri potest & minui. Posito igitur Patrem-Familias decessisse testatum, relictis viduâ & liberis; viduam autem & liberos haud diu superstites fuisse morbo aut alio casu extinctos; tamen Executor Patris-familias haud assem sed trientem tantum consequitur; licet tempore aditionis ceu confirmationis, nec liberi nec vidua extiterint; extiterant enim tempore obitus Testatoris & tunc partes fecerant; eae autem semel quaesitae eorum morte haud evanescunt, sed ad cognatos proximos & Executores transeunt. Posito etiam Patrem-familias mortuum, superstite uxore & unico tantum filio praeter haeredem, nec alios reliquisse liberos, filium autem secundo genitum impuberem postea obiisse; fratre superstite; eo casu ex patris mobilibus haeres trientem consequitur sed ut Executor fratris & ejus Legitimam; nec vidua aut Patris Executor audiendi si pro trientibus semisses petant, causati rem ad alium casum devenisse, nec haeredem ex mobilibus aliquam partem carpere posse. Si Objiciatur in isto casu haeredem ex mobilibus nullam partem nancisci immediate & Jure suo, sed mediate & morte fratris, & ut ejus Executorem; In specie autem facti de qua agitur Titium tum haeredem fuisse tum unum ex liberis, & suo Jure haereditatem patris adiisse, nec minus ut unum ex liberis, Legitimae liberorum semissem adeptum; Jura ista 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nec penes unum consistere aut retineri posse. Istud facile diluitur; tempus enim mortis Sempronii Patris-familias intuendum; eo autem tempore Titius erat unus ex liberis, nec haeres erat aut esse poterat, Caio primogenito superstite; ei haereditas morte patris delata, ad Titium haud immediate sed ex fratris morte pervenit; Titio quasi per surrogationem & 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in locum primogeniti subeunte: Cum igitur Titius, eo quo Pater obiit momento, inter liberos fuerit, & ipso Jure Legitimam nactus est, nec injuria retinet quod Jure habuit: Si Caius patris adiisset haereditatem ei Titius haeres foret, nec minus sic patris haereditate potitus legitimam retineret: Quod autem Caius haud adierit, Titio nec imputandum nec officit: Patrimoniorum siquidem conditio, & Jura viduae & liberorum, legibus constituuntur; nec aequum est ea ex arbitrio haeredis pendere aut ambulare. Porro haereditatis delatio & Facultas adeundi, aliis casibus nedum hoc, haud parum operatur; haerede enim perduelli & Majestatis reo, haereditas etiam non adita amittitur & Fisco quaeritur.   

Legitimation per subsequens Matrimonium.  
A Person after his first Marriage, of which he had Children, having Married again, and having divers Children by the Woman Married to him in that second Marriage, elder nor the first Children, which are thereby legitimate: Quaeritur, Whether the Eldest Son with the second Wife, will be preferred to the Son of the first Marriage, as to the Right of Succession? Ratio Dubitandi, The first Marriage was Contracted Spe, and in contemplation that the Children of that Marriage would succeed, and the Eldest Son by his Birth had Jus primogeniturae, as the first Lawful Son, which could not thereafter be taken from him: & e contra, the Son of the second marriage, the time of the Father's Death, which is to be considered as to the question of the Succession, is his Eldest Lawful Son. Cogitandum.  
If a Person may Marry on Deathbed, in order to the Legitimation of Natural Children, in prejudice of his Agnats, who would otherways succeed?   

Marriage and Legitimation.  
THere being a Declarator intented, to hear and see it found that the Children were Lawful; in respect there was a promise and Copula, Quaeritur, If the pursuit, being after the Father's Decease, in order to the Succession to the Good-sire, the promise may be proven prout de Jure, as it might have been before? My Lord Neutoun told me, that after the Father's decease it is found not probable by Witnesses. Laird of Lauder.   

Lenteratio.  
LEuteratio. vide Appellatio in Litera A.   

Libellarius Contractus.  
LIbellus, sive Libellaria, est contractus, quo interveniente scripturâ res immobilis venditur, certo pretio, certa insuper pensione in singulos annos; ea lege plerumque addita ut stato & condicto tempore renovetur; denuo numerato pretio certo vel arbitrario. Hering de molendin. q. 29. n. 4.  
Est Italis usurpatus, & dicitur a scriptura & Libello, seu brevi charta. Ibidem. n. 6.   

Liberi.  
INdefinito Liberorum nomine, censetur actum de natis tempore Contractus, non de nascituris. Hearing de molendin. quaest. 20. n. 19   

Liferenter.  
IF a Liferenter of Lands Stock and Teind having Set the Lands to Tenants for a Duty for the Stock and drawing the Teind, and having deceased before Martinmass after drawing the Teind: Quaeritur, will she be Liable to the Heir for the half of the Teind? Ratio Dubitandi. For the Heir; That she dying before Martinmass, he ought to have the half of that Years Duty: And for the Liferenter, that she had Right to the Teind after it was separate and collected, so that she might have disposed of it; and having gotten it, it cannot be taken from her; and that the Legal terms are to be considered in the case of Debt, when dies cedit; but in this case nihil debetur, but she has Right to the Fruits Teinds, and Quota of them in the same manner as the Tenant, and as if she had laboured. Vide Third and Teind. Letter T. Vide Titular. litera T. q. 2. vide Milns. Litera M.  
Where Grass Roums are set for payment of a Silver Duty (by the Tennent entering at Whitsunday) the half at Martinmass, and the other half at Whitesunday thereafter; Quaeritur, If the Liferenter decease after Martinmass, whether the Martinmass Duty will belong to her Executor? Ratio Dubitandi, That the Duty payable by the Tenant, entering as said is, and going away at the next Whitesunday is payable in respect of the Cropped, and proventus of the next Year, either of Corns or foetura animalium; and it is without question that a Tenant paying a Silver Duty for a Corn-Roum, albeit he pay at Martinmass after his entry, yet it is paid for the next years Cropped; so that the Liferenter can pretend to no part thereof, deceasing the time foresaid: and on the other part, it appears that there may be a difference as to Grass Roums, seeing the half of the Duty seems to be paid for the profit of the Grass, from Whitesunday to Martinmass, which falls within the Liferenters Right.  
Quaeritur, Quid Juris, As to Salt-pans and Milns if the Liferenter have the same in her own hand, whether her Right is presently determined by her Death?  
The same being set to Tenants from Candlesmass to Candlesmass: If the Liferenter deceased after Lambmass and Martinmass, will her Executors have any part of the Duty after Lambmass?  
When Rentals are set in these terms, That beside the Rental Duty there should be every five Years a considerable Sum paid, as in Contractu Libellario; Quaeritur, If the Liferenter will have Right to that Sum, if it fall to be paid during the Liferent?  
When the whole Estate of a Nobleman is Disponed reserving his Liferent, or of a Baron; will the Liferenter have Vote in Parliament, and Voice in the Election of Commissioners for Shires?  
A Lady being Infeft upon her Contract of Marriage in Lands for her Liferent; Quaeritur, If Tacks set thereafter by her Husband will bind her? Vide Terce quaest: ultima.   

Executors of a Liferenter.  
IF a Woman deceaseth after Whitesunday before her Husband, will her Executors have Right to a part of the years' Farms?   

Liferents.  
DIes as to Liferents (when the question is betwixt the Executor of the Fire and Liferenter) cedit at Whitesunday and Martinmass as the Legal Terms.  
Quaeritur, If a Bond be, to a Man and his Wife the longest liver, payable at Lambmass and Candlemass; and the Husband deceasing after Candlemass will the Husband's Relict have Right to a half year at Whitesunday?  
If a Father be Infeft in Liferent in Lands, and be content to renounce his Liferent in favours of his Son? Quaeritur, If it be habilis modus to extinguish his Liferent? Ratio Dubitandi, He is the Superiors Vassal during his Life, and cannot cease to be Vassal without the Superiors consent, at least sine refutatione.  
When a Vassal is Year and Day at the Horn, if he has granted a Right to be holden of himself, what will be the Import of his Liferent?  
If a Liferenter do Dispone his Liferent of Lands; or if the same be Comprysed from him, and thereafter he be Year and Day at the Horn: Quaeritur, If the Superior will have Right to the Liferent, as if the said Right had not been granted? Answer. It is thought, he can have no other Right, than such as the Liferenter had, and affected with the said Right.  
If the Liferenter be Forefaulted, will not the King have the Right of the said Liferent without the burden of the said Rights? And if it be so, Quae Ratio Discriminis? Answer, The King will have Right to the said Liferent entire; and the reason of the Disparity is, that Treason is Crimen feudale, and when the Vassal Fire or Liferenter doth Forefault, the Right cometh to the King Pure, and without any Burden but such as he has consented to; Whereas Horning is not Delictum feudale but common: and the Liferent doth not belong to the Superior Jure feudali, but Statuto, so that he ought not to be in better case than the Rebel.   

Quando Dies cedit as to Liferenters.  
WHen Rent of Lands is Victual, the Heretor dying before Whitesunday the Liferenter has Right to the whole Year; if after Whitesunday but before Martinmass, The Relict has Right to the half; but if after Martinmass to no part, because Whitesunday and Martinmass are Termini Legales as to the question, Quando dies cedit. Quaeritur, therefore, whether when Rent is all in Highland Roums & agris pascuis, the custom being in some places that the Tenants entering at Whitesunday, pays the half of the Rent at Martinmass next; and the other half at Whitesunday thereafter, Quid Juris as to the Relict, the Husband dying after Whitesunday or after Martinmass?  
The same Question is, If, in the Lowlands in Corn-Roums, the Tenant and Master agree, that the Duty should be paid in Money by the Tenant entering at Whitesunday, the half at Martinmass, and the other half at Whitesunday?   

Vasallus Ligius.  
NEmo potest esse simul duorum Vasallus Ligius. Thes. Bes. litera L. p. 597. ad finem.   

Limitation of Fees.  
Land's being Disponed to a person, and the Heirs Male descending of him; which Failyieing to the granter and his Heirs, Quaeritur, If his foresaids fail; what way will the Granter being Superior and his Heirs attain to the Right, whether as Heir of Provision to the Vassal? or per vi. am Consolidationis, and by a Declarator that he has Right by the return foresaid; and that the Property is consolidate with the Superiority?  
Whether he will be Liable to the Vassals Debts? Ratio Dubitandi, The Vassal was Fire and might Contract Debt, and whoever succeedeth to him aught to be Liable thereto.  
If the Right be granted to a Person, and the Heirs of his Body, without any further Provision or mention of return, whether will the King have Right as ultimus haeres, or the Superior? Answer. The Fee not being simple but limited; It is thought, that the Superior should have Right seeing the Fee is limited. And the King cannot succeed but by way of Representation and as haeres ultimus, and there can be no Transmission beyond the Limitation. But if the Lands be given to a Man and his Heirs whatsomever, the Fee is simple; and the Granter having simply and absolutely given away the same, he can pretend no Right to the same; and the King cometh under the generality of Heirs whatsomever, being ultimus haeres.   

Litiscontestation.  
IF Remove, Spuilyies, and Ejections, which are interdicta possessoria Litiscontestatione perpetuentur for forty years, or only three?  
The same Question may be for Servants Fees, House-Mails, and such other Actions which prescribe in three years.   

Quo casu Possessor in mala fide constituitur per Litiscontestationem & quando non?  
LItiscontestatio possessorem malae fidei constituit, adeo ut ab eo Tempore; ad restitutionem fructuum teneatur: hoc tamen verum est in iis, qui per Litiscontestationem vere in mala fide constituuntur, veluti si res feudalis Emphyteutica petatur, aut vindicetur, ob feloniam commissam: aut quia tempus locationis transactum est veraque sit causa vindicationis, quam etiam possessor nec minus obstinate contendit.  
Secus est, si ego rem emo ab eo cujus esse putabam, tu vero dicis eam ad te pertinere, & nihil adducis praeter petitionem & nunciationem, tunc quia bonam fidem habeo, Litiscontestatio me non vera sed ficta efficit malae fidei possessorem; & a fructibus merito excusor, donec sententia feratur. Thes. Besold. in litera K. 48. verb. Kriegsbewestigung. Sect. pen. p. 478   

Locus Poenitentiae.  
AFter Articles of agreement are subscribed, of which one is, that they shall be extended in a Contract: Quaeritur, If there be Locus poenitentiae? Ratio Dubitandi, Because antequam totum negotium in mundum sit redactum licet poenitere L. 17. Cod. de fide Instrumentorum.  
An agreement being to be perfected in Writ, whereby one of the Parties was to be obliged to pay a Sum of Money; there was a Letter Written thereafter by that person, desiring that the Writ may be drawn, and bearing that he should perform conform to the said agreement, Quaeritur; If he be bound by the said Letter, so that there is no Locus poenitentiae? Answer. It is thought, that the bargain being to be perfected in Writ, and until then there being locus poenitentiae, The Letter promising performance doth imply a condition. Viz. If the Writ be perfected and subscribed: seeing upon the drawing of Writes there may arise Questions which may hinder the perfecting of the same, & multa cadunt inrer calicem etc.    

M.  

Mare.  
MAre dicitur esse de districtu illius Civitatis. seu loci, qui confinit cum Mari: & habentes Jurisdictonem in territorio cohaerenti Mari, dicuntur habere Jurisdictionem in Mari intra centum milliaria. Jus Fluviat. p. 152. & 496. n. 23.   

Marriage.  
IF the Superior Infeft the Appearand Heir being unmarried, doth he pass from the Marriage?  
If Marriage be due, if the Appearand Heir be either senex or valetudinary? And either unfit or unwilling to Marry?  
It seemeth Celibate is not Delictum, so that the Casuality thereby should arise to the Superior; but only the Marrying without the Superiors consent inferreth contempt, and consequently Delictum & poenam?  
If the Appearand Heir be Married in his Father's time and have Children, and thereafter Marry after his Father's decease, will a Marriage fall to the Superior?  
If the Marriage of the Appearand Heir of Ward-Lands should be modified, with respect to the value of the Ward Lands, without consideration of his Debts? It appears that the Superior should not be in worse case by the Deed of his Vassal: and yet he may be in better, for if the Heir have beside a personal or other Estate, the Marriage will be modified to be such, as the Tocher to a Person of that Estate may be thought in probability to amount to.  
If a Person holding of the King, and other Superiors Respective; of the King blensh, but of them Ward; may resign in the King's hands to be holden Ward in aemulationem, and of purpose to prejudge the other Superiors? Saltcoats.  
If Parties be Married publicly. Quaeritur, If it be not our that they are impotent, as if it may be proven that before the Marriage the Man was Castratus; is it competent to the Heir or any other person concerned in the point of Interest (but the party prejudged) to question or dissolve the Marriage as null or dirimendum, upon that or any other Ground?  
If a Marriage be unlawful; and either of the Parties be in bona fide, which doth legitimate the Children. Quaeritur, If these Children will succeed with other Children of lawful Marriages, at least to their Parents?  
If they will succeed to their other Kinsmen? or if the Legitimation will only import that they are not Spurij, and that they have Testamenti factionem?  
If a marriage after Inhibition, may be reduced upon that ground?  
What are the Legitima Remedia to compel parties to consummate marriage upon Contracts? Whether they may not only be discerned by the Commissars, but by the Church, under the pain of Ecclesiastic censure?  
Where some Lands hold of the King Taxt-ward, and others hold of him Simple ward, Quaeritur, will he get both the simple Marriage and the taxed? Sir john Cuninghame saith, it was decided in the case of Innernytie, for both.  
Marriage being dissolved within year and Day, whether the Gifts, and Jocalia given hinc inde may be repeated? Item, whether the gifts given by friends will fall under communion? So that the Maxim, that Marriage being dissolved within year and day is in the same condition as to all intents as if it had not been, Is only to be understood of Does & Donatio propter nuptias.  
If an old Woman super annos, and past the age of Marriage being about Threescore years, shall succeed in the Right of ward-Lands, whether Marriage will be due? john Bonars Heir  
Quid Juris if a widow either man or woman, inter annos nubiles shall succeed to Ward-lands? Barclay of Pearstoun.  
If a Person have only two acres, or a mean interest in Ward-lands, but a very great interest otherwise, Whether will his Marriage be considered with respect to his whole Estate?  
Seeing the Marriage of appeirand Heirs belongs to the eldest Superior, Quaeritur, who shall be thought the eldest Superior, whether the eldest as to the Lands, or as to the Vassal; and if it be to be considered, which of the Lands, was first given in Tennandry?  
Quid Juris when a Marriage is fallen, but not declared nor gifted?  
A Marriage being contracted betwixt a woman Pubes, and one that is impubes, Quaeritur, If it be a Marriage, at least as to her, so that she cannot marry with another in the interim that he is not pubes? Ratio Dubitandi. That a Contract being mutual cannot Claudicate.  
A Father, by his daughter's Contract of Marriage, having disponed to her and the second Son of the Marriage, and the other Heirs therein mentioned his Estate, under Reversion and certain other Conditions; and in special if he should ordain a certain Sum should be paid by these who should succeed to the Estate, to his Daughter and her forsaids: and the said contract bearing also a Tocher of five Thousand pounds to be paid presently to the Husband: Quaeritur, If the Marriage be dissolved within year and day without Children, whether the Contract will be ineffectual as to all intents, as being causa data & non secuta cum effectu? Or whether it be as to the Right of the person of the Daughter, either as to the Estate or as to the said Sum ipso facto void, at least reduceable? And whether she may repeat the Tocher from the Husband's Heirs? Lady Yesters' contract of Marriage, being dissolved within year and day.  
A person being Heir to his Father in a great Estate holden blensh; And having a small piece of Land holding ward, which he may succeed to as Heir to his Father. Quaeritur, If notwithstanding he is Heir general and Heir in special in the Lands holden blensh, he needs not Enter to the said's ward Lands, in order to be free of a Marriage, which would be considered with respect to the whole Estate? Ratio Dubitandi. That being Heir as said is otherwise, he cannot refuse to be Heir of the said Lands. Answer. It is thought, that if he was charged to enter Heir in special at the instance of a creditor in special, he could not renounce: But the superior cannot urge him to Enter, but will have only the benefit of a Nonentry:  the said other Lands, and any interest he had as general Heir are distincta patrimonia from ward Lands, and he may own the one without the other.  
If the superior may affect and evict the said ward Lands by adjudication, for the Marriage of the appearand Heir, considered with respect to his other Estate, in prejudice not only of the appearand Heir, but of any who should thereafter be appearand Heirs? Ratio Dubitandi, That the Marriage being but a Casuality may exceed more than the double of the value of the Lands, which is absurd. Cogitandum.  
If the appearand Heir will notwithstanding be liable to the Marriage, albeit he doth not enter nor renounce to be Heir, as to these Lands? Ratio Dubitandi. That Refutatio of vassals is not admitted, unless they satisfy the casualties already fallen. Answer. It is thought, he may renounce and be free of the casualties personally; without prejudice to the superior to affect the Ground: and the case is different from that of vassals infeft,  they having accepted the Right they cannot offer to renounce, unless they pay what was formerly due to the superior, being fructus Dominij; whereunto not only the Ground but they are liable personally, by reason of their Right and possession, and it cannot be said that the appearand Heir, has either. Mortounhall.  
There being divers Adjudications of Land holding ward within year and day, but Infeftment only upon one; and that adjudication whereupon Infeftment is, being before the debtors decease, and therefore stopping the Ward; and the rest after but within year and day of the first Infeftment, Quaeritur, If the first be satisfied by intromission, may the superior claim the Ward of the appearand Heir of the Debtor being Minor, in respect the act of Parliament Debtor and Creditor doth relate only to the interest and and competition of creditors, and doth not prejudge superiors of their Right and casualties; and the adjudger Infeft is only vassal; and the other adjudgers are not vassals; and by them the superior can have no casuality either of Liferent, Ward, or Marriage? Cogitandum. L. Bancreiff.  
When divers Lands are holden of the King, some in simple Ward and others Taxed as to the Ward and Marriage, Quaeritur, when the Marriage falls, whether the King will have both the simple Marriage and the taxed Marriage? Answer. That since at one time there can be but one Marriage, there can be but one Casuality for the same: and as the King would have but one Marriage, albeit there be divers Lands holden ward of him simpleward; So in the case foresaid, where there are some taxed, he cannot have two Marriages; and the taxed being only aestimatio, where there can be no Marriage there can be no Taxed due: The same question may be of Lands holden simple and Taxt-Ward of a Subject.  
A person being charged with Precepts out of the Chancery to Enter a person presented upon forefaulture, and in respect of his Contumacy the person presented being Infeft upon a Precept out of the Chancery and thereafter deceasing. Quaeritur, the Lands holding Ward, whether the Marriage of the appearand Heir will belong to the King or to the Superior? Ratio Dubitandi. That the Superior not having owned the defunct to be his vassal, he cannot claim the Marriage of his Heir: and on the other Part The King is not Superior, and grants only Infeftment in Subsidium: and doth what the Superior without reason refused to do: and there is a great difference betwixt the case foresaid, and that, when the Superior not being Infeft himself is therefore charged to Enter, with certification to Lose the Superiority during his Life; Because in the first case, there is no contempt of the Superior, but a wrong done to the person who would enter being a stranger to the Superior not being formerly his vassal: and in the other case there is both a wrong to his own vassal, and a contempt of his own Superior that he is in nonentry; and the more aggravated, that being charged to enter he continues in nonentry; and the act of Parliament therefore provides that he should Lose the Superiority.  
It is informed by james Hay, That the Lords have lately found, That when Lands are holden some simpleward and some taxed, both the single and taxed Marriage will be due: The Precedent being of another opinion.  
If a Superior Infeft his Vassal being Minor, before the Marriage fall by his attaining to the age of fourteen years, may he claim the Marriage after it falleth?  
If he Infeft him after the Marriage has fallen, whether doth he pass from the Marriage?   

Marriage Clandestine.  
BY the act of Parliament anent unlawful Ordinations, these who are so Married amitting jus mariti & relictae, Quaeritur, If the Husband Loseth his Curiality or the woman her Terce? Or only Jus mariti as to the Communion of moveables; Acts Specially penal being stricti juris, and there being, beside, other pains?  
If Clandestinae Nuptiae without consent of Parents, though they bind the parties so that they cannot Marry with any other, yet will be null as to Parents and friends, that the Children cannot succeed to them against their will?   

Materna Maternis.  
IF in no case that Maxim Materna Maternis has place with us? And in special (in that viz.) if a Person succeed to his Mother and decease without Heirs upon the Father's side, will the Fisk exclude the Mother's friends, the Estate being profectitious and descended from her?  
In Allodialibus there is no succession of the Mother or her friends active; but in feudis foemineis, if a Son should succeed to his Mother, and should thereafter Die; Quaeritur, whether his Heirs upon the Father's side would succeed to such Lands, or his Mother's Heirs? Ratio Dubitandi That the said Lands are given ab initio, primo investito and his Heirs, which must be understood haeredes Sanguinis: and the son having succeeded to his Mother, his Heirs upon the Father's side cannot be thought to be Heirs either to her or her predecessors: and therefore in that case it is to be thought, that the Rule should have place Materna maternis: and there is the like reason in Patents of Honour being quasi feuda; and being granted by the King to the receiver of the Patent and his Heirs.  
A Person, as said is, being infeft in Lands as Heir to his Mother, and dieing without issue: whether will his nearest Kinsman upon the Father's side or Mother's side succeed to him in the said Lands? Ratio Dubitandi, That by our custom the Father's friends are always preferable; and that Rule Paterna Paternis & Materna Maternis has no place: and yet it is thought that in mobilibus, when a person has Right to the same as Executor to his Mother they go to the nearest of Kin upon the Father's side; Because there is no affectio as to mobilia, and there is no Limitation or Destination of Heirs as to these; But as to Lands, when the Right is taken to a man and his Heirs, and a woman succeeds to the said Lands, and thereafter her son as Heir to her, if the son die without issue, his Mother's Heirs ought to succeed:  by the Infeftment no person can succeed but he that is Heir of blood to the person first infeft, either immediately or mediately.  
Quid Juris, as to Bands for Sums of money? Answer. It appears, that there is eadem Ratio,  there is in bands Limitatio haeredum.   

Matrimonium  
SOla nuptialis benedictio & solennis & publicus in Ecclesia benedicendi ritus, vera est Matrimonii apud Christianos executio; ex quo tempore jura Matrimonii vigorem suum obtinent, Licet concubitus non fuerit secutus. Christenius de jure Matrimon. Disser. 1. quaest. 1.  
Si post sponsalia pura, concubitus accesserit, & sponsa conceperit, sponsus vero ante confirmationem diem obierit; de jure, partus non est Legitimus, quia non est ex justis nuptiis. Idem-eadem disser. Quaest. 2.  
Isto casu licet interdum Sponsalia habeantur pro Matrimonio, illud locum habet solummodo, quoad vinculum mutuae promissionis, ne illud temere solvatur, non quoad reliquos Matrimonii effectus. Idem. eadem. diss.  
Jure Civili, Divino, & Canonico, non aliter Legitimum est Matrimonium quam si Parentes consentiant; nec minus Matris quam Patris consensus requiritur, praesertim mortuo Patre.  
Non interest, utrum consensus sit expressus an tacitus; paria enim sunt consentire & non contradicere. Idem de sponsalibus. Diss. 1. quaest. 3. p. 17. & 18.  
Parentibus non permittitur Matrimonium impedire, si id fiat injuria; & cum causa sit cognoscenda, Statutis quarundam Civitatum, cautum est parentes isto casu ad Judices Ecclesiasticos seu Commissarios causarum Ecclesiasticarum esse citandos; & si Liberi sint minores viginti quinque annis, non tenentur parentes rationes sui Dissensus proferre; sin Liberi annum vigesimum quintum expleverint, Parentum oppositio non aliter locum habet, quam si justas Dissensus causas proferant. Ibid. P. 19  
" Si Titiae ea conditione Legetur, si arbitratu Seij nupserit, habetur pro non adjecta, & debetur Legatum licet conditioni non pareatur. Christen: de spons. quaest. 17.  
Si ad sponsalia clandestina, quae consensu Parentum carent, concubitus accesserit, non confirmatur Matrimonium, si parentibus justae causae sint dissensus: haec sententia curijs Holland: placuit. idem quaest. 20.   

Mensis.  
SI Mensis simpliciter proferatur, intelligitur de mense solari & Duodecima parte anni, vel triginta Diebus. Thes. Bes. in Litera M. 68 verbo Monat. p. 664.   

Mensura Taxative & Demonstrative.  
INterest utrum Mensura in venditionibus Taxative, an vero Demonstrative adjiciatur: illud fit cum ab ipsa mensura contractus initium sumit, hoc cum a corpore. Jus fluviat, P. 810. n. 58.   

Militia.  
THE Gentlemen that went out in a Troup in the late Expedition, having been at Charges for a Banner, Trumpet, and Coat, etc. Quaeritur, If the said Charges may be laid upon the whole Shire? Answer Negative,  the Militia-Horse did not go out; and it was munus Personale upon the Heretors within age to go out.   

Miln.  
A Defunct being in Possession of a Miln being a Horse-miln; whether will the said horse and other instrumenta mobilia that are in the Miln, belong to the Heir?  
Quid Juris as to Milns when they are either set to Tenants or possessed by Liferenters quoad the duties of the year wherein the Liferenter dyes? vide Liferenter Litera L. and the like cases of Third and Teynà and Titular. Litera T.   

Minister's Stipends in a Reddendo.  
IN Infeftments of Erection, the Reddendo is ordinarily a blensh Duty, and beside to Pay to the Minister the stipend therein mentioned Quaeritur, whether the stipend be Debitum fundi? Ratio Dubitandi, That what is due upon the Reddendo not relating to Lands, but to Teinds which are not fundus & subjectum permanens, But a Benefit ariseing out of the Lands; such a Reddendo non afficit fundum; no more than Teinds and a valued duty.   

Minor.  
WIll the Heir of a Minor be restored upon that ground, That the Lands being Entailed he resigned in favours of the Heirs whatsomever? There being no Lesion to the Minor.   

Minor non tenetur Placitare.  
MInor non tenetur placitare holds not, ubi agitur de Dolo, culpa vel obligatione Defuncti, as in Recognitions, Forefaultures, etc. Cranburn contra Lady Carnegy. Humby contra his Niece.   

Reduction upon minority.  
Land's being disponed to a Minor, and after his perfect age the Bargain being questioned as being to his prejudice, in so far as the same was for Eighteen years' purchase and a half, & the same might have been bought at Seventeen according to the rate of the times. Quaeritur, If such Lesion not being Enorm (and modica) be relevant? Ratio Dubitandi, The defender contracted bona fide with a Tutor the pupils Father, and Licet Contrahentibus se invicem decipere, and non constat notourly, That that was the rate; and some of the witnesses declare the contrare; and the defender will get a Buyer at the same rate. Tweeddale contra Drumelzior. vide Annualrent for Damnage, Litera A.   

Decreet against Minors.  
IF a Decreet against Minores indefensos, no Curators being called in special but in general at the mercat Cross if they have any for their interest, be null? Ratio Dubitandi, Gesta cum adultis non habentibus Curatores are not void: and on the other part, by the common Law Datur Curator ad Litem, & Minor non habet personam standi in Judicio; & lata Contra Minores indefensos sententia, non Tenet. L. 45. § 2. ff. de re judicata. vide Perez. Institut. Lib. 1. de Curatoribus. § Danturne invitis.   

Mobilia.  
IF Mobilia has Situm, when they are here animo & destinatione Domini; so that when they belong v. g. to Englishmen they are to be thought Res Scoticae and to be affected with the Laws of Scotland; and he cannot dispose of them by a nuncupative Will. And e Contra, If he should change their situm, and transport them to stay in England?   

Mobilium vilior possessio.  
MObilium vilior & abjectior est possessio & facilius acquiritur & amittitur, quam immobilium; in ea non cadit tanta affectio: non est Locus in ijs redhibitioni Gentilitiae sive juri 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. Hering. de molend. quaest 8. n. 58. & sequent.  
Mobilia sequuntur conditionem personae sive Domini, adeo ut ejus ossibus adaereant active & passive: Immobilia autem co-haerent Territorio.   

Modus habilis.  
IF a person having Right to Lands (wherein another is infeft and in Possession, so that he has the benefit of a possessory Judgement) should dispone his Right, which is preferable in favours of the said party who is infeft and in Possession as said is; and thereafter another person upon a posterior disposition should complete his Right by Infeftment: whether or not will the said prior Right at least Extend to and import a discharge of the action of reduction, and militate against the singular successor?  
If a Reduction being intented, the pursuer judicially Declare that he passes Simpliciter from the said action, will that bar a singular successor;  the said Declaration is upon record, whereas in the case above mentioned the disposition is a Latent deed, which cannot prejudge a singular successor?  
If at least if it were Registrate in the register of seasins, it would prejudge; being none of the Writs appointed to be registrat therein?   

Molendinum.  
NOn licet molendinum exstruere in flumine publico, sine Principis consensu. Frits: Jus fluviatile p. 10. n. 128.   

Molendina aquatica.  
MOlendina igitur aquatica sunt de Regalibus. Idem p. 13. n. 175.   

Molendina Bannaria.  
MOlendina bannaria sunt, ad quae integrae Communitates vel Pagi praecise ire coguntur. Jus Fluviat. 1225 versus finem.  
Quae appellatio inde videtur sumere originem, quia Bannire apud veteres Germanos idem significat quod Sancire, Jubere, Edicere. Hering. de Molend. q. 11. n. 2, & 3.   

Molendina navalia Immobilibus accensentur.  
MOlendina navalia pro immobilibus habenda sunt. Hering de Molendinis q. 8. n. 26. quia aedificans ea intentione & destinatione ea extruit, ut semper & perpetuo non pro motu sed pro molitura in ipso flumine manerent; nec 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 & molendinum aquaticum perpetuae morae causa ad ripam exaedificatum, plus praestare potest quam Molendinum navale; nec in illo quidquam nominari potest quod huic non insit, rotae molares & caetera omnia. idem q. 8. 26. & sequen. Ea destinatio & attributio ad molendum, molendinum immobile reddit.   

Molendina 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉  
MOlendina 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alata, seu vento agitata, immobilibus accensentur: Idem eadem. quaest. n. 40.   

Districtus Molendini.  
VEnditâ moletrinâ, licet non fiat mentio districtus, id est, jus cogendi subditos molitoris ad molendum, venit tamen; quia simplex rei alienatio pertinentias rei continet. Jus Fluviat. p. 1229. n. 31.   

Quomodo qui sunt in districtu Molendini cogi queant?  
ETiamsi is qui emit Molendinum, non posset Jurisdictionaliter cogere Rusticos inhabitantes in districtu Molendini; potest tamen eos cogere per actionem, per manus injectionem in frumenta & fruges Molendas. Hering. de Molendin. q. 11. n. 145.   

An qui sunt in Districtu alibi molere possint?  
SUbditi in aliis Molendinis molere possunt si Dominus Molendini non procuret eorum grana in mola sua bannaria contundi intra spatium viginti quatuor horarum. Idem quaest. 11. 139. & alii ibi ab eo laudati.   

An Extrui possit Molendinum quod noceat vicino?  
SUperioris Molendini Dominus prohibere non potest, ne in inferiori loco alius Molendinum exstruat, tametsi ex eo futurum sit ut superioris reditus diminuatur; quia ex eo quod quis suo Jure facit, teneri non potest, licet alteri per consequentiam noceatur: distinguendum est, qua ratione superiori vicino noceatur, nam si ob id solum quod minus frequens sit Superioris Molendini commercium prohibendus non est, cum suam posset quisque conditionem Meliorem facere, etiam cum alterius detrimento, dummodo citra injuriam: Si vero ob id quod cursus aquae impediatur, & ex restagnatione fiat ut superius Molendinum perinde exerceri nequeat, prohiberi potest: nam sic debet quis rem suam meliorem facere, ne vicini Deteriorem reddat. Heringius, de Molendinis. q. 14. n. 30.   

An Molendinum possit Extrui sine licentia Principis?  
IN flumine publico navigabili aut tale faciente, non nisi ex principis licentia: sed in alio non navigabili, attamen publico, sola Gentium authoritate Molendinum extrui potest. Idem quaest. 15. n. 39   

Restagnatio Molendini.  
SI duo in eodem flumine Molendina possederint, quoad Restagnationem pacta & consuetudo primum servantur; his deficientibus, qui prior aedificavit primas habet partes. Idem quaest. 20. n. 10.   

Vsus Molendinorum Juri Civili ignotus.  
QUae de Molendinis nunc obtinent & in usu sunt, Juri civili ignota sunt maxima ex parte; nam post Imperii translationem ex Oriente in Occidentem tempore Caroli Magni, etiam Juris mutatio successit; & usus Molendinorum alio loco esse coepit quam apud Romanos: adeo ut Molendina exstruendi facultas hodie non amplius sit communis, sed privata ut plurimum; siquidem Principibus, Comitibus, & Baronibus ab Imperatore; a Principibus rursus viris nobilibus & aliis cum Territorio & feudis Jure Clientelae tribuitur; ita ut jus Molendinorum pro beneficio Regali aut principali aestimetur. Heringius de Molendinis. Quaest. 7. n. 4. & sequent. p. 124.   

Vbi convenit, ut pro Familia molatur, quid Juris si aucta sit?  
SI in concessione feudi aut Emphyteuseos aut simplicis Conductionis, pactum adjiciatur quod debeat accipiens molere frumentum pro tradente, ipsiusque tota Familia; eaque si aucta fuerit pro omnibus molere debet gratis, aut eodem quod convenerat pretio: potest enim evenire ut Familia minuatur & sic molitor est in lucro: Cum igitur penes eum eo casu foret Lucrum, debet damnum sentire: Idem obtinet in Furno, & concessione Lignorum pro familia. Hering. de molen. quaest. 20. n. 15. & sequen.   

If a Mother and her Friends may succeed?  
IF in no case Cognati on the Mother's side can succeed? Answer. It is thought that they ought to succeed; seeing the Son succeedeth to his Mother and her Friends; and Jus successionis should be reciprocal, being founded upon Proximity of Blood, which is the same to the Mother and to the Son: But in this our Custom is lame, and opus est vel constitutione vel Decisione.   

Mutuum.  
MVtuum & Commodatum and such other Contracts which are said Recontrahi, and not nudo consensu; Quaeritur, If they may not be said to be Contracted, when a Write is Subscribed thereupon, obliging persons to lend Money or Commodare? Answer. Such Contracts cannot be said to be Mutuum or Commodatum nisi res intervenerit: And yet datur ex iis actio praescriptis verbis, or in factum.    

N.  

Nonentry.  
IF the Superior of Lands holden feu, will have, during Nonentry, both the Feu-duty as his own, and the Nonentry Duty as Casuality and Fruit of his Superiority?  
The Superior being in Nonentry. Quaeritur. Though the Nonentry were declared, whether the Liferent Escheat of the Subvassal would belong to the immediate Superior? Ratio Dubitandi, It is not a feudale Delictum and commissum; but ex lege, which is in favours of the immediate Superior.  
If the Superior suffer the Appearand Heir to be in Nonentry and to possess without a Process for Nonentry; If he may have a real Action of poinding the Ground against a singular successor?  
If the full Duties will be due to the Superior upon account of Nonentry following the Ward, albeit the Superior was not in possession during the Ward?  
Quaeritur, When Lands are Disponed by a Baron to be holden of himself; If before Declarator of Nonentry the full Duties be due, when the Lands are Disponed without any mention of Retour or Extent? Answer. If the Lands be Disponed to be holden from the Disponer of the King, a proportion only of the Retour Duty is due; Because the King and the Disponer having condescended that the old Barony should be extended, That part which is Disponed to be holden of the King censetur eodem Jure with the rest of the Barony; But when the Baron Dispones a part to be holden of himself without any mention of Extent, the full Duties may be claimed, at least the proportion of the valued Duty.   

Novo-damus.  
THE King having granted a Charter with a Novo-damus, Quaeritur, If he should have succeeded to a person having a better Right either upon Forefaulture or Recognition, or as next Heir; will the Novo-damus bar him? Or if the Novo-damus should be understood to be restricted to any Right or pretence or claim the King may have to the Lands by the Right of the Resignant, as falling in his hands by Forefaulture of him or his Authors, or otherways from their Right, and the committing of the same, either for ever or for a time?  
Quid Juris as to other Superiors having succeeded to persons having a better Right?  
Quid Juris, If other Superiors have received any Vassal upon Resignation or otherways; if they may question their Vassals Right upon another unquestionably better, falling to them as succeeding to any other person?  
Lands having fallen to the King by Forefaulture, the person Forefaulted having but a Right of Superiority, the Property belonging to Vassals: Quaeritur, If upon Resignation of the Subvassal in the King's hands as immediate Superior by the Forefaulture; a Charter with a Novo-damus will put him in that Condition, as if he had from the beginning holden of the King; so that the King cannot interpose another Superior by Disponing the Superiority that did belong to the Traitor? Ratio Dubitandi, That the Novo-damus is equivalent to an Original Grant: And yet is thought, That the Novo-damus is only an accessary Right, and in effect Clausula executiva; whereby the King gives the Property, that belonged to the Resigner with all Right he could pretend thereto; But not the Interest and Superiority that belonged to the Traitor, unless it were expressly Disponed: & actus agentium non operantur ultra eorum intentionem. Duncan of Lunaie.  
The King having granted to my Lord Kincardine, and thereafter to the Chancellor a Gift of the Wards and Non-entries that had fallen or should fall during the time therein mentioned Respective; and thereafter having given divers Infeftments with a Novo-damus. Quaeritur, If the foresaid Donators could be prejudged by the said's Novo-damus? Answer. It is thought that the said's Novo-damus are of the nature of Gifts or Discharges of such Casualties, which the King might grant before Intimation made to the persons of the said Gifts.   

Nullitas ex verbis non licebit.  
VErba non licet vel non licebit, annullant actum; important siquidem necessitatem praecisam; negant potentiam, resistant actui & aliter factum invalidant. Thes. Bes. in Litera K. 31. verbo Can. Sect. ultima. p. 469.   

Clausula ex nunc prout ex tunc.  
VErba Ex nunc prout ex tunc, sunt retro activa & important canonem latae sententiae; operanturque actum completum etiamsi verbum futuri temporis sit adjectum; adeo ut unum tempus insit alteri, extremum in primo, & primum in postremo. Heringius de Molendinis quaest. 1. n. 45.   

Nundinae.  
NVndinarum solennium Jus, ad majora Regalia pertinet.  
Nunquam Caesar consuevit alicui dare Nundinarum privilegium, nisi prius adjacentibus & vicinis Civitatibus quarum interesse potest, auditis.  
Nundinarum favor magnus est, quia earum tempore res aut personae alicujus arrestari non debent; Secus in Mercatis.  
Quemadmodum tempore Nundinarum in loco illarum arrestare aliquem non licet; ita etiam nec in illo sine quo Mercatores ad Nundinas venire non possunt, Thes. Besold. in Litera M. 43. p. 631.    

O.  

Oath of Coronation.  
IF what is required and promised, by the King the time of his Coronation, be understood to be Conditiones Regni, so that the same not being fulfilled the People is free? Answer. These are not Conditiones either Suspensivae or Resolutivae, but modus regnandi: And albeit Modus ought to be fulfilled, and subjects who are under a Coercive Power may be urged to observe the same; yet a Prince who is subject to no higher Power relinquitur Religioni Juramenti, & Deum solum habet ultorem.  
These Similes may be urged to this purpose, viz. A Father is obliged not to provoke or wrong his Children, and that is Modus employed in the Relation of a Father; and yet if he do otherways the Relation is not taken away: And when Parties are Married, there is Stipulation hinc inde of mutual Duty, not only as to Chastity, but as to other Duties, and yet though they fail in the same, being only Modus vinculi conjugalis, the Marriage is not dissolved except in the case of Adultery: That Duty of mutual Chastity being inter essentialia, and the other Duties inter naturalia conjugii.   

Qualified Oaths.  
WHether qualified Oaths may be received before Inferior Judges? Answer. It is thought not: The question whether the qualities should be construed qualities or Exceptions, being of that difficulty, that they are not to be decided by Inferior Judges.  
The Lords are not in use to receive qualified Oaths unless they be given in to be seen by the other Party, and upon debate be found Relevant; so that the person who is to give his Oath may be admitted to Swear in the terms of the same, as being properly Qualities and not Exceptions. Quaeritur, What Qualities ought to be sustained? And seeing it is the common opinion that intrinsic qualities may be received; Quaeritur, What Qualities are to be thought Intrinsic? Answer, These are Intrinsic that are inherent in the Act and Matter in question v. g. If it be referred to the Defenders Oath that he promised to pay the Pursuer a Sum of Money, he may declare in what Terms he promised, pure, in diem, or sub Conditione.  
If it be referred to a Parties Oath that he is Liable for a House-mail (having taken and dwelled therein) after three Years. Quaeritur, If he may declare with that Quality that he paid the same? Ratio Dubitandi. That it is Extrinsic, and not a Quality but an Exception: On the other part, quomodo unumquodque ligatur, solvitur; and the Debt not being proven but by his Oath, he may prove payment the same way. 2do. There is a presumption in Law, which is the Ground of so momentary a Prescription, That such Debts are not so long owing; And therefore it ought to be proven by the Defenders Oath they are owing. 3tio. It is the common practice, that Parties that are not bound by Writ think they are in tuto to pay without Writ.  
If he declare not positive that he paid, but that he Assigned a bond or Debt in satisfaction. Quaeritur, If that Quality should be received? Answer. It is thought, that it is not intrinsic.   

Correspective Obligements.  
QVid Juris, If there be correspective Writs of one Date, but not in one Body, as v. g. a Disposition of Lands and a Bond of the same date for payment of the price: If the Exception competent against the price (viz. The Disponer cannot be liable unless the price be paid) will militate against the singular Successor? Ratio Dubitandi, The Disponer sequitur fidem: And the Obligement to pay the price is not in corpore juris; so that the Assigney is in bona fide to take a Right thereto: & Contra, Personal Exceptions competent against the Cedent are competent against the Assigney, in Obligations personal hinc inde.  
It is informed, that there is a Decision, That such Exceptions are not competent against Assigneys.   

Mutual Obligements in Contracts.  
IF there be a mutual Contract anent the selling of Lands and payment of the price; & the Buyers creditor comprise the minute in so far as it is in his favours; whether he will have action for implement unless he pay the price? Answer. He will not:  the final cause of the Disposition is the Price.   

If Offices do Escheat by Horning?  
IF the Keeper of a Register, or Writer to a Seal be at the Horn Quaeritur, if his Office will fall under his Escheat? Ratio Dubitandi, That nothing is Escheatable but that which may be transmitted and is applicable to another; whereas an Office is a personal Function, and industria personae eligitur, which is so personal that it cannot be conveyed by his Escheat to another.  
If at least the Rebel doth forefault his interest, if he be year and Day at the Horn? And Quid Juris as to Judges, who have places from the King, and as to Commissars, and Ministers, that are presented by other Patrons, whether by their Rebellion they be so disenabled, that they cannot enjoy their Places, and their Patrons can present others?  
Whether at least Relaxation will repone the Rebel, and take away the Inability?   

Omissa & male appretiata.  
A Person being named Executor and universal Legatar. Quaeritur, If a Testament ad omissa & male appretiata be confirmed, will the principal Executor Loss both the Office and the Benefit of the Legacy, as to what is omitted and male Appretiat? Answer. It is thought, he will Loss both, in respect of his Fraud and Perjury, in the same manner as the nearest of kin confirming, will in the like case, loss not only the Office but the Benefit competent to him, as nearest of Kin, as to that which is omitted, or male Appretiate.   

Operae.  
IN Materia Operarum Consuetudo & praescriptio multum consideratur. Jus Fluviatile p. 121. n. 3.   

Order of Discussing.  
WHen a Defunct doth oblige him and his Heirs, renuncing the order of Discussing, Quaeritur, will the Heir of Line be liable to Relieve the Heirs of Tailzie and Provision, as to such Debts for which by the Law he should have been first Discussed?    

P.  

Pactis Privatorum non Derogatur Juri Communi.  
THat Law That Pactis privatorum non derogatur juri Communi what way it is to be understood? And if it be only as to Solemnities, or Formalities provided by Law, and not when the Law provides any benefit in favours of a person, as a Communion in favours of a Husband and Wife; or Courtesy or Terce, or such like?  
The Prince, and under him the Judge, and in special 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (sed quis custodiet ipsum Custodem) the Lords of Session, have not a Legislative Power: And when there occurs a Case not formerly decided, and the best governed Nations do not agree anent the Point in question; some being for the Affirmative, some for the Negative; and upon probable Reasons on both sides, sustinendum Judicium: Or, if the Question be of an Exception from a general Rule; the Rule is to be stuck to, until there be a Law to the contrare; as in that case, whether Minors should be debarred from the Remedy of Restitution, by their Oath; conform to the Novel sacramenta puberum: Which in effect is to make a new Law.   

Parliament.  
IF Reductions may be pursued summarily before the Parliament in prima instantia? It is thought, that although when my Lord Lauderdale was Commissioner, that was done, in the Case of the Lord Forester against General Ruthven's Relict; and at the instance of the Lord Dundie against Pittaro; And there is now a Complaint at the instance of Edzel against The Earl of Crawfurd for reducing the said Earl his Title: yet such Processes would not be sustained before the Parliament, If it were represented, That by Divers ancient Laws, and for great Reasons it is provided, that all Complaints in civilibus should be first pursued before the Judge Ordinary.   

Passing from a Right.  
IF a Tacksman of Teinds having a Tack yet to run, take another Tack of the said's Teinds: Will he be thought to pass from the former? Lauderdale contra Tweeddale.   

Patents of Honour.  
PAtents of Honour being granted to a Person, and his Heirs Male of his Body; Quaeritur; 1mo Whether the appearand Heir may sit in Parliament and not be Liable as Behaving? It is thought, (whatever may be pretended as to Custom) in strict Law he should be liable; seeing in General, the owning an Heretable Interest is aditio passive, and gestio pro haerede. 2do. Quaeritur If a Patent and Title thereby, may be resigned as feudum for a new Patent to the Resigner and other Heirs than in the former? Cogitandum. If it may be resigned, Quaeritur, If the Resigner must be first served Heir? Cogitandum.  
If a Nobleman having a Patent to him and the Heirs Male of his Body, should thereafter resign his Title and obtain a new Patent to him and his Heirs Male of his Body, which failyiening to his eldest Heir Female without Division: And the Heirs Male should fail; may a Nobleman who in the interim has got his Title betwixt the first and second Patent; claim place before the Heirs Female, as having Right by the second Patent, being before theirs: Or if the Heirs Female will have place as representing their Predecessor, who had Place by the first Patent, seeing the second is but a Continueing of the first in favours of him who got it, with an alteration only as to his Representatives: And they who had posterior Patents were not concerned who should represent him; and it was uncertain whether the first Heirs should fail; so that they might have any prejudice by the change Roxburgh contra Lothian.   

Pecunia Pupillaris.  
IF a Tutor uplift the mails and Duties of Lands, a quo Tempore will he be liable to stock the same, so that the Pupils Means be not unprofitable? Or if this be not Casus arbitrarius, according to the variety of Circumstances? Balhousy and the Tutor of Dumb james Hay.  
If a Tutor be not liable for Annualrents, and when should they be stocked?   

Pensions granted by the King.  
QVaeritur,  Pensions granted by private Persons are binding, and are a Ground of Action; Whether Payment of Pensions granted by his Majesty may be denied? And if not, What Remedy is competent?   

Personalis Actus.  
ACtus, in quo est apposita dictio Ipsi, in contractibus non stat restrictive, sed tantum demonstrative; ideoque non impedit transmissionem; & Contractus non obstante dictione ipsi ad haeredes transeunt, quia quilibet praesumitur suo haeredi ut sibi prospicere; quae praesumptio non tollitur ex dictione sibi, quia est violenta & procedit ex visceribus naturalibus, contrariam probationem non admittentibus.  
Si in alia Dispositione sit simplex concessio, Dictio sibi non restringit: & adjectio personae in concessione de sua natura ad haeredes transitoria non facit quod concessio sit personalis, & non transitoria.  
Secus est in concessione non transitoria, puta ubi electa est industria personae: vel in actu personae cohaerente. Thes. Besoldi, in litera I. 10. verbo Ihme. p. 425.   

Pignora.  
SErvi Aratores & Boves Aratorii, & Instrumenta rustica pignori haud capiuntur, l. 7. Cod. quae res pignori obligari, etc.  
In obligatione generali rerum quas quis habuit aut habiturus est, non continentur quae verisimile est quemquam specialiter obligaturum non fuisse, ut supellex quam quis habet in usu quotidiano & necessario, vel quae ad affectionem ejus pertinet.  
Invecta in praedium urbanum tacite oppignorantur; secus in praediis rusticis quia sufficit in iis fructus teneri, Heringius de molendinis q. 28 n 12 ad 18 inclusive.  
Studiosorum supellex libraria sub tacita illa oppignoratione non venit. Ibidem.  
Ea tantum invecta censentur obligata, quae illata sunt ut perpetuo ibi sint; ideo nomina & instrumenta obligationum & merces illatae ut venderentur haud veniunt. Ibidem 20.  
Creditor jure civili poterat pignus alienare, etiamsi pactum non intervenerit; praevia tamen denunciatione ut debita solvat; & licet pignus alienare, cessante debitore in solutionem per biennium post denunciationem. Perez. Lib. 2. Tit. 8.   

Plenishing; If a Wife be provided to a part of it?  
BY Contract of Marriage, a Wife is provided, in satisfaction of Terce, Third or other part of Movables, except the half of the Plenishing of the House the time of the Husband's Decease, Whereto it is provided she shall have Right. Quaeritur, If there be no Free Gear, will the Heir be obliged to free the half of the Plenishing? Ratio Dubitandi. The Contract bears she should have Right; and she is in the same case as if her Husband had disponed for an Onerous Cause the Plenishing he should have the time of his Decease: And on the other part, it seems this Provision should be understood Conditionaliter, if there be free Goods: And the Clause being an Exception from a Renunciation, both the Renunciation and Exception from it, aught to be of the Regula, and of that which would belong to her, if she were not excluded, which could only be the free Gear.  
If the clauses do not bear besides the Heirship, Quaeritur. If she will have Right to the plenishing, without Deduction of the Heirship? Eadem Ratio Dubitandi.   

Possessor.  
PRocessum ligitiosae possessionis, Hispani Interim, Galli Recredentiam, Belgi Provisionale remedium, alii processum informativum appellare solent, Budaeus litem vindiciariam. Thes. Bes. in Litera I. 29. verbo interim mittel.  
Possessor bonae fidei fructus consumptos suos facit absolute, extantes vero Dominocedunt.  
Possessor vero malae fidei, nec consumptos nec extantes suos facit, sed Dominus extantes vindicat; consumptos vero condicit condictione sine causa. Perez. lib. 2, Tit. 5.   

Poinding of the Ground.  
A Lord of Erection having Disponed Teinds, and the Reddendo bearing a Sum to be paid for a proportional relief of the blensh duty payable by the Lord of Erection; and certain Bolls of Victual to be paid also for his relief to the Minister: Quaeritur, Will the Minister have action for poinding the ground? 2do. What will the Superiors poinding the Ground import?  
A Decreet of Poinding the Ground being got against the Heretor for the time and the Tenants: Quaeritur, If after the Death of the Heretor the Lands may be comprysed for the Bygones from the Appearand Heir, without a Decreet of transferring, or a new Decreet: Answer. It is thought, there is no need of any other Decreet; the Decreet being Really founded; which may be recovered against an Appearand Heir, and put in Execution by Comprysing, or poinding against him.   

Prerogative  
IF the Question betwixt Roxburgh, and Lothian, should be determined with respect to his Majesty's Prerogative being the Fountain of Honour? It is thought, that His Majesty's Concessions, whatever the Subject be, should be judged Jure communi; And that Jus quaesitum, whether as to Honour and precedency or any thing else, cannot be taken away upon any such pretence. The Prerogative is instar littoris which is defined quo fluctus Hybernus exaestuat: So that as the Sea does not go beyond the Shoar when the Sea is most full; so the Prerogative and Plenitudo Potestatis does never go beyond Law, which is a great Littus and Boundary of just Power.  
The Royal Prerogative is acknowledged and asserted by divers Laws and Acts of Parliament of this Kingdom; But how far the Extent of the same may reach, is a point of State and Policy of the highest nature and importance, and not to be defined by the Opinions of Lawyers, but by the Highest and Legislative Authority.  
The Royal Prerogative is not only asserted in the general by the Laws of the Kingdom; but divers and great Powers Rights and Privileges belonging thereto, are in special declared by divers Acts of Parliament; both in Relation to the Government, and in Relation to His Majesty's Interest, and Questions, and Causes, betwixt Him and His Subjects; As the Power of Calling and Dissolving Parliaments; The Choising and Appointing Officers of State, and Commissioners and Judges; To make War and Peace; And that there can be no Meetings to Treat or determine in Matters of State without His Majesty's Authority and Warrant: And that upon no pretence there can be any Rising in Arms without His Warrant; And His Right to Custums; And Power to grant Remissions for the Highest Crimes: And that the Negligence of His Officers cannot prejudge Him. And albeit by the Common Law the Eldest Superior is preferable, yet when Lands are holden of divers Superiors Ward, the Marriage of the Vassal, which otherways would belong to the Eldest Superior, doth pertain to the King, though as to the Vassal his latest Superior: And by custom, albeit the going to a Miln, for never so long a time, being facultatis, doth not import Servitude without a special Astriction, yet the repairing to His Majesty's Milns, by the space of Forty Years, doth induce a Servitude, without any other constitution: As to which and other points of the Prerogative, explained by Law and Custom, Lawyers may and aught to give their Opinions in Law.  
But as to Lawyers and Jurisconsults, it is said, Turpe est sine lege loqui, & ubi leges silent they cannot but be silent: And the Laws of Scotland, which ought to warrant the Resolutions and the Opinions of Lawyers, in Questions concerning the State and Government, are only the Statutory Law and Acts of Parliament, and the common Law and custom and undeniable practic of the Kingdom.  
As to the Civil Law of the Romans; it was only the Municipal Law of that People; And by reason of the great Equity of it, in Questions de Jure privato, though it has not the force of Law with us; yet it is of great Authority and use in cases not determined either by statute or custom; But, as to Questions of State and Government, the Civil Law is of no use with us; in respect the Laws of all Nations, concerning their State and Government, are only Municipal; and the Constitution of the Respective States doth  both from that of the Romans; and for the most part each from another: So that any Questions, concerning the same, cannot be solidely or warrantably Answered, upon Principles or Reasons brought from any Law, but the constitution of the Government and Laws and Customs of the Nation and Kingdom concerned.  
It is conceived, That when the Opinion of Lawyers is asked, Res should be integra, and they should be at liberty to give their Opinion freely and without prejudice, which they cannot do after His Majesty has any way predetermined them, by declaring his own Royal Will and Pleasure.  
As to that Question, What can be said, in Law, in defence of these who have acted contrary to Law, in Obedience to His Majesty, or upon his Royal Dispensation; if they should be questioned in the time of Succeeding Kings?  
It is Answered, That, upon the Grounds foresaid, nothing can be said positively to secure them, from Question, either by our Law or Custom; The said case being not mentioned nor determined by either: But it is to be thought and presumed, that His Majesty's Prerogative being asserted by the Laws foresaid, and His Majesty's owning that power to Command and Dispense as a part of His Prerogative, and they conceiving that it was not their duty to dispute His Majesty's Power; Succeeding Princes will not think it their interest, to be severe against any person, for exceeding in Obedience to their Royal Predecessors.   

Prescription.  
IF a Feu-Charter of Kirklands, not confirmed by the King or Pope, with Seasins thereupon, may be a Title to warrant Prescription?  
Temporary Prescriptions, as in case of House-Mails, Servants Fies, Ejections, etc. If they run against Minors?  
The Vassal retouring his Lands to be in Nonentry Fourscore Years, Quaeritur, If he may object Prescription quoad the retoured Nonentry Duties? Seeing after the Years of prescription, he confesseth the same to be due: & Temporalia ad agendum sunt Perpetua ad excipiendum?  
If His Majesties annexed Property does prescrive?  
If Prescription run, against these who were Forefaulted by the Usurper, Qui non valebant agere: Found for the Negative, Lauderdale contra Tweeddale; That Lauderdale his Father and Good-Sire non valebant agere, Because upon his Father's Resignation Queen Ann was Infeft in Liferent, and might have excluded them during her Life-time: and though he might have intented a Declarator; yet that being such an Action, as could not bring him to possession, he was not obliged to intent it: This Reason appears not to be without some Question, seeing if there were a Liferenter and Fire, and the Fire should not prevail with the Liferenter to join in an Action for interrupting prescription, the Fire should be without remedy if he would not interrupt by Declarator: and if a Declarator do interrupt, it cannot be said that non valebat agere. 2do. A Declarator would have brought the Lord Thirlestoun to Civil possession, at least so far as it would have been declared, that the Queen's possession was his, and by virtue of the Right thereof he was Fire: And if the Queen would not own the possession to have been by that Right, she should have been forced to remove: So that by that Action they might have attained natural possession.  
Before the Act of Parliament 1621. anent comprisings, the Legal ran against Minors; which argues, that the Temporary Prescriptions of Spuilyies, for House-Mails, Remove &c. run against Minors.  
If there be a difference betwixt the time of prescription in England and Scotland? Whether is prescription inter decisoria?  
Item, If Prelates, provided before the Act of Parliament 1585. (against Dilapidations) may notwithstanding thereof set Tacks without hazard? Seeing the Act seems to militate only as to persons provided thereafter.  
If a Feu-set contrary to the said Act against Dilapidations, may be a ground of Prescription? Ratio Dubitandi, That by the said Act, the Patrimony of the Prelates is extra Commercium, and is of the nature of the annexed property & quod non est alienabile non est praescriptibile. Vide, Dilapidation in litera D.  
If in all cases when an Obligement or Interest and Right is in the Defenders Right, whereby he bruiks, may he allege Prescription, as he cannot do in the case of Reversion, there being Eadem Ratio?  
What is the Reason, that Reversions Registrate do not prescribe? Seeing Bonds Registrate do notwithstanding prescrive.  
If a Faculty granted to a Person as v. g. to the Disponer of Lands, and a power to Dispone the samen, or to Redeem upon a penny, doth prescrive being granted apart?  
If, Prescription being alleged against a Bond, it be Relevant to reply and to offer to prove by the Excipients' Oath, that to his knowledge the the Debt is due, and true, and not satisfied?  
If a Reversion be granted only for five Years, Quaeritur, If in that case it prescribes against Minors? Vide de Retractibus Gentilitiis, if they prescribe against Minors?  
If a Minor acquire Right to a Comprysing near expired, singulari titulo, will the Reversion be prorogate? and if there be a difference betwixt a Minor succeeding as Heir, or otherways Singulari Titulo?   

Prescription against the King.  
THE Act of Parliament 1617. Militateth against the King, as to real Actions; when the Defender has prescribed a Right by possession founded upon the Rights therein mentioned; as appears by the express words and the ground of that Prescrption, being not so much odium & negligentia non petentis as favor possidentis, which is the same as to the King as to another: But in that part of the Act anent, the prescription of Personal Actions, there is no mention of the King, and he cannot be said to be negligent; and it is declared by Act of Parliament, that the negligence of his Officers shall not prejudge him. Quaeritur therefore, if Prescription in that case be competent against the King?  
Verba semper & quandocunque designant temporis infinitatem: & si in pacto de retrovendendo adjiciatur haec clausula, ut quandocunque venditor & ejus haeredes velint pretium offerre, Praedium recipere possint, non obstante triginta annorum praescriptione, Jus redimendi semper & in perpetuum competit; nisi possiderit Emptor pro suo; vel contradixerit Reluitioni: ab eo enim tempore incipit praescriptio: In Contractibus enim nullum verbum debet esse otiosum, verba autem quandocunque etc. essent otiosa si non operarentur. Thes. Bes. litera I. verbo 5. Je und allwegen p. 423. & 424.  
Princeps potest privato privilegium concedere, ut ipse solus in aliqua parte maris aut fluminis publici piscari possit; aliosque ne id faciant prohibere: Loca publica, & quae Jure Gentium communia sunt, praescribi possunt tanto tempore cujus initii memoria non existat: praescriptio enim immemorialis vim habet privilegii seu Tituli, & potius praesumpta concessio quam praescriptio dicitur; & praesumptio ex ea exsurgens est Juris & de Jure, nec admittit probationem in contrarium. Jus Flaviatile. p. 260. n. 261.  
" Praescriptio impium praesidium Novel. 9  
Respublica & municipium non restituitur adversus praescriptiones temporales; quae Jure veteri, respuebant restitutionem. vide Frisch. Tom. 2. Exercitat. 2. n. 58. & sequent.  
Jure Novel: praescribitur contra Rempublicam & Civitatem, Triginta vel quadraginta ann. ibidem. n. 63.  
Praescriptio Conventionalis a Defuncto coepta currit contra Rempublicam quae ei successit, Ibidem. n. 65.  
In Praescriptione, Jure Civili bona fides requiritur ab initio, nec desinet usucapiens acquirere licet mala fides superveniat: Jure autem Canonico bona fides requiritur toto tempore.  
Requiritur etiam Titulus, id est, justa causa possessionis & habilis ad transferendum Dominium.  
Res furtivae & vi possessae Jure Civili usucapi nequeunt. Perez. Instit. Tit. 10.  
Nihil enim operatur bona fides aut Titulus propter vitium, nisi vitio purgato, nempe re furtiuâ reversâ in potestatem Domini.  
Servus Fugitivus non usucapitur, quia fugiendo sui furtum facere dicitur.  
Si quis mala fide, absente forte Domino vel negligente aut eo decedente sine successore, fundum alienum possederit & vendiderit Emptori bonae fidei, non obstat usucapioni vitium quasi rei furtivae; non enim fundi locive furtum committitur, aut rerum immobilium facilis est interversio.  
Res Fisci usucapi non possunt, quia Juris publici sunt: bona autem vacantia usucapiuntur quae haeredem non habent, si antequam a Fisco occupentur ab alio possideantur; quia nondum Fisco denunciata, non sunt Fisci, sed manent in Commercio.   

Presentation upon Forefaulture.  
QVaeritur, If a Composition be due to the Superior for receiving a Vassal, presented by the King upon a Forefaulture? It is thought, That it is not due; seeing he is obliged to receive him; and the Lands belonging to the King by the Forefaulture, he does a Favour to the Superior by presenting one in his place.  
The King having presented a Vassal to the immediate Superior, some years after the Forefaulture of the former Vassal, Quaeritur, Whether the Person presented will have Right to the Duties become due since the Forefaulture, or if the same will belong to the Superior? Cogitandum. But it seems, that the King having no Right to the Lands, which he cannot hold of a Subject, but having only Right to present a Vassal in the interim, the Duties should belong to the Superior, seeing the Property belongs to no Person; And the Superiority draws unto it the Right of Property and the Superior not having a Vassal ought to have the duties of the Lands: Otherwise if the King should not present for many years he should want the Fruits and Benefit of his Superiority: And it is not his fault that he wants a Vassal, seeing hardly he could force the King to present. The Lord Terrace.   

Process against Strangers.  
IF a French Man or Hollander v. g. should retire out of France or Holland hither, and should be Pursued in this Kingdom at the instance of these who have contracted with him in the Place where he was, Quaeritur, If Process should be Sustained against him here? And if it should, according to what Law should he be Judged? Seeing our Judges are not presumed nor obliged to know any other Law but our own and the civil Law. Answer. They ought to have Process according to the Law of the Place where they Contracted, which may be known upon a Commission.  
 Mobilia and Immobilia habent situm viz. illa fixum, ista vagum, Quid juris as to nomina Debitorum, utrum sequuntur personam Debitoris an Creditoris? So that a Debt due by a Scotsman to a Stranger should be considered as a Scots interest & res Scotica; and a Testament concerning the same should be confirmed in Scotland.  
Quid Juris as to annualrents, when the Laws of the Place where the Creditor lives and our Laws do vary?  
Quid Juris, When the Debtor being a Scotsman and having granted Bond in Scotland, has retired elsewhere, both as to the effect of confirmation and Annualrent whether Lawful or no Lawful? And if the Annualrent should be ever considered with respect to the Place, where the Debtor was Incola the time of the contracting?   

Procuratories of Resignation.  
IF Procuratories of Resignation, granted by Magistrates, Expire by the decease of the granters?   

Promise to Dispone, not in writ.  
IF any Person or their Heirs may be pursued, for implement of a promise to dispone Lands and Heretages; it being referred to the Oath of the Person that made the Promise (or of his Heir if he be deceased) that such a Promise was made? Answer. That it is thought, that as when upon a Treaty and Agreement Writs are drawn, Parties may Resile, before Writs be subscribed; There is eadem, if not major Ratio in Promises, which cannot be perfected but in Write, Et nihil actum creditur, dum quid supersit agendum, nisi accedit Juramentum, Vide Emphyteosis, and what the Lawyers say in such Cases, where Write is necessary.   

Protections.  
IF Persons cited to appear before the Justice or Council, or imprisoned by order of the Justice or Council, may be taken or arrested upon Caption or otherwise, for a Civil Debt, though they have not Protections?   

Provision in favours of Bairns.  
IT was provided by Contract of Marriage, that the Conquest should be employed upon Rights to the Husband and Wife in Conjunct Fee, and to the Bairns of the Marriage in Fee, Quaeritur, If the Husband, having acquired a considerable Estate, may he advantage his Heir or any other of the Children, and give a greater Proportion to them than the rest? Or will the Conquest belong to all equally? Ratio Dubitandi, It were hard that the Father should not have power to divide his Estate amongst his Children, and in Consideration of it to oblige them to be dutyful. On the other part, the provision being in favours of the Children which is nomen collectivum & universale, indefinitum aequipollet universali. 2do. If that Power were allowed to a Father, it may be abused; and intending to marry again, he may deal with one of his Children, and giving more nor his Proportion, he may by transaction settle all the Conquest on him; and take a great part of it back from him in prejudice of the other Children. 3tio. By that Provision there is a Legitime settled upon the Children; and as the Father cannot prejudge them of that which is given them by Law, but the Bairns-part must divide equally, so he cannot prejudge them of that Bairns-part provided by Contract; unless by the same, the Father had that arbitrium and Power given to him, as sometimes it is.   

Provision in Bonds.  
A Bond of provision being granted by a Brother to a Sister, for a Sum to be paid to her at the next Term after the Bond, without mention of Heirs or Assigneys, but with a Provision, that if she should decease unmarried it should return to the Granter and his Heirs; Quaeritur, If, she having assigned the Bond, the Assigneys will have Right, albeit she deceased unmarried? And what the import of the said provision is, whether a Substitution, or a Quality of the Fee and a fidei commissum, that she should not assign but with the burden of it? Ancrum younger contra Mangertoun.   

Provisions in Charters.  
IF Lands be disponed to be holden of the Disponer, with a Provision that if the Vassal be year and day at the Horn, his Liferent shall not pertain to the Disponer; but (now as then, and then as now) shall be given and belong to himself. Quaeritur, Quid Juris? Ratio Dubitandi, Dolus futurus non potest remitti; and being pactum contra legem made to fright from Disobedience and Rebellion, the Rebel ought not to have the advantage of it: Nor the Superior, because remisit; & quod aufertur indigno, cedit Fisco.  
If such Pactions will bind singular Successors in the Superiority? Ratio Dubitandi, That they can be in no better case, than their Author; and these Pactions are in rem Active & Passive: And the Superiority being only by the Disposition and Infeftment thereupon, it is qualified with the said Provision, and cannot be transmitted otherwise than as it is Jus affectum & limitatum.   

Provisions in Contracts.  
A Father being obliged by Contract of Marriage, to employ a Sum to himself and his Wife in Liferent only, and his Bairns of that Marriage in Fee; which failyiening to his Heirs and Assigneys: If Infeftment should be taken in these Terms, whether is the Father Fire, so as the Bairns could not succeed but as Heirs of Provision to him. Mr Andrew Marjorie-banks Contract of Marriage.  
If the Fee were secured to the Children, By and Infeftment to a Trustee to the behoof of the Children; if it be the Fee of all his Estate, and being a merchant, and thereafter People contracting with him as a Person of a visible Estate, would the Creditors be prejudged by such Provisions in a Contract, not public by Infeftment upon it, or Inhibition? The same case.   

Provisions in favours of Daughters.  
BY Contract of Marriage it is provided, that in respect the Estate was Entailed, The Daughters should be provided, If there be one, to 50000 Marks; if two to 60000: whereof to the eldest 37000 Marks and to the other the remainder; to be paid at their age of sixteen years or their Marriage. Quaeritur, The Father having survived, and there being two Daughters of the Marriage at their Mother's Decease, of which the Elder died not long after; long before the age foresaid. 1mo. Will the younger surviving get 50000 Marks, being now the only Daughter of the Marriage? 2do If at least she will have the portion of the elder being 37000 Marks? 3tio. If her Sister's Portion will accresce to her as nearest of Kin? 4to. If the said Provisions be conditional, viz. If they Mary or attain to sixteen Years? 5to. If such Provisions be personal? at least so far, as if after the Term they be not assigned and the Daughters die, they will not transmit, there being no mention of Heirs? 6to. The said Sums not being due upon account of Creditum, but of Provision for a Livelihood, that they may be married, or at least have a Competency to live upon; Quando Dies cedit? Whether after dissolution of the Marriage, or when they attain to the Age foresaid? Scot younger of Ancrum.   

Publica.  
COnfirmatio munerum publicorum hodie a Principe successore petitur; sed si denegaretur injuria fieret a Principe. Jus Fluviat.  
Publicum seu publica utilitas varijs modis dicitur, viz. 1mo. Cum in universum & particulariter Commodum affertur, quod in Sacris, Sacerdotibus, & Magistratibus, consistit. 2. quae in universum conducit, non autem singulis; ut quoties de locupletando fisco agitur. 3. Quae privata proprie, licet ex ea consequatur publica utilitas; ut cum dicimus, Tutelam esse munus publicum, & Testamenti factionem esse juris publici. Hering. de molend. Quest. 15. n. 14.   

Pupils.  
IF in Law Pupils who have neither Velle nor Nolle, may be Charged and Denounced?    

Q  

Quartering.  
IF there may be Quartering for Impositions laid on by the Major part of the Shire, though there were ground for the same? Answer, Negative,  Quartering is Remedium Extraordinarium & Militare, and cannot be used but where there is a Law to warrant the same: But in such Cases, if there be any thing done behoovefully for the Shire, They who are refractory may be pursued actione negotiorum gestorum, before the Sheriff or other Judicatories, and upon Decreets the ordinar Execution may follow.   

Quorum.  
IN the case of Mr. John Bayne of Pitcairly mentioned in the Title. Dispositio collata in arbitrium alterius in litera D. The Friends being so named that the major part should have power to determine; There being Three of Ten. viz. The Chancellor, Sir John Nisbet, and Tarbat, sine quibus non, and in case of any of their decease, Sir William Bruce. Quaeritur, If all the three sine quibus non must consent? Or if it be  only that there should be a Quorum of the Meeting? Ratio Dubitandi, His nameing Three sine quibus non, appears to be upon that account, because two might not agree. 2do. It were hard, if all the Friends should agree but one of the sine quibus non, It should be in his power to evacuate the Defuncts Will and Design. 3tio. When a Commission is given to Three Persons to be Judges or Arbitrators, they must all be present, and yet if two agree though the third dissent, their sentence will be valid.  
If any one of the Quorum, sine quibus non, should settle with the Heirs, of design to question the Defuncts Deed. Quaeritur, If he (as having Forefaulted his Trust) should be in the same case as if he were Dead?    

R.  

Ratihabitio.  
RAtihabitio retrotrahitur ad initium, & Mandato comparatur.   

Jus Ratium.  
JVs Grutiae vel Ratium (Flotrecht) jus, viz. Traducendi ligna super flumine ad Regalia spectat. Jus Fluviat. p. 97. n. 11.   

Jura Realia in Re & in Rem.  
JVra Realia vel sunt in Re ipsa vel in Rem tantum: Jura autem ad rem interdum sunt in rem, personalia tantum sed ad rem consequendam, ut Dispositiones, Contractus, & Reversiones ubi non sunt Registratae.  
Jura in Re & Terris sunt ea quae per Sasinam competunt (nulla enim Sasina nulla Terra) scilicet jus Dominii (vel directi vel utilis) vulgo superioritatis & proprietatis, Jus ususfructus & conjunctae infeodationis, Jus Hypothecae seu impignorationis vulgo Wadsets, Viduarum Triens seu Tertia, Curialitas Scotiae indulta Maritis conjugibus, si Vxor in Terris successor aut Haeres & prolem enixa fuerìt, licet haud vitalis statim moriatur: ea enim Jura Viduis tam marito quam conjugi competunt, ex sasinis & in terris in quibus alteruter obiit vestitus & sasitus; ut ex Brevipatet.  
Jura autem Reversionis & Regressus moribus nostris Realia sunt & in Rem; ut adversus non tantum haeredes sed singulares successores efficacia sint; idque haud sua natura, cum re ipsa sint tantum personalia pacta de retrovendendo; sed moribus nostris ubi rite Registrata sunt, etiam adversus emptores, aut alios singulares successores, rata & valida habentur; cum insinuata iis innotèscant aut sciri possunt.  
Nec minus servitutes praediorum, & conductiones seu assedationes, Jura Realia & in Rem sunt sine sasina, si ante venditionem possessio accedat.   

Rebellion.  
A Bond being Assigned by a Rebel and the Assignation not intimate before the Rebellion. Quaeritur, Whether the Assigney, or the Donator will be preferred? Ratio Dubitandi, That the Assignation denudes the Cedent, and the Intimation is not necessary but to exclude another Assigney: And the Rebel by his Rebellion does not transmit but amitts and Forefaults any Right that he has, which being in nullius bonis is Domini Regis; whereas it cannot be said that the Bond was in nullius bonis after the Assignation, seeing it is then in bonis Cessionarii.   

Whether the Rebels Goods ought to be Liable to Creditors?  
Sing Bona are understood Debitis deductis, and by the custom of all Nations when they are confiscate Transeunt cum sua causa, and with the burden of Debts, what can be thought the reason that it is otherways with us? Answer, It is thought, that seeing Lands when they are Forefaulted either to the King, or to the Superior, they return in the same manner & ut optima maxima as they were given, that condition being employed in all Rights of Lands that the Vassal should be faithful and Loyal. It has been thought (but upon mistake) That Movables and other personal Estate should be confiscate in the same manner, without respect to Debts, whereas there is Dispar Ratio; Lands, as said is, being given by the Superior with that quality, whereas personal Interests are simply allodial, and aught to be forthcoming to Creditors; who, though they have not a Right to the same, yet have that Interest, that they are the Subject of Execution: and it appears to be unjust, and to obstruct Trade, if it should be otherways.   

Recognition.  
Land's being Wadset for a Sum, far below the value of the half, with a Back-tack. Quaeritur, if there be ground for Recognition, if the Land hold Ward? Ratio Dubitandi, The whole Lands are Wadset.  
If Infeftments of Warrandice be Ground of Recognition?  
A Vassal holding Ward, giveth a Charter to his Subvassal or his singular successor upon Resignation, with a Novo damus, Quaeritur, If the Novodamus will import a Recognition?  
A Gift of Recognition being given of certain Lands, whereupon the Donator is Infeft; and thereafter another Gift being given of the same in favours of of another person, who is also Infeft after the former Donator, but preveens by obtaining a Declarator upon his Gift; the former not being declared: Quaeritur, Which of the Donators will be preferred? Ratio Dubitandi, That the first Infeftment seems to be preferable, the Superior being thereby denuded: And on the other part, when Casualties and Escheats are Disponed, which fall ex delicto (as the case of Escheats by Horning) There is no consummate Right before Declarator.  
Whether an Appearand Heir if he Dispone, and Infeftment follow, the Lands will recognosce? Ratio Dubitandi, Quod nullum est, nullum sortitur effectum: And not being Infeft he cannot give any effectual Right.  
Minors Disponing Ward Lands, Quaeritur, If they may be Reponed against Recognition? Ratio Dubitandi, They ought not to Reponed against Delicta, after they are puberes & Doli capaces: And such Deeds importing Recognition, are Crimina & Delicta feudalia.  
A Person being Infeft in Ward Lands, with a Faculty and Power to the Disponer to Redeem and Dispone upon payment of a penny, Quaeritur, If the Disponer make use of that Power and do Dispone, and if an Infeftment without consent of the Superior be taken, whether there be Locus Recognitioni? Ratio Dubitandi, That he is not Vassal; and the Superior has not consented that he should have, and use that Power.  
Lands holden Ward being Wadset for a Sum far beneath the value of the Lands with a Back-Tack, Quaeritur, If there be place for Recognition, seeing it is intended only, that the Creditor should be secured, and the Back-Tack Duty is within the half of the Rent? Answer. It is thought, notwithstanding, that there is ground for Recognition; seeing the whole property is Disponed, and the Vassal has only a Superiority, and is a Tenant only of the Property? And beside, the Superior has that prejudice, that if his Vassal be Year and Day at the Horn, the Liferent of the Property will not belong to him, but only the Liferent of what is payable to his Vassal by the Wadsetter by the Reddendo of the Wadset Right: and the Liferent of the Back-Tack will fall to the King, and the Vassal may thereafter Discharge both the Back-Tack and the Reversion, so that the Subvassal would have Right to the hail property without the Superiors Consent.   

Redemption Heretable or Movable.  
QVaeritur, If Lands being Redeemable and an order used, will the Sum consigned belong to the Heir or Executor? Ratio Dubitandi, Surrogatum sapit naturam surrogati, and the Defunct intended that the said Sum should be Heretable being fixed upon Land, and the Debtor had no power to alter the Defuncts Intention, as to the condition of any part of his Estate. It is otherways, when the same is consigned, in Obedience to a premonition at the instance of a Creditor. Vide. Executry quaest. 2da. in litera E.  
If a Declarator of Redemption doth denude the Wadsetter, so that the Superior without any further Deed, either of Renounciation or Resignation, may Infeft the Granter of the Wadset?  
If the Superior has received the Wadsetter, and has given him a Charter bearing the Lands to be Redeemable, will he be obliged upon Redemption to Re-enter the Granter without a Regress? Ratio Dubitandi, That the Granting of the Charter with that Quality seems to import a Regress. Answer. It is thought, that it does not import a Regress; it being a Provision betwixt the Parties, and to be understood Civiliter, that the Superior should not be obliged to Re-enter the Debtor being once denuded, but upon such Terms as he shall think fit, otherways there should be no use for Letters of Regress.   

Order of Redemption.  
AN Order of Redemption being used, may the User pass from the same, the other Party being unwilling?  
An Order of Redemption being begun, by Premonition at a certain time to receive the Money contained in the Reversion, and before the term the person premonishing being deceased, Quaeritur, If his Heir being served before the term, may prosecute and complete the order by Consignation? Ratio Dubitandi, Premonition may seem to be personal. And e contra, the Heir is Eadem Persona, so that the premonished is not concerned, whether he receive the Money from the Person himself or his Representatives.   

Reduction.  
WHen a Right is reduced Ex capite Minoris Aetatis, or Circumvention, or upon any other Ground, so that the Infeftment whereby the Disponer was deceased is taken away; Quaeritur, If the Disponer must be reseased? Ratio Dubitandi, Fictione Juris By the Reduction he is reponed as if he had not been deceased: And on the other part, Dissasina being facti, quod factum est fieri infectum non potest: And when Wadsets are Redeemed, albeit the Right be loused and extinct by a Decreet equivalent to a Reduction, yet the Redeemer must be reseased.  
After Redemption, What way should the Redeemer be reseased? Whether upon the Resignation of the Party infeft upon the Wadset; Or what other Way? Answer, Wadsets were of old granted upon Reversions not contained in the Body of the Right; and then the Disponer was in use to get a Regress, whereupon the Superior did re-enter him; but now the Reversion being in the Body of the Right, the Disponer is in the same case as if he had a Regress, and should be infeft in the same manner: The Wadsetter being denuded by the Decreet, he has no Right in his Person to resign: and therefore it is thought, that the same course should be taken, both in the case of Redemption and Reductions, as formerly, when Regresses were in use.   

Reduction Ex capite Fraudis.  
IF a Reduction be pursued of the Right as Fraudulent, may not the Defender allege, that the Disponer had Bona, either Movables or others equivalent to the Debt, which may satisfy the same; and offer to satisfy the Pursuer upon an Assignation of the Debt due to him; to the effect he may have Recourse against the said other Estate of his Author? Answer. It is thought, the said's Defences would be relevant, and Assignations could not be denied.   

Infeftment after Reduction.  
A Person having disponed Lands and resigned, and being so divested by Charter and Seasine, If he should thereafter reduce the said Right; Quaeritur, what way he shall be reseased,  the Right was not Jus Nullum sed Annullandum: and the Seasine and Resignation that divests is Factum quod non potest fieri infectum?   

Reduction Ex capite Metus.  
QVaeritur, If Rights being made dolo vel metu, and upon these Heads or Ex capite Lecti being reduceible; and such Actions being in rem, a singular Successor acquireing a Right from the person liable to such actions will he be in the same case as Persons acquireing from Confidents? Ratio Dubitandi, Acts of Parliament are stricti Juris, and cannot be extended.   

Reduction upon Minority.  
IF Interlocutors in Jure against Minors may be reduced ex capite Minoris aetatis and Laesion? Answer Negative,  Minors cannot be restored, but where either there is captio by the deed of another to their prejudice; or by their own deed, through their Facility; or where there is an omission of Defences: But where Defences are not omitted, and being proponed and advised are repelled as not relevant, The Interlocutor, which is a Deed of the Judge, cannot be reduced but upon iniquity.   

Reduction Ex capite Lecti.  
A Father having acquired a Right to his Eldest Son of certain Lands, reserving his own Liferent, and a Power to dispone etiam in articulo mortis: And thereafter having on Deathbed made use of the said Faculty, and disponed the said Lands to a second Son, Quaeritur, If the said Right may be questioned by Reduction Ex capite lecti, as being made in prejudice of the Heir? Ratio Dubitandi, That the said Disponer could not do any Deed then, in prejudice of his Heir; And on the other part, that the eldest Son, having accepted the said Right with the said Provision, cannot question the same. 2do. The Heir is not in this case to be considered as Heir, but as quilibet,  he is not in the case of an Heir succeeding in a Right as Heir, seeing the Right was not in the Person of his Father; and he himself was Fire with the quality foresaid. 3tio The Law of the Majesty is only in the case of Rights granted to a Person and his Heirs simply; and the reason of the Law is express, that the Defunct, when he was in health having had no thought to dispose of his heritage, when he grants Rights on Deathbed of the same, is presumed to have been imposed upon, or that the said Rights on Deathbed were Elicite, or granted by him in Delirio & fervore passionis instantis: Whereas the said Faculty, being reserved in the Right, argues the Father's intention ab initio if he should think fit even then etiam in articulo, being sedati animi: Nevertheless the said Right was reduced. Davison contra Davison. November 1687.   

Reentry after Redemption.  
IF Wadset Lands be holden of the Superior, and the Reversion be contained in the Charter; If the said Reversion be not equivalent to a Regress in respect of the Superiors consent to the same? And what way the Vassal may be entered upon the Redemption, especially if the Creditor be dead; and his appearand Heir will not grant a Renunciation, and cannot resign? Answer. The Superior may be urged to grant a Charter, making mention of the Wadset, Redemption, and Declarator, and by Law that he is liable to re-enter, the Vassal having redeemed.   

Regalia.  
MAjora Regalia cohaerere dicuntur Imperatoris ossibus, ut ab eo avelli nequeant.  
Imperator alios sibi assumere potest in partem Solicitudinis, non vero in plenitudinem Potestatis, quae omnem respuit Divisionem; & quasi Sanctum Sanctorum est, in quod nemo admittitur nisi Princeps. Bes. Thes. in Litera K. 3. verbo Kayserliche, P. 450.  
Integra Territoria, seu Provinciae, Ducatus, Principatus, Comitatus etc. cum Jurisdictione territoriali in feudum Statibus Imperii, Ducibus, Principibus, & Comitibus, & Civitatibus Imperialibus conceduntur: cujusmodi feuda Imperii immediata, omnia regalia Jura & Emolumenta eo spectantia continent. Frit: Jus Fluviat. P. 106. n 3.  
Regalia non sunt Res, sed Jura Regi aut alii Superiorem non recognoscenti, in signum supremae potestatis, necnon in praemium immensi laboris, quem pro Imperio & Regimine sustinent, ad Rempublicam tuendam competentia. Heringius de Molendinis. q. 9 n 47. & sequen.   

Regality.  
IF Rights of Regality imply and import a Right to Escheats upon Horning, albeit they be not express thereanent? Ratio Dubitandi, It is the common Opinion, that they are imported: Ex adverso, Gifts of Escheat upon Rebellion are inter maxima regalia, and Rights of the same are stricti Juris. 2do. All Letters of Horning bear, That the Rebels Goods should be escheat and brought in for His Majesty's use. 3tio. Regalities' being Privileges of Jurisdiction, and Exemption from the ordinary Courts of Shires and Justices, carry only such Escheats as are incident to Jurisdiction, as Mulcts and Fines of persons unlawed, or sentenced in Courts of Regality. 4to. Declarator of Escheats cannot be pursued before Regality-Courts but only before the Session. 5to. In other Cases of Escheats, upon account of Crimes or Delicta, as for Theft, Slaughter, &c. the Crime is not against the King directly, but consequentially, as concerned in the Loss of a Subject: But Rebellion on Horning is directly against the King. It will be fit to see the Right of an Ancient Regality.  
Suppose that the Lord of Regality has Right to the Escheat upon Horning, will he have Right only to such Movables, as are within his owned Territory, Or to all the Rebel his Movables, even such as are within the Regalities of others?  
If a Right of Regality may be granted, not only for Lands holden of the King, but for such as hold of other Superiors? Ratio Dubitandi. That the King being the Fountain of all Jurisdiction, in whatsomever Lands or Bounds, whether they hold immediately of himself or not, may delegate and give that Jurisdiction to whom he pleases, whether the Lands hold of himself or not: And on the other part, the said Jurisdiction being annexed to the Lands and given intuitu of the same, it is hard that a Vassal should be above his Superior; and his Superior being it may be Baron, a Right of a Barony-Jurisdiction cannot be given in eadem Baronia; and far less of a higher Jurisdiction: And no Right can be given to a Vassal in relation to his Lands, but such as would pertain to his Superior, if the the Lands come in his hands by Nonentry or otherwise: And the Right of Regality, which did never pertain to the Superior himself, cannot come in his hands by Nonentry or otherwise.   

Writs registrate, that cannot be found in the Register.  
IF it be Evident that a Writ was put in the Register, and yet cannot be found, neither Principal nor Booked, What Remedy?   

Registratio.  
APud nos Instrumenta aut Literae Registrari dicuntur, cum referuntur in Regestum sive Librum publicorum, vel actorum vel monumentorum. Registratio autem celebratur duobus modis, & ad diversos fines & effectus.  
Ubi enim Instrumentum sive simples & 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, obligatio scilicet aut Chirographum aut Dispositio; aut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, contractus scilicet inter duos aut plures, in librum actorum refertur; & plaerumque fit ut vim & instar sententiae obtineat, & executionem paratam, virtute claulae Executivae & Registrationis (ut vocant) in omnibus fere instrumentis solennibus, istis aut similibus verbis. viz. Et pro majori securitate & nos (two scilicet qui obligantur) volumus & consentimus ut praesens Instrumentum inseratur & Registretur in Libris Supremae aut inferioris Curiae competentis, ut ita nanciscatur vim sententiae Dictorum Judicum, ut Literae Denunciationis & Cornuationis (ut practici loquuntur) continentes spatium sex dierum & alia necessaria (ut par est) pro ea exsequenda Dirigantur: & constituimus _____ aut eorum quemlibet Procuratores nostros ad effectum praedictum.  
Sic sine lite & processu, ad ultimam processus metam & exitum devenitur, sententiam scilicet & Executionem omnimodam; fictione enim brevis manus omnia ad processum & sententiam requisita quodammodo insunt: vice enim Citationis (quae supervacua est ubi partes praesto sunt & consentiunt) procurator etiam Rei intervenit, dicis causa, & consentit; Judex etiam secundum Instrumenta exhibita per procuratorem, eoque postulante ut juxta Clausulam praedictam, ad effectum praedictum, in Regestum referantur, decernit: actuarius etiam & Clericus Curiae decretum seu Extractum expedit.  
Illud autem tribus partibus constat. 1mo Enim praemittitur decretum eâque sequitur formâ, Edinburgi _____ die Mensis _____ 16 _____ Coram Dominis Concilii & Sessionis comparuit, T. W. Advocatus procurator pro D. P. W. Obligato in Chirographo infra scripto, & exhibuit dictum Chirographum, petiitque illud inseri & Registrari in Libris Concilii & Sessionis ut vim sententiae dictorum Dominorum obtineret ei interponendam; qua literae Cornuationis & aliae necessariae desuper dirigantur modo inibi specificato; quam postulationem dicti Domini Rationi consonam Judicarunt, ideoque ordinavere & ordinant Dictum Chirographum inseri & Registrari in libris dictae curiae, & decrevere illud obtinere vim sententiae ipsorum, & Literas Cornuationis & alias necessarias inde dirigi modo infra-scripto. 2do. Subjungitur Tenor ipsius Chirographi. 3tio. Sequitur Clausula ista viz. Extractum de libro actorum per me. viz. Vel Dominum Rotulorum Clericum Registri, vel ejus Deputatum Clericum, qui subscribit nomen suum.  
Instrumento autem Registrato, autographum seu originale a Clerico retinetur in publica custodia; Exemplari (ut superius diximus) Extracto & Creditori dato, ex quo executio sequitur tam realis quam in personam: nec absimile est illud Extractum Instrumento Guarentigiato, cujus saepe mentio habetur tam apud Jurisconsultos quam Practicos; ex eo enim, non minus quam ex sententia solenni, Executio parata est.  
Caeterum omnis definitio in Jure periculosa est, & Juris remedia etiam optima interdum remedio indigere videntur; nec Registrationis saluberrimo instituto suum deesse videtur incommodum: Instrumenta enim cum in publica custodia sint, Incuria Clericorum, aut servorum fraude facile intercidunt aut subtrahuntur; ea autem perdita esse subodorati debitores aut eorum haeredes, actione Falsi (eam Improbationem dicimus) intentata, saepe liberantur; nulla Judicis sed summa actoris & reapse injustitia. In causa enim Falsi agitur, ut exhibeatur Instrumentum de quo quaestio est; ea, in libello, comminatione (seu ut practici loquuntur Certificatione) nisi exhibeatur irritum fore, nec ullam ejus Rationem aut fidem habendam esse in Judicio vel extra Judicium. In ista autem causa Falsi, haud satisfacit Exhibitio exemplaris rite Extracti; nec immerito & sine ratione; Instrumentum enim ipsum multa fortasse sufficeret argumenta, tam ad veritatem astruendam quam ad falsitatem arguendam, ex comparatione Literarum, & Subscriptionibus Testium & Partium; & alia plurima quae Extracto tantum exhibito desiderantur.  
Hac Ratione impulsi nec provisis incommodis pluribus & gravioribus (ut omnis mutatio etiam in melius est periculosa) Angli Judices tempore nuperae Usurpationis (si fas est praedones & perduelles Judices vocare) in res novas semper prurientes (annitentibus maxime Scotis qui eis assidere ut Collegae haud erubuerunt) statuto sancierunt, Instrumentum ipsum exhibendum quidem, ut in acta referatur, Creditori reddendum ut penes eum remaneret.  
Registratio enim cum sit actus voluntariae Jurisdictionis quolibet tempore etiam feriarum explicatur, non tantum extra Judicium, sed nec ullo alio fundamento nititur nisi consensu partium, & clausula Registrationis in Instrumento ipso inserta; Instrumento autem penes Creditorem remanente nec in custodia publica asservato sententia esset inanis sine ullo probationis adminiculo quod in actis sit. Adhaec, eadem & majora sequerentur incommoda; saepe enim non tantum ejus penes quem Instrumentum est, sed aliorum interest ut servetur, praediis forte haeredibus Taliae & Provisionis ita dispositis ut multi sint gradus Substitutionum: eo, & multis aliis casibus tutius esset & aequius, Instrumentum illud in publica custodia esse, ut sic omnibus quorum interest consultum sit, quam Instrumento penes unum retento, ejus negligentia vel dolo reliquorum Jus periclitari.  
Praeterea, Creditore penes quem Instrumentum est, decoquente, & cum Debitore suo colludente (ut id genus hominis fallax est) facile esset illudere Creditoribus suis, qui Instrumentum istud per adjudicationem sibi addici obtinuerunt, Instrumento, in causa Falsi consulto intentata, haud exhibito.  
Mihi autem in isto Recessu & unice satagenti quomodo prodesse utcunque possim, videtur; omnibus quorum interest consultum fore, & incommodis & commentis quae ultro citroque adduci possunt obviam iri, si tempore confictionis Instrumenti ejus Copia aut exemplum describatur, ab eo qui Instrumentum ipsum scripserat, & ei subjiciatur breviculum seu brevis nota ab eodem scriptore scripta, iisdem partibus & Testibus Subscribentibus, & ejusdem Datae; eo qui sequitur aut simili tenore.  
Nos vero (obligati scilicet in Instrumento) agnoscimus Copiam suprascriptam, verum esse & integrum exemplar Instrumenti seu Contractus inter nos confecti ejusdem datae & tenoris; & volumus & consentimus ut virtute clausulae Registrationis in dicto Contractu insertae, nec non virtute praesentium ut praedictum Instrumentum coram curia exhibitum in Libris Curiae Registretur, habiturum vim ad effectum suprascriptum: nec non volumus & consentimus, quod extractum praefati Instrumenti in omnibus causis etiam Falsi & Improbationis exhibitum, una cum isto Breviculo, sufficiens erit & efficax ad omnes effectus, haud secus quam si Instrumentum ipsum exhiberetur aut productum, satisfaceret.  
Registrantur Instrumenta non tantum Executionis sed custodiae causa, & ad futuram rei Memoriam; ut plaerumque fit in Acceptilationibus & Apochis, quando concedens ad nihil faciendum obligatur, adeo ut Executione haud opus sit; ne tamen intercidant, consentit ut ad futuram rei memoriam; in libris actorum inserantur & asserventur.  
Registrantur etiam Instrumenta nec Executionis nec custodiae sed Insinuationis ergo; idque summa ratione & necessitate nedum utilitate; unusquisque enim scire debet conditionem ejus cum quo contrahit juxta regulam Juris.  
Id autem scitu difficile est, isto tempore Candoris & Bonorum Morum effoeto, Fraudis autem feraci; saepe enim eveniebat ut comparatis praediis ut optimis maximis, nec cirta justum & maximum pretium, emergerent qui sibi Jus in iis vindicarent, vel Dominii vel Retractus seu Reversionis; sic iis vel evictis vel modica pecuniula redemptis Emptor delusus tam Terris quam pretio carebat, actione adversus venditorem plaerumque inopem prorsus inani. Scire igitur expedit conditionem rei de qua contrahitur, an sit penes Disponentem & penitus sua, nec aliena sit vel Jure Dominii, nec Hypothecae nexu aut annui reditus aut alio onere gravata; aut Retractui aut Reversioni obnoxia: Nec minus cognitu necessaria est conditio vendentis aut alterius contrahentis, licet enim Dominus sit & Dominium sit potestas de re sua Disponendi, Juxta regulam Juris, quilibet est Rei suae Arbiter, subjungitur tamen in ista Regula Nisi Lex obstet; Lex autem obstat Dominis ne de rebus & Terris suis libere disponant, Legum vinculis forte praepeditis, Inhibitione scilicet, quando in rem & ad instantiam Creditorum inhibiti sunt: aut in rem suam & suorum haeredum iis bonorum suorum Administratione interdictum est: aut quando Rebelles Denunciati sunt & Exleges: De quibus impedimentis alibi & suis locis disseruimus.  
Ut autem incommodis ex ignorantia tam conditionis rei quam personae obviam eatur, utque conditio utriusque innotescat, plurimis Constitutionibus & Legibus enixe cautum est.  
If a Disposition may be Registrate, the Disponer being on Life but the receiver being Deceased? Ratio Dubitandi, Registration is to the effect it should have the force of a Decreet, and there can be no Decreet in favours a Dead Person.   

Regum Contractus.  
COntractus Principis habet vim Legis, quoad observantiam; immo potentior est Lege intensive; quia ligat successorem, quod Lex non facit: secus vero extensive, quia Lex ligat omnes Contractus.  
Regius etiam ex lege successor, factum Principis antecedentis principali nomine peractum, ejus licet non sit haeres, ratum ut habeat conveniens est: alioqui publica fides, & dignitas principalis collaberetur, Thes. Besold. p. 549.  
Reges absoluti non litigant depossessionatis, Le Roy plaide saisi, Thes. Bes. p. 560.   

Relief of Cautioners.  
IF Cautioners finding the principal to be in a worse condition, may pursue for Relief before Distress? At least to be secured out of his Estate?   

Relocation.  
A Tack being set and the Setter being deceased. Quaeritur, If after his decease, and no person being Heir to him, the Tacksman may be said to bruik per tacitam Relocationem; seeing there is none that can be said to be Relocans'?   

Reluitio seu Retractus.  
INter Juris Interpretes celebris est Contraversia de Jure reluendi, seu Retractus, quod apud nos Reversio dicitur, an ei praescribi possit? qui affirmativam tuentur; regulam; qui negativam, exceptionem, Sententiae suae fundamentum adducunt; Regula est, Omnes actiones, omnia Jura etiam maxime longaeva, longissimo tempore, id est lapsu quadraginta annorum praescribi & extingui. Exceptio est, Ea quae sunt merae facultatis haud praescribi. Apud nos lis ista sopita est; Constitutione enim Regis, Jacobi Sexti Act. Parl. 12. 1617. Cavetur omnia Jura Contractus & inter alia Reversiones & Retractus, & ex iis actiones, 40. annis praescribi; Exceptis Reversionibus quae sunt in corpore Juris, & investitura excipientis; & iis etiam quae insinuatae & in Archiva publica & regestum relatae sunt: quibus casibus (cum nulla subsit suspicio falsitatis, ut ait Lex ista) actiones ex iis statuitur esse perpetuas. Sed cum Contractus, Chirographa seu obligationes, praescribantur, licet insinuatione publica & in archivis sint, qui fit ut ubi eadem & par est ratio dispar Jus sit?   

Remissions:  
IF the Exchequer, when Remissions are not given by the King, may grant Remissions sine causae cognition, upon a Letter of Slains?  
If Remission can be given for Murder? Answer. The King's Power is not limited: but in Justice, Remissions cannot be given, but in the cases that by the Divine Law, and Law of Nations, the benefit of the Sanctuary may be competent: Whereas by Act of Parliament, there is no Sanctuary for forethought Felony.   

Renounciation.  
QVaeritur, If the Father or his Executor may urge the Daughter who has renounced, to confirm herself Executrix to her Mother, to the effect her Renounciation may be effectual? Vide of nearest Kin. Quaest. 4ta. litera K.   

Renounciation by Daughters at their Marriage.  
IF a Man have a Son and Two Daughters; and both the Daughters Renounce all Executry, Debts, Goods, and Gear whatsomever, either provided to them, or which may fall or pertain to them by the Decease of their Father or Mother, Quaeritur, If the Son will be both Heir and Executor?  
If a Person charged to enter Heir and renounceing, may notwithstanding be served Heir? Answer. He may be served: and no other person or Creditor can oppose, upon pretence of the Renounciation, seeing Charges to enter Heir are Personal Diligences as to the Chargers only: and Renounciations in obedience thereto do militate only in favours of the Chargers.  
If the Charger may oppose? Answer. If he has any prejudice or Interest he may oppose; but it is thought he can have none, seeing notwithstanding of the Service, what is done upon the Charge, or Renunciation will be effectual; and the Renounciation is actus involuntarius for Obedience: and with us there is not Locus successorio Edicto: And it were hard if Haereditas should be Opulenta that the Heir could not Enter.   

Renunciatio Juri Publico.  
REnunciare potest Debitor immunitati Nundinarum; quia licet favorem publicum habeant nundinae, principaliter tamen de privatorum commodo agitur: & regula communis est, Quoties privato favori Lex aliquid introducit principaliter, licet secundario publicam causam annexam habeat, Renunciari huic favori posse. Thes. Bes. Litera M. 43. P. 631.   

Res Fiscales & res privatae Regis.  
REgalia & res Fiscales, & res privatae Regis, magno intervallo inter se distant; ●ae enim sunt privati Patrimonii, quae Principi ratione personae & non ratione dignitatis obveniunt; At quae Rex ex suis provinciis & ditionibus, ut Rex vel Princeps percipit, ea ad ipsius Patrimonium Fiscale pertinent, nec ad haeredes transeunt licet in rebus privatis succedant, nisi etiam in principatu succedant. Hering. de molend. quaest. 9 n. 71.   

Re-seasin upon Reduction.  
A Right being granted to be holden of the Superior; and after Infeftment, being reduced Ex capite Doli vel Metus. Quaeritur, Whether the former Right revives, Or if there must be a new one, what way is it to be taken? It is Answered. That it is thought, that the Season being taken away, and being Facti which cannot be infectum, there must be a new Season; and the Superior is to be dealt with to give a precept, making mention of the former Seafin and Decreet of Reduction; and that he is willing to receive again the Disponer.  
If the Disponer be deceased Quomodo shall his Heir be infeft? Answer. Being served Heir he may apply to the Superior, for a Precept mentioning as said is, and that he his Heir.  
If the Lands be holden of the King, what course should be taken? Answer. upon application to the Lords by Bill, they may grant warrant to the Directors of the Chancery, to give precept of the nature foresaid.  
If the Superior may be forced to receive his former Vassal in the case foresaid? And if he should, will Composition be due? Answer. It is thought, that he ought to receive him but upon composition; seeing having once entered his Vassal, he is not obliged to Re-enter, but upon Composition.   

Reservation in favours of Relics.  
BY Contract of Marriage, a Lady having accepted a Liferent-provision, in Satisfaction of all she could claim, either of Terce or Movables, excepting and reserving the third of the plenishing of the House, Quaeritur, whether by the said reservation she has a Right settled in her person to the third of the Plenishing, free of debt and movable Heirship? Or if the said Third be only understood of free gear, the debt being paid, and Heirship deduced? Item if the said Third be liable to a Bairns part, if all the Executry be exhausted but the said Third?   

Resignation.  
IF a Superior, who is a singular Successor, may infeft upon a Resignation in his Author's hands, as upon a Comprysing the time of his Authors Right?  
IF a Superior has given a Charter upon Resignation whereupon there is no infeftment, Quaeritur, If he be denuded of the Superiority, will the singular Successor therein, be obliged to renew the Right, and to grant precepts to that effect, and by what action he may be urged?  
Quaeritur, If after Resignation, the Disponer and the Person in whose favours the resignation is made, may agree and recede from their bargain without consent of the Superior, upon pretence that the Resignation is in favorem; and every Person may renounce Juri pro se introducto? It is thought, They cannot & res non est integra, there being a quasi contractus betwixt the Superior and them.  
If after Resignation accepted, the Superior be denuded, whether his Successor will be obliged to infeft him? And what way he may be urged? It is thought, That Succedit in rem cum sua causa, and upon a Bill to the Lords there may be a warrant to direct precepts, as upon a Retour.  
If an Instrument of Resignation in favorem, will prejudge a singular Successor, seeing it is not Registrate?   

De Resignationibus.  

Quaestio Prima. An Resignatio, in Manibus Domini Superioris, alienantem penitus devestiat?  
ALienato praedio, & ex mandato in Instrumento Alienationis inserto, Resignatione subsecuta, & a Domino directo admissa, Quaeritur, An ea Alienantem ita devestiat, ut nullum Juris vestigium penes eum supersit, nec eo mortuo aut delinquente, custodia haeredis minoris, aut Maritagium, vel alia emolumenta Domino directo obveniant?  
Respondere visum est, Alienantem penitus devestitum & Dominio utili exutum; nec ex ejus obitu vel delicto, obventiones (quae sunt Dominii directi fructus) deberi Domino directo: omnia siquidem, quae Vasalli ut devestiantur facere solent aut debent, rite peracta sunt: nec obest quod unius interitus est alterius ortus, nec Jus proprietatis & Dominii directi a Domino discedit, nisi alii acquiratur; dici autem nequit Emptorem aut eum cui Alienatio facta est, Dominum aut Vasallum esse, antequam a Domino directo investitus & sasitus sit; Jus siquidem nedum ad rem, per alienationem quaesitum est ei in cujus favorem Resignatio facta est, sed tantum non in re; & inchoatum eatenus, ut feudum sit penes Dominum directum, quasi per fideicommissum, & in rem ejus cui alienatio facta est, ita ut eum ejusque haeredes investire teneatur: & in Jure quod prope est, multis casibus idem censetur.   

Quaestio Secunda. An ex Persona Resignatarii, & ejus vel obitu vel delicto, Custodia Haeredis & alia emolumenta Domino directo obveniant?  
SI post Resignationem a Domino directo admissam, nihil commodi ei obvenit vel ex obitu vel delicto alienantis, quia Vasallus esse desiit, Quaerendum? An saltem ex obitu vel delicto ejus cui Alienatio sacta est, custodia & Maritagium haeredis, ususfructus ex Rebellione per Annum & Diem, aliaeque obventiones ordinariae & solennes ei cedant quae debentur cum Vasallus vel moritu● vel deliquit: nec Vasallus dici potest, quia nunquam sasitus fuit; Juxta tritum illud, nulla Sasina nulla Terra: Verius tamen & Juri consentaneum videtur, eo tempore quo per Resignationem, Terrae sunt in manibus Domini superioris, Jus & Dominium directum haud sterile & effoetum esse: & ejus fructus ei haud negari debere, isto colore vel captione, quod alienans devestitus Vasallus esse desiit, Emptor autem nondum Vasallus est: nam si Domino nec renuente nec cunctante, per eum non stet quo minus Emptor investiatur, Emptore praemortuo vel negligente, vel fato vel ejus negligentiae imputandum quod Vasallus non fuerit & investitus: ubicunque enim de Domini commodo agitur, pro investito habetur qui a Domino parato investituram haud petiit, nec ejus mors vel mora Domino obest: hac ratione haeres Vasalli haereditate haud agnita, si ad pubertatem pervenerit, ejus Maritagium Domino debetur; & ex ejus delicto, vel ususfructus vel praedium ipsum ad Dominum pértinet, etsi nunquam ei Vasallus fuerit: id quidem interest inter haeredem ejus qui Vasallus & in feudo investitus obiit, & haeredem Resignatarii; quod in illum, feudum quod decessoris fuerat renovatur & transmittitur; in isto vero feudum incipit; nec est Haeres Emptori, in feudo quod ejus nunquam fuerat: Verum illud facile diluitur, quemadmodum enim in Jure qui in utero est, ad varios effectus fictione Juris pro jam nato habetur; haud secus ubi feudum constituitur & eo nascendo maturuit, ut ab alienante abdicatum & in manibus & penes superiorem sit; sed ea lege & fiducia, ut acquirenti novum infeofamentum concedatur, pro enato habetur; nedum quoad superiorum & compendia & emolumenta ad eos pertinentia; sed ad quosdam alios effectus; Haeres enim Resignatarii qui morte praereptus decessit sine sasina; etsi primo investitus sit ex alienatione, succedit tamen in Jus acquirentis & non suo sed Jure haeredis; & fictione brevis manus feudum nanciscitur ut haereditarium: Haud secus quam si Acquirenti investito, ipse (eo mortuo) ut haeres investitus fuisset; ideo feudum in ejus persona haud novum & Conquestus, sed haereditas censetur: Et si decesserit orbus & sine liberis ad Agnatos ex latere descendit. Adhaec, licet feuda plerumque Acquirenti sint libera, ut de iis pro arbitrio suo Disponere possit haeredibus: quaedam vero sunt fideicommissaria & vinculata, ut nec alienari nec aere alieno gravari possunt; Feudum tamen haud ut liberum consequitur, qui parente praemortuo primus ex Alienatione investitur; sed si Conditionatum sit, conditionibus parere debet; & nisi paruerit feudo mulctandus ex lege Commissoria seu Clausula irritante; adeo in Jure spes proxima & radicata multum attenditur & operatur: & acquirenti nedum spes sed ex Resignatione Jus, adeo radicatum fuit, ut Resignatario & ejus haeredibus, & Jus ab eo habentibus auferri vel avelli nequeat: & Domino necesse sit feudum iis per Investituram tradere qui primi erant per Resignationem: dumque Vasallus ex Charta & praecepto sasinam & traditionem operitur, interim umbra quaedam traditionis praecedit, fundo Domino sursum reddito per fustis & baculi traditionem, in favorem acquirentis, & statim per idem symbolum rursum reddito Resignatario aut ejus procuratori.   

Quaestio Tertia. An in Feudis, quae de Domino Rege tenentur, idem Jus sit, adeo ut per Resignationem Vasallus devestiatur?  
AN in omnibus Feudis, sive ea de Rege sive de aliis superioribus teneantur, idem Jus sit, operae pretium est quaerere? Et quidem ubi eadem ratio idem Jus est, & a contrario ubi dispar ratio diversum Jus. Id autem nec parum est discriminis inter Dominum Regem & alios superiores; quippe hi rerum suarum providi & satagentes, sua Jura & commoda scire & debent & praesumuntur, si nesciant aut negligant suo periculo & dispendio est: Rex vero in id unice intentus ut Regno bene sit nec quid detrimenti capiat, Eaque Reipublicae mole obruitur ut rebus suis & privatis superesse nequeat: Quin & Quaestor & Proquaestor aliique quibus sacri Patrimonii procuratio demandata est, viri Illustres & impigri in omnibus fere Curiis Regis assidui & impliciti; tot negotiis distinentur, ut nedum supra vix omnibus pares esse queant: Hinc Obreptio & Subreptio, vitia in largitionibus principum saepe sed frustra vetita: hinc etiam negligentia, haud ex socordia quae in viros amplissimos & diligentes non cadit, sed reipsa, ut quibusdam casibus dolus, etiam sine dolo & reipsa esse dicitur: Ideo Constitutione Regis Jacobi Sexti: Parliamen. 16. Cap, 14. necesse fuit cavere, Ne Officiariorum & Ministrorum Regis negligentia Regibus noceat: consultum igitur videtur esse, nec rimam relinquendam qua irrepant, nedum portam aperiendam qua erumpant fraudes; id autem futurum, si statuatur ex Resignatione in manibus Regis (aut eorum quibus id munus commisit ut Resignationes recipiant) Vasallum penitus devestitum esse; nam Resignatio ista fit nulla indagine aut inquisitione praevia, quaenam sit Resignantis aut Feudi conditio; an is aeger vel moribundus, & forte nothus aut Bastardus; an vero Feudum Jure aliquo affectum sit, aut obventione ante Resignationem debita & cedente, aut Regi caducum & commissum ex delicto; sic haud difficile erit Regem fraudare imo judificare, E. G. Resignatione feudi militaris facta a Vasallo, cui haeres sit infans aut impubes, in favorem Emptoris simulati, si praemoriatur alienans, causabitur Emptor eum devestitum, nec haeredis impuberis vel Custodiam vel Maritagium obvenisse: Sin Resignatarius morte praereptus sit, alienans dicit se haud devestitum, nec de Alienatione aut Resignatione constare; notarius siquidem qui Resignationibus faciendis adhibetur plaerumque obscurus, & ejus opera utentibus addictior est: Contractus autem vel dispositio ex qua Resignatio fit, penes contrahentes remanet, & cum sine ea Resignatio inanis sit, ea celata vel deleta facile erit rem eo redigere, ac si nec Alienatio nec Resignatio celebrata fuisset; & prout ex te eorum videbitur, & magis commodum, Colludentium arbitrium erit utrum alienans an vero acquirens eorumque haeredes Regi Vasalli forent; Ut est in Apologo de homine fallaci & dolo ancipiti numen ipsum fallere auso, & periculum facere an omnia sciret & vera responderet; cum enim sub vestis lacinia passerem haberet, sciscitatus est, an avicula quam haberet viva an mortua esset, certus, si Oraculum vivam diceret, eam necare illiso cerebro; sin mortuam, promere vivam: Responsum penes eum esse utrum vivam an mortuam malit: sed mille sunt nocendi & fraudandi artes, quas referre nec tutum est saeculo isto in fraudes nimis prono, cum vel memorare docere sit: verum re penitus inspecta videtur Respondendum, idem Jus esse in omnibus feudis, nullo inter Regem & alios superiores discrimine, nisi quoad accidentalia quaedam & extrinseca, de quibus non curat Lex; Eadem autem est utrobique ratio; ea scilicet, postquam Vasallus devestitus est Alienatione, & ex ea Resignatione facta & admissa; ex ejus vel delicto vel obitu, nihil vel commodi Domino directo, vel incommodi acquirenti posse evenire; Rex enim licet supremus, et ut Angli loquuntur Superior paramount, in Feudis sive dandis sive renovandis Jure haud Praerogativo sed communi utitur: Et cum sit fons Jurisdictionis, quod Juris in alio statuit, eo uti haud gravatur: Nec obstant quae attigimus Incommoda; nec Incommodum Argumentum, nedum Jus solvit; ea hominum sorte, ut nihil humani incommodi expers & vacuum sit: Imo inter regulas Juris ea est, Omnem Definitionem in Jure periculosam, adeo ut vix fieri possit quin aliquo incommodo subvertatur: Ex adverso, haud desunt incommoda multa & gravia; in isto igitur conflictu, ut praesumptiones leviores & debiles fortioribus cedunt, ita incommoda aliis & gravioribus diluuntur: Si igitur aliter statuatur, quae populo & acquirentibus timenda sunt incommoda magis p aegravant; Rex siquidem de lucro captando, hi vero agunt de damno vitando; Rex de obventione & lucello casuali, & directi Dominii fructibus jactura levi & facili resarcienda; aliis subinde renascentibus.   

Quaestio Quarta. Si Alienatione facta, & ex ea Resignatione; alia postea fiat, & ex ea etiam Resignatio in favorem alterius, isque primus Investitus fuerit: & post eum prius acquirens: Quaeritur uter Potior?  
ALienatione facta & ex ea Resignatione, si postea alius Emptor vel aliter acquirens, ex posteriore Resignatione prior investitus fuerit, & post eum prior acquirens fuerit etiam investitus ex priore Resignatione, haud immerito Quaeritur, Uter potior Jure, & praeferendus sit?  
De ea ratione, apud authores nostros, nihil certi aut expediti Juris reperitur: Quibusdam quidem, qui prius investitus est, licet ex posteriore Resignatione, potior videtur; eâ ratione subnixis, quod ubi jus per varios gradus perficitur, aut ex pluribus partibus integratur, is praeferendus sit, qui per reliquos gradus in summum prior innititur, & ex omnibus partibus Jus integrum & completum nanciscitur; nec enim in Certamine Equestri qui statim a carceribus perincitatis, impetu alios praetervolat, Brabeum consequitur, sed qui totum emensus curriculum primus ad metam decurrit.  
Verius tamen est, & consequens iis quae superius disseruimus, primum Resignatarium licet posterius sasitum, jure potiorem esse; & posterius acquirentis jus nullum & irritum esse; utpote a non habentibus potestatem profectum. Summus quidem est Diligentiae favor, & vigilantibus jura subveniunt: Ac quod de Julii Caesaris foelici & omnia vincente industria exemplari, proditum est isto versu,  Nil actum credens, dum quid superesset agendum. 
ID in jure assequendo, & ubi de eo diligentiâ certatur locum habet: Sed in ista specie, tantum abest ut secundus Resignatarius prior jus consummatum adeptus sit, ut nec ullum habeat vel habere potuerit, vel ab alienante vel a domino directo: alienans siquidem dominio utili per alienationem & Resignationem in rem primi acquirentis, penitus exutus, nullum habuit quod in secundum transferret; Juxta illud etiam pueris notum & inter ludentes tritum, Qui nihil habet, nihil dabit, & juris prudentiae principium & regulam, Nemo potest transferre in alium plus juris quam ipse habet.  
Nec magis ex alterutra Resignatione, in favorem vel prioris vel secundi Resignatarii, penes dominum directum jus aliquod erat, quod in secundum transferret; cum enim prima Resignatio in rem & favorem tantum primi acquirentis fuerat, & limitata causa producat tantum limitatum effectum; ex ea Resignatione, nec secundo Resignatario nec alii nisi priori praedium dari potuit: Ex secunda vero Resignatione, cum sit prorsus cassa & inanis facta, scilicet ab alienante prius devestito, & qui nullum jus haberet quod resignaret; ex ea nullum jus erat penes Dominum directum quod transferret in secundum.  
Hinc est quod Resignatione facta, haud dubii Juris est vasallum subfeudum & praedium de se tenendum alii non posse disponere; Cum igitur jus inferius & ut loquimur Bassum dare nequeat, an adhuc penes eum erit Jus & potestus per novam alienationem & Resignationem, praedium alteri concedendi, ut jus majus & nobilius & de domino Superiore tenendum consequatur? Obstante juris regulâ, Cui non licet quod minus est ei quod majus est non licere.  
Cum praedia acquiruntur per Resignationem, eorum dominium non statim & instar Boleti emergit, sed per varios gradus constituitur & elaboatur: iivero sunt, ut proprietarius & qui utile dominium habet alienet, ut deinde vel ipse vel (quod plerumqe fit) ejus procurator, jus suum & dominium in manus domini directi resignet; adhibito notario & Instrumento Resignationis in favorem acquirentis confecto; utque Superior praedium non jam Vasalli, sed cujus jus penes ipsum est, disponat Cartâ suâ, addito mandato de Resignatario investiendo, vulgo Praecepto Sasinae; & demum ex eo, acquirens investiatur: per priores istos gradus devestitur alienans, sed in gratiam & in rem acquirentis; per posteriores investitur acquirens; Quemadmodum autem, ubi Scala adeo angusta est, ut per gradus singulis tantum ascensus sit, prioribus gradibus per aliquem vel occupatis vel sublatis, in superiores inniti nullus nec speratur nec conatur; Haud secus in feuda acquirendo, ex ista graduum serie, prioribus, quibus alienans dominio & jure suo nudatus est, sed in primi acquirentis gratiam, per eum occupatis; alteri posterius acquirenti, in ulteriores gradus penetrandi, nec spes nec Locus relinquitur: exinde de jure acquirendo & diligentia, frustra certamen esset, praedio per priorem Resignationem Resignatario adeo affecto & addicto, ut alterius esse nequeat.  
Ad haec cum duplex sit Resignatio praediorum, vel ad Remanentiam, vel in Favorem; utriusque quoad Resignantem idem & par est effectus, ut devestiatur scilicet; & quod ejus fuerat dominium utile, ejus esse desinat, & penes Superiorem & in ejus manibus collocetur: utroque casu dominium utile cum directo e vestigio coalescit & consolidatur; sed eo discrimine, quod ubi Resignatio fit ad Remanentiam & in rem ipsius Domini, Consolidatio id operatur, ut tam utile quam directum dominium penes Dominum sit, sed ut suum nec divellendum; ubi vero Resignatio fit in favorem, dominium utile ita transit, ut interea cum directo conjunctum, penes dominum Superiorem sit; sed ea lege & modo ut Resignatarium investiat: nisi enim Dominus esset, & etiam utile haberet dominium, nec id Carta sua dare posset: quod & ex ipsa Cartarum ex Resignatione stylo manifestum est; nam iis Dominus directus terras disponit, non ut amplius alienantis, sed quarum Jus ad alienantem pertinuerat, & per Resignationem translatum & collocatum est in manus suas, sed ligatas ea lege pro novo scilicet Infeofamento acquirenti dando. Ex his sequitur, vasallum per Resignationem sive ea fit ad Remanentiam sive in favorem, pariter devestitum; & post alterutram, in ejus fraudem, nec honeste nec utiliter alienare posse.  
Accedit quod haud pridem in mores nostros irrepsit, & iste apud alias Gentes frequentior, ut Investitura detur in usum & rem alterius quam Investiti: si igitur alienatio fiat domino directo sed in rem & usum alterius, & ex ea Resignatio facta sit ad Remanentiam, Isto casu haud ambigendum, alienantem frustra alienare in fraudem usuarii, in cujus rem & usum praedium domino directo alienatum & sursum redditum fuerat. Nec magis dubitandum est, & ea Resignatione quae fit in favorem, Alienanti ademptam omnem alienandi potestatem; nam utraque Resignatio fit in manus Superioris sed in rem alterius, & ista quae fit in favorem pariter transfert praedium in domini manus, quodammodo ad Remanentiam, & apud eum remansurum; donec ex lege fiduciae, quae in Resignationibus contrahitur, Resignatarius investiatur.  
Demum, Resignatio adeo solennis & in rem, & Dominii ab alienante translativa est, atque in ea tot actus interveniunt tam alienantis qui Resignat, quam Domini directi qui Resignationem admittit, & jus penes se translatum Resignatario reddit, tradito symbolo in Fidem & Arrham Investiturae subsecuturae; intervenientibus etiam Notario & Testibus; ut Resignante mortuo, defunctis etiam tum domino directo tum Resignatario, Resignatio tamen ejusque vis & effectus haud intercidat & evanescat; nam & iis casibus, Investitura a Domini directi successoribus, Resignatario aut ejus haeredibus, vel ab eo causam habentibus, dari debet. Ea Argumenta sunt, Per Resignationem Dominium utile ab Alienante discedere, ita ut in Superiorem transferatur, & cum Dominio directo cui interea unitum est, transeat; nedum ad Domini haeredes, sed ad Successores quoslibet singulares. Ex istis omnibus, quae ut de re & quaestione tanti momenti prolixius disceptata sunt, manifestum est alienanti per Resignationem dissasito, nullam vel juris umbram vel vestigium superesse; & Alienationem & ex ea Resignationem si quam posterius fecerit, & Investituram etiam priorem eâ, quae ex priore Resignatione secuta est, inutilem & nullam esse; ut a non habentibus potestatem: saltem annullandam actione Rescissoria, quae nobis Reductio dicitur.   

Quaestio Quinta. An is qui in Dominium directum successit Titulo singulari, teneatur Acquirentem in vasallum recipere ex Resignatione in manibus Authoris.  
EX eo quod superius dictum est, Dominium scilicet utile, ex Resignatione in manus Superioris sursum redditum, cum Dominio directo, ad successorem in eo etiam singularem transire; ea suboritur Quaestio, An Successor singularis teneatur acquirenti, vel ejus haeredibus, dominium utile a directo sejunctum reddere? & si renuat, quod Juris remedium iis competat? Nulla siquidem inter dominum directum, qui ex Resignatione terras, quoad dominium utile, in manus suas recepit, intercessit necessitudo cum Successore; qua eum representet, ut haeres aut alio titulo universali; aut ex Fiducia, quae in Resignatione intervenit, fidem ejus liberare teneatur: Nec magis negotium ei fuit cum Resignatario; vel ullus, quo obligetur, vel contractus, vel quasi contractus.  
Sed praeter Personales, sunt aliae etiam Obligationes in rem, quibus res ipsa subjacet, & qui eam nanciscitur sese subjecit: Sic qui adipiscitur praedium servituti obnoxium, licet ejus dum acquireret nulla mentio aut exceptio fuerit, patientiam tamen, & quae ex servitute debentur praestare tenetur: Idem de Annuis Reditibus & pactis de Retrovendendo & Retractibus ceu Reversionibus & Lege Commissoria dicendum; res enim semper transit cum sua causa & onere; nec alio aut pinguiore Jure Successor utitur, quam eo quod decessor aut Author habuerat: Ea autem est causa dominii directi, ut quandocunque Dominium utile per Resignationem cum eo conjunctum est, qui eam receperit vel ejus Successor etiam singularis, gravatus sit Resignatario & ejus Successoribus Dominium utile restituere.  
Si id facere cunctetur vel renuat Dominus directus, in promptu remedium est, ut sciꝪ coram Senatu ceu Collegio Judicum in Causis Civilibus Supremo, actio summaria intentetur; & exhibito Instrumento Resignationis, & novissima Carta & Investitura Auctoribus concessa, petatur juxta eam novam fieri Resignatario vel ejus haeredi, Sententiâ latâ: Si Dominus directus haud pareat, sed adeo contumax sit, ut Rebellis & Exlex denuncietur Banno publico, & Cornu pro Tuba inflato, ut moris est, quod ideo Cornuatio apud nos dicitur; Demum jussu & mandato Senatus, Cancellarii Director praeceptum Sasinae diriget pro Resignatario, vel ejus haerede investiendo, Ita ut de Domino directo teneant, nec vasallus Jure suo fraudetur, nec dominus suo etiam culpâ sua decidet; Mulctandus tamen ob pervicaciam & Rebellionem, bonis omnibus mobilibus tam rebus quam nominibus Regi caducis; quod Eschetam vocamus.  
Ista sunt intelligenda de praediis quae de Subditis tenentur: Rex enim & Quaestores Regii, quique alii ei a Rationibus sunt, id quod justum est haud gravate facere praesumuntur.   

Quaestio Sexta. An Superior nedum Resignatarium ejusque haeredes, sed Cessionarios investire teneatur?  
QUaestionem praecedentem de Resignatario ejusque haeredibus recipiendis, excipit ista de Assignatis, sic Cessionarii (sed parum Latine) apud nos dicuntur: omnia autem Jura, moribus nostris, cedi possunt, de quibus Investitura haud secutura vel nec dum secuta est; Si igitur alienatis praediis, & ex alienatione Resignatione secuta, acquirens ea & jus suum per Alienationem & Resignationem sibi quaesitum, per Cessionem in alium transtulerit, Quaeritur, An Dominus directus Cessionarium recipere teneatur? Et quidem extra quaestionis aleam, videtur recipiendum esse; Alienatio etenim tam acquirenti quam haeredibus & assignatis ejus facta est; nec minus in eorum favorem Resignatio a Domino Superiore admissa est. Tenendum tamen est Cessionarios recipere Dominum directum haud teneri; Feudum siquidem Beneficium dicitur, & Beneficium nec invito nec ab invito datur & exprimitur; Interque Feudi sive essentialia sive naturalia illud est, ut Domino inconsulto nedum invito dari nequeant: Nam Feuda, initio & jure primaevo, dabantur a Dominis viris militaribus & sibi devotis, ob Fidem & Virtutem Bellicam, tam ipsorum compertam, quam posterorum praesumptam, juxta illud Poetae, Fortes creantur fortibus, & bonis. etc. Licet autem saeculo degeneri, Feuda etiam degeneraverint, ut instar patrimonialium sint, & Feuda in ipsis Feudis desideres; Tamen fere ubique illud retinet, ut pro Vasallo & veteri Clienti, novus & extraneus non possit obtrudi; Etiam isto tempore quo bellum, ut ait Ennius, Magis cauponatur quam belligeratur, & mercenario milite conducitur & dolo magis quam virtute geritur. In Gallia, & aliis haud multis Regionibus, ubi favore Commercii (qui summus est) concessum est Feuda alienare, id fit eo temperamento; ut pro recognoscendo & laudando Domino, Compositio, ut loquimur, & Laudimia Domino directo pendi debeant, certa parte pretii in id decisa, & Legibus definitâ. Caeterum apud nos, Feuda de Domino tenenda, nisi Dominus consenserit, frustra (interdum haud impune) alienantur; Si militaria sint, & Custodia, & Maritagium haeredis, ad Dominum pertinent: nec adhuc parum refert qualem Dominus sibi asciscat Vasallum. Aliarum enim rerum, juxta Juris Regulam, Duo non possunt esse Domini in solidum, in Feudis vero duo sunt Domini & perpetui, fed Dominio diverso & dispari; ita ut penes Superiorem, Directum; penes Vasallum sit Vtile; & utrique ex eodem Fundo fructus sint & proventus, Vtili quidem Naturales, Directo vero Civiles & Obventiones; Ex ista, ut fere omni communione, plerumque nascitur quaestionum & litium seges, de Warda, Maritagio, Non-introitu & aliis Obventionibus, quae cedunt Domino directo: ut igitur litibus & rixis obviam eatur, & de dominii sui fructibus mature & officiose (ut par est) satisfiat, si mutandus sit Vasallus Domino directo cavendum est, ne pro viro probo & bonae indolis, morosum & dyscolum; & pro devoto & cliente, potentiorem & tantum non adversarium nanciscatur. jis de causis nec injuriâ, Domino ita consultum est, ne invitus Vasallum novum & incommodum habeat.  
Nec obstant quae superius dicta sunt, Dominum sciꝪ. Resignatione in ejus manus factâ in Favorem & in Gratiam acquirentis & ejus haeredum & assignatorum, eo ipso consentire, ut acquirentis tam haeredes quam assignatos in Vasallum recipiat; verba enim ista tam in Alienationis quam in Resignationis Instrumentis, intelligenda sunt civiliter & secundum subjectam materiam, sciꝪ. ut Resignatione factâ Resignatarium & Haeredes ejus investiat (Haeres enim in Jure censetur eadem persona cum defuncto) Cessionarium vero si sibi visum fuerit: Imo si Resignatarius investitus sit Charta ipsi & Haeredibus & Assignatis concessa, Feudo mulctatur, si militare sit, & Vasallum in Feudo vel de se vel Domino tenendo, sine Domini consensu, investiret.  
Cum duae sint Alienationes, altera Resignatario, altera Cessionario, una autem Investitura: Si Dominus assignatum ex Cessione investire paratus sit, supervacuum est quaerere, an unum aut duplex Laudimium Domino solvendum sit; cum Domino integrum & penes eum arbitrium sit vel haud admittere, vel quibus convenerit conditionibus & Laudimiis eum recipere; Et si Dominus per compendium, Cessionarium brevi manu recipere velit, Charta & ex ea Sasina ei tradita; haud invidenda videntur Domino Laudimia, quae consequeretur si longiore & operoso circuitu nec modicis sumptibus, Charta & Sasina Resignatario tradita, & Resignatione in gratiam Cessionarii, & ex ea repetita iterum Charta & Sasina, assignati Investitura absolvenda esset.    

De Resignationibus a Domino directo acceptatis, An devestiant Resignantes?  
SUpposito in facti specie, Vasallum Feudi militaris illud vendidisse; & Resignatione facta per procuratorem ex Mandato, inter alias clausulas solennes in literis seu Instrumento venditionis inserto, & per Dominum directum seu Superiorem recepta, coram notario & testibus, ut moris est, & de ea Instrumento confecto; sed postea diem obiisse relicto Haerede impubere, Emptore nondum investito, Quaeritur, An Custodia & Maritagium Haeredis venditoris, Domino directo obveniant & debeantur? Haud inficias eo utriusque partis Patronis haud deesse argumenta; nec ea quidem levia: sed omnibus ultro citroque perpensis, Negativa verior, et Juri et Aequitati magis videtur esse consentanea: Eo tamen temperamento et cautelâ, si omnia bona fide acta sint, et dolus absit, et omnis machinatio fraudulenta; venditore forte in extremis et morbo sontico laborante, et venditione properata, ut fraus et fucus fiat Domino inscio, et commento isto fraudato istis et aliis Dominii sui fructibus, morte Vasalli imminente, propediem obventuris; Si forte venditore et Emptore amicis et colludentibus, et Domino (ut fere Magnates sunt) haud satis attento, consulto differtur & sustinetur Investitura, ejusque petitio, ut ancipiti dolo frustretur Dominus; Causantibus, si praemoriatur venditor, eum penitus devestitum; si Emptor, eum nondum investitum nec Vasallum fuisse.  
Ubi igitur praedium venditum, & Resignatio in Domini volentis & acceptantis manum facta est, nec ulla fraus, aut fraudis suspicio subest, venditor Dominio utili exutus & penitus devestitus est, adeo ut ad eum devestiendum, omnia ab eo acta sint; ita ut nihil supersit agendum: Nec ullum penes eum sit Jus vel Juris umbra; nisi pacto inter eum & Dominum convenerit, ut a Resignatione recedatur; quod plerumque fit, cum supervenit alius Emptor, & Resignatione facta in ejus gratiam, novo Emptori gratificatur Dominus, Charta & Investitura ei concessa: quod plerumque sed parum honeste fit, non obstante priore venditione & Resignatione: quo casu posterior Emptor sed primo Investitus, & Jus plenum & perfectum consecutus, praefertur priori Emptori etiam investito sed posterius: Prior enim tempore, quoad Jus completum, potior est Jure.  
Cum igitur venditor quoad Dominum & Emptorem sit devestitus, et quoad seipsum active; nec enim, ita devestitus praedio divendito, ex eo aliquid commodi aut emolumenti potest consequi, aut ulterius aliquid agere ut devestiatur; Sequitur eum desiisse esse Vasallum, et devestitum esse Passive ut ita loquar: Nec ex praedio, quod amplius haud est suum, aliquid incommodi aut periculi, ipsi aut haeredibus metuendum; Juxta regulam, Penes quem Commoda, penes eundem Incommoda. Et e contra.  
2. Argum. Secundo, Si venditoris filius Investituram petat, et, Domino (ut par est) renuente, Breve impetrarit e Cancellaria, et coram Inquisitoribus patrem obiisse ultimo vestitum et sasitum, et se ei Haeredem esse in eo praedio asserat, Et sententia seu veredicto quindecim-virali declarari petat; ei obstabit exceptio, feudum a patre abdicatum in Domini manibus esse, et ejus fidei commissum, ut Emptorem in eo investiat, idque facere debere & paratum esse.  
3. Argum. Tertio, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 etc. uno dato absurdo multa sequuntur: Dato igitur Vasallum venditione & Resignatione haud devestitum esse; Hydrae instar, multa pullulabunt non tam incommoda quam absurda, a Ratione et Aequitate aliena. Si enim repraesentato pretio et Feudo abdicato, et omnibus peractis quae faceredebuerat aut poterat venditor, ut Jus suum in Emptorem transferret, Vasallus adhuc est; tunc ex ejus aut Haeredis delictis feudalibus et Criminibus si Majestatis sint, Domino Regi; sin etiam sint in Dominum immediatum, Domino ipsi feudum ipsum committetur, aut feudi ususfructus: Si Venditor, aut ejus Haeres, Exlex, & per Annum & Diem rebellis fuerit; Si venditor Resignatione facta statim morte praereptus fit, antequam Emptor investitus sit, sed pretio praecepto, aut cum Emptori debitor fuerat, fundo in solutum vendito, nec ulla vel venditoris vel Emptoris aut Domini culpa vel mora intervenerit; Creditores tamen venditoris praedium, per licitationem aut Adjudicationem sibi addictum & in solutionem datum consequentur; Emptore & Creditoribus ejus (si qui sunt) frustra quaerentibus sibi legum praetextu delusis, tam pretio quam praedio carendum; eo colore quod praedium tum venditum, tum a venditore resignatum, adhuc tamen penes eum & ejus ossibus haeserit, ejusque Creditoribus & eorum diligentiae obnoxium.  
4. Argum. Si, mortuo venditore, Emptor a Domino directo petat Investituram feudi, per Resignationem in Domini manibus existentis, sed in favorem & rem Emptoris, & quasi Domini fidei commissi, ut eum investiat; & de Resignatione constet, cum Dominus Instrumento subscripserit, aut juramento delato confessus vel habitus sit pro confesso, Resignationem factam & admissam, Dominum ut Vasallum investiat cogi posse, explorati Juris est: Emptore autem investito, qua fronte vendicabit Dominus Custodiam praedii & filii venditoris, ejusque Maritagium, Non-introitum, aut alias obventiones ex obitu venditoris, cum Vasallum habeat Emptorem, & ei investituram dederit praedii ut optimi maximi, & quale ad venditorem pertinebat tempore Resignationis. Adhaec, Jura ista Wardae, Relevii, Maritagii, & alia ejusmodi, ideo introducta sunt, ut Vasalli haerede minore & per aetatem officio & servitiis militaribus impari; Dominus feudum ob servitia concessum, ea causa cessante, ad tempus quasi condiceret & rehaberet, donec haeres ad Legitimam aetatem pervenerit: & cum uxores apud viros saepe uxorios plurimum possent, Domini multum interest, ex qua familia uxorem ducat, ne forte Domino iniquior aut inimica sit: Eae autem rationes cessant Emptore investito, viro ad servitia militaria parato & idoneo: nec refert quam uxorem ducat filius venditoris, qui nec est, nec futurus est Domini Vasallus.  
Omissis aliis quae pro ista sententia cumulari possent argumentis: quae pro adversa sunt (quam possum paucis) perstringam & diluam. Primum & in Jure fere unicum est; si venditor adhuc Vasallus nec devestitus est, ex ejus morte Custodiam, si infra aetatem Legitimam est, & ejus Maritagium ad Dominum pertinere, consequens est: antecedens autem verum esse, & venditorem haud esse dissasitum ita arguitur; penes devestitum nullum residet Jus vel Juris vestigium, quod alienare, aut in alium transferre queat; nemo siquidem plus Juris in alium transferre potest, quam ipse habet; venditorem vero, venditione celebrata & Resignatione secuta, non solum de facto alienare, sed in secundum Emptorem, Jus etiam nec inutile aut inane transferre posse, ex eo liquet; Quod secundus Emptor (ut superius attigimus) ex Resignatione in ejus gratiam, licet posteriore, prior tamen investitus, potior erit primo etiam investito, sed posterius: Et ab eo si possideat, praedium vendicabit & evincet.  
Accedit Cragii nostri, Juris communis & Patrii consultissimi, seu opinio seu Authoritas; ubi enim quaestionem istam (& satis prolixe) disceptavit; in eam sententiam non tantum propendere, sed pedibus iisse videtur, Vasallum, Resignatione tam ab eo facta quam a Domino acceptata, haud devestiri.  
Adhaec, quemadmodum Natura, materiam formâ quae inerat, nunquam privat aut exuit, nisi nova accedat; haud secus, Jura nulli Jus adimunt nisi alteri quaeratur.  
Sed Responsio in promptu est; primo enim, illud quod supponitur pro fundamento, Viz. Secundum Emptorem primo investitum, priori posterius investito potiorem esse, haud indubitatum aut extra quaestionis aleam est. Et Cragius nullibi quam in ista disceptatione magis perplexus aut minus sibi constans: Fatetur tamen, de eo fundamento moribus nostris variatum: Et Cragio, David Mcgilleus Regius Advocatus, vir laudatissimus, ab eo ibi & alibi cum maximi honoris praefatione laudatus, opponitur: & ejus non tantum sententia sed Senatus-consultum & authoritas rei judicatae, cujus ibi mentio fit; qua, Mcgilleo patrocinante; secundi Emptoris Investituram licet priorem, primo Emptore agente actione Rescissoria, nullam & irritam esse Judicatum est; quia Alienatio facta fuerat a venditore devestito & non habente potestatem.  
Hopaeus etiam Juris nostri peritissimus; sed (ut plerisque videbatur) nimiae & captiosae subtilitatis, atomum & punctum distinguere videtur: Ait enim, si Vasallus ex Alienatione & Resignatione devestitus, dederit subfeudum de se tenendum, id irritum fore, utpote concessum a non habente potestatem; sin autem dederit feudum de Domino tenendum, & Dominus secundum Emptorem primo investierit, Alienationem & Investituram valere; & investitum priori Emptori praeferendum. Quomodo autem penes venditorem Jus & potestas sit dandi Jus nobilius, & feudum de Domino tenendum; eidem autem desit potestas dandi Jus inferius & feudum de se tenendum, intellectu nedum explicatu difficile est; Et Oedipo eget. Sed dato nunc moribus nostris in favorem diligentiae, secundo Emptori, qui praedium bona fide comparavit & sibi vigilavit, Jura subvenire; & diligentia praevertentem, & Jus consummatum adeptum, priori Emptori praeferendum; non sequetur tamen venditorem quoad Dominum adhuc Vasallum esse, nec devestitum quoad alios effectus, & eos praesertim, ut Dominus, venditore vivo aut mortuo, ex ejus persona aut morte nihil commodi aut obventionis petere aut consequi posset; cum feudum non tantum alienarit, sed a seize penitus abdicarit, Domino consentiente, & feudum, per bacilli traditionem, solennis in Resignationibus symboli, recipiente; sed ut Emptori traderet; & Dominus confestim & unico contextu, per dicti symboli traditionem, Emptori feudum reddere & Investituram concedere, si superstes sit; sin fato functus, ejus haeredi, Juris remediis compelli possit.  
2dum. Argumentum est, ab Incommodis, iisque haud paucis quae contrariae sententiae assertores urgent. 1mo. exaggerant; eo temporis interstitio inter Resignationem venditoris & Emptoris, Investituram (quod, Emptore negligente aut moriente, incertum dictu, quam diuturnum futurum sit) Dominium directum interea sterile & effoetum fore; feudi Custodiam, Maritagium, & alios Dominii istius fructus & emolumenta, si ex persona venditoris haud obveniant, quia vasallus esse desiit; ex persona Emptoris haud speranda; nec enim unquam fuit, nec certum est an futurus sit Vasallus; siquidem multa cadunt inter calicem supremaque labra: Porro, cum nec Alienationis instrumentum nec Resignationis penes Dominum sit, sed illud penes Emptorem, istud penes Tabelliones, homines isto seculo lubricae & suspectae fidei; in suspenso & incertum fore, utrum Dominus sit venditori an Emptori; & colludentibus facile esse utrum velint, & prout e re sua et sibi commodum fuerit, Domino Vasallum obtrudere, celatis Instrumentis aut deletis.  
Ad istud Argumentum, haud respondebo, quod vulgo dicitur, Incommodum non solvere Argumentum nedum Jus: sed ostendam, casu supposito, quae supra memorata sunt, non sequi incommoda: necenim verum est Dominium directum interea inutile & infoecundum fore; nam Alienatione & Resignatione facta, quae non tam Jus est quam via ad Jus, licet Emptor Jus in Re & Completum ante investituram haud nanciscatur; ex Alienatione tamen Jus habet ad Rem; & ex Resignatione recepta a Domino directo Jus in Re inchoatum; sed adeo efficax, tam quoad Dominum quam Resignatarium, ut si venditor dolo malo alii vendiderit, & Dominus directus dolo affinis fuerit, secundum Emptorem investiendo, neutri impune sit; sed Actio detur primo Emptori contra venditorem ex Empto: Et si inops sit, & contra eum actio inanis futura; datur adversus Dominum ex Stellionatu & dolo, pro damno & interesse: Imo cum Resignatarius recipiendae investiturae in spe proxima sit, & spes radicata in Jure multum operetur, si nulla Domini mora aut cunctatio sit, habetur pro investito, quoad Domini commoda & obventiones: quando enim stat per eum, cujus interest, aliquid fieri ne id fiat, habetur pro facto & impleto: Si igitur Resignatarius moras nectet nec Investituram petat, Terrae erunt in Non-introitu, Et eo durante Dominus fructus consequetur; Et si moriatur, Custodia & Maritagium haeredis, & ex haeredis rebellione ususfructus, si per annum in ea perstiterit, & aliae id genus obventiones, ad Dominum directum pertinebunt: haud secus quam si defunctus fuisset investitus. Et quemadmodum mortuo Vasallo, ejus haeres etiamsi haereditatem non adierit, imo repudiarit, pro investito habetur, eatenus ut Dominii fructus & emolumenta obveniant, v. g. Non-introitus, Maritagium, & ex delictis Eschetae, seu caduca, & privatio vel feudi vel ususfructus; nec enim ejus mora aut culpa non petendo Investituram Domino obesse debet: Non absimili ratione; Resignatarius, ubi de Domini commodo agitur, pro Vasallo censetur; si per eum stet quo minus sit Vassallus. Quod de Incertitudine objicitur, facile diluitur; si enim Terrae non tenentur de Domino Rege sed de alio Domino, sibi Dominus cavere debet & suo periculo si secus faxit, sibique imputatur; nec fere evenit aut contingere potest, ut Dominus aliquid detrimenti capiat; Vasallus enim Domino invito haud obtruditur; & ante Resignationem cum Domino transigitur de Laudimiis, & si quae alia ab Emptore praestanda sunt Domino, ut ab omni periculo & incommodo securus sit. Non diffiteor longe aliam rationem esse Domini Regis; Cum enim Pater Patriae sit, nec sit e dignitate sua causari aliquem e subditis sibi iniquum aut infensum; nullo delectu aut discrimine Resignationes recipit, per eos quibus eam Provinciam demandavit. Adhaec, Principes de rebus publicis solliciti, privatis superesse nequeunt; & viris clarissimis, qui a Rationibus sunt (utcunque impigris & sedulis) haud mirum est si aliquando imponatur; sed fraus deprehensa punitur: & lege consultissima statutum, Regis Ministrorum Incuriam & Negligentiam Regi haud officere: nec difficile adhibere remedia quibus fraudibus & incommodis obviam eatur, & inter alia illud esset haud spernendum, si Resignatione facta Instrumentum Resignationis statim conficeretur, subscribentibus etiam tam Resignante quam Resignatario, & apud Cameram Rationum deponatur; alioqui Resignatio habeatur pro infecta; sic enim constabit Resignationem celebratam, & incommoda supradicta cessabunt. Interea, quae pro Negativa disseruimus, intelligi velim, si compertum sit Resignationem factam, nec fraudem subesse, eo casu; quia omne Jus a Rege ut Juris fonte profluit; & si scriptum sit, sanxit; si moribus introductum permisit, & quasi tacito consensu firmavit; quod in alios statuerit Jure uti debet.  
Cum Deus nobis haec otia fecerit aut fieri permiserit, statueram ea utcunque oblectare id genus exercitationibus; & comperto quaestionem in foro ventilari, videbar mihi operae pretium facturus, si, in casu arduo, exitus dubii & ancipitis, & quicunque demum futurus sit magni momenti, quid Juris sit dispicerem; & quid meae esset opinionis dicerem; id feci eo animi candore; ut nec in Regem studio, quod mihi semper maximum fuerat, nec alio affectu transversum rapi, mihi permiserim; licet in causa simili etiam res mea ageretur, nec socero nec vitrico nec aliis ultimus haeres fui; nec assentatione aut aliis artibus ab aliquo opes eblanditus aut adeptus sum nec munus: antequam enim ad munera, eodem quo nunc mihi ereptum est impetu, & ab iisdem raptus sum tantum non invitus, & eorum quae mihi acciderunt praesagus: Deo largiente, & industriae Laboriosae & innoxiae, & alienis haud inhianti, favente, fui & adhuc sum Superior & Dominus directus haud unius Vasalli: sed cum ista animo agitarem, immo persoripsissem, haud animo praejudicandi nedum sugillandi amplissimi Senatus sententiam, incertus quaenam futura esset; sed ne animus negotiis assuetus, immo ab ineunte aetate innutritus, nunc ignobili otio & desidia torpesceret: tandem mihi nunciatum est Senatum pro Affirmativa judicasse, secundum actorem Regis Donatarium.   

Retention.  
QVaeritur, In the Cases of Compensation (mentioned in the Questions second and third anent Compensation in the Letter C.) If at least the Defender may pretend, that he should not be in worse case, than if the Assignation were not made; and therefore aught to have Retention until his Debt be liquidate? It is Answered, That there is no ground for Retention, but the Defender ought to have done Diligence to affect the Debt due to him; which he might have done by Inhibition upon the Dependence, or by assigning his Action, to the effect Arrestment might have been made in his hands of the Debt due by him.  
Cum refundere oportet ímpensas & meliorationes, Jus Retentionis competit; quia interest magis per Exceptionem retinere, quam per actionem repetere. Jus Fluviat. p. 779. n. 78.   

Retours.  
IF the Sheriff-Clerk, and Sheriff of the Shire, to which the Lands are unite, may not give Season, and will be liable to answer in capiendo Securitatem, for what is contained in the Retour, as to both Lands?   

Retoured Duty.  
AN Annualrent of One Hundred Pound Sterling being given out of a Barony, for a Sum of Money lent to the Baron upon that Surety, to be holden of the Superior, Quaeritur If the Barony, being of a considerable Rent, suppose Nine Thousand Marks per annum; and the new extent of the hail Barony being but Twenty Pounds, if the Annualrent should be in Nonentry, whether the Nonentry should be the full Annualrent, upon that pretence that valet seipsum? Or if it should be only a proportion of the retoured Duty, viz. The fifth part? Answer. It is thought, that it should be only a proportion of the retoured Duty; And valet seipsum is only understood, when there is no other retoured Duty; And in this case, it appears there is no other retoured Duty, In so far as the whole Barony and Rent being retoured, the Annualrent being the fifth part is consequently retoured: And it were absurd, that for the Nonentry of an Annualrent, there should be more due than for the whole Barony; Specially seeing the Superior wants not a Vassal of the Barony to serve him for the whole Barony; and the Annualrenter is not properly a Vassal obliged to serve, being infeft only for surety of his Money.   

Return of Lands to the Superior, upon a Provision.  
IF there should be any Difference betwixt Vltimus Haeres, and the King succeeding upon a Provision of Return, Failyieing Heirs male? Ratio Dubitandi, An ultimus Haeres and the Donatar is liable to Debts; but in the other Case, it is doubtful: Because it is a Maxim, that when ever Lands are returned to the Superior, either ad Remanentiam, or ad Tempus, as in the Case of Forefaulture, or Recognition, or Ward, or Nonentry, they return pura & ut profecta sunt: and specially in Ward-lands, and where it appears that the Superior elegit familiam, and has given Lands with an express Provision of Return; it may seem reasonable, that seeing he has none to serve him in the Family, he may have the Lands back in the same condition he did give them.   

Return of Lands to the King, failyiening of Heirs Male.  
THE King having disponed Lands without an Onerous Cause to a Relation or Servant, and his Heirs male; which Failyieing to return, if the Masculine Line fail, Quaeritur, Will the King have Right without the Burden of Debts? 2do. If the Lands be comprised, (although the King should be free of Personal Debts) Will the Compriseing, though expired be void, Quia resoluto Jure dantis, resolvitur Jus accipientis?   

Reversion.  
A Reversion being granted, failyiening Heirs of the Granters Body; may the Granter dispone as absolute Fire? Will his Wife have a Liferent by the Contract of Marriage? Will she have a Terce? So that the Effect of Reversion will be only against his other Heirs than those of his Body, if the Lands be not disponed or burdened by the Fire? Lamberton contra the Relict of Plenderguest.  
What is the Import of that Clause in Wadsets subjoined to Reversions, That it should not be lawful to redeem, but by payment not only of the Sum given upon the Wadset, but of all other Sums due by the Granter his Heirs and Successors to the Receiver and his foresaids; if it be effectual not only against the Heirs, and those who represent the Granter, but against singular Successors? Rationes Dubitandi, 1mo. The said Clause is neither a Reversion nor Eik to a Reversion, which ought to be special, and eontain certain Sums, or liquid Obligements. 2do. Destructive of Commerce, seeing it cannot be constant, whether the Person having Right to the Reversion, be such as may be dealt with; seeing it doth not appear by the Register, whether he be owing to the Creditor any other Sums by that upon the Wadset. 3tio. If the Reversion should go per mille manus, Will Sums due by all these who had Right thereto to the Haver of the Wadset or his foresaids, be real; So as to affect the Reversion. 4to. may the Creditor take voluntar Assignations to debts due by his Debtor, and so prefer such of the Creditors as he pleaseth, and burden the Reversion, so that the Debtor cannot redeem. 5to. If other Creditors comprise from the Debtor, before the haver of the wadset be creditor in other Sums to the Granter, will he be prejudged by the Comprysing as medium impedimentum?  
What is the Import of an Eik to Reversion? If the Creditor will have a real interest to affect the Duties, as if it were an Eik to the Back-tack? Ratio Dubitandi, The said Sum is due upon the Wadset, and eo ipso that it is eiked to the Reversion, it is eiked to the Tack; and plus valet quod agitur, etc. And on the other part, Reversions are stricti Juris, and import no more than quod sonant, viz. That it should not be lawful to Redeem, but upon payment of the Sum contained in the Eik.  
Premonition being used (upon a Reversion) to the Wadsetter for receiving his Money, Quaeritur, If there be Locus Poenitentiae, so that it may be passed from? Ratio Dubitandi, Licet Renunciare Juri pro se introducto. On the other Part, it may be pretended, That Jus is quaesitum to the Wadsetter; so that if it be his interest to have his Money, he may upon the Premonition call for it. The Question will be greater, if there be an Infeftment of Annualrent with a Reversion to the Granter, without an Obligement to pay the Principal Sum upon Requisition; seeing the Person who has Right to the Annualrent, may be concerned to have the Principal Sum; which he cannot have, if the Heretor do pass from his Premonition.  
If a Comprysing of Lands disponed to the Wife, will Import Jus revocandi competent to the Husband, so that the Deed in favours of the Wife cannot be said morte confirmari, in respect of the said medium impedimentum? Item, Whether at least the Wife will have Right to the Legal?   

Reversions of comprisings against appearand Heirs.  
IF comprisings or Adjudications against Appearand Heirs do not expire before they be twenty five Years? Ratio Dubitandi, That the Act of Parliament is in favours of Minors having Right, and the Appearand Heir has no Right: and in Adjudications they renounce to be Heir: and there is no Reason that the Creditor should be prejudged, upon Pretence of favour to a Person who has no Right.  
If the Appearand Heir be reponed before he be twenty five Years, the Creditor who would adjudge the Reversion competent to him, will consequently be restored?   

Reversion Personal.  
QVaeritur, If a Reversion that is Personal (excluding Heirs and Assigneys) may be comprysed? Ratio Dubitandi, A Compryser is upon the matter, and in construction of Law a Legal Assigney: And on the contrare, Voluntar Assignations are only excluded, but not Comprysing: And there is not par ratio, because it is in arbitrio of the Person who has Right of Reversion personal to himself, either to Redeem, or not: but a Debtor having Right to a Reversion, aught to satisfy his Debt; And if he will not make use of his Right of Reversion to that purpose, The Law gives a Remedy by Comprising.  
If the Compryser of such a Reversion may redeem after the Death of the Person to whom it granted? Ratio Dubitandi, The Heretor whose Lands are affected with the Reversion, ought not to be in worse Case, at least as to the Time and Endurance of the reversion: and the Compriser sibi imputet, That he does not make use of his Right in time: and he has advantage enough in Law, that the Reversion being Personal may be Comprysed.  
If a Reversion, that is Personal, Doth fall under Forefaulture? Ratio Dubitandi, That the Fisk is not so favourable as the Creditor and Compryser: And yet it is to be considered, that whatever is competent to the Traitor doth forefault to the Fisk: And otherways, it would be an Encouragement to commit Treason, if such Reversions and Faculties being only competent to Parents and Relations, they cannot forefault; so that their Children may bruik the Estate, notwithstanding of their Treason.  
When a Person has right to Redeem personally to himself, after the useing of the Order he may assign; But Quaeritur, If having proceeded to his Order by premonition, he decease before completing of the same, in that case he may assign, and the Assigney may prosecute the Order? Ratio Dubitandi, He has declared his Will to redeem: And yet on the other part, Actus inceptus non habetur pro completo: sed Cogitandum.  
Quid Juris, In such a Case, In Retractu Gentilitio? And if in any Case, in actibus arbitrariis facultatis, aliqualis Declaratio arbitrii, be sufficient?  
A Reversion being to a Person; and the Heirs male of his Body allanerly, excluding Assigneys and other Heirs; Quaeritur if it falls under the Forefaulture of the person to whom the Reversion is granted as said is? Ratio Dubitandi. That all others are excluded, both Heirs of Line and Assigneyes: And on the other part, the Reversion is not merely personal, but Jus Haereditarium transmissibile to the Heirs foresaid of his Body? Cogitandum.  
Quae Ratio, That a Reversion granted to a person only, and not to Heirs and Assigneyes; or a power to dispone reserved in the Right granted with the same, may be comprysed, and yet does not fall under Forefaulture? Answer. Nothing falls under Forefaulture that is personal only, and which is neither cessible nor transmissibile ad haeredes: Whereas a Reversion that is merely Personal, though it cannot be conveyed by a voluntar Right and Assignation, may be comprised:  by the Comprising, the Person who has the Reversion his debt is satisfied; and he ought to have made use of the said Faculty and Right to that Purpose: And seeing he is in dolo, that he does not make use of it, the Law doth justly provide that it may be comprised, and used to that end; which both in Law and Conscience he should have used for himself: Et interest Reipublicae ut quis re sua bene utatur.   

Legal Reversion competent to Idiots, etc.  
QVaeritur, If a Fatuous Person or Idiot, having Right to a Legal Reversion has the Benefit competent to a Minor, to redeem after his recovery? Answer, It is thought, not: seeing by our Law and Custom, Minors before the Act of Parliament 1621. had not that benefit: And by the said Act of Parliament, it is given only to Minors, Et Exceptio firmat Regulam, etc. And neither can Statutes be extended, nor is there eadem Ratio, seeing the time of Minority is defined; Whereas a Fatuous Person may live a very long time; and it is hard that the Creditor should be in incerto all that time, as to his Right and Dominium, whether it be simple or redeemable. Earl of Kincardin.  
If Actions upon Contracts do prescribe against Fatuous Persons? Answer, They do not prescribe; quia non valent agere: and there is a Difference betwixt Prescription of Actions, and of Legal and other limited Reversions, which are only given for a certain time: Because Jus Limitatum, to a certain time producit limitatum effectum, viz. A limited Action during the said time: And it being just, and the Compriser or Heretors' Interest, That the Reversion should be only limited, and for the said time, ne Dominium sit in incerto, as said is, he cannot be in worse case by Reason of the condition of the Party who has Right to the Reversion, being Minor or Fatuous: and in effect by a Reversion, the Compriser or Heretors Right, is Jus resolubile sub conditione potestativa; and in such cases it cannot be pretended, that the party could not satisfy the condition, being Minor & Fatuus.   

Rights made by Dyvours.  
QVaeritur, Whereas by the Act of Parliament anent Dyvours, Rights granted without an Onerous Cause, in prejudice of Creditors, are reduceible; without Prejudice always of those who have acquired Rights from the Confident Person bona fide: If the said Salvo should be extended to Comprysers? Ratio Dubitandi, That it appears hard that Creditors should be prejudged, and be in worse case by the Fraud of their Debtor, and their action (being competent to them and nata immediately after the fraudful Alienation) should be taken away from them without their own Deed: and yet the said Salvo being only in favours of Purchasers, and favore Commercii, and of these who bona fide contract with Persons that are not inhibited, neither they nor their Authors should be excluded; and Comprysers cannot plead the favour of Commerce, seeing they have not any Commerce nor Contract with a Confident Person, but against their will use Execution against what they conceive doth belong to him, which they do upon their own hazard, and therefore ought not to be in better case than their Debtor, and cannot have his Right but as he had it, Et cum sua causa.   

Fraudulent Rights in prejudice of Creditors.  
A Debtor after expired apprisings, Dispones his Estate so encumbered, by a Contract bearing an obligement that the Disponer should cause the Comprisers Dispone their Right: or that it should be lawful to the Buyer to acquire them: And after all should be purged, the Buyer being obliged to pay the Sum thereinmentioned, and accordingly having paid the same to the Seller, Quaeritur, If such a Transaction, though it cannot be questioned upon that head that it is without a just price, yet may be questioned upon the Act of Parliament, as being without a necessary cause; and of purpose to defraud Creditors, who had not preferable Rights?  
If a Person be in that condition, that his Debt will exceed the value of his Estate; and because his condition is not known, and being a person of Credit he is not inhibited; any confident friend knowing his condition, if he should acquire a Right to his Estate in hail or in part, for a price equivalent, of purpose that he may have a Livelihood, Quaeritur, if such a Right may be quarrelled as fraudulent? Ratio Dubitandi, That it is for an Onerous cause: And on the other part, The Cause was not just nor necessary: and it is presumed that the said course was taken in defraud of the Creditors.   

Right a non habente potestatem.  
THE King having Disponed Lands, having fallen in his hands by Forefaulture; and the Infeftment being passed under the Great Seal; the person to whom it was granted did decease before Season; and thereafter another Donator procured a Right under the Great Seal; and was Infeft thereupon, Quaeritur, If the second Gift may be questioned as being a non habente potestatem; in respect the King was fully denuded in favours of the first Donator, and nothing could be done more to denude him by himself: and the taking of Season is not the Act of the King, but of the Party: And it could not be imputed to the Donator, that he did not take Season, being surprised by Death: And double Rights are forbidden by the Law?   

Rights ad Tractum futuri Temporis.  
WHen a Tack or Annuity for certain years, belongs to a person; It does not belong to his Executors; because it has Tractum futuri Temporis; But if he have Right to it by the Escheat of another person, it will belong to his Executors. To consider what is the reason of the difference.   

Right in Trust.  
HIs Majesty having upon the Forefaulture of the Earl of Argyle given a part of the Estate to My Lord Lorn with the Title of Earl; beside what he was Infeft in before: And having given of Provision for the rest of the Children also many Lands as would extend to the Rents allotted to them: and having given out of the Estate a Liferent to the Lady Argyle; and the rest of the Estate to the Creditors: and having appointed the Lords of Session Commissioners, for hearing the Creditors claims, and determining the same; and upon their competition for preference. There is also a Right of the Estate settled upon Three trusties to the longest liver of them Three, without mention of Heirs and Assigneys, being Three Clerks, one of the Session, one of the Council, and one of the Exchequer, to the uses foresaid; and that the said Estate may be conveyed, and allotted, as His Majesty had Ordered: Quaeritur, If a Signature to the effect foresaid be habilis modus? Answer. It is thought, not;  there being no mention of Heirs, the said Right granted to the trusties, if they should all Die, will vanish; albeit it be granted to them in Fee: And therefore it is thought, that the proper way were, That a Commission only should be granted to the trusties, to Dispone to such persons, as the Commissioners should appoint: And as to Lands holden of the King, Charters should be granted making mention of the Forefaulture, and Commission and Disposition made by virtue thereof, and ratifying the same; and conform thereto giving and Disponing the Lands thereincontained.   

Ripae & Ripatica.  
USus Riparum est publicus, & cuilibet licet naves ad eas appellere; Ripae enim hanc servitutem debent flumini, cujus usus sine usu riparum nullus est: & servitus ista a natura imposita videtur, ut usu fluminis concesso & ea concessa intelligantur sine quibus eo uti non possumus. Jus Fluviaticum p. 28. n. 362.  
Ripatica penduntur pro trajectione, quae navi fit ab una Ripa in aliam: & sunt omnia Emolumenta & reditus quae Princeps capit in Ripis fluminum, vectigalia scilicet & potestas cogendi ad muniendas Ripas. Idem p. 30. n. 375.   

Quando Dies cedit in Grass Roums, when there is Question betwixt Fiars and Liferenters?  
IT being the Custom of the Country in some places, That Lands consisting of Grass-Roums, are Yearly set from Whitesunday to Whitesunday thereafter, for payment of a Silver Duty at Martinmass after they are set; Quaeritur Therefore, If the Fire survive the Whitesunday, but dieth before the Martinmass, if he will have any part of the Martinmass Duty? Or if it will belong entirely to the Relict, Liferenter, or next Fire? Answer. It is thought, That he nor his Executors would have no part of that Duty, being paid for the said Year, betwixt Whitesunday and the next ensueing Whitesunday:  he deceased (as said is) before Dies either cessit, or venit. Monmouth.  
In some places Grass-Roums are set from Whitesunday to Whitesunday, but the Term of Payment is Candlemass, and Lambmass. Quaeritur, If the Fire decease after Martinmass after it is set, but before the first Term of Payment; if he will have any part of that Years Duty? Answer. It is thought, he will have the half; and what ever be the Term of Payment, Dies cedit at Martinmass, for the half Year preceding.  
Seeing for the Duty of Corn-lands, though payable betwixt Yule and Candlemass, yet Dies cedit at Whitesunday and Martinmass as in the Question foresaid; Quaeritur, What is the reason of so great difference betwixt these and Grass-Roums? Answer. That the Duty being paid for the Cropped, the Terms of Whitesunday and Martinmass are respected; so that the Fire surviving Whitesunday, his Executors have Right to the half of the Year; upon that consideration (as appears) because the Lands are then fully laboured, and Sown; and whoever survives Martinmass has Right to that Terms Duty, because the Cropped is then fully collected: But as to Grass-Roums set, (as said is) at Whitesunday to Whitesunday thereafter; the Grass only is to be considered, which upon the matter is the Cropped of these Roums; and the reason why the Duty of the whole Year is paid at Martinmass, appears to be, that before Martinmass the Grass-profites are collected by selling of their Wool and Beasts, at or before that time.  
Quaeritur, If the Fire decease after Martinmass and has not uplifted the Duty, will the same divide betwixt him and the Liferenter? And if he has uplifted the same, if his Executors would be Liable to refound the half to the Liferenter? Answer, Cogitandum. For if it be not uplifted it appears reasonable that the Liferenter should have the half, and if it be uplifted, it appears hard that the Fire having uplifted the same Jure suo & bona fide, should be Liable to render any part of the same; specially seeing the Liferenter may have the same advantage if she should decease after Martinmass.  
If Corn Roums should be set in the same Terms, That the Duty should be paid at Martinmass after they are set, Quid Juris? Seeing the said payment will be before the next Cropped, and the Fire may die before both the Terms of the next Year, for which the Duty is due? Answer. It is thought, that the Fire cannot set the said Lands in manner foresaid, in prejudice of the Liferenter: And if the Tennent take the same that way, it is upon his own hazard: And the Liferenter would force him to pay the Duty, after the ordinary Terms of the Country.  
Quaeritur, If a Tennent have a Liferent-Tack, and he Die after Whitesunday, If the Tack will not continue for that Year? Seeing the time of Removing of Goods necessary for labouring is passed before his decease, and Roums being set from Whitesunday to Whitesunday, annus coeptus, as to Labouring, habetur pro completo. Vide Annuum Legatum.  
Quaeritur, If there be not the same reason as to Liferenters, in Labouring or possessing the Land with their own Goods, seeing their Executors cannot remove the Goods after that time, and the Year of the Liferent is begun?    

S.  

Act Salvo.  
QVaeritur, If Ratifications in Parliament, with the Clause, That they should not be Liable to the general Salvo, Will prejudge a third Person having undoubted Right, and having been secured by a general Law, viz. The Act Salvo Jure: The Ratification being only a private Act, and the persons concerned not being called?   

Season.  
A Posterior Season, but first Registrate, whether will it be preferred to the prior Season, Registrate thereafter though debito tempore?   

Registration of Seasins.  
IF a Season of Reversion granted by a Bishop will militate against the Successor, albeit it be not Registrate in the Register of Seasins? Ratio Dubitandi, The Bishop doth not succeed as Heir: And yet he cannot be said to be a singular successor, and Bishops they are Corpora singula.   

Special Services and Precepts of Clare constat.  
A Person being served Heir-male or Provision in special in certain Lands, and deceasing before he be Infeft: Quaeritur, If his general Heirs will be liable to the Debt of that person to whom he was served Special Heir?  
The same Question may be moved upon a Precept of Clare constat, whereupon Infeftment has not followed; seeing in neither of the said cases there is Aditio Haereditatis before Infeftment; whereas in general Services there is Aditio as to any Estate, whereupon there is no Infeftment?   

Servitude and Extinguishment thereof.  
IF a Person who has Right to a Servitude out of other Lands, should acquire also Praedium Serviens; Quaeritur, If eo ipso that he has Right, both to Praedium Dominans & Serviens, the Servitude doth extinguish; Quia res sua nemini servit? and if he should thereafter Dispone Praedium Serviens, whether the said Servitude not being reserved; either he or his singular successor in the Right of the other Lands can claim the same? Or if he should Dispone praedium Dominans without mention of the Servitude, but with all Liberties and pertinents; whether will that Servitude revive, as being only Sopita for the time, while both Lands belonged to one person, but not extinct by any Discharge, or deed freeing the Lands of the same?  
If a person has constitute by Writ a Servitude, and thereafter Dispone his Lands without excepting of the same. Quaeritur, If it will militate against a singular Successor? Answer. Such Jura Haereditaria which are in rem, non Transferuntur nudis pactis sed traditione; and by possession, which is instar traditionis: But if the Servitude be Discontinua as v. g. the leading of Sea-ware, which is not done but at a certain time of the Year, Quaeritur, what shall be done to perfect the Constitution? It is thought, it may be published by making Intimation thereof to the Tenants, and at the Paroch Church, and upon the ground: and the Granter, if need be, may be Inhibited.  
Si alicui Jus hauriendi & adeundi conoessum est, utrumque habet: Si tantum hauriendi, inest aditus: Si tantum adeundi ad fontem, inest & haustus: aliquo enim concesso, omne illud, sine quo hoc Jure uti nequimus, concessum intelligitur. Jus Fluviat. p. 89. initio.  
Aut vicini aquam hauserunt, Jure familiaritatis aut Jure acquisito; hoc casu cogi nequeunt, ut in fonte mutationem admittant; illo possunt. Idem. p. 90. n. 40.   

Lords of Session.  
IF the Lords of Session have power to Judge Appellatione remota, seeing they have the same power, which the Lords of Session had formerly? It is thought, that they have the same power Extensive as to the subject of their Jurisdiction; but not Intensive, as to the quality foresaid, if it be not expressed; being ex reservatis quae non transeunt nisi exprimantur:  Adaequatio, by the clause with the same power, is to be understood as to the ordinar power belonging to Judicatories and Incorporations qua talia; and not as to any Extraordinary Power and Privilege: As if a Burgh should be Erected with the same privileges belonging to any Burgh within the Kingdom, they will not have Right to be Sheriffs within themselves; by reason other burgh's have that Right, non qua Burga; but by a special privilege: And some Lords of Regality do pretend to the Escheats of the Persons within their Regality upon Horning, and yet a Right of Regality by the general clause, will not carry the same.  
If the Lords of Session be to be considered as Judges only, or Magistrates, & Praetores habentes Imperium in some cases?   

Sheriffs.  
IF Precepts of Sheriffs may be put in Execution, by their Officers, after their Death?   

Ships.  
IF, a Ship being abroad, Traditio Instrumentorum (to a Buyer, viz.) of the vendition, be sufficient?  
If a Ship be poindable, & quomodo?   

Solarium.  
SOlarium est vectigal, quoth a superficiario penditur pro Jure superficiei in solo. Jus Fluviat. p. 70. n. 15.   

Sponsalia.  
IF, after a solemn Contract of Marriage, one of the Parties Mary otherways; will that Marriage be lawful, even though after Banns upon the said Contract of Marriage? Answer. Contracts of Marriage and Sponsalia inducunt Jus ad rem, as in other personal Contracts, and Dispositions anent Lands; but not in re sine Traditione; which in Marriage, is only when sequitur Benedictio in fancy Ecclesiae, or Concubitus.  
If Sponsalia be consummate and purified per Copulam, and a pursuit being intented for Solemnising the Marriage, and Declaring the Issue lawful, the Defender die in the interim; may the pursuit be transferred in favours of the Wife and Children, ad hunc effectum at least, that she may have Jus Relictae, and they be Heirs and Executors to their Father? Eadem est quaestio, as to promise and copula.  
Rejecta distinctione Canonistarum in Sponsalia de praesenti & de futuro, prout illi ista accipiunt: quaelibet Sponsalia, quibuscunque verbis contracta, nihil aliud sunt quam Conventiones de Matrimonio in futurum contrahendo. Christenius de Jure Matrimonii. Dissert. 1. §. 3.  
A modo tamen contrahendi, usu hodierno dividi possunt Sponsalia, in pura sine adjectione alicujus conditionis, & Conditionalia quae honesta conditione apposita contrahuntur, ut ducam si Pater consenserit; illa de praesenti; ista de futuro haud male appellantur. Ibidem.  
Qui Sponsalia contrahunt, nuptias celebrare compelluntur, legitimis coercitionibus: & Contractus Sponsalitius, trinundino promulgatur in Ecclesia, aut pro Curia. Ibidem scent 6.  
Concubitu purificantur Sponsalia sub conditione, & statim fit conjugium; quia censentur sponsi a conditione recedere: nec obest protestatio se non recedere, utpote contraria facto. Christian. de Sponsal. quaest. 9   

Statuta.  
STatuta, Ratione Bonorum sui Territorii, obligant etiam non subjectos; ipsas enim res afficiunt, sive a Cive possideantur sive ab Advena. Thes. Bes. lit. S. 110. ante finem. addit. p. 902.   

Steelbow and Heirship.  
WHether a Roum being set in Tack for certain Years with Steelbow-Goods, as Oxen etc. will the Steelbow Goods belong to the Heir who has Right to the Tack? Or to the Executor? Ratio Dubitandi, Both the Lands and the Goods are set in the Tack as Fundus Instructus, and the Duty is payable in contemplation of both: so whoever has Right to the Tack, has Right to both, the Tack being Jus individuum. 2. The Goods are like nativi & ascriptitii & addicti glebae. 3. What is to lie fixed for divers years cannot be reckoned inter mobilia. 4. It were hard to think, that a Relict and Bairns should have their Legitim out of Goods that are not in the possession of the Defunct, nor would be for divers years. And it would seem, That eadem est Ratio as to the setter of the Tack, and his Heirs and Executors.  
Pecora dantur in socidam, cum animalium casus in Pastorem transfertur; qua conventione pecora ferrea effici & appellari solent; quod fit in multis provinciis Germaniae; ubi cum fundo certus numerus ovium & vaccarum in feudum dari solet; ita ut Vasallus feudo sinito eundem numerum supplere & restituere teneatur. Besold. Thes. in verbo Eisern Biehe. lit. E. p. 224.   

Strangers, See Process against Strangers, lit. P.  
ALL Nations are Municipia, and the World a great Civitas: They have that Relation and necessitude, that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sunt, and own Justice to all persons of whatsoever Nation, according to the Law of the place, where they Contract, with respect to that place; sibi enim legem dixerunt: If Justice be refused, datur remedium pig norationis seu Repressaliarum.   

Goods or Debts belonging to Strangers.  
IF Mobilia or Nomina belonging to Strangers (v. g. in England) should be confirmed here? Or if it be sufficient they should be confirmed in England? Ratio Dubitandi, sequuntur personam: On the other part, they are a Scotish Subject or Interest.   

Subjects living Abroad.  
A Native Living Abroad and being Popish, and going to the Mass where he liveth, Quaeritur, Whether he Forfaulteth his Estate in Scotland?  
Item, If he Intercommune there with persons Forefaulted in Scotland; whether he be Liable, as having contraveened the Law of Scotland; so that if he have any Estate in Scotland it may be affected?  
If a Prince may command a Subject living Abroad under his Enemy to retire and come home? And if he disobey, may he be proceeded against, and be divested of any Fortune and Liberty competent to him as a Native?  
Quoties Rex, Princeps, vel alius, in alterius Regis vel Principis Territorio bona habet & possidet, ratione quorum, Juramentum fidelitatis praestare solitus est; per hoc non efficitur, ratione suae personae, seu personali obligatione, subditus aut subjectus; nec quoad personam sortitur forum nisi secundum quid; ita ut pro tali possessione bonorum conveniri possit, coram Judice loci, in cujus Territorio bona sunt. Thes. Bes. in litera H. 70. Huldigung. p. 402.   

Substitutes.  
A Bond for a Sum of Money being granted to Sempronius; and Failyieing of him by decease to Titius, and Titius his Heirs and Assigneys, Quaeritur, who is Fire? Answer. The first person: Titius being only substitute, Failyieing of him by decease; and Successor in spe.  
Quaeritur, If Sempronius may dispose of the said Sum by Testament as he may inter vivos? Ratio Dubitandi. That Titius is substitute by a deed inter vivos. Answer. It is thought, he may:  such Deeds are upon the matter Donationes mortis causa; in which voluntas est ambulatoria.  
Quaeritur, If the said Substitute will be liable as Heir of Tailzie? It is thought, he should be liable;  if there were an Infeftment in the terms foresaid, the Substitute could not succeed but as Heir of Provision.  
If a Bond bearing the Substitution foresaid be registrate, Quaeritur If the Substitute (being named as said is) may charge thereupon? Answer. It is thought, not; because the Bond being registrate, is a Decreet as to the first Person: but the Substitute having only right, instar haeredis by Succession; he cannot charge no more than an Heir of Provision.   

Substitutio.  
SVbstitutio est Designatio secundi, vel ulterioris haeredis.  
Substitutio vulgaris est ea quae fit in casu vulgari, haereditatis non aditae nec acquisitae. Perez. Institut. lib. 2. tit. 15.  
Substitutio Pupillaris est, qua Parentes Liberis suis in potestate sua & impuberibus substituunt, in casu mortis ante Pupillarem aetatem, & acquisitae haereditatis.  
Constitutione Divi Marci & Veri, substituens in alterutrum casum duntaxat vel Vulgaris vel Pupillaris substitutionis, in utrumque substituisse intelligitur; alterum sciꝪ. expresse, alterum tacite. Perez. Ibidem.  
Quaeritur, De substitutionibus in Taliis nostris, istis verbis, viz. Cum Terrae disponuntur Titio & haeredibus suis de corpore suo prognatis; quibus deficientibus haeredibus masculis etc. utrum sunt pupillares an vulgares? Responsio. Eas utramque Substitutionem continere: Deficientibus enim Haeredibus institutis in primo gradu, quolibet casu, sive non adierint, sive haereditatem adierint & defecerint, ad substitutos haereditas pertinet.   

Substitution in Bonds.  
A Bond being granted to the Creditor, and failyiening of him by decease to another person, Quaeritur, If the Person substitute will be liable to the Creditors Debt, at the least pro tanto;  the Sum was in bonis, and his Debt ought to be satisfied out of his Estate?  
If such Bonds may be altered by the Creditor, not by uplifting which he may do being Fire, but also by changing the Bonds, and taking the same to himself and any other person, or to his Heir? Seeing the Bonds seem to be a perfect Donation in favours of the Substitute: and on the other part they may be thought mortis causa.  
If the Creditor may dispose of such Sums by Testament?  
A Bond being granted by divers Persons to my Lord Dundonald, and failyiening of him by Decease to his Son the Lord Cochran his Heirs and Executors: and after the decease of Sir John Nicolson one of the Debtors, he having taken a Bond of Corroboration from his Brother Sir William to himself; and failyiening of him by decease to his Grandchild then Lord Cochran (his Father being deceased:) Quaeritur,  the first Bond stands as to the rest of the Debtors; Whether the Lord Cochran his Father's Executors, will have Right to the same? And what course shall be taken to get the Right of the former Bond settled in Cochran's Person?  
Quaeritur, If the former Bond being null; and in the Bond of Corroboration there be an Obligement to Infeft; if the nature of the Sum as to the former Quality of Movable, be altered?  
A Bond being granted to Robert Selkirk Merchant in Edinburgh, and Katherine Inglis his Spouse, the longest liver of them two in Conjunctfie; and failyiening of them both by decease to Robert Selkirk their lawful Son, and to the Bairns lawfully to be procreate of his Body; which failyiening, to the other Heirs lawfully procreate, or to be procreate betwixt the said Robert and his said Spouse: Which all failyiening to the said Katherine Inglis her own nearest and lawful Heirs, Executors or Assigneys: with this Provision, That it shall be leisum and lawful to the said Robert Selkirk Elder at any time dureing his life-time, vel in articulo mortis, by himself alone, to uplift, discharge, or otherways assign and dispone the Sums in the said Bond, in hail or in part, to any Person or Persons, he shall think expedient, and to make and grant all Writes, Rights, and Securities requisite thereanent, in due and competent Form, without the Consents and Subscriptions of the said Katherine Inglis his Spouse and Robert Selkirk his Son or his foresaids, had or obtained thereto in any sort.  
The abovementioned Robert Selkirk the Husband, and Robert Selkirk his Son being both deceased, without Heirs either of the Body of the said Robert Selkirk Younger, or of the Marriage betwixt the said Robert Elder, and the said Katherine Inglis; so that the said Katherine has Right to the said Bond: Quaeritur, Whether the same will pertain to her in her own Right as Fire, or as substitute in the last place, and representing the Fire? And who is Fire by the said Bond, Whether the said Robert Elder his Son, or the said Katherine, who pretends to be Fire, because the Right of Succession terminats upon her and her Heirs?  
It is Answered, That albeit when a Bond is conceived simply to two Persons in Conjunctifie, and the Heirs of one of them; the Person to whose Heirs the Sum is provided is understood to be Fire; yet when there are divers degrees of substitution of the Heirs of divers Persons; the Person whose Heirs are first substitute is Fire; and both his own Heirs substitute in the first place, and the other Heirs of any other Person substitute after them, will be Heirs of Provision to him: As when a Bond is taken to a Husband and his Wife, the longest liver of them in Conjunctfie, and to the Husband's Heirs; whilk failyiening, to the Wife herself and her Heirs; though the Right of Succession as to the said Bond does terminate upon the Wife and her Heirs, yet the Husband will be Fire, both as dignior; and because the Right of the Sum will pertain to his Heirs in the first place: and to the Wife and her Heirs only upon their failyieur, and as Heirs of Provision to them: And Therefore, In the present case, the Money being lent by the Husband, and being provided after his decease to his Son Robert, and the Heirs of his Body, whilk failyiening, the Heirs of the Marriage betwixt the Husband and the Wife; and to the Wife's Heirs, only in the last place: It is thought, That her Husband is Fire, and that the Wife and her Heirs will only have Right as Heirs of Provision unto him: And if Robert should have had Children, or if there had been other Children to the said Robert Elder by the said Katherine, it were absurd that they should have had the Right of the said Sum, which was lent by the Husband, not as Heirs to him, being their Grandfather or Father, but as Heirs to the said Katherine, being their Mother or Grandmother; or that the said Katherine surviving her Husband should have power as Fire of disposeing the said Sum; or to have given it to a second Husband, in prejudice of the said Robert her Son, or the Heirs of his Body, and the Heirs, if there had been any thereafter, procreate of her Husband and her, though descended of both.  
If it be found by the Lords, that either the said Robert Selkirk Elder, or his Son Robert was Fire; the said Katherine must be served Heir of Provision to the Fire.   

Substitution in Legacies.  
A Legacy being left to a Person, and failyiening of him by decease to another. Quaeritur, What the Import of that Substitution is? Answered, It is thought, That it is Substitutio Vulgaris; and that the Effect of it is, That if the Legatar die before the Testator, so that the Right do not take effect in his Person, it should belong to the Substitute: But that is not fideicommissaria; So that the Legatar dieing after the Testator, it would belong to his Executors, and not to the Substitutes.   

Successio in Maternis.  
A Grand Father upon the Mother's side, having the time of his decease two Daughters, and Children of a third Daughter, Quaeritur, If the two Daughters will only succeed, and exclude the Children of the third? Ratio Dubitandi, That Representation is in order to the standing of Families, and in the case of Primogeniture; whereas in Successione materna the Interest of Families is not considered; seeing the Grand Children by their Mother has not somuch as caput in Familia: And for the same reason, mobilia, because they are not the Foundation of Families, admit no Representation. Answer. It is thought, by our custom, The Children of the deceist Daughter will succeed with their Materterae: Et non potest reddi ratio omnium quae a majoribus constituta sunt.  
If the Children of the deceased Daughter do succeed, Quaeritur, If the deceased Daughter has left Sons and Daughters, whether the eldest Son of the said Children will succeed to their Grand Father? Or if all the Children will be Heirs Portioners as to their Mother's part? Seeing for the same reason, that their Mother and Aunts are Heirs portioners viz. That they are finis Familiae; a fortiori they who are not in Familia at all aught to be Heirs portioners. Answer. It is thought, that the eldest Son of the deceased Daughter will succeed as Heir portioner with his Aunts; and the Law doth favour not only Families as to preservation after they are constitute, but likewise as to their Constitution: And the eldest Son, albeit he be not in Familia materna, may constitute and be a head of a Family of his owned.   

Successio in Stirpes.  
SI duo Conjuges ita testentur, post utriusque obitum utriusque haeredes ex aequo successuros & haeredes fore; tunc non in capita sed stirpes succedunt, & in duas aequales portiones haereditas dividenda est; quia quilibet suos haeredes aeque dilexisse creditur; & illis ex aequo prospicere. Thes. Bes. verbo. Gleich. 62. P. 323. & 324. sect. ult.   

De Successione in Feudo amisso, & quo Jure censenda, utrum Haereditatis an Conquestus.  
QVaeritur De Feudo amisso & reverso, quo Jure censendum sit, utrum Haereditatis an Conquestus; & de omnibus commissi speciebus competit, sive ob Alienationem, sive Disclamationem, sive Purpresturam vel Baratriam, aut qualemcunque Feloniam, aliudve delictum, feudum apertum dicatur; Sed quia Recognitio frequentissimus apud nos feudi ex commisso vindicandi modus increbuit, de ea & praxi nostra maxime solenni, & textui accommodatiori, quaestionem agitabimus: Decisionem ad reliqua commissa indistincte porrigendam praefati. Quaeritur igitur, cum Superior feudum per Recognitionem sibi asseruit, utrum feudum Recognitum post obitum ipsius, ut conquestus ascendat? An vero ut haereditas cum feudo dominanti descendat; posito feudum dominans haereditarium esse?  
Quaestio haec in se difficilis, & gravissimas consequentias secum trahens, haud aequali tamen difficultate in omnibus Recognitionis speciebus laborat: Quod ut patefiat, sciendum duas apud nos invaluisse Recognitionis species, ex causarum diversitate diversas; unam ob defectum Vasalli, alteram ob delictum: Ex posteriori causa, feudum ob delictum & admissum Vasalli dicitur proprie committi: Ex priori, Vasalli prosapia, quam in prima feudi concessione dominus ad feudi successionem asciverat, extincta, feudum dicitur finiri; & cum stemmate in quo resederat exspirare: si enim ab initio, contessum est alicui & haeredibus masculis ex ipsius corpore progenitis, vel descendentibus masculis; Vasallo mortuo, nec ullo ex descendentibus masculis superstite, dominus feudum ab haeredibus talliae, vel per foeminas descendentibus, revocat; & hanc feudi revocatïonem Balfurius Recognitionem vocat, & ejus praxin prodidit in Tract. de Recognitionibus, datam 18. Decemb. 1506. Regio Advocato agente contra Joannem & Margaritam Auchtrans haeredes, alterum talliae, alteram lineae: Et hoc Genus Recognitionis etiam in feudis Francis locum habet: feudo hac ex causa revocato, etsi dubitari potest, utrum in persona domini ád quem revertitur, Haereditatis an Conquestus naturam induat; certum est eodem jure quo feudum dominans censeri, eandem naturam & qualitatem sortiri respectu successionis; & omni alio respectu, qui ex distractione & divisione propriorum seu haereditatis & conquestuum, secundum nostram consuetudinem posset emergere. Quin etiam, hoc casu non solum Dominium directum dominium utile attrahit, sed possessio civilis possessionem naturalem advocat; adeo ut Dominus directus possessionem naturalem nactus, non dicatur novam adeptus, sed veterem continuare possessionem, astipulantibus omnium doctorum suffragiis, in L. clam possidere. ff. de acquirenda vel amittenda possessione: Et haec feudi extincti redintegratio adeo Aequitate & Ratione subnititur, ut fiat in eodem qualitatum statu quibus feudum dominans afficitur, tam quoad usumfructum, ff. de usufructu: quam hypothecam L. si fundus in principio ff. de pignor. Et servitutes ex fundo dominante debitas: idque optimo Jure, quia accessio per modum unionis coiens, eandem prorsus rem constituit, & res cui unitur omnes suas Qualitates ei impertitur. L. 26. sf. de pacto dotal. Atque haec decisio, firmissimo & irrefragabili Argumento nititur; quod dominio utili, quod per infeodationem a directo discesserat, extincto, & per modum merae privationis annihilato, nihil domino cedit, aut acquiritur; sed proprietas, quae abscedente usufructu & dominio utili eatenus fuerat inutilis, eo perempto pura & defaecata emergit: ideoque dominium utile non redit; sed in persona proprietarii quasi recidivum reviviscit, & dominus nil nanciscitur, sed quod ante habebat, sed gravatum jure reali in alium devoluto, eo jure evanescente illibatum, & quasi purificatum incipit obtinere; sicut cum finitur Emphyteusis vel ususfructus, vel cum res revertitur ad mulierem soluto matrimonio L. in rebus. C. de Jure dot. Cum igitur nulla hic sit. Accessio nec Transmissio, sed mera privatio & extinctio, nulla potest esse acquisitio. Argumenta, quae hanc sententiam enervare videntur, quia in alteram Recognitionis speciem opportunius & fortius stringi possunt, solvere supersedeo, donec eam absolvero.  
Secunda Species, quae, proprie & 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Recognitionis nomine usu nostro indigitatur, procedit, cum Vasallus feudum militare, vel saltem ejus partem medietate majorem, quomodocunque, vel simpliciter vel sub pacto de retrovendendo seu reversione vendit, domino inscio & inconsulto; vel saltem ita gravat annuis reditibus, aliisve oneribus, ut major pars fructuum quotannis erogetur, & exhauriatur; quo casu feudum amittitur & ad dominum revertitur, ait Textus, & mores nostri suffragantur: sed quo jure, utrum haereditatis an conquestus ambigitur, & adhuc sub judice lis est: Certe majori difficultate, & fortioribus argumentis hic, quam in superiori specie conflictandum est; ibi enim feudo naturaliter finito & extincto sine facto Vasalli, nec ulla extrinseca causa interveniente, nulla erit transmissio juris extincti & elapsi, sed virtute directi dominii utilis attractivi, naturalis consolidatio. Sed in hac specie feudum in se perpetuum de se non finitur, sed per accidens, ideoque nova videtur acquisitio in paenam ingratitudinis, & sic veluti ex causa lucrativa juxta L. apud Celsum. §. auctor. ff. de dol. mal. & met. except. Secundo, Feudum recognitum haereditas videri non potest, cum non tam per virtualem praedecessorum successionem transmittatur, quam per emergentem delicti Vafalli occasionem, jure obventionis lucrativae quae omitti potest, patrono accedere videatur. Adhaec, cum subfeuda in eodem supposito cum feudo dominanti consluentia, non necessario cum eo coalescant; nec in consequentiam Consolidationis & unsonis, eadem jura qualitatesque participant; quicquid enim nonnulli sentiant, ex quibusdam legibus male intellectis, confusionem & consolidationem astruentes, L. Vranius ff. de fidejuss. L. Papinianus ff. de servitut. urban. praed. clarioribus legibus refelluntur; quibus cuilibet rerum suarum moderatio & arbitrium permittitur, L. in re mandat. C. mandat. L. nemo exteris C. de Judaeis: & receptae & triviali praxi frustra oppedunt; Constat enim subseuda a domino superiori empta, in eodem supposito coire non tamen uniri; sed in casu divisionis ab antiqua haereditate dirempta ad haeredes conquestus transire; idque apud nos observatur, & in Gallia ubi Jus Consuetudinarium dominatur expresse sancitum est. Tertium & ultimum Argumentum, quod maxime officere videtur ne feuda recognita haereditas judicentur, ducitur ab incommodo; si enim feuda recognita, feudo dominanti virtute consolidationis ut haereditas accedunt, sequitur feudi dominantis annexatione & incorporatione domanio & coronae D. Regis facta, & subfeudo aperto & commisso, subfeudo, inquam, quod ante incorporationem elocatum fuerat, (post enim, non licet, ne secuta dissolutione, proprietatem semel annexam alio modo quam in Emphyteusin dare, Constit. 234. Jacob. sext.) feudum illud domanio accrescere & inalienabile esse, sicut reliquum domanium & patrimonium fiscale & publicum, non tam principis quam Majestatis & coronae; nec nisi praevia dissolutione posse a Rege disponi, quod absurdum: nec enim serenissimis nostris Regibus denegari debet libertas, quam feudistarum Coryphaei Andreas Isernia & Mathaeus de asslictis, omnibus principibus attribuunt in L. Imperial. § praeterea ducatus tit. 55. de prohib. feud. alien. Et Galli domanii & Appannagiorum ex Lege fundamentali inalienabilium acerrimi assertores, regibus suis non invident: his non obstantibus, in alteram partem non solum propendeo, sed pedibus eundum censeo; eamque moribus nostris, juri feudali & civili magis consentaneam, nec tot tantisque incommodis laborantem, argumentis astruere, & contraria diluere, conabor.  
Primo igitur, feuda recognita moribus nostris inter Propria seu Haereditaria numeranda ex eo patet, quod Jure haereditario & antiquo a praedecessoribus transmisso vindicata; quodque non per modum transmissionis sed extinctionis & negationis ad Dominum devoluta sint: quamvis enim, ut in priori specie, feudum non expirarit, & per se extinctum sit; quia tamen accedente Vasalli culpa, feudum vel ipso Jure vel praevia sententia corruit; ideo merito dicitur extingui & irritari, ut Emphyteusis in se perpetua, ob desidiem & Cessationem Emphyteutae biennalem annihilatur & extinguitur Jure cannonico & Civili; & Jure nostro scripto, constitutione 246. Jacobi Sexti; Ubi amissio & irritatio Emphyteuse●s vel feudi ex Jure aequipollere dicuntur; irritatio autem & transmissio ex diametro adversantur, illa enim penitus annihilat & extinguit; haec Jus ab uno avocat & in alium transfert; cum igitur nil supersit, quod transmitti vel acquiri posset, necesse est Jus Dominicum se exserat; & nullo obice objecto, Dominio utili, quod habebat vasallus, extincto, Dominium utile vi quadam alliciat; vel virtualiter proprietati & Dominio directo insitum & quasi sopitum resuscitet: & sic nulla somniari potest acquisitio nec Dominii directi quod Dominus ante habebat; nec utilis quod interit: & Dominium utile quod Dominus incipit habere non de novo transmissum accedit, sed antiquum per infeodationem supressum, ea resoluta, enititur & sese exserit; atque hoc moribus nostris ita fieri, argumento est, quod cum feudum redit ad Dominum, non cum onere quod in transmissione fit, revertitur, sed immune & liberum sicut ante primam infeodationem: adeo ut non solum alienationes & investiturae quae initio validae, utpote citra medietatem factae constiterant, recognitione subsecuta corruant, sed etiam Subinfeodationes & Emphyteuses quamvis ab initio recte constitutae, ex post facto subvertantur, & recognitioni subjaceant: secus quam in Gallia ubi feuda Domino aperta oneribus a vasallo impositis obnoxia sunt, Teste Molinaeo.  
Atque hanc sententiam juri feudali maxime esse consentaneam, facile liquebit, perpensa natura feudi: Feudum nonnulli definiunt dominium utile; sed meliores Jurisconsulti, explosa Dominii distinctione quae non Juris sed Magistrorum est, nullum utile Dominium admittunt; sed feudum usumfructum & Jus utendi fruendi esse volunt Cujac. lib. 1. de Feudis. Duar. lib. 1. annivers. disp. Egumarius Baro, lib. 4. de Beneficiis. Joannes Borcholt. in disp. De Jure Emphyteutico. Et textu feudali expresso nituntur, qui definit Feudum Beneficii usumfructum, lib. 3. tit. 1. de feud. & primo quidem precarium, vel annuum, vel ad summum vitalem, lib. 1. tit. 1. postea, usu gliscente perennem, lib. 3. initio. Sequitur igitur ex Jure feudali, feudum, ut omnem usumfructum, semel amissum & peremptum, non posse acquiri vel transmitti; sed cum proprietate consolidari; vel concinnius loquendo, dicendum usumfructum causalem, quem dominus habet ex causa rei & jure Dominii. L Simo cum argentum. § penult. de exceptionibus rei judicatae: & quasi Dominii partem L. 4. ff de Vsufructu; & qui usufructu formali (ut loquuntur Doctores) impediebatur quo minus se exsereret; eo repagulo per sententiam declaratoriam & privativam, secundum Dominum latam, substracto, emicare quasi & emergere. Secundo, cum quis rem ob causam aliquam datam causa non secuta, recuperat condictione causa dati ex Jure Civili, connotat rem eo modo receptam cum omni causa & omnibus fructibus redire, quasi nunquam data fuerit. L. qui se debere. § Fandus ff. de conductione causa data causa non secuta: Et consequenter, si quis fundum haereditarium dotis nomine dederit, & nuptiis non secutis postea condixerit; post condictionem, haereditarium esse nemo est qui diffiteatur? pari ratione, si feudum hae editarium aliquis in feudum dederit, & fidelitate quam stipulatus fuerat in perpetuum, vel nunquam secuta vel temerata; postea recuperarit condictione causa dati quae adversus vasallum infidelem Jure feudali intentatur, tit. 20. lib. 1. defeudis non dicitur de novo acquisiisse sed cum pristino Jure & causa recuperasse, quod si in persona primi concedentis feudum apertum non censetur conquestus, nulla est ratio diversitatis in persona haeredis, aut alicujus descendentis.  
Tertio loco, Decisionem hanc a Jure Civili & ratione non alienam esse, abunde demonstrant trita illa Axiomata & Brocordica, Neminem sibi servire aut in se agere posse, L. siquis aedes. ff. de servit. praed. urban: Omnem obligationem per confusionem extingui & exinaniri, L. Vranius. ff. de fidejussor. & Maximae Philosophicae, ex relatis uno sublato tolli alterum; & idem agens & patiens in rerum natura concipi non posse: & consequenter eundem Dominum & vasallum esse absurdum videri; & proinde feuda necessario consolidari: praeterea, quamvis omnium doctorum calculo, Jus feudale Jure civili posterius, eoque plerisque in locis exolescente quasi posthumum sit, certum tamen est in Jure civili nonnullas quasi umbras & feudorum simulachra reperiri; a quibus ad feuda non inepte ducitur consequentia; & ut omittam praedia stipendiaria nec mancipi, de quibus mentio fit in § per traditionem V. instit. de rerum divisione; & militias, in L. omni modo. C. de inofficioso Testamento; clientelas, de quibus passim toto Jure: & Jus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seu Libellarium, cujus meminit, Just. novella septima. Jus Emphyteuticum omnium judicio Juri feudali maxime affine est, & hoc ad ejus exemplum, & ideam conditum videtur, Dominio utili seu usufructu in perpetuum elocato, & conditione servitii & 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seu praestationum pro melioratione & canone Emphyteutico subjecta; & in casu inofficiosae alienationis vel contumacis cessationis feudi privatione irrogata: Unde frequentissima ultro citroque argumentatio fit, & quod in uno statuitur, ad alterum a doctoribus producitur, nisi expresse contrarium statuatur: Concludendum igitur, feuda aperta extingui & consolidari, sicut Emphyteuses de quibus nunquam dubitatum est a Juris interpretibus; praefertim cum verba Juris omnia negativa & privativa sint, nullamque transmissionem aut ex parte Domini acquisitionem importent, L. 2. C. de Jure Emphyt.  
Atque his argumentis, feuda commissa feudi Principalis Jure censeri evincitur iis, incommoda quae contrariam sententiam gravant, quasi in subsidiis subtexere non erit alienum: inter multa alia haec eminent, 1. quod posita subfeuda recognita conquestus esse, sequitur pendente fundi Dominantis usufructu, aperta usufructuario acquiri; ut omnes rei fructilis obventiones; idque non solum quoad usumfructum sed etiam quoad proprietatem, per L. usufructu legat. § 1. ff. de usufructu. 2. indidem sequitur, feudo dominante sub pacto de retrovendendo seu reversione alienato, & postea ex lege pacti redempto, subfeuda medio tempore recognita fiant, reliqua commoda & fructus emptori non eripi; sed utcunque ampla & opima latifundia cum pretio refuso penes eum remanere. denique venditorem fundi dominantis, quamvis ipsum cum omnibus viribus & pertinentiis alienet, subfeudum ante alienationem commissum, Domino seu Emptore invito, posse recognoscere; nec Jus commissi, ut Revium, & alia ante venditionem cessa & venditori adquisita, ad Emptorem pertinere: Quae consequentiae quam cum ratione & praxi nostra congruant, judicandum relinquo.  
Hactenus sententiam, quae tam in Jure quam praxi nostra potior videtur, utcunque probavimus; supersunt argumenta, quae supra in contrarium proposuimus, quorum solutionem, licet ex praedictis facile eliciatur, paucis persequemur. primum & secundum facile concidunt, sicut enim non refert, quomodo aut qua occasione usufructus finiatur, sive per se, morte usufructuarii naturali vel civili; maxima & media capitis diminutionibus, an per accidens, cessione & proprietatis consolidatione Inst. de usufructu: Sed quomodocunque finitus ad proprietatem revertitur: ita feudum, Jure Vasalli quomodocunque extincto, sive naturaliter ut in priori recognitionis specie; sive ex commisso; ad Dominum redit, & primaevam suam naturam recuperat; nec obstat posterior pars secundi argumenti, quae consolidationem fundorum dominantis & subalterni in casu concursus in eodem supposito non necessariam esse concludit; quia vera est tantum in casu transmissionis quae fit jure extraneo & heterogeneo, ex titulo emptionis, legati, vel successionis si Dominus haeres sit vasalli, quo casu feudum transmittitur cum onere a vasallo imposito; cum enim feudum sit jus transmissibile, quin Dominus haeredibus suis qui forte a successione feudi dominantis tallia aut alia provisione arcentur, consulere potest feudo acquisito, & citra consolidationem ad ipsos transmittendo, dubium non est: atque haec in feudo & Emphyteusi qui sunt usufructus perpetui recepta sunt, contra Juris Dispositionem de temporali usufructu qui nec cedi nec transmitti potest, L. si usuructus. ff. de Jure dotium, & Inst. de usufructu: quae tamen illaesa & illabefacta manet in casu extinctionis & commissionis, qui necessario consolidattonem & in pristinum statum sine onere redintegrationem implicat. Ad postremum respondetur, cum Subfeudorum consolidatio luculenter demonstrata sit; & subfeuda Domanio seu proprietati annexa consolidata, ipsius naturam & qualitates & inalienabilitatem assumere; & doctorum, qui contrarium tenent, authoritatem, quia ratione non fulcitur, authenticam non esse: Et haec est Juris civilis dispositio, juxta L. inter socerum, ff. de pacto dotali: sed praxis, quae plerumque a Jure recedit, & hic & in Gallia, adversatur; & Rex subfeuda etiam domanio annexo subalternata, alienare potest, nec requiritur dissolutio: Ratio praxeos hujus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 haec obtenditur, quod cum annexatio sit stricti Juris & odiosa, utpote quae absolutam, & ut leges ipsae loquuntur, legibus solutam Principalis potestatis plenitutudinem coarctat, nullam extensionem patitur; ideoque ea tantum, quae expresse annexa sunt, Domanii annexi Jure censentur; non antem obventiones & quantumvis haereditariae accessiones. In Gallia certe luculenta Caroli novi constitutio definit, nil Domanio annexo comprehendi, nisi quod expresse & diserte consecratum & coronae incorporatum est, vel saltem per decem annos ab iis quia rationibus Regiis sunt Domanio annexo accensitum est; dispar tamen ratio est in Gallia & apud nos; ibi enim feuda a genuina feudorum puritate disciverunt, & tantum non Alaudiorum & Patrimonalium Jure censentur, & proinde ad Dominum cum onere commissa revertuntur: apud nos vero tantum abest ut stricta illa feudalitatis tyrannis, quae rei suae dispositionem annihilet, emolliatur, ut contra intendatur; adeo ut vasallus, Domino inconsulto ne finium regundorum experiri posset, nedum de feudo transigere, quod tamen Jure feudali licet, tit. 23. lib. 4. de feudis. Et feudum rescissum proditur, ob deteriorationem & sylvarum stragem; cujus praxin refert doctiss. Cragius inter Davidem Boner de Rossye & Joannem Chrichton de Ennernythie. Concludo feuda subalterna ab antiqui seu haereditarii feudi Domino recognita, haereditati non conquestibus accenseri, & feudo Dominanti consolidari.   

Succesor Titulo lucrativo.  
IF the Heir of a Successor titulo lucrativo, be liable as himself, to the whole Debt contracted before, though exceeding the value of the Estate disponed? Ratio Dubitandi, The Title of Successor is a penal and passive title, and paena non transit in Haeredem. 2 do. The Heir of an Intrometter was found only liable in quantum the intrometter was Locupletior, in the case of in Lauder: And on the other part, a Successor Titulo praedicto, is haeres per praeceptionem, & haeres quasi contrahit: So that he is not liable ex Delicto, but ex quasi Contractu 2 do. The Intrometter is liable ex culpa; For a Stranger may be Intrometter, & culpa est immiscere se rei ad se non pertinenti.  
If a Defunct should Resign Lands formerly tailʒied, and infeft his only Daughter in Fee: Will she be liable as Successor titulo Lucrativo? Vide Intrometter, Quaestiones. 1 & 2. in Litera I  
If he should infeft in Fee his Appearand Heir of Tailzie, having a Daughter who succeedeth to him in his other Estate: Will the Heir male be liable as Successor titulo Lucrativo?  
Quaeritur. If an Heir male being to succeed by a Right of Tailzie, getting a Right of a part of the said Lands; will be Successor titulo Lucrativo? Ratio Dubitandi, The Heir male is not proprie haeres, being only a collateral; and there being an Heir of Line.  
If an appeirand Heir get a Right only of a Liferent of Lands, whereunto he was to succeed: will he be Liable as Successor titulo Lucrativo?  
A person being Liable to Creditors, and then having put his Appearand Heir in Fee of his Estate; and thereafter being forefaulted: Quaeritur. If after his decease his Appearand Heir will be liable titulo Lucrativo? Ratio Dubitandi, A Person forefaulted is nullus, and cannot be represented.  
A Tutor or Factor having accepted the office and Administration; and thereafter having put his Son in the Fee of his Estate, before he can be charged with any Malversation; Quaeritur, If his Son will be liable titulo Lucrativo, for any malversation after his Fee? Answer, It is thought he will be liable; seeing the accepting the office and obligement ex quasi Contractu, is before the Fee.  
A Father having given his Daughter an Estate in Land (or otherwise) in Tocher to her Husband, and reserving his owned Liferent, would she be thought to be Successor Titulo Lucrativo, if she be his Appearand Heir? Ratio Dubitandi, It is given to the Husband and not titulo Lucrativo; In respect the Husband has Right by a Contract, and in contemplation of Onera Matrimonii and the jointure he gives his Wife.  
If at least the Tocher in so far as it is immodica, may be questioned and retrenched in favours of Creditors?  
A Merchant in Edinburgh having married a third wife, and by Contract of Marriage being obliged to employ Twenty two thousand marks upon a Right of Lands, or Annualrent, to himself and his Spouse in Liferent and conjunct Fee, and to the Heirs of the Marriage; which Failyieing to his Heirs and assigneys: And thereafter having Disponed certain Lands for implement of the said Contract, to the eldest Son he had then of the said Marriage, which Failyieing to his owned Heirs and Assigneys. Quaeritur, If the eldest Son and his forsaids will be liable to all precedent Debts as Successor titulo lucrativo? Ratio Dubitandi. That he was only a Son of a third Marriage, and his Father had Sons of a former Marriage. Answer. It is thought, he will, notwithstanding, represent his Father; In respect the said Right is for implement of the said Contract, as said is; and if the said Sum had been employed, conform to the Contract, he would have represented his Father: And by the said Right he represents him per praeceptionem: And that he would be liable suo ordine as Heir of the Marriage, the Heir of Line being discussed.  
Quaeritur, In the case foresaid, if the said Son of the third Marriage will be liable to Debts contracted after his Right by his Father? Seeing his Father is obliged, that he should succeed him in the Right of the sa d Sum: And the Creditors ought not to be in worse case, than if the said Sum had been employed, and Successores titulo lucrativo are not liable to posterior Debts, when the Right granted to them is mera Donatio: So that their Father was not obliged that they should succeed: And the Father was a Merchant, and continued his Trade thereafter, and became Bankrupt. vide Heirs. Quest. 3. in Litera H.  
If a Gentleman, by his Son's Contract of Marriage dispone his Estate to him, will he be liable to all the Debts, or only effeirand to the value of the Right?  
An Uncle having Disponed to his Nephew his Lands or others, being for the time his appearand Heir; and having Died without Children, Quaeritur, whether he be liable as Successor Titulo Lucrativo? Ratio Dubitandi, he was only presumptive Heir: And the Uncle might have had Children if he had married again: And upon the reason forsaid, if the Lands had holden ward they would have recognized.  
An Appearand Heir being Infeft in Liferent in Lands to which he might have succeeded, Quaeritur, whether he will be Successor Titulo lucrativo, specially if the Liferent be settled upon him, and the Fee upon his eldest Son?   

Singular Successors.  
QVaeritur, If the Act of Parliament anent Registration of Seasins, as to singular Successors, should only be understood such as have acquired Right from the common Author; and not Comprysers and such as succeed upon account of Forefaulture?   

Sums heretable and movable.  
Lands being Disponed by a Contract; and the Buyer being obliged to pay the Price, Quaeritur, whether the Seller's Heirs or Executors will have Right to the said Price? Ratio Dubitandi, The Price cometh in Place of the Lands, and the Heir will be obliged to denude himself of the Right of the Lands; the Disponer's obligement being only prestable by his Heirs: So that it seems the Heirs should have Right to the Price. On the other part, the quality of heretable or movable depends upon the arbitrium and Destination of the Creditor himself; and it appears that the Disponer, having sold his Lands for a Price, he intended in lieu of an heretable Estate, to have only a movable Estate in Money; not to lie in the Buyers hands, but to be employed as the Disponer should think fit, either for Tradeing or otherwise; So that the said sum should belong to his Executors.  
Quaeritur, If Sums consigned for Redemption of Land, be of that same nature? Ratio Dubitandi, It appears there is a difference upon that consideration, that a Person who has a Redeemable Right does not desire his Money, and the Reversion is in Rem; so that the Sums due thereupon appear to be heretable until they be uplifted, & surrogatum sapit naturam surrogati.   

Sums movable.  
A Sum being due upon a Wadset, with the ordinary clause, that by the premonition, and charge that should follow, the Infeftment should not be loused until payment. Quaeritur, If after Execution used the Sum becometh movable? Ratio Dubitandi, It is yet due upon Infeftment, and it cannot be conceived that the Executors or Donator should have Right to the Infeftment, being only in favours of the Heirs.   

Elder superior.  
WHen Lands are holden Ward of divers Superiors, The eldest Superior and antiquior, is preferable, as to Marriage. Quaeritur, the forsaid quality of antiquior, whether it is to be considered in relation to the Vassal, so that the superior that he did first hold of is to be thought antiquor? Or if it be to be considered in relation to the feudum itself; so that the feudum that was first constitute by a grant from the King to the Vassals authors, should be thought antiquius?  
Quid Juris, If a Person be infeft as Heir to his Mother or her Father to be holden Ward; and thereafter be infeft as Heir to his Father, the Lands also holding Ward; whether of the Superiors will have Right to the Marriage?  
A Person being infeft in Lands holding Ward; and thereafter being infeft upon a Comprysing in Lands holding of the King, Quaeritur, If the Marriage through his decease will fall to the King, or the other Superior during the legal? Ratio Dubitandi, a Right by comprysing is only for security and Redeemable.   

Superior mediate.  
THe immediate Superior being found to have amitted his Superiority during Life, because being charged he did not enter, Quaeritur, If the mediate may infeft upon Resignation, being only Superior in that part and in subsidium, that the Vassal should not have prejudice by his immediate Superiors nonentry; but not ad alios effectus, which may prejudge the immediate Superior; and in special that, by obtruding to him a singular Successor to be his Vassal? That same question may be in the case of Lady's Liferenters, and Conjunctfiars of Superiorities.    

T.  

Tack.  
A Tack being set in April of certain Lands and Houses, whereof some were possessed for the time by the Tacksman by a verbal tack or Tolerance; others set to Tenants: and the Tack bearing the Entry to be after separation from the ground in anno 1652. in which it was set, Quaeritur, A Compryser being publicly infeft  separation, if the Tack will not militate against a singular Successor, the Entry being indebito tempore after the Setter was denuded? Answer. It appears that the Entry, as to the commencement of the Tack, was presently the time of the date;  as to the Houses and some of the Lands the Tacksman was in natural possession: and as to the grass of the Lands set to a tenant, the Entry though not expressed was at Whitesunday following; and the entry mentioned in the Tack seemeth to be meant of the Tacks-mans' Entry to Labour; & Interpretatio facienda ut actus valeat.  
If at least the Tack should be invalid as to the Lands which were set to tenants as being not public by possession? Answer. It is thought, that a Tack being Jus indivisibile, possessio partis maketh it public in Totum: And it cannot be ex parte public and ex parte, non.  
A Tack being set to a Tacks-woman during life, and after to her Heirs, until payment of certain Sums, for Ten shillings yearly, Quaeritur, Will the Tack be void as without Ish? Answer, It appears, that the Tack being set for security of Payment of the Money, the Ish is not altogether uncertain; Certum est enim quod fieri potest c●rtum, per relationem ad aliud; and the Rent being One Thousand Pounds, it may be considered in what time that Rent may satisfy the Sum mentioned in the Tack: and upon the matter, there is a Reversion to the setter and his Successors, and they may determine the Ish of the Tack by payment of the Debt: Lady Braid and her Son assigned the Tack, whereof a Reduction was raised by Gorgymiln, having bought the Lands.  
Neither Servitudes nor Tacks do affect Lands in prejudice of singular Successors, unless they be real by Possession, Quaeritur, If such Rights may be registrate in the Register of Reversions, albeit the Act of Parliament doth not mention the same? And if they be registrate, if they will be real as Reversions?  
Locatio & conductio albeit they are not in Law inter Contractus qui re fiunt, and by our Custom they are not effectual unless they be Re, and clad with possession; before which they are personal as to the Contracters and their Heirs; but after that, they become real Rights, and bind singular Successors, Quaeritur therefore, if a Tack of Lands be set to a Person to enter at Whitsunday thereafter? And thereafter another Tack be set to another Person before that Term, so that neither can have Possession? What way the second Tacksman may perfect his Right, so that he may be preferred? Answer, It is thought, he may make intimation of his Right to the present Tennent, and require him to remove at the Term, and protest for remeed of Law.  
Quaeritur. Why Tacks without Possession do not prejudge singular Successors; and yet Tacks do prejudge beneficed Persons? Answer. Beneficed Persons are not singular Successors; which properly are such as do acquire and purchase: Whereas Prelates or Beneficed Persons are Successores Titulo Vniversali; and are considered as singular Incorporations, whose Deeds do bind their Successors.  
When any Person is infeft in Teinds, Quaeritur, If he may set Tacks longer than during his Right, in prejudice of the Buyers, or other singular Successors?  
A Tack being set to a Person for fifteen Years, without mention of his Heirs or Executors, Quaeritur, Whether it be merely personal? Or at least the Heir (if the Tacksman decease before expireing of the Tack) should have Right during the time foresaid? Answer, It is thought, that Tacks should be stricti Juris; and there being no mention of Heirs, the said limitation of time imports only, that the Tacksman should have right if he should live all the said time, and not after: And in Tacks industria & conditio Personae is to be considered, if the Tennent be a substantious and virtuous Person; whereas Heirs may be Infants, and not succeed in the Conditions foresaid.  
If a Tack be set by a Churchman to a Fever and his Heirs succeeding to him in the right of the Feu; if the Teinds of the feved Lands may be assigned, there being no mention of Assigneys? 2. If it may be Comprysed? 3. If it cannot be assigned, Will the Tack fall by the Assignation? Tack of the Teinds of Paikie.   

Back-Tacks and Prorogations.  
WHat is the Reason that in Wadsets, Back-tacks are valid without a definite Ish, viz. During not Redemption?  
Item, In Prorogations, Tacks of Teinds to begin after the Is of the former, though the Titular be denuded in the interim? Answer, In Wadsets the Back-tack is in corpore Juris and the Wadset is with the burden thereof; the Wadset and Backtack being correspective Rights: So that who succeeds in the Right of the Wadset, can have it not otherwise than cum causa: As to Prorogations, they are granted in rem, and by the authority of the Judge.   

Tack of Teinds.  
A Tack of Teinds being set to a Person and his Heirs and Assigneys, for his Life-time, and four nineteen Years after, Quaeritur, If he be year and day at the Horn, will the same fall under his Liferent Escheat; only as to His Liferent, or entirely?  
If after his decease it would fall under the Liferent or under the single Escheat of his Heir?  
If it be for many nineteen years, exceeding the longest Life of any man; Will it fall notwithstanding under a single Escheat, seeing there is not a formal Liferent constitute?  
If a Tack for many nineteen years should be assigned; will the same fall under the single escheat of the assigney; seeing there is no liferent as to him, and the liferenters may all die in his life-time?  
Will not the Assigney have Right for the lifetimes of the Heirs, though they be not served Heirs?  
The Tack being for three Lifetimes, and certain nineteen Years after; Quid Juris, Where the Tacksman has no Heirs, so that there is place to a Gift of Bastardy or ultimus haeres?  
Tacks of Lands being real by the Act of Parliament in favours of Tenants; Quaeritur, Quid Juris, As to Tacks of Teinds?   

Tailʒies.  
WHen a person, having acquired Lands, provides the same to his Heirs Male, Quaeritur, Whether the Maxim viz. Haereditas descendit & Conquestus ascendit has place in Tailʒies?  
If a Tutor, Intrometting with the Duties of Lands Entailed to the Heirs Male, may not employ the same upon security to the Pupil and his Heirs Male; upon pretence that it should be presumed, that it was in the Parent's intention, as appears by the Entail? Answer. It is affirmed, that it was so decided in the case of the Heirs of Cockburns-path, which we have not seen: But it is thought, that a Tailzie being Institutio Haeredis; as a Tutor could not make a Testament for his Pupil, nor name an Heir and Executor for his Pupil, so he could not make a Tailzie either in Land or Money.  
There being a Tailzie in these terms, that it should not be lawful to break the same; and the Fee having descended to a Woman, by virtue thereof; who did notwithstanding resign the Fee in favours of the Husband and the Heirs of the Marriage, which Failyieing to the other Heirs of the former Tailzie; and thereafter the said Heir of Tailzie having obtained a Decreet of Reduction of the said Right Ex capite Minoritatis, for eviteing the hazard of the Clause irritant in the first Tailzie; albeit the Right granted to her Husband was ratified in Parliament, with the clause that the Ratification should not be Liable to the Act Salvo Jure: Quaeritur, If the Husband be Forefaulted and his Posterity disabled, if the Heirs of Tailzie having Right to succeed after the Wife and her Children, may be prejudged by that Forefaulture? Answer. It is thought, not;  the Husband was not in the Fee, the time of the Forefaulture, the same being taken away by a Reduction.  
If the Woman should thereafter Marry, and have Children the time of her decease but disabled. Quaeritur, If the Children of the Husband, who would otherways succeed, if the Father were not Forefaulted; will Forefault the Right of the said Estate to the King, and will be in the case of a person that is Forefaulted, and has Right of Succession to the Estate as Appearand Heir? Cogitandum.  
Seeing there may be Quaestion, Quaeritur, what course shall be taken to prevent it? Answer, It is thought, that a Gift may be procured from the King, making mention of the Forefaulture and Dishabilitation; and notwithstanding, that His Majesty is not willing that the persons who are to succeed, Failyieing the Wife of the Forefaulted person, and the Heirs of her Body, should be prejudged; having been Faithful and Active in opposing the late Rebellion: Therefore, He doth ratify the said Tailzie in so far as concerns them, and the Right of Succession; Declaring that it shall not be prejudged by the Forefaulture and Inability: And for their farther security, in case after the Decease of the Wife, the Children of the Forefaulted Person be surviving, and that any Right to the said Estate shall belong and accrue to His Majesty by their Inability, then and in that case, now as then, and then as now, he is to dipone to the Heirs of Tailzie succeeding after the Wife, and her Children, the said Estate, and any Right belonging to His Majesty, as being, or which shall then be in his hands by the Forefaulture and Inabilty foresaid.  
Quaeritur, If a Bond granted to a Man and his Wife, and longest liver of them two in Conjunct-Fee, and to one of their Sons expressly named and the Heirs of his Body, which Failyieing to the Heirs to be procreate betwixt the Husband and his Wife; which Failyieing to the Wife her Heirs and Assigneys; be Heretable or Movable;  there is neither Infeftment thereupon nor obligement to Infeft? Answer. It is Heretable in respect of the Tailzie foresaid; there being no Tailzie of Movables or Movable Sums: And the provision in favours of Heirs Male, with the Substitution foresaid, is equivalent as if Executors were expressly excluded.  
When a Person has settled his Estate upon a Friend, by a Disposition to him and certain Heirs of Tailzie therein mentioned; and thereafter for security of the Tailzie has taken a Bond from the person, in whose favours the Tailzie was made, that he should do no deed to disinherit the other Heirs of Tailzie; and to keep the Tailzie inviolable; Quaeritur, If the said person shall, without any Onerous Cause, Dispone the Lands or grant Bonds for great Sums equivalent to the value of the Estate, if the said Deeds may be questioned by the next Heir of Tailzie? Ratio Dubitandi. The doer of the said Deeds was Fire; and the Heir of Tailzie cannot come to the Estate, but as Heir to him, and is liable to his Deeds. Answer. It is thought, in the said case, there is a Fideicommissum in favours of the Heirs of Tailzie: and though the Estate might be Disponed for Onerous Causes, the Disponer being Fire; yet he ought not to have violate the said Fideicommissum by fraudulent and gratuitous Deeds. 2do. Besides the said Fideicommissum, there is a supervenient obligement, whereby the Heir of Tailzie is Creditor; and therefore may question any deed without an Onerous Cause in defraud of the said obligement: and an Heir, in whose favours there is obligements qua Heirs, may Question any Deeds done by the person whom he represents, contrare to the said obligement; As, V G. when Deeds are done on Deathbed, or contrare to a Tailzie bearing Resolutive clauses, though for Onerous Causes; and much more in such a case, where a Bond is granted to the End foresaid, which ought to be effectual; and could operate nothing if the Heir could not question the same. Earl of Calendar.  
A Person having provided his Estate, failyiening Heirs of his own Body, in favours of a Relation, and the Heirs of his Body, etc. and having by the Writ bearing the said Tailzie, and a Procuratory of Resignation, provided that he should be Liable to satisfy all Bonds, Obligements, and Deeds done, or to be done by him at any time during Life; Quaeritur, If these should be understood civiliter, dureing his Liege poustie, or of his natural Life? Answer. That it is thought, that it should be understood during his natural life;  the Entail being a free gift, any provisiones thereincontained in favours of the granter ought to be construed favourably: and the word Life-time is properly to be understood of natural life.  
If it be provided, that the said person should marry a Gentlewoman named in the Writ, Quaeritur, if such a provision be lawful,  it appears to be contrary to the Liberty that ought to be in Marriage? Answer. The Right being sub modo, he ought to fulfil the same: and there is no restraint as to his Liberty;  if he think fit, he may choose to accept the Right with that quality, or not.  
If the said Entail being made in Liege poustie, and resignation thereupon, the Granter may thereafter upon Deathbed, by a paper apart, oblige his said Heir of Tailzie to marry as said is, or to fulfil any other provision? Answer. It is thought, that seeing he is not so stated in the Right of Succession, that the Granter cannot prejudge him, who has still voluntas ambulatoria, and may evacuat the said Right being Master of it; and having it in his own hands and power; as he may cancel it, so he may qualify it as he thinks fit; & qui potest plus potest minus.  
A person having, by an Infeftment holden of the King under the Great Seal, taken the Right of his Lands to himself, which failyiening to such a person as he should name by Writ, and his Heirs; which failyiening to certain other Heirs, did thereafter Dispone his Estate, failyiening Heirs of his own Body; to the person thereinmentioned and the Heirs Male of his Body; which failyiening to certain other Heirs of Tailzie; bearing a Procuratory of Resignation, and reserving the Resigners Liferent, whereupon Infeftment followed; Quaeritur, If thereafter the Disponer should have Children of his own Body, what way should they be Infeft? Cogitandum.  
If it should be thought, that the first Infeftment should stand in favours of the Disponers Heirs, the said last Disposition with what has followed thereupon being conditional, and the condition not having existed; Quaeritur, If the Heir of the Disponers Body should thereafter decease, whether the said Right by Disposition shall revive, at least that the person foresaid in whose favours the Disposition is made, may be served Heir to the Disponers Heir of his Body, by virtue of the said first Infeftment, and the said Nomination and Disposition? Sir Robert Hepburn.  
If the King grant a Charter, with the ordinary Clauses irritant for preserving of Families; and with that in special to be added, that it should not be lawful to any that should succeed to prejudge their Successors Delinquendo, even by committing of Treason; and if they be guilty of such Crimes, that the Estate shall be Forfault as to themselves, but not as to other Successors; whether such a Clause will secure against Forefaulture? Ratio Dubitandi. That it would be an encouragement to Disloyalty. 2do. It is against the common Law, & pactis privatorum non derogatur Juri communi. 3tio. By the late Act of Parliament anent Tailʒies, it is provided, that the King should not be prejudged as to Fines nor Confiscations, nor Superiors of their Casualties: On the other part it is thought, there should be a difference betwixt these who by their virtue and purchase have founded a Family; and these who succeeded in the Right of Estates acquired by Loyal and Virtuous Persons: In the first case, it is just that the person who has purchased and Entailed his Estate with such Clauses, if he commit Treason, should Forefault for himself and all his Successors: In the other case, it is hard that a person descended of an ancient and loyal Family, should Fotefault an Estate not acquired by himself in prejudice of the Family; and that the personal delinquence of one should weigh down the Merits of many Predecessors; A Family being like a Ship, out of which the Ionas that has raised the Storm should be cast, and not the Ship and whole Family perish: And upon the consideration foresaid, it has been provided for the standing of Families, even by Divine Law, that it should not be in the power of one to Ruin the Family, but the Successors Right should revive by the Jubilee: And by the Feudal Law in the beginning, Feuda were not Haereditaria, so as that the Heirs and Successors should be Forefaulted by the deed of their Predecessors: And when Feuda came to be Haereditaria, there were some that were ex pacto & providentia; so that the Succession was settled in such a manner, that it could not be cut off by the deed or Forefaulture of any of the Descendants, but as to their own interest; And there are yet Entails elsewhere, and in England of the nature foresaid, as V G. of the Lord Gray's Estate; which was the occasion, that not only the Family, but himself was preserved; It being thought fit, that his Liferent should be confiscate dureing his Life, than by his Death his Estate should go presently to his Brother. And as to that pretence, that Disloyalty would be thereby encouraged, it is of no moment; seeing qui suae vitae est prodigus will be prodigus as to all other interests: And albeit by the common Law, where there is no provision to the contrary, Estates are Forefaulted as to all intents; yet provisio hominis tollit provisionem legis; and there is no Law nor Statute, with us, disabling the King to give Rights with such provisions, as are consistent with, and suitable to the Divine Law, and even the Civil Law (Fideicommissa being in effect Entails) and the Laws of other Nations, and of his other Kingdoms: and the Brocard, pactis privatorum etc. doth militate most, when the certain form and modus habilis is prescribed by Law for conveyances or Testaments, which ought to be precisely kept and observed without Derogation: In other cases Provisio hominis, as said is, tollit legem: As, by our Law, a Relict has a Terce of Lands, and a third of Movables: and Marriage being dissolved within Year and Day the Tocher ought to return: and in case ward Lands, or the major part be Disponed they are recognised: and if a Feu-duty be not paid in the space of two Years, the Feu may be reduced; and yet as to these and many other cases derogatur Juri communi pactis privatorum. And as to the Act of Parliament concerning Tailʒies, it doth militate only in the case of Tailʒies with the ordinary Clauses irritant, anent the contracting of Debts, or doing other Deeds; so that albeit by the said Clauses irritant, the Debts or Deeds of the Contraveener are void, as to Tailʒied Estates, yet Confiscations and Fines in favours of the King do affect the Estate: and it is not provided, by the said Act of Parliament, that it should not be lawful for the King, upon the considerations foresaid, to grant a Right Entailed with the said Clause, that the Estate should not be forefault in prejudice of the Entail: and it cannot be said, that the concession of a Prince qualifying his own Grant with such Provisions as he think fit, is Pactum privatorum: and seeing, other Superiors may so qualify the Infeftments and Rights granted by them to their Vassals, that the Vassal should not forefault his Lands, for Feudal Crimes; for selling the Lands holden Ward without the Superiors consent; or for being behind in payment of Feu-duties; it is against Law and Reason to deny that power to the King, to qualify the Vassals Right; so that, when Lands otherways would Forfault, they should not Forfault in prejudice of the Family and Successors.  
The Lands of Artloch being by Alexander Keith of Artloch Heretor thereof, Tailʒied to himself, and the Heirs Male of his Body, which failyieing to the Heirs Female of his Body without division; which Failyieing to his Sister, etc. And having secured the Tailzie by Provision, that it should not be in the power of any of the Heirs to alter the samen, with Clauses irritant and resolutive; whereby the controveening of the Terms of the Tailzie are declared to be a ground of amitting the Estate; and devolving thereof upon the next Member of the Tailzie; All which Clauses are insert in the Bond of Tailzie, Charter, and Instrument of Season following thereupon.  
Anna Keith, being the only Heir of the Marriage, and so Heretrix of the Lands; she by Contract of Marriage with John Forbes of Assure is obliged to resign and provide the said's Lands of Artloch to him and her in Conjunct-Fee and Liferent, and to the Heirs-Male to be procreate betwixt them; which failyiening to the Heirs-Male of her Body; which failyiening to the Eldest Heir Female to be procreate betwixt them; which failyiening to the Eldest Heir Female of her Body; which failyiening to him and the Heirs Male of his Body; which failyiening to the Eldest Heir Female of his Body: Which failyiening to him and his Heirs and Assigneys whatsomever.  
1. Quaeritur, Who is Fire by the Conception of the Tailzie, whether the Wife, because she having been formerly Fire, the Tailzie was made upon her Resignation, and so the Heirs of the Marriage must in dubio be Heirs to her? Or whether the Husband, by the Prerogative of the Sex, and by the last termination of the Tailzie, which resolves on his Heirs (ut supra) will be Fire? Or if the foresaid destination, whereby the Wife's Heirs-Male or Female are preferred to the Husbands in all the Branches of the Substitutions, will alter the case?  
2. To whom the Heir of the Marriage could be served, whether to the Husband, or to the Wife?  
3. Hoc supposito, that the Husband be Fire; whether or not the foresaid Contract, whereby she puts the Husband and Heirs of the Marriage in Fee, will be interpret in Law prejudical to the former Tailzie as a wronging thereof; Although the Husband was expressly obliged to assume the Name and Arms of the Family, which completes the design of all such Tailʒies? And whether the Contract being in Minority will be reduceible upon that ground?  
4. Although it might be reduceible, as debording from the first Tailzie by making him and his Heirs absolute Fire; yet if it may not stand in so far as concerns the Husband and the Heirs of his Body; and be only reduceible, in swa far as it altars, and debords from the other Branches of the Tailzie?   

Tailȝie altered.  
A Minor having, contrare to the Clause irritant contained in his Father's Tailzie, altered the Succession, and being Infeft upon the Resignation: If the said last Right should be reduced, (Vide Homologation Quaest. 2da. in litera H.) Quaeritur, What way shall the Contraveener return to the former Right? And whether by the Decreet reductive, the former Right will revive, as if the posterior had never been? Or if the said person upon a Bill to the Lords must have a warrant to the Director of the Chancery for a New Season? Seeing by the Resignation and Season following thereupon, there was the facto a Disscasin, & quod factum est infectum fieri nequit? Countess of Buccleugh.   

Teinds.  
A Person having Right both to Lands and Teinds, disponeth the Lands without mention or exception of Teinds; Quaeritur If the Teinds be disponed? Ratio Dubitandi, That the Right of Teinds is an inferior interest; and upon the matter a Servitude and burden upon the Lands; and is extinguished confusione & consolidatione, as soon as it is in the Person of the Heretor; as in the case of Servitudes, Right of Annualrents, etc. Ennerpeffer and Bonshuw.  
A Person having acquired by Infeftment, a Right to the Teinds of his own Lands, Quaeritur, If the Teinds be confounded with the Right of the Stock; that the Lands being thereafter disponed or comprysed, without mention of Teinds; The Buyer or compryser will have Right to the same; as in the case of a Right of Annualrent?  
Quaeritur, If a Person having a Right to Lands cum decimis inclusis, whether in that case the Buyer or compryser, without mention of the Teinds, will have Right to the same?  
Seeing the Brieve bears only a warrant to Inquire, de Quibus terris & annuis Reditibus the Defunct died vestitus, without mention of Teinds, Quaeritur, What way a Person being only Infeft in Teinds, his Heir may be served special Heir to him in the same?  
When Teinds are in Nonentry, Quaeritur, If the Superior will have Right to the hail profits before Declarator? Seeing Teinds are not retoured, and there is neither an old nor new Extent of the same.   

Teind of Fish.  
BOats for taking of fish, lying upon the shore in one parish; and going thence and returning thither for taking and unloading; but belonging to Persons dwelling in another neighbouring Parish, Quaeritur. If the Teind of the fish should belong to the Minister of the Parish where they are taken, or where the Owners and fishers dwell?   

Proving the Tenor.  
IF a Comprysing may be made up by proving the Tenor? Answer, It is thought, not? In respect, By the act of Parliament, the Tenor of Letters of Horning and Executions cannot be proven; and there is Eadem Ratio as to comprisings: And a comprysing is not of the nature of Scripta & Instrumenta quae possunt refici, being both of the nature of Executions and of a Decreet of the Messenger as Sheriff in that part: And neither Executions of Messengers, nor Decreets can be made up by proving the Tenor: And it is not enough that Witnesses may remember, and be positive that there was a Comprysing; seeing they cannot remember, at least ought not to be trusted, whether the comprysing be formal; which being Juris, they can neither be Judges nor Witnesses thereto.  
Quaeritur, If a Decreet for proving the Tenor can satisfy the Production in an Improbation? Answer, It is thought, it should not; no more than a Transumpt: seeing otherways the indirect manner may be cut off, which ariseth upon the comparing of hand Writ, and other Circumstances from the Principal; which is not competent, when Extracts only of such Writs are produced: And the Style, that such Decreets should make also great faith, as if the Writs were produced, is to be understood Civiliter, viz. Except in causa falsi.  
If Sentences or Acts of Court being lost, the Tenor may be proven?  
If Executions of Summons of Interruption being lost, may be made up by proving the Tenor, after the decease of the Messenger? It is thought that they cannot;  by the act of Parliament, the Tenor of Letters of Horning and Executions cannot be proven: And there is Eadem Ratio as to other executions made by Messengers; which appears to be that, viz That they are Servi publici; and by the Law only trusted and authorized as to such acts, and their relation of the same.  
If the Tenor of Bonds may be proven? Answer, There is a difference betwixt Bonds and other Writs; in respect Bonds are granted, to the effect they may be satisfied, and retired upon satisfaction; and Debtors think themselves secure, when they retire and destroy their Bonds: And therefore when a Bond cannot be produced; Instrumentum penes Debitorem, or which cannot be shown, Praesumitur Liberatum; unless there be a clear Evidence that they could not be satisfied; as that the term of Payment was not come, or such like; and Casus amissionis be positively libelled and proven, as incendii, rapinae, or the like,  
If a Comprysing may be made up by proving the Tenor? Answer, It is thought not, for the Reason's foresaid, Viz. That it is both an Execution and Sentence; and the Tenor is so long when it is of so many Baronies, and it contains so many Essential Formalities, and Acts of Execution; and the Witnesses to many several Executions, that no person can declare that the Tenor libelled is exactly the true Tenor: and comprisings are of that nature, that they may be satisfied; and are deduced to the end they may be satisfied. Lauderdale.   

Decreets for proving the Tenor.  
THE Tenor of a Writ being made up, Quaeritur If it will satisfy the Production in an Improbation, The Granter or his Representatives being called to the making up of the Tenor and Compearing? Ratio Dubitandi, That as to a Third Party who has interest to question the Writ being a Creditor, and having Comprised before the Decreet for proving, and there being a prior comprysing upon the said bond; there is Eadem Ratio as in Extracts;  the means of Improbation in the indirect way is taken away. vide Transumpts, Quaest. 1. hujus Literae.   

Terce.  
A Person having disponed Lands bona fide, but being prevented by death before the Buyer was Infeft, Quaeritur, Whether the Relict will have right to a Terce? Ratio Dubitandi. The Relict has a Terce of all Lands wherein her Husband died infeft, and is not liable to personal Creditors: On the other Part, it seemeth against Reason, That the Husband having bona fide disponed, and the Heir being liable for the Implement, the Relict should be in better case than the Heir, who has no part: and that the Relict should have only Right to a Terce of Lands undisponed: and that there is a difference betwixt a Disposition, and other Personal Debts; seeing a Disposition is Jus ad Rem, which cannot be said of other Obligements: And these Words, That she should have Terce of all wherein the Husband died infeft, aught to be understood Civiliter, Viz. undisponed.  
Quaeritur (If Lands be redeemable) Will the Relict Tercer have any part of the Money whereupon the Lands are redeemed, specially when the Husband died infeft upon a Compriseing? Ratio Dubitandi, The Law gives unto Relics only a Terce of Lands, and not of Sums of Money: and there is a difference betwixt a Tercer, and a Liferenter who is provided to a Liferent of Lands under Wadset  
A Person being obliged for a most onerous cause to dispone his Lands and deceasing before Infeftment or Resignation. Quaeritur, If his Relict will have a Terce, notwithstanding of the Disposition? Ratio Dubitandi, That it is hard, the Relict should be in better case than the Fire and Heir from whom the Lands may be evicted by a pursuit for implement: And though the Husband died Infeft his Right was resolubile, and such as might have been evicted from him. 2do. A Reversion is but pactum de retrovendendo, and in this case there is a full Vendition; and yet an order may be used upon a Reversion, which will either prevent the Terce or extinguish it.  
Quaeritur, If a Reversion, though not Registrate, will militate against the Relict, to prevent her Terce or to Redeem? Ratio Dubitandi, She is not to be considered as a singular Successor, but as having a Right by virtue of, and as depending upon her Husbands Right, yet standing in his Person; whereas he is denuded in favours of a singular Successor.  
It is Indubii Juris, That the Husband's Debts, that are only personal, do not prejudge a Relict of her Terce: But, Quaeritur, whether a Comprysing before her Husband's decease will militate against her? And if as to this point, there be a Difference betwixt a comprysing whereupon the Superior is charged, and whereupon there is no charge?  
Quaeritur If a Disposition, whereupon there is Resignation, will prejudge a Terce?  
Lands being Wadset for a certain Sum, Quaeritur, If the Relict of the Creditor, will have a Terce both of the Lands; and in case of Redemption of the Sum of money?  
If a Wadset be to a Husband only; and after his Decease to his Wife: And an order be used and declared; Quaeritur, If she will get a Terce of the money? And in that case, whether the Executors will not only have Right to the two parts but to the third part of the Sums consigned, with the burden of the Relics Liferent? Cogitandum.  
A Lady by her Contract of Marriage being provided to a Liferent; and infeft base in satisfaction of her Terce, and what else she may pretend, Quaeritur, If the Superior questioning her Right as base, she may have recourse to a Terce, as renounced in behalf of the Husband and not of the Superior; and the Renunciation being causa data intuitu of her Liferent, he cannot debar her from the same; and take any advantage by the said Renunciation. The Lady Ballencreiff.  
Quid Juris as to a Tercer being Liferenter of a third part? Answer. The difference betwixt the Liferent and Terce is, That the Liferenters Right is anterior and certain, but the Terce is posterior and uncertain: So that the Fire may sell the Lands; in which case there would be no Terce. vide Liferenter. qu: ultima.   

Territorium.  
TErritorium est universitas agrorum Jurisdictione munita, Jus Fluviat. p 42. num: 513.   

Testament.  
IF a Testament may be Holograph?  
If a Movable debt be due to an English Man who is deceased, must it be confirmed in Scotland; & è Contra?  
If a Nuncupative Testament in England, will have Right to a Debt due in Scotland? Ratio Dubitandi, it is valid in England; & mobilia non habent situm, & sequuntur personam: on the other part, corpora mobilia & nomina though they have not situm, as Lands; yet they have it so far, as being res Scoticae, they cannot be transmitted, but according to the Law of Scotland; Law being rerum Domina.  
Quid Juris, if it be offered to be proven by the oath of the nearest of kin, that the Defunct did, before him, and other witnesses above exception, Name the pursuer his Executor and universal Legatar; will a nuncupative Testament so proven be sustained? Answer, It is thought, it will not; Seeing nuncupative Testaments are not in our Law admitted: And it is de forma, that they should be in Scriptis.  
Quaeritur, If a Testament may be sustained by way of Instrument? Answer. an Instrument under a Notars hand, being but the assertion of a Notar, is not considered as Scriptum, which requires the Subscription of the party himself; or in subsidium by Notars before Witnesses de ejus mandato.  
Quaeritur, If one Notar subscribing for the Testator, be sufficient in Testaments? Answer. Affirmative; in respect of the great favour of last wills; and oftentimes there is not copia Notariorum.  
Ministers by Act of Parliament cannot be Notars, but in the case of Testaments; Quaeritur, If eo ipso that they are Ministers they may be Notars in Testaments? Or if they must be admitted Notars? Answer. Cogitandum.  
Quae Ratio, That a Testament made in France or Holland according to the custom there, which is different from ours; should be sustained in Scotland, as to any Scots interest falling under the same?  
If a Minor having Curators may dispose of his Estate by Testament, without the Curators' consent?  
A Minor of thirteen Years, or there about; having made a Testament, and named the person, with whom he was boarded and bred in Family, his Executor and universal Legatar; without the knowledge or consent of any of his Friends; Quaeritur, whether the said Testament may be questioned upon Circumvention; without qualifying any other circumstance, but that it is Dolus in re ipsa to elicit from a person of that Age a Right to all his Movable Estate in defraud of his friends? Answer. It is Casus arbitrarius; and much will depend upon circumstances, if the Defunct had no Relation to the Executor; and if the Executor did suggest that the Defunct should make a Testament; and employed the Writer, and did inform the Writer, what the Tenor should be, and such like.  
A Testament being made by a Sickly Child being Pubes but in confinio and a little time more; in favours of his Nurse, in whose house he had stayed for divers Years, and lay sick for the time, whereby she was named Executrix and universal Legatrix; may be reduced as inofficiosum & dolosum; that being dolus reipsa and machinatio fraudulenta to prejudge five of his Brethren and Sisters, who were in a poor Condition; in respect the Child had but lately passed Tutory and chosen Curators; and the said Testament was elicited from him without the knowledge of his Curators and other Friends, and the Writer and Witnesses were employed by the said Nurse; And the friends apprehending that she might take advantage, dealt with her, that the Child might be suffered to stay in another place; and she was not only satisfied for the time he had been with her, but they offered a Sum of Money to her, that he might be at freedom: And it is so incident to Minors to be influenced, that when they are to choose Curators, the Council upon application will sequestrate them.   

Testament Execute.  
IT appears that the Testament is Executed as to Debtors, by sentence against them; seeing after sentence an Executor may Assign: And therefore if the Executor die the Debt may be confirmed, and pursued for, by his Executors.   

Testament and the Wife's part.  
A Wife's Testament being confirmed; and her Husband as best knowing having given up the Inventar, both of Goods and Debts due to and by him; and amongst the Goods, having given up the Wife's Jewels, and among the Debts due by him having given up Debts either simply Heretable, being upon an Infeftment, or Heretable quoad relictam, upon Bonds whereof the Term of payment is past; and so the debita being found to exceed bona, Quaeritur, What in Law the Commissars should do in such a case? Answer. The Wife's Jewels and Abuilyiments ought to be considered as praecipua, and not in Communion; and which ought not to be affected with the Debt: and it ought to be considered if any of the Debts be Movable quo ad Relictam, and these only aught to affect the Wife's part; so that what is free of the Inventar of the Husband's Goods will divide, if there were no Bairns in familia; and albeit there be Bairns but foris familiat, the half of the Husband's free Movable Estate would be the Wife's part; and aught to be confirmed as belonging to her, with her whole Jewels and Abuilyiments. Lauderdale.  
When the Husband survives the Wife, and her Testament is confirmed; whether Movable Heirship will be deduced, as when the Husband's Testament is confirmed? Ratio Dubitandi, There can be no Heirship, the Husband living: and on the other part, the Wife's Executry ought not to be in better case nor herself, if she had survived: and there can be no Bairns part, until the Husband's decease actu, albeit habitu: and there is eadem ratio as to Heirship.  
Nihil magis deberi hominibus quam ut ultimae voluntatis sit liber stilus; & licitum, quod non redit, arbitrium; Leg. 1. Cod. de sacros Eccles.  
In Testamento Jure civili olim septem Testes requirebantur: Jure autem Canonico duo sufficiunt.  
Si unus ex testibus fuit servus; ex benignitate, & ut voluntates ultimae exitum habeant, Testamentum haud corruit, si eo tempore habitus fuit liber.  
De rebus suis testari erat tanti momenti, atque ut fraudibus obviam iretur, ideo Jure veteri non nisi publice testamentum fieri permissum; & vel callatis Comitiis, quod semel in anno fiebat; vel si Testator erat mil●s in procinctu, cum parati essent cum hoste confligere. Perez. lib. 2. tit. 10.  
Legatarii aut fideicommissarii in re singulari & certa, possunt esse testes in Testamento; quia negotium censetur principaliter agi inter Testatorem & haeredem. Ibid.  
Testamentum nuncupativum maxime in usu esse; & si in scripturam a notario redigatur, esse tamen nuncupativum; quia scriptura ad memoriam non ad solennitatem adhibetur. Ibidem.  
Filius-familias Testamentum condere non potest, quia in aliena potestate est: nec Testamentum ab eo conditum valet, si postea Pater-familias fuerit; quia principium inspicitur; & quod initio vitiosum est tracto temporis non convalescit. Idem. Institut. lib. 2. tit. 12.  
Testamento novissimo rumpitur anterius, licet ex eo haeres non adeat, quia aditio non pertinet ad perfectionem Testamenti, sed ad ejus exitum tantum & effectum. Idem. lib. 2. tit. 17.  
Si posteriore Testamento haeres institutus sit tantum ex parte, prius tamen rumpitur; & universitas haereditatis ad eum pertinet Jure accrescendi, ne quis decedat partim testatus partim intestatus; perinde enim est, ac si partis mentio haud facta sit.  
Irritum fit Testamentum, si capitis dimunitionem Testator passus sit, non solum maximam & mediam, sed etiam minimam, Arrogatus fort: si vero tempore mortis sui Juris fuerit, convalescit Testamentum beneficio Praetoris; data secundum tabulas bonorum possessione haeredi scripto: sufficit enim fuisse sui Juris & Civem Romanum, tempore facti Testamenti & mortis. Ibid.  
Si quis coeperit Testamentum facere nondum autem perfecerit morte praeventus, non infirmatur prius Testamentum; quia unumquodque eodem modo dissolvitur quo colligatum est. Ibid.  
Quid si quis ista verba scripserit (addita etiam subscriptione) viz. se nolle Testamentum quod fecerit valere; Quaeritur, an irritum fiat?  
Testamentum Rescissum per Quaerelam inofficiosi olim penitus corruebat; Jure vero novissimo tantum quoad institutionem; quia tantum peccatum est in liberis, non autem in legatis aut fideicommissis, quibus nulla injuria illata est. Perez. lib. 2. tit. 18.  
Qui agnovit Testamentum quocunque modo, v. g. acceptando legatum suo nomine; caret Quaerela: secus si Tutorio nomine aut alieno.   

Testes.  
THE Question being of the Jurisdiction of a Town; If the Burgesses may be Witnesses? Hattoun contra Dundie.  
Post didicita Testimonia alii Testes regulariter non recipiuntur; & si recipiantur, purgatur suspicio subornationis Juramento ejus qui vult alios producere; & ne claudicarent judicia, Idem conceditur adversario. Fritsch. Exercit: 2da. Juris public. n. 86.   

Third and Teind.  
WHen Lands are set for Third and Teind, so that the Master is not to be paid by the Hand of the Tennent, or by the product of the Corns when they are Reaped and Threshen; but has an Interest in the Corns and Bodies of the same, as the Tennent himself: Whether will his Executors have Right to the Third and Teind entirely, the Defunct dying before separation; eodem modo, as if the Tennent who is Partiarius as to two parts, should die before separation? Ratio Dubitandi. That there is no Merces or duty payable by the Tennent: he sows the ground for his own use, and for the use of the Master.  
If the Wife should decease after separation, whether in that case her Executor will have Right entirely to the Third and Teind; seeing they are fructus percepti & in Bonis Mariti?  
Vide. Liferenter, Quaest. prima, in litera L. which Question may be proposed as to Third and Teind.   

Titles of Honour.  
IF there be Feudum Comitatus aut Reguli, and the same descend to Heirs Portioners; Quid Juris as to the Title?  
When an Estate in Lands and Baronies, is erected in Comitatum, with the Title, whereupon Infeftment follows; Quaeritur, If the Estate be Disponed or evicted by expired comprisings, Quid Juris as to the Title; seeing it is not given by Patent, but by Infeftment as haereditamentum and accessary to the Lands?  
A Patent of Honour being granted to a Person and his Heirs, Quaeritur, if any of his Heirs may surrender the said Honour in the King's Hands for a new Right to himself, and other Heirs than is in the former Patent, albeit he was not served Heir himself? Ratio Dubitandi. He may sit in Parliament though he be not Heir: On the other part, though he be tolerate to sit in Parliament being Heir of Blood, and no person being concerned to object; yet he cannot dispose of such an Interest, unless he be served; seeing Titles and Patents of Honour, are not ex pacto & providentia & Gentilia; but are Jura haereditaria, belonging to these that first get them and their Heirs; and may be Forefaulted.  
A Title of Honour and Jus Civitatis being granted to the Receivers and their Heirs, Quaeritur, If their Heirs owning and making use of the same, and not medleing or intending to meddle with bona Defuncti, will be Liable as behaveing? Ratio Dubitandi. That such Interests and Capacities, are not in bonis nor commercio, and are res inaestimabiles; and where persons are allowed beneficium Inventarii they cannot come under Inventar and be valued; and therefore there needs no other Aditio, but that they should own the same; and Creditors are not prejudged, seeing they are not the subject of Execution and Diligence: and yet they may be Forefault; these who have them for the time, being quasi Heirs of Provision.  
When Lands are Erected in Comitatum, with the Dignity and Vote in Parliament, Quaeritur, If the whole Lands be Evicted or Disponed, what becometh of the Dignity annexed to the same? Ratio Dubitandi. That Baronia is nomen dignitatis, which is ever annexed to Lands; and that Comitatus, albeit a higher Dignity is of the same nature: and therefore as a Barony being sold, the Disponer does not retain the privileges of a Baron; so it ought to be in the case of Comitatus; the Title being annexed to the Lands and given in consideration of the same, and of the Estate sufficient to sustain the Title: and that there is a difference betwixt a Title of Honour given by way of Patent, and that which is annexed to Lands. Cogitandum.   

Titular.  
IF the Titular be in possession of Teinds, and die before Michaelmass; Quid Juris?   

Tocher.  
IF either a Father or a Stranger be obliged to pay a Tocher, and Marriage do not follow, or be dissolved within Year and Day, Quaeritur To whom will the Tocher pertain? Ratio Dubitandi. All such Obligements are Conditional, and causa data: On the other part, it may be pretended, that there is Fictio brevis manus, and the same case as if the Tocher were given to the Woman, to the effect that she may give it to the person whom she is to Marry: so that though Causa ceaseth as to him, it doth not cease as to the Woman, which ordinarily is Affection and Relation to her, and that she may be Dotata.  
A Father having granted a Bond to his Daughter; and thereafter having by a Contract of Marriage with her Husband, given him a Tocher, without mention that it is in Satisfaction of that, or any other Provision; If notwithstanding it will be thought to be in Satisfaction? Ratio Dubitandi, That either the Father cogitavit, and remembered that he granted such a Bond, or did not remember; and if he did not remember, that which was not thought upon cannot be said to be intended to have been satisfied and taken away: and if he did remember, and yet did not provide, that the Tocher should be in satisfaction, it cannot be thought, that he intended that it should be so. Lady Yester.   

Quaestiones de Tractatu Suedico, & Bonis prohibitis, Vulgo Counterband.  
UBi exarsit bellum inter Reges Principes aut populos qui superiorem haud agnoscunt, quae occasione belli (ut plerumque fit) exoriuntur controversiae & quaestiones de navibus, rebus, aut hominibus in bello captis; Jure patrio, statutis aut moribus ejus gentis, cui actor aut capiens subditus est, haud judicandae aut dirimendae sunt; Reus enim, qui est extraneus, eas leges nec noscere praesumitur nec agnoscere tenetur; cum legibus & moribus (qui eodem Jure censentur) nulla sit nisi in subditos authoritas.  
2. Juris quidem gentium, in disceptationibus frequens est mentio; verum in libris nihil aut parum certi de eo proditum est; praeter generalia & remota quaedam principia; cum nullum sit Systema aut liber, nec esse possit, in quem omnes gentes consenserint; ut pro Jure gentium authentico, habendus sit.  
3. Inter omnes convenit, ubi duo Principes aut Populi bello committuntur; aliis Regibus, aut populis, qui isti bello haud implicantur & subditis suis, haud interdici aut minui libertatem commercii, cum istis Regibus aut populis inter quos bellum est; eo tamen temperamento & moderamine, ut neutri ex Adversariis, vel prosit, vel obsit & noceat, in ordine ad bellum; quod plerumque fit vel opem ferendo, vel advehendo bona prohibita & vetita, vulgo Counterband dicta.  
4. Vocabulum istud Counterband innuit praeviam prohibitionem: Bona igitur Contraband sunt, quae contra Bannum seu Edictum advehuntur; & prohibita sunt vel Jure gentium, communi & notorio, vel speciali Banno; seu declaratione ejus principis qui bellum gerit,  
5. Jure gentium & belli, extra aleam est, ea bona esse Contraband, quae per se & immediate ad bellum spectant, & eo destinata sunt, ut in bello vel offendant vel defendant; nec ullius aut exigui sunt in pace usus; ut Arma, cujuscunque demum generis sint.  
6 Quae autem usus sunt ancipitis, tum in bello tum extra bellum, ut pecunia, commeatus & ejusmodi; Ita demum Contraband & vetita esse censentur, si hostis ad incitas & angustias redactus, & conditio ejus advehenti comperta sit, saltem eam scire potuerit; ut si oppidum sit obsessum; eo enim casu hostis est, qui hosti necessaria subministrat.  
7 Illa igitur bona, quae communis (ut ita dicam) aut promiscui usus sunt, Jure gentium non sunt bona Contraband simpliciter, sed in casu praedicto tantum; sed nonnunquam, commeatus & bona praedicta, Contraband & vetita fiunt, etiam extra praedictum casum, & ab initio belli; si gerentes bellum, publica significatione ad alios populos edita (quod in bello solenne est) denunciaverint, se ejusmodi bona ad hostes advecta, pro vetitis & Contraband bonis, habituros.  
8 Verum eo casu distinguendum est, an cum populo aut principe, cujus subditi ejusmodi bona advehunt, Tractatus aut conventio intercesserit, de commercio etiam tempore belli: An vero nihil de commercio convenerit.  
9 Priori casu, cum tractatus ejusmodi sint contractus inter principes celebrati, religiose observandi sunt; & secundum eos judicandum, etiamsi princeps qui bellum gerit, denunciavirit commeatus & ejusmodi bona pro Contraband bonis habenda: Nec enim inconsulto aut Invito Rege aut principe, cum quo tractatus intercessit, ab eo recedere potest.  
10. Consequens est, licet ex stilo diplomatum seu Commissionum, quibus Magistri & Navarchi navium privatarum (vulgo Capers) muniti sunt; Commeatus & bona ejusmodi (moribus nostris) Contraband sint; Si tamen in nave Suedica depraehendantur ejusmodi bona libera, nec vetita aut Contraband judicanda: expresso enim articulo Tractatus inter Regem nostrum & Regem Sueciae, commeatus & ejusmodi bona ut libera, impune ad hostes advehuntur.  
11. Quod attinet ad subditos Principis aut Populi, cum quo Tractatus aut Foedus de commercio non intervenit; Si bellum gerens, edicto solenni (ut moris est) significaverit se ea bona pro vetitis habiturum; & non obstante dicto Banno & edicto, subditi principis cum quo tractatus haud intercessit, ea bona advehant; pro vetitis habenda sunt & Judicanda: Nec conqueri possunt, cum sint moniti & Inhibiti.  
12. Si vero in Edicto, seu declaratione (ut loquimur) nulla mentio fiat de commeatu, aut ejusmodi bonis; libera censenda sunt; etiam ijs cum quibus tractatus aut foedus haud intercessit: Licet ex stilo nostro (ut dictum est) sint prohibita. Nec enim stilus nec mores nostri, exteris, quibus penitus ignoti sunt, obtrudi possunt: & cum nulla praecesserit denunciatio aut edictum publicum, ea bona prohibens; quod non prohibitum est permissum censetur: Et ex Jure belli & gentium, ad quod in ejusmodi casibus recurrendum est, libera esse Judicandum est.  
13. Ex tractatu Suedico, variae oriuntur quaestiones quas perstringere haud gravabimur. &  
14. Quaeritur, Si in nave Suedica, depraehendantur bona vetita aut bona hostium, an in commissum cadant & confiscentur, tum bona ista prohibita; tum bona, si quae sint in nave, libera; & navis ipsa?  
15. Nullus est, quantum memini, in isto tractatu articulus, ex quo ad quaestionem istam responsio elici possit; Videtur tamen bona prohibita tantum confiscanda, salvis nave & bonis liberis; ea ratione, Quia ultimo tractatu inter Regem nostrum & Ordines provinciarum foederatarum cautum est; istiusmodi casu eveniente bona Contraband confiscanda; Naves autem Batavorum & alia bona libera dimittenda; Et alio articulo ejus tractatus cautum est, Regem Sueciae & suos subditos, in eo Tractatu includi; In eo enim conciliando & promovendo, impigre operam navaverat.  
16. Nec obstat, quod tractatu isto nunc per bellum dissoluto, Articuli isti quoad omnes inanes videantur, & sublato principali corruit accessorium; Cum enim tractatus isti sint contractus inter Regem nostrum & Regem Sueciae & Batavos; qui (quicquid fecerint Batavi) quoad nos & Suecos illibati manent; nec subditis Regis Suecia, Batavorum culpa aut perfidia fraudi esse debet.  
17. Nec obstat, quod praeter tractatum istum pacis inter Regem nostrum & Ordines praedictos, eodem tempore articuli quidam commercii seorsum editi sunt; & inter eos, articulus de bonis vetitis & eorum confiscatione; & licet convenerit inter partes, Suecos tractatu pacis compraehendi, de ijs tamen in articulo commercii nulla facta est mentio, Respondetur enim articulos istos commercii eodem tempore additos, partem tractatus istius censendos esse.  
18. Quaeritur, Cum tractatu Suedico cautum sit Naves Suedicas literis Salvi-conductus muniendas, forma solenni in dicto tractatu praescripta; An eo ipso quod literas salvi-conductus non exhibeant, capi & confiscari possint?  
19 Quaestio ista nupero bello excitata & saepe agitata, nec tamen est decisa; nec desunt pro utraque parte argumenta: Cum enim isto tractatu libertas commercii ultro citroque sit permissa, tempore belli, sed sub modo, viz. ut fraudibus obviam eatur; si modus non observetur, libertas ista tollitur: ac cum ijs agendum, ac si libertas commercii cum hostibus penitus esset interdicta: Accedit, quod in tractatibus ejusmodi, omnes articuli cum effectu intelligendi sint & ut aliquid operentur; nec ullus effectus erit articuli istius de salvis-conductibus, & de formula eorum tanto studio & industria concinnata, si naves ijs destitutae ad hostes libere & impune commeare possint.  
20. Ex altera parte arguitur, isto tractatu haud caveri naves vel bona, periculo confiscationis subjacere, si literae salvi-conductus vel desint, vel a formula ista recedant; pacta enim Commissoria esse stricti Juris, nec praesumi aut implicari nisi exprimantur; Nec articulum Inanem aut sine effectu futurum, eum enim effectum habere, viz. ubi navis munita est literis salvi-conductus dimittendam esse, nec ulterius inquirendum: Si vero literis istis munita non sit, in eam inquiri posse, an Bona vetita vel hostium in ea sint; quod non sine gravi molestia & incommodo plerumque fit: Et si vel hostes, vel hostium bona, vel bona vetita in ea depraehendantur, tum demum abduci & addici posse.  
21. De quaestione ista, haud semel in foro ventilata, donec publicum per sententiam innotescat judicium; meum sustineo.  
22. Si aliae adsint praesumptiones & adminicula, Veluti, si contractus nauticus (vulgo Charter-party) desideretur; si aliqui ex ministris nauticis, Proreta (vulgo Boatswain) & alii Batavi sint; si gentem suam, ubi primum navis obviam facta est, dissimularunt; & se Bremenses esse mentiti, sed postea religione Juramenti coacti, sese Batavos esse confessi sunt; Quod in facti specie evenisse compertum habeo; eo casu, si navis, literis salvi-conductus non sit munita, haud leve argumentum est navem & bona haud esse libera: Et adminicula ista, & similia cum eo concurrentia, in praesumptionem gravissimam & aggregatam, & uti ita dicam praegnantem assurgere videntur, nisi Rei luculentis probationibus & documentis ostenderint navem & bona libera esse, Nec ad hostes pertinere.  
23. Quoniam mentionem de Batavis, & hostium subditis fecimus, quaestio ista suboritur; Cum declaratione belli a Serenissimo nostro Rege edita, novissimo bello inter eum & Ordines praedictos, denunciatum sit; si in aliqua nave subditi hostium depraehendantur, tam bona quam navem confiscanda; nec tractatu Suedico ita cautum sit; In eo enim de Navarcho tantum cavetur, & permittitur cujuscunque sit gentis, etiam hostilis, modo sit Incola & civis regni Sueciae: Si igitur, praeter navarchum, nautae duo vel tres sint Batavi; quid eo casu censendum, An navis & bona addicenda sunt?  
24. Ex praedictis liquet, si vel bona vel subditi hostium in nave libera deprehendantur; bona vetita & hostilia, & subditos hostium detineri posse; navem autem & bona libera dimittenda.  
25. Verum difficilior est quaestio, viz. Cum tractatu Suedico tum subditi tum Inhabitantes & Incolae Regni Sueciae includantur, & fruantur libertate Commercii etiam cum hostibus Regis nostri; Si Batavus Inhabitans aut incola sit Regni Sueciae, & vel ipse vel ipsius bona in nave Suedica deprehendantur, an Jure detineri possit, & bonis suis excidat?  
26. Cum Batavus, eo quod Incola est Regni Sueciae pro tempore Jura Originis haud amittat, nec Batavus esse desinat. Qui Origine hostium est subditus pro hoste videtur habendus; Et si extra Regnum & ditionem ubi Incola est, in alto mari vel alibi deprehendatur, ut hostium subditus tractandus; praesertim si ipse vel sua bona ad hostes & cives suos, & terram ubi subditus est, advehantur.  
27. Haec sententia istis rationibus videtur subnixa; una a tractatu Suedico, quo cavetur adeo sollicite de Navarcho licet sit hostium subditus, in favorem Suecorum & eorum Commercii, ut scilicet Navarchum adsciscere & praeficere possint etiam hostium subditum, quia magis idoneus & suis civibus forte peritior est: Quod igitur, in uno articulo, nec sine cautela, ut Navarchus sit civis & Incola, permittitur, in alio casu prohiberi videtur, a contrario sensu: & quorsum tanta de Navarcho sollicitudo, si hostium subditus eo quod Incola & civis sit Regni Suetiae pro tempore, libertate commercii cum civibus suis, licet Regi nostro hostibus, frui possit.  
28. Alia Argumenta sunt a gravissimo Incommodo: Quid enim si perduellis & subditus Regis nostri, Majestatis Reus & damnatus, in Suecia larem figat, & incola sit? An libertate commercii frui debeat, nec Regi aut subditis suis in mari deprehendere & ad supplicium abducere licebit?  
29. Quid si Batavus in Regno Sueciae civium suorum Institor sit? An tam sibi quam constituentibus Regis nostri hostibus, ejus nomen & privilegium praetexentibus, quod incola sit Regni Sueciae, libere & impune, etiam cum hostibus negotiari licebit? An eo praetextu Batavis ad Regis nostri ditionem & Regna aditus & occasio commorandi & explorandi, summo Regis & Regni discrimine, permittetur?  
30, Verum in quaestionibus de tractatibus & contractibus inter Reges & populos, amicitia & foedere junctos, quarum occasione periculum est ne bello committantur; tutius est Regem ipsum consulere, & inquirere quid ejusmodi casu in Regno Angliae obtineat; ubi quaestiones istae frequentiores sunt; ne eodem bello ejusdem Regis tribunalia inter se dissideant.  
31. Quia in quaestionibus maritimis, de navibus & bonis bello captis, Magister, nautae & vectores plerumque examinantur etiam Jurati: Quaeritur, An eorum dictis standum sit? Et si quae sint contra reos praesumptiones, an eorum Juramento & Testimonio diluantur? Et videtur Respondendum, cum Juramentum sit finis omnis controversiae, si vel ut partes vel ut testes considerentur, secundum eorum testimonia Judicandum, nisi vacillantia & suspecta sint, aut vitio aliquo laborent.  
32. Non pigebit attexere, Tractatibus praedictis non sine ratione cautum; cum naves privatae bellicae, non tam belligerandi quam cauponandi animo (ut Ennius dixit) instructae sint, nec tam ut hostem carpant quam sibi consulant, & sui compendii causa; ideo cautionem praestandam certam summam continentem in articulis expressam, ne foederati aut eorum subditi quid detrimenti capiant; eam cautionem exigi debere, & quidem idoneam & summam istam continentem; nec sufficere cautionem indefinitam nulla summa expressa.  
33. Tractatu inter Regem nostrum & Ordines praedictos, quo Regem Sueciae & ejus subditos includi dictum est, Cavetur lites & causas istas expedite terminandas; & si pro Reis sententia absolutoria lata sit, ab ea haud provocandum: Si vero secundum actorem Judicatum sit, Reis Provocationis remedium indulgendum, haud ad Judicem Ordinarium, verum ad Concilium Regis, aut ab eo delegatos: & Appellationis causam inter semestre tempus peragendam & finiendam.  
34. Quod iniqua & impar sit Rei & Actoris conditio; & huic denegetur, illi autem competat appellationis remedium; Id ea ratione videtur introductum, quod actori domi, & in suo foro de lucro certanti & agenti, haud metuendum sit, ne gratia aut potentia adversarii opprimatur: Quod autem provocetur non ad Judicem ordinarium sed ad Concilium aut delegatos; exteris & mercatoribus consultum est, ne longo sufflamine litium, & formularum, quae in ordinariis Judiciis solennes sunt, Anfractibus attriti haereant.  
35. Quod ea, quae adeo pie consulta sunt, in usu haud sunt recepta; & two quorum interest tantopere sibi defuerint, iis non utendo remediis, mirum videtur: Nec minus mirandum, consuetudinem a Jure & Ratione alienam tolerari; Ea autem est, quod cum exteris, quorum naves deprehensae sunt, patronorum & peritiorum copia haud deneganda sit, cujus consilio sese defendant, adeoque Admiralitatis curia, penes quam de iis causis jurisdictio est, Lethaes aut Edinburgi teneri debeat; Nonnulli tamen a Thalassiarcha, ut praetendunt delegati, in regionibus procul dissitis, in causis istis plerumque arduis & gravissimis, per se & substitutos suos judicant; a quorum sententia, aliquando ad supremam, quae Lethae habetur curiam provocatur. Et ab istius curiae sententia appellationis, rursus ad supremum Senatum & Dominos Sessionis (ut loquuntur) appellatur: Sic evenit, ut tot Judiciorum & curiarum meandros, vix detur eluctari: Nec id sine magno tum temporis tum sumptuum dispendio.   

Posterity of Traitors.  
IF, by our Law, the Posterity of Traitors be disabled ipso Jure, both Antenatis & Postnati, as to any Estate pertaining to themselves, which is not profectitious from the Father after Treason? Ratio Dubitandi. The Doom of Forefaulture, beareth only forefaulture of Life, Lands, and Goods; without mention of the posterity; & noxa caput sequitur: and Lex Julia Majestatis is but the municipal Law of the Romans, and is not authorised by any Act of Parliament or custom of ours. To Consider the Act of Parliament K. Ja. 5. and the Act of Dishabilitation of the Posterity of the Earl of Bothwel, and Rehabilitation of John Stewart.   

Transumpts.  
IF Transumpts under the Clerk Registers hand do Satisfy in Improbations? Ratio Dubitandi, as in the case of the Question, Decreets for proving the Tenor in hac Litera T.  
If Transumpts of Seasins out of the books of Touns and burgh's upon process to that effect, as use is, will satisfy the production? Answer. They will satisfy; seeing the Prothocalls are Extant in the Touns Register: Cogitandum as to the Transumpts of other seasins.   

Trebellianica.  
AN Executor nominate, after Confirmation deceasing before the Testament be execute; Quaeritur, will he have Right to the Third and Trebellianica?   

Trust.  
WHether a bond in these terms, viz. bearing an obligment to denude and declaring the Trust, be equivalent to an Assignation?   

trusties in Infeftments.  
A Right being granted to one, his Heirs and Assigneys, for the use and behoof of another person and his Heirs, Quaeritur, whether the casualties of Ward, Marriage etc. do fall by the decease, and with respect to the person infeft, or to the person to whose behoof the Right is granted?  
May the person, to whose use the same is granted, compel the Vassal to denude in his favours, without the Superiors consent?  
Though the Superior may pretend, that when the Right is to the behoof of an Incorporation, that he has prejudice: yet if it be to the behoof of a single person, can he refuse to enter him, if the Vassal be content to denude in his favours? Ratio Dubitandi. Though Vsuarius has an Interest, yet he is not Vassal; and the Superior cannot be urged to receive a new Vassal: And on the other part, the Right being in Trust and precarious, to the behoof of the other; ex natura inest, that he may revock and urge the Vassal to denude, and a Regress is employed, the Superior having granted the Right of the nature foresaid.   

A Trustee committing Treason.  
A Person having committed Treason, and having in his person for the time a Right to a bond by Assignation, but in trust to the use of an other, and upon a back-bond declaring the Trust: Quaeritur, Whether or not the Sum due by bond will belong to the King, and his Donator? Ratio Dubitandi, The Right of the Sum is in the person of the Traitor; and by the Back-Bond he is only debtor, and obliged to denude: And he to whose use it is entrusted has not Jus in re but ad rem; and a personal action against the Trustee, whereunto the King is not liable.   

Tutors.  
TVtela being munus publicum, at lest authoritate though not utilitate; If by our custom a Tutor may be urged to accept the office? Answer. Negative; and yet he may be urged Causative, as v. g. If a legacy be left to a Tutor nominate, he must either accept the office or want the legacy.  
If a Tutor of Law, after the year, compear to oppose the giving of a Dative; will he be heard to purge after Jus Devolutum?  
As a Father has power to name Tutors; is he so Tutor of Law, that without any authority of the Judge or Service, he may Administrate and grant Discharges?  
A Tutor nominate by a Codicill, ought he not to be confirmed; and the Nomination lie in the Commissars Register?  
If where there is more Tutors, payment may be made securely to one?  
Quid Juris as to Tutors, if they may be charged? and where there are Letters of Horning granted against them for their interest, upon the debt of the pupil, If their Escheat and Liferent will thereupon fall?  
In what case Tutors may be charged, or pupils themselves? It is Thought, That Cogitandum est, Whether there be a difference betwixt the case of a Tutor, when there is a Decreet against the pupil and against him for payment, and he has not alleged nor made appear that he has nothing of the Pupils Estate in his hands, & officium non debet esse damnosum: And when the Tutor is only charged for his interest:  in the first case there is a decreet against him; and in the other, not: Or if he ought to Suspend as being Debtor ex quasi contractu; eo ipso that he is Tutor, and is liable either to the debt, or aught to show that he cannot pay it.  
Quaeritur, If a Woman may be Tutor dative, or Curator? It is thought, that (though the Testators will, be most to be followed in Testaments) she cannot be Tutor dative; because it is virile officium: And a Woman, though she will be Heir failyiening Children, & penes quem emolumentum penes eundem onus: yet she cannot be served Tutor of Law: And the Law not trusting her, she should not be Dative: And though the Exchequer gives such Tutories, it seems to be an Error and abuse.  
If Breives for serving Tutors of Law should be direct to any others, but the Sheriffs? Or to other Judges, where the Defunct had his Domicile and his Estate? Seeing Infants and Pupils have no Domicile: and Services are oftentimes of purpose before the Bailies of the Canongate; and in other places, where neither the Pupils parents did dwell, nor had they any interest or estate.  
Divers Tutors being named conjunctly, Quaeritur, if any of them decease, will the Nomination be void? Answer, It is thought, that Tutors and Executors have the Office singuli in solidum; So that any of them deceasing, the survivers continue Jure non decrescendi. Montrose.  
A Mid-brother having left Children, Quaeritur, Whether will his Elder Brother or Younger be Tutor to them? Ratio Dubitandi, That the younger Brother will not succeed, & penes quem onus, penes eundem emolumentum: Et e contra, if the mid-Brothers Children should succeed to their Father, the younger Brother will be Heir to them, though not to their Father.   

Tutor and administrator of Law.  
QVaeritur, If Debtors may pay the Father as Tutor of Law, sine inquisitione, and without some authority of the Judge competent? Seeing there may be prejudice to the Pupil, if the Father be prodigus, or otherwise unfit.   

Tutor Ratione Rei.  
QVaeritur, Whether a Person, Disponing his Estate to a Pupil or Minor, may appoint Tutors and Curators for administration of it during Minority? Answer, he may appoint Tutors or Curators to administrate: But the Question remaineth, whether he may appoint a Tutor, not only rei suae but Personae; and to any other Estate belonging to the Pupil.  
Quaeritur, The Father being deceased, may the Grandfather name Tutors to his grandchildren?  
There being no place to a Dative till after year and day, Quaeritur, If the nearest Agnat may oppose the giving a Dative? Or if Jus be fully devolutum to the King, as in other cases Juris devoluti?   

Tutory.  
FIve Persons being named Tutors, whereof two to be sine quibus non, viz. The Defuncts Relict, and another; and the Relict being Married, and the other sine quo non deceasing: Quaeritur, Whether the Tutory falleth? And if it be void, whether the nearest of kin of age may be Tutor in Law? Or if there should be place to a Tutor Dative? And if in that case the surviving Tutors should be preferred to all others? Ratio Dubitandi, 1mo. Though the defunct did express his respect to the sine quibus non; so that during their being Tutors they should be sine quibus non; he did also express his confidence in the other Tutors above all others, by nameing them Tutors; so that, for the reason soresaid, it may appear, That they should continue Tutors; at the least that for avoiding of question, they should be preferred to be Datives. 2do. The next nearest of Kin should not be Tutors, seeing the Defunct did not trust them. The case of my Lord Montrose; his Father having named his Mother and the Earls of Perth and Haddington, Drumelzior and Sir Willaim Bruce, to be his Tutors.    

V  

Re-entering of Vassals.  
WHen a Right holden of the Superior is reduced, whether the Superior be obliged to Re-enter without a Composition?   

Vectigalia & Pedagia.  
VEctigalia & Pedagia sunt quasi stipendia Principum, pro protectione & reparatione itinerum & pontium instituta. Jus Fluviat. Tom. 2. Consil. 8. p. 140. n. 23.  
Licet per vadum quis transire possit, solvitur tamen pedagium de fluminibus; etc. 24.   

Vinco Vincentem.  
QVaeritur, In what case the Brocard holdeth, Si vinco vincentem, vinco te? Answer. ubi est eadem Ratio; as, u.g. If there be three comprisings, and the last compryser be first infeft; and thereafter the first; and the second in the last place; But there is an Inhibition at the instance of the second before the Debt of the third Compryser: The second will be preferable to the third, who will be preferable to the first; and yet the first will be preferred to the second.  
As in the case of Adjudication and Infeftment thereupon, the adjudger may exclude the Superiors Ward falling by the Debtor, Quaeritur, If he may exclude and be preferable to the Liferent, having the first Infeftment; Quia si vinco vincentem, vinco te? Answer. he is not preferable to the Liferent: and the Brocard doth only militate ubi est eadem Ratio vincendi; and the adjudger vincit the Superior, because he is infeft holden of him: so that there can be no Ward: but cannot upon that ground vincere the Liferenter, because she is also infeft, and has a prior Infeftment though base yet public; and which therefore doth exclude the adjudgers Infeftment being posterior; though it would not exclude the Superior as to his casuality, because base and not confirmed by him. Ballencrief. vide Debtor and Creditor, Quaest. 3. Litera D.    

U.  

Union.  
THere being an Union in a Charter, of Lands in divers Shires; so that one Season may be taken for all: Quaeritur, If the Heir may be served in the Shire where Season is to be taken, as to all the Lands? In respect the Lands in other Shires are fictione juris, and by reason of the Union, thought to be there: Or if there must be a Service by a Commission, or two Services in the several Shires?  
If notwithstanding of the Union, Season may be taken of both the Lands, seeing the Charter bears that una sasina erit sufficiens, and not that it shall be necessary? And if the Season may be quarrelled, as not being at the places where Season is to be taken?  
Item if the Taking two Seasins upon the Retour, will import a renunceing of the Union; so that a season cannot be taken thereafter at the place of the Union, upon Resignation or otherwise?   

Vniversalia augmentum recipiunt.  
TOtum est, vel Vniversale, vel Integrale: Vniversale ut haereditas, Dos, etc. augmentum & Diminutionem recipit, & futurum includit; Ita grege legato, quae postea accedunt ad Legatarium pertinent: Jus Fluviat p. 768, n. 12. & sequent.   

Quando Vniversitas delinquit?  
UNiversitas dicitur delinquere, quando secundum consuetudinem loci per praeconem vel sonum campanae, fuerit convocata, & in Concilio generali sponte convenerit & deliquerit.  
Si Decuriones consenserint tantum, non Vniversitas sed particulares deliquisse dicuntur; quia aliud est Vniversitas, aliud singuli: & in generali potestate Decurionibus data, non includitur potest as delinquendi. Fritschii Tom. 2. exercit. 3. Juris publs. n. 73.  
Licet ista solennitas contra civitatem sit probanda, tamen haud requiritur in delictis tractum successivum habentibus; v. g. si non punitd elinquentes, quia ibi praesumitur ratificatio, quae in paenalibus mandato quoque comparatur; & consensus ipsius satis facto declaratur. ibid. n. 75.  
Quomodo puniatur Vniversitas, vide ibid. n. 78. & sequent.  
Punitur aliquando Banno, sumpto de authoribus supplicio; ut paena ad paucos, metus ad omnes perveniat. ibid. n. 80.    

W.  

Wadsets. Vide De Hypothecis.  
WHAT way shall a Creditor be secured as to a Wadset, or Money due thereupon? Answer. He may comprise the Wadset-Right; and if he cannot comprise, the term of payment of the Creditors Debt not being come, he may arrest the Sum due upon the Wadset, to be forthcoming in case of redemption. vide Arrestment of Conditional Debt in litera A.  
If Another Creditor comprise the Wadset, will he be preferred to the Arrester  the Order, though anterior? Answer. he will be preferred being in the Right the time of the Redemption; And the Money being only due to these who have Right to the Land, and must renounce and retrovendere.  
The Wadsetter deceasing after an Order, and the Money being consigned Quaeritur, Whether will it belong to his Heir or Executor? Ratio Dubitandi. Money of itself is Movable: And on the other part, surrogatum sapit naturam surrogati; and it is due to be given ratione rei and a renunciation to be given by the Heir.  
Quid Juris in the case of a Contract, whereby Lands are sold and a price payable; if the Buyer charge for implement and consign the price, and the Disponer decease; whether will it belong to his Heirs or Executors?  
After Redemption of a Wadset, or comprysing, the Wadsetter or compryser dying; whether is it necessary that their Heirs be infeft and re-renounce, or if a renunciation will be sufficient; the Wadset or comprysing being loused and extinguished by Redemption?   

Wadset Heretable or Movable.  
WHen there is a provision in a Wadset-Right, that requisition should not louse the infeftment: Quaeritur, If after requisition the Sum be Heretable or Movable? Ratio Dubitandi. The Creditor declares his resolution to have the Sum: And on the other part, a Sum due upon a real Right appears to be Heretable. It is thought, that until it be actually uplifted, it should be Heretable: sed Cogitandum.  
If the Wadsetter be year and Day at the Horn; and thereafter the Wadset be redeemed, Quaeritur, If the Superior will have the Wadsetters Liferent of the Sum due upon the wadset.  
If before Redemption, the Wadsetter Dispone the Lands, suppose they hold Ward, will they recognise simply, or only as to the Wadsetters' interest? Ratio Dubitandi, The Wadset is, upon the matter, but a Hypotheck; and he can forefault no more than he has: And on the other part, whatever paction be betwixt the Creditor and Debtor; yet as to the Superior, the Wadsetter is properly and formally his Vassal; so that ex ejus persona he has all the fruits and casualties of Superiority.  
If a Wadsetter holding of the King commit Treason, Whether or not he forefaults the Lands or only his interest of Wadset? Ratio Dubitandi, As in the former Querie: and that the King should have hominem vivum & mortalem confiscantem; and all the casualties belonging to his Superiority, or to His Majesty as King, ex morte vel delicto Vasalli: and albeit the Right be redeemable, yet that is to be understood also long as the Right is in the person of the Wadsetter; but not after it is Extinct by Forefaulture.   

Wadset Proper.  
IF a Wadsetter of Ward-Lands die before Redemption, will the Marriage of his Heir fall? And if it fall, will the Debtor, if he redeem, be liable to refound the avail.  
In Proper Wadsets a great part of the Sum being paid; will the Wadsetter be comptable for the duties effeirand thereto?   

Ward.  
A Compryser of Lands holden Ward being infeft, Quaeritur, If these Lands will Ward by the decease of the compryser, and if the Marriage of his appearand Heir will fall? Ratio Dubitandi, a compryser is but an interim Vassal, for surety of his Debt: And upon that consideration such a Right in England is considered as a Chattel, and not Inheritance. vide Comprysing. quaest: 14. litera. C.  
If the comprysing be Redeemed, will the Debtor be liable to refound the damnage sustained by the Ward and Marriage?  
Quaeritur, If the Ward of the comprysers' Heir will determine and expire upon the Redemption?  
Quid Juris in the case of proper Wadsets; if the Debtor after Redemption, will be liable to refound the foresaid Damnage? The difference being, that a comprysing is an involuntar Right, and the Wadset voluntar; so that the Creditor seemeth to take his hazard.  
A Creditor being infeft in Ward Lands, upon a Wadset bearing back-tack; will they Ward upon his decease, and the Minority of his Heir?  
If they Ward, will the Debtor have the benefit of the backtack, during the Ward? The Superior having in effect consented thereto.  
We have seen a Charter granted to the Earl of Home, viz. To George Earl of Home and Mareon Halyburton, of the Earldom of Home, and other Lands thereinmentioned; some of them holding Ward; Which Charter is granted to them in Liferent and to their Son Alexander in Fee; dated in Anno 1538. which bears, that though the said Alexander be infeft in Fee, yet if the time of the Liferenters' decease he be Minor, his Ward and Marriage shall fall to the King.  
Item, It bears a reservation of Terce to the said Mareon, notwithstanding of the said Fee.  
If the Ward of a person who is Appearand Heir, as to a Wadset Right, do not determine by a Redemption of the Wadset? And the same Question may be, as to the Liferent of the person infeft upon the Wadset? Answer. It is thought, that it will determine; his Right being Jus resolubile: And though the Ward be considered as fructus Dominii directi; and being gifted, it may seem that the Donator cannot be prejudged, yet that is to be understood when the Vassal has an absolute Right; but not when the Right is qualified and resolubile.  
If the Appearand Heir of Ward Lands being pubes and Doli capax commit Treason, will his Ward be determined? vide Marriage. questiones 17. & 18. in litera. M.  
Lands holding Ward being full the time of the Vassals decease, by an Infeftment upon a Comprysing; but the Comprysing being thereafter redeemed by the Debtors general Heir being Minor; Quaeritur, If the Superior will have the Ward? Answer. It is thought, not; seeing the Heir does not succeed to the Lands as Heir to his Father, who was not Vassal; but as general Heir has Right to the Reversion, whereupon he has Redeemed: and Modus & Forma is much to be considered.  
If the Comprysing does extinguish, being satisfied by Intromission, Quaeritur, If the Heir being Minor, there will be a Ward in that case? Answer. It is thought, not;  the Comprysing does extinguish not ab initio, but ex post facto; and the Heir cannot be said to be the Appearand Heir of a Vassal; the Lands being full, as said is the time of his Father's decease: And albeit there is not a formal and ordinar legal reversion, no Money being to be paid, yet there is upon the matter Jus Retrahendi to the Appearand Heir. vide Comprysing. Quaest. 37. litera C.   

Ward Lands.  
QVaeritur, A Superior of Ward Lands having confirmed a base Infeftment, whether will the Subvassal be Liable to the Ward, or Nonentry falling by the decease of the Vassal? Ratio Dubitandi. Hope giveth only that reason in the case of Lands holden of the King, that Confirmations bear a Salvo of all Rights, Duties, and Services.  
By the Act of Parliament _____ The Superior during the Nonentry and Ward, had Right only to the Feu-duty due to the Vassal by the Subvassal; Quaeritur, If the Superior be in the same case by the confirmation, as he was by the said Act of Parliament; notwithstanding the Act of Parliament 1606, in favours of Subject's Superiors of Ward Lands.  
If the Appearand Heir of a Vassal of Ward Lands renounce to be Heir, will his Marriage notwithstanding fall either single or double? Ratio Dubitandi, he was never Vassal; and caelibatus is not delictum.  
If Marriage be real and affects in prejudice of singular Successors? Ratio Dubitandi, Hope is for the Affirmative, and allegeth Decisions. To consider Haltons' case: On the other part, in Novodamuses, amongst incumberances that affect, there is no mention of Marriage. 2do. The Marriage respecteth not the Lands but the person, and his other Estate as to the value. 3tio. It may appear to be a personal Prestation, whereto the person and his Right dureing his and his Heirs time is Liable, but doth not affect a singular Successor, as in the case of Ward.  
A Vassal of Lands holden Ward of the King did Feu the same before the Year 1633. when it was lawful to Feu Lands holden Ward of the King; and when the said Feu was granted, the Disponer did grant a general Discharge of the Feu-duty except dureing the Ward; and for securing the Fever having bought the said's Lands as optima maxima, at also high a price as if the Lands had holden otherways, that he and his Successors should not be Liable to the Feu-duty during the Ward; the Disponer was obliged to Infeft the Fever in an Annualrent out of other Lands equivalent to the Feu-duty; suspending always the effect of the said Right, except during the Ward. Quaeritur. 1mo. If the said general Discharge, with an obligement to grant particular Discharges when required, will militate against singular Successors, being in rem? Answer. Cogitandum: But it is thought, that it will not; unless the same were by way of Provision in the Charter and Season.  
When Ward Lands were Feved which did hold of the King before the Year 1633. The Fever during the Ward was only Liable to the Feu-duty by the old Act of Parliament, allowing the Feving of such Lands; but there is no mention of the Marriage in the said Act of Parliament; Quaeritur therefore, Whether the Marriage of the Disponer and his Successors will affect such Feves? It is Answered, That it is thought, not; seeing the setting of Feus' being allowed; it appears, that Fevers should be only Liable to the Feu-duty.  
The Fever having ever possessed since the granting of the said Right (mentioned in the Querie abovewritten except one) but not being Infeft upon the said obligement to Infeft in an Annualrent, for relief of the Feu-duty: Quaeritur, If the Fever should pursue upon the said obligement, if it may be obtruded that it is prescribed? Ratio Dubitandi, That the said obligement is a part of the Fevers Right; and the Fever has been in possession by virtue of his Right all the time: and if the Fever had not been Infeft upon the Feu-Charter, and had been in possession by the space of Forty Years; and after the expireing of the same should pursue the Disponer and his Representatives, to grant a new Charter with a Precept to Infeft; it could not be pretended that the said Right was prescribed.  
If Lands holden Ward of the King be Feved after the Year 1633. and the King should question the said Feu as null, being contrar to the Act of Parliament: Quaeritur, If Prescription may be alleged and obtruded against the King? Ratio Dubitandi, That the Right is null ab initio, and cannot be a warrant and ground of Prescription; Et quod nullum est, nullum sortitur Juris effectum.  
A Vassal of Ward Lands holden of the King, having Feved the same conform to the Act of Parliament warranting such Feus': Quaritur, If the Vassal be Forefault, whether such Feus' will fall under the Forefaulture; if they be not confirmed? Or if the Act of Parliament, warranting such Feus', be equivalent to a confirmation? Answer. It is thought, the King for himself and his Successors, by the said Act, did consent to all Feus' that are to be granted by virtue thereof: So that the same is equivalent to a Confirmation. Marks of huntley.   

Taxed Ward.  
A Gift being granted of Wards simple or Taxed, falling within a certain time, Quaeritur, if the Donator will have Right to the Taxed Ward for Terms thereafter. Answer. He will have Right to the same; if the Taxed Ward has fallen within the said time, as the whole time of the Ward; seeing Ward is to be considered as Jus integrum; and Dies cedit when ever it falls, albeit non venit.   

Warrandice.  
A Bond being Assigned with absolute Warrandice: Quaeritur, What is the import of the said Warrandice? And if the Cedent should be Liable, if the Debtor be, or should become Insolvent? Answer. It will import only that the Debt is true, and due by a valide Bond; but not that the Cedent should be obliged to warrant the condition of the Debtor; the Law being express to that purpose, that he should warrant deberi, but not Debitorem locupletum esse: As was found in the case of Mr. Robert Barclay.  
Quid Juris, If the Warrandice be in these Terms; that the Debtor is Locuples, and he be truly so for the time, but he becomes Insolvent? Cogitandum.   

Infeftment of Warrandice.  
IF an Infeftment of Warrandice, being only base, will be construed to be public by Possession; by reason of the Possession of the Principal Lands Dunglas.   

Waste.  
WAste being committed by a Liferenter or Wadsetter; and the Heretor deceasing or disponing the Lands; whether will the Action for the same be competent to the Heir of the Heretor, or to his Executors, or Singular Successors? Answer. It is thought, it will belong to the Heir, or Singular Successor, being Actio in Rem: And so it is by the English Law.   

Witnesses Remitted.  
THE necessary Qualification of a Witness being Honesty and Integrity, which though presumed in all Persons, yet cannot be thought to have been in these, who by sentence on their own Confession, are evidently Criminosi, and guilty of the highest Crimes: It would seem that a Remission may Free as to punishment, and may Repone as to all other capacities, and as to the Kings own Interest; But not as to that, which in behalf of the People, requires Integrity: And the King by a Remission may free a Pain, but not a Gild, and cannot repone to Innocency.   

Witnesses in case of Treason.  
THE Law of the Majesty, and the Statutes of King William Chap. 11th. Of these who are Infamous; and the Statutes of Robert the 1st. Cap. 34. of these who are repelled from Testimony, are clear, that Socii Criminis cannot be Witnesses, and convicti & redempti cannot be Witnesses: Quaeritur therefore, if a Person convict of Treason and Remitted, that he may be Witness against others, can be Witness? Especially, that Law bearing That conducti prece vel pretio cannot be Witnesses; and there can be no greater pretium than a Man's Life, Skin for Skin etc.   

Women Witnesses.  
QVaeritur, If Women Witnesses may be admitted in the case of Divorce, to prove Adultery? Answer. This Question is under debate, upon Advocation from the Commissars of Edinburgh having admitted the same: And that they should not be admitted. 1mo. That by our Law, Cap. 34. Stat. 2d. Ro. 1st. Women are not Habile Witnesses: And by the Custom (except in casu puerperii to prove the Birth of Children, to give the Husband the benefit of Courtesy) and by the Canon Law Decretal: De verborum significatione Cap. 10. And on the other part, it is urged, by the Civil Law, they may be Witnesses except in Testaments; and by the Canon Law, they may be Witnesses in causa Matrimoniali, and by our custom in Criminibus occultis & domesticis; and in atrocioribus, as Murder, Treason, and Falsehood: And in Answer, It is urged, that where the Civil Law is altered by the Canon, that is to be followed; and that Women cannot prove Marriage, and ought not to prove the Dissolution; and in causa Matrimonii Witnesses should be above all exception. Cap. 1. de Consanguinitate: And if any of the Canonists were of another Opinion, it was because the effect of Divorce was separatio mensae & Thori, non vinculi; and in Treason and such Crimes much is indulged, ad vindictam publicam, but not ad vindictam privatam, when such pursuites are only for private interest: And it is not presumed, that the King's Advocate will corrupt Witnesses: and in whatever case either by the Canon Law or ours, Women are admitted, It is only ubi constat de corpore delicti, which is not in Adultery, where there is not a Child: and in whatever case (even when the public is concerned) Women are never admitted; but to adminiculate; And Quando concurrit unus testis habilis, supplet inhabilitatem alterius: And there being Forty or Fifty Processes of Adultery within this Hundred Years, Women Witnesses were never received: and they are not admitted in causa scandali before the Commissars, to prove injuria verborum, much less in Crimine Adulterii.   

Obligements to employ Sums of Money, for Provision of Wives.  
IF a Person be obliged by Contract of Marriage to employ a Sum of Money to himself and his Wife the longest liver in Liferent, and to his Heirs Quaeritur, If the said obligement be not performed, what course the Relict may take to affect thereupon his Estate having no Heirs, Creditors being in competition of Diligence? And if she may not pursue his Appearand Heir as lawfully charged, making mention of the Obligement, and that the Heir will not perform the same, and that loco facti succedit interest; and therefore to hear and see him discerned to pay and make forthcoming to her the said Sum, that it may be employed conform to the said Obligement; and to hear and see it found and declared, that the same Execution shall follow upon the Decreet by Adjudication or otherways, as is competent to other Creditors?  
If a Relict will be preferable to other Creditors?   

A Woman's Jointure.  
A Man getting a Tocher, and giving a Jointure in order to his Wife's Aliment; and she having a Joint Right with him: If he become Bankrupt will it be altogether ineffectual dureing Life? Ratio Dubitandi. It is Alimentary, and she is a most favourable Creditor, and otherways it should be Societas Leonina.   

Woods.  
WHen a Liferenter is Infeft cum Nemoribus: Quaeritur, Quid Juris, When the Wood falleth to be cut dureing the Liferent?   

Wrack.  
IF Ships or Barges belonging to this Kingdom, do make Shipwreck within the same: Quaeritur, Whether the Representatives of the owners may claim the Goods and not the King? Or any Infeft cum Wrack? Ratio Dubitandi, That by the Act of Parliament, Ja. 6. Par. 9 Cap. 124. Ships belonging to these Nations, where that Law has not place, are to be in another case than the Ships belonging to the Nations where the Law anent Shipwreck has place: and it seems reasonable, that the King's own Subjects and their Ships should be in also good case, as the Ships of any Nation whatsoever; and that their Ships and Goods should not be lost upon pretence of Wrack; unlese there were a positive Law to that purpose: and the foresaid Act implies, that it is Triste Lucrum, and not to be owned but Lege Talionis.    

Z.  

The case of the Admiralty of Orknay and Zetland, Represented in behalf of the King, in Answer to the Duke of Lennox's Claim thereto.  
BY a Charter under the Great Seal in anno 1603. His Majesty's Grandfather did give and grant to Lodovick Duke of Lennox the Office of Admiralty, in these terms, Totum & integrum Officium Admiralitatis nostri Regni, cum omnibus privilegiis honoribus & Commoditatibus eidem spectantibus.  
The said Charter is not only of the said Office, But of the Dukedom of Lennox, and of the Lands therinmentiond belonging to the same: And as to the said Lands and Dukedom, the said Charter is upon the Duke's Resignation, the same having formerly pertained to him; But as to the said Office of Admiralty, the same is not given upon the Duke's Resignation, but is casten in in the Novodamus; whereas the Clauses of Novo-damus do not usually contain, as to the Subject Disponed, more nor did formerly belong to the Resigner; seeing the novo dare & renovare doth suppose a former and preexistent Right. There are indeed Ratifications in Parliament of Lodovick Duke of Lennox his Right of the Office of the Admiralty; But it is to be considered, that by ancient Laws and Acts of Parliament, it is Statute that heretable Offices should not be given, or Disponed in Fee or heritage; and if they should de facto be disponed, they should be given with great deliberation, and deliverance of the Parliament, s appears by the Acts 43 and 44 King James 6th. his 11th. Parliament.  
Ratifications do ordinarily pass in Parliament, of course without voting, the very last hour of the Parliament when it is to dissolve; and how little weight should be laid upon the same, it appears by the Ratification produced for his Grace the Duke of Lennox dated 23 of October 1612, which doth ratify the Infeftment Granted to the said Lodovick Duke of Lennox of the Offices of Great Admiral of Scotland, and of all the Isles and bounds thereof, with the Offices of Lieutenendrie upon the seas, and Collonellship, and Justice General, and Office of judicatory Criminal and Civil, with all the Privileges, Dignities, and Casualties of the same set down in the said Infeftment; albeit no such Infeftment, for any thing known, is or can be produced: and the foresaid Infeftment in the year 1603 Granted to the Duke of Lennox is only simple, of the Office of admirality Regni nostri without any mention of the Isles, or of the Office of Lieutenendrie upon the Seas or Collonellship, and Justice General, and of the Office judicatory Criminal and Civil; And the said Act of Parliament is blank as to the date of the Infeftment which is ratified; whereas if there had been any such Infeftment of the Tenor and Extent foresaid, it would have then been produced the time of the said ratification; And if it had been then produced, the ratification would have expressed the date of the same.  
It Appears by certain other papers now produced by the Duke for clearing his interest, That the claim of that Honourable Family was only of the Office of admirality of the Kingdom, without any mention of the Isles, and much less of Orknay and Zetland; in so far as his Majesty's Father's letter 16 June 1628., of which the extract is produced, doth bear, That he had been pleased to sign a signature, In favours of the Duke of Lennox of the Heretable Office of admirality of this his Kingdom: And in the Act of Parliament produced of the date 28 June 1633, Mention is made, that the deceased James Duke Lennox stood Infeft as Heir to the said Lodovick Duke of Lennox, in the Office of admirality of this Kingdom, without the least mention of Orknay and Zetland.  
It appears by the Writs produced for the Duke, That until the Earl of Mortouns Grandfather obtained a gift and Right of Orknay and Zetland from his Majesty's Father; The Duke of Lennox's Right, as to the admirality of Orknay and Zetland, was ever questioned and controverted by his Majesty's Officers; In so far, that upon the last of March 1628., The King did set a Tack of the Earldom of Orknay and Zetland To Archibal● Lord Naper, Containing a Right likwayes of the admirality within the Bounds of Orknay and Zetland: And the Earl of Linlithgow having appeared in behalf of the Deceased James Duke Lennox, The said Lord Naper Declaired, that he should be ruled as to the said Right of Admiralty according as his Majesty should declare his will thereanent; whereas if the Dukes Right had been clear and unquestionable, neither a Tack would have been set of the admirality of Orknay and Zetland, neither woul● there have been any Reference made to his Majesty; But upon the Ear● of Linlithgowes appearing, and representation of the Duke's Right, th● Clause of the said Tack as to the admirality of Orknay and Zetland, would have been Delet.  
As to Possession; the Earls of Mortoun have been in Possession of the admirality of Orknay, upon a Gift and Right from his Majesty, ever since th● Earl of Mortouns Grandfather obtained the Right of Orknay.  
There is produced for the Duke, The double of a Gift granted to the Earl of Linlithgow of the admirality of the whole Kingdom of Scotland and Isles thereof, and of the Lieutenendrie, justiciary and General of the Sea; with consent of the Deceased James Duke of Lennox and of his Curatorsf the said Earl being a Confident Person and Relation of the said Noble Family, And without prejudice of the Dukes Right: But it is to be Considered, that the said Paper is only a Double and not Authentic, And the said Right is only Granted dureing the Minority of the said Duke of Lennox, and is given upon a Supposition and Narrative of the Duke's Right; Whereas not Right has been, or for any thing that can be seen, can be shown; That the Dukes of Lennox have Right expresely of the Admiralty of the Isles, and of the offices of Lieutenendrie and justiciary.  
As to the Privileges and Casualties belonging to the admirality of Orknay and Zetland; it is represented, that the Privileges and Casualties of the admirality are not specified nor defined in any Charter or Record, for any thing that does appear: the Charter foresaid granted to Lodovick Duke of Lennox in Anno. 1603, bearing only (as said is) Cum Privilegijs & commoditatibus eisdem Spectantibus: And the Charter granted to Adam Hepburn Earl of Bothwell in the Year 1511 (which is the most ancient Record of admirality that we have seen) bearing only the said Office of Admiral Totius Regni, to be given to the said Adam, Cum omnibus Libertatibus proficuis & eschetis ejusdem; without mention of the Isles of Orknay or Zetland, or specifieing the Liberties and Casualties belonging to the Admiralty.  
It Appears by an Act of Parliament Entitled concerning certain abuses of the Admiral's proceed, being 156. Act of King James 6th. his 12. Parliament; that upon pretence of an Infeftment granted to Francis Earl of Bothwell of the admirality of Scotland, containing greater Specialties and divers Clauses which were not in the former Infeftments of Admiralty, The People being oppressed did Complain, and by the said Act it is Statute, that the Admiral and his Successors should exerce no Jurisdiction nor exact no Duty nor Casuality, But that which was in use to be exercised and taken by the Admiral for the time, before the Death of King James 5th: And therefore it is humbly conceived, that whosoever shall be found to have Right to the admirality of Orknay and Zetland, It is fit that the Privileges and Casualites of the same, be so defined and cleared, that the Fishing, Trade, and Traffic be not interrupted nor disturbed; And that his Majesty be not prejudged of his Rents of Orknay.  
It is humbly represented to his Majesty's Consideration, The Records being for the most part lost, which might have cleared his Majesty's Interest; and the Right of admirality being Granted to the Dukes of Lennox in manner foresaid; and neither the Duke's Right nor the Right of admirality granted to the preceding Admirals being special as to the Isles of Orknay and Zetland; and the said Isles of Orknay being the King's Property, and feved only to the Earls of Orknay, and now Annexed to the Crown; and the said Isles being so remote and of so vast an extent, and formerly possessed by the King of Denmark; and upon Transactions with the said King which are not very ancient, being reunited to this Kingdom; Whether or not the Right of admirality granted to the Dukes of Lennox ought to be extended to the said Isles of Orknay and Zetland?    
FINIS.   

THE DECISIONS OF THE LORDS OF COUNCIL and SESSION, IN Most Cases of Importance, Debated, and brought before them; from December 1665, to June 1677.  
OBSERVED By Sir JOHN NISBET of Dirleton, Advocate to King CHARLES II.  
To which is Added, An INDEX, For finding the principal Matters in the said Decisions; As also, A List of the Pursuers and Defenders Names.   printer's or publisher's device 
EDINBURGH, Printed by GEORGE MOSMAN, and are to be Sold at his Shop in the Parliament-Closs. Anno Dom. M.DC.XCVIII.   

DECISIONS OF THE LORDS OF COUNCIL and SESSION, In some Weighty and Important Affairs before them. Beginning the 7. of December 1665, and ending the 29. of June 1677.  

Decision 1st. Veatch contra Duncan, 7. December 1665.  
THE Clause cum molendinis & multuris, importeth freedom from astriction, though it be only in the Tenendas. Me referente.   

D. 2. Burnet contra Leys, 12. Decemb. 1665.  
THe said Mr Robert Burnet Son to Alexander Burnet of Leys being provided by his Grandfather Sir Thomas Burnet of Leys (his Father having deceased before) To the Sum of 10000 Marks, to be paid after his age of 25. Years; with Annualrent after that time conform to a bond; pursued his Nephew Leys for the Annualrent of that Sum; at least for an Aliment until he should attain to that age: Upon that ground, That he could not starve; and that his Grandfather, whom the Defender represents as Heir having provided him, as said is, to the foresaid Sum to be paid at the time foresaid, did acknowledge that he was obliged to provide him being his Grandchild: and that until the time his provision should be payable, he and his Heirs were liable to his Entertainment being Debitum Naturale.  
The Lords this day did Demur: And the case being of consequence as to the preparative, thought fit it should be further thought upon.   

D. 3. Ferguson contra More. Eodem die.  
IN the case Ferguson contra More, the Lords Found That Compensation should not be granted against an Assigney upon a Debt of the cedent Assigned to the Suspender; unless intimation had been made to the Cedent, before the Chargers intimation of the Assignation made to him by the Cedent.   

D. 4. Inter Eosdem, eod. die.  
IN the same case, two Persons being obliged Conjunctly and severally as principal Debtors, to pay a Tocher, without a clause of relief pro rara, It was found that de Jure inest.   

D. 5. Pringle contra Cranston. eod. die.  
IN the case Pringle of Greenknow contra Cranstoun, Found that a subvassal being infeft by a Baron cum Curiis & Bloodwitis, may hold Courts and unlaw for Blood.   

D. 6. Eleis contra Keith and Wiseheart, 15. Decemb. 1665.  
IN the case betwixt Mr John Eleis and Mr Alexander Keith and Wiseheart, It was Found That Elizabeth Keith Spouse to Mr William Wiseheart Minister at Leith, having by Bond, granted by her Husband and her, obliged herself to pay to the said Mr. John, the Sum of 6000. marks: and for his further surety to infeft him in certain Lands pertaining to her; which bond contained a procuratory of resignation: The said bond though null as to the obligement to pay the said Sum, was valide as to the Right of the Lands: And that the said Elizabeth, having thereafter disponed the said Lands in defraud and prejudice of the said Mr John, was liable to the said Mr John, and upon that ground, The Lords found the said Mr John as Creditor to the said Elizabeth, might question any fraudulent Rights made by her to his prejudice.   

D. 7. Grants and Row contra Visc. of Stormont, eod. die.  
DAvid Viscount of Stormont having obtained a Decreet of Reduction against _____ Grants, of their Right of certain Lands, for not production. _____ Grants and _____ Row, did reduce the said Decreet against _____ now Viscont of Stormont, upon production of the Rights called for in the first Decreet: And in this Reduction, The Lords did suffer and admit the said Viscount to insist in the said first Reduction, he producing the said David Viscount of Stormont his Right and instructing that he represents him; Though the said first Process was not transferred in the Person of the said Viscount active; and against the Pursuers of this Reduction passive; and the summons of Reduction, whereupon the first Decreet, proceeded was not produced: Which The Lords allowed to be supplied by production of the Decreet, and a paper containing such reasons of Reduction, as Stormont thought fit to give in: And that in respect it was the fault of the Defenders in the first Reduction, that the Writs were not then produced: And they and these having Right from them being reponed, it was just that Stormont and his Heirs should be likewise reponed.   

D. 8. McLeod contra Young. 19 Decemb. 1665.  
WAlter Young, Harry Hope and _____ having Written to the Lord McDonald, that they had commissionated _____ Donaldson to buy Cows for their use; and that for such as should be bought from him they obliged themselves to pay all such Bills as should be drawn upon them: and the said Donaldson having drawn a Bill upon the saids Persons and any of them: Found, that in respect they were partners and socii as to the bargain, and the Lord McDonald had upon their letter trusted and sold the Cows to the said Donaldson, they ought to be liable in solidum conjunctly and severally.   

D. 9 Dickson contra sandiland's. 21. Decemb. 1665.  
IN the case betwixt _____ Dickson of Killoch and sandiland's his Mother and her present Husband: It was Found, that a Husband being obliged by Contract of Marriage, to provide the liferent of such Lands as he should acquire during the Marriage, to his Wife in liferent; and to the Heirs of the Marriage: and his Heir being pursued for implement, and for resigning certain Lands acquired by the Husband for a liferent to the Relict; The Relict her liferent and Right should be with the burden of a Sum of Money borrowed by the Husband, for making the said purchase; as to the Annualrent of the said Debt during the Relics Life-time.  
The Lords considered, that though, in order to other ends and effects, and in special to determine the Succession in favours of an Heir of conquest, whatever Lands are acquired by any person titulo singulari are esteemed Conquest: yet in Contracts of Marriage such obligements anent conquest, are to be understood of what is acquired by the Husband with his own means and Moneys; seeing what is acquired otherways (the Price or a part of it being borrowed, and the Husband being Debtor for the same) upon the matter, and in effect, is not conquest and a free accession to the Husband's Estate; in so far as the Price is a burden upon the Husband's Estate: and as the Husband, if he had been charged himself, might have satisfied the obligement by giving an Infeftment with the foresaid burden, so the Heir may do the same.   

D. 10. Lepar contra Burnet. 23. Decemb. 1665.  
IN the case betwixt Leper and Dam Rachel Burnet and the Laird of Prestoun her present Husband; these questions were agitated and decided.  
1. If a Husband get, in Tocher with his Wife being an Heretrix, more than an ordinary and competent Tocher, which he might have gotten with another; The Husband and his Heirs will be liable, after the Marriage is dissolved by the Wife's decease, in quantum lucratus est, for the Wife's Debt: And the lucrum will be considered, to be the benefit he has gotten above an ordinary Tocher.  
2. The Lords inclined to think, That though a decreet of registration was obtained against the Wife and her Husband for his interest; The Husband will not be liable, the Marriage and his interest ceasing: And that an ordinary Tocher being ad sustinenda onera, is not lucrum.  
3. Heirs portioners are liable for their own part; reserving action in case any of them become irresponsal: and if the Creditor having done diligence cannot recover their parts, he may have recourse against the rest.  
4. It was moved (but not decided) whether the others being non solvent, The responsal Heir should be liable for their proportion in solidum? Or only for What he has gotten of the defuncts Estate?   

D. 11. Bryand contra Grhame. 3. January 1666.  
IN the case betwixt Mr Andrew Bryand and George Grhame, The said George being constitute assigney to a Bond granted by the said Bryaend to Thomas jack: And having charged thereupon, The Suspender offered to improve the Bond; and urged the charger to bide by the same, which he was content to do in these terms. Viz. That he did abide by the said Bond as truly assigned and delivered to him by the cedent: And that the cedent would compear and abide by the same as a true Bond. The Suspender answered, that the cedent was lapsus, and had come out of Prison upon a Bonorum; and therefore he ought to find Caution to compear all the diets of the Process. The Lords found, that the cedent should abide by the said Bond; with certification, that if he should not appear when the Lords should think fit, for clearing the question anent the falsehood of the Bond by his oath or Examination; the Bond should be declared to be void; and to make no faith both as to cedent and assigney.   

D. 12. Falconer contra E. of Kinghorn. 4. January 1666.  
THe Laird of Drum as Principal, and the Earl of Kinghorn and others as Cautioners, being Debtors to Robert Falconar by a Bond granted in anno 1640; And the said Robert having pursued this Earl of Kinghorn (as representing his Father) upon the said Bond: It was alleged, the Bond was null as to the Earl of Kinghorn, in respect there was no witness designed to his subscription: And it being Replied, that two of the name of Lion were subscribing witnesses; and though they were neither designed witness to Kinghorn his subscription, but subscribed witness indefinite; and albeit they were not otherwise designed, as they ought to be conform to the Act of Parliament by their Dwelling or otherwise; yet they were truly witnesses; and the pursuer may and doth now design them: and this Defender had no prejudice, one of the witnesses being yet on life: So that if he thought fit to improve, the means and direct manner of Improbation was yet competent.  
The Lords allowed the Pursuer to design, which they would not have done, if both the witnesses had been deceased.   

D. 13. Lady Bute contra Sheriff of Bute. 5. January 1666.  
THe Lady Bute Dam Griselda Campbel being Contracted and Proclaimed with Mr. James Grahame; in the interim before her Marriage, was induced (and as she pretended forced) to grant a Disposition, and Discharge of a part of her Jointure in favours of her Son the Sherrif of Bute; he having, after the first Proclamation of their Bannes, stopped any further proceeding until he extorted the said deeds.  
The Lords (in a Reduction of the said's deeds at the instance of the Lady and her Husband) found, that post Sponsalia and Banna, she was not sui juris; and could do no deed in prejudice either of her Husband or herself without his consent: And that she was in the same condition, as if she were Married. And therefore the Lords found the reasons relevant, for reduceing the saids Rights, both as to her Husband and herself.  
It was alleged, that the Husband had consented, in so far as after the saids deeds were done, he knew the same; and yet proceeded to Marry: The Lords repelled the Alledgance.   

D. 14. Oliphant contra Drummond. 6. January 1666.  
IN a special Declarator, at the instance of Sir James Drummond of Machany having Right by Assignation, to the Escheat of the Lord Rollo, and his Brother Sir John Rollo of Bannockburn; from Walter Stuart Donatar to the same: Sir Laurence Oliphant and Gavin Drummond, Who were also Donators to the Escheat and liferent of the said Rebels, and had recovered a general Declarator; and had intented a special; having compeared and desireing preference, alleging that the pursuers gift was null and simulate; in respect by the Act of Parliament 1592. cap. 149. Praesumptio juris & de jure, is introduced: And it is statute, that it shall be a relevant exception against any pretending Title by Assignation or Gift of Escheat of the Rebel, to allege, that the Rebel his Wife and Bairns remained in possession; and it was subsumed, that the Pursuer and his Cedent had suffered the Rebel to continue in possession, since the date of the Gift in Anno 1658.  
The Lords found, that the Rebels having been in possession a considerable time by the space of five years or thereabout; the Gift, by the Act of Parliament, is presumed to be simulate.  
2. That though the Donatar Walter Stuart was a Creditor, it doth not alter the case;  he might be (and Law presumeth he was) satisfied; and Gifts being ordinarily affected with Backbonds, it was his fault that he was not satisfied: And that he should not by his negligence and collusion prejudge other Creditors, who would have Right after he had been satisfied.  
3. That the Pursuer having assigned his Right, the assigney is in no better case, & utitur jure Authoris.  
4. That the reply, that the Lands were comprysed, is not relevant; unless it were alleged, that the Pursuer or his Cedent had done diligence to attain possession, but was excluded by the compryser. Jo. Hay Clerk.   

D. 15. Brown contra Veatch and Scot 9 January 1666.  
IN the case Broun contra Veatch and Scot, It was found, after contentious debate in Praesentia, At the Bar, and betwixt the Lords; That an Infeftment of Warrandice base, to be holden of the granter, should be preferable to a public Infeftment of property granted thereafter holden of the Superior, and clad with possession divers years: And that the possession of the Principal Lands should be interpreted the possession of the Warrandice Lands. Some of the Lords were of another judgement upon these grounds. 1. By the Act of Parliament Ja. 5. par. 7. cap 150. (Entitled provision and pains of them committand fraud in alienation and otherwise) a public Infeftment is preferable to a base not clad with possession though anterior: And both the verba and Ratio Legis, do militate in favours of the Heretor by a public Infeftment; The intention and end of the Law being to obviate fraud and prejudice by latent Infeftments: And it being all one, as to the interest and prejudice of the party who acquireth Lands, whether the private and latent Infeftment be a Right of property or Warrandice,  an Infeftment of Warrandice, when the principal Lands are evicted, becometh an Infeftment of Property.  
2. The Act of Parliament foresaid of K. Ja. 5th. is not taken away by the Act of Parliament K. James 6. Par. 17. anent Registration of Seasins; in respect, an Infeftment of property being base, though Registrate and Anterior, will be null in prejudice of a party, who has acquired a Right by a posterior public Infeftment: And both the said's Acts of Parliament, being remedia quae tendunt ad eundem finem, though the hazard be not so great as to the prejudice by latent and private Infeftments, since the Act of Parliament anent Registration of Seasins: The said Act of Parliament 1617. doth not derogate to the Act of Parliament, K. Ja. 5.  
3. As to that pretence, That the possession of the principal Lands is the possession of the Warrandice fictione Juris, It was Answered, That there is no such fictio warranted by any Law: and so it is Fictio, but not Juris.  
2do. It is a Fictio contra Jus, & cui Jus resistit; in respect the Heretor by the public Infeftment of property being in possession, no other person can be said to be in possession, seeing there cannot be two Domini in solidum, nor two Possessores by distinct Rights, having no subordination or dependence one upon another, as Liferenter and Fire, Superior and Vassal, Master and Tennent; or such like.  
4. It is clear, that the possession of the principal Lands cannot be thought the possession of the Warrandice;  if after Forty Years the principal Lands should be evicted; and a pursuit for Warrandice and recourse should be in ented upon the Right of Warrandice, though Prescription cannot be obtruded, yet if there be any defect in the Infeftment of Warrandice, as v. g. The Disposition is subscribed by one Notar, or such like; The same may be alleged: Whereas, if that Infeftment were clad with Forty Years Possession, the Right would be prescribed, and could not be questioned upon any Ground whatsoever, but Falsehood.  
In this Process, It was Questioned whether the Heretor, who had the public Infeftment, having been in Possession above Seven Years, should have the benefit of a possessory Judgement, until a Declarator and a Decreet in petitorio.  
Some of the Lords thought, that in the case of Warrandice, the Heretor should not have the benefit of a Possessory Judgement against the Pursuer upon an Infeftment of Warrandice; quia non valebat agere: But the question was not decided.   

D. 16. Cranston contra Wilkison, 14 July 1666.  
BEtwixt Cranston and Wilkison, It was Found (Newbyth Reporter) That a Person being convened as representing his Father, who was alleged to be vicious Intrometter to the Pursuers Debtor; the Title being passive and penal could not be a Ground of Action against the Defender to make him Liable to the whole Debt; But only in so far as should be proven the Defunct did Intromet, and was Locupletior: quia actio poenalis non transit inhaeredem: And the Defunct if he had been pursued in his own Life, might have purged the said Title.   

D. 17. Burnet contra Johnston 17. July 1666.  
JOhnston of Frosterhil having Disponed his Lands with absolute Warrandice in favours of Gordon of Birsemoir; Reserving his own and his Wife's Liferent: and thereafter having Disponed the same Lands in favours of Mr. William Johnston; who did obtain the first Infeftment: And being charged at the instance of Alexander Burnet, having Rght by Assignation to the Disposition in favours of Birsemoir; The Letters were found orderly proceeded; notwithstanding the Suspender alleged the Charger had no interest dureing the Suspenders Life;  he never did nor could possess; by reason of the Reservation foresaid. And the Lords found a difference, when Warrandice is craved upon a deed of the Party obliged, and upon any other ground: And that as to his deed he may be charged to purge it, without necessity to allege a Distress.   

D. 18. Wedderburn contra Scrimzeour, 18. July. 1666.  
A Father having left a Legacy, thinking his Wife was with Child; in these terms, That if his Wife should have a Male Child the Legatar should have the Sum of 4000 Marks: And that if she should have a Daughter, the Legatar should have the Sum of 5000 Marks.  
The Lords Found, That though she had no Child, the Legacy should be effectual ex praesumpta voluntate Testatoris; seeing it cannot be thought, but that he rather intended a Legacy for him, if he had no Child; Than in the case she should bring forth a Child: Et in conditionibus primum locum obtinet voluntas Defuncti, eaque regit conditiones. L. 19 ff. de conditionibus. Newbyth Reporter.   

D. 19 Steill contra Hay. Eeod. die.  
A Tennent being Ejected, Ejection was sustained at the Master's instance; though the Tennent did not concur: But it was not sustained quoad omnes effectus, viz. As to violent profits, Juramentum in litem; but only that the Master should be in the same condition he was before the Ejection; and should have the same manner of possession as if the Land were not void; and to uplift the duties; and to put in and remove Tenants. And for the Bygone ordinary Duties, in the same Process, it was Found, that the pursuer, though he was not Infeft, but only Appearand Heir to the Pursuer who was Infeft, might pursue the said Action, to recover his Possession, having been in possession before.   

D. 20. Hedderwick contra Wauch. Eod. die.  
THE Commissioners for the Borders, upon the Verdict of the Inquest that the Panel was guilty of Receipt of Theft, having ordained the Panel to pay 100 lib. Sterl. within a short time; and if he should fail to be sent to Barbadoes and loss his Escheat. The Lords Found, That by that Verdict, there did arise to his Majesty, the Casuality of his Escheat: Whereof there being Jus quaesitum; The King and his Donator could not be prejudged by a Doom which is contrary to Law: And that in such cases of Capital Crimes, the Law having determined the pain, and especially the loss of the Escheat; no Judge (even the Justice General) could moderate or lessen the samen.   

D. 21. Bisset contra Broun. 19 July. 1666.  
IT was Found nemine contradicente; That a Stranger residing in Holland, animo morandi or elsewhere: Though by the Law of the place, his nearest of Kin, without confirmation, has Right to all Goods or Debts belonging to him: Yet if the Debt or Goods be due by Scots-men, or be in Scotland, they cannot pursue for the same, unless the Right thereof be settled upon them, according to the Law of Scotland, by confirmation if they be Movables: Or by a Service if they be Heretable. Hay Clerk.   

D. 22. Thomson contra McKitrick. Eod. die.  
FOund, that a Comprysing may be deduced upon an Heretable Bond, whereupon Infeftment had followed, the same being payable without requisition; albeit a Charge of Horning do not preceded; seeing there may be poinding upon such a Bond: And there is Eadem Ratio as to comprisings; and the Denounciation is a sufficient Intimation, that the Compryser intendeth to have his Money. Hay Clerk.  
In the same Cause, The Lords having sustained a Season of burgages Lands, whereto the Sheriff-clerk was Notar, there being no Town Clerk for the time, by reason in the time of the English Usurpation, The Magistrates and Clerk refused the Tender. The Lords Found, That the said Season being within Burgh, though not under the hand of the Clerk, was not null upon that Ground that it was not Registrate; Because though the reason of the Act of Parliament for Registration of Seasins, and the exception of Seasins within Burgh, be, that Seasins within Burgh are in use to be Registrate by the Clerks in the Towns Books; yet the said reason is not expressed in the Act of Parliament: and the Act of Parliament excepting Burgal Seasins, the Party was in bona fide to think that there was not necessit of Registration.   

D. 23. Eleis contra Wiseheart Eod. die.  
A Wife being obliged with her Husband to pay a Sum of Money, and to Infeft a Creditor in her Land: Though the Bond was not sustained as to the personal obligement to pay, yet it was found valid as to the obligement to Infeft, and the procuratory of Resignation contained in the Bond: And the Wife notwithstanding, having Disponed her Land, she was found Liable for the Sums as Damnage and Interest.  
This Decision seemeth hard, In respect albeit a Woman may Dispone her Land with consent of her Husband; yet she cannot bind to pay a Sum of Money; And in the case foresaid, non agebatur that she should Dispone her Lands; But that she should be Liable to the Creditor, and for surety he should be secured in her Land, And the principal obligation being void, the accessary of surety could not subsist.   

D. 24. Eodem Die.  
IT was debated but not decided, whether the Tenor of a Comprysing may be proven; there is an Act of Parliament. Ja. 6. Parl. 6. That the Tenor of Letters of Horning should not be proven; and there is Eadem if not more Ratio as to comprisings, the Solemnities being greater and more: And if a Comprysing, which is in effect the Execution of a Messenger, may be made up by a probation of the Tenor; a paritate rationis, Poindings, and Interruptions of Prescription by Citations, and Executions, and Intimations of Assignations, may be made up by Witnesses; and Arrestments and Decreets.   

D. 25. Minister of Moram contra Bairfoot. Eodem die.  
THE Minister of Moram having pursued a Reduction of a Tack, set by his predecessor; upon that Ground that it was above three years, without consent of the Earl of Buccleugh Patron for the time: The Tack was sustained, in respect Francis Stuart had consented, in whose Favours Buccleugh, by a Decreet Arbitral, was obliged to denude himself of the Patronage.  
This Decision seemeth to be hard; seeing Buccleugh was full Patron, and was not denuded by the said Decreet: And the Right of the Patronage might either have been Comprysed from him, or Disponed by him effectually, notwithstanding of the said Decreet, which did not settle the Right of the Patronage in the said Francis his person; but was only the Ground of a personal Action against Buccleugh, for denuding him of the Right of the Patronage: And as Francis could not present, so he could not consent as Patron to Tacks: Upon these considerations divers of the Lords were of the contrair Opinion.   

D. 26. McKenze contra Fairholme 24. July. 1666.  
IN the case of Mckenzie against Mr. John Fairholme: Sir George Mckenzie, having by way of Reduction questioned a Bond granted by his Father, and himself as Cautioner, as null ipso facto: Upon that Ground that he was Minor when he Signed the Bond: And his Father being Administrator of the Law, and in effect Curator to him, had not Authorized him as Cautioner; and could not be author in Rem suam, the Pursuer becoming Cautioner in Rem, and at the desire and in behalf of his Father.  
The Lords did not this day decide the Question; some being of Opinion, That a Father, though if his Children be Impuberes and Pupils, be the Tutor and Administrator of Law, ye he is not Curator to his Children being Puberes:  a Son if he should desire other Curators to be given him, his desire could not be refused: Et habenti Curatorem Curator non datur. Vide infra 26. July 1666. And 7. Decemb. 1666.   

D. 27. Petrie contra Richart. eod. die.  
RIchart of Auchnacant having a Wadset of 12000. Marks from Buchan of Portlethem; did thereafter enter in a second Contract with Buchans' Son and Heir who had Right to the reversion; and divers years' Back-tack-duties being accumulated and made a Principal Sum, it was agreed that there should be no Redemption but by payment of the Sum contained in the said second Contract, made up as said is of the Sum contained in the said second Contract, and the Back-tack-duties; and by payment of the Annualrents so accumulated: Mr Petrie Provest of Aberdeen having acquired the Right of reversion, and having used an Order of Redemption, and thereupon having intented Declarator, it was alleged, that he should have consigned the Sum contained in the said second Contract, which he could not misken, by reason as he not only knew of the said second Contract before he acquired the said Right, but acted in relation to the said Contract and in effect homologate the same: In so far as, 1. By the said second Contract he and certain other persons being named and appointed to determine the question, betwixt Richart and Buchan, what should be paid to Buchan for the charges he had been at in prosecuting his Right against Richart, The said Petrie had accepted a submission relating to the said second Contract, whereupon a Decreet arbitral did follow, ordaining 300 marks to be paid to Buchan for his charges. 2. By the second Contract, Buchan was obliged to cause Petrie (being his friend) to give bond that he should engage for Buchan's performance of the said second Contract: and accordingly Buchan being charged to fulfil that head of the said Contract, had procured a Bond from the said Petrie and produced it in Judgement the time of the discussing of the suspension. 3. Petrie had assigned the 300. Marks of charges modified by himself; and the instrument of intimation of the Assignation mentioned the said Sum to have been modified by the Decreet arbitral; proceeding upon the said Contract: From these Acts it was urged, that knowing and having homologate the said Contract in manner foresaid, he was in pessima fide to take a Right in prejudice of the Defenders, and to pretend to be in better case than his Author.  
The Lords notwithstanding Found that the said second Contract not being Registrat in the Register of Reversions, he was not obliged to take notice of it; and might redeem by payment of the Sums contained in the first Contract. It was acknowledged by some of these who were for the decision, that these Acts imported an Homologation, But the second Contract though by our Law valid, was not favourable, and was against the common Law; in so far as the accumulating Annualrents to be a principal Sum, is usura usurarum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. I have often urged that favour is not nomen juris, and Law ought to be uniform, and not Lesbian Regula pliable and variable upon pretences of favourable or not favourable: Sed nunquam credita Teucris Cassandra.   

D. 28. Harper contra Hamilton. 25. July 1666.  
IN the case Mr John Harper contra Hamilton his Vassal; It was decided, that after the intenting a general Declarator of Nonentry, the Vassal should be liable not only for the retoured duty, but for the ordinary nails and duties of the Land: Though some were of the opinion, that before Sentence the Vassal should only be liable for the retoured duty.   

D. 29. Wilkie contra eod. die.  
SIr John Wilkie of Foulden having intented a Reduction of a voluntar Interdiction made by him to some of his friends.  
The Lords appointed some of their number to confer with him: and, upon their Report that he was rational and intelligent; and, for any thing appeared by his discourse and deportment, Rei suae providus; The Lords Reduced in absence; there being no compearance or opposition for the Interdicters.   

D. 30. The Lion contra 26 July 1666.  
BY the Act of Parliament Ja. 6. Parl. 11. cap 46. It is ordained, that Officers of Arms should find surety to the Lion, for observation of their Injunctions, under the pain of 500 Marks, with the damnage and interest of the party grieved by the malversation, negligence, or informality of the Officer.  
In a process betwixt the Lion and _____ It was controverted, whether the Cautioner might be pursued before the Lion for payment of the Debt, as damnage and interest, by reason of the malversation of the Officer of Arms in a poinding. It was alleged, that the Lion was a criminal Judge, and most competent as to the Question, whether the Messenger had committed iniquity, and malversed in his Office, and whether he should be deprived; and he and his Cautioner had incurred and should be liable to the pain aforesaid: But as to the civil action against the Cautioner, there might be a good ground of action against the Cautioner, upon the act of caution before the competent Judge; But the Lion, being Judex pedaneus, was not Judge of actions of that nature and consequence, In respect they may be of great difficulty and importance: For if the Cautioner should be pursued for payment of the Debt, being supposed to be 1000 marks, upon pretence of the malversation of the Officer, and that he had not done his duty in poinding and comprysing; It were hard and dangerous, that the Lion and his Brothers should be Judges in a matter of that consequence: And it will not follow, that because the Messenger had not done his duty in a Caption or comprysing, that his Cautioner should be liable for the Debt as damnage and interest;  the Caption and Comprysing might have been ineffectual, and the Creditor could not thereby have gotten payment: And it appears by the said Act of Parliament, that the Lion is only Judge to the penal Conclusion of deprivation of the Officer, and payment of the pain.  
The Lords notwithstanding Found the Lion Judge competent to the action against the Cautioner, for damnage and interest; Me inter minimos reclamante. Gibson Clerk. Newbyth Reporter.   

D. 31. McKenzie contra Fairholm. eod. die.  
THe Lords Found in the case before mentioned, (24. July Mckenzie contra Fairholme) That a Father is loco Curatoris to his Son being in familia; and that a bond granted by the Son without his consent is null ipso jure; as if it had been granted by a Minor having Curators without their consent.   

D. 32. Wedderburn contra Scrimzeour. ead. die.  
IN the case Scrimzeour and Wedderburn of Kingennie (mentioned before 18. July.) A legacy being to be effectualin that case only, If the Testators Wife should not be brought to bed of a Man Child; It was Found, that a Male Child should be understood a living Child: and that Homo Mortuus and a dead Child is nullus in Law: And that the legacy should be effectual, though she had been brought to bed of a Male Child, but dead.   

D. 33. Menzeis contra Burnet's. eod. die.  
IN the case Menȝies contra Burnet's, It was Found, that a Relict being provided to a Liferent of all the Goods belonging to her Husband; aught to sell and make Money of the Horse, Oxen, and such Goods as may perish; to the effect she may Liferent the Money and make the Sum forthcoming after her decease; but cum temperamento, That a competent time should be allowed to that effect: And if the Goods should perish in the mean time, she should not be liable for the same. In that same case it was Found, that a Relict should not have both a Liferent and Third; but should have her choice or option of either. Some of us were of the opinion, that seeing it appeared by the Contract, that the Goods were not to be in Communion, but that she was to have a Liferent of the same, she had not a choice to have a Third or Liferent. Hay Clerk. Lord Lie Reporter.   

D. 34. contra Blantire. 27 July 1666.  
_____ Having intented a Reduction of an Interdiction, upon that reason, that Blantyre was rei suae providus; And that the Pursuer had lent him the Money due to him, when he was in England, and in necessity; and being a stranger and a Creditor, he ought not to be prejudged by such a voluntar Interdiction; being upon a Bond granted by the Debtor without a previous Sentence, finding Blantyre to be prodigus, or such a person as should be interdicted.  
The Lords Thought The Case of that Consequence, that they would not decide upon a Report, but Ordained it to be debated in praesentia. Lord Castlehill Reporter.   

D. 35. contra eod. die.  
IT was decided, That an Executor Creditor was liable to do diligence as other Executors; and though there was a difference betwixt him and other Executors, upon that account that he was confirmed in order to his own interest, and to the effect he might be paid of his Debt, and had preference before other Creditors; yet as to the Duty and Office of ane Executor there was no Difference: And having accepted the Office which was Voluntatis, it became Necessitatis, and he was obliged to Execute it. Reidie Reporter.   

D. 36. L. Borthwick contra Ker. eod. die.  
AN Inhibition being raised upon the dependence of a pursuit for mails and duties, for three years preceding the Summons and in time coming during the defenders possession: It was Thought, that the inhibition relateing only to the Summons as to the three years preceding, without mention of the subsequent years; could not be a ground of Reduction Ex capite Inhibitionis; in respect the defender in that pursuit was assoiled as to the years before the Summons, as being bona fide Possessor: And albeit the Summons was not only for these years, but for the time to come as said is; and the Defender was discerned to pay mails and duties for certain years after the Summons, yet the lieges were not obliged to take notice of the Summons, but as it was related in the Inhibition.  
The Lords were of this opinion: But the case was not decided, the Pursuer having desired up his process that he might be better advised. Advocate, Oliphant. and Sir Robert Sinclair.   

D. 37. E. Newburgh contra Stuart. eod. die.  
SIr William Stuart being Creditor to the Earl of Newburgh, in a great Sum, upon an Infeftment in the said Earls Lands: after his Majesty's Restauration, he was induced (though there was no Question as to the Debt) to make a Reference and Submission to the Laird of Cochran and Sir John Fletcher; upon no other account, but that he apprehended that Newburgh might trouble him and cause him be fined; which was the ordinary and Ignoble practice of Noblemen at that time against their Creditors: These Arbiters did take from the said Sir William a discharge of the Debt and renunciation of his Right, and from Newburgh a blank bond as to the Sum; and the said Debt then amounting to 40000 marks, they did give to the Earl of Newburgh the Renunciation; and to Sir William, Newburgh's simple bond filled up with 6500. Marks only: Newburgh pretending that Sir Alexander Durhame (than Lord Lion) was owing him Money, did by way of letter give a precept to the Lord Lion in these terms, That he desired him to pay that Sum to the bearer upon sight, and that he should retire his bond: This letter being presented to the Lion, he in a scornful and jeering way subjoined to the letter, My Lord, I am your Humble Servant: the Earl of Newburgh, not satisfied to have paid Sir William in manner foresaid as to 3400. Marks, did intent a pursuit against Sir William, That he might be free of the Residue and get back his Bond of 6500. Marks, upon that pretence that the said Sir William had got from him a Bill of Exchange, which had been accepted by the deceased Sir Alexander Durham; at the least in case of not accepting, he should have protested and intimated to Newburgh, that it was not accepted nor satisfied, that he might have recourse against the said Sir Alexander in his own time, whereof he is now prejudged.  
Upon a Debate in praesentia, It was Found, that the said letter was not a Bill of Exchange but a precept; and that the receiving of such precepts upon Chamberlanes and others, being for the Creditors further surety, do not oblige them to the formalities of presenting, protesting, and intimating: which are in use in the matter of Exchange and Trade betwixt Merchant and Merchant. Advocats Lockhart, Wallace. contra Wedderburn and Chalmers.   

D. 38. Crawfurd contra the Town of Edinburgh. last of July 1666.  
A Donator, by a Gift of Vltimus Haeres, having Pursued for a movable Debt due to the Defunct; The pursuit was not Sustained, because the Gift was not declared.   

D. 39 Grace contra Gordon. eod. die.  
A Bond being granted to Sir Robert Farquhar, and bearing the term of payment to be divers years after the date of the same; and Annualrent to be paid in the interim, termly and yearly: Was found to be Heretable quoad Fiscum, Though Sir Robert Farquhar had deceased before the term of payment of Annualrent; And the assigney was preferred to a Donatar.   

D. 40. Halyburton contra Halyburton. eod. die.  
A Son having intented a Reduction of a disposition made by his Father, for provision of the rest of the Children, In lecto aegritudinis.  
The Lords found the Defence relevant, that the Pursuer had consented; in so far as the Son had Subscribed as Witness, and knew and heard the disposition; so that he was not ignorant of the tenor of it: And it was remembered by the Lords when they were voting, that they had found the alledgance relevant, That a Son and appearand Heir that Subscribed as Witness to his Father's deed in lecto, without that addition, that he heard it read; in the case of Stuart of Escog: It being to be presumed, that the appearand Heir being of age, would not be Witness to such deeds, unless he inquired and knew what they were.   

D. 41. Cuming contra Johnston. 7. Novemb. 1666.  
SOme Lands in Dumbar being disponed by one Adamson in favours of Johnstoun; with a provision contained in the disposition and Infeftment, that a Sum of Money should be paid by the receiver of the disposition, to him or any he should name: And in case it should not be paid the Right should be void: And the said's Lands being thereafter apprised, It was found, against the compryser, that the said clause and provision was real: And that the person named, and having Right to the Sum and benefit of the said clause, Though before declarator he could not pursue a removing, yet he has good interest to pursue for the nails and duties for payment of the said Sum; and being in possessorio, to retain the nails and duties for payment of the said Sum pro tanto: And that the said provision, and such like, are effectual against singular Successors. It was urged by some, That all, that could be done upon that Clause, was, that a Reduction of the Right might be pursued thereupon; But it was answered, that it being actum, that the Lands should be burdened with that Sum, and if nothing more had been expressed, but that it is provided that the said Sum should be paid; the said provision being real, would have furnished the said action and exception, for payment of the said Sum out of the mails and duties: And therefore, the subjoyning the resolutive clause, being ad majorem Cautelam, could not be prejudicial nor retorted in prejudice of the disponer nor his Assigney. This Question was hinted at but not decided in the said Debate, viz. If the Declarator should be pursued, upon the said clause for annulling the Right, if it should operate in favours of the Assigney, the Lands not being disponed to him in case of contraveening; being to appertain to the disponer and his Heirs, in case the Right should be rescinded. It's thought, that the provision being assigned, the whole benefit and consequence of the same are disponed: and consequently the assigney, in the case foresaid of annulling the Right, may pursue the Heirs of the Disponer and receiver of the Right, and his Successor to denude themselves of the Right of the said's Lands. Newbyth Reporter.   

D. 42. Hay contra Magistrates of Elgin. eod. die.  
IN the case Colin Hay against the Magistrates of Elgin; Improbation being proponed against the Executions of Messenger, bearing that he had intimated to the Magistrates, that he had arrested a prisoner at the instance of the said Colin: And the Magistrates and Witnesses compearing and urging to be examined, It was alleged for Colin, that they should not be examined; Because the Messenger who was also cited was not present; and that if he were present he might condescend upon circumstances, and remember the Witnesses that they had been Witnesses; it being otherewise incident to them to have forgotten, though they had been truly Witnesses to the Execution. It was answered for the Magistrates, that they had cited both Witnesses and Messenger; that they had done all that was incumbent to them; and his not appearance, ought neither to prejudge them nor the Witnesses: And that having come in obedience to the citation, they should not be troubled to come here again, their Residence being at such a distance.  
The Lords indulged so far to Colin, as to delay the Examination of the Witnesses until further diligence should be done to bring here the Messenger, Me Refragante: but ordained Colin to pay the expenses: And if it had been desired, that if the Witnesses should die, they should be holden as improving; The Lords would have granted the desire.   

D. 43. Carse contra Carse. 8. Novemb. 1666.  
DOctor Carse having taken a Right of Annualrent out of Sir David Cuninghams' Lands, in the name and persons of Mark Carse of Cockpen and Adam Watt Writer; and a comprysing thereafter deduced in their name to the behoof of the Doctor, for some arrears of the said Annualrent, not only out of the Lands out of which the Annualrent was due, holding blench or feu; but of other Lands holding Ward. Charles Carse Son and Heir to the said Doctor, pursued the said Mark Carse and the Heir of Adam Watt, to denude themselves of the Right of the said's Lands, conform to a Backbond granted by the said Mark Carse, and the said Adam Watt, declaring the trust: In that trust it was alleged for the Defenders, that they were content to denude themselves, they being relieved of all hazard they might incur upon occasion of the said Trust, and having that Right in their Person; and to that purpose did offer a Disposition, bearing a provision that the Right should be burdened with the relief of Wards, Marriages, and Ministers Stipends, Cess, and other such hazards. It was Answered, that the said Disposition ought not to be clogged with such a provision, which would fright Buyers from purchasing the said's Lands; and the pursuer was necessitat, and had presently an occasion to sell the said's Lands: And as to the incumberances, and hazards, which the Defenders should condescend upon they should be purged: But as to the Marriage of Adam Watts Heir (which was condescended upon) there could be no hazard upon that account, In respect the comprysing at the instance of Mark Carse and Adam Watt was the fourth comprysing, which did only import a Right of reversion; The first comprysing, whereupon Infeftment had followed, carrying the Right of property: It was duplied, that if it should appear that the former apprisings are either null or informal or satisfied, the fourth apprising would carry the Right of property, and consequently the Marriage.  
The Lords Found, that the Pursuer should accept the Disposition with the burden of the said relief: Or in his option should secure the Defenders by a Bond with a Cautioner, to relieve them.   

D. 44. Bowie contra Hamilton. 10. Novemb. 1666.  
HAmilton of Silvertounhill having Disponed to James Bowie certain Lands, whereto he had Right by Comprysing; and the said James being removed at the instance of a Wadsetter; and having Pursued upon the Warrandice contained in the Disposition; It was alleged by Silvertounhill, that though the Disposition did bear absolute Warrandice; yet by a Margin subscribed, it was restricted to warrant only the formality of the Comprysing, and the truth of the Debt, and the Executions. It was Answered, that the Warrandice being absolute in the Body of the Disposition, was indeed qualified by the Margin, that it should only be extended to the Warrandice of the Lands, in so far as concerns the apprising and Sums thereinmentioned (which are the words of the Margin) and that the said Warrandice imports that the Disponer should not warrant simply, but as to the Sums contained in the Comprysing; so that in case of eviction Silvertounhill should only refound the same; and the Pursuer was content to restrict the Warrandice to the Sums paid by him: It was urged, that there being Three kinds of Warrandice viz. Either absolute; or only that the Comprysing was formal, and the Debt just; or a restricted Warrandice to refound the price in case of eviction; the Last was Medium inter extrema, and most equitable; and in obscuris magis aequa interpretatio, est contra Disponentem facienda, qui potuit Legem apertius dicere: And if it had been intended, that he should warrant only the formality, and validity of the Comprysing, and reality of the Debt, it had been so expressed.  
Yet The Lords, by plurality of Voices, Found, that the Warrandice should be interpret, to warrant only the validity of the Comprysing, and the reality of the Debt: That being the most ordinary in Rights of Comprysing. Sinclar, alteri Harper.   

D. 45. Chain contra Christie. 15. Novemb. 1666.  
GEorge Chain Pursued Adjudication against David Christie of a Right of Annualrent, which pretained to James Christie the said David's Brother the Pursuer's Debtor. James Cheislie Writer compeared and alleged he had Right to the Lands (craved to be adjudged) by an expired Comprysing of the property of the same against the said David Christie, who had Right to the said's Lands; and that the said James his Right of Annualrent was null, being base, and never clad with Possession.  
The Lords Found, that the alledgance was not competent hoc loco against the Adjudication; and that the said debate would only be competent after the Adjudication, when he should pursue a poinding of the ground. The Lords Found the contrare before, in an Adjudication Pursued by Sornbeg contra the Lord Forrester, which practic was obtruded and not respected; Because the Lord Foresters Right in that Case was clear; And this the Lords thought hard, Forrester being content to dispute his Right, that a Right to his Lands should be established in the Person of another to trouble him. But it were fit our Practics were uniform: And it appears hard, that a Creditor who is a stranger, and has not the papers in his hands, and is not in a Capacity to pursue for them before he get a Title by Adjudication, should be forced to Dispute his Debtors Right. Newbyth Reporter.   

D. 46. Abercrombie contra eod. die.  
FOund, that a Pursuit upon an Assignation after the Summons execute; should not be Sustained, though the Cedent concurred; the Pursuit not being at his instance. Newbyth Reporter.   

D. 47. Kennedy contra Hamilton. eod. die.  
THe Lords Found a Comprysing upon a charge to enter Heir, null; Because the person, at whose instance the charge was, had no Right to the Debt the time of the Charge; the Assignation, whereby he had Right, being acquired thereafter; so that the Charge was Inanis, and without ground. Me referente.   

D. 48. Binning contra Farquhar. Eod. die.  
A Disposition being made by a Father in favours of a Son; And thereafter the same Lands being Disponed by the Son in favours of his Brother in Law: The said Rights were questioned by a Creditor, as being fraudulent; being Disponed by the Sons Contract of Marriage; which though Onerous, as to Provisions in favours of the Wife, is not so as to the Son, whom the Father could not advance, or provide in prejudice of the Creditors: But it was alleged, that the Disposition made by the Son, was for an Onerous Cause; and by the Act of Parliament, though a Right should be found fraudulent, yet a third party acquiring bona fide, by the Act of Parliament is secured; and his Right cannot be questioned, unless he be particeps fraudis, or acquire the same without an Onerous Cause, which by the Act of Parliament, is only probable Scripto vel Juramento.  
Yet the Lords inclined to reduce the Right granted by the Son, unless it were offered to be proven, that it was for an Onerous Cause; in respect of several presumptions alleged and informed by the Pursuer: And before Answer, as to the Relevancy ordained both Parties to condescend upon their presumptions hinc inde; of Fraud or the Cause Onerous for the granting of the said Right, and to prove the condescendence. I have ever thought, that the practice of the Lords to ordain Parties to prove before Answer, as it is late, is accompanied with many inconveniencies; seeing by such Acts, which are not of Litiscontestation, Processes are still keeped lose; and after that irregular way of probation, the debate of Relevaney is again resumed; to the great vexation, both of Parties, and Lords: and after the Lord's Interloquitor of Relevancy, there may be again Litiscontestation; So that upon the matter there are two Litiscontestations in one Cause. Newbyth Reporter.  
It being again debated, What the Certification should be in such Acts. viz. Whether the Alledgance should be holden as not proponed; or that the Lords should advise: Which in effect is no certification.  
The Lords were not clear to detetmine; which is a great Informality, and a pressing reason against that anomolous way.   

D. 49. Reid contra Tailzifer. 16. Novem. 1666.  
IN the case, William Reid contra Tailzifer and Salmond. It was Found, That a Testament is to be thought execute, so that, thereafter, there is no place to a non Executa, when a Decreet is recovered against the Debtors; though the Executor decease before he get payment: Because the Right of the Debt is fully established in his person by the Decreet; and he having done diligence, it ought not to be imputed to him, that the Debtor is in mora as to the payment of the Debt: And there being Jus quaesitum by a Decreet, and Execution having followed thereupon by Horning; after which Annualrent, though not due ex pacto, yet becometh due ex lege; or by Comprysing at the instance of the Executor, and Infeftment thereupon; It were absurd, that all these Rights should vanish; which would necessarily follow, if there were place to a non Executa:  the Decreets and Rights foresaid following thereupon, could not be transferred or settled in the person of the Executor ad non Executa; who doth represent the Defunct only, and not the Executor, at whose instance the Decreet is obtained and Execute.   

D. 50. Purves contra Blackwood. Eod. die.  
ADam Purves having pursued Reduction and Improbation of a Comprysing, and the Grounds and Warrants thereof, against Blackwood.  
The Lords, In respect the Comprysing was deduced Twenty four Years before, did refuse to grant Certification, against the Letters ad Executions; and against one of the Bonds being Registrate when the principal Bonds were given in to the Clerk Register to lie in publica custodia; In respect of the Troubles of the Time, and the loss and disorder of the Registers; and that the Extract was produced, and the Defender was content to abide at the Truth thereof. Hay Clerk, And Newbyth Reporter.   

D. 51. Govan contra Paip. 24. Novem. 1666.  
IN the case, Govan contra Paip, The Lords Found, That an Assignation not being intimated in the Cedents time (and consequently the Debt being in bonis Defuncti) ought to be confirmed: But the Lords in consideration that the Debt was small, Found Process at the Assigneys' instance, he finding Caution for the Quot effeirand thereto.   

D. 52. contra Miln. Eod. die.  
An Order being used for Redeeming a Wadset; the Executor Creditor of the Wadsetter pursued the person in whose hands the Consignation was made for payment of the Sum Consigned; And in the Process the user of the Order was called, and Decreet was obtained; but before it was Extracted he deceased; and there was debate upon the Oath of the Consignator. The Lords Found, That the user of the Order being a person having interest and called ab initio, nothing could be done until the Process was transferred against some person representing him.  
In the same Process, it was argued amongst the Lords, whether a Sum being consigned upon an Order of Redemption, the user of the Order may pass from it, and lift the Sum without consent of the Wadsetter? And it was remembered by some of the Lords, That upon an Instrument of Consignation Process was sustained at the instance of the Wadsetter against the Depositar, in whose hands the Sum due upon the Wadset was consigned, for making the Sum forthcoming. But in this case nothing was done.  
It appeareth, that after Consignation, Jus is Quaesitum to the Wadsetter; so that the Sum, being consigned and sequestrate to his behoof, cannot be uplifted without his consent.   

D. 53. Lesly contra Bain. 6. Decem. 1666.  
IN a pursuit to make forthcoming, after serious deliberation and debate amongst the Lords as in a case daily occurring, and wherein the Decision would be a preparative and practic,  
It was Found, That a pursuit to make forthcoming a Sum of Money due to a Debtor, is in effect Execution; and equivalent to a poinding:  Money being in nominibus, and not in specie, could not otherways be affected and poinded; and therefore could not follow, but upon a Decreet, and not upon a Bond not Registrate. 2. It was Found, that an Arrestment is but an Inchoat and incomplete Diligence: and notwithstanding thereof the Sum Arrested remaineth in bonis of the Debtor:  notwithstanding thereof, Goods belonging to a Debtor may be poinded: As also Arrestment being a Negative Diligence, whereby a Sum Arrested is secured, so that the Debtor cannot uplift; and the person, in whose hands the Arrestment is made, cannot pay or give away the same, in prejudice of the Arrester; and as in immobilibus, Inhibition doth not establish a Right in the person of the Creditor; unless he deduce a Comprysing; but doth affect the same, so that the Debtor cannot prejudge the Creditor, and his Diligence if he comprise: There is Eadem Ratio in Arrestments in mobilibus. Upon these Grounds it was Found, That the Debtor deceasing, the Sums Arrested being in ejus bonis, aught to be confirmed; and that the Creditor could not have Action against the person in whose hands the Arrestment was made; and the Appearand Heir of the Debtor called for his interest; but should confirm himself Executor Creditor.   

D. 54. Monteith contra E. Calender and Gloret. 7. Decem. 1666.  
THE Laird of Parkley Hamilton as principal, and Hamilton of Kinglassie and certain others his Friends as Cautioners, being Debtors in Two Bonds; Kinglassie, in consideration that Parkley had Disponed to him a Right of Wadset which he had to the Lands of Touch, by a Contract did oblige himself to satisfy and pay the Sums contained in the saids Bonds; and to procure Discharges from the Creditors to Parkley and his Cautioners: And nevertheless having paid the said Sums, he did not take Discharges but Assignations to the said's Bonds, which he filled up in the name of Sir Mungo Stirling of Gloret his own Creditor; who did thereupon Arrest a Sum due by the Earl of Calendar to Parkley: Thereafter Captain Monteith having Right to calendars Debt by Assignation from Parkley, obtained a Decreet against the Earl; which being Suspended upon double poinding, It was alleged for Gloret, that he ought to be preferred, in respect of his Assignation and Arrestment; whereunto it was Answered, that Kinglassie being obliged (as said is) to pay the said's Sums had paid them; and whereas he should have taken Discharges, he had taken an Assignation Blank in the Assigneys' Name, and had filled up Glorets' Name in the same; So that Assignation being procured by him, and lying by him, and he being Master of it, it was in effect his; and he was in the same case, as if the Assignation had been granted to himself, and he had made a Translation to Gloret; in which the Exception upon the obligement foresaid to relieve Parkley; as it would have been competent against Kinglassie, would have secluded also Gloret his Assigney by Translation: In this Process Gloret his Oath being taken; and he having declared, that the Assignation was procured by Kinglassie; and by him delivered to Gloret, and that he paid nothing to the Cedent, but that the Assignation was given to him by Kinglassie, that he might be satisfied of certain Sums due to him be Kinglassie, which he was to Discharge if he recovered payment, by virtue of the said Assignation.  
The Lords upon a Debate in praesentia, preferred Monteith; and found the Exception, which was competent against Kinglassie, if the Assignation had been to him and transferred by him to Gloret, is competent against Gloret; and that he is in the same case, as if he had Right by Translation from Kinglassie. This is most just, and founded upon Law and Equity, seeing otherways Fraud cannot be obviate; And, in Law plus valet quod agitur, quam quod simulate concipitur aut exprimitur: And, Fictione brevis manus, Though it appear that it is but one Act, viz. The Assignation made to Gloret; yet in construction of Law, there is two Acts, viz. The granting the Assignation blank to Kinglassie, which in the interim before it was delivered to Gloret was his evident; and an Assignation immediately made to himself, and thereafter the filling up Glorets' Name, and the delivery of the Assignation to him, which upon the matter is a Translation. Spotswood for Monteith. Lockheart, Cuninghame, Maxwell, and Weir for Gloret.   

D. 55. Mckenzie contra Fairholm. Eod. die.  
SIR George Mckenzie having intented Declarator and Reduction of a Bond Subscribed by him as Cautioner for his Father; Ex eo capite; that it was null ipso jure; in respect he was Minor for the time, and his Father was loco Curatoris to him, and had not Authorized him, at least could not be Author to him in rem suam: It was alleged, that he had not intented Reduction within the quadriennium utile: And as to the Declarator of Nullity, the reason was not Relevant, In regard Bonds granted by Minors, having Curators, without their consent are Null; they being interdicted eo ipso that they do choice Curators, that they do nothing without them; But Bonds granted or other Deeds done by Minors wanting Curators, are not Null in Law; but the Minors lesed by the same may crave to be Reponed Debito tempore by way of Reduction: And that the Father, though he be Tutor in Law for the Children being Pupils, he is not Curator being puberes and of that Age that they may choice their their own Curators.  
The Lords notwithstanding Found the Reason relevant; and declared the Bond Null as to the Pursuer: Quibusdam refragantibus, inter quos Ego; upon these Grounds, that there is a great difference betwixt Tutors and Curators, Pupils, and Puberes, the Father having by the Law power to name Tutors, and consequently being Tutor of Law himself, and having that Authority which may be derived, and given by him to others; whereas he has no power to name Curators to his Children, when they are of that Age that they may choice themselves: And though he should name Curators in a Testament, his Nomination could not bind his Children. And 2. If Children being Puberes should choice any other persons to be their Curators, they would exclude and be preferred in that Office to the Father; Whereas habenti Curatorem Curator non datur. 3. If a Child should have an Estate aliunde, and the Father (his Son being pubes) should cessare and be negligent in the Administration of his Estate, there could be no Action against him for his omission; which might be competent against him and his Heirs if he were Curator. Gibson Clerk, Sinclair for Fairholme, the Defender; Wedderburn and Lockheart for the Pursuer.   

D. 56. Vrquhart contra Frazer. Eod. die.  
A Wadset being granted by Sir Thomas Vrquhart Elder and Younger of the Lands of Brae to Sir James Frazer, for 24000 Marks; and the Granters of the Wadset, being obliged to warrant the Rental (besides Custumes) to be Twenty Chalders of Ross bear; and to furnish Tenants, and to cause them pay the said Duty; and for each Boll undelivered Ten Marks: Sir Alexander Vrquhart of Cromarty, Donatar to the Escheat of the said Sir Thomas Elder and Younger, pursues the Heir and Executor of the Wadsetter, for the superplus of the Rent of the said Lands, exceeding the Rent of the foresaid Sum for divers Years; In respect the Contract was usurary: It was alleged, by the Act of Parliament 247. Anno 1597. The Creditor cannot pursue for the superplus of the Annualrent but by way of Reduction of the usurary Bond, or Contract, with Concourse of his Majesty's Advocate. It was Replied, That Rei persecutoriâ he had interest to pursue for what was indebite paid.  
The Lords Found, That the Process could not be sustained, without concourse of His Majesty's Advocate; The Act of Parliament being express, that the Creditor cannot repeat the excrescence above the Annualrent; unless he concur with the Advocate to reduce: which appeareth to be provided, of purpose to oblige the Creditor to inform and concur with the Advocate, for reduceing so unlawful pactions.   

D. 57 Vrquhart contra Cheyne. Decemb. 8. 1666.  
SIR Thomas Vrquhart of Cromarty having disponed to Mr. William Lumisden a Tenement of Land and Salmond-fishing, for Surety of 4000 Marks borrowed from Lumisden; the abovementioned Sir Alexander Vrquhart having Right by Comprysing to the said's Lands and Fishing, and reversion of the said Wadset; pursued a Compt and Reckoning against Walter Cheyne having Right to the said Wadset, and to hear and see it Found, that the Sum due upon the Wadset was satisfied and paid by the said Walter and his Author's Intromissions: It was alleged, that the Wadset being a proper Wadset without a Back-tack, the Defender was not Liable to Compt; and though he were, he was not Liable to Compt but since the date of the Right, and for his own Intromission. It was Replied that it was a Right granted for security, and that by the Contract of Wadset and the Eik to the Reversion thereafter, the Right was redeemable upon payment of the principal and Annualrents that should be unsatisfied; whereas in proper Wadsets, there is an Antichresis, and the Rents of the Land belongs to the Wadsetter in lieu of the Annualrents, whereto the Debtor is not Liable.  
The Lords Found, That though the Right was not clear and express, that the Wadsetter should have Right for surety, and until he be satisfied by Intromission or otherways; yet the Reversion being in the Terms foresaid, it was Actum, and intended that the said Wadset should not be a proper Wadset, but only for surety as said is.   

D. 58. E. Cassils' contra Whitefoord. Eod. die.  
THe Lands of Damertoun being a part of the Barony of Cassils' and formerly holden Ward by the Lairds of Blairquhan Kennedies, of the Earl of Cassils'; and now being in Ward through the Minority of the present Heritor, who had Succeeded in the Right of the said's Lands being acquired from the Laird of Blairquhan. The Tenants of the said's Lands Pursued a multiple poinding against the E. of Cassils' and Whitefoord now of Blarquhan, and the Heretor of Dalmertoun; all pretending Right to the multures of the said's Lands. The E. of Cassils' alleged, that during the Ward they should bring their Corns to his Miln of the Barony of Cassils', there being no Milns upon the Lands of Dalmertoun. The Laird of Blarquhan alleged, that he was infeft in the Lands of Blarquhan and in the Miln of Dalhovan, upon a Right granted by Kennedy of Blarquhan cum astrictis multuris & usitatis; at such a time as Blarquhan had Right to Blarquhan and Dalhovan and to the Lands of Damertoun: And that before the said Right granted by Kennedy of Blarquhan to John Whitefoord of Ballach Author to this Laird of Blarquhan, the Tenants of Damertoun were in use to come to the said Miln, and to pay the like multure and service as the Tenants of Blarquhan did; and since the Right, have been in use to come constantly to the said Miln. It was Answered for Cassils', that unless there were an express Constitution of Thirlage, the said Lands of Dalmertoun (being a distinct Tenement from the Lands of Blarquhan, which hold of the King) cannot be alleged to be astricted to the said Miln of Blarquhan: And if it had been intended that the Lands of Dalmertoun should have been astricted, It would have been expressed: And when the same did belong to Kennedy of Blarquhan, it cannot be said that it was astricted to his own Miln with the foresaid Servitude, quia res sua nemini servit; and he having Disponed his Miln, it cannot be presumed that he would have Burdened his own Lands with a Servitude: And though it were clear Kennedy had astricted the said's Lands of Dalmertoun, yet he could not Constitute a Servitude without the Superiors consent in his prejudice, when the Lands should Ward in his hands. It was replied by Whiteford of Blairquhan, that the Superior had consented to the Thirlage, in so far as John Gilmor and one Bonar, having Comprysed the said's Lands of Dalmertoun from Kennedy of Blarquhan, and having Assigned their said Comprysing to John Whitefoord; the said Whitefoord by Contract did Assign the same to Kilkeren, with a Reservation of the multures thereof to the Miln of Dalhovan: And the said E. had granted a Charter to Kilkerens upon the foresaid Right.  
The Lords thought, That these Words Cum multuris usitatis, do relate only to the quantity of the multures as to such Lands, as can be shown to be astricted: But before Answer to the Debate upon the said Charter and Reservation, They ordained the Charter and Contract containing the Reservation to be produced, That they might consider, Whether it be in the Charter, and how it is conceived; and what it should operate if it were only in the Contract.  
The Lords inclined to think that a clear Reservation, though there were not a preceding Thirlage, should import a Constitution, as to these who accept or consent to such a Reservation.   

D. 59 Leslie contra Leslie. eod. die.  
PAtrick Leslie of Balquhoyn pursued a general Declarator of the Single and Liferent Escheat of John Leslie of Balquhoyn, against James Leslie and his Spouse as nearest of Kin to the said John. It was Alleged, that the Horning was prescribed, the Declarator being raised forty years after the Horning. It was Replied, That though Prescription should run against the King (which was denied) yet in this case it could not; The King being Minor the time of the Prescription divers years, and the Government being interrupted; So that there was not Tempus utile during the Usurpation: And the King is not in use to dispose of Escheats, until application be made to his Majesty: And by the Act of Parliament, it is provided, that the negligence of his Officers should not prejudge him.  
The Lords Found, That the Horning did not prescribe, in respect of the King's Minority, and Interruption foresaid.  
It may be asked, If that reply of his majesty's Minority and Interruption, were not competent? And if the Escheat were gifted by a Lord of Regality, or a Superior, Quid Juris? And it seemeth, that a Horning being poena, and once execute, it doth not prescribe;  the Rebel, if he should survive forty years, his Liferent would fall to the Superior; and there is no reason that he should Lucrari, and be in better case ex culpa, and by the continuance of his Rebellion for so long a time.   

D. 60. Hume contra Creditors of Kello. 12. Decemb. 1666.  
IN a Process betwixt Harry Hume, and the Donator of the Forefaulture of John Hume of Kello, and certain others his Creditors; It was Found, That a Comprising being deduced before January 1652, and being the first effectual Comprysing, aught to be preferred to the posterior comprisings; so that they should not come in together pari passu: In respect though they were within year and day of the completing, and the making effectual the first Comprysing by Infeftment or Diligence, yet they were not within year and day of the deduceing the said Comprysing: and the said Comprysing being before the year 1652. doth not fall under the compass of the Act of Parliament concerning Debtor and Creditor; which bringeth in pari passu comprisings led since January 1652; and being Correctoria Juris Communis, ought not to be extended.   

D. 61. Thomson contra Stevenson. eod. die.  
IN a Reduction of a Right and Disposition of certain Houses; being pursued ex capite minoris aetatis; It was alleged that the Disposition did bear 500 marks, to be paid, and the Defender was content to quite the right being paid of the Sum.  
It was Found, That the Alledgance was not relevant, unless he should offer to prove it really paid, and profitably employed for the use of the Minor.  
In this Process the Lords would not sustain the Reason per se, unless Lesion were joined and libelled, viz. That the Lands were disponed sine Decreto Judicis.   

D. 62. Shaw contra 13. Decemb. 1666.  
SHaw being confirmed Executor to his Brother a Factor at London; and divers Decreets being recovered against him, at the instance of the Defuncts Creditors; He desired a Suspension upon that Reason, That he had done Diligence to recover the Defuncts Debts and Goods; and that he could not satisfy the Decreets obtained against him, until he should recover the Defuncts Estate: and that he was content it should be divided amongst the Defuncts Creditors, according to their Diligences; and therefore craved a Suspension without Caution; being content to make Faith that he could not get a Cautioner.  
The Lords past a Suspension as to personal Execution only.   

D. 63. Hamilton contra Brown. 15. Decemb. 1666.  
HAmilton of Grange being pursued as representing his Father, upon the Title of Behaving and Gerens pro Haerede, for payment of a Debt of his Fathers: It was alleged, that this Condescendence, viz. That he had behaved as Heir, in sua far as he had granted Dispositions of Land belonging to his Father. And 2ly. That he had consented as appearand Heir to some Right of Lands apprised from his Father, Is not relevant; unless it were said and alleged, that he had done these Deeds before the expyring of the Comprysing; seeing he could have no Right after the expyring of the same; and neither could be Heir, nor Gerens pro Haerede as to such Lands: And as to his consent, it was not sufficient unless he had disponed.  
The Lords inclined to be of this Judgement, That his consent being as appearand Heir, should import Behaviour; and that though the comprisings were expired, he might have an interest to question the same, as not formal or Null, or satisfied by Intromission, or by some other Ground: and that by his consent he was denuded of that Interest; and therefore such Dispositions should import Behaving: Yet in respect the Writes which were to be used to prove the Passive Title were not produced, and much may depend upon the wording and conception of the same. The Lords thought fit to ordain before Answer, the Writes to be produced, and assigned a Term to that effect: But declared, that their Act should be Litiscontestation quoad hoc, That the Pursuer, after the Term is run upon the said Act, should not get others, as if there were not Litiscontestation, Lockhart for Grange, and Birnie for the Pursuer.   

D. 64. Hartshaw contra Hartwoodburn. eod. die.  
SCot of Hartshaw pursued a Declarator of Property within the Bounds libelled, and that he had been in Possession by pasturing, and doing other Deeds of Property, and debaring the Defender Hartwoodburn and his Predecessor: In this Process there was an Act of Litiscontestation; whereof a Reduction was intented, upon that Ground, that the Defender was absent, and was Minor and indefensus, wanting Tutors and Curators for the time, his Tutor being dead: and that he had a defence Minor non tenetur placitare.  
The Lords Found, If the Summons had concluded the possessory of Molestation: And if that had been libeled, that the Pursuer, the time of the intenting the Pursuit, was in Possession; would have repelled the Defence (that non Tenetur) against the molestation: But because a Declarator of Right was only libeled, they reponed the Minor; And Found that non tenetur placitare. Longformacus for Hartwoodburn, and Sir George McKenze for Hartshaw.   

D. 65. L. Colvil contra Fevars of Culross. eod. die.  
THe Lord Colvil being bailie of the Regality of Culross, and liable to uplift the Taxation of that Abbacy; And having charged certain of the Vassals to pay their Taxation; They suspended upon that Reason, That a fifth Part more than the Taxation was stented upon them, on pretence, and in consideration of Charges.  
The Lords Found, That they could not be stented to more than the Taxation; though the Sheriff and Bailies of Regality be liable to uplift the Taxation.  
Yet it seems hard, that they should be at the Charges of raising of Letters, and Registration of Hornings, and such like: And albeit the Vassals, who are content to pay their Proportion, should not be liable to more; yet it may appear, that it is reason, that when the Sheriffs or Bailies give in what they have uplifted, their Charges should be allowed.   

D. 66. Hay contra Littlejohn. 16. Deeemb. 1666.  
LIttlejohn having comprised the Liferent Right of a Tenement in Leith; the said Tenement became ruinous; and by the fall of a part of it, did crush a part of the next house adjoining to it, belonging to _____ Hay of Knockondie. In a Pursuit Knockondie against Littlejohn, for Damnage and Interest.  
The Lords sustained Process; The Pursuer proving that the House was manifestly ruinous; without necessity to lybel or reply that the Pursuer had required the Defender to repair his House: It being sufficient that the case of the House was such as did really require and call for Reparation, in order to his own Interest, and for preventing his Neighbours: So that it being his Fault, that he did not repair the same, he was liable to refound the Pursuers Damnage: And albeit by the Act of Parliament, Liferenters may be urged to find Caution to keep their Liferent Lands Sarta tecta, and in the condition they found them at their Entry: And by the Civil Law, Neighbours may be urged to find Caution Damni infecti: the said Remedies are not privative, in case any Prejudice be done before they be taken.   

D. 67. Allan contra Campbel. eod. die.  
EDinample Campbel being pursued as representing his Father, upon the Title of behaving as Heir: It was alleged, that he intrometted with the Duties of the Lands condescended upon, by a Right to two comprisings against his Father: It was replied, The comprisings were not expired the time of his Father's Decease, so that in effect he was Heretor.  
The Lords Found, That Gestio being magis animi quam facti; The Defenders Intromission by virtue of a Title, did not infer Behaving.   

D. 68 Menʒies contra Burnet. Decem. 18. 1666.  
A Relict being provided to the Liferent of the conquest dureing the Marriage, and pursueing for the same; It was alleged, that the Money in question, which the pursuer pretended to be conquest dureing the Marriage, did belong to the Defunct before the Marriage; and that the Bond was renewed after it: The Question was, what way the said Alledgance, tending to take from the Pursuer the benefit introduced in her favours by Write, and by her Contract of Marriage, could be proven? Yet the Lords inclined to find it probable by the Debtor, and the Witnesses in the Bond; But before Answer, They Ordained the Defender to use such Probation as he thought fit, for proving the Alledgance; Reserving to themselves to determine what it should import.   

D. 69. contra 18. Decem. 1666.  
IN a Process against an Heir of Provision: It was Alleged, that the Heir of Line ought to be first discussed: It was Replied that the Heir of Line was convened and Renounced: And it being duplied, That the Estate belonging to the Heir of Line, and whereto he should have Right if he were served Heir, aught to be discussed.  
The Lords Found, No Process against the Heir of Provision, until the Heir of Line was discussed; and that the Renounciation of the Heir of Line was not sufficient; but that the Creditor behoved to proceed to Adjudication contra haereditatem Jacentem, belonging to the Heir of Line.   

D. 70. Deacon of the Weavers contra the Magistrates of Edinburgh. 1. June. 1667.  
THE Deacon of the Weavers being imprisoned by the Magistrates of Edinburgh, because he had disobeyed their Order, anent the putting in their Hand a Box for the Poor of the Journeymen; until some Questions betwixt the Masters of the Trade and the Journeymen of the same should be decided; did crave by a Bill to be enlarged, upon that reason, that the Craft had intented a Reduction of the Contract betwixt their Predecessors and their Journeymen, concerning the keeping and having a Box for the Poor of the Journeymen: And that until the Decision of the Process, the Box ought to be keeped by their Deacon.  
The Lords Ordained the Complainer to be enlarged, by Consigning the Box in the Clerks Hands. Upon occasion of the said Process, it was agitated amongst the Lords, Whether there could be a Contract and Transaction betwixt the Craft and Journeymen, who are not an Incorporation, and cannot oblige their Successors? Seeing there can be no Successors but of a Person or Incorporation: But the Lords, without giving Interloquitor upon that point, Ordained the Reduction to be heard summarily. Gibson Clerk. Mckenzie altar Lockheart.   

D. 71. Young contra Young. 4. June. 1667.  
IN the case Young contra Young; It was agitated, Whether a Husband be Liable for his Wife's Debt before the Marriage, being proven no otherways but by her Oath dureing the Marriage: If the Husband declare he does not distrust her, and believeth she hath declared Truth.  
The Lords did not decide the point; but some were of the opinion, That if the Husband Declare upon Oath, that he believeth she did Declare Truth, he will be Liable; in respect that by the Law, the Husband is Liable for the Wife's Debt being Legally proven: And the Question is only, whether the Wife may declare in prejudice of her Husband; which she cannot do, because otherways it may be in the power of an untoward Wife to undo her Husband: which inconveniency ceaseth when the Husband declareth, he hath no reason to distrust the Wife, and that he believeth she hath told Truth: The great Question will be, Whether the Husband may be urged to give such an Oath of Credulity?  whatever a Husband thought, yet having an Imperious Woman, he should be forced to comply with her, and to declare that he believeth her, otherways he would have a miserable Life. Scot Clerk.   

D. 72. Thomson contra Stevenson. Eod. die.  
IN the case Thomson contra Stevenson, The Lords Found, that the Extract out of the Kirk-Session Books, is not a sufficient Probation of Age to infer Reduction Ex capite minoritatis: But the case being difficilis probationis after a considerable time; They Found, that aliqualis probatio ought to be received, with the Adminicle foresaid. Norvel. alt. Wallace, Hamilton Clerk.   

D. 73. Zinzian contra Kinloch. Eod. die.  
ZInzian having poinded; pursued a Spuilyie against Kinloch, having meddled with some of the poinded Goods: The time of the adviseing the Cause, the Defender offered to improve the Poinding in data. The Lords Repelled the Defence in hoc statu, Reserving Action: In respect the Poinding was produced ab initio; notwithstanding it was alleged, that the Defence was noviter veniens ad notitiam; which the Lords did not respect; because the Poinding being produced ab initio (as said is) The Defender should have tried and might have had the same Information, which he has now of the same: In the same Process, though the prices of the Goods Spuilyied were not proven, because it is to be presumed that the prices contained in Poinding are not too high; And the Lords having considered the poinding, Found the prices low. Haystoun Clerk.   

D. 74. Mitchel contra Mitchel. 12. June. 1667.  
THE Lords upon a Bill ordained Witnesses to be received before Litiscontestation; and their Depositions to lie in Retentis; Because they were in Town for the present; and were to go to Zetland and senes valetudinarii and peregre profecturi: And upon such like considerations, others may be received Witnesses in hoc statu. Scot Clerk.   

D. 75. Lumisden contra Summer. Eod. die.  
IN a Declarator of Escheat, it was alleged, that the Goods libeled were Disponed to the Defender: It was Answered, that the Disposition was stante Rebellione: It was Replied, That in Fortification of the Disposition, it was offered to be proven, that the Disposition was made for the price of Corn, and Straw, and other Goods disponed to the Rebel; and whereby His Majesty, and his Donator had benefit; in respect the same was employed for the Entertainment of the Beasts, and Sowing the Ground, whereof the Increase fell under Escheat.  
The Lords Repelled the Defence: And Found that the Rebel being Liable only personally, for the price of the Goods alleged Disponed; and the property of the Goods in Question being his; the same belonged to the King: And the King and his Donator was not obliged to debate upon what account and occasion the Rebel was Debtor to the Defender: Or what use he made of the Goods Disponed to him by the Excipient, And is in no worse case than a Creditor poinding, or Arresting; or any other person acquiring Right to the property of Goods; who would be preferred notwithstanding such pretences; there being no such Hypotheck that can be pretended by the Law of Scotland. Divers instances were adduced by me to this purpose; not only in behalf of the King, but of other Superiors and Heretors, as V G. If a Superior should pursue Declarator of a Liferent, and it should be alleged that after Rebellion the Rebel had Disponed a part of his Lands; And that it should be offered to be proven, that the Money for which the Disposition was given, was lent, for acquiring the Right of the Lands; So that thereby the Superior had benefit thereby: Or if the Master were pursueing by virtue of the legal and  Hypotheck competent to him, and it should be alleged that the Tenant was Debtor to another, for the price of Corns furnished for Sowing the Ground; In which cases the Superior and Master could not be frustrate upon any such pretences. Birnie, altar Thoirs & Frazer, Hamilton Clerk.   

D. 76. Dalrymple contra Eod. die.  
A Reduction of a Testament being pursued, Ex eo capite, that the Defunct was fatuus & incompos mentis: And the Relevancy being questioned; because no Act or Circumstance, or qualification was Libelled, inferring the Defunct to be in that condition.  
The Lords Ordained the Pursuer to condescend. Wallace alt. Hog.   

D. 77. Harroway contra Haitly. 14. June. 1667.  
JAnet Harroway pursued the Heirs of Alexander Haitly her Husband, to hear and see the Tenor of her Contract of Marriage with her said Husband proven, being lost, as was pretended, the time of the Troubles: It was alleged, that no Adminicle in Write was libeled or produced; And whereas it was libeled, that John Nicol was employed as Writer for drawing of the Contract, the double of it was insert and extant in his Servants Stile-Book; The said Stile-Book being neither a Writ under the Defuncts hand, nor a Minute nor a Record Extant in any Register, could not be sustained as any Adminicle.  
The Lords, Albeit it was offered to be proven by the persons alleged to be Writer and Witnesses to the Contract; that it was subscribed, and of the Tenor libeled, and other probabilities were urged; Yet they did not sustain the Summons without an Adminicle, upon that consideration in special, that our Law, ob Lubricam fidem of ordinary Witnesses, against whom there is possible no legal exception, deferring so little to their Testimony, That Transactions, Agreements, or Promises above the value of 100 pounds cannot be proven by Witnesses; If such pursuites should be sustained, without Adminicles of Writ; Contracts of greatest importance might be made up, and proven by Witnesses; It was remembered by some of the Lords, that in the Process, Corsar contra Durie, The Lords were so tender, that upon a contentious debate, a Season was found not to be an Adminicle.   

D. 78. Antrobus contra Anderson. Eod. die.  
GEorge Antrobus Englishman, pursues William Anderson Provost of Glasgow for 234 lib. 13. shillings Sterling, due by John Herbertson, sometimes bailie of Glasgow; upon that ground, that being charged to take the Debtor upon Letters of Caption, he had refused to concur with the Messenger: It was alleged, that the Defender was not in sight of the Rebel; and though it be pretended, that it was shown to the Defender, that the Rebel was in the same House, in another Room for the time, yet the Defender being chief Magistrate and Provost of the Town, he was not obliged to go himself to seek the Rebel; and it was sufficient he was willing to send his Officers; and did send them to that effect: Especially it being considered, that the Provost was charged about Nine of the Clock under Night; and the Army having come that same Night to Glasgow, he was the very time that the Messenger charged, with the Quartermaster, and other Officers, about the business of quartering the Forces: All which amounteth to a Relevant Defence to free the Defender of an odious pursuit; the pursuer having no prejudice; in respect the Rebel was, and is notourly Bankrupt, and was imprisoned a few days after, and continued a long time Prisoner in Glasgow.  
The Lords Found the Alledgance Relevant.  
The Lords are in use to sustain such Actions in subsidium against Magistrates for payment of the Debt, when they suffer the Debtor to escape out of Prison; But when a Magistrate is charged with Letters of Caption, bearing no Certification, but Horning, it appears hard to me, that the Law having defined and prescribed the pain and certification, that the Lords should sustain any other penal Action without the warrant of an Act of Parliament; And that the Magistrates for a Culpa or neglect, should be Liable to the whole Debt, which may be a great Sum. If the Action be considered, not as a penal Action, but for Damnage and Interest, it should be only sustained, in so far as the Creditor is prejudged; so that the Debt being either recoverable, and the Debtor in also good case as before, or being Bankrupt the time of the Charge, the Magistrates may be denounced upon the Caption, or censured for their Contempt, but ought not to be Liable for the Debt in solidum. Scot Clerk.   

D. 79. Davidson contra the Town of Inverness. Eod. die.  
THere being a Decreet of the Dean of Gilled of Innerness against an Unfreeman, Unlawing him in Three Hundred Pounds, for Trading: and a Suspension and Reduction being raised of the same, upon that reason. viz. That the Suspender dwelled without the Towns Jurisdiction: And that by the Acts of Parliament, Unfree-Traders may be charged to desist, and to find Caution to that effect; But the Town or Dean of Gilled cannot proceed to process or unlaw them; there being no such Act of Parliament to warrant it; but only to Charge (as said is) and to confiscate the Goods.   

D. 80. Forbes contra Blair. Eod. die.  
DOctor Forbes and his Spouse, having recovered a Decreet against David Edgar; The said David did grant a Disposition in favours of his Mother; whereof the Doctor and his Spouse did intent Improbation and Reduction; and after long dependence, Certification was granted and Extracted; But the Defender having given in a Bill, craved to be Reponed, pretending that the Certification was granted in Winter, when the Defender being an Aged Woman, and attending one of her Children being Distracted, could not come in the time of a Storm; and within five or six days after the Certification was granted, she came and produced the Disposition;  
The Lords before Answer, whether they would repone against the Certification, Ordained them to dispute upon the Reasons of Reduction. viz. That the Disposition was inter conjunctas personas, without an Onerous Cause; and that the Condescendence was not relevant, viz. That the Disponer had granted Bond for Aliment and Entertainment of him and the other Children to his Mother, and for her Terce; In respect the said Pretences were only patched up to colour the said fraudulent Disposition: And that the said Disponer, pendente lite and after Sentence, could not in prejudice of the Pursuer give a Bond, to be the ground of the said Disposition; But if there were any ground of the said pretended Debts, the Defender should have recovered Decreet for the same: and though the Debt were without question, the common Debtor, contrare to the Act of Parliament, could not make a voluntar Disposition, in prejudice of the Pursuers Diligence; to gratify and prefer another Creditor. It was Answered, That by the Act of Parliament, the Reason, (viz. That the Right was granted without an Onerous Cause) is only probable Scripto vel Juramento: and that the Disponer not being inhibited, the Defender might lawfully sibi vigilare, and take a Right for a just Debt: And by the Act of Parliament, the Diligence, that disableth a Debtor to give, and a Creditor to take a voluntar Right, is not a Dependence or a Decreet, but Inhibitions and Hornings, which are so public, that the lieges may and aught to take notice of them.  
The Lords were tender to repone against the Certification: and yet they thought not good to take away the Disposition upon the Certification; seeing the Write was produced, and not suspected nor questioned to be false; and the Defender did excuse and purge her negligence (as said is:) and the Disposition being in her favours, who was sub potestate Mariti, and should be defended by him, having herself in Law neither velle nor nolle, his negligence should not undo her: And therefore the Lords having considered also the Difficulties in the Debate, upon the Reason, they reduced the Disposition in manner aftermentioned, by reserving to the Defender to pursue for the said pretended Debts: and declared, that if she recovered Decreet, (the Pursuer always being called, that there be no collusion) the Defender shall come in pari passu with the Pursuer: and that the Disposition shall stand to that effect only: Both the Parties acquiesced to the Decision.   

D. 81. Cheap contra Philp. eod. die.  
MR. Cheap pursued a Reduction of a Disposition made by _____ Philp, in favours of Mr. John Philp, upon these Reasons; That it was subscribed by two Notars, and their Subscriptions did not bear de Mandato; and because one of the Notars was known to be of so great Age, that he had not been for a long time employed as a Notar, and that he had only subscribed his Name; The rest of the Solemn Words used by Notars when they subscribe in subsidium, being written by the other Notar; Therefore another Notar had been also used, besides the two Notars; And that no respect ought to be given to his Subscription, by reason it was ex Intervallo, and not uno contextu. 2. That the Disposition was in lecto.  
The Lords, When the case was reported, debated upon the first Reason, and in special upon these Points. 1. Whether in Subscriptions in subsidium by Notars, it be essential it should be expressed, That they subscribed ex mandato; and if that solemnity may be supplied, by offering to prove that the Notars were Rogati: It was urged, that Minute's and Abbreviations of Seasins might be extended and transumed, though none of the ordinary Solemnities be expressed, and therefore such Defects and Omissions may be supplied: It was Answered, That in Abbreviations, Omnia praesumuntur solenniter acta; But when an Instrument is complete, or any other Writ, if it want the Ordinary Solemnities, they cannot be supplied; & solennitas non praesumitur; And being only probable by the Writ itself, it cannot be made up by Witnesses. 2. It was debated, Whether a Father or Grandfather could be Notar, in a Write or Right in favours of the Son or Grandchild.  
The Lords did demur upon these Points, and thought fit, that before Answer as to these, the Reason founded on Lecto should be discussed.   

D. 82. Watt contra Halyburton. eod. die.  
JAmes Halyburton being infeft upon a Comprysing, in some Acres in Dirleton, did grant a Disposition of the same to Adam Watt, whereby he was obliged to infeft him by two Infeftments; whereupon the said Adam Watt his Son, having Right by Assignation from his Father, pursued William Halyburton as Heir to the Disponer, for implement and obtaining himself infeft, and thereafter to infeft the Pursuer: It was Answered, That the Disposition was in the hands of Adam Watt by the space of twenty years, and that he had made no use thereof: and that the Defenders Father had done all that he could, for denuding himself of the said Right, the said Disposition bearing a procuratory of Resignation: and that the Lands holding Ward, if the Defender should enter, his Ward and Marriage would fall; so that unless the Pursuer would warrant him as to that hazard, he cannot be obliged to infeft himself.  
The Lords discerned, reserving Action to the Defender for Damnage and Interest as accords.   

D. 83. Key contra Fleming. 15. June 1667.  
GEorge Fleming, having an Infeftment of Annualrent out of the Lands of Cambo, and thereafter having comprysed for his Principal Sum: It was Found, in a double Poinding and Competition betwixt the said George and Gilbert Key another Creditor of Cambo, that the said Gilbert should be preferred; in respect of the said Gilbert his Infeftment in an Annualrent: That Decreet being suspended, Fleming craved to be preferred, in respect his Right of Annualrent was before Key's Right: It was Answered, That this Infeftment was extinct and taken away by the Comprysing; and that he could not now have recourse to it, after a Decreet of Preference in foro contradictorio: It was Replied, That Decreets of double poinding preclude as to bygones; but as to the future, all are qualified, for any thing that was then seen.  
The Lords were clear, that notwithstanding of the Comprysing, he might have recourse to his former Right: But the great Question was, Whether Decreets of Poinding the Ground, against a Party compearing, did include him, so that he could not be heard against Competent and Omitted? which the Lords did not decide; but recommended to the Reporter to settle the Parties. Gibson Clerk.   

D. 84. Home contra the Countess of Murray. 18. June. 1667.  
JAmes Home of Beaprie having Assigned to the Countess of Murray the Gift of Escheat of Sir John Kininmouth, and certain Debts due by the said Sir John; The Lady, by her Bond, granted that she had got the said Right, and obliged herself either to make payment to the said James of the foresaid Sums, or to Repone him to his own place: The Lady being pursued upon the said Bond, alleged that it was null, being granted by her during her Marriage without her Husband's consent: It was Answered, that the desire of the Summons was alternative; either to pay or Repone the Pursuer; Et deceptis non decipientibus succuritur. The Lords having debated amongst themselves upon the reason of the Law annulling Deeds, stante Matrimonio done by Wives; and some argued, that Women Married are not in the condition of Pupils who have not judicium, nor Minors who have not Judicium firmum; and that they are Liable Ex delicto vel quasi, and ex dolo. The Lords, before Answer to the Debate, whether her Assertion in the Bond, viz. That she had received the Writs mentioned in the same, should be Obligatory, at least so far as to Repone the Pursuer; They Ordained her to be Examined anent the cause of granting the Bond. Gibson Clerk.   

D. 85. Johnstoun contra Cuninghame. 19 June. 1667.  
A Bond being granted to a Husband and his Wife, and the Heirs of the Marriage; which failyiening their Heirs; was Found to pertain to the Husband after the Death of the Wife in solidum: And that these words (their Heirs) ought to be understood Civiliter of the Heirs of the Husband, as being persona dignior.   

D. 86. Watson of Dunnykier contra his Vassals. 21. June. 1667  
THE said Watson having Feved certain Crofts; with a servitude in his Muir of Path-head to Winn Divots and Day, for Building and Repairing the Houses Built, and to be Built by the Vassals; pursued Declarator that it should be lawful to him to improve the Muir, leaving also much as would be sufficient for the use foresaid: It was Alleged, that the Servitude did affect the hail Muir; and that their Right flowing from himself could not be restrained; & sibi imputet who did grant it in the Terms of the said Latitude.  
The Lords considering that it was intended that the said Servitude should only be for the end foresaid, and it would be a prejudice both to the public interest which is concerned, that the Country should be improven, and waste unprofitable Grounds Laboured; and to the pursuer also; without the least advantage to the Defenders: They therefore Ordained also much Ground to be set apart, as might more nor sufficiently serve for the use foresaid; and allowed the pursuer to labour and improve the rest, without prejudice to the Defenders to make use even of the rest dureing the time it continueth in the present condition and not laboured; And it case it should happen upon any occasion, that what should be set apart for the Fevers use foresaid, should prove short and not sufficient for that use, they reserved Liberty to them, to have recourse to the residue; and granted visitation to the effect foresaid. In praesentia, Lockheart and Cheap alter McKenzie.   

D. 87. Hay of Stravan contra Oliphant. 22. June. 1667.  
IT was Found, That a Miln-dam could not be drawn from one side of a Burn to another, without a Servitude or consent of the Heretor having Lands on the other side; and that the Heretor is not obliged to debate, whether he had prejudice or not; The Lands on the other side being hisand the Burn medio-tenus. 2. It was also Found, that he might lawfully demolish the Dam; unless it were alleged, that the Miln had gone the space of Forty eight Hours; So that it might have come to his knowledge that it was a going Miln. Haystoun Clerk.   

D. 88 L. Blantyre contra Walkinshaw. 2. July. 1667.  
IN a Reduction the Lord Blantyre contra Walkingshaw, Ex capite minoritatis; It was Found that the granting of a Bond though with consent of Curators, being persons above all exceptions, was Lesion; and that it was not sufficient to allege that the Money was actually delivered to the Curators; or to the Minor in their presence; unless it were also alleged that it were converted to his use.  
This seemeth hard, for the borrowing of Money by the Minor whose Affairs may require the same, was not Lesion; but the misemploying of it, which is the fault of the Curators.   

D. 89. contra Eod. die.  
AN Assignation being made to Nails and Duties of a Tenement of Land, for the Year in which it was granted, and in time coming without Limitation: The Lords Found, That the Heir of the Cedent ought to have a formal and valid Disposition of the Land, whereupon the Assigney may be Infeft;  otherways he could not be secure as to a perpetual Right to mails and Duties against a Singular Successor: Et concesso Jure conceduntur omnia sine quibus explicari non potest.   

D. 90. Mebrae contra Melaine. 8. July. 1667.  
IN the Process Mcbrae contra Melaine, being for removing a Tutor suspect; upon many Grounds, and in special, that the Tutor's Father had been Tutor to the Pupils Father and had not counted; and that the Tutor and his near Relations had Questions and Actions of great importance with and against the Pupil.  
The Lords inclined, That another Friend should be joined to the Tutor; But no Answer was given by the Lords to the Dispute: only the pursuers Procurators got a time to condescend upon a person fit to be joined.   

D. 91. Cry contra E. Finlator. 9 July. 1667.  
A Creditor having obtained a Decreet in subsidium, for payment of his Debts, against the Magistrates of Dundee; and having Assigned the Bond whereupon the Debt was due to the Magistrates, they pursued the Cautioners in the Bond; who alleged, that the Debt and Bond being satisfied by the principal or Town of Dundee, who was Liable loco Rei ex delicto, the Cautioners were liberate.  
The Lords did demur and delay to give Answer. Vide infra 24. January. 1668.   

D. 92. Grange Hamilton contra Smith. Eod. die.  
THe Lords Found, That as the payment of Annualrents, so the payment of Feu-duties may be proven prout de Jure. Hay Clerk.   

D. 93. Watson contra Law. 15. July. 1667.  
IN the Process Watson contra Law, It was Found, That Kirklands being Disponed with absolute Warrandice; The Disponers are obliged to warrant from the Designation of a Gleib: Though it was alleged, that ex natura rei, and not ex defectu Juris, The said Gleib was evicted.  
Thereafter it was Found in the same Cause; That the Designation being as to Cows, and Horse grass; and upon a Law supervenient after the Disposition: viz. An Act in the late Parliament; The Disponer ought not to warrant from a Supervient Law.   

D. 94. contra Eod. die.  
EXhibition being pursued by an Appearand Heir, to the end he may advise, not only as to the Writes in favours of the Defunct, but such as were granted by him.  
The Lords superseded to give Answer as to the last Member, until they should consider the Act of Sederunt: It being alleged, by some of the Lords, That by an Act of Sederunt it was ordained, that no person should be forced to exhibit Writes granted by Defuncts, in favours of himself or his Authors, Except Writes granted by Parents; Or Husbands in favours of Wives and Children.   

D. 95. Hamilton contra Symenton. 16. July 1667.  
IT was Found, That the Mother, being Liferenter of all that could belong to the Daughter as Fire and Heir to her Father, was obliged to entertain her; and de facto having entertained her, could crave nothing for her aliment, though the time she was entertained, she was only appearand Heir, and thereafter was about to renounce to be Heir. Hamilton Clerk.   

D. 96. Elleis contra Keith. eod. die.  
THE Lords, upon debate and deliberation, Found, That a Person addebted in payment of a Sum upon a Wadset, may pay his Debt, and take a Renunciation, though the Creditor granter be inhibited; and that Inhibitions do not affect Renunciations.  
The Reasons that moved these that were for the Decision, are. 1. That Inhibitions do hinder the Liedges to purchase from Persons inhibited, but not to borrow Money from them; and as they may lawfully pay the Sums they borrow, so they may take Discharges and Renunciations. 2. When a Person does grant a Renunciation of a Wadset, he doth not grant a Voluntar Right, but only a Discharge upon the matter, which in Law he might be forced to give, upon an Order of Redemption. 3. A Person inhibite might take Payment and grant Discharge of an heretable Bond, even before Sums due upon such Bonds became arrestable. 4. If Inhibitions should affect Renunciations of Wadsets, than they could not be granted without consent of the Creditor who had inhibited, even after an order of Redemption. 5. The Inhibition, where it mentioneth and prohibiteth Renunciations, is to be understood of Voluntar Renunciations, which the Party inhibite is not obliged to grant; As v. g. An Heretor having a Base Right irredeemable, should after Inhibition renounce the same. 6. If a Wadset had been granted before the Inhibition, the Creditor may renounce, because in Law, and by the Contract he is obliged upon payment to renounce, so that it is not a voluntar Deed; And there is eadem Ratio in Wadsets after Inhibition; seeing the Right is granted with that condition that upon payment the Creditor should renounce; And as I may grant a Right to a Person inhibited, so I may grant it with that Quality, that he should be obliged to re-dispone, in which case he may lawfully dispone back again, notwithstanding of the Inhibition.   

D. 97. Ker contra Ker. eod. die.  
THe Lords Found, That an Executor, notwithstanding of the Oath given upon the Inventar, the time of the Confirmation, may be urged to declare upon Oath, whether since the Confirmation, it is come to his Knowledge, That some Goods and Debts were omitted, which he did not know the time of the Confirmation, and whether he has gotten greater Pryces than are contained in the Inventar. Gibson Clerk.   

D. 98. Sir James Keith contra Lundie. eod. die.  
A Decreet being obtained against Sir James, as charged to enter Heir of Tailzie to his Brother Alexander, in foro, for payment of a Debt due to Lundy; Two Exceptions being proponed and admitted, and the Term circumduced; he craved to be reponed against the said Decreet, alleging that the Procurator, who pretended to compear for him in the Decreet, had no Warrant, and was sick for the time.  
The Lords inclined to repone him as to personal, but not as to real Execution: and desired the Reporter to deal with the Party to consent. Hamilton Clerk.   

D. 99 Hermiston contra L. Sinclair. 17. July 1667.  
HErmiston being bound to pay to the Lord Sinclair his Brother, out of the first and readiest of the Rents of the Estate of Sinclair, a certain Annuity.  
The Lords Found, That he ought to pay the said Annuity entire; though he pretended he was not obliged simply, but out of the Rents; and that the said Rents, in respect of the real burdens upon the Estate, and the low Rates of Victual, would not extend to satisfy the same:  he was obliged to pay out of the first and readiest.   

D. 100 Lady Burgie contra Strachan. eod. die.  
A Base Infeftment given by a Husband to a Wife, was sustained after the Husband's decease, as public and clad with Possession, albeit the Husband was not in Possession the time of granting the Right: In respect, either he, or others by redeemable Rights and Tacks given by him, came in Possession thereafter.   

D. 101. Fyffe contra Daw in Perth. 6. Novemb. 1667.  
A Burgess in Perth, having put his Son with a Neighbour to be his Apprentice, and the Boy having diverted from his Service, the Father was pursued for Damnage and Interest sustained by the Master, who did refer to the Father's Oath his absence and diverting: In which Process, the Father having declared with a Quality, That the Master had beaten and put away his Son.  
The Lords Found, The Quality being super facto alieno, did resolve in an Exception, which he should have proponed, and cannot be proven by his own Oath: And yet though the Process was a Suspension, wherein there had been Litiscontestation, as said is; The Lords, did give a Term to prove the said Quality. Procurators Fyffe altar Chambers.   

D. 102. Duke and Duchess of Monmouth contra Scot of Clarkingtoun. 12. Novemb. 1667.  
REquisition being made by the Duke of Monmouth and his Lady, to Sir Laurence Scot of Clarkingtoun, for a Sum of Money; But the Notar having deceased before his Instrument of Requisition was extended▪ and there being only a Minute of the same unsubscribed, the said Duke and Duchess pursued Clerkingtoun for extending and making up the Instrument; and craved that Clerkingtoun and the Witnesses might be examined to that purpose: and that upon Probation, that the Requisition had been made conform to the said Minute, an Instrument under the Clerk Registers hand should be equivalent to an Instrument.  
The Lords Refused the said Desire, in respect the said Minute was neither subscribed by the Notar, nor in his protocal. Lockheart altar Spotswood.  
And that Requisition and such Actus Legitimi cannot be proven but by Instruments perfected as to all necessary Solemnities, at least the Minutes of the same under the Notars hand. And though the Debtors or Party concerned may know such Deeds were done de facto; they may be ignorant and are not obliged to declare, whether they were Legally done or not.   

D. 103. Allanus Henderson contra 14. Nou. 1667.  
QUia facti species (quae sequitur) dubia & perplexa, & de ea disceptatio in apicibus Juris est, eam & argumenta ultro citroque adducta ex Jure Civili, Juris istius Idiomate, Latine visum est subjicere. Sequitur species facti.  
Ninianus Henderson nauta & incola villae, quae vulgo nuncupatur Salinae Praestonianae, peregre profecturus; nec immemor periculorum, quibus nautae & navigantes obnoxii sunt; de rebus suis & patrimonio (quod exile satis erat) in praediis urbanis, & quibusdam tenementis in villa ista sitis, disponere statuit: quod fecit Chirographo seu Instrumento, sed adeo informi & Styli ancipitis & dubii, ut acerrimae Disputationi ansam praebuerit, utrum Testamenti & Donationis mortis causa, an inter vivos Jure censeri debeat: Ejus Clausulas & tenorem breviter perstringam: Cum esset coelebs, nec liberos, nec fratres haberet, sed sororem unicam, eam praeteriit nulla de ea mentione facta: & praefatus de profectione sua & de morte; quod haud Ignarus esset ea nihil esse certius; nec minus hora & tempore quo esset obeunda nihil esse incertius: Ideo amore & gratia ductus, quo prosequitur Allanum Henderson Nimani Patrui sui filium, nominat (ipsa verba) & constituit dictum Allanum haeredes Executores & Assignatos suos, ejus haeredes & Successores & Donatarios in rem suam irrevocabiliter; In & ad sua Tenementa domos et terras arabiles jacentes in villa dicta; & ad omnes alias terras haereditates & bona quae in posterum ad sese pertinere contigerint; cum plena potestate dicto Allano suisque praedictis, si ipsum mori nec in patriam redire contigerit, intrare & confirmationem obtinere a Domino directo & superiore, in & ad dictas terras & Tenementa, iisque frui & possidere; Transferendo in dictum Allanum ejusque praedictos, omne jus suum tam proprietatis quam possessionis; & excludendo agnatos & necessarios suos, & proximos cognatos quoscunque; cum cessione omnium Instrumentorum & Evidentiarum dicta Tenementa & Terras concernentium: Reservando tamen (ipsissima verba, quae notanda) sibi ipsi tantummodo, post suum in patriam reditum, revocare, rescindere, irritare, & annullare praesentes literas tanquam nunquam fuissent; & dictis Terris aliisque uti & pro arbitrio & libitu suo de iis disponere: cum Clausula Registrationis. Ninianus ex profectione Redux in patriam, diem obiit. Ex eo Instrumento egit ad implementum praedictus Allanus, adversus sororem & haeredem dicti Niniani; Excipiebat Soror, & pro ea Advocati arguebant, eam non teneri sed absolvendam his argumentis; Testamentis, Legatis, & mortis causa Donationibus, res mobiles tantum disponuntur, nec eae omnes sed quae Executoribus Relictae & liberis cedunt; libata & subducta ea parte mobilium, quae Jure haereditatis haeredi, moribus nostris, relinquitur: Nec satis esse aliquem tum velle tum posse de rebus suis disponere, nisi accedat modus habilis; forma enim in civilibus & concessionibus dat esse rei: cum igitur tenore Instrumenti perpenso; in comperto sit, Testamentum, saltem ei affinem donationem mortis causa esse; sequitur eo Testamento de praediis suis frustra nec modo habili disposuisse, & donationem inanem & inefficacem esse: Quod autem Instrumentum & Donatio in eo contenta, Testamenti & Donationis mortis causa Jure censeri debeat, facile evinci, tum ex praefatione & verbis narrativis; tum ex clausula dispositiva, nec non & ex clausula & verbis Executionis: Ex praefatione liquet, donationem concessam non tantum contemplatione verum etiam commemoratione mortis, & verbis in Testamentis & ejusmodi donationibus Testamentariis solennibus; nec non ex ipsis concessionis verbis constare, donatorem voluisse testari vel mortis causa donare; nominat siquidem dictum Allanum ejusque praedictos, suos haeredes & successores; nominare autem & constituere haeredes & Successores sunt verba penitus Testamentaria; Et in Donationibus inter vivos nec apta nec usurpata: Accedit, quod cum definitio Donationis mortis causa sit, Cum aliquis vult se magis quam Donatarium, eumque potius quam haeredem rem suam habere; eam disponentis voluntatem fuisse certum est ex clausula executiva, & potestate dictis bonis & terris fruendi post mortem suam; aliis cognatis & proximioribus submotis & exclusis: Cum Donatio aliqua conceditur metu & intuitu periculi imminentis, eo cessante, & donante incolumi & superstite, cessat & evanescit donatio; Donatio autem, de qua agitur, facta est metu periculi ex navigatione periculosa, imo sub conditione si Disponentem mori contigerit; cum igitur in patriam redierit, nec conditio exstiterit, consequens est Donationem inanem & irritam esse. Dato Donationem inter vivos, & puram esse ab omni conditione suspensiva; extra omnem Quaestionis aleam est, eam factam sub conditione Resolutiva; Siquidem potestate concessa ex donatione, Terris aliisque donatis fruendi & possidendi, si Donantem sine reditu in patriam mori contigerit; a contrario sensu sequitur, sin in patriam incolumis redeat, rebus donatis nec frai nec possidere licere; sed donationem nullam, existente conditione sub qua resolvitur Donatio ista: Et si supponatur inter vivos nec sub conditione suspensa nec resoluta; sine dubio a Donatore revocari potuit; & Revocata est post reditum; & probaturos recipiebant Rei, Instrumentum donationis penes donantem repertum fuisse: Instrumentum autem penes Debitorem aut concedentem repertum, censetur liberatum aut revocatum.  
Quod nunc sit penes actorem, non sequi, ei rursus a donante traditum, & iterata Traditione donationem Reviviscere; nisi doceatur quando & quommodo ad eum pervenerit; fieri enim potest ut tempore mortis penes donantem fuerit, & actoris dolo substractum.  
Pro Actore Replicabatur, Instrumentum dispositionis & donationis, inter vivos Jure censendum; & actionem ex eo efficacem esse; mentem donantis fuisse donationem concedere irrevocabilem si peregre mori contigisset; sin rediisset revocabilem; hoc casu potestatem revocandi retinuisse, sed ea haud usum; nec enim Instrumentum aut scriptum exstare quo Testatus sit donationem revocari: menti exprimendae verba haud defuisse satis apta, & dispositioni inter vivos idonea; donasse sc: irrevocabiliter & Jus suum omne tam possessionis quam proprietatis transtulisse, cum potestate fruendi & possidendi: & cessio evidentiarum, & Registrationis clausula sunt naturae penitus Heterogeneae & a Testamentis alienae. Si Donator revocatione facta peregre decessisset revocationem Actori minime obfuturam; Si Actor superstite donatore mortuus fuisset donationem haud inanem, sed haeredibus Actoris efficacem fore: Ea argumenta concludere donationem, Testamenti naturam haud sapere; cum in Testamentis ambulatoria sit voluntas & praemoriente donatario aut legatario evanescunt Legata & Donationes: haud diffiteri donationem istam quibusdam clausulis, donationi mortis causa affinem videri: Sed quod de Hermophrodito Jure cautum est, haud inepte & hic accomodari, & quod praevalet inspiciendum.  
Ad argumenta pro Reo Respondebatur: Ad primum, haud incongruum esse mentis & valetudinis compotem, & in legitima potestate constitutum, uno & eodem Instrumento, de rebus suis tam mobilibus quam immobilibus disponere posse; si quis enim peregre profecturus Testamentum condat, & Executores instituat, et eodem Testamento de terris suis disponat per verba formalia & idonea, addito mandato de Resignatione facienda, & Sasinae praecepto: Sasinâ & Resignatione secuta, eo casu, si dicas nec Testamentum nec Dispositionem valere, absurdum erit quae seorsim licitae sunt rerum suarum donationes, illicitas fieri, quod simul uno Instrumento celebratae sunt: Si dicas Testamentum tantum valere, ratio reddi non potest, cur Testamentum & mobilium donatio magis valeat, quam Dispositio & rerum immobilium Donatio, cum in hac non minus concurrant potestas & voluntas, & modus & conceptio, idonea & solennis: Superest igitur utrumque valere. Praeterea respondetur, falsum esse quod asseritur, donationibus mortis causa de terris & rebus immobilibus disponere haud licere; cum nihil frequentius sit contractibus & donationibus, quibus, proximioribus exclusis, haeredes alii (& ut loqui solemus) Taliae & Provisionis instituuntur.  
Accedit, quod Donator Actorem Donatarium constituerit; & verbum istud proprium sit donationis inter vivos; nec officit quod etiam haeredem & successorem nominarit, cum utile per inutile non vitietur. Ad Secundum Respondetur; Dato, Donationem esse mortis causa, non sequitur invalidam esse; superius enim dictum est in contractibus & obligationibus de successione Talliata, de rebus immobilibus & praediis nos quotidie disponere: eas autem donationes esse mortis causa, patet ex praedicta Definitione mortis causa donationis; & quod omnes de successione contractus, mortis contemplatione & plerumque non sine mortis commemoratione fiant, & effectum post mortem sortiantur, & in iis ambulatoria sit voluntas, nisi accedat pactum de non revocando. Ad Tertium Respondetur, falsam esse Propositionem; nec enim cessante causâ impulsiva cessat effectus; nec qui periculo imminente mortalitatis admonitus, Testamentum condidit; si periculum effugerit aut eluctatus fuerit, eo minus in voluntate eadem perseverasse censebitur; & testatus discedit nisi revocasse constiterit. Ad Quartum Respondetur, Dispositionem reditu eveniente, haud nullam aut irritam esse, sed revocabilem, id ex eo demonstrari; Quod sibi soli & tantummodo reservarit, si domum rediret, potestatem revocandi; si enim inanis & caduca fieret Donatio, in casu reditus, quorsum ista potestas & sibi soli reservata, revocandi donationem, quoad omnes, ipso conditionis eventu extinctam & revocatam. Ad Quintum & Sextum Respondetur, & Negatur, instrumentum post Donatoris reditum penes eum esse; & penitus supervacuum disceptare an penes eum fuerit, cum nunc penes actorem sit, & sibi a donatore traditum, nec necesse est docere quomodo & quando ad se pervenerit.  
Senatus Interlocutus est, Donationem istam Testamenti naturam haud sapere, sed validam & efficacem esse: Sed si constiterit & probatum fuerit, penes donantem instrumentum post ejus reditum fuisse, tuno revocatum & irritum esse.  
An autem, eo quod penes actorem nunc sit, a revocatione discessum sit & reviviscat Donatio, interloqui sustinuit: & ulterius inquirendum censuit quando & quomodo ad actorem pervenerit.   

D. 124. Whitehead contra Straiton. 14. Novemb. 1667.  
RObert Whitehead of Park pursued John Straiton Tacksman of the Park of Holy-rood-house, for the price of a Horse put in the said Park, to be pastured for 4. shil. per night; which after search cannot be found:  
It was Alleged, That by a Placad affixed upon the Gate of the Park, It was intimated, that the Keeper of the Park would not be answerable for any Horses put therein, although they should be stolen, or break their Neck, or any other Mischief or Hazard should overtake them. It was Replied, That by the Law Nautae, Caupones, etc. the Keeper ex conducto is liable; unless it were alleged, That it had been expressly agreed, that he should not be liable; or at the least, that it was known to the Pursuer, that such a Placad was affixed, when he put in his Horse.  
The Lords, Before answer, ordained the Reporter to inquire, and hear the parties upon the terms of the Agreement, when the horse was put in: whether it was told or known to the pursuer, that the keeper would not be answerable. Castlehill Reporter.   

D. 105. Gardiner contra Colvil. 16. Novemb. 1667.  
IN an action Gardiner contra Colvil; the pursuer being ejected during her Husband's absence out of the country, and when it was supposed he was dead.  
The Lords sustained the pursuit; Though the time of the adviseing the probation, It was offered to be proven that he was living: and did declare, that albeit the Husband were at the Bar, they would give the Wife the benefit of Juramentum in litem, in respect of the wrong done by the Defender, and the particulars and quantities could not otherwise be proven. Actor Longformacus alter Wallace. Castlehill Reporter.   

D. 106. Trotters contra Lundy. 20. Novemb. 1667.  
THE Children of George Trotter in Fogorig being confirmed Executors to their Sister Isobel Trotter, pursued James Lundie Cautioner in a Bond for James Trotter of the East-end of Fogo, for the Sum thereinconteined: It was Alleged, that the said James being Heir to his Grandfather Alexander Trotter in the East-end of Fogo, and the said George Son to the said Alexander and Executor to him, they did transact together that the Movables belonging to the said George as Executor should remain with the Heir; and the said James and the Defender as Cautioner did for the cause foresaid grant the said Bond blank in the Creditors name wherein the said George filled up the name of John Trotter in Chester his Brother; and procured from him an Assignation for the said Isobel his Daughter; And that thereafter upon a Submission betwixt the said George and Alexander Trotter Son to the said James granter and principal Debtor in the said Bond, The Arbiters ordained the said George to give back to the said Alexander the said Bond, and Assignation, with a Discharge thereof; and therefore the said Isobel being in familia paterna, and the said Bond and Assignation being taken and procured as said is, by the said George the Father in favours of the Daughter who hath no visible Estate or means to acquire any such Right, he was still master of the same: And it being ordained to be Discharged (as said is) the said Debt is Extinct. It was Answered, that the Bond being filled up and Registrat in the name of the said John Trotter, and the samen being Assigned, and the Assignation in favours of the said Isobel intimat; and after her decease, her Executors having confirmed the said Debt; all before the said Submission; her Father could not by the Submission or any other deed of his, Evacuat the said Right Established in the person of the said Isobel and her Executors: And as to the Practic betwixt Monimusk and Pittarro, whereupon the Defenders allege; it doth not quadrate to the Bond in question, it being never delivered but depositat in the Uncle's hand, Mother Brother to the Child; and in the same case It was Found, That the Father could not retract a real Right made in favours of his Child and Heir: And here there is Eadem Ratio.  
The Lords Found, That the Father being Master of a Bond or Right, whereupon nothing followed, being granted by himself; may throw it in the fire, and may consequently Discharge it: But the said Right being made public, and completed by the delivery, and which is equivalent, by some public deed, by Infeftment if it be Heretable; or by Assignation intimated, or confirmed Testament, if it be Movable; he could not thereafter Retreat or prejudge the same: And repelled the Defence in Respect of the Answer. Hackertoun Lord Reporter. Mr Thomas Hay Clerk.   

D. 107. Pollock contra Pollock. eod. die.  
JOhn Pollock having granted a Bond of 5000 Marks to James his second Son of the first Marriage; The said James intented and pursued for payment both Robert eldest Son of the same Marriage, Heir of Line, and John eldest Son of the second Marriage, and Heir of Provision, as charged to Enter Heir respective: It was alledeged for the Heir of the first marriage, that he offered to renunce: And for the Heir of Provision, that the Heir of Line ought to be first discussed by adjudication; and condescended upon movable Heirship, which might be adjudged: It was Answered for the Heir of Line, that his Father, having provided him, had taken from him a Renunciation of all that could belong to him as Heir, So that he could have no Right to the movable Heirship, which, in respect of his Renunciation, would be considered as other movables and fall under executry: It was Replied for the Heir of provision, that by the Renunciation, the Heir of Line had renunced his kindness, to the effect his Father might have power to dispose of the Heirship; but his Father not having disposed thereof, the Right returned to the Heir of Line again, the Renounciation being in favours of him and his Heirs; as in Renounciations of that nature as to Lands, if the Father does not dispose of the same, they will notwithstanding belong to the Heir. Some of the Lords thought, there should be a difference betwixt Lands and Movable Heirship; In respect the Right of Lands, whereof the Father died infeft, cannot be Settled in the person of any other but the Heir, who therefore ought to have Right notwithstanding of the Renunciation: But the Movables which should fall under Heirship by the Renunciation of the Heir, cease to be Heirship; and may be confirmed as other Movables: Others Thought, that the Effect of such Renunciations should be the same as to Movables and Lands; the Father's intention being one and the same for both; and therefore, as the Right in the construction of the Law returneth to the Heir of the Father, who doth not otherwise dispose of his Lands; there is the same reason as to movable Heirships: And as to the pretence foresaid, it is of no weight, seeing if it were the Intention of the Father, that by such Renunciations the Son should be denuded, without Return, though the Father should not dispose of his Lands; the Son may be pursued and forced to denude himself, that his Renunciation may be effectual, in favours of the nearest of Kin.  
The Lords before answer ordained the Renunciation to be produced, that they might consider the Tenor of it.   

D. 108. Tacksmen of the Custumes contra Greenhead. Eod. die.  
THe Custums of the Borders being set in Subtack to Greenhead and others, by the Tacksmen of the hail custumes of the Kingdom: Greenhead is pursued as representing his Father one of the Subtacksmen, for the duty the year 1650. It was alleged, That the Subtack was altogether unprofitable, upon the occasion of the English Invasion; so that Beasts and other Goods were not imported, nor Exported that year, as they had been in use formerly: It was Answered, that albeit in praediis Rusticis, in case of Sterility, Vastation, and such other Calamities that cannot be avoided, There may be abatement craved & Remissio Canonis; yet in this case the Subject being conductio rei periculosae & Jactus Retis, the Subtacksmen ought to have no abatement, and are in the same case as Tacksmen of Salmond fishing, who will be liable for the duty, albeit no profit arise to them.  
The Lords Found, That Subtacksmen should have abatement: But the Question being most, Quatenus, and concerning the proportion; because, though the Subtacksmen had undoubtedly loss, yet it was not Total; there being some Commerce betwixt the Kingdoms for that year, some Months. It was Found in end, upon hearing of Parties, that the half of the Duty should be abated. Actores Lockhart & Cuninghame Alteri Sinclair. Mr Thomas Hay Clerk:  
The Law is very clear ff Locati; and the Doctors upon that Title; not only in praediis but in conductione vectigalium, and the like; in case of an insuperable Calamity, remittitur Canon & merces; but they are not so clear as to the Quatenus and proportion of the abatement, when the detriment is not Total: But it is just, the abatement should be proportionable to the loss: And accordingly The Lords decided.   

D. 109. Justice Clerk contra Lambertoun 23. Nou. 1667.  
IN the case, the Justice Clerk contra Lambertoun, the probation anent the value and worth of the Woods pertaining to the Justice Clerk, and cut and intrometted with by Lambertoun, being advised; It was considered and represented by some of the Lords, that had been Commissionated to examine the Witnesses adduced by both parties, being allowed to have a joint probation, that the probation was dubious; the Witnesses for the Pursuer declaring too highly, and the Witnesses for the Defender too low as appeared: And that the Subject of the Question not being the re which is the proper Object of Sense, but de rei valore qui cadit sub Judicium & Intellectum; The Testimonies of the Witnesses are not the rei veritate but de credulitate & opinion; and therefore are not numeranda sed ponderanda, according to the circumstances both of their owned quality and the quality of the Declaration, whether they have declared verisimilia, and whether animose and such like; and whether they have given a probable reason of their knowledge: That in this case, the Witnesses that have deponed most to the advantage of the Pursuer are his own Tenants; and one of them a Smith & his Officer: that they give the reason of their Knowledge, that they dwelled in the bounds, which is not sufficient, unless they had been periti and Conversant about the matter of Woods, and the Buying and the Selling and the valuing of the same: That some Witnesses for the Defender had given their Judgement upon oath as strongly and pregnantly as they, though they be not so many: So that the probation at best is but dubious, and in dubiis minimum sequendum; at the least the Lords have a latitude to found their Judgement upon the Testimonies of both cum temperamento, and without adhering percisely to either.  
The Lords Found nevertheless by plurality, That they should have respect to what had been proven by the most part: And accordingly Discerned.   

D. 110. Rankin contra Skelmorlie and Dunlop. eod. die.  
IN a double poinding at the instance of the Lord Melvil; there being a Competition betwixt two Creditors of Antonia Broun Daughter and Heir to Sir John Broun:  
The Lords preferred Skelmorly the first Arrester, Though Rankin had obtained a Decreet to make forthcoming, and had completed his Diligence; and alleged, that an Arrestment is but an inchoate Diligence, and doth not hinder any other Creditor to complete, and do more exact diligence by poinding, or by a Decreet to make forthcoming, which in Debts, and in nominibus are equivalent. The reason of the Decision was, that Skelmorly had not only Arrested but had intented a pursuit before the Lords to make forthcoming before Rankin; But Processes before the Lords being more tedious, and the Pursuer not Master of Calling, Rankin had taken advantage by obtaining a Decreet before the Sheriff, in the interim.   

D. 111. Hay contra Drummond. 26. Novem. 1667.  
IN a Reduction Hay of Haystoun contra Drummond and Hepburn; A Season being called for; The Defenders having alleged, that the same being Registrate, and they condescending upon the Registration, the pursuer should Extract it himself.  
The Lords did debate amongst themselves, whether the Defender should be obliged to Extract and produce the Season: Some were of the opinion, that there is a difference betwixt Decreets and Registrate Bonds and such like; and betwixt Seasins and Charters, which being the Defenders own Evidents and the principals not being in the Registers, they are presumed to have them; and if they have them not, ought to Extract them: Others thought, that seeing Extracts do satisfy the Production in Reductions; If the Defenders have neither Principals nor Extracts, and be content to make Faith thereupon, it were hard they should be at the Charge to Extract them, in order to a Process against themselves. The Lords did nothing upon the Debate.  
The Lords did resolve, and caused intimate to the Advocates, That hereafter they would only give two Terms in Reductions, and three Terms in Improbations.   

D. 112. Dalziel contra eod. die.  
THE Minister of Prestonhaugh, Mr. John Dalʒiel, pursued for the Teinds of Lanton, upon his presentation to the said Kirk and Teinds Parsonage and Viccarage: It was Alleged, no process, unless he were presented to be Prebendar, seeing the said Kirk is a Member of the Collegiate Kirk of Dumbar; and cannot be made appear to be dissolved, and Erected in a several Rectory.  
The Lords Found, That being presented to be Minister at the said Kirk, and to the Teinds, which are the patrimony of the Prebendar; it is equivalent, as if he were presented Prebendar: As when there is a presentation to a Kirk, which is a Parsonage, and to the Teinds, the Minister will have Right, though he be not presented to be Rector or Parson.   

D. 113. E. of Lauderdale contra Vassals of Musselburgh. 5. Decem. 1667.  
IN a Reduction and Improbation at the instance of the Earl of Lauderdale, against the Vassals of Musselburgh, and in special Major Biggar and others Heretors, and possessors of the Lands of Hill.  
The Lords Found, That the Major having produced a more eminent progress, and which he alleged would exclude the pursuer; no Certification could be granted contra non producta; The Defender not being obliged to show any other Writes, until these which are produced be discussed. The Lords Found also, That the Defenders are not obliged to declare, that they will use no other Writes than these which are produced: The only difficulty being, that the reason of Reduction could not be disputed, until the Production be closed; and if the Writes produced should be improven or reduced, the Pursuer would be put to a new process of Improbation; or return and crave Certification after Dispute in Causa, which is incongruous in Form.  
The Lords were of Opinion, that in the same Process the Pursuer after the discussing of the Writs produced, might thereafter crave Certification contra non producta.   

D. 114. Fountain contra Maxuel. eod. die.  
ALbeit the Lords are tender in Exhibition of Writs; unless it be proven, that the Defenders had the same the time of the intenting of the Cause; or had fraudfully put the samen away before; which is difficilis probationis; Yet in an Exhibition at the instance of _____ Fountain against Maxuel of Nethergate, they discerned to exhibit, albeit it was not proven that the Defenders had the Writes, at, or since the intenting of the Cause: In respect it was proven, the Defender had meddled with the Writs being in a Charter Chest; and had offered to Transact concerning the same; and so was presumed to have put them away fraudulently: There being a great difference betwixt a transient having of Writes, and a down right medleing and Intromission; which, being proven, though it be before the intenting of the Exhibition, doth oblige the Intrometter to be answerable for the same.   

D. 115. Collector of the Taxation contra the Parson of Oldhamstocks. 6. Decem. 1667.  
IN the Case, The Collector of the Taxation contra the Parson of Oldhamstocks; a Question was moved, whether the Successor in the benefice be Liable for the Taxation due by his Predecessors, his Patrimony consisting most of Teinds: But was not decided at this time.   

D. 116. Mr. Rodger Hog contra The Countess of Home. 11. Decemb. 1667.  
AN Inhibition being served upon an Obligement to warrant; A Reduction was thereupon sustained, though it was alleged there was neither Decreet of Eviction, nor Liquidation of distress; the pursuit being only a Declarator, and the Decreet being only effectual after Eviction and Liquidation; which accordingly was declared by the Lords.   

D. 117. Inter Eosdem. eod. die.  
BEtwixt the same Parties: It was alleged, that the Defenders Right was ratified by a Creditor, who had a Comprysing expired; so that the pursuer had no interest to question the Defenders Right: It was Answered, That the pursuer desired only such Right as was after the Inhibition to be reduced, without prejudice of any other, which he could not nor was obliged to debate hoc loco.  
The Lords, notwithstanding Found the Alledgance Relevant.   

D. 118. Hamilton contra Lord Belhaven. 13. Decem. 1667.  
RObert Hamilton Clerk, pursued the Lord and Lady Belhaven to hear and see it declared, that a Minute betwixt him and them concerning the Tenor and Articles libeled, is null; the clause irritant therein mentioned being committed.  
The Lords refused to sustain the pursuit; unless the Minute were produced: Albeit it was alleged there could be no prejudice, in respect a Minute of another Tenor could not be prejudged: and a Minute of that Tenor libeled, should be declared void upon the reason libeled.   

D. 119. Rioch contra Eod. die.  
AFter Litiscontestation upon an Exception of payment; the Defender, who was pursued as Lawfully charged to enter Heir, Desired to be admitted to renunce; which was refused; because by the proponing the Defence, Gesserat se pro haerede: And Litiscontestation is a judicial Contract.   

D. 120. Rannolph Davidson contra Richardson Eod. die.  
A Ship being declared prize, Because the Loadning of Salt belonged to a Frenchman; the Skipper and Steersman having declared upon oath that the Loadning was taken in at the Rotchel upon the account of the said Person. The adjudication was quarrelled by a Reduction, upon divers reasons; and in special these, that the Deposition of the Skipper and Steersman were forced and extorted from them; and that it was offered to be proven and that it did appear by divers Letters, Certificats, and Documents produced, that the Loadning did belong to the Owners of the Ship who were Citizens of Dantzick and Hamburg, and were not the King's Enemies.  
The Lords in this Process Found, that the Owners may be heard to reduce the Sentence upon reasons omitted by the Skipper. 2. It being debated amongst the Lords whether the Skippers Declaration should so prejudge and conclude the Owners, that they should not be heard thereafter to prove that the Loadning belonged to them: Some thought it hard, that the Skippers fraud or mistake should prejudge the Owners: But because in the case, there was no ground to presume that the Skipper and Steersman did intent to prejudge or wrong the Owners; and the Writs and Certificats produced were all after the Seizure; and the Letters, which were of anterior dates might have been made up, and were all from Persons concerned; and there were Documents found in the Ship that could clear that the Loadning did belong to the Owners.  
The Lords Sustained the Sentence, unless the Pursuer would qualify Foroe and Violence, and that the Depositions were Extorted. Hay Clerk.   

D. 121. Homes contra Paterson 17. Dec. 1667.  
IT was Found, that the Attester of the sufficiency of a Cautioner, being pursued for the Debt, the Cautioner being distressed and discussed and not Solvent; and the Attester having alleged that he offered to prove that the Cautioner was then the time he became Cautioner, habitus & reputatus Responsal & idoneus as to the Debt: The alledgance is relevant, and the Attester no further liable.   

D. 122. Sir Thamas Nicolson contra the Laird of Philorth. 18. Dec. 1667.  
PHilorth elder, being pursued as representing his Grandfather for payment of a Debt due upon Bond granted by the Earl Marischal and his Grandfather as Cautioner: It was Alleged, that the Bond being Dated above forty years ago was perscribed: It was Replied, that interruption had been made by payment of the Annualrents by the principal Debtor: It was Answered it was prescryved as to the Cautioner, there being no interruption by any Document or pursuit against him, or payment by him.  
The Lords repelled the Defence in respect of the Reply: and Found that the ground of prescription as to personal actions being odium and negligentia non petentis, that it doth not militate in this case, the Creditor having gotten Annualrent; so that he cannot be said to be negligent. Lockhart, altar Cuninghame.   

D. 123. Gilespie contra Auchinleck. Eod. die.  
Marry Williamson Lady Cumblidge, having Right not only of Liferent but also to the Fee of the said Estate by Comprysing; and being about to Marry with Patrick Gilespie her second Husband: for settling and preventing Questions betwixt her Children and her Husband, she did Dispone the Fee of the Lands to her eldest Son with the burden of 5000. Marks to be paid to her second Son at his age of Twenty one years; and to Entertain him in the Interim: And at the same time her eldest Son did grant and set a Tack to the said Patrick, for a year after his Mother's decease if he should survive her, of her Liferent Lands reserved in the Disposition, mentioning their purpose of Marriage, And that he was to stock the said's Lands, and that his Wife might die before him; upon which considerations the said Tack is set: At the same time, the said Mary did privately dispone her Liferent in favours of her second Son John Auchinleck, who intented a pursuit against her and her said Husband for the mails and Duties of the Lands for divers years: It was Alleged; that the said Right being a private latent Right, the Defender ought to be free of bygones as being bona fide Possessor, by virtue of his Wife's Infeftment, and his Jus mariti: It was Answered, That he and his Wife are Eadem persona, and she being his author, cannot pretend that they possessed bona fide in prejudice of a Right made by herself.  
The Lords Found the alledgances relevant.  
It was further alleged, that the Disposition made to the Pursuer was most fraudfully granted in prejudice of the Defender after Treaty of the Marriage, and the said public Transactions in order thereto; Which were Equivalent to, and to in lieu of a Contract of Marriage; the Wife having no other thing besides to dispose of besides her Liferent, to which the Husband has Right Jure mariti; so that a Contract was not necessary as to that: And that the said Right was retained by the Mother, and not delivered until she was Married; at which time she could not prejudge her Husband, and that the Defender had a Reduction depending upon the reasons foresaid.  
The Lords Found the alledgance relevant: And found that an Assignation not intimat and not being made for an onerous Cause, could not prejudge the Husband, having by his Marriage a public Right Equivalent to an Assignation, and therefore assoiled.  
It was not considered whether the Right was delivered or not, being found latent as said is.   

D. 124. Wilson contra the Magistrates of Queensferry 2. January. 1668.  
ARchibald Wilson being charged to accept the Office of a bailie of the Town of Queensferry, Suspended upon the Act of Parliament, Jam. 3. Parl. 5. Chap. 29. whereby it is statute, that Magistrates within burgh's should not be continued longer than a Year; and subsumed that he had served the preceding two Years.  
This case being Reported, The Lords Found, the Reason Relevant.  
And albeit the Act of Parliament be not in observance, specially in Edinburgh, The present Provost having been in that place divers years, yet the Ambition and unwarrantable practice of those who violate the said Act, and others made to that purpose; ought not to prejudge others who are most sober, and claim the benefit of the same,   

D. 125. contra 3. January. 1668.  
A Wife provided to an Annualrent in Victual out of certain Lands by her Contract of Marriage, did renounce the same; and thereafter was Infeft in an Annualrent out of other Lands: And upon the said last Infeftment a Process being intented for poinding of the Ground: It was Alleged, that the Season was null being alleged to be given by a Husband propriis manibus, and the Assertion of a Notar without any precept or warrant in Writ: It was Answered, That the Marriage with the Relics Renounciation of her former Right, and her Contract of Marriage, being all produced, are sufficient Adminicles to sustain the same.  
The Lords inclined to favour the Relict, yet they found it of a dangerous consequence, that a real Right should depend upon the Assertion of Notars and witnesses: And the Question not being whether the Husband might or aught to have given his Wife the said Right, in recompense of of her former; But whether de facto he did the same,  the foresaid Writes having no relation to the Season, either as given or to be given, could not be Adminicles to warrant or sustain the same: And therefore before Answer, it was thought fit to inquire, if there had been any Decision in the like case; as was informed.   

D. 126. Sir John Home contra The Fevars of Coldinghame. 7. January. 1668.  
IN a Process at the instance of Sir John Home of Rentoun Justice Clerk contra The Fevars of Coldingham: The Defenders offered to improve the Executions: It was Answered, They could not be heard, unless they would propone the said Alledgance peremptory; but that the same should be reserved by way of Action.  
The Lords for avoiding the multiplying of Processes, obliged them to propone the exception of Improbation peremptory: But the same being prior natura, and competent to be proponed before any other in meritis causae; And yet being now proponed peremptory in form of Process, being the last of Exceptions:  
The Lords admitted the Defenders to propone their other Exceptions, and reserved that to the last place.   

D. 127. Eodem die.  
THE Lords upon debate amongst themselves, Thought that the Abbay being His Majesty's House, should not Exempt or protect any person against His Majesty's Laws, and the Execution of Letters of Caption, and therefore Recommended to the Keeper of the Abbay, to put him out and not to shelter him there.   

D. 128. Forbes contra Inns. 8. January 1668.  
IN the Case, Forbes contra Innes and Dalgarno; The Lords Found, That a Wife having no Right for the time to Lands Disponed by her Husband; and having at the desire of the Buyer consented and sold her Right; if she thereafter acquire from another person a Right to the said's Lands, is not by her consent concluded, but may pursue and evict the Lands upon her Right; Her consent operating only, that upon any Right from her Husband, or then in her person, she cannot question the Right whereto she hath consented; And the Brocara that Jus superveniens accrescit, being to be understood of Jus superveniens Authori; whereas a Consenter is not Author. Lockheart alteri Wedderburn & Thoirs.   

D. 129. Laird of Glencorse contra his Brethren and Sisters. 9 January 1668.  
ALexander Bothwel of Glencorse, having Disponed his Lands to his Eldest Son by Contract of Marriage betwixt his Son and his Wife, with absolute warrandice; And by the Contract the Tocher being payable to the Father, he did notwithstanding deliver Bonds of Provision to his other Children, which were of a date before the Contract, but not delivered divers years after his Son's Marriage: The Eldest Son pursued a Reduction of the said Bonds, in so far as they may affect his Estate, or be the ground of a pursuit against him, as Successor Titulo lucrativo post contractum debitum: The Reasons of Reduction were, that the Bonds were not delivered the time of the Right granted to the Son; and that he could not thereafter do any Deed in his prejudice, and consequently, could not deliver the said Bonds, the delivery and not the granting being that which doth animate, and make the same effectual: It was Answered, That the Father being Tutor of Law to his Children, he having ●he Bonds for their use, is equivalent as if the Children had them, or that they had been delivered to them: And whatever may be as to a Singular Successor, they ought to be effectual against his Eldest Son, who is universal successor. It was Answered, That Contracts of Marriage, being not only in favours of the Son, but in the behalf of the Wife and Children, and with the Friends, are most solemn and favourable Transactions; Et bona fides is in them exuberant; so that upon no pretence, no Deed ought to be done by any of the Contracters in fraudem; And that the Father, if he had intended to have burdened the said Lands, should have burdened the Fee expressly with the same; that Provisions granted by Parents to their Children before they be delivered may be revoked; and that the Father by granting the Disposition in favours of his Son, had revoked the Bonds in question, in so far as they may trouble him.  
The Lords, in respect it was proven, That the Bonds were not delivered till after the Contract, Found they could not be effectual against the Son, and Reduced. Sinclair and Wallace, alteri Wedderburn & Lockheart.   

D. 130. Earl of Kinghorn contra The Laird of Vdney. 14 January. 1668.  
THE Earl of Kinghorn did Wadset to the deceased Laird of Vdney the Barony of Balhaves, and the Sum due upon the Wadset being paid to Vdney, he did by his Letter to the said Earl promise a Renounciation of the said Wadset to be granted by him: The Earl of Kinghorn as Heir to his Father having pursued the now Laird of Vdney as representing his Father upon the passive Titles, and especially upon that, as Successor Titulo Lucrativo; in so far as he was Infeft in the Lands condescended upon acquired by his Father to himself in Liferent, and to the Defender in Fee; with power to the Father or his Assigney to redeem the same upon payment of three Pounds; And to Set, Wadset and dispone without his consent. It was Alleged, the Sons Right was prior to the said Letter, and that the Father did not make use of the said power: It was Replied, That the Wadset was prior to the Defenders Right; yet this Right being qualified (as said is) the Father might have contracted Debts, and granted obligements after the said Right; and the Defender would be liable to the same; seeing the Lands and the Father's interest in the same being upon the matter a Fee and power to redeem and dispone, might have been comprysed for his Debt contracted after the said Right.  
There being two questions in the case viz. Whether the Defender be liable as Successor Titulo lucrativo, If it should be found that the Wadset was Anterior? 2ly. If the obligement shall be found to be after the Defenders Right, whether he would be notwithstanding Successor Titulo lucrativo, in respect of the quality and condition foresaid of the said Right.  
The Lords repelled the alledgance, and Found, the Defender would be liable as Sucessor, the pursuer proving that the Wadset was Anterior: As to the second question, the Lords thought it not  to decide, being of very great consequence, and deserving hearing In praesentia, seeing it was notour that the Wadset was before the Defenders Right: Yet we inclined for the most part to think, that when such Rights are granted or Purchased by Parents to their appearand Heirs, they should be liable to all the Debts due and contracted thereafter; at lest secundum vires & in quantum Lucrantur: And beside the abovementioned reasons, these may be urged 1. the Father having by such a reservation, not only a reversion but in effect a Right of property, In so far as he has power to Dispone and wadset as if he were Fire; if he should discharge the said Reservation his Discharge would infer against his Son the passive title of Successor titulo lucrativo; having gotten thereby an absolute and irredeemable Right which he had not before; And therefore he not useing the power competent to him by the said Reservation, being equivalent as if he had discharged the same, aught to operate the same effect. 2. Such a Right is in effect Praeceptio Haereditatis cum of effectu only the time of the Father's decease, seeing before that time it is in his power to Evacuat the same; and therefore the time of the Father's decease is to be considercd so as the Son cannot be said to have Right or to Succeed effectualy before that time, and so ought likewise to be liable to the Debts contracted at any time before his Father's decease.   

D. 131. Balmedie contra the Bailies of Abernethie. 15. Jan. 1668.  
A Decreet at the Procurator Fiscal's Instance of the Regality of Abernethie before the bailie of the Regality, against the Weavers in the Town of Abernethie, for contraveening the Act of Parliament 1661. Anent the breadth and bleetching of Linen Cloth; was suspended upon that reason, that the Bailies within the Town of Abernethie, were only Judges competent to the Inhabitants within the Burgh.  
The Lords Found, that the Town being only a Burgh of Regality had jurisdiction within the same: And the Bailies jurisdiction is Cumulative and not Privative; unless they had it expressly by their Infeftment Privative, and that in such cases Locus est Praeventioni.   

D. 132. Parkman contra Allan. Eod. die  
IN the late War betwixt his Majesty and Holland and Denmark, a Swedish Ship being taken by a Scots Caper and adjudged Prize: A Reduction of the Admiral's Decreet was pursued, upon divers reasons; and in special this, That by the Treaty betwixt his Majesty and the Crown of Sweden, the Subjects of Sweden may traffic with their Alleys, though Enemies to his Majesty with freedom; and carry in their Ships Counterband Goods, Except such as are contained in an Article of the said Treaty, being for the most part Arms, and Instrument a Bellica; and that the Goods in question which they had carried in their Ships to Holland, viz. Tarr and stock fish were not of that nature. 2. That when the said Ship was taken, there was none of the saids Goods aboard; and that it could not be declared Prize upon pretence That immediately before they had carried the said Goods to Holland; seeing it is not unlawful not a breach of Treaty betwixt his Majesty and Sweden, that the Subjects of Sweden should continue the same intercourse and freedom of Trade they had formerly with their friends, though now the King's Enemies: and if they carry counterband Goods, the only hazard is that if they be deprehended carrying the same, They may be confiscate; conform to the Treaty with Sweden, bearing si Deprehendantur; which is Consonant to the custom of all Nations, and of the Admiralty of England. It was Alleged, that the Ship in Question should not have the benefit of the Treaty, having Served the Danes the King's Enemies, and being fraughted and loaded with Tarr from Noraway upon the account of Danish Merchants, and with stock Fish which they had carried to Amsterdam: That it was expressly provided by the Treaty with Sweden, that they should not carry bona hostium; and that though the Danes were not the King's Enemies, yet Tarr and Stockfish are Counterband, Tarr being a Material so useful and necessary for a Naval War; and that by the Treaty, Commeatus is counterband and Stockfish falleth under the notion of Commeatus: and that by the Commission given by the Admiral to the Capers, they are empowered expressly to seize on Ships, not only while they have counterband Goods caryeing to his Majesty's Enemies, but upon the return having sold and disponed upon the same. It was Replied, 1. That by the Law of Nations (which is clear from Grotius de Jure Belli) Goods that are usus promiscui both in War and Peace are not vetita and counterband; and two Nations being engaged in War with others that are at friendship with both are allowed liberty of Trade with either as to such Goods: And that Tarr is of that same nature, and Commeatus, except in the case of portus clausus, or Civitas obsessa, and from which deditio may be expected if not supplied. 2. His Majesty's Declaration of War with Holland, bears, that Ships carrying counterband to Holland, if they be met with carrying the same, may be seized; and that his Majesty's Declaration, Emitted of purpose in relation to other Nations, should be considered as lex Belli, and not a private and unwarantable style of a commission given periculo petentis.  
In this, many Points being debated, It was Found by the Lords, that Tarr is Counterband. 2. As to that Point, whether a Ship having carried counterband Goods to Enemies, may be seized upon in her return homeward, having sold and vented the same to the Enemies and not deprehended carrying the same; They thought fit to know his Majesty's pleasure, and the custom of England; and a Letter was written to my Lord Secretary to that purpose. 3. The Ship in question, having carried counterband Goods to Holland, and having thereafter made a Voyage to France; and there having taking a new Loading of Salt upon the account of the Owners; and being taken upon her coming from France, If it should be found that she might have been seized upon pretence that they had carried the said Goods to Holland; It was Debated whether the Return should be understood of the immediate Voyage from Holland to France; or until they should return to Sweden? And as to this part, the Lords thought good to take advice of Merchants: In praesentia, Lockhart & Wedderburn, alt. Wallace. vide, feb. 4. 1668.   

D. 133. Mckitrick contra _____ Eod. die.  
THE Prescriptions of Reversions and Expiring of Legals, and the taking advantage of the same are so odious; That the Lords inclined to find, that necessary Depursments upon reparation of Houses should not be allowed to a Compryser; in a Declarator to hear and see it found, that he was satisfied by intrommission; reserving action to him for the same: But before answer, they ordained the Reporter to consider the Depursments; and to Report whether they were absolutely necessary. This is hard in the point of Law; intromission being to be understood civiliter & cum effectu of that which is free, all charges deduced. Hay Clerk.   

D. 134. Trotter contra Trotter Eod. die.  
THE Lords Found, that a Wadsetter having comprised for his principal Sum; may, in competition with another Compryser, pass from his Comprysing, and return to his former Right of Wadset. Gibson Clerk.   

D. 135. Anderson dean of Guild of St. Andrews contra James Tarbat. 16. January. 1668.  
WIlliam Tarbat having granted Bond for 300 pounds to his Son James and other Children; the said Bond was Reduced at the instance of a Creditor, Because it was subscribed only by one Notar, being a matter of importance: Though it was alleged, that it resolved in three several Bonds; and it was Equivalent as if the three Bonds had been granted for 100 pounds respective. For the Lords considered, that the Bond being one and individual; the importance, as to the interest of the debtor, is the same whether it be granted to one or to divers Persons.   

D. 136. Binnie contra Binnie. 17. January 1668.  
MArgaret Binnie being induced to grant a Bond obliging her to resign some Tenements of Land in favours of herself and the Heirs of her Body; which Failyieing, in favours of her Brother Alexander Binnie; and to do no deed in prejudice of his Succession; She did thereafter Marry and Dispone to her Husband the said Tenements. In a pursuit at the instance of her Brother against her and her Husband for his Interest, upon the said Bond and for implement thereof,  
The Lords Found, that she with consent of her Husband ought to Resign. Some of the Lords thought, that the import of such obligments is only, that the Granter should not alter such Tailʒies in favours of other Heirs: And that they are not restrained to sell or Dispone for onerous Causes if they should have occasion; otherwise they should cease to be Fiars: The very Essence of Fee and Propertie consisting in a liberty to Dispone. It may be questioned, how far the Husband may be liable to his Wife's obligments before the Marriage? For there being a Communion betwixt them only as to mobilia, it may appear that he should only be liable to Movable and Personal Debts:  penes quem Emolumentum, penes eundem Onus; but this point was not Debated.   

D. 137. Straquhan contra Morison. Eod. die.  
A pursuit for Spuilyie being restricted to wrongous' Intromission: It was Alleged, that the Defenders are only liable for their intromission respective; in so far as it should be proven that each of them had intromitted at lest pro virili and conjunctly: It was Replied, that the Defenders being convened Ex delicto, they are liable in solidum as Correi; being all accessory to the wrong: And the pursuit, as it is Restricted, is not for Intromission simply, but wrongous Intromission: And though the Pursuer, by restricting the Pursuit, as said is, has precluded himself as to violent profits and juramentum in litem, and other consequences of spuilyie; he has not prejudged himself as to that benefit, that all who are accessary to the wrong should be liable in solidum, which the Law has introduced upon just ground; seeing it is impossible, in such cases, where divers Persons do intromett, to distinguish and prove their intromissions.  
The Lords Found, the Defenders liable Conjunctly. Wedderburn, Sinclair & Straquhan. Alteri Lockhart & Thoirs.   

D. 138. Pollock contra Pollock. Eod. die.  
THe Lords having considered the Renunciation mentioned above. 20 of Novem. 1667; Found, that it being in favours of the second Marriage and in Effect an Assignation, could not accresce to the Granter.   

D. 139. Birnie contra _____ Eod. die.  
MR Andrew Birnie having granted a Bond blank in the Creditors name to his Good-brother Short; the Creditors name being thereafter filled up, Mr Andrew Birnie suspended upon double poinding against him and another Creditor of Shorts, who had thereafter arrested.  
The Lords preferred the Person whose name was filled up; In respect he had shown Mr. Andrew the Bond before the arrestment, and desired him to satisfy the same, though he had not made intimation by way of Instrument. This Decision seemeth to justle with that of the 9 November 1665. Jamison contra Tealzifer.   

D. 140. _____ and the Laird of Inns her Husband, _____ contra _____ 21. Jan. 1668  
THE Laird of Rosyth having provided his Daughter of the first Marriage with the Laird of Inns, to 10000 Pounds, at her age of Twenty years; and there being no obligement for Annualrent  
The Lords, in a Process at her instance for her aliment, modified 600. Marks yearly: Some were of opinion that the said sum being payable at the foresaid Term, the Annualrent of the same should not have been modified for the time thereafter, and that she should be in no worse case than if it had been paid.   

D. 141. Shaw contra _____ Eod. die.  
THE Lords Found, That a Wife being provided in Lecto by her Husband, her provision should be restricted and Sustained as to a Terce; she being no otherwise provided before.   

D. 142. Home contra Tailzifer Eod. die.  
AN Exception of Improbation being proponed against a Writ; and thereafter, Tailzifer of Harycleugh being desired to abide at it, he declared, that he had gotten it as a true Evident, and condescended upon the way he had gotten it; and it being alleged, that he ought to be positive, Whether he would abide at it, or not?  
The Lords declared, That after probation they would consider how far his using and abiding at the said Write should import against him; and if he be in bona fide to use the same.   

D. 143. Dowglas contra Lady Wamphray. 22. Janu. 1668.  
THE Lady Wamphray being provided in an Annualrent out of Lands without respect to a Sors or Stock, and being infeft: It was Found, that she ought to be liable to Taxations and public burdens, being onera patrimonialia, though the said Annualrent was payable to her alswel infeft as not infeft.   

D. 144. Justice contra Stirling 23. Janu. 1668.  
IN the Case, Justice and his Tutors, contra Stirling and Cockburne her Husband: a Bond being granted to a Husband and his Wife the longest liver, and the Heirs betwixt them; which Failyieing to the Heirs of the longest liver: And the wife having survived, there being only one Child of the Marriage;  
The Lords Found, that the Fee of the said Bond belonged to the Husband as dignior persona: And that the Child had Right thereto as Heir to him; and that the Heirs of the Wife could have no Right after the Child's decease as Heirs of provision to the Child: And that the Wife had not the Right of Fee, which she pretended to be in suspense, until it should be determined by the death of either who should be the last liver.   

D. 145. The Town of Glasglow contra _____ Eod. die.  
THE Town of Glasgow having a Right from the Bishop to the parsonage Teynds; pursued a Spuilyie: It was Alleged, for some of the Defenders, that they possessed by Subtacks from Blantyre Tacksman: It was Answered, that Certification was granted against the principal Tack, and that the Subtacks were void in consequence: It was Replied, that the Defenders were not called to the Improbation; and that they being in possession, the Collusion or negligence of their Author cannot prejudge them.  
The Lords, upon a debate amongst themselves, Thought, that Sub-vassalls being in possession ought to be called in an Improbation against the Vassal their Author; because they could not be miskenned being Heretable possessors: But as to the Tenants bruiking Lands by tacks, or Heretors bruiking by Subtacks their own Teynds; They thought, that it could not so well be known that they had Right; and so were not parties necessary to be called: And therefore, before Answer, they ordained to condescend upon the manner and quality of their possession, and whether it was such as the Bishop could not but know. Sinclair & Lockhart. altar Cuninghame.   

D. 146. Simpson contra Adamson. 24. January. 1668.  
UPon Report it was Debated among the Lords, whether a Decreet of poinding the Ground should interrupt prescription of an Annualrent right, being only against the Tenants, the Heretor not called: Some were of the opinion, that the Decreet being null, nullum sortitur effectum: Others thought, that Prescriptions being odious, talis qualis and any Act of Interruption was sufficient: And as Prescription may be interrupted by any Deed of Molestation of Tenants, being a natural Interruption, so it may be interrupted civilly by a pursuit against the Tenants.  
The Lords did not decide the Question, but thought fit to advise further.   

D. 147. Town of Dundee contra E. of Finlater. eod. die.  
THE Town of Dundee being pursued in subsidium for payment of a Debt due by a Rebel, whom they had suffered to escape out of Prison; after Decreet satisfied the Creditor, and took Assignation to the Debt and Bond; whereupon they pursued the Earl of Finlater one of the Cautioners: It was Alleged, That the Town ex delicto had come in the place of the principal Debtor; and payment made by them did liberate the Cautioners, as if payment had been made by the Principal: It was Replied, That the Town was only Liable to the Creditor, who might pass from his Decreet against the Town; and as he might have Assigned the Debt to any other person, The Town as quilibet might have a Right from him.  
The Lords Found, That the Town is not in the case of Cautioners, or Expromissores ex pacto, but of Correi, being liable in Law ex delicto for, and in place of the Principal. Vide 9 July 1667.   

D. 148. _____ contra _____ 25. January 1668.  
THE Lords upon debate amongst themselves, in the case concerning Viccarage; Thought that Yards, for which Viccarage was in use to be paid, being turned into Infield Land and Laboured, The Vicar has no Right to the Teinds of Corns growing thereupon, but the same belongs to the Parson: But they did not decide this point, being only debated incidenter.   

D. 149. Keith contra Grahame. eod. die.  
IN the case of Keith of Craigie, contra Grahame of Creichie, The Lords, upon probation in mutual Declarators anent a Moss, Found, That the Barony of Craigie having pertained to Straiton of Lauristoun; and thereafter a part of the same being Disponed to Keith and his predecessors; and another part to the Authors and Predecessors of Grahame of Creichie, extending the said's Two Parts to the whole Barony; That both the said's Parties had Interest and Right to the Moss in Question, as to Community and Pasture, and casting Peats and Turf: But as to the property of the Moss, they Thought that it should belong to that parcel which was last disponed by the Common Author; seeing he disponed the other part only cum moris & maresus in the Tenendas and Executive Clause; no mention of the Moss being in the dispositive part: So that the property of the Moss remained with himself annexed to the other parcel.   

D. 150. Lady Traquair contra E. of Winton. 1 Feb. 1668.  
THE Earl of Winton, having Right by Assignation to a Bond granted by the Lord Sempil, did grant a Translation in favours of the Lady Traquair, and the Lady Jean another of his Daughters, bearing warrandice from his own Deed; and thereafter uplifted the Debt. The said Ladies pursued the Earl of Winton, as representing his Grandfather for payment of the Sum; because the Earl his Grandfather had uplifted it: The Defender alleged, that the Translation being a Donation of the Fathers in favours of his Children, whereof he was Master, was revocable; and that he had revoked the same, in so far as he had uplifted the said Sum: It was Answered, That the said Translation was out of his hands, having delivered the same to the Pursuers Mother for their use, and that he was obliged to warrant the same.  
The Lords thought, that the Translation being in the Lady Winton's hands being in Law Eadem persona with the Earl, it was equivalent as if it had been in his own hands; and that he might destroy or revock the same: But the Parties being of quality and of near Relation, they did not decide this case; but recommended to some of their number to endeavour an accommodation.   

D. 151. _____ contra Scot and Muirhead her Husband. eod. die.  
MR. Harry Scot's Daughter and her Husband Mr. John Muirhead for his Interest, being pursued as representing the said Mr. Harry for a Debt due by him; The pursuer insisted on the Title of behaving as Heir by Intromission with his, Movable Heirship: It was Alleged, That he could not have an Heirship, being neither Prelate, Baron, nor Burgess: It was Answered, That he had acquired the Land condescended upon to himself in Liferent, and to his Daughter in Fee; which was equivalent as if she had succeeded to him in the said Lands.  
The Lords Assoilied from that Title; In respect he had no Right in his Person, in which she could have succeeded: Some were of the opinion, That if the Right had born the ordinary Clauses, and a Power to dispone and Wadset, notwitstanding the Fee in the person of the Daughter, that in Law he ought to be considered and looked upon as a Baron; being in effect, and upon the matter a Fire. Hay. Clerk.   

D. 152. Paplay contra The Magistrates of Edinburgh. eod. die.  
JOhn Paplay pursued The Magistrates of Edinburgh for payment of a Sum of Money; Because his Debtor Hendry Henderson had escaped out of their prison: It was Alleged, After six years' silence such a pursuit could not be sustained against the Town; and that these who were Magistrates for the time ought to be pursued and discussed in the first place.  
The Lords sustained the Process, and Found, that the Incorporation being persona quae non moritur; The present Magistrates may be pursued for payment of the Debt out of the Patrimony of the Town; without citeing these Magistrates for the time when the Debtor escaped; Reserving Action against the Delinquent, who suffered the Rebel to escape.   

D. 153. Parkman contra Allan. 4. Feb. 1668.  
THE Lords Found, that in the case mentioned 15. January. 1668. until the Ship should return to Sweden, it should be esteemed a Voyage, quoad the Effect and point in question.   

D. 154. Ker contra Ker. 5. February. 1668.  
RObert Ker of Graden having Infeft his second Son Robert Ker in an Annualrent out of his Lands of Graden and others; upon a Contract betwixt them, whereby Graden for the Sum of 6000 Marks addebted by him to his Son. viz. 3000 Marks of borrowed Money, and 3000 Marks for his Portion (accumulatory, and extending together as said is) was obliged to Infeft the said Robert in 360 Marks, as the Annualrent of the said Sum of 6000 Marks; beginning the first Terms payment of the half of the said Annualrent being for borrowed Money, at the first Term after the Contract: And of the other half being for his Patrimony, after his Father's decease: The said Robert the Son pursued a poinding of the Ground for bygones, and in Time coming, the Terms of payment being past: Henry Ker the Pursuers Eldest Brother, compeared and alleged, his Ground could not be poinded, and that he was Infeft therein by a public Infeftment; at least that his Infeftment was public by possession; and that the Pursuers Infeftment is base. It was Replied. 1. That the said Harry his Infeftment of the Lands was posterior to the Pursuers Infeftment, and granted not only by a Father to a Son a conjunct person; who by the foresaid Right praecepit haereditatem; and though he cannot be pursued upon the passive Title of Titulus Lucrativus dureing his Father's Life-time; yet his Mouth is stopped, so that he cannot question any Deed of his Father preceding his Right; and that he is in the same case, as if his Infeftment had been given with the burden of prior Rights. It was further urged by the Pursuer, That the Defender condescending upon his Entry and Initium possessionis, he offered to prove that his Right was clad with possession before that time. It was duplied, That his Infeftment could not be clad with possession, but as to the Annualrent of the 3000 Marks of borrowed Money; so that it is base as to the other 3000 Marks of his portion. It was Triplyed, that the Infeftment was of an entire Annualrent of 360 Marks, as appears by the Contract and Season: And that the Right being of an Annualrent, though payment of the half of the same be Suspended, the Right being a joint and indivisible Right could not be ex parte private, and ex parte public.  
The Lords Found, That the Infeftment of Annualrent, if it should be proven to be clothed with possession as to the half, is public in solidum; and admitted the Reply of possession: But as to the second Reply, viz. That the Defender was haeres per praeceptionem, and could not question any prior Right granted by his Father. The Lords Found it of difficulty and consequence; and reserved the Debate and Decision, until the end of the Process. Hamilton Clerk. Mr. Thomas Lermont. altar Sinclair.   

D. 155. Mr. George Johnston contra Sir Charles Erskine. February 6. 1668.  
THE Lands of Knockhil being a part of the Lands of Hodam, did belong to Richard Irvine, and were comprysed from Robert Irvin Great Grandchild to the said Richard as charged to enter Heir to the said Richard, at the instance of Mr. John Alexander Minister at Hodam: But no Infeftment nor Diligence against the Superior having followed upon the said Comprysing, dureing the said Robert his Life; The Lord Lion Sir Charles Erskine comprysed from Mr. James Alexander Son to the said Mr. John, the Right of his Comprysing, and obtained Infeftment upon the said Comprysing in August 1666. The said Robert's Two Sisters and his Sister's Children, obtained themselves Infeft as Heirs to the said Richard their Grandsire and Fore-grandsire in June 1666. And upon a Right from them, and their Resignation, Mr. John Johnston being Infeft in October 1666. pursued for mails and Duties: The Lord Lion compeared and alleged, that he and the Tenants ought to be Assoilyied in this possessory Judgement, Because he and his Authors had been in possession by virtue of the Comprysing at the instance of Mr. John Alexander, by the space of seven years, whereupon Infeftment has followed. It was Answered, That the Alledgance is not Relevant, unless he had said that he was in possession seven years by virtue of a real Right, which cannot be said, the Infeftment being late and of the date foresaid. It was further Alleged by the Lord Lion, that he ought to be preferred, because he was Infeft upon the said Comprysing at Mr. John Alexander's instance against the said Robert, as charged to enter Heir to the said Richard; and his Infeftment was anterior to the said Mr. George's Infeftment upon the Resignation foresaid of the said Robert's Sister and Nephews retoured and Infeft as Heirs to the said Richard. It was Replied, That no Infeftment or Diligence having followed upon the said Comprysing against Robert in his Life-time; his Sisters and Nephews might have served themselves Heirs to the said Richard who was last Infeft; and de facto was Infeft as Heir to the said Richard, before any Infeftment upon Alexander's Comprysing; so that his Author's Infeftment being prior to the Lord Lion's Infeftment, the Pursuer ought to be preferred: and as Robert if he had been served special Heir to his Grandsire, if he had not been infeft, the next Heir might have been Infeft as Heir to Richard; and an Infeftment upon a Right from them would have been preferable to a Comprysing against Robert; so in this case Mr. George ought to be preferred; the special charge against Robert being only equivalent to a special Service; and no Infeftment having followed in the person of the said Robert or the Compryser. It was duplied, That by the Act of Parliament Ja. 5. Ch. 106. Par. 7. It is declared that Execution against the Appearand Heir being charged to enter Heir should be equivalent as if he were entered; which is the Certification in the special Charge; and upon a Comprysing, if Robert had been Infeft, Infeftment being taken quocunque tempore even after his decease, before any other person had been Infeft upon a Comprysing or Right from a next Heir; The Comprysing against Robert would have been preferable.  
The Lords Found, That the benefit of a possessory Judgement is only competent by virtue of a real Right; and that a Compryser cannot claim the same, without an Infeftment or Charge against the Superior; and repelled the first Alledgance.  
The Lords Found The second Alledgance Relevant, and preferred the Comprysing in respect of the Infeftment thereupon, before the Infeftment upon the Right from the Heirs of the said Richard.   

D. 156. Halyburtoun contra Scott 17. Decemb. 1671  
A Provision granted by a Father to a Daughter for love and favour, being quarrelled by a Creditor upon the Act of Parliament 1621. It was Answered, that the Father the time of the granting of the said Right had an opulent Estate beside, out of which the Creditor might have been satisfied: and the Lords before Answer, having ordained that a trial should be taken of the Defuncts Estate, and Witnesses being adduced to that purpose: It was Found, that the Defence was not proven. It appears that the Defence was not relevant; and that a Creditor is not holden to Debate whether his Debtor had a competent Estate to satisfy his Debt aliunde; and that Debtors can grant no Right without an onerous cause, until the Debt be satisfied. Haystoun Clerk.   

D. 157. Paton contra Stirling of Ardoch. 20. Dec. 1671.  
SIR Henry Stirling of Ardoch did grant a Back-bond in savours of _____ Paton his Sister's Son; whereby he obliged himself, that being satisfied of the Debts due to him, he should denude himself of the Right of the Lands of Panholls which pertained to the said Patons Father: Whereupon a pursuit being intented against Ardoch's Sun, as Heir and Executor to his Father: It was Alleged, that the Bond was granted in Lecto; and could not prejudge the Heir; and that he had a Reduction depending upon that reason: And as Executor he could not be liable, the Bond being anent the Right of Lands, and in effect a reversion which is not prestable by Executors: It was Answered, that the said Bond though on deathbed may and aught to affect the Executry; seeing in Lecto the Defunct might do any deed to burden his Executry: And his obligements at that time are effectual as to his Executry: And Loco facti imprestabilis succedit interest, which is prestable by Executors: And if he had in liege poustie granted a Disposition of Lands, and thereafter having Infeft ane other in the same; he had become incapable to fulfil the obligements thereof, both his Heir and Executor would be liable for damnage and interest; and there is the same reason in this case, the Defunct as to burdening and disposeing of his Executry, being in the same condition as if he were in liege poustie. The Lords before Answer thought fit to try, if the Right was in trust, and if there had been a former Back-bond, which the Pursuers Stepmother had destroyed as was informed, and certain other circumstances. Gibson Clerk.   

D. 158. Lord Maxwel contra Tenants of Duncow. 16. Feb. 1672  
FOund that the Defence upon the Acts _____ against these, who, during the dependence of Process, invade or wound the adverse party, who by the said Acts tyne the cause and forfault their interest in question; being in effect penance and founded upon delinquency, may be proven even before the Lords prout de Jure, as to Order and Ratihabition: which was alleged could not be proven by Witnesses to import the loss of heritage.   

D. 159. Commissaries of Edinburgh contra the Commissaries of Breichen 17. Feb. 1672.  
THere being a competition betwixt the Commissars of Edinburgh and the Commissars of Breichen, to which of them the confirmation of the Earl of Panmures Testament should belong: the said Earl having taken a House and stayed a whole Session in Edinburgh with his Lady Children and Family, in order to the breeding of his Children and other occasiones; and having died there:  
The Lords preferred the Commissars of Breichen, being Commissars of the place where the said Earl had his principal dwelling and his interest and Estate.   

D. 160. Lady Milnetoun contra Sir John Whytfurd. 20. Feb. 1672.  
IN the Process at the instance of the Lady Milnetoun against Sir John Whytfurd; the said Sir John, after the Process had depended long and all endeavours to delay and prevent a Decision, having insisted upon a Reprobator, upon that head, that the Lady's Witness were corrupted: It was Alleged and urged by many arguments, that a reprobator upon the ground foresaid after sentence in foro contradictorio, which is the great security of the People, could not be proven but scripto vel Juramento: And accordingly the Lords Found that it was only probable that way; and yet this day the Lords having again ordained the cause to be Debated, as to the point foresaid anent the probation of corruption after sentence obtained; they retracted their former Interloquitor; and Found, that Reprobators upon the head foresaid are receiveable; and probable prout de Jure, after Sentence.  
These arguments were urged both at the Bar, and in the Debate among the Lords, viz. That Sentences in foro are the great Security of the People; and if these should be convelled, upon pretence of such personal exceptions against Witnesses, there should not be a period of Pleas and Process.  
2. Upon the consideration foresaid many exceptiones, which are admitted before sentence even after Litiscontestation, are not received after sentence; v. g. exceptiones noviter venientes ad notitiam; and ex instrumentis noviter repertis.  
3. Prescription being the great security of the People, ne dominia sint incerta, should be weakened; if after Decreets in foro founded upon 40. years' purchase; the same should be convelled upon probation by Witnesses; that the Witnesses upon whose Testimony the Decreets proceeded were corrupted.  
4. There should be progressus in infinitum if the Testimonies of Witnesses should after sentence be reprobated by other Witnesses: and after sentence in the Reprobator, the Testimony of the reprobatorie Witnesses should be reprobated by others; & sic in infinitum.  
5. Reprobatores were only in use, when the Designation of Witnesses, before they declare, from their duelling and vocation and other circumstances was questioned as false; which being obvious and easy to be known, It is not to be presumed that the reprobatorie Witnesses will declare falsely, anent such points which may be easily tried: But the Corruption of Witnesses being ane occult and unwarrantable practice, it is not to be presumed that witnesses were present and conscious: and the reprobatorie Witnesses may be suborned and declare falsely impune.  
6. Our Law is Jealous of Probation by Witnesses, they being for the most part viles personae and yet habiles: and Writes cannot be taken away by such probation; and Sentences in foro are scriptura publica & solennis.  
7. By our practic dicta testium cannot be questioned post sententiam, though by the common Law and the Law of other Nations they may: and there is less reason to admit personal exceptions contra testes to be proven by Witnesses:  
8. As to the Incommodum, That a Door should be opened to Corruption, if the Testimonies of Witnesses after Sentence, should not be questionable upon that head; It is easily Answered:  Witnesses may be pursued criminally and severely Punished, if they may be discovered to have been Corruped or false. Actores Cuninghame & Lermonth alteri Mckenzie & Harper.   

D. 161. Mr. James Reid contra the Lady Dundie. Feb. 21. 1672.  
AN Infeftment granted to the Lady Dundie by her Husband, in recompense of a former provision she had by her Contract of Marriage and which she had renounced; was questioned by a Creditor who also was Infeft: upon that ground, that the Ladies Right was base: and though Rights granted to Wives upon their Contract of Marriage, or after Marriage when they have no provision, or in recompense of former provisiones; are sustained albeit base; because the Husband's possession is the Wife's possession; yet the Right in question ought not to be sustained upon that ground; In respect the Husband was not in natural possession; the Lands being lyferented by his Mother; and by the Act of Parliament, the possession whereupon base Rights are sustained is only to be understood of natural possession: The Lords preferred the Lady, and repelled the said Defence; upon these considerations, that Infeftments given to Wives in the cases  are construed to be public and are not presumed to be fraudulent: And Wives are not in the condition of other Creditors who may perfect and make their Rights public; whereas Wives can do nothing themselves; and it is to be presumed that Wives are provided by their Husbands: So that these who are to acquire Rights from them aught to inquire if their Wives be Infeft; specially seeing, since the Act of Parliament 1617. anent registration of seasings, they may easily know the same. Cuninghame etc. and for the Lady, Lockhart and Lermonth.   

D. 162. Lord Hattoun contra Paterson. 22. Feb. 1672.  
THE Lords of Exchequer having given the Escheat of the Laird of Craigie Carnagie, to Andrew Paterson: and the Gift being assigned to the Laird of Aytoun by the said Andrew; a decreet was thereupon obtained against the Representatives of the Earl of Dundie, for his intromission with the Goods belonging to the Rebel, whereupon Adjudication or Comprysing followed of the said Earls Estate in Argyle, which was Disponed by the said Laird of Aytoun to the Earl of Argyle: Thereafter my Lord Hattoun Thesaurer-depute having gotten a second Gift; pursued the the said Andrew Paterson before the Exchequer upon that ground, That by Acts of Exchequer it was ordained that no Gifts of Escheat should pass without Backbonds, and the Clerks are Discharged to give out the same otherways; and nevertheless viis & modis, the said Andrew had surreptitiously gotten out the said Gift; and aught to give a Bond that being satisfied of what he can pretend to be due to him by the Rebel, and of the Expenses in passing the Gift; he should denude himself in favours of the second Donator: And that it should be declared that the said Gift should be affected with the said Bond, as if it had been given ab initio: And accordingly the Exchequer did decern and declared: Whereupon the Thesaurer deput pursued a Reduction of the said apprising against Aytoun and the Earl of Argyl, upon that reason viz. That the said Gift, which is the ground thereof, is restricted and qualified, and that the said Andrew Paterson is fully satisfied of what is due to him.  
It was Alleged for the Defenders, that the Gift was pure and simple without any Back-bond; and  the Assigney finding it was such, and there being no Back-bond upon record, was in bona fide to take a Right to the same: And the said Decreet of Exchequer being supervenient, and res inter alios acta, could not be obtruded against a singular Successor, but the Pursuer may have action against the Cedent: The Lords Repelled the Alledgnce, and Found that the Decreet and Back-bond do qualify the Gift both as to the Donator and to his Assigney.  
The said Decision appears very hard upon the grounds abovementioned, and because Backbonds are only personal obligements upon the Granters and do not qualify Rights, being extra Corpus Juris: And his Majesty, in granting Gifts of Escheat single or Liferent, is in no other case than other Superiors; as Lords of Regality having Right to single Escheats, whose Gifts cannot be qualified in prejudice of a singular Successor; but by provisions contained in the Body of the Right: and the import of Backbonds is only, that the Granters being satisfied should be comptable for the superplus; but there is not thereby any tye upon them not to dispose upon the same, being comptable for the price or value of that which they dispone. Colingtoun Reporter: Having heard the cause at the side Barr.   

D. 163. Blair contra Blair. 23. Feb. 1672.  
Witness being examined before Answer ex Officio: It was desired that seeing ex facto oritur Jus, and the Lords being unclear to decide in Jure before the point of fact were cleared by probation; and the point of Law and ground of their Decision is to arise out of the probation; and therefore they may see and debate upon the same: which was refused; seeing publicatio Testimoniorum by our Law is allowed in no case but in Improbations ex quaestione falsi. Mckenzie alteri Lockhart etc.   

D. 164. Neilson contra Elizabeth Arthur. Eod. die.  
ELizabeth Arthur being charged upon a Bond granted by herself; suspended upon that reason, that she was clad with a Husband the time of the granting thereof: It was Answered, she had a peculium and Estate settled upon her by her Father in these Terms, that her Husband should have no interest therein; but that it should be manadged by advice of the Friends named by him for the behoof of her and her Children: And that the Sum charged for was borrowed and employed for her use.  
The Lords Found the Letters orderly proceeded.   

D. 165. Lady Lugton contra Hepburn and Creichton. 13. June. 1672.  
A Decreet being recovered before the Commissars of Edinburgh, at the instance of the Lady Lugtoun, against her Grandchild _____ Hepburne Daughter to the deceased Laird of Aderstoun; Modifying 400. Marks Yearly, for Aliment of the said _____ Hepburne, by the space of 13. Years since her Birth: The Lords in a Reduction and Suspension of the said Decreet, modified the Sum thereincontained being 3500 Marks to the Tenth part of the Sum of 30000 Marks; which was mentioned in the said Decreet, and considered by the Commissars as the Estate belonging to the said Hepburne: So that in respect and upon supposition of the same, they modified the said Aliment: And by reason the said Estate was intricate and litigious, and possibly could not be recovered: The Lords ordained the Pursuer to Assign the Tenth part of the said Estate; not exceeding 3000 Marks; which was done upon that consideration, that the Aliment was modified in respect of the said interest: And if ex eventu it should be Found, that it could not be recovered, and that she had no Estate; it were unjust, that she should be Liable personally; her Grandmother being obliged, at least presumed to entertain her ex pietate materna, if she had no Estate of her own. Monro Clerk.   

D. 166. Grott contra Sutherland. 14. June. 1672.  
TWo Owners of a Ship being obliged by a Contract to Transport Goods to a certain part: The Lords sustained Action against one of them in solidum, for implement of the Obligements in the Contract being facti which is indivisible; and they being socii & exercitores, so that the Fraught might have been paid to one of them; and eadem ratione any one of them is Liable, and may be pursued in solidum. Gibson Clerk.   

D. 167. _____ contra _____ eod. die.  
THE Lords Found, That a Declarator of Right, which ought to be upon 21 Days, being privileged by a Bill which is periculo petentis, should not be sustained being execute upon a shorter time: And Ordained that the Writers to the Signet should nor insert in Bills and Summons a privilege dispenceing with the Law, and the solennes induciae thereby introduced in favours of Defenders, under the pain of 100 Marks for the first fault; and deprivation for the second; except in cases which by the Law are privileged and named: The Precedent, Advocate, and others of their number, to meet and consider what these should be.   

D. 168. Henderson contra Henderson. 20. June. 1672.  
A Bond being produced to satisfy the production in an Improbation: The Lords without further probation did Improve and Decern quoad the Defender; in respect he refused to abide by the Truth of the same. Gibson Clerk.   

D. 169. Grace of Haystoun contra Forbes and Lindsay. eod. die.  
WIlliam Grace of Haystoun having granted Bond to Lindsay; and the said Lindsay having Assigned the same to his Daughter; The said William Grace Suspended upon a double poinding, against the said Assigney and a Creditor who had arrested: It was Alleged for the Creditor, that the Assignation was made by a Father to a Daughter, to defraud Creditors: It was Answered, That the Father by Contract of Marriage was obliged, in case there should be no Heirs Male betwixt him and the Assigneys' Mother, to pay to the Heir or Bairn Female at her age of 14. years. 4000 Marks; and until then to entertain her: And that the Assigney being the sole Bairn of the Marriage, her Father had given the Assignation foresaid for implement of the said obligement.  
The Lords, having considered that the provision by the Contract of Marriage in favours of the Daughters is only in case there should be no Heirs Male of the Marriage, and that the Father should have other Heirs Male of his Body; so that the Daughter should not succeed to the Estate; and that both the Father and Mother are yet living, and of that age that it was not to be expected that the Father would have other Heirs Male of his Body by an other Marriage; and his Daughter was his Appearand Heir whatsomever: Therefore they Found, that the case of the provision in favours of the Heirs Female did not exist, and preferred the Creditor. Lock-heart and Bannerman for Lindsay. Bernie etc. for Forbes. Gibson Cl.   

D. 170. Fergusson contra _____ 21. June. 1672.  
THE Lords Found, That a Party being within the Country, the time of the citation upon the first Summons, and some time thereafter; and going out of the Country before the second Summons, could not be cited at the Pear and Shoar of Leith upon the second Summons; without a warrant in the said Summons to that effect.   

D. 171. The Laird of Hermiestoun contra Cockburn. Eod. die.  
THE Lords Found, That in the case, and in all time coming, where Witnesses are adduced before Answer, they will only allow one Term: so that upon any Diligence, they will admit no Witnesses, but those who are cited by the first Diligence. Mr. Thomas Hay Clerk.   

D. 172. Ramsay contra carstair's. eod. die.  
A Father, in his Contract of Marriage, being obliged to provide the Heir Female of the Marriage, and to pay to her 20000 lib. at her age of 15 years: and until then to entertain her: there being only one Child and Daughter of the Marriage, she and her Husband pursued the Father and his Curators, he being furious, to pay the said Sum. It was Answered, That the said Provision being only payable to the Heir Female, the Pursuer neither had nor could pursue upon that Quality and Interest dureing the Father's Life; specially seeing both he and his Wife the Pursuers Mother, were living, and of that age, that they may have Heirs Male of the Marriage, or other Daughters: And if they should have Male Children, the Case and Condition of the Provision would deficere, and not exist; and if they should have more Daughters, the Pursuer could not have Right to the whole Sum acclaimed It was Replied, That the Father was in effect civiliter mortuus; and the Pursuers would find Caution to refound, in either of the said Cases.  
The Lords Found the Defence relevant, and that such Provisions being settled upon Heirs Female, by reason, and in case of exclusion of the Heirs Female of the Marriage, when Lands are entailed to Heirs Male, and there are no Heirs Male of the Marriage; The Term of Payment could not be understood to be during the Marriage. Strathurd Reporter. Gibson Clerk.   

D. 173. William sandiland's contra The Earl of Hadington. Eod. die.  
THomas the first Earl of Hadington having Disponed certain Lands, with absolute warrandice, in anno 1610: The now Earl of Hadington was pursued as representing his Great Grandfather, to warrant the said Lands from Astriction to the Miln whereunto they were astricted, before the Earl of Hadington Disponed the same: It was Alleged, That the Warrandice doth not extend to the case of Servitudes, such as Common Pasturage, Thirlage, and such like, which are not latent; and may, and are presumed to be known by Purchassers, who ought, and do ordinarily inquire and inform themselves concerning the condition and burdens of the Lands they intent to purchase: specially in the case in question, the multure being not exorbitant: It was Replied, That in Law where praedia, either rustica, or urbana, ut optima maxima, are Disponed, they are Disponed as Libera: And that the Lands in question are so Disponed, it is evident, in respect the Warrandice is absolute, and they are Disponed cum molendinis & multuris. It was duplied, That the Romans were in use to Dispone either simply, or cum ista adjectione, praedia ut optima maxima, the import whereof was, servitutem non deberi: But where Lands are Disponed simply, it is construed and presumed in Law, that they are Disponed talia, and such as they are; And with such accessories, either as to burden or advantage as  veniunt; albeit these be not expressed; as Servitudes either Active or Passive: and as to the Warrandice, it is of the ordinary Style without mention of Servitudes; and it appears from the stile and conception of the ordinary clause of Warrandice, and the speciality thereinmentioned, viz. Wards, Non-entries, Inhibitions, apprisings, etc. That such Incumberances are only intended, whereby the Right or Possession of Lands, or the Nails and Duties, or any part of them are evicted: Whereas in the case of Astriction the Heretor doth enjoy his Lands and Duties of the same entire; and seeing his Corns must be grinded, it is not a material prejudice, that they should be grinded rather at one Miln than an other: and it appears by the Disposition, that it was not actum and treated, that the said Lands should be Disponed ut optima maxima; the Warrandice being in the ordinary terms without mention of Servitudes: And the Clause cum molendinis is only in the Charter and Tenendas, and is ex stilo, and imports only freedom of Thirlage as to the Disponer.  
The Lords upon the foresaid Debate, And that the said Miln was a Miln of the Barony of Torphichen, whereof the Lands astricted are a part; and that the same were astricted before the Earl of Hadington acquired the same; they Found the Defence Relevant and Assoilyied.   

D. 174. Creditors of Tarsappie contra Kilfanes. 23. July. 1673.  
THE Lords upon Debate among themselves, were of the opinion, that a confident person having got a Disposition from a Debtor; may at the Debtors desire satisfy such Creditors as he thought fit, there being no Diligence done by other Creditors: And as the Debtor might have done so himself, so the Trustee may do: And that it is provided so by the Act of Parliament. 1621.  
They Found that the Trustee, if he got any Ease by composition, should apply the benefit thereof, for satisfaction of the other Creditors.  
Item. That he cannot make voluntar payment in prejudice of a Creditor who has done Diligence. Gibson Clerk.   

D. 175. Kilbirny contra Cuninghame. 24. July. 1673.  
IN an Adjudication upon the late Act of Parliament: The Lords modified the price to be 18. years' purchase, as to the certain and constant Rent; and 9 years as to casual Rent of Coal. Gibson Clerk.   

D. 176. Murray contra The Tutor of Stormount. 25. July. 1673.  
BY a Contract of Wadset, the Wadsetter being liable to count for the excrescence of the Duties more than should satisfy the Annualrent; The Lords, in a Process for mails and Duties, Found the Exception Relevant, that the Pursuer was satisfied of the Sum upon the Wadset, by his Intromission, without Declarator.   

D. 177. Ker contra Ruthven. eod. die.  
THE Lords Found, That the Estate of the Earl of Brainford being settled upon the Lord Forester's Son by Act of Parliament, he could not have it but cum sua causa, and the burden of his Debts.  
Item, They Found, That the Earl, having entertained his Grandchild the Pursuer, was to be presumed to have done it ex pietate avita; the Earl being a generous person, and having an opulent Estate; and his Grandchild having nothing for the time, but the Debt in question, whereof the Annualrent was provided and belonged to his Brother. Monro Clerk.   

D. 178. Creditors of Hugh Sinclair contra Annandale. 26. July. 1673.  
THE Lords Found, That a Compryser upon Debts anterior to the Debitor's Rebellion, being Infeft before Year and Day, is preferable to the Donator of the Liferent Escheat. Mr. Thomas Hay Clerk.   

D. 179. Mr. John Bayn contra Caivie. eod. die.  
THE Lords Found, That a Tack being questioned as antedated to obviate an Inhibition, was suspect being razed in the Date; So that the same seemed to be vitiate, and an other year superinduced: And therefore was not a valide and probative Writ in prejudice of the Inhibition: unless it could be adminiculate by some Adminicle before the Inhibition. Mr. Thomas Hay Clerk.   

D. 180. 2. June 1674.  
THE King's Majesty, having by two Letters to the Lords of Session, presented Mr. David Balfour of Forret, and Mr. Thomas Murray both Advocates, to be Lords of the Session: It was moved by one of the Lords, that seeing by the Law and Acts of Parliament, these who are to be admitted to be Lords of Session, should be tried; Therefore the Trial should be such as is intended by the Law; the very Notion of Trial importing, at least a serious, if not a strict and exact way of Trial.  
This was moved, because the way of Trial had become of late so perfunctorious, and dicis causa, that it was ridiculous, and in effect a Mock-Tryal: Some of the Lords being appointed to examine these who were named by the King, and after they had asked some trivial Questions, having made Report, That they found them qualified; albeit it was not only known to the Examinators, but to all the Lords, and notour to the World, that they were altogether Ignorant both of Law and Practic; and did acknowledge it themselves, not daring to expose themselves to sit in the Outer house as Ordinaries; they prevailing with others of the Lords to go out and officiate for them as Curates.  
1. It was urged, that the Estates had considered the Interest of the Kingdom; all Estates being concerned in that Judicatory, that the Lords should be Persons of great Ability and Integrity, seeing their Lands and Fortunes and greatest Interests, are the Subject of their Jurisdiction and Decisions: and therefore it was provided by divers Statutes and Acts of Parliament, they should be qualified Persons, and found upon Trial to be such.  
2. His Majesty's Letter required, that the Persons now named, should be examined effectually.  
3. By divers Acts of Sederunt, and in special one upon the King's Letter, for the time, the way of Trial is prescribed, which is most exact.  
4. The Oath of Admission, that the Lords should be faithful, has and aught to have Influence upon all their Actions, as Lords of the Session, that they should be done faithfully; and the Trial of Lords for the Reason's foresaid, being an important Act of Duty, aught to be done faithfully and sincerely, and cannot be done otherways without breach of Oath.  
5. To pretend to obey the Law, and the King's Letter (which requireth an effectual Trial) in a way which is superficiary, and evidently ineffectual; it is a Cheat, and Circumventio Legis; which in others is hateful; but in Judges, who are Antistites Juris, is abominable, and inconsistent with the Honour and Integrity that should be expected from the Judicatory.  
6. If there were no Trial at all, the Lords would be passive, if Persons not qualified should be named; but being enjoined to try effectually, if they receive them without an effectual trial, they are not free of blame; and are accountable to God, and his Majesty, and to the Parliament.  
To all these Reasons, It was Answered, That at this time the way of Trial that had been for a long time, should be continued at this time; and that the Motion was upon some design.  
The Mover did purge himself upon Oath, that he had no Design, but to do duty; and did attest the Precedent, that before this occasion they had spoken often to that purpose: and did represent, that this is the fit time to put the Law and Statutes in execution; The Persons named being Advocats, and Persons presumed to be able to undergo the Trial; so that it cannot be thought that there is any thing of Design against their Persons: That it cannot be denied, but the late way is abusive; and antiquitas erroris, or abusus, cannot be thought and pleaded to be custom: That in the Year 1629. the Lords by an Act of Sederunt, had renewed and ratified all the former Statutes anent the Trial and Admission of the Lords; and ordained them to be observed; That since that time the Troubles interveened and continued long, so that Prescription cannot be pretended for an abuse which had occasioned so great prejudice and clamour.  
It was Carried, That the Examination should be as it has been of late: and upon the Report of Gosford and Craigie, (appointed to examine them) they were admitted: Gosford was of Opinion that there should be another way of Trial.   

D. 181. Bogie contra The Executors of the Lady Oxenford. 4. June 1674.  
THE Executors of the Lady Oxenford, being pursued at the instance of a Legatar, did in the Compt before the Auditor, give in an Article of Discharge, viz. That the Expenses of a Process at the Executors instance should be allowed: It was Answered, That if the Executor had not pursued that Process, there was as much free Gear as would have satisfied the Legacy, and the Executor had not prevailed: and if they had prevailed, the benefit would only have accresced to the Executor, and not to the Legatars: and therefore penes quem emolumentum, etc. and seeing they would have had no benefit, they should have no loss by the event of that Process.  
The Lords Found, That the Executors, having prosecuted a Process intented by the Defunct, did their duty; and officium should not be damnosum: and therefore the Charges of that Process should not be upon their own account, but should be defrayed out of the Executry: but so, that where Executors have no benefit by the Confirmation, but are either simple Executors, or universal Legators, as to the superplus, particular Legacies being paid, if there be as much executry as will satisfy such Expenses, and the Legacies; the Legacies ought to be paid entirely, before the Executors have any benefit; but if the executry will not amount to satisfy the Charges, and particular Legacies, the Charges are to be satisfied, and the Legacies to be abated proportionally, and the Executor is to have no benefit: but if he be a particular Legatar, he is to be considered with the rest of the Legatars, and to share with them proportionally. Mr. Thomas Hay Clerk. Concluded cause.   

D. 182. Helen Mure contra John Law. 6. June 1674.  
A Relict being pursued, as Executor to her Husband, for a Debt: alleged, she was only Executor Creditor for payment of 2400. marks, provided to her by Contract of Marriage: It was Answered, That the Debt was satisfied, at least compensed; in sua far as she was obliged by the same Contract to give to the Defunct Goods and Gear, to the value of 2400. marks, which she declared she had in penny and penny worth, and was worth the same; (which are the Words) and obliged herself to put him in Possession thereof.  
The Lords Found, That the Husband having lived only 9 years after the Marriage; because of the presumption that he had been silent all the time, and had not craved nor declared the said Sum to be resting; It was therefore to be thought, that he had gotten the Goods, and that the Obligement was satisfied: and yet they thought, that there being so much confidence betwixt Husband and Wife, it were hard to put her to a full Probation: They therefore Ordained her to give her Oath of Calumny, that she had satisfied the Obligement; and to adduce some Probation and Adminicles to prove aliqualiter. Mr. Thomas Hay Clerk. Concluded Cause. Mr. Rodger Hog alteri.  
In the same cause, it being further alleged, that the Huband had paid for his Wife as much Debt as would exhaust that which she had brought with her; and so that she had not paid it effectually.  
The Lords Found, That if she had put him in Possession of the Goods conform to the Obligement; and that they were her own, at least that she had a Right or coloured Title thereto, that she was neither liable to warrant, either as to the eviction of the Goods, or from any Debts; seeing the Husband taketh his hazard, and in Law is liable to the payment of the same.  
Some of the Lords thought, That albeit the Husband be liable to the Creditors of the Wife, whether she perform her part of the Contract of Marriage or not, or whether he got any thing with her effectually or not; yet it were very fit to consider the quality of the Debts of the Wife, alleged paid by the Husband; for if they were such as the Wife could not but know, when she contracted Goods of the value foresaid, and yet she did conceal them; it were a Fraud and Cheat to oblige herself to be worth and give to her Husband, Goods extending to 2400. marks, when she knew she was not worth a Groat, her Debts being so great as to evict the same.  
They considered, that in this case she did not dispone any Goods in particular, but was obliged to a generality, viz. That she was worth Goods of that value; and she cannot be said to be worth in Goods the said Sum, her Debt being equivalent:  Bona are understood debitis deductis.   

D. 183. Act of Sederunt. eod. die.  
THE Lords thought fit to make an Act of Sederunt, and to intimate it to the Advocats; to the purpose following, viz. That when an Alledgance is not admitted, but a joint Probation is allowed before Answer; if there be any other Alledgance found relevant, and admitted to either, Litiscontestation should be understood to be made as to that Alledgance. 2. And likeways as to that effect, that the Parties are concluded, and cannot be heard thereafter to propone any other Alledgance. 3. The Terms being run as to Alledgance not discussed, they are concluded as to the Probation of it, as if the relevancy had been discussed by a formal Act of Litiscontestation, whereas it is remitted to be considered after Probation, seeing often ex facto oritur Jus; and upon consideration of the circumstances after Probation, the Lords have more clearness to determine Relevancy.   

D. _____ 184. contra Hepburn. 7. June 1674.  
THE Apothecary Patrick Hepburn his Son, being pursued as Successor Titulo Lucrativo, for a debt of his Fathers, upon that Ground, that though the Right of Lands granted to him by his Father, was before the Debt; yet it was revocable, and under Reversion to the Father, upon a Rose noble, when he contracted the Debt libeled.  
The Lords assoilyied from the Passive Title foresaid; but reserved Reduction. It appears that the case was not without difficulty; and that albeit future Creditors in some case may reduce Anterior Rights ex capite fraudis; yet this is difficult and unusual: and therefore it had been fit to determine that Point, viz. Whether an appearand Heir, getting a Right revocable, and of the nature foresaid, should be liable at the least in quantum; seeing if the Father had discharged the reversion, he would have been Successor, in respect of the Discharge after the Debt; and the Son was a Child, and the Father reserved and retained Possession, and upon the Matter the Father's not redeeming was a Discharge of the Reversion. Actor. _____ alteri Hog. Concluded Cause.   

D. 185. Cuningham contra Lees. 9 June 1674.  
THE Relict of James Deans, alleging that her Husband had violently torn her Contract of Marriage; pursued his Heir to hear and see the Tenor of it proven, and offered to prove casum amissionis, as said is.  
The Lords, albeit there was no Adminicle in write, sustained the Summons; in respect there is a praesumptio Juris, that there are Contracts of Marriage betwixt Persons of any consideration, so that the Marriage was an Adminicle: and the effect being merely Civil and not Penal, they had no respect to that Alledgance, that the Process was after the Husband's decease, and some 7 or 8 years after the deed.   

D. 186. Paton contra Stirling. eod. die.  
SIR Harry Stirling of Ardoch, on Deathbed, did by a Writ acknowledge, that the Right he had acquired from Doctor Paton of certain Lands, was under Trust, and for surety of Sums, which he had paid for the Doctor; whereupon Doctor Paton's Son intented a pursuit against Ardoch's Heir to declare the Trust, and for Compt and Reckoning: And before Answer, The Lords having ordained Witnesses to be Examined for clearing the Trust; They Found, That by the Probation the Trust did not appear, and that the said Declaration in Lecto could not prejudge his Heir, unless there had been some further evidence, that the Declaration was emitted by the Doctor of his own accord, and upon conviction and for Exonering his Conscience; which did not appear by the Probation. Lockheart and Falconer. alteri Long formacus and Cuninghame. Gibson Clerk. Concluded Cause.   

D. 187. Lady Spencerfield contra Hamilton. 10. June 1674.  
IN the case of the Lady Spencerfield contra Robert Hamilton of Kilbrakmount, The Lords Found, that the Alledgeance, viz. That the Defender could not be Liable as Intrometter, because there was a Gift given of the Defuncts Escheat being Rebel, is not Relevant; unless the Gift were either declared, or were to the Defender himself, or that he had Right from the Donator: For in the first case, he is in condition parallel with an Intrometter, in the case of an Executor confirmed; and cannot be said to be intrometter with the Goods of a Defunct, and bona vacantia, the Right of the same being in a living person per aditionem, and by confirmation; and a third person Intrometting where there is no Declarator, who has not the Gift himself, nor a Right from the Donator, is not in a better case than an Executor discerned: And in the case of a Donator Intrometting, or the intromission of any other having Right from him, there is the pretence and colour of a Right in the person of the Intrometter, which is sufficient to purge vicious Intromission.  
They Found in the same case, that a person entering to the possession of the Defuncts House, by warrant of the Lords: Their possession of the Goods in the House doth not infer Intromission, unless they make use of such Goods as usu consumuntur, or dispose of such Goods, as are not of that nature; as Beds, Tables, and such like. Robert Hamilton Clerk.   

D. 188. Freeholders of Linlithgow contra The Commissioners to the Parliament. 12. June 1674.  
IN a Suspension at the instance of the Freeholders of Linlithgow-shire, against their Commissioners to the Parliament. The Lords Found, that if the Prorogationes and Recesses of Parliament be for a considerable time, so that the Commissioners do or may go home, the Commissioners should not have their Fies, or Charges dureing the same. 2. That if the prorogation be for a short time, and the Commissioners having their Residence at a little distance, in Edinburgh, or Linlithgow shire, do or may go home; they ought not to have Fees dureing that time. 3. If there be Articles sitting, dureing that time, and they do not go home, though they be not upon the Articles; they should have their Fees: Because they are concerned to know, and inform themselves, what is in Agitation in the Articles. Newbyth Reporter. Monro Clerk.   

D. 189. baily Boid contra Store. November 7. 1674.  
THE Lords sustained a Discharge granted by a Master to his Tennent upon payment of his Duty, though it was neither Holograph, nor Subscribed before Witnesses; but pretended to be subscribed by the Granter: Which the Lords did in respect of the Custom; and that Masters and Tenants are in use to give and take Discharges without Witnesses. And that in the case of Writes, Letters, and Bills betwixt Merchants, the Lords are in use to sustain them, though they want Witnesses; and there is the same, if not more reason in the case of Tenants; by reason of the great and exuberant confidence betwixt them and their Masters. Some of the Lords thought it hard to recede from the Law, there being no limitation or exception in behalf of Tenants; & ubi Lex non distinguit nec nos: And that there is a great disparity betwixt Merchants and Tenants, Counts, Letters, and Bills of Exchange, and other Writs of that nature; being secret Transactions betwixt Merchants and their correspondents; whereunto Witnesses and other persons, neither are in use to be, nor is fit they should be privy: Whereas Discharges by Masters to Tenants are in use to be, and there is no inconveniency that they should be subscribed before Witnesses; and there is no difficulty to get Witnesses to them; and if they want Witnesses, and be not Holograph, Masters may be prejudged; It being easy to imitate and forge a single subscription, and there being no means of improbation of the same.   

D. 190. The Town of Innerness contra Forbes of Colloden, and Robertson of Inches and others. eod. die.  
THis case having been Agitated, not without some heat, amongst the Lords themselves; I thought fit to give an account thereof, at greater length, than I have used in other Cases and Decisions.  
The Town of Inverness having Charged the said _____ Robertson of Inches, and Colloden and other Fevars, who hold the Forest of Drakies, and other Lands and Milns, and Fishings of the said Burgh; for payment of their proportions of a Stint imposed upon them, for the use of the Town. And they having Suspended, upon that reason, that the said Stint was unequal as to their proportions, and that the Town had not an Arbitrary Power to impose Stents upon their Neighbours, and Fevars, unless there were an unavoidable, at least a pressing necessity and occasion relateing to the good and interest of the Burgh; and in that case, the Neighbours and Fevars were to be Liable only in subsidium; In so far as the Patrimony of the Town and Common Good should be short, and not extend to defray the same.  
The Lords (Sir John Gilmour being Precedent for the time) did by their Decreet of Suspension, Find the Letters orderly proceeded: But withal, did regulate the way of stenting to be according to the method and Rules set down by the Lords as to the future, which are contained in the said Decreet, and acquiesced to by the Suspenders; the Decreet bearing to be of consent; and containing only a Protestation, that the Suspenders should not be Liable to any Stint, for maintaining and prosecuting Pleas against themselves.  
Thereafter, the Fevars being charged upon another Stint, did Suspend upon that reason only, that the Regulation and Method appointed by the Lords had not been observed: and did intent a Declarator, that they should not be Liable to Stents, but such as should be imposed, in the way and according to the method foresaid.  
Tho there was no other reason in the said Suspension, nor conclusion in the said Declarator, but as is immediately related; yet, another reason was thereafter insisted upon, both in the Suspension and Declarator; and they did plead, that they were exempted, and ought not to be Liable to any Stint upon any account or method whatsomever; by reason, that their Lands, and in special the Forest of Drakies, were Feved to them for a Reddendo and Feu-duty contained in their Infeftments pro omni alio onere.  
The Case not being fully debated at the Bar, Some of the Lords conceiving, that the Lands of Drakies were not a part of the Original and Ancient Patrimony of the Town, but that the same had been acquired by the Town; and thereafter had been Feved out by them in the Terms foresaid for payment of a Feu-duty pro omni alio onere; they were of the opinion, that they could not be Liable to a Servitude, unless the same had been constitute, either by their Infeftments or otherways; But specially in this case, they being free by their Infeftment, and express Clause therein, of all burden or Servitude, but their Feu-duty: And that they could be in no other case, than if the Town of Edinburgh should Feu any of the Lands lately acquired by them, for payment of a Duty pro omni alio onere: And yet the plurality of the Lords were of the opinion, that if the Town could prove and make appear, that they have been in use, by the space of 40 years or above, to Stint their Fevars for defraying their Affairs, and Burdens, and Works of the Town, that they ought to be Liable, notwithstanding of the said Clause pro omni alio onere. And accordingly before Answer a Term is Assigned, for proving the Towns Possession.  
In the interim, The most Eminent of the Advocates, and in special such as were for the Town; being discharged pleading, upon occasion of the Appeals; this case came in Agitation the last Session; and some of the Lords, even these that were of the opinion formerly that the Fevars should not be Liable to be stented, upon the ground and mistake foresaid that the said Lands of Drakes was not a part of the Ancient Patrimony of the Town; they were convinced, upon the production of the Towns Evidents, that the said Lands were a part of the Ancient Patrimony of the Town, being Incorporate and contained in their Infeftments with the Burgh itself, bearing one individual holding and Reddendo: And therefore conceiving, that est Judicis supplere quae desunt Advocatis in Jure, and which arises upon production of the Papers; they did argue, that the Fevars ought to be Liable for these Reasons.  
1: That there is a difference betwixt the Original Patrimony of the Town, which is profectitious, and flows from the Bounty of Princes, and is given to burgh's Royal, for sustaining and defraying their necessary burdens and occasions; and betwixt that, which is adventitious, and acquired by burgh's themselves, by their own Moyen and Means.  
As to the first, The same being given eo intuitu, and to the end, that it should be a Stock for doing and defraying the Common Affairs and burdens, and Charges of the Town, it cannot be given away, nor Feved, but cum sua causa; and so that they should be Liable to Stents and Impositions upon occasions requireing the same: Whereas the other is acquired by Towns as quilibet, and the Fevars ought to be considered as quilibet, and as in the case of other Fevars.  
2. Upon the consideration foresaid, it is statute by divers Acts of Parliament, and in special by the 36. Act. K. Ja. 4. Parl. 3. And the 181. Act. K. Ja. 6. Parl. 13. That the Common Good of Burrows should be observed and keeped to the common profit of the Town: And the said Act of K. Ja. 4th. bears, That Lands, Fishings, Milns, and others belonging to the Burrows, should not be set but for 3. Years allenarly; and if any be set otherways that they be of none avail: And as this is Law, so it is just, otherways, those who have Tenements within Burgh, and who upon occasions are Liable to be Stented, should be unjustly and heavily prejudged, if the Lands and Fishings which, being in the Towns hands, would be liable in the first place to such Burdens, may be given away; so that the whole burden should be rolled over upon them.  
3. The foresaid pretence, That the Fevars were Liable only to the Feu-duty pro omni alio onere; was Answered, viz. That omne aliud onus was to be understood, of any other ordinar duty payable to the Town as Superiors; but does not exempt the Fevars from these munera extraordinaria Patrimonialia, for the  use and preservation of the Town: As in the case of Lands disponed to be holden of the Disponer, for payment of a Blensh or other Duty pro omni alio onere, The Clause foresaid will not exempt the Vasal from Taxations, and the Superiors relief of the same against his Vasal:  
4. It appears by a Ratification of Queen Mary, produced for the Town, That the Town of Innerness had made divers Acts concerning the setting the Lands, Milns, and Fishings, which are ratified by the said Queen; And which, if they were observed, would oblige the Fevars to be liable to to be Stented.  
The said's Lords, Who were of the said opinion, thought, That upon the Grounds and Production foresaid, the Fevars of Drakies ought to be liable without any farther probation, to Stents imposed for the use and interest of the Town; the same being imposed necessarily and equally according to the method abovementioned: And yet the Town having adduced probation by production of the Records out of their Books and Witnesses; they considered and thought, that the possession of the Town, by imposing their Stents by the space of 40. years, was proven: In respect, it appeared by the Extracts out of their Books, That from the year 1624. until 1664. they have been in use to impose Stents in case of Exigency, for the private use and concerns of the Town; Notwithstanding of what was alleged at the Bar, against the said probation, and in special, that the Books themselves ought to be produced; whereas there was nothing produced but Extracts of Acts, and that the probation, that the Town has been in use to Stint for repairing their Bridge, did not quadrate to the case and point in question; seeing it was to be proven that Stents were imposed for the private use and concerns of the Town, and the Bridge and repairing of the same is of public concern and interest, relating not only to the good of the Town, but of the whole Shire: And the Record, anent Stint in relation to the Bridge being out of the way, and not considered as a probation; It was not proven, that the Town had been in Possession 40. Years.  
Nevertheless, The plurality of the Lords did Find the Alledgeance foresaid of Possession, by the time foresaid, not proven; upon that ground that the Bridge was not to be considered as the proper concern of the Town: And did suspend and declare in favours of Inches and other Fevars: Divers of the said's Lords dissenting upon the Grounds foresaid; and that it appears to them, that the Fevars, upon the account of their Lands, were Liable to be Stented, being the ancient and proper Burgal Patrimony of the Town: And albeit a continued tract of Possession by the space of 40. years, which hardly is to be expected in servitutibus, or impositions that are discontinue, could not be made out, as they conceive it was; yet the Fevars having homologate and consented, and submitted to the said Impositions without repining, until after the Year 1664. That they did not so much question the Town's Right to impose upon them the said Stents, as the exorbitancy, and frequency, and inequality of the same as to their proportions; they could not be heard now to plead and pretend exemption from the said Stents.  
The Lords having Found as said is, That the Lands of Drakies were not liable to the said Stents: The said _____ Roberson of Inches in behalf of himself and some other Fevars, having only appeared in the debate, and Forbes of Colloden, who thought himself concluded by the above-written Decreet of Suspension, and has consented to the same; did notwithstanding desire, that he might have the benefit of the said Interloquitor, and that the parcel of Land, which he had in the Forest of Drakies, might also be declared free of Stents; seeing there was eadem ratio, and so there aught to be idem Jus, as to him and the said other Fevars.  
It was Answered for the Town of Innerness, That he could not be heard, in respect of the said Decreet of Suspension in foro, and of his express consent therein contained. Whereunto it being Replied, that the consent was only as to the individual Stint thereinquestioned, and did not conclude him as to other Stents; and that notwithstanding thereof, it being now Found, that the Forest of Drakies, whereof his was a part, was free; the immunity foresaid could not be denied to him. It was Answered, and the said dissenting Lords were of the opinion, that a Decreet in foro did bind him whatever others could pretend: And it was evident by the said Decreet, that it was then the Lords meaning (Sir John Gilmour a person of great Parts and Integrity being then Precedent) that all the said Lands of the Forest of Drakies should be liable in all time coming; and his consent is most positive and express to the Regulation of Stenting as to the future: And the said Consent being premitted to the whole decerniture of the said Decreet, doth influence and affect all the Articles and Heads of the same, unless it had been limited and special as to an or moe, and not all: And it was so far from being limited to the Stint then in question, that there is a Protestation subjoined to the decerniture in these Terms, That Colloden and the Suspenders do protest, that they should not be liable to such Stents as should be imposed, for maintaining the Plea against themselves; And exceptio & protestatio firmat Regulam & Sententiam in non exceptis, & iis, contra quae non emissa est protestatio.  
The Lords notwithstanding Found, That Colloden should be free of Stents, as to such Parcels as he had of the Lands of Drakies.  
Thereafter the Town of Innerness did allege, that the Suspenders ought to be liable as to the Milns and Fishings, that they held in Feu of the Town, seeing they are undoubtedly the ancient Patrimony of the Town: and they offer them to prove, that they have been in use, past memory, to stint the same with the Burgal Lands when occasion required, not only for Taxations, imposed by Parliament, but for the private use of the Town.  
It was Answered, That the said Alledgance was not now competent; seeing the Debate, whereupon the Interloquitor proceeded, was concerning the Suspenders Feves, which they hold of the Town, which comprehend both Lands, Milns, and Fishings: and there is no reason of difference, why the Milns and Fishings should be in an other case than the Lands.  
It was Answered for the Town, That in all the Debate, there had been no mention of Milns and Fishings; and they were content to make Faith, that they did not understand the Debate to be concerning the Milns and Fishings, but only the Lands of Drakies; And if they had thought that they had been concerned to prove their Possession as to the Milns and Fishings there was that speciality that they might have proven more clearly their Possession, as to the Milns and Fishings, than as to the Lands: and now they are able to prove the same.  
Some of the Lords thought, That the Question being of that Importance to an Incorporation, and they wanting the Assistance of their most able Advocats, upon the occasion abovementioned; and the exception being undoubtedly relevant to infer their Right, and the conclusion of their Declarator, as to the Milns and Fishings, that they should be liable to be stented if it were proven; It were hard, that their Right should be taken from them upon a quirk, and pretence of Omission, being upon a mistake, as said is. In end, the Plurality of the Lords did Declare, by their Interloquitor, That if in November the Town should be able to make appear by ancient Records, that they had been in Possession of stenting the Milns and Fishings, with the Tenements of the Town, when Impositions and Stents were laid on by the Town only (and not by the Parliament) for their private use, that the same should be liable as other Burgal Lands.   

D. 191. Hamilton contra the Earl of Kinghorn. 11. November 1674.  
JAmes Mauld of Melgum, having assigned to James Hamilton two Bonds, and he having intimate his Assignation to the E. of Kinghorn granter of the same, did thereafter write to the said Earl, showing him that he had use for the Sums contained in the said Bonds; and that he desired a course might be taken to pay the same: And in Answer to his Letter, the said Earl did Write and subscribe a Postscript upon a Letter written to him by the said James Mauld, to that purpose, that the said James Mauld had assured him, that he had made the Assignation foresaid upon assurance that my Lord should not be troubled to pay the said Debt, and that he was about to take a course to that effect: but that notwithstanding, if he must be his Debtor, he should take a course to pay the Annualrent; but as for the Principal Sum, it was not foreseen by him, that he should be put to pay it at that time, and he desired forbearance. And thereafter being charged, the said Earl suspended upon that reason, that the said Bonds were granted by him to Melgum for the price of Lands Disponed by him to the Earl; and by a Back-bond of the date of the said Bands, Melgum was obliged to Warrant the Rental of the said Lands for two years: and quatenus the Tenants should be short in payment of their duties, the time forsaid, he should pay wherein they should be wanting, and that the Earl might retain in the first end of the foresaid Sums: And that the said Earl had got a Decreet against the Tenants of the said Lands, for payment of the Sums therein contained; and  that he had ground of retention and compensation upon the foresaid Bond granted by Melgum effeirand to the Sums restand by the said Tenants. Whereunto It was Answered, that though Compensation competent against the Cedent is competent against the Assigney, yet where there is not only an Assignation which is the deed of the Cedent; but a delegation, and the Debtor doth accept and consent and becomes Debtor, as in this case, as appears be the foresaid Letter written to the charger; compensation is not receivable. It was Replied for the Suspender, that the Letter is not positive that the Suspender should become Debtor, but only in these terms if he must be Debtor to the charger; and that upon the matter he is not Debtor to him, in so far as he has a ground of compensation. Whereunto It was Answered, That these Words, If he should be Debtor are to be understood only, in Relation to the Compliment and Assurance contained in Melgum's Letter, viz. If he should not take course himself with the said Debt; and that the Letter is positive, that the Earl should pay the Annualrent, and also the Principal Sum, which he could not do presently: and if the Earl had intended to compense, he should have told the Charger, that he had a Ground of Compensation, in which the Charger would have had recourse against the Cedent, and would not have relied upon the Suspenders Letter.  
The Lords Found the Letters orderly proceeded, in respect of the said Answer and Letter.   

D. 192. Gordon contra Pitsligo. 12. Novemb. 1674.  
MR. Thomas Gordon and his Father pursued the Lord Pitsligo, upon a Promise to enter them to certain Lands, which they had acquired, holden of him.  
It was Alleged, That if there was any such Promise, it was to be performed in write, by a Charter to be granted by the Defender; and there is locus Poenitentiae until the Charter be subscribed. It was Answered, That the Promise was referred to the Defenders Oath: and albeit there is locus poenitentiae in Synalagmis, and Contracts; yet where there is a positive Promise to give or do any thing, the same being verified, aught to be fulfilled; and there is no locus poenitentiae upon pretence that it should be fulfilled in Write.  
The Lords repelled the Alledgance, in respect of the Answer foresaid. Monro Clerk. Newbyth Reporter.   

D. 193. Paton contra Ardoch. eod. die.  
WIlliam Paton Son to the deceased Dr. Paton, pursued  
Stirling, and Sir Harry Stirling of Ardoch, as representing his Father, for Implement of a Writ, granted by his Father on Deathbed; whereby he was obliged to denude himself of the Lands of Panholls, being satisfied of such Sums of Money as should be found to be due to him by the said William and his Father, after Compt and Reckoning.  
It was Alleged for the Defender, That his Father had acquired a Right to the said Lands, from the said Dr. Paton, being his Brother in Law, having married the said Sir henry's Sister, upon a Back-bond, containing a Reversion in favours of the said William, the said Sir Harie's Nevoy: and that thereafter the said William being Major, had discharged the Reversion; so that the Defunct, and now his Heir has an irredeemable Right to the said Lands: and that the same pretended Deed on Deathbed, could not take away the same.  
It was Replied, That the Defunct on Deathbed did, and might exoner his Conscience, by a Declaration, that the Discharge of the Reversion was on Trust: And there were other Adminicles and Presumptions concurring, to evince that it was a Trust; viz. The near Relation of the Parties; the Defunct being the Pursuers Uncle, and that the Bonds granted by the Doctor, either to the Defunct himself, or to other Persons from whom Ardoch had Right, were not retired; which would have been, if the Right in Ardoch's Person had not been on Trust: It being against Reason, that Ardoch should have both Right to the Lands, and to the Debts, for which the said Right was granted. It was duplied, That the Defender being an Infant, neither doth, nor is obliged to know what was betwixt his Father and the Pursuer, unless there were a Writ to clear the same; and his irredeemable Right by the Discharge of the Reversion, cannot be taken away by Presumptions: and that a Writ on Deathbed, upon what pretence soever, cannot prejudge the Heir: And it cannot be thought, but that if a Trust had been intended, the Pursuer would have taken a Back-bond as he had done formerly; and the Defenders Father might have given a Discharge of the said Bonds as to personal Execution.  
The Lords Found, That the Trust was not proven: and that the Declaration on Deathbed could not prejudge the Heir. Thereafter it was urged for the Pursuer, That at least he should have Action against the Defenders as Executors, for affecting the movable Estate belonging to the Defunct, and in Implement of the said Write, at least in subsidium, as to Damnage and Interest.  
Upon a Debate amongst the Lords themselves, It was urged, That the said Writ, being in effect a Reversion, was only prestable by the Heir, who only could denude himself of the Right of the said Lands: And persons on Deathbed, ipso momento that they become Sick, they lose their legitima potestas, either as to prejudging their Heirs, or their Bairns and Relics: And they cannot dispose of their Deads' Part, but by a Nomination, or Legacy, and a Reversion could not be given, by way of Legacy.  
The Lords Found, That the said Write could not affect the Executry. Gibson Clerk.   

D. 194. The Executors of the late Bishop of Edinburgh contra the present Bishop. eod. die.  
THE Executors of the late Bishop of Edinburgh, Pursued the Commissars and Procurator Fiscal, and the now Bishop of Edinburgh for the Quots of Testaments, that were either confirmed, or had fallen by the decease of Defunct persons; and were confirmable before the said late Bishop's Death, and fell under his Executry: And also for the Quots of all Testaments confirmed, or confirmable for the half year, after the said Bishop's decease, and falling under the Ann.  
The Lords Found, That the Quots of Testaments, that were not confirmed, did neither fall under the Bishop's Executry, nor the Ann; But only the Quots of such Testaments as were confirmed, either in the Bishop's Life-time, or during the Ann: Upon these Grounds, which were debated at the Bar, but more at length among the Lords themselves; viz. 1. The Quots of Testaments do not belong to Bishops, as having a share and interest in the Movable Estates of Defunct Persons after their decease; which are only divided betwixt their Executors, and Bairns, and Relict; but the said Quots, are in effect Sentence, or Confirmation Silver, which is given to the Bishops upon that account and consideration, That by their Sentence or Confirmation (which is instar Sententiae being actus voluntariae jurisdictionis) The Defuncts Estate is secured to be forthcoming to all persons concerned, both Creditors, Relict, Bairns and others: And therefore, until that be done, there is no Quot, nor confirmation-silver due. 2. The Lords of Session had, by Act of Parliament, as a part of their Salary, Sentence-Silver, viz. Twelve pennies of the pound, until the same was taken from them by Act of Parliament their Salary being enlarged, and settled upon them otherways: And, if during the time, the said Lords had their Sentence Silver, any of them had deceased before Sentence, though the Process had been commenced and advanced beyond Litiscontestation; it cannot be said, that the Executors, of a Lord deceasing before the Sentence, could claim any part of the Sentence Money, where the Sentence is pronounced after his decease. 3. By the 28. Act of his Majesty's Parl. 1661. the Quots of Testaments are discharged; and yet the Bishops being restored to the Right of Quots, the same will be due for any Testament confirmed thereafter, notwithstanding of the said Act of Parliament; whereas, if Quots were due from the time they became confirmable, they could not be claimed, though confirmed, since the Bishops were restored as said is, to their Quots, as being discharged by the said Act of Parliament.  
The Lords did also Find, That the Bishop's Relict and nearest of Kin had Right to an Ann, even before the late Act of Parliament (being the 13. Act of the 3. Session of His Majesty's second Parliament, concerning the Ann, due to the Executors of Bishops and Ministers) In respect by a Letter of His Majesty's Grandfather in anno 1613. and Act of the Bishops thereupon, an Ann was Found to be due to the nearest of Kin of Bishops: But in regard by the said Letter and Custom, before the said late Act of Parliament, the Ann in relation to Bishops, was, if the Bishop deceased before Michaelmass, after the Month of _____ his Executors had the half of that year, as belonging to the Bishop's Incumbent Jure proprio; and the half of the next year as Ann; the half of the Rent of his Benefice for the half year preceding Michaelmass, the other half being due to him as Incumbent, and fallen under his Executry: Whereas by the late Act, the said Ann is so ordered, that the Bishop or Minister surviveing White-sunday, the half of that year does belong to him and his Executors upon account of his Incumbency; and the other half for the Ann: And the Incumbent surviving Michaelmass, he is to have the whole Year as Incumbent, and the half of the next year is to be Ann: Therefore the Lords Found, That the late Bishop having deceased before Michaelmass, and before the said late Act of Parliament, the Ann should be as it was formerly.  
In the same Process, It was debated among the Lords more fully than at the Bar, whether the Quots of Testaments should fall under the Ann? And it was urged by some, that the Quots of Testaments are but casual Obventions; and that they are due as said is, upon the account foresaid. viz. That Testaments are confirmed by the Bishop, or his Officials, and ratione operae, and as Sentence-Silver; so that they cannot be due, but to the present Incumbent, who does a duty; and that Compositions for entering of Vasals and Liferent Escheats and Non-entrys, and such like casualties do not fall under Ann. Whereunto It was Answered, That by the King's Letter, by the Act of Parliament, and by the Canon Law, the half of the Rent of the Benefice, Stipend, and Living fall under the Ann; and the Quots of Testaments are a considerable part of the Bishop's Rent, especially in Edinburgh; and undoubtedly is a part of his Living and Benefice: And the Rent of Milns which is casual, and depends, where there is no astriction, upon the arbitrary will of Parties to come, or not to come to the same, and is likeways due ratione operae; doth fall under Ann: As also the Rent of Fishings, and such like which are casual: And there is a great difference betwixt Quots, which is an ordinary yearly Rent, and cannot fail so, but there will be still Testaments confirmed; and the casualties of Superiority as Liferents etc. which are so uncertain; as that it cannot be said, they are the Bishops Living: And the Argument, that Quots are due ratione operae, and by reason of actual confirmation, which cannot be due by the Executors or Relict, is of no weight; seeing the other constant Rent of Stipends and Benefices is due ratione operae, and because the Bishop or Minister serveth, which is not prestable by Executors or Relics.  
The Lords, notwithstanding, inclined to Find, That the Quots do not fall under the Ann: but upon the motion of some of their Number, that the Interloquitor, being to be a preparative, should be further considered, they thought fit not to proceed to the Voting. Gibson Clerk. Forret Reporter.   

D. 195. Craig contra Edger. 20. Novemb. 1674.  
THE Lords Found, That a Bond bearing Annualrent, being Assigned by a Woman, to her former Husband by her Contract of Marriage; and the Assignation not being intimate, a Retrocession did settle again the Right of the said Bond in the Person of the Wife; Quia unumquodque dissolvitur, eo modo quo contrahitur: And the said Bond being thereafter assigned in favours of the second Husband, he and his Executors had Right to the same; and that it was not in bonis of the first Husband, though the Retrocession was not intimate until after his decease. Lord Glendoick Reporter. Mr. John Hay Clerk.   

D. 196. Thoirs contra Tolquhon. eod. die.  
MR. David Thoirs, in an Improbation at his Instance, against Tolquhon, of a Bond, did crave Certification, because the Principal was not produced, but an Extract out of the Commissars Books of Aberdeen.  
The Lords, upon a Report, having debated amongst themselves, what was fit to be done in the said Case, seeing it appeared that the said Pursuit was intented, not of design to question the Bond, upon evident and probable Grounds of Falsehood, but only to have it produced; and it appeared by many Presumptions, that the Bond was a true Deed, and never questioned by the granter ex capite falsi, though he had suspended upon other Reasons; And there had been much diligence by Decreets, Horning and Comprysing upon the same; and yet the Bond being of an ancient Date, beyond 40 years, there was no person living that could prove the Tenor thereof, and declare that they knew the same to be a true Deed: And on the other part, the Lords could not refuse to grant Certification, seeing an Extract does not satisfy in an Improbation, where the Principal was not produced.  
It was moved by some of the Lords, That if the Pursuit was not intented within the years of Prescription, that it should not be sustained; seeing albeit causa falsi doth not prescrive, where the Paper or Subject craved to be improven is produced; and the Pursuer offers to improve and make it appear that the same is false; yet when the Improbation is only to try the condition of the Defenders Right, and in order to a Certification, if the Principal cannot be exhibit, it is not properly causa falsi: And the effect of the Certification is only that the Writ for not production should be holden as false praesumptive, and fictione Juris: And upon the matter it is but a Reduction for not Production.  
The said Point being of great Concernment, and the Debate being upon a Bill, and the Process not produced, that it might appear whether it was intented within the 40 years or not, it was not decided.   

D. 197. Cranston contra Brown. 21. Novemb. 1674.  
A Testator having left by Testament a Sum of Money, due upon an Heretable Surety; and having named his Sister as Executor and universal Legator, she was pursued for payment of the said Legacy; at the least, that being likeways Heir, she should denude herself of the Right of the said Sum.  
It was Alleged for her, That the Subject being Heretable, the Defunct could not bequeath the same in Testament.  
It was Replied, That when res aliena is left in Legacy, the Executor in Law tenetur luere, and aught to redeem the same, or pay the value; and multo magis in this case, the Testator having in effect left res sua, though upon the matter res aliena as to the power of disposing of the same on Deathbed, or by Testament: And therefore the Executrix, if she be Heir, (as she is in this Case) ought to give the same: and if she were not Heir, aught to redeem the same, as said is.  
The Lords, upon the debate amongst themselves, considered, that in Law, legatum rei alienae is effectual if the Testator sciebat rem alienam; whereas si nesciebat, it is to be presumed he would not have left that which was not his own; and though the Testator upon mistake was ignorant that it was res aliena, yet if the Legator was of so near Relation that it was probable he should have left the legacy, at least the value, if he had known it was res aliena, the Legacy was effectual: And that in the case in question, the Legator was the Defuncts Nevoy by his Brother, and the Sum that was left was his own, though Heretable as said is; and the Testator either knew that he could not dispose of the same being Heretable, and was presumed and obliged to know the Law; and if he was ignorant in point of Law, ignorantia Juris nocet: and therefore the Lords inclined to sustain the Legacy. But one of their Number having desired, that the Decision might be delayed while the next day, that he might have his thoughts upon the Case, the same was delayed. Strathurd Reporter. Mr. John Hay Clerk.   

D. 198. Pilton contra the Creditors of the Lord Sinclair. 30. November 1674.  
THE deceased Lord Sinclair, having married his Daughter with John Sinclair younger of Hermiston, did dispone to him his Estate, with the Burden of his own proper Debts, mentioned in the Right; and took a Bond for an Annuity of 8000 marks, first in the name of John Watt, and thereafter the said Bond being given back, he did take another Bond, for the said Annuity during his Life-time, in the Name of George Cockburn of Pilton: Whereupon the said George did diligence by Comprysing and otherways, against the said John Sinclair of Herdmanston; and did also take the said John Sinclair's Liferent Escheat. And upon the Grounds foresaid, and a Suspension of double Poinding against him, divers Creditors of the Lord Sinclair did question Pilton's Interest upon the foresaid Bond, as being fraudulent, and a contrivance to frustrate Creditors, and to secure so considerable an Interest for the use of the Debtor, contrare to the Act of Parliament, 1621.  
The Lords, notwithstanding, preferred the said George Cockburn, as having Right to the Duties of Herdmanston's Estate, by virtue of the said Gift of Escheat; reserving to the Creditors their Declarator of Trust, or Reduction upon the said Act of Parliament: And accordingly the whole Estate of Herdmanston being set in Tack thereafter, the Tack-duty is payable to Pilton, and the other Creditors in order, conform to the said Decreet.  
The Tacks-men being charged at the instance of Pilton, Did Suspend upon double poinding, pretending they were troubled by other Creditors of the Lord Sinclair: And the said Creditors compearing, did allege, that they ought to be preferred to Pilton, in respect his interest ab initio by the said Bond for the Annuity foresaid of 8000 Marks, was a fraudulent contrivance, in prejudice of the Lord Sinclair's Creditors; that the foresaid Annuity might be secured to him in the Person of Pilton his Friend and Relation; and thereupon might live plentifully, his Creditors being defrauded, and suffering in the mean time: And that the Gift of Escheat of Herdmanstons' Liferent, being granted intuitu, and upon account of the said interest; laborat eodem vitio, and was in effect to the behoof of the Lord Sinclair.  
It was Answered for Pilton, That though the said Bond was granted to him, without an Onerous Cause; yet intuitu of the same, and thinking that he was thereby secured, he had bona fide alimented my Lord Sinclair, and had paid to himself, and had engaged to others for him, to pay divers Sums of Money, before any interruption made by the Creditors; So that before any Diligence done by them, his Right became Onerous, and the Gift of Escheat of Herdmanston's Estate was taken by him, to secure himself as to his relief: And that the King and Exchequer did, and might give the said Gift to him upon the consideration foresaid; and thereupon, in the former Decreet of multiple poinding, he was preferred to all other Creditors: And that his Majesty had also gifted the Liferent Escheat of the said Lord Sinclair, to Mr. George Gibson, upon a Back-bond, that thereby he and the other Creditors thereinmentioned being satisfied, the superplus and benefit of the said Escheat should be applied for the Aliment of the said Lord Sinclair: And therefore, though Pilton should not have Right as he had to the said Tack-duty, the foresaid Annuity and Gift of Escheat of Herdmanston's Liferent would accrue to Mr. George Gibson Donator, to the uses foresaid; and fall under his Gift.  
It was Answered for the Creditors, That they were content the Lords should modify an Aliment for the Lord Sinclair: And that Pilton's interest should be sustained effeirand thereto; the Superplus being applied, as it ought to be, for their satisfaction.  
The Lords, for the most part inclined to Find, that George Cockburn's Right to the said Annuity was Onerous, In sua far as he could instruct, that he had paid to, or for the use of my Lord Sinclair, any Sums of Money before the Creditors Diligence.  
Yet some were of the opinion, That the Laird of Hermanston having Married my Lord Sinclair's Daughter, and having given the said Bond for the Annuity, dureing my Lord Sinclair's Life-time, was a downright contrivance, contrare to the Act of Parliament 1621. to the end that the Right to the said Annuity, which if it had been taken in the person of my Lord Sinclair himself would have been liable to his Creditors, might be so conveyed in the person of another, that it should not be liable to the said Lord Sinclair's Debts; and being ab initio fraudulent, it continued still: And Pilton's applying any part of the same, for the use of my Lord Sinclair, was so far from purgeing the Fraud, that by the Act of Parliament, it was a clear evidence and probation of the same.  
And yet they thought, That Pilton having out of respect to his Friend lent his name inconsiderately, he might thereafter for his security take, and the Exchequer might give Herdmanston's Liferent Escheat, upon the account foresaid; and the same cannot be thought to be to the behoof of my Lord Sinclair, unless it had been either procured by my Lord Sinclair, or granted expressly for his use: And as to my Lord Sinclair's own Liferent, His Majesty and Exchequer might qualify the Gift as they they thought fit; and His Majesty might have been concerned upon many considerations, that my Lord Sinclair should not want an Aliment; and might either have detained his Liferent in his own hands, in order to his Aliment, or given the same sub modo, and with the Burden thereof: And the said Gift was given as to the Superplus foresaid, for the Lord Sinclair's Aliment, not to be modifyed by any other, but by the Exchequer, and at their sight and direction, as the said Gift bears.  
Upon the Grounds foresaid the Lords did prefer Pilton conform to the former Decreet. Sir David Falconer and others for the Creditors alteri Dalrymple.   

D. 199. Auchintoul contra Inns. 10. Decem. 1674.  
THE Lords Found, That a person being pursued as representing his Father or other Predecessors, and denying the passive Titles, the same aught to be proven; and that the Defender, by proponing a Defence in Jure, as in the case in question, that Annuities were discharged by the late Proclamation, does not confess the passive Titles: But if he should propone a defence founded upon a Right in the person of his Predecessor, it would conclude him; so that he could not pretend that the passive Titles should be proven. Newbyth Reporter. Vide 20. January 1675. Carfrae contra Talzifer.   

D. 200. Stuart contra McDuff. 11. Decem. 1674.  
IN a pursuit for payment of a Sum of Money, It being Alleged, That the Pursuer had intrometted with Movables and Goods, to the value of the Debt libeled pertaining to the Defenders Father, for whose Debt he was pursued; and that it was to be presumed, that he had got the saids Goods in satisfaction of the same Debt, unless he should allege and prove an other Cause.  
The Lords Found, That if the Defence should be proponed in these Terms, that the Pursuer had got the saids Goods in satisfaction, and that they were data in solutum; the Defence ought to be positive, and that the delivery of the Goods was probable by Witnesses; but the quality foresaid could not be proven otherways, but by the Pursuers Oath: But if the Exception was proponed, so as to infer compensation, viz. That the Pursuer had Intrometted with the saids Goods to the value of the Debt; that it ought to be verified instanter by Write or Oath. Castlehil Reporter. Hamilton Clerk.   

D. 201. Home and Elphingston contra Murray of Stenhop. eod. die.  
IN a Competition betwixt an Assigney and an Arrester; It was Alleged, That the Assigney should be preferred, because the Assignation was anterior to the Arrestment; and though it was not intimate, yet the equivalent was done, in sua far as, the Debtor being desired to make payment to the Assigney, and showing his Assignation, did promise to pay the same, which upon the Matter, was like a Bond of Corroboration, which certainly would prefer the Assigney, notwithstanding he had not intimate his Assignation.  
The Lords Found, That if the said Promise were verified by Writ, it should exclude the Arrester; but that it could not be proven by the Debtors Oath, in prejudice of the Arrester: And even as to the Debtor, the said promise could not bind him, being made in contemplation of a Right supposed to be in the person of the Assigney; Which being Found, not to be a valid Right, there were no reason that the Debtor should pay twice.  
And whereas it was pretended, That if the Debtor had not accepted the Debt, and promised payment, the Assigney would have done Diligence, so that he would have been preferable to the Arrester; The Lords thought, that sibi imputet that he had not perfited his Right, as was Found before in the case of Pitfoddels contra Donaldson. Forret Reporter, Gibson Clerk.   

D. 202. Mowbray contra Arbuthnet. 12. Decem. 1674.  
IN a Process for the single avail of a Marriage; The Lords modifyed 9000 Marks, the Rent of the Lands being proven to be 3000 Marks: and it was thought, that the avail of the Marriage should be in all cases of that nature, 3. Years Rent.   

D. 203. Lord Balmerinoch contra The Tenants of Northberwick. 13. Decemb. 1674.  
THE deceased Sir William Dick having charged the Lord Balmerinoch for payment of a great Sum of Money due by a Bond, granted by his Father, and divers other Noblemen, who were Actors in the late times; and did borrow the said Sums for the use of the public (as they called it) and the said Lord Balmerinoch having Suspended upon divers Reasons, and also upon a Reason of Compensation Founded upon a Bond granted by the said Sir William to Sir John Smith; whereupon the said Sir John had a Right to the Lands of Northberwick; and had Assigned and Disponed the said Debt and Right in favours of the Lord Balmerinoch, by a Disposition and Assignation Blank in the name of the Assigney; and no Decreet being Extracted upon the said Process; and the Act of Parliament anent public Debts, that no Execution should be for the same, having interveened;  
The Lord Balmerinoch having filled up the said Assignation, in the name of James Gilmour, did intent in his Name, a Process for Nails and Duties, against the Tenants of Northberwick.  
The Creditors of the said Sir William Dick pretending Right to the said Lands by divers Infeftments, did compear in the said Process, and alleged, that the said Right, whereupon the pursuit was Founded, was extinct and satisfied, In sua far as, the said Lord Balmerinoch had Founded a Reason of Compensation upon the same, against Sir William Dick, which was sustained; and whereupon there was a Minute of a Decreet Suspending the Letters against Sir William Dick for the Debt : And that the said Assignation granted by Sir John Smith had been given up to Sir William Dick, or his Son Sir Andrew, as their Evident; for Exonering the said Sir William of the Debt compensed upon.  
It was Answered, That there was no Decreet in that Process of Suspension, against Sir William Dick: And as to the said pretended Minute it was not produced: And whereas it was desired, that William Dounie, who was Clerk for the time, should be examined upon Oath concerning the said Minute; and the giving up the said Assignation to Sir William Dick or his Sons; It was urged, that the Minutes and Acts of Process could not be made up by Witnesses, Et non creditur Clerico nisi quatenus constat ex Acts. And 2. That there neither was, nor could be a Decreet in the said Process, In respect, the said Suspension was upon other reasons that were Relevant; and compensation being in effect satisfaction, and the last exception, the said Reasons ought to have been first discussed. viz. That there were divers Arrestments at the instance of Creditors, which should have been purged; and that Sir William had Assigned the Debt whereupon he had charged, and the Assignation was intimate; So that the Suspender could not be in tuto to pay; unless the consent of the Assigney were obtained, and that the said Sir William was at the Horn and his Escheat gifted, and that the Donator did not concur nor consent. 3. Tho' there could have been a Decreet, and the Arrestments had been purged, and the Assigney and Donator consented; yet the samen not being Extracted, the Suspender might pass from his Reason of compensation, seeing res was integra before Extracting; and the Suspender may eike and verify any other reason that is emergent: And there had arisen a most relevant Reason and Defence to him upon the said Act of Parliament anent public Debts; of which he ought to have, and may plead the benefit, in regard Acts of Litiscontestation and Decreets are Judicial Transactions and Contracts: and as in other Contracts there is locus poenitentiae before they be perfited in Write, so in Acts and Decreets, before they be Extracted, Parties are not concluded: as verb. g. even after Litiscontestation before the same be Extracted, a Defence may be proponed; and in Declarators concerning Clauses irritant, though Parties will not be admitted to purge after Sentence, yet before Extracting they will be heard: And even by the Common Law, albeit ubi res transit in rem Judicatam, sententia non retractatur ex Instrumentis noviter repertis; yet before Extracting of the same, if Writes be Found which will elide the Pursuers Lybel, they will be received.  
It was Answered for the Creditors, That in this case res was not integra, because the Suspender had so far acquiesced, that in effect he had paid the Debt, Compensation being equivalent; And if before extracting, he had made actual payment, there would have been no necessity of extracting the same; and in this case not only there was solutio ipso Jure, in respect of the said Compensation sustained; but de facto the Lord Balmerinoch had paid 3 or 4000 marks in satisfaction of the Debt charged for; the Compensation being so far short: and the Creditors had intented exhibition of a Discharge granted by Sir William Dick to the said Lord Balmerinoch, of the foresaid Sum of 4000 marks; and a Declarator, that in respect of the said Compensation, the said Right granted by the said Sir John Smith was extinct.  
The Lords, at the desire of the said's Creditors, having examined divers persons anent the said Minute, and the giving up of the said Assignation, and anent the having of the said Discharge, granted by Sir William Dick to Balmerinoch, the Creditors at length did pass from their Compearance. And now the Cause being again advised, the Lords did adhere to their former Interloquitor in Anno 1664. And did Find, That before extracting, Balmerinoch might pass from his Reason of Compensation: and discerned in the said Process at Balmerinoch's instance, against the Tenants of Northberwick; Reserving to the Creditors their Action of Exhibition and Declarator as accords.   

D. 204. Kinloch contra Rate. 15. Decemb. 1674.  
THE deceased Mr. Robert Kinloch Portioner of Luthrie, having granted, after he was married, a Liferent Right to his Wife, by Infeftment in some of his Lands; in satisfaction of any further Provision: did thereafter give her an additional Jointure and Infeftment in other Lands; after which he did give a Right of Annualrent, forth of the Additional Lands, to his Daughter Janet Kinloch.  
The Daughter and her Husband Mr. John Dickson, did intent a Poinding of the Ground, upon the said Right of Annualrent; in which Process Jean Rate Relict of the said Mr. Robert compeared, and defended upon her foresaid Rights, being anterior to the said Infeftment of Annualrent.  
It was Replied for the Pursuer, That as to the first Right for Provision of the Wife, she did not make question, but that being in Satisfaction of any other Provision, as said is; the additional Right granted thereafter was for Love and Favour, and Donatio inter virum & uxorem; and revocked tacitly by the Pursuers Infeftment of Annualrent.  
The Lords Found accordingly, That the said posterior Right was revoked by the Right of Annualrent pro tanto; without prejudice to the Relict of the Superplus if any be, the Annualrent being satisfied. Newbyth Reporter. Gibson Clerk.   

D. 205. George Drummond contra Menȝies of Rotwell. 16. December 1674.  
IN the Process at the instance of George Drummond for payment of a Sum due by Alexander Menȝies of Rotwel, as intrometter with the Debtors Goods: It was Found (as in divers Cases before) That the pretence, that the Defunct was Rebel, and his Escheat gifted; doth not purge vicious Intromission; unless it be alleged, that the Defuncts Escheat was gifted and declared before intention of the cause; or that the Defender did intromet, either by virtue of a Gift to himself, or by Warrant and Right from the Donator for the Defenders Intromission, though the Gift was not declared before the intention of the Cause; In respect if there was a Gift declared before the intention of the Cause, the Defender is in the same case, as if there were an Executor confirmed, before the intenting of the Cause; and if he had either the Gift himself, or a Right from the Donator before he did intromet, his Possession ab initio, being by virtue of a Title, though not perfected, cannot be said to be vicious; and quivis Titulus etiam coloratus, purges the viciousness of the intromission. Strathurd Reporter. Gibson Clerk.   

D. 206. Kelhead contra Irving and Borthwick. eod. die.  
JOhn Irving Merchant in Drumfries, having furnished Mournings, Winding-sheet and others necessary for the Funerals of the deceased Earl of Queensberry; did take a Bond for the Sum of 1424 marks from the Countess Dowager, Relict of the said Earl; which, though it did bear only that Narrative, that the Lady was addebted to the said John, without relation to the 'Cause foresaid, yet it appeared it was for that Cause; In swa far as, the said Countess, being confirmed Executrix to her Husband, had obtained an Exoneration; and the foresaid Debt, contracted for the Funerals, was one of the Articles of the same.  
The said Countess having deceased, the Earl of Queensberry her Son was confirmed Executor to her; and a Decreet being obtained against him at the instance of the said John Irving, for the foresaid Debt, he suspended upon multiple Poinding against the said John Irving, and the Laird of Kelhead, and James Borthwick, and certain other Creditors.  
The said Laird of Kelhead alleged, that he ought to be preferred as to the Goods confirmed by the said Earl, as Executor to the said Countess, because the said Countess was his Debtor in the Sum of 5000 marks; and to the effect he might be satisfied of the said Debt, had disponed to him her Movables if he should not be satisfied in her own Life-time; and that he had done Diligence upon the Disposition of the said Movables by arrestment, and by taking Possession after the Lady's decease; and thereby had right to the Movables confirmed by the Earl, and thereupon aught to be preferred.  
Whereunto It was Answered, That the said Disposition did not give Right to Kelhead, unless Tradition had followed upon the same in the Lady's life-time: and the Lady had not only retained Possession, but by the Conception and Nature of the Right, Kelhead could not have Possession, seeing he was to have Right to the Movables after the Lady's decease, if he were not satisfied dureing her life-time; so that he was in the case only of other Personal Creditors, and must come in according to his Diligence: and Irving and Borthwick were not only prior in Diligence, having obtained Decreets, but were privileged and preferable before all other Creditors, in respect the said Irving's Debt was of the Nature foresaid, for the defraying of the Funerals, and James Borthwick's Debt was for Drugs.  
It was duplied for Kelhead, as to Irving, that any Privilege he pretended to, did cease; In sua far as the Debt was innovat, and was not a Debt upon the Executry of the Earl of Queensberry, but became a Debt of the Countess herself, who had given Bond (as said is) without any Relation to the 'Cause foresaid: And as to James Borthwick, there being two Debts due to him, one by Bond, and the other by an Account, the Bond did bear borrowed Money and Annualrent, and was not a privileged Debt.  
The Lords Found, That Kelhead had no Right to the Movables, by the Disposition foresaid, and was only a Personal Creditor: whereupon They Found also, that Debts of the nature foresaid, upon the account of Funerals, and of Drugs furnished the time of the Defuncts sickness, are privileged; so that the Creditors, though they be not Creditores Hypothecarii, are Privilegiati, and preferable to other Personal Creditors.  
They Found also, That Irving's Debt was still Privileged, notwithstanding that the Countess had given Bond for the same; seeing it did not bear borrowed Money, but only that she was addebted; and it appears by the Testament and Exoneration, that she was addebted upon no other account, but for the 'Cause foresaid.  
They also did Find, That the foresaids Debts being Privileged, as to the Countess, they are Privileged also as to her Executor: and that James Borthwick should come in with the said Irving, as to his Account; but not as to his Bond: and as to it, was to come in with the rest of the Creditors. Craigie Reporter. Gibson Clerk.   

D. 207. Captain Gordon and Ludquharne contra 17. December 1674.  
CAptain Gordon a Privateer, having taken a Ship, named the Wine-Grape, and brought the same to Leith; It was found a free Ship, and not a Prize, by a Decreet absolvitor of the Admiral; in respect it appeared by the Pass, and other Documents, and the Declaration of the Company and Skipper, that it was a Sweddish Ship: And albeit the Skipper was a Hollander, yet he was received Burgess of Stockholme, and since the War he had transported his Domicile there: This Decreet being questioned by a Reduction before the Lords, upon that Reason, that the Admiral had committed Iniquity in giving the said Absolvitor, in regard the said ship was not a free ship; And it did appear from the Declarations of the Skipper and Company, that the Skipper was a Hollander; and a Partner of an eight part of the said ship: And after a long Debate, The Lords granted a Commission to the magistrates of Stockholme in Sweden, to examine such witnesses as either Party should desire, for clearing the point of Fact; and to examine the Swedes that were alleged to have interest in the said Ship and Loadning; and the Skippers wife who was then at Stockholme: And divers persons and Witnesses being examined upon the said Commission, at the Instance of the Skipper and Defenders in the Reduction; and a Report being returned and advised: The Lords, in July last, did Find, That the said Report was a sufficient presumptive Probation, that the Skipper had fixed his Domicile at Stockholme, and that the Ship and Goods were free and did not belong to the King's Enemies; The Swedes by the Treaty betwixt Sweden and our King being allowed to make use of Hollanders to be Naucleri and Skippers, dummodo sint Cives & Incolae: and therefore discerned; superseeding the extracting of the Decreet until September: and if the Pursuers should show, that they had done Diligence upon the said Commission, the Lords declared they would grant a new Commission.  
And thereafter an Agent Matthew Colvil, having gone to Stockholme, in behalf of, and for the Pursuer the Privateer; and having urged, that some Witnesses should be examined by the Magistrates there, upon the Points contained in the former Commission; upon that consideration, that no person was present for the Privateer, when the Witnesses were examined at the instance of the Defenders; and it was not the Pursuers fault, that he was not there himself or his Procurator, seeing the said Mr. Colvil going there, and pursueing the said Commission, had made Shipwreck by the way, and was forced to return back.  
The said's Magistrates did refuse to proceed upon the said Commission to examine the said Witnesses, that had been formerly examined, or others pretending that the Commission was execute, and that they had examined both Parties and Witnesses upon the same: and did write a Letter to the Lords, showing the Reasons whereupon they had refused.  
This Session, the Cause being called in praesentia; the Pursuers did object against the said Report, whereupon the foresaid Interloquitor had proceeded; and in special, that the Depositions of the Witnesses examined at Stockholm were not transmitted; and that they were not so much as named in the Report: and that the Owners had refused to declare upon that Interrogator, viz. whether their Name was only borrowed for the use of the King's Enemies, to colour and continue their Trade; pretending that they had given their Oaths already to that purpose, upon their obtaining of the Pass: and it was desired for the Pursuers that the Lords would proceed, without respect to the Report and Interloquitor foresaid; and advise and give their Sentence, whether, upon what was before them, the Reason of Reduction was proven.  
Upon Debate among the Lords, It was urged, that they had given a Decreet already, but the Extracting was superseded (as said is) conditionally, in order to the granting a new Commission: And the most that the Pursuer could desire in reason, was, that a New Commission should be granted: And all that was before the Lords being formerly advised, and a Decreet given thereupon, and the same standing, there was nothing now to be advised; but the Decreet aught to be Extracted, or at the most a new Commission should be given to the Pursuer.  
The Lords notwithstanding, without respect to the said former Decreet, did proceed to advise and Vote, whether there was also much proven, as to condemn the said Ship.  
It was urged by some of the Lords, That though res were integra, and there were no Decreet; there is no Ground to adjudge the said Ship upon the pretences foresaid, seeing the Skippers Oath being a Party had been taken upon the same; and he had declared upon Oath, that he had changed his domicile, and his Residence was at Stockholme; and his Oath being taken, they needed no other Probation, specially seeing his Oath is adminiculate with the Depositions of his Wife, and others taken upon the Commission foresaid at Stockholme; being positive, that he had Transported his Domicile there; and no other Probation was adduced to the contrary.  
It was farther urged, That the Skipper being a Burgess, and being for the time in Sueden with his Wife and his Child; The Suedish Owners were in bona fide to think, that he was such a person, as by the Treaty they might make use of as Skipper: And what ever could be pretended against him for his own interest, ought not to militate against them.  
It was also urged, That His Majesty had written a Letter in favours of the Strangers, recommending them to the Lords Favour and Justice; and it would be thought a strange Return, that the Lords should condemn both the said Ship, and the Admiral's Decreet absolvitor, and their own former Decreet.  
It was nevertheless Voted and Found by plurality, that the Ship ought to be adjudged upon the said pretences, that the King's Enemy had the interest foresaid, both as Skipper and as Owner: divers of the Lords dissenting.   

D. 208. 23. Decemb. 1674. inter easdem.  
THE Sueds having given in a Bill, desiring that seeing they offered to prove positive, that the Skipper had changed his Domicile, they might have a Commission to what Judges the Lords pleased, for proving the said Alledgance; Some of the Lords were of Opinion, That the Alledgance being unquestionably Relevant was yet competent, In respect the Lords had by their Interloquitor Found, that they had already proven presumptively, that the Ship in question did not belong to the King's Enemies; and also long as that Interloquitor stood, they needed not prove any farther; the onus probandi of the contrair lying upon the Caper: And the said Interloquitor being since reversed and taken away (as said is) It was neither needful nor competent until now, to offer to prove positive the said Alledgance.  
The Lords notwithstanding, Found by plurality, and by one Vote only, that the Alledgance was not now competent; the Precedent being of a contrair opinion; but being carried by one Vote before it came to him, he could not Vote.  
Je me suis estendu trop sur cet Arrest, a cause que les plus habiles & scavans des Senateurs opinoyent pour les Estrangers, & Maistre du Navire: & aucuns des ceux qui estoyent de l' autre cost, estoyent parens ou aliez de Luthquharne, qui estoyt Party; & gagnoit par l' Arrest 2000 Livres Sterl: ou environ: & l' emportoit par une voix seulement.   

D. 209. Pitmedden contra Seatones. eod. die.  
IT was Found in the case Sir Alexander Seaton of Pitmedden, contra Seaton of Blair, That Pitmeddens Brother, though he was Appearand Heir to a Baron, he could not have a Movable Heirship; because he was not actual Baro. Some were of opinion, that as to that Advantage and privilege of having a Movable Heirship, it was sufficient that the Defunct was of that quality, that he was one of these Estates; seeing a person once Baro, though he be denuded is semper Baro as to the effect and interest foresaid: And a Prelate, though for Age he should become unable to serve, and dimit, yet is still a Prelate as to that effect: And the Appearand Heir of a Baron, who has Right and in potentia proxima to be a Baron, and is Peer to Barons, and may be upon the Assize of Noblemen and Barons; if he should be prevented with Death before he be Infeft, it were hard to deny him the privilege foresaid, that his Heir should have his Movable Heirship: And if his Heir would have the benefit as to a Movable Heirship, his Intromission with the same aught to import a Behaviour. Lord Forret Reporter.   

D. 210. Mr. David Thoirs contra Tolquhon. 2. Jan. 1675.  
MR. David Thoirs, having acquired from John Forbes the Lands of Craigfintry, did pursue an improbation against the Laird of Tolquhon of a Bond and Comprysing deduced thereupon of the said Lands against John Forbes of Gask, the said John Mr. David Thoirs' Authors Great Grandfather: And Certification being granted, and being urged that it should be Extracted; It was Alleged, that it could not be Extracted, but aught to be stopped; because the said Bond, whereupon the Comprysing was deduced, and whereunto, and to the Comprysing thereupon, Tolquhon has Right by progress, was granted to the deceased Mr. William Forbes Advocate, and Registrate in the Commissar Books of Aberdeen in Anno 1632; And the Extract was now produced; which after so long time, and the time of Troubles, the Registers being all in such disorder, aught to satisfy the production; being not only adminiculate, but also homologate in manner aftermentioned, by Patrick Forbes Grandchild and Successor to the Granter, and the said John Forbes the said Patrick's Son; In sua far as the said Bond was granted to the said Mr. William Forbes a person above all exception; and all possible Diligence, both real and personal had been used thereupon by Horning, Comprysing, and Caption: and that the Granter had Suspended the said Bond upon divers Reasons, and did never question the truth of the same; and Disponed his Estate to Patrick Forbes his Appearand Heir, with the burden of his Debts; and it cannot be thought, but that he understood the Debt in question, to have been comprehended under the general of Debts, having been so much distressed for the same: And that the said Patrick did homologate the truth of the said Bond; In sua far as by a Minute of Contract betwixt him and Tolquhon, he had taken a Right from Tolquhon to the said Bond and Comprysing; and was obliged to pay for the same the Sum thereinmentioned: And the said Patrick having Disponed to his Eldest Son William his Estate, the said John was served Heir to the said William his Brother; and had homologat also the said Bond by Contract betwixt him and Tolquhon, whereby he dispones the Lands Comprysed of new again to Tolquhone, and ratifies the said apprising and Grounds thereof: Which Contract, albeit when the said John was Minor, was made with consent of his Friends and Lawyers most deliberately; the said Mr. David Thoirs being one of his Lawyers; And therefore, though it might be questioned upon Minority, as to any prejudice or disadvantage the Minor may pretend to have by the same, yet it will stand as an Homologation of the said Bond as to the truth of the same; unless it were offered to be improven, by a positive qualification of Falsehood.  
The Lords having considered the Inconvenients on either side, if certifications for not production of principals should be loosed, being the great surety of the People: And on the other part, if they should be Snares, and Parties should pursue maliciously Improbation, having viis & modis got the principal Writes out of the Register, or known they had miscarried: They Found, In respect that Mr. David Thoirs having taken a Right, after the matter was litigious by a Charge and Suspension of the Minute, betwixt Tolquhone and the said John Forbes the Great Grandchild; so that the said Mr. David was in the same case, as if the said John were Pursuer, and was content to state himself in that case; And in respect of the Specialties of this Cause, and Adminicles and Homologations foresaid, that therefore the said Extract aught to satisfy the Production, and the Certification ought not to be Extracted.   

D. 211. Pittarro contra E. Northesk. 5. January 1675.  
THE Earl of Northesk having taken an Assignation to a Bond, granted by the deceased Laird of Craige and Earl of Dundee to Margaret Carnagie, and her Children for 1000 Marks, and having Comprysed thereupon craig's Estate; he did after the Comprysing give a Bond to the said Margaret Carnagie and her Children, that in case he should recover payment, he should make payment to them of the foresaid Sum: Sir David Carnagie of Pittarro, being Debtor to the said Earl in the Sum of 2000 Marks, Suspended upon that Reason, that the said Margaret and her Children had Assigned to him the said Back-bond granted by Northesk; and that the said Earl had Disponed the Right of the said apprising to the Lord Hattoun; And therefore became Liable to pay the said Sum to the Suspenders Cedent, and the Suspender may and does compense upon the said Bond pro tanto.  
It was Answered by the Charger, That the Comprysing did neither belong to the Suspenders Cedent, nor was to their behoof; the said Bond granted by the Laird of Craig being Assigned ab initio, without any Back-bond: And the Comprysing being deduced before Northesk granted the said Bond: And by the said Back-bond he was obliged only to pay the said Sum in case he should get payment, and he was so far from getting payment of the said Sum, that having comprised not only upon the said Bond granted to Margaret Carnagie, but for other Debts exceeding far the said Debt due to her; yet got payment of neither.  
It was Replied by the Suspender, That he was not concerned to Dispute, whether he got payment or not; but the Charger having Disponed the Comprysing as to the said Sum, without the consent of the said _____ Carnagie and her Children; and without the Burden of the said Back-bond, it was equivalent as if he had got payment; it being all one upon the matter as to the interest of _____ Carnagie, whether Northesk had got payment of the said Sum, or had disponed the Comprysing in sua far as concerns the same.  
The Lords, In Respect of the conception of the Bond granted by Northesk, Found, That either he should procure a Retrocession of the said Bond and Comprysing thereupon pro tanto; or that he should pay the Damnage and Interest sustained by the Suspenders Cedent, through Northesks granting of the Right of the said Bond and Comprysing to Hattoun: And in that case, that the Damnage and Interest should be presently liquidate; and being liquidate should be a ground of compensation. Glendoich Reporter. Monro Clerk.   

D. 212. Eod die.  
IT was debated this day among the Lords, whether a Bond being granted by a principal and two Cautioners bound conjunctly and severally; and the Cautioners not bound to relieve one another; if one of the Cautioners should take Assignation to the Bond and should pursue the other, the said other Cautioner will have a defence upon that Ground, That albeit they be not obliged to relieve one another pro rata, yet that the said obligement inest, in sua far as, they are bound conjunctly and severally: Most of the Lords inclined to find, that the pursuer ought to relieve the Cocautioner pro rata, and had not action but for his own part. But some of the Lords were of another opinion; that there being no obligement upon any of the Cocautioners to relieve one another; one of the Cautioners paying entirely and getting an Assignation, in effect emit nomen: And though both the Cautioners be obliged conjunctly and severally in relation to the Creditor, yet there is no Transaction or obligement betwixt the Cautioners themselves; every one having actio mandati as to the principal for their relief, which inest, though the principal were not bound to relieve them expressly: but aught to be considered as quilibet, and Strangers one to another.  
But because the Lords were divided, and it was alleged on either hand, the case was formerly decided; the Decision was delayed this day; Vide infra 28. January 1675.   

D. 213. Laird of Hempsfield contra Bannantine. eod. die.  
THE Laird of Hempsfield with certain Cautioners for him, having granted a Bond of 6000 Marks to the deceased James Bannantine and his Wife, the longest liver of them two; and after their decease to John Bannatine their Son; whereupon Inhibition was execute against the principal and Cautioners: And the said John Bannantine did pursue a Reduction and Improbation against these who had acquired Rights, after the Inhibition.  
It was Alleged, That the Pursuer had no interest, because the said Bond was Blank in the name of the substitute, and the pursuer could not be understood to be the Bairn to whom the Sum is to be payable after the decease of his Father and Mother, seeing he was not born the time of the granting of the Bond: And as to the Inhibition it was not at the instance of the Pursuer, but of his Father and Mother.  
It was Answered, That the Bond was opponed, bearing the Pursuers Name; and though the Bond had been Blank, and the Pursuer not born when it was granted, the Father might have filled up any of his Bairns Names as he thought fit: And as to the Inhibition, it was at the instance of the Father James Bannantine who was Fire; and did accresce to the Pursuer, being substitute in the Fee after his decease.  
The Lords Repelled the Alledgance.  
It was thereafter Alleged, That the Pursuer was satisfied of the Debt, in sua far as either the Debtor or Cautioners had paid the same, at least a part thereof, and did satisfy pro tanto; or some other persons, having acquired their Lands after the Inhibition, had given Money to the Pursuer or his Father, to pass from the Inhibition as to them, which ought to be allowed as payment pro tanto.  
It was Answered, That the Alledgance is not Relevant, unless it were in these Terms, that the Pursuer or his Father had accepted what was paid by the saids persons in satisfaction of the Debt pro tanto; otherways, that there is no solutio, but only a Transaction betwixt the persons foresaid, and the Pursuer, to free themselves from Trouble and of a Plea; and what was given, was not in satisfaction of the Debt in whole or in part, but upon the account foresaid: And seeing the Creditor having inhibite; so that his Inhibition did affect divers Lands, or having divers persons bound to him as Cautioners, might warrantably pass from his Inhibition as to some of the Lands, and discharge such of the Cautioners as he thought fit; he might also take a consideration for doing the favour foresaid.  
The Lords thought, That if it should be allowed to Creditors to make such Transactions; and what they should get upon account of the same should not be allowed in payment, they might get more nor the double of their Debt; at least more than Principal and Annualrent; and that it would be the occasion of usury. They Found the Defence Relevant, that what should be proven to be given eo nomine should be imputed in satisfaction. Gibson Clerk.   

D. 214. Inns contra Inns. 7. January. 1675.  
BY a Contract of Marriage a Sum being provided to the Husband and his Wife, and to the Heirs Male of the Marriage; whilks Failyieing to the Father's Heirs Male whatsomever: An Inhibition upon the said Contract, at the instance of the Eldest Son of the Marriage, and Reduction thereupon was not sustained; because the Father was living, and the Son neither was, nor could be Heir to him, In respect the Father was living: And though he were dead the Son could have no Right, unless he were Heir, in which case he would be obliged to warrant. Glendoich Reporter.   

D. 215. Laird of Luss contra E. of Nithsdale. eod. die.  
A Bond being alleged to be granted by the Earl of Nithsdale, in anno 1621., to one Colquhone and his Wife, for 6000 Marks: And a pursuit being intented thereupon; It was Alleged, That the Bond was most suspicious, being so Ancient and nothing done thereupon; and in respect of other great presumptions, viz. the quality and condition of the said Adam when the said Bond was granted, being designed the Earl's Servant: And that it was improbable, he could have so much Money to lend his Master, or that he and his Heirs should have so long wanted the same: And that it appears, that the Bond has been Blank ab initio, the Creditors Name being filled up with another Ink: And the said Adam being designed to have been the Writer of the Bond; and yet where it bears that he is Writer, it does not bear the said Adam, which it would have born if his name had been filled up from the beginning: And it appears, that the Earl being known to be a person negligent, and being at London for the time, and having to do with Money, might have given the Bond to the said Adam his Servant for raising of Money, and that he forgot to call for it.  
The Lords Found, That the said Bond could not be taken away upon the presumptions foresaid; unless it were either prescrived, or the Defenders would offer to improve it. Gibson Clerk.   

D. 216. Mcintoish contra Frazer. 9 January. 1675.  
McIntoish pursued Frazer of Streichen, for payment of a Sum due upon Bond; In which Pursuit two Defences being proponed, viz. Prescription and Payment; and a Reply made to the first, viz. Interruption by a pursuit; and Litiscontestation being made upon the Defence of payment and the said Reply; It was Alleged, when the Cause was to be advised contra producta, viz. That the Summons and Execution thereupon produced, for proving Interruption, did not prove the same; In respect the Summons were never called, nor any Document taken in Judgement thereupon. And as to the Discharge produced, It was Alleged, That it was granted by the persons thereinmentioned as Curators to the Pursuer, and was not subscribed by the Pursuer himself as it ought to have been; there being a great difference betwixt Tutors and Curators; In respect Tutors must act for the Minor, and are Authors as to all deeds done by them; but Curators do only concur and aught to advise and consent to the deeds of their Minor, which otherways are not valid.  
The Lords did Find the Discharge did not prove; and it could not be obtruded to the Pursuer who had not subscribed the same; and did also Find that the Summons and Execution did sufficiently interrupt. Concluded cause. Actor Falconer alteri Seaton. Monro Clerk.   

D. 217. Town of Edinburgh contra Earl of Loudoune. eod. die.  
THE Lady Yester having Mortified a certain Sum of Money for the Poor in certain parochs in the South; and having employed to the End foresaid the foresaid Sum upon Bond or Contract, granted by the Town of Edinburgh: The Ministers of the said parochs did pursue the Town of Edinburgh, to hear and see the Tenor of the said Write to be proven; and that being done, that they should be discerned to pay: And did sufficiently prove the Tenor of the same.  
In the Process against the Town, There was a Defence proponed, viz. That my Lord Loudoune, who had Interest in the said Mortification, had got payment of the said Sum from the Town of Edinburgh, which they offered to prove by his Oath.  
The Lords having Ordained his Oath to be taken before Answer; And he being Summonded to that effect, he was holden as confessed: And having thereafter upon a Bill, Desired to be Reponed to give his Oath, and being Reponed, he was holden as confessed the second time: And in respect that the said Defence was not proven by his Oath, The Lords proceeded and discerned against the Town.  
The Town of Edinburgh having intented Process against the Earl of Loudoune, for refounding the said Sum; upon that medium, that the same was formerly paid to him; and that he had confessed, at least was holden as Confessed, which is equivalent as to the payment of the said Sum.  
It was Alleged, That his being holden as Confessed, in the Process foresaid did operate only that the Defence referred to his Oath was not proven, but could not be a Ground of pursuit against himself, unless it were proven by his Oath, that the said Sum was paid to him; and he desired to be Reponed to his Oath; It was Answered, That he being twice holden as Confessed, there was no reason to Repone him, and his being holden as Confessed doth operate in Law alsemuch, as if he had confessed the said Sum;  through his Contumacy the Pursuers are prejudged: And he cannot pretend, that he was not a Party in that Process, seeing he was holden as Confessed, and in the same Process craved to be Reponed, and was Reponed as said is: And though he had not been called ab initio in that Process, yet being called incidenter for proving of an Alledgance; by the certification foresaid he became Party therein: And as when an incident Diligence is raised against a haver of Writes, for proving of an Alledgance; and the having thereof is referred to the Oath of the Defender in the incident; if he be holden as confessed, though the Alledgance be not proven, the Pursuer of the Incident will have Execution against him as Haver; and for the Damnage and Interest sustained through his Contumacy; so it ought to be in this case.  
The Lords, Tho the Earl of Loudoun's presumptive Confession (being holden as confessed as said is) be a convinceing evidence, that the said Money was paid to him; yet they had that respect to him both as to his quality and integrity, that they would have Reponed him, if he had compeared himself; or had written to the Lords, that he desired to be Reponed; and did intimate also much to his Procurators: and to that effect did give some time, but no Return being made, they proceeded, and sustained the pursuit at the instance of the Town of Edinburgh, upon the medium foresaid. Monro Clerk.   

D. 218. Letter by the Lords of Session to the King. 12. January. 1675.  
MY Lord Lauderdale His Majesty's Secretary, having written to the Precedent, concerning the abovementioned Process betwixt Captain Gordon and the Suedes, anent the Ship called the Wine Grape, That the Suedish Envoy had made Application to his Majesty, and had represented, That the Decreet against the Strangers, was carried but by two Votes; and had given in a List to his Majesty, of those that were for, and against the said Decreet, with divers Reasons against the same. It was thought fit, that a Letter should be drawn to His Majesty, containing the Grounds, whereupon the said Decreet proceeded; which being done by those who were appointed by the Lords; some of the Lords did object against the same, That they did mention the Lords indefinitely to have given the said Decreet; Whereas His Majesty was informed of the contrary, and the Information was true; and therefore it was desired it should bear, That, upon the Votes of the major part, which is usual in all Cases, the Decreet was pronounced: Specially, seeing the said Letter did contain the Grounds of, and did assert the Justice of the said Decreet: So that these, who had voted against the same, could not belie themselves, and put under their hand the contrary of what they had voted. And albeit in all Judicatories, even in Parliament, what is done by the plurality doth overrule and conclude the Dissenters, so as to submit to the same: Yet they are not obliged to maintain or assert the Justice of a Sentence and Act, that they had been against in their Judgement and vote.  
It was, notwithstanding, carried by plurality, That without the amendment foresaid the Letter should be subscribed by all the Lords; the Precedent having promised to write to my Lord Lauderdale, what was truly res gesta, when the said Decreet was given: And upon that assurance, some of the Lords declared when they subscribed, that they subscribed not their owned sense, but the sense of the Court: And though they were concluded, as said is, yet they were not convinced.   

D. 219. Glendyning contra the Earl of Nithsdale. 13. January. 1675.  
WIlliam Glendining having pursued the now Earl of Nithsdale as Heir to Robert the late Earl of Nithsdale his Father, for fulfilling a Minute betwixt the said Robert Earl of Nithsdale and William Glendinning of Lagan, from whom the Pursuer had Right: and for payment of the half of the duty of the Lands of Douphingstoun, conform to the said Minute: and Litiscontestation was made in the cause: and for proving the rent of the said's Lands of Douphinstoun, It was craved, that the Depositions of witnesses, that had been adduced in the like process, intented against the said Earl, as representing his Father for implement of the said Minute, should be received in this Process: But the Lords having considered, that the said Earl did not represent his Father active, but was pursued only upon the passive Titles; and that this process against the now Earl, is not against him as representing the last Earl; neither was it alleged that he represents him; Therefore they Found; that the said Depositions could not be repeated in this process;  res was inter alios acta; and acta in uno judicio non probant in alio, nisi inter easdem personas; or these who represent him.   

D. 220. Edmiston contra Mr. John Preston. eod. die.  
WAuchope of Edmiston and his Lady, as Executors to the deceased James Raith of Edmiston, pursued Mr. John Preston lately of Haltrie Advocate, for payment of the Tack duty for a Seam of Coal, belonging to Edmiston, and set to him for certain Years.  
It was alleged for the Defender, That he ought not to be liable for the Years in question; because, having entered to the Possession of the said Coal, and having paid the Duty for the time he possessed; he was forced to cease from working, in respect the said Coal came to be in that condition, that it could not be wrought, partly by reason of the defect of Roof, so that the Coalyars neither would nor could work without hazard; and partly by reason of bad Air It was Replied, That the Defender having accepted a Tack of a Subject, liable to such hazards, eo ipso he had taken his hazard; and was in the case, as if he had acquired a Right to jactus retis.  
It was duplied, That alea and jactus retis, and spes in venditione, may be, and is understood to be sold; but in Locatione, spes and alea is not thought to be set, unless it appear by the Contract, that the Conductor should take the hazard; seeing it is de natura of Contracts of Location, that fruitio is understood to be given and set; and that merces should be paid ex fructibus. And where the Conductor cannot frui, upon occasion of an insuperable impediment, which does not arise, either from his dole, or culpa, or negligence, as in this case; remittitur merces: as is clear, not only when the thing that is set is a subject, not liable to so much hazard, but when it is contingent, as when Gabells or Custums are set, or Fishings, or Milns, or Coals, if there fall out such an impediment, as doth interrupt the fruition and perceptionem fructuum, as if there be Pest and War in the case of Custums; or if Herring should not be got at all; or if upon occasion of inundation, Milns should be unprofitable; or Coal-heughs should be drowned or burnt.  
The Lords, before Answer, Thought fit, that there should be conjunct Probation allowed to both Parties, anent the condition of the Coal; and the Defenders desisting and ceasing from working thereof, and the Occasion of his desisting: and if the impediment was insuperable. Craigy Reporter.   

D. 221. eod. die.  
APPlication being made to the Lords by a Bill given in by a Widow, Desireing, that she may be allowed to intromet with the Cropped and Goods pertaining to the Defunct, without hazard of vicious Intromission:  
The Lords thought, That such Warrants being Voluntariae Jurisdictionis, and the Commissaries being entrusted, for securing the Estate of Defunct persons to the nearest of Kin, and Creditors, and other persons having interest; did Remit the Petitioner to the Commissars of the place. Sir David Falconer Younger was for the Petitioner and subscribed the Bill.   

D. 222. Meldrum contra Tolquhone. 20. January 1675.  
IN a Declarator of Escheat at the instance of Meldrum contra Tolquhone: It was Alleged, That the Horning was Null, because the Party was Charged only upon six days, albeit he dwelled benorth the Water of Dee: And by the Act of Parliament 1600. cap. 25. All Charges of Horning against persons dwell and benorth Dee, should be upon 15. days at the least: And by the 138 Act Parl. 12. K. Ja. 6. It is statute, that in case any Denounciations of Hornings should be at the Mercat Cross of Edinburgh, upon Charges, upon unlawful and impossible Conditions; the same, and Horning thereupon should be Null: And that there was a Decision in Duries Book in Anno 1625, that Hornings even upon Bonds against persons benorth Dee were Null.  
It was Answered, That the Act of Parliament in Anno 1600, was only in the case of Hornings upon Citations or Charges to find Law borrows, or for compearing before the Council, as appears by the narrative of the said Act which doth interpret and regulate the dispositive Words of the Act.  
And that the Act of Parliament in Anno 1592. doth not militate in the case of Hornings upon a Clause of Registration, seeing after that Act until the said Act 1606, such Clauses that Hornings should be upon 6 days, were not thought, and de facto are not impossible.  
And as to the practic, It was Answered, that there was a late practic in Anno 1664, upon a Debate in the Innerhouse, in the case of Philorth contra Frazer; Whereby it was Found, That the Act of Parliament 1600. is to be understood, in the case foresaid, where Hornings are upon Charges of the nature foresaid, for appearing before the Council, and such like; but not in the case in question and others of that nature, where Hornings are upon Bonds, and Clauses of Registration therein contained, which do bind, and cannot be questioned by those who do oblige themselves.  
The Lords considered, that the narrative of the said Act doth clear the meaning of the dispositive words; and there needed not to be a Law and remedy as to Hornings upon Clauses of Registration, seeing Parties could not help themselves as to Charges to compear before the Council, and others of that nature without a Law: But they were Arbiters, and could make a Law to themselves, as to Clauses contained in Contracts or Writes, if they thought them grievous or impossible: And that there appeared to be a singularity in the case mentioned by Durie, seeing the Charge was given in Orkney upon 6 days, which could not well be satisfied: And therefore the Lords, for the reasons foresaid, did sustain the Horning. Actor Hog and Thoirs: alteri Falconer and Forbes. In praesentia.   

D. 223. Carfrae contra Telzifer. eod. die.  
A Person being pursued as representing a Debtor, upon that passive Title, that he had behaved himself as Heir to the Defunct; In sua far as being convened at the instance of another Party, he had proponed a peremptor Defence: The Lords Found, That the proponing of a Defence upon payment or such like, was not such a Deed as could infer the Passive Title of Behaving; unless it were adminicled with Intromission or otherways. Nevoy Reporter. Hamiltoun Clerk. Vide 10 December 1674.   

D. 224. Chalmers contra Ferquharson and Gordon. 22. January 1675.  
THE Lords Found, That a Person being Pursued as Intrometter; and having Alleged, that before the intention of the cause she had obtained a Gift of her Husband's Escheat, the said Defence is Relevant: And that after Intromission, there being a Donator confirmed before intention of the Cause, or the Intrometter obtaining a Gift though not declared, there being no necessity to declare the same against herself; that the same doth purge even Intromission before the Gift. Some of the Lords were of another opinion, upon that Ground, that ipso momento that the party's intromet, there is a Passive Title introduced against them; which doth not arise upon the intention of the Cause, but upon their own Act of behaving; and Jus being semel quaesitum to Creditors cannot be taken from them, except in the case of an Executor confirmed before the intention of the Cause; against whom the Creditor may have Action: And that there is a difference betwixt a Donator having declared, and an Executor having confirmed; In respect the Executor is liable to Creditors but not a Donator; and an Appearand Heir having become liable by intrometting with Movable Heirship, and behaving as Heir, his Intromission is not purged by a supervenient Gift; seeing his immixing is Aditio facto; and there is eadem ratio as to Intrometters, who are Executors a tort (as the English Lawyers speak) and wrongously: And in effect, by their Intromission adeunt passive, and are liable to Creditors. Strathurd Reporter.   

D. 225. Jean Maxuel contra Mr. William Maxuel. eod. die.  
MR. William Maxuel Advocate, being pursued at the instance of Jean Maxuel natural Daughter to Sprinkel, for 5000 Marks Alleged due to her by Bond, granted by the said Mr. William, which she did refer to his Oath; did give in a qualified Oath, Declaring that he had granted a Bond to the Pursuer at the desire of her said Father, but the same was never delivered; and was so far from being effectual, that by the express order of Sprinkel, he was not to deliver the same to the Pursuer without his warrant; and that he had given him order to destroy the said Bond, in consideration that he was not satisfied with the Pursuers carriage; and that he had left her a Legacy, which the Defender had paid. This quality was thought to be so intrinsic, that his Declaration could not be divided, so as to prove the granting of the Bond, and not the Quality; Specially seeing the said Quality was adminiculate with Letters, which the said Mr. William did produce, which were written by Sprinkel to the same purpose: Yet by plurality, It was Found, that his Oath proved the Lybel; and Decreet was given against him. Thereafter the said Mr. William obtained a Suspension upon that Reason, that the Decreet was Extracted by favour of the Clerks, not without precipitation; after that he had applied to the Lords, and desired that the case might be reconsidered: And that the Lords had Ordained the Decreet to be brought back; and because the party refused, they passed a Suspension.  
The case being debated in praesentia; The Decreet in foro was obtruded, and that it was just upon the matter; seeing as to not delivery, It appeared by his Oath, that he was trusted to the behoof of the Pursuer, and was in effect a Depositar, so that he could not cancel the said Bond without consent of the Pursuer: To which It was Answered, That the Decreet was Extracted as said is, and that immediately upon the pronounceing of the same, he had applied to the Lords to the effect foresaid; And it cannot be said, that he had any Trust from the Pursuer, but only from her Father: And though he could be thought to be a Depositar; the manner and quality and terms of the Depositation, could not be proven otherways, but Scripto or Juramento.  
The Lords notwithstanding, Thought they were concerned to adhere to the Decreet being in foro; lest their Decreets should be obnoxious to that prejudice that even when they are in foro, they may be questioned and altered; Some of the Lords were of the opinion, that the great consideration the Lords should have, is to do Justice, and that the party having omitted nothing upon his part, neither before nor after pronounceing of the same; and upon the matter the reason of Suspension as to the point of Justice and Law being unanswerably Relevant, It was hard that a Party should be grieved upon a pretence of form; there being a singularity in this case upon which the Honour of the Lords may be salved, viz. That the said Decreet was Extracted with too much precipitation.   

D. 226. Joint Petition of the Advocates, 26. January 1675.  
A Joint Petition was presented by the Advocates that had withdrawn; whereby they did not expressly desire, that they should be readmitted, but did hold forth that they were free of, and hated the very thought of Sedition, and that the Lords who did best know the Reasons of their withdrawing would vindicate them to His Majesty; and that they were willing to serve with that freedom which their predecessors had formerly, and which they conceived was no more than was necessary for these of their station, in order to the interest of the People, that they acknowledge and were willing to submit to the just Power of the Lords, as their predecessors had enjoyed the same, and desired that the Petition should be transmitted to His Majesty as satisfactory. Some of the Lords thought, that the Petition was altogether dissatisfactory, and should be thrown over the Bar, being as to the manner, in a joint and Factious way; And as to the matter, no ways satisfactory, insinuating a qualification of the Lords Power, and their Submission; and that the Lords pretended to a Power which their Predecessors had not, and that was not just.  
Others of the Lords were of the opinion, That whatever mistakes there might be as to the manner, It was hard upon that account to reject it: and that if the time was not so pressing (that which was appointed for Addresses being to Elapse the very next day) it might have been helped as to the manner, by giving Intimation to the Advocates, that it would not satisfy; But there being no time for that, and the certification being so high and heavy, viz. utter and perpetual incapacity; it might be justly said, as it is Reported, a Judge in England had said in the case of a person accused of Theft, whom he inclined to favour by reason of the meanness of the value of the thing that was stolen, being a Watch of Brass only, and the matter of the Watch being beneath that value which the Law of England requires for punishing Theives Capitally; And it being Alleged, that the Fashion with the Matter did exceed the value foresaid, It is said, that he Answered, That he would take no Man's Life for the Fashion, and it were hard, for the Fashion and modus, and the way of Address to take from so many persons their Livelihood, and from the Country their Service, that was so necessary to them. And that the Advocate's fault being a Joint-withdrawing, they might conceive that the expiation of the same should be by a joint Address; And yet the Petition was not joint as to all the Advocates concerned, many having given in and being to give in several Petitions: And as to the matter it was Represented, that though the Petition is general, yet the generals therein contained do imply the particulars that would be satisfactory, seeing the Lords did not pretend to any power, but that which was just, and no violation was intended of their Liberties, neither was any innovation introduced or obtruded upon them or their carriage in their station. Upon all which, It was thought, that the Petition should be transmitted simply, to the effect it might import Interruption of the Prescription and Certification; any Acts of Interruption even quales quales being sufficient: And the more short that the Prescription be, and the higher the Certification and prejudice of Prescription, as in this case; the Interruption being the more favourable.  
The Lords notwithstanding, Found, that the Petition not being satisfactory, could not be transmitted to any effect. And yet did declare, that albeit the Proclamation was conceived in these terms, viz. That if the Advocates should not give satisfaction betwixt and the 28. day; if they should apply upon the 28. day, their Application should be thought to be within the time contained in the Act: And that in stile of Law, these words, betwixt and a certain Term, does not exclude the day of the Term.  
They declared also, That the Petition being dissatisfactory upon that account amongst others, viz. That they did not offer satisfaction, nor desire to be readmitted, That Petitions being given in severally, and bearing that they desired to Re-enter, and were willing to give satisfaction conform to the King's Letter and Proclamation, should be received and transmitted as satisfactory.   

D. 227. Eod. die.  
UPon a Bill, the Lords Found, That Parties having a joint and equal Interest in Lands and Tenements; both, as to the Right itself, being disponed to them jointly, and as to the respective Proportion and Parts of the said Tenements; the principal Writes should be keeped by such as offered Caution to the other Portioners; and that Transumpts should be given to the other Persons concerned upon the Common Charges of them all.   

D. 228. 27. January 1675.  
IN the case abovementioned, 5. January instant, concerning Con-cautioners obliged conjunctly and severally for the Principal, without a clause of mutual Relief: The Lords Found, That one of the Cautioners having paid and taken Assignation, the others had a good Defence against him for his own part, notwithstanding of the Reasons there abovementioned; and that it was urged, that the Cocautioner could not be forced to relieve the Defender if he had paid the whole; seeing he had neither actio mandati, there being none given by either of the Cautioners to others; nor was obliged to relieve the other Cautioners by an express Clause, which is ever insert, when mutual relief is intended: And that this is clear Law, it appears from the Title of the Civil Law de Fidejussoribus ff. lib. 46. Tit. 1. leg. 39 Et leg. 36. ibid. Et. Leg. 11. Cod. eod. Tit.  
The Lords Decided, as said is, In respect of a Practic produced betwixt _____ in anno _____ relating to a former Practic in anno _____   

D. 229. The Minister of Tulliallane contra colvil of Larg and Kincardne. 28. January 1675.  
IT was Found by the Lords Commissioners for Teinds, That the Heretors of Lands, having Right cum decimis inclusis were not liable to the Augmentations of Ministers Stipends; and that no Locality could be given out of their Teinds, the said's Infeftments being before the Year 1587. And that the Feu-duty payable to Churchmen for Stock and Teind in Victual, was not liable thereto; because the Teinds not being separate from the Stock, and the Heretors' having Right to the Lands free of Teinds, in effect there were not decimae: And by the Acts of Parliament, and the King's Decreet Arbitral, Teinds are liable to Ministers Feu-duties, in consideration that the Lords of Erection and Titulars, had Right thereto from the King since the Act of Annexation: And that the King, who might have questioned their Rights, was pleased by the said Acts of Parliament, and Decreet Arbitral, to affect them with the burden of Ministers Stipends; whereas such Rights cum decimis, were granted by Churchmen, and did not flow from the King, but from them, at such time as by the Law then standing, they might have granted the same.   

D. 230. Doctor Hay contra Jamieson and Alexander. eod. die.  
GEorge Stevart Advocate, having comprised from _____ Con, the Lands of Artrochie and others; did dispone the said Lands and his Right of Compriseing to _____ Neilson: and thereafter the said Neilson failing in payment of the price, the said George Stevart did Comprise back from the said Neilson the said Lands: and Andrew Alexander did also comprise from the said Neilson the said Lands, and his Right foresaid.  
Doctor Hay, Having also comprised from _____ Con the foresaid Lands, pursued an Improbation of the said first Comprysing, at George Steuart's Instance; and having called thereto the said George Stevart and Neilson, and Marjorie Jamison, who pretended Right to the said Lands; he did obtain a Certification against two Bonds, which were the Ground of the said Comprising; upon Compearance, and a long Dependence, and long Terms assigned for producing the said Bonds: And thereafter the Doctor pursued a Removing from the said Lands, against the said Andrew Alexander and others: And it was Alleged for the said Alexander, That he had Right to the said Lands, and was in Possession upon a Right from George Stevart, who had Right thereto, (as said is) by a Comprising against _____ Con the common Debtor: Whereunto It was Answered, That the Defenders could not found a Defence upon George Steuart's Comprising, Because the saids Bonds, being the Grounds thereof, were false and improven: To which It was duplied, That the Certification against the said Bonds, was only granted against George Stevart; and that the said Andrew Alexander was not called, and that now there is produced the foresaids Bonds; And that the Extracts of the same out of the Register of the Commissariot of Aberdene had been formerly produced; but the Principals, which were in publica custodia, as the warrants of the same, could not be then found by reason of the disorder of that and many other Registers, upon occasion of the late Troubles; and the same being now found aught to be received and sustained as the Grounds of the said Comprysing;  they are not improven and found false by a Decreet of Improbation upon trial of the Falsehood; But a Certification is only given against the same for not production; which at the most doth amount only to a presumptive Falsehood, which is now taken away (as said is) by production of the said's Bonds: seeing praesumptio cedit veritati.  
It was Answered for the Pursuer, That all Persons, whom he was obliged to take Notice of, and to call to the Improbation of the first apprising, were called; viz. The said George Stevart, at whose Instance the said Comprising was deduced; and who had also Comprised from Neilson the Right thereof, as said is; and Neilson himself: and that he needed not call the said Alexander, who had only a subaltern Right, and was not infeft: and albeit he had comprised from Neilson, yet by that Comprising he had not such an interest as the Pursuer was obliged to know; in sua far as, the Right of the Lands in question, was settled in the Person of the said George Stevart, by the Comprising against Neilson: after which Neilson had only a Reversion: and the said Neilson was called himself, as said is: And the said Alexander's Right by his Comprising against Neilson, being only a Right of the Legal of George Steuart's Comprising against Neilson, the Pursuer was not holden to take notice of the said Right: and the said Reversion is not only now expired, but was expired the time of the obtaining of the said Certification, no Order being used thereupon: And albeit the said Andrew Alexander was not called, yet he did compear in the said Improbation; and albeit he pretends, that his right was reserved, the said pretence is of no weight; seeing it was reserved only as accords: And Certifications being the great Security of the People, and specially where the same are obtained upon compearance, and after divers terms are assigned; and after Certification granted, the samen stopped for a long time, upon expectation that the Writes may be got, as in this Case; the samen cannot be canvelled and loosed, praetextu Instrumentorum noviter repertorum.  
The Lords, For the Reason foresaid, thought hard to lose the said Certification; but specially in this case, seeing the said Alexander will have and take the advantage of Stuarts expired Comprysing; and exclude the Doctor who was a true and real Creditor, to whose prejudice the said George Stuart and the other Defenders had patched up, not only the said Comprysing for small Sums, but other Rights; which the Donator had been forced, after he had Comprysed, to question by a Reduction, and had prevailed after a long dependence, and after they had possessed the Lands for a long time: And on the other hand, the said principal Bonds being now produced; they thought it hard, that the Doctor should take advantage of the same, to exclude the Defenders altogether; and therefore they proposed to the Doctor, that he should grant a Reversion to the said Alexander, upon payment of what was justly due to him, within the space of two Years: And the Doctor acquiesceing, they discerned in the Removing with the quality foresaid, Lord Glendoick Reporter. Gibson Clerk. Actor Chalmers alteri Thoirs. Vide 17. February 1676. inter eosdem.   

D. 231. contra Maxuel. 29. January. 1675.  
A Bill of Exchange being drawn upon three Merchants, without mentioning that it was drawn upon them, either severally or conjunctly; and one of the persons upon whom it was drawn, being pursued for the whole Sum in the said Bill, being accepted by them all simply, without mentioning that they had accepted the same only for their own Parts; It was Alleged, That they were only liable for their own Parts, being correi debendi; which is understood in Law, that they should not be liable in solidum, unless it were so expressed, especially seeing the Pursuer cannot say, that they were either Partners, or that each of them had provision extending to the whole Sum.  
The Lords, having thought fit to try the custom of Merchants, and to take the opinion thereupon of certain Merchants in Edinburgh; and the Report being positive, that it was the custom of Merchants, both in the place where the Bill was drawn and here, that there should be Action in solidum upon such Bills, when they are drawn and accepted simply in manner foresaid; Found the Defenders liable in solidum.   

D. 232. McKintoish contra McKenze. 29. January. 1675  
A Decreet, against a person holden as Confessed before the Lords of Session about 20 Years ago, was questioned as null; upon that pretence, that it did not bear, that the Party, against whom it was given, was personally apprehended, but only that he was lawfully cited.  
The Lords Found, That after so long time, the said Decreet could not be declared null and void, upon pretence of an intrinsic Nullity; In regard the said Decreet did bear, that the Defender was lawfully cited to give his Oath; and he could not be thought to be lawfully cited, unless he had been personally apprehended; and praesumitur pro sententia, and that omnia are solenniter acta; unless it were made appear by production of the Execution, that the Defender was not personally apprehended: And therefore the said Reason of Nullity was Repelled; Reserving Action of Reduction as Accords. Monro Clerk.   

D. 233. Scrimzeor contra Kingheny. 2. February. 1675.  
MAjor Scrimzeour having named in his Testament in Anno 1650. Sir John Carnagie, and the Tutor of Purie Fodringhame and Alexander Wedderburne of Kinghenie to be Tutors to his two Daughters: Margaret Scrimzeour one of the said Daughters pursued the said Alexander Wedderburne for Compt and Reckoning and Payment; and an Auditor being appointed, and that Question being started before him, viz. Whether the Tutor should be Liable for Negligence, from the time that he accepted; or before, after he knew that he was named Tutor: And upon the Auditor's Report, It was Found by the Lords, that he should be liable only from the time of his accepting; and yet the Pursuer having desired and got a Hearing in the Innerhouse, It was again urged for her, that the Tutor should be liable, after he knew that he was named, and did cease to do that Diligence that was incumbent to him; and divers Citations were adduced from the Civil Law, and the Titles of the ff. & Cod. De Tutela & Tutoribus; And De Administratione & periculo Tutorum; which ought to militate in this case, especially in respect the said Defender was not only named Tutor, but was a Legator; a considerable Sum being left to him by the said Testament, which Law presumes was left to him in contemplation of the burden of Tutory put upon him; so that having accepted the said Legacy, and having confirmed himself Executor Legator, he could not decline the Office, not to be Liable as Tutor or ut Protutor. And it was farther urged, that as Executor Legator, he was liable to do Diligence: To which It was Answered, That the former Interloquitor was opponed being just, and upon Relevant Grounds of Law, in respect the Civil Law is not received by us altogether in the case of Tutors; the Office of tutory by the Civil Civil Law being munus publicum & necessarium, which no person can decline, unless he have and allege a just Ground of Excuse, within the time limited by that Law; whereas by our Law and Custom, when any person or persons are named Tutors, they are at liberty to accept the said Office or not; so that a person named Tutor until he accept, neither is, nor is obliged to do the Duty of a Tutor: And albeit by the Civil Law, a Legacy being left to a Tutor, is presumed to be left eo intuitu and upon condition, that he should accept to be Tutor, yet by the Civil Law, if the person named Tutor do not actually get the said Legacy, nisi consecutus sit, which are the words of the said Law, he is not obliged to accept the said Office; and it is not, nor can it be said, that the Defender got the said Legacy before he did accept: And as to that other Ground, that the Defender being Executor Legator was obliged to do Diligence; It was Answered, That by late Decisions, an Executor Creditor is only liable to intromet, in order to his own satisfaction; and an Executor qua Legator is in the same case as an Executor Creditor; seeing a Legacy is a Debt payable out of the Executry; and the Legator has no interest to confirm, but to the effect he may be paid of the same.  
The Lords Found, That a Tutor is liable only from the time that he did accept: and that the leaving to him, and his accepting of a Legacy did not alter the Case; unless before his accepting of the said Office, he not only had owned, but got the said Legacy: And this Pursuit being only actio Tutelae, and for Compt and Reckoning against the Defender as Tutor, they did not determine the said Question, How far an Executor Legator should be liable? but reserved the same, until the Defender should be pursued as Executor.  
The Lords, in the Debate amongst themselves, some of them did urge these Arguments; That a Tutor being liable only ratione Officii, he cannot be liable before he accept the said Office; it being inconsistent with Law, that he should be liable to the Duty of an Office before he have it, which would be Filius ante Patrem. 2. In Law, a tutory is quasi Contractus; and as in all Contracts, it is required that there should be the mutual Deeds of both Parties contracters; and the Nomination (which is the Deed of the Defunct) did not bind the Tutor, until he bind himself by accepting, which is his own Deed. 3. That a Tutor, having a Legacy, should be obliged to accept it, is only provided by the Civil Law; which is the Municipal Law of the Romans; and is not of force with us, until it become our Law, either by a Statute, or Custom authorising the same; and even by the Civil Law, praesumitur only that the Legacy left to the Tutor is upon the account foresaid, but that Presumption is only in the case, where it cannot be thought, that the Defunct would have left the Legacy upon another account, viz. of Relation or any other Consideration; Whereas, in this case, it cannot be thought, that the said Legacy was left to the Defender, upon the account that he was Tutor, in respect he being the last named of the three Tutors, there were no Legacy left to them; and he was Nephew to the Defunct, who had a great kindness for him: and the said Legacy was not left to him simply, but in case his Wife, whom he thought to be with Child, should not be brought to bed of a Son. 4. The Defender could not accept the said Office of Tutor Testamentar, Because he and the other two Tutors were named conjunctly, and the other two living, he could not be Tutor alone. Actor Dalrymple, alteri Falconer. Monro Clerk.   

D. 234. 3. February 1675.  
A Removing being pursued from some Lands of the Estate of Collarnie; the Lady Collarnie compeared, and alleged, that the Tennent could not be removed without her consent, seeing the had right to a Terce by the Law, and was not excluded by her Contract of Marriage, though she was provided thereby to a Jointure, but not in satisfaction of her Terce, or what else she could pretend: Whereunto It was Answered, That she was not served nor kenned to a Terce; and until then, she had no interest to compear to stop the Removing.  
The Lords Repelled the Defence, and Found she had no Interest: Reserving her Right of Terce, when she should be served and kend, as accords. Craigie Reporter.   

D. 235. Oliphant of Provostmains contra _____ eod. die.  
A Bill was given in, desiring, that a Comprising being deduced, and the Messenger having deceased in the interim, before he subscried the same; Therefore an other Messenger who was his Colleague might be allowed and Warranted to subscribe the said Comprising.  
The Lords considered, That the Messenger that was on life, though he had been employed to execute the Letters of the Comprising, by denounceing and citeing, yet he did not sit and was Colleague to the deceased Messenger and was Judge with him, the day and time of the deduceing of the said Comprising: and that a Comprising being Processus Executivus, consisting of the Executions, and of the Process and Sentence of Comprising, upon the day that the Debtor was cited thereto; though divers Messengers may act severally as to Citation and Denunciation, yet none of them could be looked upon as the Judge and the Pronouncer of the Sentence, who ought to subscribe the same, but the Messenger that did actually sit as Judge, and upon the verdict of the Inquest, did Decern and Adjudge.   

D. 236. Cranston contra Mr. Mark Ker of Moriston. 4. February, 1675.  
UPon a Bill, it was desired, that Witnesses should be examined in relation to a Process, that their Depositions should lie in retentis: But The Lords Found, That though Summons were raised, that the samen not being execute, there was not a Dependence: and that it was a stretch great enough, to receive Witnesses before Litiscontestation in a depending Process, which the Lords are sometimes in use to do: but that Witnesses should be received upon a Bill, without the Foundation of a Process, it is inconsistent with Form.  
It is to be Regretted, That of late, the time of the English, that Abuse having crept in, that there are so many Bills given in, and sometimes past through inadvertency in a hurry; the said custom should be yet retained; so that Bills do justle out Process and the hearing of Causes; Especially it being considered, that they are oft times offered in the very time, when after pleading in other Causes, Parties and Advocates are removing; which is the Occasion that oft times most of the Lords are not advertent when the same are offered: And it is a Practice not suitable to the gravity of the Court, and not without a dangerous Consequence; seeing Bills may be anent Matters of great importance, which ought to be offered to the Lords in a decent way, and should be considered by them deliberately.   

D. 237. _____ contra _____ eod. die.  
THE Ship called the Wine-Grape, mentioned in the Case aboverelated Num. 207; Being Found by a Decreet of the Admiral not to be a Prize: and thereafter the said Decreet being reduced upon a contentious Debate in foro: A Bill of Suspension was given in, making mention, that the Lords having thought fit, during the dependence, the Value of the Ship being liquidate, the Price thereof should be sequestrate in the Complainers hands, upon a Bond to pay the Sum therein contained to the Caper and his Owners, if they should prevail in the Reduction foresaid: And that he was charged to pay the said Sum, the Process being now at a period by the said Decreet Reductive, at the instance of an Assigney: And that he could not pay the same until an Arrestment made in his Hands, at the instance of the Swedes the former Owners of the said Ship, should be purged; which Arrestment was upon the Dependence of a Reduction, intented at the Stranger's instance, for reduceing of the said Decreet Reductive: It was debated upon the Bill, and amongst the Lords, that the said Decreet being in foro contradictorio, was of that nature, that it could not be reduced: and it were of a dangerous Consequence, that after Decreets in foro, the People should not be secure, but upon pretence of the dependence of Reductions of the same, that which was found to belong to them by such Decreets, should be again liable to Arrestment and to questioning: And upon the other hand, It was considered and alleged, That there being Arrestment and Warrant for the same upon the dependence, the Debtor was not concerned to dispute what the Issue of the same may be, but there being de facto an Arrestment, the same aught to be purged; which could not be in form, but either by losing the Arrestment, or by refusing the Bill upon the reason of Arrestment; the Defender in this Reduction finding Caution to make forthcoming, if the Pursuer should prevail.  
The Lords, notwithstanding Found, That in respect the matter was already decided by a Decreet in foro, that the Bill should be refused, notwithstanding of the said Arrestment upon the dependence foresaid; which was hard as to the Debtor, who could not be formally secured, but in manner foresaid: And likeways hard as to the Strangers, seeing by the said Deliverance, the Lords did in effect predetermine the Reduction now depending; and upon the matter did Find, That the Pursuer could not have Interest to pursue, before the Pursuer was heard in the said Reduction.   

D. 238. Vanse Jailor of the Tolbooth of Edinburgh, 5. February 1675.  
MR. Vanse Jailor of the Tolbooth of Edinburgh, did give in a Bill, complaining that the Jailor of the Canongate was in use to enlarge Prisoners being put in for debt, upon the Warrant and consent of the Creditor at whose instance they were imprisoned; whereas the Complainer did not enlarge any such Prisoners, without Warrant of the Lords Letters: and therefore desired, that either he should be allowed to have the same liberty, or that it should be denied to other Jailers.  
The Lords did consider what was fit to be done in all such like Cases; and in end, the plurality did resolve, that where the Sums were small, not exceeding 200. marks, the Jailor might enlarge Prisoners for debt, without any other Warrant but the consent of the Parties, at whose instance they were imprisoned; which they did upon that consideration, that Poor People, if they should be forced to suspend and relax, with a Warrant to put them out, would be sometime put to more Charges, than the Debt doth amount to. Five of the Lords did descent, being of the Opinion, That the Prison being His Majesty's Prison, no person could be put in upon Letters of Caption, unless the same were under the Signet; and no person put in by Warrant of the said Letters, could be enlarged without Letters to that effect; nam unumquodque dissolvitur, eo modo quo contrahitur: And the Prisoner being put in for his Rebellion, could not be enlarged, unless he were relaxed: And if Parties did suffer themselves to be taken and incarcerat for small Sums, it was their own fault, and more unexcusable the less the Sum be; and majus & minus non variant speciem: And it being acknowledged by the Law, they being Prisoners for greater Sums, they could not be enlarged, without a Warrant to put them to liberty; and the Law making no distinction of greater and less Sums, the Lords had not a Legislative Power to alter or qualify the same, without an Act of Parliament.   

D. 239. Burnet contra Lutgrue. eod. die.  
A Commission being directed for taking the Oath of a Stranger residing in Holland; the Report was questioned upon that pretence, that the Stranger's Deposition was not subscribed, albeit the Commission did bear, that he should subscribe the same: and yet it was sustained, because of the Custom of Holland, that the Judges only subscribe, and the same was subscribed by them; And it was adminiculate with a Letter from him, bearing, that he had declared before the Commissioners, and that he would adhere to what he had declared. Gibson Clerk.   

D. 240. Marion Binnie contra Gilbert Scot, eod. die.  
THE deceased William Scot of Bonington having three Sons, William the eldest, and Robert, and Gilbert: The said William by his Contract of Marriage, had the Lands and Estate of Bonington disponed to him by his Father Mr. James Scot; but was not infeft therein: and after his decease his Brother Robert having succeeded to him, did renew a Bond granted by the said William, in favours of Robert Riddel; and having retired the said William's Bond, did grant a new Bond for the Sum therein contained: And the said Robert having also deceased, before he was infeft in the Estate, or served Heir to the said William; and the said Gilbert the third Son having succeeded: a Pursuit was intented, at the instance of the Relict and Executrix of the Creditor, against the said Gilbert, as representing the said William and Robert his Brothers; at least to hear and see it found and declared, that the said Bond granted by Robert, was granted by him in contemplation and lieu of the said William's Debt and Bond; and that it ought to affect any Estate that did belong to the said William; and in special the benefit of the said Contract of Marriage, and disposition therein made in favours of the said William.  
It was Alleged for the Defender, That he did not Represent Robert nor William, upon any Passive Titles; and though he should represent William, neither he nor the Estate would be Liable to the said Debt, In respect the samen was extinct, and innovate by a new Bond granted by the said Robert; whom neither he did nor would Represent: And the said Bond being granted only by Robert, could not affect any thing belonging to William; and he was not concerned to debate upon what account the said Bond was given by Robert.  
The Lords did incline to sustain the Declarator, upon that head, that the said Innovation was only to the effect, the Creditor might be the better secured and satisfied; the said Robert being Appearand Heir for the time; and who if he had lived would have perfited his Right, and obtained himself served Heir to William; but being prevented by Death, so that the said Bond was altogether ineffectual, the Pursuer had condictionem causa data causa non secuta, to be Reponed against the said Innovation: and the Defender was in dolo pessimo to question the same, seeing nemo debet locupletari cum aliena jactura; And he ought not to have William's Estate without payment of his Debt: And some of the Lords did urge and instance the case aftermentioned, viz. If the Younger of two Brothers, the Elder having gone Abroad, and thought to be dead, should obtain himself served as Heir to his Father; and the Creditors of the Father conceiving that he had Right should renew their Bonds, and give back these that they had from the Father, and thereafter the Elder Brother should return and should be served Heir to his Father, whether in that case the Creditors might have Action against the Elder Brother and Estate, notwithstanding of the said Innovation?  
But because the case was New, and not without Difficulty, The Lords before Answer thought fit to try, what way it could be made appear that the said Bond was in lieu of a Bond granted by William. Newbyth Reporter. Gibson Clerk.   

D. 241. Broun contra Ogilvie. eod. die.  
A Person being pursued for an Annuity of Money, did claim the benefit of Retention conform to the late Act of Parliament: But the Lords Found, that albeit Retention was granted for relief of Debtors of their Taxation, and that the Debtor was alike concerned as to the end foresaid, whether he paid the Annualrent as the usura and profit of a principal Sum, or as Annuity due upon a personal Bond; yet the Act of Parliament, mentioned only Annualrents: And being, as all Acts of Parliament, stricti Juris, specially such as are correctoriae Juris communis; it could not be extended beyond the Letter of the Law. Nevoy Reporter. Gibson Clerk.   

D. 242. Colonel Fulertoun contra The Laird of Boyne. eod. die.  
THE deceased Laird of Towie having named his Relict now Lady Boyne Tutrix to his Daughter; and in case of her Marriage Colonel Fulertoun: The said Colonel pursued the Laird of Boyne for delivery of the said Pupil: It was Alleged, That her Mother and her Husband would entertain the Pupil gratis. It was Answered, That Boyne being her Step Father, and having no other Relation, but that of Vitricus, which in Law is not favoured; his offer to entertain is not Relevant against the Tutor, who has the Trust both of the Pupils person and Estate: And it is to be presumed, that the offer of the Stepfather is upon a design upon the Pupil her Person and Fortune; and that the case had been determined in terminis 4. July 1649. Langshaw contra Mure.  
The Lords Repelled the Defence, and Ordained the Pupil to be delivered to the Tutor. Strathurd Reporter. Gibson Clerk.   

D. 243. _____ contra _____ eod. die.  
THE Lords Found, That a Warrant could not be given to cite at the Mercat cross with certification pro confesso; seeing no person could be holden as confessed who is not personally apprehended. Mr. Thomas Hay Clerk.   

D. 244. Duke of Monmouth contra Earl of Tweeddale. eod. die.  
THere being a Transaction betwixt the Duke and Duchess of Monmouth, and the Earl of Tweeddale, whereupon a Discharge was granted by the said Duke and Duchess to the said Earl, with consent of their Curators, which was also superscribed by his Majesty taking burden for the Duke and Duchess; with an obligement, that they should ratify after Majority: The said Duke and his Lady pursued a Reduction of the said Discharge, upon a reason of Minority and Lesion; It was Alleged, That all Parties having Interest were not called, viz. The Officers of State for His Majesty's Interest; seeing His Majesty was so much concerned, that if any thing were evicted from the Defender, His Majesty would be Liable for the same.  
The Lords Repelled the Defence: Without prejudice to His Majesty's Advocate to appear for his interest, if he thought fit. Stathurd Reporter. Gibson Clerk.   

D. 245. Irving contra Caruther. 6. February 1675.  
THE Summons being referred to the Defenders Oath, who having declared that as to what was referred to his Oath he could not remember nor be positive; It was debated amongst the Lords, whether the Oath did prove or not: Or if the Defender should be holden as Confessed, In respect he was to declare de facto proprio & recenti; and in such a case the pretence of non memini is neither  nor relevant: And so it was Found by the Lords, though some were of the Opinion, that a person compearing and declareing upon Oath, that to his knowledge he did not remember, could not holden as confessed, seeing he cannot be said to be contumacious; and to want Memory is not a fault: And after a party has declared, it is only to be considered, whether the Oath proves or not. Mr. John Hay Clerk.   

D. 246. Burnet contra McClellane. eod die.  
A Father being pursued, as Behaving himself as Heir to his Son, and Litiscontestation being made, and Witnesses adduced; the time of the Adviseing, It was Alleged, That the Father could not represent his Son as behaving, because the Defunct had a Brother who was produced, and at the Bar: Whereto It was Answered, That in hoc statu the Defence was not receivable; and it could not be said to be noviter veniens, seeing the Father could not be ignorant that he had another Son.  
The Lords, in respect of the State of the Process, would not receive the Defence, though verified instanter, unless the Son would suscipere judicium, and be content that the Process should proceed as against him: which appears to be hard; seeing that which was to be proven, was not only that the Defender intrometted, but that he was appearand Heir; and in casu notorio, no probation was to be respected to the contrary: and though the Father could not but know that he had a Son, yet he might be ignorant that his Son would be preferred to himself, as to the Succession of his own Son: and in damno vitando, ignorantia Juris is excusable. Mr. J. Hay Clerk.   

D. 247. _____ contra Captain Martin and others. 9 February. 1675.  
A Ship being taken by a Caper, and being found by a Decreet of the Admiral to be a Prize: Thereafter, upon a Decreet of the Lords, reductive of that of the Admiral, being found to be a free Ship, the Stranger did urge payment against the Captain and the Owners of the value; And It was Alleged, That the Decreet of the Lords, Ordaining Restitution, was against them as correi debendi, and not in solidum, and that they are only liable for their own parts: Whereunto It was Answered, That though it was found, That the Captain had probable Reasons for bringing up the said Ship, yet upon the matter, the Stranger was wronged by the taking of his Ship; and in casu delicti, by spuilyie or wrongous intromission, or otherways, Decreets against the Persons therein contained are construed to be in solidum: and the Stranger cannot know, what the respective Interests and Parts of the Owners are; and ought not distrahi, and to be put to Process against every one of them, for declaring of their Parts.  
The Lords Found, That they were liable in solidum; Reserving their Debate and Relief amongst themselves, as to their several Interests and Proportions. Lord Forret Reporter. Gibson Clerk.   

D. 248. Burd contra Reid. eod. die.  
THE Lords having formerly Found, That the Cedents of Personal Bonds, are liable only to warrant debitorem esse, but not esse locupletem; It was pretended, That there being a Question concerning Warrandice of a Right of Annualrent out of Land, the same should be warranded no other way: But The Lords Found, That the Warrandice of Lands, or of such real Rights, upon or out of Land, are absolute, unless they be expressly limited and qualified by their Right. Hamilton Clerk.   

D. 249. Vetch contra the Creditors of James Ker and Peter Pallat. eod. die.  
SIR Robert Stewart in Ireland and his Son, being Debtors by Bond in the Sum of 800. lib. starl. to the deceased James Sanderson; which Bond being conceived in the Form of English Bonds, did not bear Annualrent: The said James did assign the said Bond in Favours of Ronald Graham in trust, and to his own behoof, upon a Back-bond; and thereafter did assign the said Back-bond in favours of James Ker and Robert Broun Merchants; as to two Parts to the said Ker, and the third part to Broun.  
Sir George Maxuel of Pollock being Trustee, and acting in name of the said Stewarts, did grant a Bond to the said Ker and Broun, making mention of the said Bond granted by the Stewarts, and of the Assignation made by the said James Sanderson to the said Broun and Ker; and that after Compt and Reckoning, there was only resting of the said Sum 300. lib. sterl. which the said Sir George, in name of the said Stewarts, is obliged to pay within three Months after that Stewarts Bond should be delivered to him, with an Assignation or Discharge.  
The said James Ker being deceased, his Executors did intent Action against the said Sir George Maxuel, for his part of the said Sum, viz. 200. lib.  
In this Process, William Vetoh did compear for his Interest, and did allege, that the Sum in question due by Sir George Maxuel, did belong to him, having fallen under the Rebellion of the said James Sanderson, and the Gift of his Escheat, first Gifted to David Rodger, fra whom the said William had right, and thereafter to the said William himself: and though the said Bond, granted by Sir George Maxuel, was granted to the said Ker and Broun, yet it was granted for the same Sums, that were due by the said Stewarts to the said Sanderson, as appears by the Bond granted by the said Sir George Maxuel; so that the foresaid Sum due to Sanderson, and the Bond for the same, having (as said is) fallen and belonged to the King, it does still belong to him and his Donator; Notwithstanding the said new Bond granted by Sir George Maxuel in place of the same, seeing Surrogatum sapit naturam, etc. It was Answered, That the said Sanderson being Debtor to Ker and Broun; as he might have paid his Debt after the Rebellion, or the Creditors might have gotten satisfaction by poinding or Arrestment before the Rebel's Escheat, so he might have assigned the Debt due to him for their satisfaction. Whereunto It was Answered, for the said William Vetch, That the Rebel cannot make assignation stante rebellione, the Act of Parliament in anno 1592. K. Jam. 6. Parl. 12. cap. 145. Entitled, Anent the Escheats of Rebels, Bearing expressly, That no Assignation shall be valid being made by a Rebel at the Horn, in defraud of the Creditor; if he be at the Horn for the same cause: And therefore the said Assignation made by Sanderson when he was at the Horn, in prejudice of Rodger, Vetch his Cedent, at whose instance he was at the Horn for the same Debt, is void: and what may be in the Case of actual payment, or of Poinding, or legal Diligence, needs not be debated in this case; seeing the Rebel did neither make payment, nor was the said Debt due by the Stewarts, affected with Legal Diligence, but a voluntar Assignation was made by the Rebel, which being Null, for the Reason foresaid, and the Pursuers Right to the Sum in question, being founded upon the same, the Pursuer can have no Right to the foresaid Sum; and the said Vetch having undoubted Right (as said is) ought to be preferred.  
The Lords by their Interloquitor 10 Decenber last, did find that an Assignation made by a Rebel to his Creditor, albeit for a Debt preceding the Rebellion, and that the Assignation was granted before the Gift of the Rebel's Escheat, cannot prejudge the King or his Donator: But that payment made by the Rebel, or any other in his name, upon his Precept or Assignation, being before the Donators Gift, is sufficient to liberate the Creditor from Repetition.  
It was further Alleged for the Pursuer, that the said Bond granted and due by the Stuarts was extinct and innovat; In fua far as the said Sir George Maxuel had granted the said other Bond to the said Ker and Broun for the same Sum, which was equivalent to payment.  
Whereunto It was Answered, That the said Bond granted by Sir George Maxuel was in effect but a Bond of Corroboration, whereby the said Sir George became expromissor, and upon the matter Surety for the said Sum; So that the former Bond was not innovat nor extinct, being neither Discharged nor Retired; but being only to be Discharged or Assigned upon payment made by Sir George, which implies that it could not be innovat nor extinct, seeing it could not be Assigned if it had been extinct.  
The Lords before Answer to that Point, viz. If the said Transaction was equivalent to Payment, declared they would take Sir George Maxuel's Oath ex officio, at what time the said Bond granted by the Stuarts were delivered up to him, and by whom; and if any Discharges were granted to him of the said Bond.  
Sir George Maxuel having declared upon Oath, That he had recovered the said Bond from Ronald Grahame, and that he had not taken a Discharge of the said Bond either from him or from the said Ker and Broun.  
This Day the Debate was again resumed at the Bar, and amongst the Lords; and these Arguments were urged by His Majesty's Advocate. viz. That by the Rebellion Jus quaeritur Domino Regi, and that confiscation ex delicto is upon the matter a Legal Assignation, and equivalent to an Assignation intimate: And if there were two Assignations, and the Debtor being out of the Country, the first Assignation had been intimate at the Mercat Cross, and Pear and Shoar of Leith, and the Debtor having returned, the second Assigney had intimate his by way of Instrument, and thereupon the Debtor had bona fide made payment to him, the first Assigney notwithstanding would be preferable: And though the Debtor would be free in respect of Payment bona fide, yet the first Assigney might repeat the Debt from the second as indebite paid to him who had no Right; so that the King and his Donator having Right to Stuarts Debt, though the Sum in question had been paid to Ker and Broun (as it is not) a paritate rationis the Donator might repeat the same as indebite paid to them; seeing by the said Interloquitor, It is Found, That an Assignation made by a Rebel, albeit before the Gift, cannot prejudge the King or his Donator, for the reason foresaid; It follows necessarily, that the Assigney by virtue of such an Assignation has no Right to the Sum Assigned, and consequently, if the Debtor pay the said Sum bona fide, though he may be liberate, yet the said payment cannot prejudge the King, or his Donator, but they may repeat the Sum belonging to them: And if it be not paid, but a Bond is renewed for the same, as in this case, the Donator ought to be preferred.  
The Assignation being null, as said is, There can be no Innovation or Deed done by the Assigney who has no Right, in prejudice of the King or his Donator; seeing a Debt cannot be innovat but by a person having Right to the same.  
The Law does so far favour Legal Diligence done by the Creditors of Rebels, that there are some Decisions in their favours preferring their Diligence done before the Gift be declared; but voluntar Deeds done by Rebels in prejudice of His Majesty, who has Jus quaesitum, and of the Creditor who has denounced, are altogether reprobate; And the Law being clear, and there being no Decision to the contrary in favours of Creditors in the case of payment upon such Assignations as are void in Law; the Donator ought to be preferred; Otherways a Door should be open to prejudge His Majesty of His Casuality, and Creditors of their Diligence, seeing the Rebel may assign, and upon such voluntary Assignations payment may be made: And there should need no Application to the Exchequer for Gifts of Escheats, if they may be so easily evacuate by such practices:  
It appears by Sir George Maxuel's Oath, and by his Bond, that the said Debt was not extinct; seeing Sir George did act in the Affair as a Trustee and doer for the Stuarts; and their Bonds were neither Discharged, nor given back by the Assigneys, who had Right to the same; but were recovered by the said Sir George by his own means from Ronald Grahame.  
The Lords did adhere to their former Interloquitor, and did Find that Creditors getting payment from Rebels, either by poinding or by Assignation before Declarator at the Donators instance, doth secure the Creditor against the Donator; And did also Find, that in this case the first Bonds were extinct; and that the same being delivered to Sir George Maxuel, before Declarator at the instance of the second Donator, that the Assigney is preferable. Sir David Falconer for Veatch alteri Dalrymple, Char●ris, etc. Gibson Clerk.  
This Decision appears to be hard, seeing Declaratoria non tribuit Jus, but Declarat Jus quod est: And the Horning being declared upon the first Gift, there needed not a Declarator upon the second. Vide infra 12. February, and 10. Novem. 1675. inter eosdem.   

D. 250. Douglass contra Jackson and Grahame. 11. February. 1675.  
THE Lords Found, that a poinding is not lawful, unless it be begun before the setting of the Sun; and what is to be done at that time, be all done and complete before the Day light be gone.   

D. 251. Lady Torwoodhead contra The Tenants. eod. die.  
THE Lady Torwoodhead having gotten Aliment modified to her by the Lords of Council of 600 Marks yearly; and for surety of the same having gotten the Gift of her Husbands Liferent Escheat, did pursue the Tenants for Nails and Duties.  
It was Alleged for Florence Garner. That he had Right to the Lands libeled, and Nails and Duties of the same by comprisings and Infeftments thereupon expired.  
It was Answered, That the Nails and Duties of the Lands exceed the Annualrents of the Sums contained in the Comprysing; and by the Act of Parliament 1661. for ordering the payment of Debts betwixt Creditor and Debtor, where the Lands comprised exceed the Annualrents of the Sums contained in the Comprysing; The Comprysers are restricted to the possession of such of the Lands dureing the Legal as the Lords of Session should think just: And that the expireing of the said Florence his comprisings was interrupted by an Order used by Edward Ruthven Son to the Lord Forrester.  
It was Answered for Gairner, That the Lord Forrester had no Right to the Reversion of Torwoodhead's Lands; so that no Order used by him, as to these Lands, could be valid to interrupt the said Comprysing: And the said Order neither was nor could be declared.  
The Lords, In respect the Lord Forrester being principal and his Brother Torwoodhead Cautioner, both their Lands were Comprysed for the same Debt, and that the Principal may satisfy the Debt, and extinguish the Comprysing as to both his own and the Cautioners Lands, They Found that the said Order did interrupt the Comprysing as to both.  
This appears to be hard. 1. Because the said Act of Parliament indulges the favour foresaid to the Debtors themselves, upon the Conditions thereinmentioned, viz. That they should ratify the Comprysers' possession and deliver the Evidents; and the same cannot be extended to Donators. 2. A Comprysing cannot be interrupted, but either by Payment and actual satisfaction, or by using and declareing an Order of Redemption: Until which be done, the Comprysing cannot be thought to be unexpired. Craigie Reporter.   

D. 252. Kinnier contra _____ 12. February. 1675.  
THE Lords upon a Bill given in by _____ Kinnier who had obtained a Bonorum, and a Testificat of divers persons of Credit that he had become insolvent upon occasion of loss and ill Debtors, and was otherways virtuous; They dispensed with that part of the Decreet anent the wearing of the Habit.   

D. 253. presbytery of Duns. eod. die.  
THE presbytery of Duns having by Bill desired, That Letters of Horning may be direct against certain persons who had been cited as Witnesses; and did not appear before them.  
The Lords did demur, In respect Letters of Horning ought not to be direct, but either by consent of Parties, or by Warrant of Acts of Parliament; As appears by Acts of Parliament, ordaining Horning to be direct upon Sheriffs and Commissars Decreets, and Decreets within Burgh, and Admiral's Decreets.   

D. 254. Cruickshanks contra Watt. eod. die.  
THE Lords Found, That a Disposition being made after Inhibition, but before the Registration of the same, may be reduced ex capite Inhibitionis; seeing the Execution of the Inhibition doth put the lieges in mala fide: And after the same is complete, and thereby the Debtor and the lieges are inhibit to give and take Rights, the Inhibition ipso momento thereafter, is valide and perfect; but resolvitur sub conditione, if it be not Registrate in due time. Mr. Thomas Hay Clerk.   

D. 255. Veatch contra The Creditors of James Ker, and Peter Pallat. eod. die.  
IN the case abovementioned Veatch contra The Creditors of James Ker and Peter ; It was farther Alleged for the said William Veatch, that he ought to be preferred, because by the Act of Parliament 1621. Assignations or other Rights granted by Bankrupts in favours of any of their Creditors, who had not done Diligence, and in prejudice of a Creditor who had done Diligence by Horning or otherways, are void: And the Creditor who is partially preferred and gratified, if he recover payment he is Liable to Refound: And by the Act of Parliament in Anno. 1592. anent the Escheats of Rebels, Cap. 145. Assignations made stante Rebellione in prejudice of the Creditor, at whose instance the Cedent is at the Horn, are Null; and that the said Assignation made by Sanderson in favours of Ker and Broun, was made by him after he was at the Horn at the instance of David Rodger, Veatches Cedent: And the said Assignation being Null for the Reason foresaid, all that has followed thereupon is void.  
It was Answered, That the said Act of Parliament is only to be understood, in the Case when any voluntar Payment or Right is made in defraud of the lawful and more timely Diligence of another Creditor, having served Inhibition, or used a Horning, Arrestment, Comprising, or other Lawful Mean to affect the Dyvors Land or Estate; and that Horning is not such a Diligence as does affect, being only personal Execution against the Debtor; and that the said Debt of Stuarts was many years contracted by the Rebel after the said Horning; and that the said Stewarts residing in Ireland, and their Bond being conceived after the stile of English Bonds, did not fall under Sanderson the Creditors Escheat.  
Whereunto It was Answered, That by the said Act of Parliament, Bankrupts, after they are at the Horn, cannot make any voluntar Right or Payment to gratify or prefer other Creditors; so that there is no necessity to debate whether Horning doth affect or not; And yet the truth is, Horning is such a Diligence as doth affect, seeing thereby all the Escheatable Goods are affected, and do belong to the King, and to the Creditor at whose instance the Horning is, who is preferable to the King, and has an interest in the said Goods; and that what ever belongs to a Rebel, whether the time of the Rebellion, or at any time how long soever thereafter during the Rebellion, the same accrues to the King, and consequently to the Creditor in the Horning; and that nomina debitorum and Debts non habent situm, but are personal Interests, and sequuntur personam Creditoris; and if they be movable, do fall under his Escheat, which is a Legal Assignation, as said is.  
The Lords inclined to prefer Veatch. But because some of the Lords in voting were non liquet, the Business was delayed. Vide supra 9 Febr. 1675. inter eosdem. And Vide infra 10. Novemb. 1675.   

D. 256. Parishioners of Banchrie contra Their Minister. 16. February 1675.  
IN the Case of the Parishioners of Banchrie against their Minister: The Lords Found, That the Act of Parliament, 3. Sess. of his Majesty's 1st. Parl. cap. 20. Ordaining that ilk Minister should have Grass for one Horse and two Kine, over and above their Gleb, Did import, That Ministers should have the said Grass, or 20. lib. conform to the said Act, albeit their Glebs' which they had formerly, did extend to four Aikers, and much more than would be Grass, if the same were left lee to that purpose, for a Horse and two Kine. Some of the Lords were of a contrary Opinion, seeing, by the Act of Parl. K. Jam. 6. Parl. 18 cap. Where there is no arable Land, 16. Soums Grass is to be designed for the four Aikers which the Law appoints to be designed for Glebes: and upon the Ground foresaid, Ministers having 16 Soums Grass, may pretend to have also much more Grass designed to them as will keep a Horse and two Kine, or 20. lib. Hattoun Reporter. Hamilton Clerk.   

D. 257. Binning contra Brotherstanes. eod. die.  
ALexander Binning by Contract of Marriage with Margaret Trotter, was obliged to resign a Tenement of Land in Favours of himself and his Wife in Liferent, and the Heirs of the Marriage in Fie; and accordingly Resignation being made, Infeftment was taken to him and his Wife, and their Heirs foresaid.  
Thereafter the said Margaret having deceased, there being only one Daughter of the said Marriage Margaret Binning; the said Alexander married a second Wife, and did oblige himself to provide the Heirs of that Marriage to 10000 marks: And thereafter did induce the said Margaret his Daughter of the first Marriage, after her Minority, to give a Bond, obliging her to resign the abovementioned Tenement to which she was to succeed as Heir of Provision, to her Father, in favours of herself and the Heirs of her own Body, which failyiening, in favous of Alexander Binning her Brother of the second Marriage and his Heirs whatsomever; and to do no Deed to prejudge him anent the Succession.  
The said Margaret Binning being thereafter Infeft as Heir of Provision to her said Father in the said Tenement, did by Contract of Marriage with William Brotherstanes oblige herself to Resign the said Tenement in favours of herself and the said William, and the Heirs of the Marriage; whilks Failyieing his Heirs whatsomever; and upon the said Resignation, she and her Husband were Infeft.  
Thereafter the said Alexander Binning her Brother did obtain a Decreet against the said Margaret and her Husband for implement of the said Bond; and for granting a Procuratory of Resignation for resigning of the said Tenement, conform to the said Bond; in favours of the said Margaret herself and the Heirs of her Body, whilks Failyieing in favours of the said Alexander: And in obedience to the said Decreet the said Margaret and her Husband did resign the said Tenement: and Infeftment was taken to the said Margaret and the Heirs of her Body, whilks Failyieing to the said Alexander: After the said Margaret her decease the said Alexander did obtain Decreet against the Tenants of the said Tenement for mails and Duties, which being Suspended by the said William Brotherstanes and turned in a Lybel; It was Alleged for him, that he ought to be preferred being Infeft long before the Pursuer, and 7. years in possession: Whereunto It was Replied, That the Defender was denuded of any Right that he had by the Infeftment foresaid in favours of the said Margaret and her Heirs of Provision foresaid; and that the Pursuer had thereby Right as Heir of Provision to her.  
To which It was duplied, That being incarcerat upon the said Decreet against him and his Wife (for Implement) he had resigned for Obedience as Husband, and Authorising his Wife; but did not intent, nor could not be discerned to denude himself of his own Right, which he had for so Onerous a Cause by his Contract of Marriage.  
The Lords, having considered the Procuratory of Resignation granted by the Defenders Wife and himself, did Find that he had granted the same, not only for Obedience, and for his Interest as Husband, but for his own Interest, and as taking burden for his Wife; and so did denude himself of any Right that he had, in favours of his Wife, and the Pursuer as Heir of Provision: And therefore preferred the said Alexander.  
Upon the Debate, It was agitate amongst the Lords, whether such Clauses in Tailʒies, viz. That no deeds should be done in prejudice of the Heirs of Tailzie and Provision and their Succession, do import that the Granter of such Obligements should not have power to dispose of the Land that is Tailʒied, and have that liberty which is inherent to Dominium? Or if it should import only, that they cannot break the Tailzie, or provide the Lands in Tailzie to other Heirs.  
The Precedent was of Opinion that the Fire could not dispone nor do any other Deed: And that the said Clause was not restricted to the altering or breaking of the Tailzie. But this point was not decided.   

D. 258. Ratraw contra _____ 16. February 1675.  
AN Appearand Heir having, upon an Exhibition pursued by him to the effect he might advise whether he would be Heir, obtained the Writes to be exhibited in the Clerks Hands; did thereafter upon a Bill desire the samen to be delivered, pretending that he had use for the Writes for serving himself Heir; and no other person could have any Interest for keeping them but himself.  
The Lords granted the desire of the Bill: Albeit some of the Lords thought, that the Writes could not be delivered to him, unless he were Heir, but only such as he should have use of for his Service upon a Ticket to the Clerk to redeliver the same, if he should not be served Heir within a certain time: And that the Creditors had Interest, seeing the Appearand Heir, if he should resolve not to be Heir, might embazle and put the Writes out of the way, in prejudice of Comprysers.   

D. 259. Hay contra Grace. 4. June. 1675.  
A Merchant, having given a Commission to a Skipper to carry a parcel of Salmond to Bourdeaux, and upon the Sale of the same there, to bring home Wines and Prunes; pursued the said Skipper for the said Salmond and profit thereof, and referred the Lybel to the Skippers Oath: And the Defender having qualified his Oath in these Terms, viz. That being upon his Voyage to France, he was forced to go in to Holland by Storm of Wether; So that he could not go to Bourdeaux; And that he was forced to sell the Salmond in Holland, and with the price of the same did buy a parcel of Cards and other Goods mentioned in his Oath, for the Pursuers use; and having embarked the same to be transported to Scotland, and in the interim War having arisen, the Ship and Goods were taken by the Dutch; and that he had done for the Pursuer as for himself, and as other Merchants had done for themselves; Which Oath being advised, It was debated amongst the Lords, whether the Defender should be Assoilied, in respect of the Oath and qualification foresaid? And It was Found, that albeit the Defender might be excused upon the account foresaid, for not going to Bourdeaux and fulfilling his Commission in terminis, yet as to the of the parcel of Cards with the product of the Salmond, and the embarqueing of the same for the Pursuers use, for which he had no order; he was to be considered as negotiorum gestor, and upon his own hazard; and could not prejudge the Pursuer by disposing of his Money; unless he were able to say, that gessit utiliter both consilio & eventu; specially seeing he might have secured his Money in Factors hands, or transmitted the same by Bills of Exchange, without employing or far less hazarding the same without order. Mr. Thomas Hay Clerk.   

D. 260. 8. June 1675.  
THE Lords yesterday did Order, that in regard of the great abuse in desiring and granting Advocations so frequently from Inferior Courts, to the great prejudice of the People, and the retarding and delaying Justice; that therefore the Ordinary upon the Bills may refuse to pass Advocations, if he find cause; but that he ought to report all Advocations before they be passed to the whole Lords.   

D. 261. Kyle contra Grace. eod. die.  
THIS Day the Lords Found, That Advocations for Sums of Money within 200 Marks, could not be passed upon any reason of Iniquity. Castlehill Reporter.  
Some of the Lords in the case foresaid were of Opinion, that Advocations should not pass, though the Process had been for a Sum above 200 Marks; Because Litiscontestation had been made in the Cause; and after Litiscontestation there can be no Iniquity but by a Decreet; which ought to be Suspended without Advocation.   

D. 262. Grant contra Grant. 10. June 1675.  
IN the Improbation of a Bond; the Bond being produced, and the Defender refusing to abide by the same, Certification was craved against the said Bond, because the Defender did not abide by the same: And the Lords were clear, that the Certification should be granted for not abiding by the said Bond, though it was produced; but because the Witnesses in the Bond had been examined, and there being only two Witnesses to the same, they both declared that they were impuberes, the one of 8. and the other of 9 Years of Age, the time of the subscribing of the Bond; and the Subscription was not like the Subscription now used by them; and to their remembrance they were not Witnesses to the same; but were not positive that they were not Witnesses.  
The Lords, in respect of their Declarations, and that the Defender himself, did in effect, at least presumptively, acknowledge the falsehood of the Bond; in sua far as he did not abide by the same; Had an Impression that the Bond was false; and therefore they granted Certification for not abideing by the same: and did leave to the Pursuer, either to take out the Certification, or to insist in improving of the Bond, or for declaring the same Null, as wanting Witnesses, as he should think fit:  without question, though the Witnesses did not fully improve it, yet in respect of their Age the time of their pretended subscribing the same, and by their Declaration, they did not astruct the Truth of the same; In which respect, the Bond ought to be constructed, and looked upon as wanting Witnesses, and so Null. Mr. Thomas Hay Clerk.   

D. 263. Scot contra Murray. 11. June. 1675.  
A Suspension being raised of a Decreet; Arrestment was used at the instance of the Creditor, after the raising of the same; and upon that pretence, It was craved by the Suspender, That the same might be loosed; and upon the Report of the Bill, the Lords having debated, Whether the said Arrestment could be loosed, being upon a Decreet, though suspended?  
The Lords Found, That though a Suspension be raised of a Decreet, yet it does not cease to be a Decreet, until it be taken away by a Decreet in favours of the Suspender; and that though a Suspension sists execution, yet the Creditor may arrest; seeing the Arrestment is no Execution, but a Diligence and Remedy to preserve the Debtors Estate; to the effect that after discussing of the Suspension, the Creditor may have execution against the same: And therefore They Found the Arrestment could not be loosed. In this case, the Suspender had consigned the Principal Sum, but not the Annualrents; otherways if he had consigned all, the Lords would have loosed the Arrestment; seeing the Consignation of the Money is sufficient Surety to the Creditor. Mr. Thomas Hay Clerk.   

D. 264. Auchenleck contra E. Monteith. 15. June 1675.  
WIdow Auchenleck pursued the Earl of Monteith, for the price of certain Ware for his Lady's , extending (conform to an Account) to the Sum of 177. lib. It was Alleged for the Earl, That the said Ware was furnished, after he had served Inhibition against his Lady that she should not contract Debt to his prejudice. Whereunto It was Answered, That the said Furnishing was necessary for the Lady's , and albeit after Inhibition, she could not contract Debt to her Husband's prejudice, yet the Earl being obliged to furnish her , and other Necessaries; he will be liable for what is furnished to her necessarily.  
The Lords, (upon the Report of the Debate foresaid) having considered the Inhibition, and that the execution of the same was not registrate; were of the Opinion, that the said Inhibition was Null: But because it was not questioned by the Defender, they Ordained that the Reporter should hear, what Answer the Defenders Procurators could make as to the said Nullity,  
It was thought hard by some of the Lords, That a Merchant, after Inhibition at the Husband's Instance, furnishing bona fide to the Wife, should be frustrate upon the pretence of an Inhibition; unless either the said Inhibition had been intimate to the Merchant, or it were notourly known that the Wife was Inhibited; seeing such Inhibitions are granted without any Ground either of Write, as Bond or Contract, or the dependence of a Process; but only upon a Bill and Desire of the Husband, sine causae cognition: And it were hard, That Merchants, when Persons and Ladies of any Quality, come to their Shops for buying their Ware, should go to the Registers and try whether they be inhibit. but these Points were not decided.   

D. 265. Katherine McMillan Lady Logy contra Meldrums. 16. June 1675.  
A Disposition being granted by a Husband to his Wife of Movables, and she in an Improbation of the same, being urged to abide thereat; and offering to abide at the same as a Writ truly delivered to her by her Husband: The Lords Found, That she ought to abide at the same simpliciter, and though such a Qualification may be allowed to Strangers and singular Successors, who may be in bona fide to take Assignations to Writs; Yet Wives and conjunct Persons and Relations, are in a different condition, seeing they are presumed not to be ignorant of the Deeds and Transactions of their Husbands and Relations. Newbyth Reporter. Monro Clerk.   

D. 266. Thomson and Halyburton contra Ogilvie and Watson. eod. die.  
DAvid Thomson having, by his Testament, nominate his Wife Executrix and Tutrix; and having left a Legacy to his Son of 5000. lib. and having ordained his Relict to employ the same upon Annualrent, in sua far as he ordained him to be educate upon the Annualrent of the same: In a Pursuit for the said Legacy, and the Annualrent of the same, It was Alleged, That the Executrix could not be liable for Annualrent: And It being Replied, That she was also Tutrix, and Tutors are liable after the first Term that they embrace the Office, for Annualrent of the Pupils Means; and that having confirmed the Testament, by the Nomination foresaid of her to be Tutrix, she hath accepted the Office of tutory: And the Point at Interloquitor being, whether by confirming of the Testament, she had accepted of the Office of tutory? Some of the Lords viz. _____ Were of the Opinion, That by Confirming of the Testament, she did not accept of the Office: But it was Found by the Lords, That having confirmed without Protestation that she did not accept of the Office, eo ipso she did accept of the same: And though she had emitted such a Protestation, it could not be allowed, seeing she was not only named Executrix, but had a Legacy left her; and she could not accept the Office of Executry and Legacy foresaid, and repudiate the Office of Tutory of her own Child.  
The Lords (in the Case foresaid) Thought, That if the Relict were able to make appear, That having used all possible diligence, she had not recovered Payment of the Defuncts Means; she could not be liable for Annualrent, but from the time that she recovered the same. Castlenil Reporter. Monro Clerk,   

D. 267. Grace contra Cockburn. eod. die.  
THE Lords Found, In the Case betwixt the Laird of Cockburn and Mr, William Grace Minister at Duns, That Cockburn, being liable to pay certain Bolls of Victual betwixt Yule and Candlemass, might have paid the same upon Candlemass day: and that as he might have paid the same he might have made offer thereof: but that in all cases of that nature, Persons who are liable, and do make such Offers, are not thereby liberate as to the greatest Pryces, unless the Party be in mora to receive the Victual; either the time of the offer, or six days thereafter. Castlehil Reporter. Monro Clerk.   

D. 268. Heckford contra Ker. 17 June 1675.  
MR. Hugh Ker having granted Bond to _____ Heckfords', for the Sum of 1000 marks; and being obliged thereby to pay the said Sum with Annualrent at Martimass thereafter; and for the Creditors surety having wadset by the said Bond ten rudes of Land, to be possessed for the annualrent of the said Sum, so long as the samen should remain unpayed: The Representatives of the said Mr. Hugh were pursued for 6 lib. as the inlake, whereof the Rent of the Land did come short of the Annualrent of the said Sum and for public burdens: who did allege, that the said Right being a proper wadset, and the said's Lands being possessed by the Creditor, the Debtor was not liable, neither for Annualrent nor Public Burdens.  
The Lords Found, That the Bond being of the Nature foresaid, and containing a proper Wadset; so that if the Duties of the Lands had exceeded the Annualrent, the superplus would have belonged to the Creditor entirely; and not been imputed in payment of the Principal; the Debtor was not liable either for inlake or public Burdens: And though in the beginning of the Bond, the Debtor was obliged to pay Annualrent, yet the payment of the same was qualified, and to be understood according to the whole Tract of the Bond, viz. That the Duties should be allowed for payment of the Annualrent, and that the Creditor should possess, and have the use and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Land and Rents thereof for his Annualrent; which is clearly a proper Wadset. Newbyth Reporter. Mr. John Hay Clerk.   

D. 269. College of Aberdeen contra The Town of Aberdeen. eod. die.  
DOctor Reid having by his Testament left his Books to the College of Aberdeen, to be kept by a Bibliothecare; and having left for a Patrimony and Salary to the Bibliothecare the Sum of 6000 Marks; and having named Mr. Robert Dounie his own Relation to be Bibliothecare; and in case of his refuseal, having appointed another to be chosen by the College: And the Master of the Grammar School, Mr. Robert Paterson being presented to the said Office by the Colldge, pursued a Declarator to hear and see it Found and Declared, that he has Right to the said Office and Salary.  
It was Alleged for the Town of Aberdeen; That no Title was produced for the Pursuer but the Extract of Doctor Reid's Testament, bearing the said Mortification; which could not be respected, seeing the said Extract is out of the Books of the Commissars of Aberdeen; and his Testament could not be confirmed, but by the Commissars of Edinburgh, he having died out of the Country; and therefore the said Extract could not be considered, but as a Copy, and the principal aught to be produced; And it appears, that there was never any Principal, bearing the Masters of the College to have the Election of the Bibliothecare; seeing the Town of Aberdeen has been in use since the Mortification to present to the said Office; and by a Contract in anno 1632. betwixt the said Mr. Dounie and the Town, he is presented to the said Office by the Town; to which Doctor Dun the Principal of the College was Witness, and the Executors nominate likeways Witnesses.  
The Lords Found, There was no necessity to produce the Principal, the Extract being a sufficient Title: and as to the pretended Nullity, it was not Juris; seeing non constat, that Doctor Reid died out of the Coutry: And if there were any Ground upon the pretence foresaid, it were only of a Reduction.  
It was Found also, That by the said Testament, the Nomination of the Bibliothecare did belong to the College, and the possession of the Town without a Right cannot Found a Defence in petitorio: and the Deed and Contract with Dounie, and the Subscription of the Principal, and of the Executors of Doctor Reid as Witnesses, could not prejudge the College.  
The Lords having considered the Tenor of the Mortification, which gives Power to the College to Name in case of Refusal of Dounie; Found nevertheless, that the said Interest to Name and choose a Bibliothecare was not temporary and prima vice;  Wills of Defuncts were to be interpret benignly, Especially in favours of Colleges; and there can be no reason, why the Defunct should have appointed the said Election to be in manner foresaid for the first time, and not thereafter: And if the College had not the Right foresaid, it should not belong to the Town, but the Defuncts Heir, who doth concur with the pursuit. Newbyth Reporter Robert Hamilton Clerk.   

D. 270. contra 18. June 1675.  
IN an Adjudication, the Appearand Heir being called, and his Advocates having compeared and desired to see the Process; It was Alleged, That he had no Interest, having renounced, and that his compearing was only to retard the Pursuers Diligence, that other Creditors might come in. This point of form being reported, viz. Whether his Procurators should see: And if they, should see, whether in communi forma or not, or in the Clerks hands?  
Some of the Lords were of the Opinion, That being a Person  to be called, and being called, his Procurators should see in communi forma, the Law making no distinction; and though he had Renounced, yet he had Interest to see and object, whether the Pursuers Debt was the true Debt, or satisfied; and if it appeared that it was satisfied, he may, notwithstanding his Renounciation, enter if he thought fit: And the Renounciation may be questioned as false.  
The Lords nevertheless Found, That he should see only in the Clerks hands within 24. Hours; though it was urged, that if the Party were in Town, that course might be taken; but the Party being at the distance of 100 Miles, or any other considerable distance, so that in so short a time the Procurator could not get Information, it were better that in such cases the Processes should be seen in communi forma: For if Parties had prejudice, they would apply again by Bills, which would occasion greater trouble and delay. Redford Reporter.   

D. 271. E. Weems contra Bruce. 22. June 1675.  
A Bond being granted by the Earl of Weems to _____ Bruce and his Wife Gaw, and the longest liver of them two, and to the said Bruce his Heirs: and the said Gaw the Relict having intented a pursuit for payment of the Sum due thereby, It was Alleged, it was prescrived, there being more than 40. Years Elapsed since the granting. It was Answered, That the time of the Husband's Life-time, the Bond did not prescrive against the Pursuer, being clad with a Husband, and so non valens agere.  
The Lords, upon the Report made by my Lord Newbyth, Did ex tempore Find, That it did not prescrive during the Husband's time: Tho some of them were of the opinion, that the case was of importance as to the Consequence; and was to be further thought upon and debated, in respect it cannot be said, but there was a Person valens agere ever since the date of the Bond; the Husband dureing all this time being valens agere; and after his decease, the Wife: and the Husband's silence, being the Fire, and the Person who had Right for the time, being joined with the Relict her silence; and both being joined by the space of 40. years; all the reasons of Prescription concurred in the Case, viz. That Debtors should be secured after so long a time; and that there is praesumptio Juris, the Bonds may be made up, and nothing thereon done till all the witnesses were dead: And that maxim contra non valentem agere, etc. is to be understood in the case, where there is not a person having Right valens agere, by the space of 40 years: or in the Case of temporary and momentary Prescriptions, but not in Prescriptions longissimi temporis: Otherways, Prescription, being the great Salvo and Security of People, might be eluded, and a person acquiring a Right of Lands, possessed by his Author peaceably, for the space of 40. Years without any Interruption, should not be secure; seeing it may be pretended, That the Husband, having been silent forty Years, without any Interruption; his Wife, who pretends Right to the Lands by Liferent or otherways, non valebat agere during the Marriage.   

D. 272. Bruce contra Bruce. 23. June 1675.  
DOctor Arnot having disponed, to one of his Nevoys, an Annualrent out of certain Lands belonging to him; and thereafter having disponed to another of his Nevoys, the elder Brother of the Annualrenter, the foresaid Lands: A poinding of the Ground was intented, at the Instance of the Person who had Right to the Annualrent: And It was Alleged, That the Disposition of the Annualrent was never delivered by the Doctor, but was beside him the time of his decease, and was viis & modis gotten out of his Charter Chest, and given to the Pursuer: To which It was Answered, That the Pursuer had the Paper in his Hands, and it was presumed to be delivered: And 2do. Tho it should be supposed, that the said Right was amongst the Doctor's Papers the time of his decease, yet the Doctor having made the said Right public by an Infeftment, and Season thereupon to the Pursuer, which was Registrat; albeit he might have evacuate the said Right by destroying the Disposition, yet nevertheless having keeped the same by him undestroyed, it ought to be construed in Law, that being Uncle to the Pursuer, and having given the said Right upon the account of the said Relation, he kept the same by him to the Pursuers behoove, unless it could be made appear, that the Doctor did any Deed to recall and evacuat the said Right.  
The Lords repelled the Defence of not delivery, in respect of the Answer. Hatton Reporter. Mr. Thomas Hay Clerk.   

D. 273. Dowglass of Kelhead contra Carlyle and others. eod. die.  
KElhead pursued a Declarator of Nonentry, pretending that he was Superior of the Lands libelled: In which Process, It was Alleged, That he was not Superior of the said Lands, In respect the Right libelled, that he had from my Lord Queensberry, was to be holden of the Disponer: and Queensberry being Superior to the Defenders, could not interpose another betwixt him and them: And upon the proponing of the said Alledgance, the Pursuer was forced to reply, upon a Right to the Casualties granted by a Paper apart by my Lord Queensberry to the Pursuer, and thereupon Process was sustained: and decreet given for the retoured duty before the intention of the Declarator; and the full Avail and Rent of the Land after the intention of the Cause. Of which, Suspension being raised upon these Reasons. 1mo. That, after Decreet of Declarator was recovered, the Superior and his Donator has Right to the Lands during the Nonentry; and may remove Tenants, or uplift the Duties from them; but before Declarator, there could not be a Sentence for Poinding the Ground, for the full avail. 2do. Tho the Ground could be poinded for the full Avail, yet the Pursuer has not Right but to the Feu-duties, even after the intention of the Cause, before the Pursuer did Found upon and produce the Assignation foresaid, as his Right to the Casualties; seeing there being a question whether my Lord Queensberry or the Pursuer had Right to the Superiority, and the Libel being only founded upon the Pursuers Right as Superior, the Defender was in bona fide, and could not enter nor be liable for the full avail, until the Question was cleared by production of the said Assignation: and therefore could not be liable until the same was produced.  
The Lords, As to the first Reason, Found, That after the intention of the Declarator of Nonentry, at the Instance of the Party having Right, the Defenders are liable in the full avail; and that the real conclusion of poinding the Ground for the same may be sustained; seeing the Ground may be poinded for a Rend liquidate, as it was in this Case: and when Lands are not retoured, the Pursuer, even before Declarator, may crave Right to the Rents. As to the Second, The Lords were all clear, that the Defender was not liable for the full avail, but after production of the Title, whereupon the Pursuit is sustained: But it being moved, that the Defenders having proponed the said Alledgance before the same was repelled, and decreet given out for the full avail, after intention of the Cause; some of the Lords were of the Opinion, that there was now no Remedy: Others thought, That there being a clear iniquity and prejudice to the Party, and the Lords being convinced of the same, they ought to do justice to the party: And the question being brought before them upon Suspension ex incontinenti; and not ex intervallo, the Sentence non transivit in rem judicatam: Whereupon some heat having arisen among the Lords, while some did plead the Credit of the House, and the Security of the People, that the Decreets of the Lords in foro should be an ultimate and unquestionable Decision; and others Thought and did represent, that the Honour of the House, and Interest and Security of the People consists in this, that Justice should be done, and no evident Iniquity should be, without Remedy; Especially where a Decreet has not taken effect, and become res judicata, but is drawn in question immediately by a Suspension. The Lords did demur, and decided not that Point. Castlehil Reporter. Gibson Clerk.   

D. 274. Hamilton of Munkland contra _____ Maxuel. eod. die.  
UPon the Report of Redford, betwixt Hamilton of Munkland, and _____ Maxuel, The Lords Found, That a Debt, due by a Person, who had disponed his Land upon the account that a Manse was built, and that he was resting his Proportion of the Charges, is not debitum Fundi. Hamilton Clerk.   

D. 275. The College of Aberdeen contra the Town of Aberdeen. 24. June 1675.  
IN the Case abovementioned, of the College against the Town of Aberdeen; The Lords, having heard again a Debate in praesentia, Did adhere to what they had Found formerly: and did Declare Jus eligendi of a Bibliothecare to pertain to the College. Vide 17. June 1675. inter eosdem.   

D. 276. Earl of Lauderdale contra Lady and Lord Yester. 25. June 1675.  
THE Duke of Lauderdale having settled upon the Lady Yester his Daughter, his Estate: and thereafter by Contract of Marriage betwixt the said Lady and my Lord Yester, containing a Procuratory of Resignation, whereupon Infeftment followed; the said Estate is disponed and resigned by her, with consent of her Father, and him for his Interest, in favours of the said Lady, and the Heirs of her Body of that Marriage; and these failyiening, of any other Marriage: With Provisions contained in the said Procuratory; And in special, that the said Lands should be redeemable by the Earl, upon a Rose-noble; and that upon an Order used, the said Right in Favours of the Lady and her foresaids should be void: and two other Provisions in Case of Redemption, viz. 1mo. That in Case the Duke of Lauderdale should think fit to redeem, that the Duke and his Heirs should be liable, and obliged to pay, (likeas they bind themselves by the said Provision, to pay) to the Lady and her foresaids, besides the Tocher, 7000. lib. sterl. at the first Term after the Duke's decease. And 2do. That whereas by the said Contract, the Lady, if the Estate had not been redeemed, was obliged to pay all her Father's Debts and Legacies, she should be free of the same, in case of Redemption: Which Provisions are contained in the Infeftments.  
The Duke, having used an Order, and having intented thereupon a Declarator of Redemption; concluding that the Lands should be declared lawfully redeemed, and that his Daughter should be discerned to denude herself; and to grant a Procuratory for Resigning; since she was infeft by public Infeftment.  
It was Alleged, That as to that Conclusion, that she should renounce; there was no Warrant for the same; seeing there was not a Reversion in these Terms, that she should grant the Lands orderly redeemed and renounce; in which Terms, Reversions, which are pacta de retrovendendo, are ordinarily conceived; but that the Reversion, whereupon the Order is used, is only a Provision contained in the said Contract of the Tenor foresaid; with a resolutive clause, in case of Redemption, which imports no Obligement upon the Lady, nor pactum de retrovendendo, but only Jus Retractus, and a Faculty and Power to the Father to Redeem; and in case of Redemption, the expiring and Nullity of the Right.  
2. It was Alleged, That though the Lady were to Renounce; her Renounciation ought to be qualified and burdened with the provisions contained in her Right; and in special, with the foresaid provision as to the securing to her 7000. lib. Sterl. and the other Provision foresaid for securing her relief of the Debts.  
It was Replied, That as to the said first Alledgance; that inest in all Contracts bearing Reversions; whether in the formal Terms of a Reversion; or Provisions upon the matter importing a Reversion: and ex stylo all Decreets of Redemption do contain the said Decerniture to Renounce: And the Duke being denuded in favours of his Daughter by public Infeftment, the habilis modus to return again to his Right upon Redemption, is upon the Resignation.  
As to the 2d. It was Answered, That the said Provisions are not in the Reversion; and amount only to a personal obligement upon the Duke and his Heirs; but not to be a real burden and incumberance upon the Right.  
As to Debts, It was Answered, That there needs no other security for the Lady her relief of the same; seeing she was to be liable thereto in contemplation of the Right, if it should stand effectual in her Person: And it's provided, in case of Redemption, she should be free thereof.  
It was duplied as to the said provisions; That the same, being in the body of the Procuratory and Infeftment, are real; and they are insert unico contextu with the provision, that the Lands shall be redeemable; and do qualify the same: And that notwithstanding that it be provided, That in case of Redemption she should not be liable to the Debts, yet she may be in hazard to be overtaken as Successor Titulo Lucrativo; In respect, by the said Right it is provided, that in case of Redemption the said 7000 lib. should be given to her and her foresaids, which being a provision introduced in her favours, and in effect in lieu of the Estate, and being so great, may fix upon her a Passive Title; as having gotten by her Father beside her Tocher so great a Sum; which is not payable to her Husband, but to her and her foresaids; and therefore could not Renounce, but with the burden of the said provision for her Relief.  
The Lords Found, That she ought to Renounce: Reserving to her the foresaid provision, as Accords. Castlehill Reporter. Gibson Clerk.   

D. 277. Tutor to the Laird of Aitons' Daughter. eod. die.  
THE Tutor to the Daughter of the deceased Laird of Ayton, having craved by a Bill, that he might be warranted by an Order of the Lords, to set the Pupils Lands for less Duties than were paid formerly; seeing the former Duty could not be gotten.  
The Lords, Tho they had granted the like desire in favours of other persons upon Bills, thought, upon better consideration, that it was fit to refuse the said Bill; seeing upon such pretences Minors may be wronged by their Tutor's Authority; and the Lords have only a Jurisdictio contentiosa in relation to Processes or questions depending betwixt Parties; but not a voluntar Jurisdiction, or power in relation to Administration of private Estates: And if the Tutor's Deed in setting pupils Lands were warrantable, the Law would secure him: And therefore left him to do as he will be answerable. Redford Reporter.   

D. 278. _____ contra _____ eod. die.  
UPon a Report made to the Lords, concerning a Decreet of the Commissars which was questioned upon Iniquity, because it being urged, that Caution should be Found in an Improbation, the Commissar did not Order the Party to find Caution.  
It was Debated amongst the Lords, Whether Caution should be Found or Money should be consigned, alsewell in Actions as upon Exceptions in Improbations? And some were of the Opinion, that Caution or Consignation should be in all questions of Improbation; Whether by way of Exception or Action, conform to the Act of Parliament, Q. Mary. 7. Parl. Cap. 62. And some of the Lords were of the Opinion, that the Law being clear to that purpose, Consignation should be wherever such Questions fall out either by way of Action or Exception: But the contrary was asserted by others, and they pretended Custom; but nothing was instanced to verify the custom; and though it were, it ought not to derogate to so clear a Law upon so good Grounds.  
The Lords did not decide this point at this time.   

D. 279. _____ contra _____ eod. die.  
UPon a Report made to the Lords concerning an Advocation; upon that reason, that there was a Competition in the case upon double Rights: It was debated among the Lords, Whether the cause being undoubtedly competent before the Inferior Judge, the pretence; that there was a competition of double Rights should be a Relevant Ground of Advocation: And some of the Lords were of Opinion, that in the general to Advocate upon that Reason, it were hard; seeing Inferior Judges their Jurisdiction as to Causes competent before them, is founded upon their Rights; so that they have also good Right to the same as to any other property: And in Remove, and Actions for mails and Duties, and others such real Actions, when a Defence is founded upon a Right, or when Parties compear for their Interest, and produce Rights, it may always be pretended, that the question is anent double Rights; so that the Jurisdiction of Inferior Judges may be altogether evacuated: And the Lords, who have scarce time to decide Causes that are proper before them, should be cumbered with Processes that may and aught to be determined by an Inferior Judge; contrar to the Acts of Parliament, and in special the 39 Act of Q. Marry her 6th. Parl. And the 8th. Act of His Majesty's 1st. Parl. 3. Sess. Discharging the Advocation of Causes, whereunto Inferior Judges are expressly appointed Judges: But if it should be represented and appear, that there is intricacy in such Causes, wherein there may be question of double Rights, the Lords in that case may Advocate: But upon the pretence of double Rights, as to which it may be there is no difficulty, there ought to be no Advocation. Yet it was urged by _____ that the Lords were in use to pass Advocations upon the reason foresaid; And albeit the pretence of custom not being verified, and tho verified being against Law, ought not to be put in the balance with express Laws founded upon good Reason and Common Law, yet the Bill was passed. Redford Reporter.   

D. 280. Gilchrist contra Murray. 26. June. 1675.  
IN a Process for payment of a Sum due by the Defender, the Lybel being referred to his Oath, and he having declared with a quality, viz. That as he was Debtor so he had made payment, partly in Money, and partly in Commodities and Ware.  
The Lords, Upon Advising of the Oath, Found, That the same not being special as to the quality of Payment, viz. How much was paid in Money, and how much in Goods, nor being special, as to the quantity of the several Goods; did not admit the same: but if it were made special, as to Money paid by him, it would be sustained pro tanto: And as to the delivery of Goods in satisfaction of the Debt; It resolved in an Exception, and aught to be proven. Hamilton Clerk.   

D. 281. Livingston contra Garner. eod. die.  
A Bond being granted for payment of a Sum, and thereupon the Granter having suspended in his own time; and a Decreet of Suspension being recovered in his favours: after his death, his Son being of the same Name, was Charged, Denounced, and taken with Caption for the same Debt.  
The Lords upon a Bill, Did Find, That the Son ought to be free of the said Debt: and in regard of the Chargers trincating and fraudful Practice, they modified 40. lib. to be paid by him, the one half to the Party, the other half to the Poors Box. Gibson Clerk.   

D. 282. Langlands Supplicant. eod. die.  
A Bankrupt having obtained a Bonorum, by a Bill desired the Lords to dispense with his wearing the Habit, in respect of an Attestation of two Persons, that he had become irresponsal, upon the account of cautionary, and other Occasions mentioned therein; which the Lords did: Albeit some of their Number were of another Opinion, and did urge, that by the Act of Parliament, such Persons being infamous, and the Lords by an Act of Sederunt, having Ordained that they should wear the Habit, as is the Custom in all other Nations, that they may be known to be such Persons; the Lords neither could nor ought to dispense with express Laws and Statutes; and that no respect ought to be had to the Attestation, being emitted by private Persons having no Authority, and not cited nor sworn to that purpose: and the pretence contained in the Attestation was most irrelevant. Gibson Clerk.   

D. 283. Birnie contra Montgomerie. 29. June 1675.  
A Pursuit for making up the Tenor of a Comprising was sustained, in respect the Adminicles were most pregnant: and in special the Executiones were yet extant and entire. Monro Clerk. _____ It is thought, that much Cautione and tenderness should be used in Processes of the Nature forsaid, for proving the Tenor of Compriseings; seeing Compriseings are to be considered, either as Decreets or as Executions; and in effect, they are both upon the matter; In respect the Messenger Decerns and Adjudges, and Dispones the Lands and others comprised; and therefore the same aught to be subscribed, both by the Messenger, who in subsidium doth that which the Party ought to do, and doth dispone his Estate in satisfaction of his Debt; and by the Clerk of the Compriseing as a Decreet: and the Tenor of Decreets cannot be proven but by Extracts; And a Comprysing being (as said is) Processus executivus, and ultimate execution; it ought not to be proven but per relationem Nuncij, and execution under the Messengers hands. And it were hard that executiones should be made up by witnesses, and probation of the Tenor;  there may be a nullity in the same if they were extant: And though witnesses may remember they had seen executions, they can hardly remember upon the precise tenor of all the words of the same: And if the tenor of the executions might be made up, there should be no security;  Prescription, which is the greatest Security of the People, may be evacuated, upon pretence that there was an interruption by the execution of a Summons; but that the same being lost is made up by proving the Tenor: and by an Act of Parliament K. Jam. 6. Par. 6. cap. 94. It's Ordained, That the Tenor of Letters of Horning, and Executions thereof, is not probable by Witnesses: And there is parity, if not more Reason as to Comprisings; whereby the greatest Estates may be taken away, by a Decreet for proving the Tenor.   

D. 284. Hall contra Murray. 30. June 1675.  
ARrestment being upon a Decreet; and the said Decreet being thereafter turned in a Lybel; The Lords Found, That the Decreet ceased to be a Sentence; and the Arrestment thereupon, is now of the nature of an Arrestment upon a Dependence, and may be loosed. Gibson Clerk.   

D. 285. Dunmure contra Lutfoot. eod. die.  
THE Lords in an Improbation Found, (as they had done formerly in divers Cases) That an Extract out of the Books of an Inferior Court does not satisfy the Production: the question being of a Writ registrate in the Books of the Canongate. Newbyth Reporter.   

D. 286. Stewart contra Riddoch. eod. die.  
JAmes Stewart of Aberlednoch, having obtained a Decreet Cognitions Causae, against John Riddoch, for implement of a Disposition, granted by David Riddoch his Grandfather: and thereupon having also obtained a Decreet of Adjudication, the same was stopped upon a Bill given in by _____ Campbel of Tarririck; pretending that he had a Right to a Contract of Marriage betwixt Alexander Riddoch and his wife, as assigney constitute by the said Mr. Alexander, in whose favours the Granter of the Disposition to Stewart was obliged by the said Contract to dispone to him the same Lands; And the Assignation granted by the said Alexander Riddoch, to the said Campbel being questioned as false.  
The Lords thought fit to hear both Parties on their several Adjudications; reserving Improbation of the said Assignation: and with this Declaration, that if the said Assignation should be improven, the Decreet and Adjudication upon the same should fall.  
Because there was a Competition in Diligence, The Lords did wave the Debates in the Improbation; being most as to that Point, who should abide by the said Assignation as true; seeing the Assigney Campbel declared, that his Name was filled up in the same without his Knowledge: and was not concerned to abide by the same: and Mr. John Drummond of Megginsh compearing, as having a complete Warrant, and Commission from the said Mr. Alexander Riddoch, who was in Barbadoes, to prosecute the said Action, which had been intented in Campbel's Name, offered to abide by the said Assignation only as a Factor.  
Some of the Lords thought, that a Writ being questioned as false, there should be some person to abide by the same upon their hazard simply; and not with such qualities; seeing the consequence and hazard of persons, that abide by Writes questioned upon falsehood, if the same should be improven, is the great bulwark and security of the people against falsehood, which doth increase daily. But this point was not decided.   

D. 287. Clerk contra Stevart. eod. die.  
A Husband, by his Contract of Marriage, having got the Right of the Fie of a Tenement of Land settled upon him; his Wife having resigned the same for Infeftment to him and her, and the Heirs of the Marriage; whilks failyiening his Heirs. He and his Wife did thereafter enter in a Contract with another Sister of his Wives, who had Right to the equal half of the said Tenement, as Heir portioner with her Sister; by which Contract there was a mutual Tailzie with consent of the Husband; and the Right of Fie, that by the former Contract was settled upon her Husband, as said is, was disponed to the Wife; in sua far as both the Sisters, with consent of their Husbands, were obliged to resign their Respective parts, in favours of their Husbands and themselves in Liferent; and the Heirs of the Marriage in Fie; whilks Failyieing in favours of the Wife's Heirs: Which Contract was questioned by a Reduction at the instance of a Creditor of the Husbands; upon that reason, that the said Right of Fie granted by the said Contract betwixt the Husband and the Wife, and her Sister, was in defraud of the Husband's Creditors, and null by the Act of Parliament 1621. In sua far as the Husband had a Fie of the said Tenement, by the Contract of Marriage betwixt him and his Wife; which might have been affected with Execution at the instance of his Creditors; and the said Fie was given, by the said late Contract, to the Wife, so that the Husband had only a Liferent.  
In this Process, It was Alleged. 1. That the Act of Parliament did militate only in the case of Dyvors, and Dispositions granted by them. And 2. That the said Act of Parliament doth only rescind Alienations that are made without true just and necessary Causes; and that the said Contract betwixt the Husband and his Wife, and her Sister was made for a true and just Cause; and the Fie of the said Tenement, which the Debtor had, was given away in respect of the Obligements of the said Contract in favours of the Husband the Pursuers Debtor; which was as equal as to advantages for the Pursuers Debtor, as they were for the other party; seeing both the Sisters their parts of the Tenement were provided in the same manner to the Respective Wives and their Husbands, and the Heirs of the Marriage; whilks failyiening the Wife's Heirs; and that the Pursuers Debtor was a person opulent for the time, according to his quality; and had sufficiency of Estate and Movables otherways, that might have satisfied the Pursuers Debt the time of the said last Contract, and thereafter: So that the said Contract being valide ab initio, it could not be taken away upon pretence, that thereafter the Husband became insolvent; seeing it cannot be said, that the Husband did intent to defraud his Creditor, or that there were any fraud upon his part.  
It was Replied, That though the case of Bankrupts and their fraudful practices mentioned in the said Act, being so frequent, did give occasion and Rise to the same; yet it appears evidently by the said Act, that it was intended, that Debtors should not be in a capacity to give away any part of their Estate, in prejudice of their Creditors, to any person; In sua far as the dispositive words of the Act are in these terms, that in all Causes at the instance of a true Creditor, the Lords will decern all Alienations and Rights made by the Debtor, to any conjunct person, without true just and necessary Causes, and without a just price really paid; the same being done after Contracting of lawful Debts from true Creditors; to be null without further Declarator: And the said Act does not bear, that all Rights made by Bankrupts should be Null, it being hard to give a Character and definition of a Bankrupt; So that divers questions may arise anent the notion of Bankrupt; and what Debtors should be esteemed Bankrupt; and therefore for cutting off the same, the Act is conceived in the Terms foresaid; and annuls Dispositions made by Debtors without an Onerous Cause: And the Lords, by the Statute ratified by the said Act, do declare, that they intent to follow and practise the Laws Civil and Canon made against fraudful Alienations in prejudice of Creditors: And by the Civil Law, all Rights and Deeds made and done in prejudice of Creditors without an Onerous Cause, are null, and may be rescinded actione Pauliana: And the Law doth presume, praesumptione Juris, that they are fraudulent, being prejudicial to Creditors ex eventu & re: who are not obliged to say, that they are fraudful consilio; which is in animo and hardly can be proven.  
As that point, viz. That the said Contract was upon valuable considerations; It is Replied, That the taking of the Fie from the Husband, and giving the same to the Wife; it's a Donation as to the Wife in prejudice of the Creditor; So that there is no Onerous Cause as to the Husband.  
The Lords, Upon Debate at the Bar and amongst themselves, did Find, that Debtors might dispose of a part of their Estate by way of Gift, and without an Onerous Cause; if they retain also much and more than would satisfy their Creditors: And therefore they Found the Defence Relevant, that the Debtor had also much Estate besides the Fie of the said Tenement, as would satisfy the Pursuers Debt. Actor Falconer alteri Stevart. Monro Clerk. Praesentia.  
Some of the Lords were of the Opinion, That the case, being of so great consequence as to the preparative; it was fit to be thought upon: and urged these Reasons. 1. That the Words and Letter of the Law appear to be clear, against Deeds done by Debtors without an Onerous Cause. 2. Tho our Law were not clear, yet in cases of that nature, when we have not a Municipal Law, nor custom to the contrary, we ought to follow, though not the Authority, yet the Equity of the Civil Law, which is received every where, where there is no custom to the contrary: Specially, seeing it is declared by the said Statute mentioned in the Act of Parliament 1621., That the Lords are to follow the Civil and Canon Law made against Deeds and Alienations in prejudice of Creditors. 3. It is hard, to put Creditors to dispute the condition of their Debtors, the time of making Donations; and whether they had effects and sufficiency of Estate to satisfy their Debt, notwithstanding the said Deeds; which may be unknown to the Creditors: It being sufficient to say, that the Deed was without an Onerous Cause; and that the Debtor became insovent. 4. If a Debtor should become insolvent ex post facto, though the time of the Donation, the residue of his Estate might have satisfied the Debt, It is more just and reasonable that a Donator, who has a Lucrative Title, should rather suffer ex eventu than a Creditor. _____ did argue to the contrair.   

D. 288. Bonars Relict contra His Representatives. 2. July. 1675.  
A Bill of Advocation being Reported of a pursuit at the instance of John Bonars Relict, against his Representatives, before the Town of Edinburgh, for payment of 10000 Marks, conform to a Bond granted by him: The Lords did Advocate, not so much in respect of the importance of the Cause, the Town being competent Judges; but because there was an Improbation depending before the Lords, upon the same pursuit of the said Bond: And contingentia causa non debet dividi; and doth Found the Lord's Jurisdiction to Advocate to themselves all Questions concerning the said Debt.   

D. 289. Earl of Dundonald contra Glenagies, and the Earl of Marr. eod. die.  
A Tack of the Teinds of Kilmaranoch being set by the Abbot of Cambuskenneth, to Sir James Erskine for his Life-time; and for the Life-time of his Heir Male; and after the decease of the Heir Male, for the Life-time of his Heir Male; and two 19 Years thereafter: The Earl of Dundonald, having Right by progress to the said Tack, pursued a Spuilyies of the Teinds.  
It was Alleged, That the Tack is expired: And if the Earl of Dundonald will condescend and prove that the said Sir James had an Heir Male surviving; the Defenders will offer to prove that two 19 years had expired since the decease of the last Heir Male.  
The Lords Found, That the Pursuer should condescend upon an Heir Male, and prove that he survived the said Sir James: And if he should condescend and prove, that the Defender ought to prove (as said is) that the Tack was expired: And did Assign to the Pursuer and Defender to prove Respective.   

D. 290. Mr. Henry Morison. 3. July. 1675.  
UPon a Bill against Mr. Henry Morison; It was desired, that in respect he was an Advocate and Member of the House, he should summarily deliver certain Goods entrusted to him by the Complainer: And It was Alleged for him, That the Complainer ought to intent an Action in communi forma; And the Interest, that he had in the House as an Advocate should give him Right to any privilege that belonged to an Advocate, but ought not to put him in a worse case than other Subjects, who could not be forced to defend upon such Bills: And the practice, that the Advocates should Answer summarily to Complaints against them, is only in relation to their Trust and Office, if they refuse to exhibit or deliver Writes entrusted to them: And the Trust mentioned in the Bill was only to him as quilibet, not as an Advocate.   

D. 291. _____ contra _____ eod die.  
A Discharge, alleged granted by a Minister to one of the Heretors of the Paroch of a part of his Stipend, was quarrelled as false; and did appear to be vitiate; in a process at the instance of the Minister for his Stipend: And the user of the same being urged to abide by it, did offer to abide by it with a quality, viz. That the payment not being made by the Heretor himself, (but by his Tennent who took the said Discharge in the Heretors' Name) he did abide by the same a Writ truly delivered by the Tennent.  
The Lords did not sustain the said quality; Unless the Heretor would produce the Tennent, and abide by the same as being truly subscribed and not vitiate; which the Tennent did.   

D. 292. Key contra Her Creditors. eod. die.  
THE Pursuer of a Bonorum, having given her Oath, that there was no fraudulent Deed done since the Disposition, whereby the Pursuer cesserat and Disponed omnia bona.  
It was urged, That the Pursuer should declare also, that no fraudulent Deed had been done by her to defraud the Creditors, whether before or after the Disposition; which was refused by the Lords; in respect that the ordinary Oath given by such Pursuers did run in the Terms foresaid, that they had made no fraudulent Right since the subscribing of the Disposition: Some of the Lords were of Opinion, that the Pursuer should have declared, that she had done no fraudulent Deed at any time; seeing cessio bonorum is an extraordinary remedy, indulged to persons who are become lapsi upon some extraordinary occasion, wlthout their own fault or fraud, and upon that account deserved favour; which was not to be given to fraudatores who at any time had taken indirect ways to prejudge their Creditors: And if the Pursuer, the very day before she subscribed the Session and Disposition, had made an anterior Right to prejudge her Creditors, it were most inconvenient and absurd, that her Oath should only be received in these Terms, that she had made no Disposition or fraudulent Deed since the granting of the Disposition in favours of the Creditors: And as to the pretence of custom and the conception of the Oath; it ought not to be respected; seeing it cannot be said, that the Oath of Bankrupts, in the Terms that it is now urged, was desired and refused; and if there had been any defect in the conception of the Oath it ought to be helped.   

D. 293. Bairdner contra Coalyer. eod. die.  
IN a Process for abstracted Multures: The time of the advising of the Cause, these points were debated amongst the Lords, viz. Whether or not, the Right of a Miln, being Feved by the Abbot, in these Terms cum astrictis multuris, did import astriction of all the Grains growing; so that these that were astricted should be Liable to bring all the Corns that grew upon the Lands to the Miln; and in case any such be sold the Heretors and their Tenants should be Liable for astricted Multures: And 2. There being Decreets recovered at the instance of the Fevar of the Miln, against the Fevars of the Lands, for abstracted Multures of grana crescentia, if the same should import Astriction as to all such Grains, though neither the Right of the Fevar of the Miln, nor of the Heretors of the Lands be express of grana crescentia; but only of the Terms foresaid cum astrictis multuris.  
Some were of the Opinion, as to the first point, That a Feu of a Miln in the Terms foresaid cum astrictis multuris, should import nothing else but that they that were within the sucken and astriction should be liable, only to grind at the Miln all such Corns that they should have need and occasion to grind;  Thirlages are a most odious servitude and aught to be taken strictly: And Multures being Moliturae and due for grinding, they ought to be understood only in the case of Corns which the Fevers do bring to the Miln to grind; or which they have need and use to grind; and yet abstract and go to other Milns: Otherways there should be no difference betwixt the Astriction of grana crescentia, and an ordinary astriction. 2. The case in question was of a Miln Feved by the Abbot of Culross, and of Lands likeways Feved by himself after the Feu of the Miln, and the time of the Feu of the Miln Lands being the Abbots own, either in mainsing, or set to Tenants; It cannot be thought, that the Astriction was in other terms than such as Tenants are in use to be astricted to their Masters Miln; and beside the Teind and Seed, and the Duty payable to the Master; which being payable to the Abbot the time of the Feu of the Miln was free of astriction; the Tennent having the residue of the Rent for entertaining of his Family, and for defraying the Charges of the Labouring, and Servants Fies; and other  Expenses which could not be defrayed otherways, but by selling some of the Corns growing: It cannot be conceived that the Abbot or any other Master would astrict his Tenants in these Terms, that they should be liable for dry Multures, except it were expressed, and that the Astriction had been granorum crescentium. Yet the Lords did demur as to this point, In respect it was vehemently urged by _____ that the Astrictions in the Terms foresaid ought to be understood of grana crescentia; otherways it should be in the power of these who are astricted, to sell all their Corns, and to buy Meal for their Family, and so to elude the Thirlage: Albeit It was Answered, That it was not to be presumed that Fevers or Tenants would do so; and if they did, they ought to be liable for abstracted Multures effeirand to such quantities as were necessary, and they were in use to grind for their Families.  
Another point was Agitated and debate amongst the Lords, viz. That the said Decreets could not be obtruded to the Defender; seeing neither he nor his Author was called to the same, and res was inter alios acta: But the Lords did not decide these points, but recommended to some of their number to endeavour to settle the Parties.   

D. 294. Oliphant contra _____ 7. July 1675.  
_____ Oliphant desired an Advocation from the Town _____ Court, upon these Reasons, viz. 1. That the Lybel was to be proven by the Defenders Oath which he was to qualify. And 2. That the Defender was to prove a Defence by the Pursuers Sons Oath, who was out of the Country; and the Town could not give a Commission for taking his Oath: Both which Reasons were thought not to be Relevant and the Advocation refused; In respect all Judges ought to receive Oaths with intrinsic qualities, and Commissions may be direct by any competent Judge.   

D. 295. Lord Halcartoun contra Robison. July 1675.  
THE deceased Lord Halcartoun being obliged, by Contract betwixt him and his deceased Father, to Infeft Mistress Margaret Falconer his Sister, in an Annualrent of the principal Sum of 1000 Marks out of the Lands of Halcartoun redeemable upon 1000 Marks: And to pay the principal Sum upon Requisition. Sir Patrick Falconer immediate Younger Brother and Heir of Line to the said Mrs. Margaret, Assigned the said Sum and Contract in favours of Robert Robertson; And the said Robert having intended Action against the now Lord Halcartoun as representing his Father, It was Alleged, That the said Sum being conquest in the person of the said Mistress Margaret, it did not belong to the Heir of Line, but to the immediate Elder Brother as Heir of Conquest.  
The Lords, having heard the Cause in praesentia; and being resolved to decide the question, betwixt the Heir of Line and Heir of Conquest, as to Heretable Bonds, bearing such Obligements to Infeft; which had been often before in agitation, but never decided but the time of the English; Did Find, that the said Bond and Sum did belong to the Heir of Conquest, who would have succeeded, in case the Right had been perfected by an Infeftment.  
Some of the Lords were of the Opinion, That Bonds of that Nature should belong to the Heirs of Line, for these Reasons. 1. That the Heir of Line is General Heir and Successor in universum Jus, tam active quam passive, and is liable to the Onus Tutelae, and other Burdens; and penes quem onus, penes eundem emolumentum; unless the benefit of Succession be provided otherways, either Provisione hominis, in the Case of Tailʒies; or Legis, and there is no Law settling upon the Heir of Conquest, the Right of Succession as to Heretable Bonds, whereupon no Infeftment has followed: And the Law of the Majesty, _____ is only in the Case of Terrae & Tenementa & Feuda, as appears by the very Words of the said Ancient Laws; and by Craig and Skeen de Verborum significatione, in verbo Conquestus, and verbo Breve de morte antecessoris. 2. As Bonds cannot be called heritage, so they cannot be esteemed to be Conquest; heritage being properly Lands, wherein a Person succeeds as Heir to his Predecessor: and if the Heir of Conquest, who is now found to have Right to such Bonds, should decease, though the samen would descend and belong to the Heir of Line, yet such Bonds cannot be called heritage: And Minors qui non tenentur placitare de haereditate paterna, could not plead the same Privilege in the case of Heretable Bonds.  
3. Lands and Feuda can only be said to be heritage, or to be Conquest, when Parties have a real Right to the same by Infeftment; but as to Bonds, they do not settle Jus in re, but at the most, a Jus ad rem.  
4. Comprisings, Dispositions, and Reversions, being more of the nature of Conquest, especially Reversions, which are real Rights, and do militate, not only against the Granters, but singular Successors, do descend and pertain to the Heir of Line, and not to the Heir of Conquest.   

D. 296. Veatch contra Pallat. 10. November 1675.  
THE Lords, in the Case beforementioned (February 9 and 12. 1675) Veatch against , having resumed the Debate; and it appearing upon Trial, that the Common Debtor Sanderson, the time of the granting of the Assignation in anno 1662. in favours of Ker and Brown, was not only Rebel but was in effect Fallitus and Lapsus: They preferred Veatch to Pallat.   

D. 297. Gibson contra Rynold and Taylor. 16. November 1675.  
A Disposition being made by a Woman clothed with a Husband, of her Liferent of a Tenement, redeemable upon the payment of a certain Sum within a short Term therein mentioned allanerlie: A Decreet of Declarator of the expireing of the Reversion was obtained; and thereafter a Decreet of Removing at the instance of the Person Infeft upon the said Disposition, against the said Woman and her Husband: Whereof a Reduction and Suspension being raised, upon that reason that the suspender was clothed with a Husband the time of the expiring of the said Reversion, and of the said Decreets; so that non valebat agere nor use the Order of Redemption: and the Husband's Negligence in suffering the Reversion to elapse, and the said Decreets to be obtained, ought not to prejudge her; seeing she was content yet to purge by payment of the Sum contained in the Reversion.  
The Lords, upon Debate amongst themselves, had these Points in consideration, viz. 1mo. Whether or not a Redemption, being limited and temporary (as said is) in the Case foresaid; there may be yet place, after the elapsing of the Term, to purge: And some of the Lords were of the Opinion, that Reversions being stricti Juris, there can be no Redemption, neither in the case of Legal nor Conventional Reversions, after elapsing of the Term; nor place to purge: But this Point was not decided. 2. It was agitat, whether a Woman clad with a Husband, may be heard to purge, upon pretence that non valebat agere: as to which Point, some of the Lords did demur, and it was not decided: The Letters being found orderly proceeded upon an other Ground, viz. In respect of the Decreet in foro contradictorio: But it is thought, that such Reversions should expire even against Women clothed with Husbands, seeing it cannot be said that they are in the case of Minors and non valentes agere, because they are clothed with a Husband; And by the contrary, having the assistance and advice of their Husbands, they are more able to go about their Affairs: And if their Husbands refuse to concur, they may apply to the Lords, and desire to be authorized by them. Strathurd Reporter. Monro Clerk.   

D. 298. Halyburton of Innerleith. 17. November. 1675.  
THE Lords, upon a Bill presented by _____ Halyburton late of Innerleith Prisoner in Edinburgh for Debt, did permit, that until January next, he should in the Daytime go out with a Keeper; the magistrates being liable if he should escape: This was done upon pretence, that he intended to settle with his Creditors, which he could not do unless he were allowed the Liberty foresaid: But some of the Lords were of the Opinion, that the Imprisonment of a Debtor, being the ultimate length of Execution; and not only custodiae causa, but in effect that taedio and foetore carceris, Debtors may be driven to take a course with their Creditors; That therefore the Lords had not power to give any Indulgence or Permission, contrare to Law, and in prejudice of Creditors, without their consent.   

D. 299. Mr. Vanse. 18. November 1675.  
CAptain Martin being pursued before the Admiral, for wrongs done by him in taking free Ships and Goods, upon pretence that he was a Caper; and that the same belonged to the King's Enemies: and having desired an Advocation, the Lords thought fit that he should find Caution: and because he refused, and pretended he was not able, did commit him: and thereafter he having escaped out of the Tolbooth of Edinburgh in a disguise, and in women's ; Mr. Vanse, Keeper of the Tolbooth, did give in a Bill, representing, That there being so great a number of Prisoners, upon account of Conventicles, and for Criminal Causes, and the said Captain being incarcerate, not for a Crime, but for not finding Caution, he was in bona fide not to look upon him as a Person that would escape: and there being so many Persons who had access to other Prisoners to furnish them Meat, and upon other Occasions, the said Captain his Escape, in manner foresaid, was such, as the most faithful and diligent Keepers might have been surprised and imposed upon: and therefore did desire that his Carriage might be tried by the Lords; and if they should find him innocent, that he may be cleared.  
It was thought by some of us, That the Desire foresaid, resolving either in an Absolvitor, or a Declarator of his Innocency; The Lords could not give a Sentence as to either in Form; unless either there were a Pursuit against Mr. Vanse, at the Instance of the Persons concerned; or a Declarator at his instance, against them being called: and any Sentence that the Lords should give, the Parties concerned not being called, will be no security to the Petitioner: And whereas it was pretended, that this being an Incident, and a Dependence before the Lords, they may proceed upon it, as accessary to the said Dependence.  
It was Thought, That the suffering the Prisoner to escape, though it had a dependence upon the Process, yet could not be called an Incident, but a delictum, whereupon did arise a ground of Action against the Petitioner, both at the instance of the Town of Edinburgh, who were directly liable to Creditors for the escape of Prisoners; and at the instance of the Parties concerned: and therefore their Interest and Action could not be prejudged in so summar a way upon a Petition; they not being called: Whereas such Actions, being both of importance as to the matter, and of difficulty and intricacy, do require not only citation of Parties, but all the ordinary Solemnities of Process, both for introduceing and discussing the same. Vide infra Novemb. 23.   

D. 300. Warden contra Berry. 20. November 1675.  
THE Lords Found, That an Arrestment upon a Decreet, after it was suspended, may be loosed upon Caution. Done upon a Bill. Hamilton Clerk.   

D. 301. Vanse contra sandiland's. 23. November 1675.  
IN the Case abovementioned, concerning the Escape of Captain Martin, and the Bill given in by Patrick Vanss; which was given up to _____ sandiland's Commissioner for the parties concerned, and to his Procurators to see and answer this day: It was Represented for Patrick Vanss, That Keepers of Prisons are in effect Depositarij; and that Prisoners are entrusted and depositate to be keeped by them; And in Law Depositarius tenetur only de dolo & lata culpa; and the Petitioner could be charged with neither: And the Prisoners Escape, in a disguise, is such, as might have surprised and imposed upon the most circumspect and diligent Keeper: And divers Instances, from Lawyers and Story, were adduced of Escapes of that nature, of prisoners in disguise; and of the Impunity of Jailers being free of Fraud, and any accession to the same: Whereunto It was Answered, That the Keepers of Prisons are not Depositarij, but public Servants and Officers; and in all cases of any Trust or Charge, when the same is not gratuitous and dantis causa, but likeways causa accipientis, and ubi intervenit merces, these who are trusted tenentur praestare culpam levissimam: And seeing it cannot be said, that the Prisoner escaped vi majore, which could not be resisted; nor casu fortuito, which could not be foreseen or prevented, the Keeper, and his Servants, for whom he should answer, cannot be said to be free of culpa: And albeit quaevis causa excusat a poena, where there is no dolus, and the Instances adduced do militat only to that purpose; it cannot be instanced either at home or abroad, that Magistrates and custodes Carcerum under them, were found not to be liable in subsidium, for damnage and interest for the escape of Prisoners: and yet the Lords inclined to free the Petitioner: and that it may appear to be done the more warrantably, they ordained him and his Servants to be examined concerning their Knowledge of the said Escape.  
Some of the Lords were of the Opinion, That it was to no purpose to examine the Parties themselves; and though they had Charity for the Petitioner, that he was not conscious or accessary to the said escape, yet that he and his Servants, for whom he should answer, could not be thought to be free of culpa and negligence; and that is was hard, for securing him from prejudice, to unsecure the People: and if such a preparative should be sustained, it would be of dangerous Consequence, and not only a prejudice, but a discouragement to the People, if after the extremity of Diligence and Trouble, Prisoners for Debt, or upon other accounts, should escape impune, upon such pretences: And it was remembered, that upon the Occasion of the Indulgence, and Favour to Keepers of Prisons in Edinburgh, there had been of late divers Attempts and Escapes; and in this instant Year, one being taken for a Highway Robber, and imprisoned in Edinburgh, had escaped without any Censure or Punishment of the Servants of the House. Vide supra November 18.   

D. 302. Mr. James Eleis contra John Hall and others. 24. November 1675.  
IN a Suspension of multiple poinding, at the instance of Mr. James Eleis of Stainhopmilns against John Hall and the other Creditors of Mistress Masterton and against the Creditors of James Masterton; It was Found, that Mistress Masterton the Relict, not being confirmed Executrix Creditrix to her Husband; her Husband's Creditors are preferable as to any Goods and Debts extant and undisposed of, which belonged to her Husband; In respect albeit the Right of the same was established in the person of the Executrix, yet they did pertain to her as Executrix, and as having a Trust and Office; And to the effect the Testament may be Execute; and what is confirmed should be made forthcoming to all Parties having Interest; and consequently to the Defuncts Creditors, and not her own: And the Executrix has not an absolute property in the Goods confirmed, but only qualified and for Administration, and to the effect foresaid.  
2. It was Found, That a Servant, for his Fies, is not privileged and preferable to other Creditors.  
3. James Masterton having granted a Bond for payment of a considerable Sum, after his own and his Wife's decease, in case he should not have Children of his own Body; It was Alleged, That the said Bond, being without an Onerous Cause, and not being effectual until after his decease, as said is, and failyiening of Heirs of his Body; was of the nature of donatio mortis causa, and could not affect the Relics part: Whereunto It was Answered, that the said Bond being granted when he was in liege poustie, and had power as Dominus to dispose of his Goods, or to grant Bonds which might affect the same; The Relict could have no Legitime, but of the free Gear; the said Bond and other Debts being satisfied.  
Some of the Lords were of the Opinion, that the Bond should affect the hail Goods: But others thought that it ought to affect only the Defuncts part; seeing there is a Commumon betwixt Husband and Wife; and albeit the Husband is said to be Dominus, and has full Administration of the same, so that he may dispose thereof, and grant Bonds for Onerous Causes; yet he cannot, in prejudice of the Communion and the Wife's Interest foresaid, dissipate and give away the same by fraudulent Donations, of purpose to prejudge either the Relict or the Children of their Legitime: But this point was thought fit to be heard and debated in praesentia.   

D. 303. Forbes of Colloden contra Ross and others. 26. November 1675.  
A Decreet, at the instance of Forbes of Colloden against Robert Ross and others, before the Commissar of Ross; being questioned upon that Ground, that the said Commissar had committed Iniquity in Repelling Relevant Declinatures; whereof one was upon the account of his Relation to the Pursuer, being the Commissars Uncle: And an other was upon account of the nature of the Action, Alleged not to be consistorial; and the subject of the Process, though it had being proper otherways, yet being far above the Sum of 200 Marks, was such, as by the Regulation, the Commissar could not be Judge in: And likeways in respect, that the Commissar did assume to himself a Power to modify a great Sum, extending to above 6000. lib. for the Charges the Pursuer had been at in prosecuting a Plea by warrant of the Defenders, and wherein he and they were concerned: And the said Modification was upon no other Probation but the Pursuers Oath; and that the modifying of so large a Sum did belong ex nobili officio to the Lords of Session privative.  
Some of the Lords were of the Opinion, That the Commissar, notwithstanding of the Relation foresaid, could not be declined; seeing there is no statute that Judges may be declined upon that account: And by the Act of Parliament 212. K. Ja. 6. His 14. Parl. Anent the Declining of the Lords of Session; There is no other Relation that can be a Ground of Declinator, but where the Judge is related to either of the Parties, as Father, Brother, or Son: And yet others were of the Opinion, that a Nevoy, being of so near Relation, may and aught to be declined; In respect by the Common Law, persons of that Relation are most suspect; and cannot be Judges: And by the said Law, a Judge may be declined upon any Ground that may decline a Witness; and there is more reason to decline Judges than Witnesses, seeing there may be penury of Witnesses, and they may be so necessary, though related to the Parties, that others cannot be Found: And the said Act of Parliament, as all Acts of Parliament, especially such as are correctory Juris communis, aught to be taken strictly; and cannot militate, but in the case therinintended and expressed: And the said Act is upon special considerations, in Relation to the Lords of Session, and particularly, of the Eminent Integrity that is presumed, and aught to be in the Supreme Judicatory.  
The Lords, without entering upon the Debate of the said other points, turned the Dcereet in a Lybel. Forret Reporter. Clerk.   

D. 304. Anderson of Dowhill contra Lowes. 27. November. 1675.  
William Gibson did Dispone to William Norvel his Son in Law and Elizabeth Gibson the Disponers' Daughter, certain Aikers near Glasgow; which thereafter the said William Norvel did Dispone to Thomas Norvel his Brother: And by a Right from the said Thomas thereafter did pertain to Anderson of Dowhill.  
But John Lowes, having thereafter Married the said William Norvels Relict Elisabeth Gibson; and having, upon an Assignation to a Debt of the said William Gibson, adjudged the said Williams Right from his Appearand Heir: And having pursued an Improbation and Reduction of Dowhills Right; and in special of the foresaid Disposition made by the said William Gibson to the said William Norvel; Dowhill was forced to pursue forproving the Tenor of the said Disposition, which was out of the way; and which he pretended to have been in the Hands of the said Elizabeth Gibson; and to have been abstracted by the said John Lowes her second Husband, intending to patch up the Right foresaid; And these Adminicles bein libeled, viz. That the said Elizabeth Gibson being pursued at the instance of the said Thomas Norvel before the Court of Glasgow, for Exhibition of that Disposition; the said Elizabeth, for obtaining a Suspension of the Decreet of Exhibition recovered against her, did consign in the hands of Henry Hope the said Disposition and other Writes; and that thereafter the said Thomas Norvel, upon the said Disposition, did obtain a Decreet cognitionis causa, before the Bailies of Glasgow; In which the said Disposition is mentioned as produced: And thereafter the said Thomas did also obtain an Adjudication of the said Aikers, wherein also the same was produced: And that there is an attested double of the said Disposition, which is written by James Galbraith Agent, and attested by two famous Notars.  
The Lords admitted the Summons to Probation; And divers Witnesses being Examined, and in special the said James Galbraith, and these who were Servants to the Clerk of the Court of Glasgow, the time of the obtaining of the said Decreets Cognitionis causa, Adjudication, and others: After much debate, before advising, in praesentia, and amongst the Lords themselves; Some of the Lords were of Opinion, that pursuites, of the nature foresaid, being of so great importance, and tending to make up a Right to Lands which may be of great value; The Adminicles ought to be in Writ and most pregnant; and that in this case, though there might be ground of presumption, yet it cannot be said, that there are clear Adminicles in Write; In sua far as the attested double cannot be considered as an Authentic Write, and it wants a date: And as to the Decreet of Adjudication, though it mention the production of the Letters of Disposition, yet it appears by the Depositions of the Witnesses, and it was granted at the Bar, that the principal Disposition was not produced, but only an attested Double, and needed not to be produced; the Decreet cognitionis causa being sufficient to instruct the Pursuers Title in the Adjudication: And as to the Decreet Cognitionis causa, that it is not a sufficient Adminicle, seeing both it and the Decreet of Adjudication, bearing the Production in the same Terms, there might have been the same mistake in the Decreet Cognitionis causa, that is confessed to have been in the Adjudication, viz. That the Attested double being only produced, yet the Production is made to bear the Disposition; and there being so short a time betwixt the Decreet Cognitionis causa which was the 13. February, and the Adjudication which was on the 24. of the same Month, it is to be presumed that the attested double has been produced in both: And seeing in such pursuits for proving of Tenors rei gestae veritas ought to be proven; yet it does not appear, by the Testimonies of any of the Witnesses, that they knew that there was a Disposition truly subscribed by the said William Gibson to the said William Norvel; and a pretended Disposition might have been produced the time of the obtaining of the said Decreets; and might be truly doubled; and yet be a false Write: And it were of a dangerous consequence, upon such pretences and Adminicles, to make up an Authentic Write, to have the force of a principal Disposition as to all effects; especially it being considered, that even Extracts do not satisfy in Improbations, though out of the Registers of the highest Judicatories; by reason that Parties concerned will be prejudged of the means and indirect Articles of Improbation, arising upon the sight and production of principal Writes, by compareing Hand-Writes and Subscriptions and others: And if Tenors, being made up, should be of more force than Extracts, there should be the same Inconvenient and hazard to the People; and a Door should be opened to contrivances, if after Papers are produced in Judgement, they should be destroyed of purpose, and the Tenors of the same should be thereafter made up by a Decreet, which should satisfy the Production in Improbations.  
The Lords thought fit again to Re-examine the said James Galbraith, before they should proceed to Sentence: Vide 15. February 1676. inter eosdem.   

D. 305. Blair contra Kinloch. 30. November 1675.  
MR. George Blair, being called in an Adjudication at the instance of Kinloch of Gourdie, as Superior of the Lands craved to be Adjudged; did allege that they could not be Adjudged, because they did belong to him by a Disposition and Resignation thereupon ad remanentiam: It was Answered, That Adjudications are now in place of comprisings; and as such Debates were not competent against comprisings the time of the deduceing of the same, so they ought not to be admitted against Adjudications; seeing Comprysers and Adjudgers do Adjudge or Comprise upon their own hazard: And if the Debtor has any Right or Interest, it ought to be Adjudged; and if he has none, there is no prejudice to any person.  
The Lords Found, That there being no Competition of Creditors, and no hazard of retarding the Pursuers Diligence upon that account; the Defender being called might propone the said Defence; and ought not to be put to Trouble and Charges to appear in any other Process for Nails and Duties, or Removing; Especially seeing he was content, that if the Pursuer had a Reduction, as he pretended, of his Right, that it should be discussed presently; and though he had no Reduction, that what he could say against his Right should be heard and discussed by way of Reply. Forret Reporter.   

D. 306. Mr. Vanss contra sandiland's. 1. December 1675.  
IN the case abovementioned 18. and 23. of November. Vanss contra sandiland's. The Lords having Examined the Servants of the Tolbooth and Captain Martin's Wife, Found that Mr. Vanss being free of any suspicion of Fraud, or Knowledge and accession to the escape of Captain Martin; ought not to be Liable to any hazard for the same.   

D. 307. Barclay contra Arbuthnet. 3. December 1675.  
Colonel Barclay, having produced in termino a Relaxation unregistrate, for proving a Defence, Founded upon the Relaxation. It was Alleged before the Lord of the Outer-house, that the Term ought to be circumduced: Whereunto It was Answered, That it could not be circumduced, since he had produced the said Paper, and Avisandum ought to be made, that the Lords might advise, whether it proves or not.  
The Lords Found, That in such Cases, where possibly a blank Paper, or a Paper of an other nature than that which was to be produced, is produced in termino; the Judge may and aught to circumduce the Term; where it is evident, that such Papers are produced, not to satisfy, but to delay and abuse the Judge: But in this case, seeing it was found, That Colonel Barclay had produced sufficiently ad victoriam causae, so that there may be some ground of doubt and debate; The Lords Found, That it was competent only the time of the advising. Gosfoord Reporter.   

D. 308. Lady Mouswel contra the Creditors of Mouswel. eod. die.  
IN a Suspension of multiple Poinding against Agnes Rome Lady Mouswell and her Children, and Dowglas of Dornick, and the other Creditors of Mouswell; The said Lady desired to be preferred for an Annualrent of 1000 marks yearly, wherein she was infeft: It was Answered by the Creditors, that she had Right only to an Annualrent of 800 marks yearly, having restricted herself to 800. marks, by a Contract and Agreement betwixt her and her friends of Mouswell: Whereto It was Replied, That the Restriction was personal in favours of the Heir of Mouswell, and intuitu of the Obligements contained in the said Contract; that the Friends should undertake the Sums mentioned in the said Contract respective which they had not done: And albeit It was duplied, that the Minute does bear a positive and absolute Restriction, and Renounciation of 200 marks, and that there is no Provision or Clause irritant in the Minute, that if the Obligements upon the other Contracters were not fulfilled that the Restriction should be void; Yet The Lords preferred her for the whole Annualaent, Notwithstanding of the Restriction foresaid: Which appears to be hard,  some of the Creditors, who did compete with the Lady, were not Contracters and obliged by the said Contract; And the foresaid Restriction was not in favours of the Creditors who were obliged by the said Contract, but in favours of her Son the Heir; And the benefit thereof doth accrue to his Creditors who had comprysed; and does in effect redound to the advantage of the Heir and his Successors;  the Creditors will be the more easily satisfied, the burden of the Ladies Liferent being restricted, as said is: and the other Creditors, who had not fulfilled their Obligements, may be pursued for implement of the same: And it is a great inconsequence, that because they had not fulfilled their part, that therefore the Lady's part, which was fulfilled and execute, should become void: and the pretence, that the Restriction foresaid was causa data non secuta is of no weight; seeing the causa was the Obligement of the Creditors, which they might be compelled to fulfil. Hatton Reporter.   

D. 309. Cuninghame contra Maxwel. eod. die.  
A Bond being suspended upon a Reason of Compensation, viz. That the Suspender had debursed divers Sums (conform to an Account) for the Charger: and the said Reason being referred to the Chargers Oath, and deferred back again to the Suspenders Oath; it was debated among the Lords, a quo tempore Compensation should be sustained; whether from the time of the debursements, or from the time the same was liquidat and cleared by the Suspenders Oath. And it was Found, That Compensation should be sustained from the time of the Debursements: seeing the said Sums than grew to be due.  
Debts being illiquid, either because not constitute by Wr●te or Decreet; or because they are not due in Money but in Victual, or such like; which must be liquidat, as to the Prices and Value, before there can be any execution for the same; the Question may be of greater difficulty as to the last, seeing compensatio is s●lutio, and ipso jure minuit; whereas a Debt in Money, cannot be said to be payable, and far less to be paid in Victual, unless the Creditor be content to be satisfied that way.   

D. 310. Dalling contra McKenze. 7 December 1675.  
A Woman is understood to be praeposita negotiis domesticis; so, that for the Provision of her House, she may take from Fleshers and Baxters and others such Furnishing as is necessary: and her Declaration and Oath may be taken, and aught to be trusted as to the same: and the Husband is presumed not to know the particular Quantities: and these who do furnish, are not obliged to inquire, whether her Husband has given her Money sufficient to provide his House, if she be a Person that is not inhibit: seeing the Husband has a remedy, if he has any suspicion that she may abuse and wrong him, and may inhibit her. Glendoick Reporter.   

D. 311. Sheriff of Perth contra _____ eod die.  
IT was Found, That the late Proclamation, remitting Fines due upon the contraveening of Penal Statutes, aught to be extended to Riots and Fines, upon the committing of the same before the said Proclamation; the Persons being thereafter Convict before the Sheriff. Glendoich Reporter.   

D. 312. Lord Arnistoun contra Patrick Murray of Deuchar. 8. December 1675.  
WHen Lands are pretended to be thirled to a Mill, the Heretor has good interest to pursue an Improbation against the Heretor of the Mill, of all Rights and Writes, bearing express constitution of the said Servitude: But that General, viz. That the Defender should produce all Writes, which may import Thirlage, ought not to be sustained; in respect there may be Writes importing Thirlage consequentially, which the Defender is not obliged to know, what the import of the same may be; and it were hard, that upon pretence of such an Interest, the Defender should make his Charter Chest patent to the Pursuer: and the Pursuer has a Remedy, if he apprehend that the Defender may trouble him, upon pretence of Writes, which may import consequentially Thirlage, he may force him to produce the same, by intenting a negatory Action and Declarator of Freedom.   

D. 313. _____ Laird of Wamfray. eod. die.  
THE Act of Parliament against Protections. 3d. Sess. of His Majesty's 1st. Parl. Cap. 3. giving Power to the Lords of Session, and Exchequer, Privy Council, and Justice General, to grant Protections to persons summoned to appear before them; is only to be understood in that case, when they are obliged to appear personally to give their Oaths, or to be Witnesses; and cannot appear by Procurators: And such Protections ought not to be granted upon pretext, that Processes of Compt and Reckoning and others cannot be managed without their own presence: And this was Found upon a Bill given in by Johnstoun of Wamfray; whereby he desired a Protection.  
And yet it is thought, that in some cases, where it is evident that there is a necessity of the Defenders presence to give Information in the point of Fact, especially in general Actions of Compt and Reckoning, Protections ought to be granted.   

D. 314. Veitch contra Hamilton. 9 December. 1675.  
A General Action of Compt and Reckoning, at the instance of Pupils and Minors Post tutelam & curatelam, against their Tutors and Curators, is not consistorial and competent to be pursued before the Commissars; where the import of the Action exceeds the Sum and value to which the Commissars may be Judges: And the pretence, that there are divers Articles, and none of them doth exceed the said Sum is of no weight; seeing the Reply of articulatus Libellus is only in the case, where the Debtor is pursued for divers Sums, which in effect resolves in divers Actions: Whereas actio tutelae is but one general Action and upon one Ground, viz. The Defender is Liable as Tutor and Curator, whatever and how many soever the Articles of Intromission be: And upon the Ground foresaid, the pursuit before the Commissars was Advocate. Newbyth Reporter.   

D. 315. The Creditors of James Mastertoun, and of his Relict Alice Thine. eod. die.  
BY our Custom and the Custom of divers other Nations, though there be a Communion betwixt a Husband and a Wife as to Movables; yet the Husband dureing the Marriage has not only Administration, but is Dominus actu; and may dispose of the same, not only for Onerous Causes, but by way of Donation; and the Wife has only a Right and Interest habitu; which exit in actum after the Marriage is dissolved; as to all the Movables belonging to them, the time of the Dissolution.  
And yet if the Husband dispose of his Movables in fraudem, and of purpose to prejudge the Wife, and to evacuate her Legitime and part of the Movables; as was Alleged in the case in question; the circumstances being such as did evince the Husband's fraud and purpose to settle his Estate upon his near Relations after his Death; in prejudice of the Wife's Interest; such Donations will not be sustained.  
The said James Mastertoun, having made a Disposition in favours of his his Wife, with the burden of his Debts, so that his Creditors should not be prejudged; but that the said Right should be affected with the said Debts; It was debated among the Lords, what the import should be of the said Clause; and if the Creditors of the Husband had thereby a real Interst in the Goods; or only a personal Action against the Receiver of the Disposition: And it was thought, that the Goods being extant and undisposed of; the Receiver of the Disposition with the said quality, was in the case of a Trustee or Executor: And the Creditors of the Husband competing, upon their Diligence, to affect the same with these of the Wife, would be preferable: But if they were disposed of by the Wife, though the price be not employed for the use of the Creditors, though they be extant the Husband's Creditors has no Interest in the same; seeing the Wife was Domina and might sell the same; and Buyers finding her in possession, are not concerned to inquire what way she should employ the price. Vide infra 17. December 1675. Thomson contra Eleis.   

D. 316. Scot contra Kennedy. 10. December. 1675.  
A Father, or any other person disponing his means, may qualify his own Gift; and in special with that Provision, that if the persons be Pupils or Minors, the same should be Administrate by the persons named in the said Disposition; and yet these, in whose favours the Disposition is made, may choose Curators, who will have the Administration of any other Estate belonging to them: But if they be Puberes their persons are free; and neither of the said Administrators can pretend to the keeping of them, quia curator datur rebus.   

D. 317. McKneish contra Bryce and her Husband. eod. die.  
A Woman being pursued upon a Bond; and having alleged, that it it was Null, because she was vestita viro: The Reply, that she promised payment after her Husband's decease, though the Sum was only 100 lib. Scots, was Found not to be probable by Witnesses. Glendoich Reporter.   

D. 318. _____ contra _____ 16. Decem. 1675.  
THE Lords Found, That a Merchant being in use to furnish divers Years; That a current account did not prescrive; Tho some were of Opinion, that the Act of Parliament bearing no distinction; the Articles of Account ought to prescrive from their Respective Dates;  otherways the Act of Parliament may be eluded, both in the case of Counts and other cases, which prescrive by the Act. Nevoy Reporter.   

D. 319. Wilson contra Deans. 17. December. 1675.  
IT was Found, That a Woman keeping a Shop, and Traffiqueing as a Merchant with the knowledge of her Husband, he is Liable for Debts Contracted by her, upon the account of her Traffic, Actione institoria. Forret Reporter.   

D. 320. Thomson contra Mr. James Eleis. eod. die.  
THE Lords Found, In the case of a Right of Movables, granted by a Husband to his Wife with the burden of his Debts, and a Provision that they shall be affected with the same, That the property of the Goods is settled in the person of the Wife; so that she may dispose of the same: And these who acquire Right thereto are not concerned to inquire, whether the price be converted to the use and satisfaction of the Creditors; who will have a personal Action against the Wife: So that she will in effect be in the case of an Executor and Trustee: But if the Goods so affected be extant, the Creditors of the Husband will be preferable to the Wife's proper Creditors; her Right being fiduciary (as said is) and to the use foresaid. Praesentia. Vide supra 9 December 1675. The Creditors of James Mastertoun.   

D. 321. _____ contra _____ 21. Decem. 1675.  
A Father having made a Disposition in favours of his Son, reserving his own Liferent, with power likeways to dispose of what he had provided; did appoint certain Persons as Curators, and to have Administration of what he had provided, dureing not only the Pupillarity, but the Minority of his Son; and nevertheless his Son, having chosen Curators after his Pupillarity, there was a Competition betwixt the said Curators, and the Person appointed by the Father to Administrate.  
The Lords Found, That the Son, as to his Person, was not in potestate of either of the said competing Curators; seeing Curator non datur personae sed rebus: and as to any other Estate, belonging to the Minor, any other way than by the Provision of his Father, the same was to be governed by the advice of the Curator, named and chosen by himself.  
But the Lords demurred as to that Question, viz. Whether the Father might affect the Right granted by himself, with the Quality and Provision foresaid, that the Person named by him, should have administration of the Estate disponed by him: And some were of the Opinion, that there is a difference betwixt a Stranger and a Father; in respect Strangers are not obliged to give; and what they are pleased to give, they may affect and qualify their Right thereof sub modo, and with what Provisions they think fit; whereas a Father has a Duty lying upon him in nature, to provide his Children; and by the Law he may name Tutors to his Children; but after Pupillarity, he cannot put them under the power of Curators, without their own consent: and if this practice should be allowed, there should hereafter be no election of Curators: They did also consider, that the Right granted by the Father, was in effect donatio mortis causa, seeing the Father retained possession, and a power to revock: And it seemed, that as the Father could not in Testament make Curators, so he could not do the same by a Legacy, or any such Donation mortis causa.   

D. 322. Mr. of Rae contra Dumbyth. 8 February 1676.  
IN a Spuilyie, at the Instance of the Master of Rae against Dumbyth, It was Alleged, The Pursuit was prescrived, because not intented within 3. Years; so that it could not be sustained to give the Pursuer Juramentum in litem and violent Profits. It was Replied for the Pursuer, That long within the 3. Years, a pursuit for Depredation had been intented, before the Justice; Which being of a Higher Nature, and including Virtually, and in consequence, the conclusion of Restitution and Profits, was a sufficient Interruption as to this pursuit.  
The Lords, notwithstanding Found, the pursuit prescrived. Newbyth Reporter. Mr. Thomas Hay Clerk.   

D. 323. Riccarton Drummond contra _____ eod. die.  
THE Lords Found, That a special Service in an Annualrent, doth give Right to Heretable Bonds, and all other Heretable Estate, whereupon Infeftment did not follow; and includes a General Retour, as Homo doth include Animal. Newbyth Reporter. Hamilton Clerk.   

D. 324. _____ contra _____ eod. die.  
THE Lords Found, That when Creditors did compear in Adjudications, not being called; they ought to be admitted with that quality, that since the course of the Adjudger is stopped by their Compearance, the Adjudger shall be in the same case as to any Adjudication at their instance, as if both Adjudications were within year and day.   

D. 325. College of Aberdeen contra _____ eod. die.  
THE College of Aberdeen, having Right by Act of Parliament, to the Vacant Stipends within the Bounds thereinmentioned; pursues for a Vacant Stipend: the Bishop of Ross compeared and alleged, That the Kirk was his Mensal Kirk, so that there could be no Vacant Stipend.  
The Lords Found, That the College should have Right to any Stipend that belonged to the former Ministers, either modified to them, or of which they have been in Possession: and that it was consistent, that the Kirk should be Mensal, and yet the Minister should have a Stipend, and that the Pursuers should have Right thereto, being Vacant. Craigie Reporter.   

D. 326. _____ contra _____ 9 February 1676.  
IN a Suspension, a Reason of Compensation is libeled, viz. That the Charger was debtor to the Suspender upon account of a Fraught; and it was offered to be proven by the Chargers Oath, that he was so Debtor; and by Witnesses what the Fraught extended to  
The Lords Found the Letters orderly proceeded; and that Compensation was the liquido in liquidum, and not the liquidando by Witnesses.   

D. 327. _____ contra _____ eod. die.  
A Pursuit was intented for a Sum of Money, which the Defender was obliged by his Promise to pay, in case he should be married; having gotten from the Pursuer in the mean time a Piece, which the Pursuer was to lose, in case the Defender should not be married.  
The Lords sustained the Pursuit: Tho some of their Number were of the opinion, that sponsiones ludicrae, of the Nature foresaid, ought not to be allowed. Strathurd Reporter.   

D. 328. Sir Patrick Nisbet contra Hamilton. eod. die.  
AFter the Lands of a Debtor were denounced to be comprysed; a voluntar Right was granted by him, of an Annualrent out of the samen Lands, for an Onerous Cause; whereupon the Annualrenter was infeft by a public Infeftment, before any Infeftment upon the Comprising: and there being upon the foresaid Rights a Competition betwixt the Compriser and the Annualrenter: It was Alleged, That after the Lands were denounced, the Debtor could not give a voluntar Right of the same being litigious, and affected with the Denounciation: And on the other part, it was debated, that the Debtor, not being inhibit, might give a voluntar Right for an Onerous Cause, and the first consummate Right aught to be preferred.  
The Lords, In respect it was pretended there were contrary Decisions, Thought fit, not to give Answer, until these should be considered.   

D. 329. Park contra Rysly. eod. die.  
A Tennent having sold Nine Score of Sheep, and the samen being carried off the Roum where he was Tennent; the Master of the Ground, by Warrant of the Sheriff, as having therein the Right and Interest of a  Hypotheck, did seize upon the same.  
The Lords Found, That neither the Master nor the Sheriff, without citing the Party, could seize upon the said Goods, not being upon the Master's Ground; nor give Warrant to that purpose: And yet seeing quaevis causa excusat a spolio, they restricted the Pursuit to wrongous' Intromission: and allowed to the Master his Defence for Retention of the Goods, until he should be paid of his Years Duty. Newbyth Reporter. Hamilton Clerk.   

D. 330. _____ contra _____ eod. die.  
THE Right of a Wadset being comprised, the Compriser did require for the Sum due upon the Wadset; and pursued the Representatives of the Debtor: It was Alleged, for the Defender, That he could not pay the Money, unless the Pursuer should put the Defender in Possession of the Lands: It was Answered, That the Pursuer not having possession himself, and having loosed the Wadset by Requisition, he could not put the Defender in possession: and the Defender might have taken possession by his own Right: and it was enough that he was content to renounce the Wadset; especially seeing neither the Pursuer nor his Author had done any Deed to put the Defenders in worse case as to Possession; and the Possession was apprehended and still continued by an Anterior Compryser: and the Pursuer had obtained a Declarator, finding the said Comprysing to be satisfied and extinct, so that the Defenders might easily recover Possession.  
The Lords notwithstanding Found the Alledgeance Relevant, and that the Pursuers should put the Defenders in possession.   

D. 331. Grant contrary Barclay. 10. February 1676.  
IN a pursuit upon a Passive Title of Behaving; It was Alleged, that before intention of the cause the Defender had gotten a Gift of the Defuncts Escheat.  
The Lords, Upon Debate amongst themselves, Found, that albeit the Gift was not declared, yet it purged the Defenders vicious Intromission; being before the intention of the Cause; and that the Defender, having the Goods in his hands, needed not a Declarator.  
This seemed hard to some of the Lords, In respect by our Custom there being two ways adeundi haereditatem, viz. either by a Service or by Intromission was the Defuncts Goods that were in his possession: The Appearand Heir, by meddling with the Goods, gerit se pro haerede; And so by his Intromission having declared his intention also fully as if he were served Heir; semel haeres cannot cease to be Heir; there being Jus quaesitum to the Creditors as to a Passive Title against him. 2. The pretence, that the Defender is in the same case, as if there were an Executor confirmed before the intention of the Cause, is of no weight;  the Defence upon the confirmation is sustained; because there is a person against whom the Creditors may have Action, which is not in the Case of a Donator. 3. A Donator has no Right without a general Declarator; And tho, when the Donator has the Goods in his hand, there needs not a special Declarator; yet, for declaring his Right, there must be a general one. 4. As to that pretence, that the Defender cannot be Liable as Intrometter with the Defuncts Goods, because they belong to the Fisk and not to him; It is Answered, That the Goods being in the possession of the Defunct; the Appearand Heir thereafter medleing with the same eo ipso adit; and the Creditors ought not to be put to debate, being he is in Possession: And if a person should be served special Heir to the Defunct, though the Defuncts Right were reduced and the Haereditas could be inanis as to the benefit, yet the Heir would be still Liable. Mr. Thomas Hay Clerk.   

D. 332. Mcquail contra Mcmillan. eod. die.  
A Pursuit being intented against the Wife as universal Intrometter to a Defunct, and her Husband pro interest; and the Wife having deceased: It was Found, that the Husband should not Liable, unless it were proven, that he had Intromission with the same Goods; upon the Intromission with which the former pursuit was intented against his Wife.  
This was not without difficulty: And upon debate amongst the Lords, though it was not the present case, yet the Lords inclined to be of the Opinion, that the Husband, having gotten a Tocher ad sustinenda onera Matrimonij; If the Wife had any other Estate, whereunto the Husband had Right Jure Mariti, he should Liable in quantum locupletior. Nevoy Reporter. Robert Hamilton Clerk.   

D. 333. Alexander Abernethie contra Arthur Forbes. eod. die.  
THE Lord Saltoun having given a Bond of 20000 Marks to Alexander Abernathie, upon account of his Service, and of the Service done by his Brother James Abernathie: Thereafter the said Lord Saltoun did grant a Bond, making mention that the Lands of Auchincleuch belonged to him and his Authors, and that the said Alexander had been Instrumental to obtain a Reduction of the Rights of the Estate of Salton, to the behoof of the said Lord Salton; and therefore obliging my Lord Saltoun to Infeft him in the said Lands.  
The Lords Found, That the said Bond, being after the former and for the Causes foresaid, and having no Relation to the said former Bond of 20000 Marks, that it should be in satisfaction of the same; Can not be interpret to be in satisfaction thereof: And the Brockard Debtor non praesumitur donare does not militate in this Case;  the Lord Salton was in a capacity to give both the said Bonds, by way of Donation: and the question was not betwixt the said Alexander and the Creditor, but betwixt another person to whom thereafter he had gratuitously Disponed his Estate. In praesentia.   

D. 334. Gibson contra Fife. 12. February 1676.  
A Woman having lent 100 Marks, upon a Blank Bond; and the same being lost: The Debtor was pursued for payment of the said Sum; and did confess that he had truly borrowed the Money, and granted the Bond Blank; and he was willing to pay the same, being secured against any pursuit, at the instance of any person, who might have found the said Bond, and filled up his own name therein.  
The Lords thought the case to be of great difficulty and import, as to the preparative; that practice of granting Blank Bonds having become too frequent: And resolved, in this case, to take all possible Trial by the Debtors Oath, and otherways, of the date and Writers Name and the Witnesses in the said Bond: And thereafter to ordain the Debtor to pay upon surety, that the Pursuer should relieve him of any Bond that should be found of that date and Sum; and written and Subscribed by the Writer and Witnesses that should be found to have been in the said Bond. Gibson Clerk.   

D. 335. Anderson contra Lowes. 15. February 1676.  
THE Lords, in the case abovementioned Anderson contra Lowes 27. November 1675. Found the Tenor of the Writ thereinspecified proven by the Adminicles thereinmentioned. In praesentia.   

D. 336. Marshal contra Forrest and her Husband. eod. die.  
IN a pursuit at the instance of a Minor against his Tutrix: The Pursuer having referred to the Tutrix Oath, that she had intrometted with divers particulars belonging to him: The Husband of the Tutrix Alleged, that she could not declare in his prejudice: It was Replied, That the Pursuer having an Action and Jus quaesitum competent to him against his Tutrix, he could not be in worse case as to modum probandi, by the Tutrix her superinduceing a Husband: And that the Intromission of a Relict, after her Husband's decease, being such as to Money, Bonds, and many other particulars, as could not be known to any person, but to herself; nor proven, but by her own Oath; It were hard, that the Minor should be prejudged of his Probation by her own Deed: And the Husband is not in the case where a Debt is only to be constitute by the Wife's Oath; seeing the Ground of the Debt is constitute by Writ, viz. By the Nomination or Letter or Tutory: And when there is a pursuit against any person, that Person cannot by an Assignation prejudge his Creditor of his Probation by Oath; and the Minor is more privileged; seeing by the Common Law Minors have a  hypotheck of their Tutor's Estate; and by our Law they ought to be favoured, at least so far as it should not be in the power of the Tutrix to ruin them, by convoleing ad secundas nuptias ante redditas rationes.  
The Lords thought the case considerable: And Ordained the Tutrix to declare; Reserving to themselves, to consider what her Declaration should import. Forret Reporter. Gibson Clerk.   

D. 337. E. of Dumfermling contra the Earl of Callender. 16 February 1676.  
THE Earl of Dumfermling, having Right by Assignation, to the Obligements contained in the Contract of Marriage, betwixt the deceased Earl of Callender and his Grandmother; in swa far as the same is in favours of the said Lady: pursued the said Earl of Calendar for Implement of the said Obligements; and the Lord Almond, now Earl of Callender, as having gotten a Right to the said Earl of Callender's Estate, with the burden of his Debts: and the said Earl in the interim having deceased, did insist against this Earl of Callender: For whom It was Alleged, That the Process ought to be transferred against some representing the said Earl of Callender, as Heir of Line, or otherways: And though the Pursuers Procurators declared, they insisted only against Calendar for a Declarator, that the Estate disponed to him should be affected with the foresaid Obligement: It was urged for Calendar, That the said Earl's Heirs ought to be called;  the Declarator, against him being a singular Successor, that his Lands should be affected, was only a subsidiary Conclusion, and could not be sustained before the Debt was constitute: and the Debt could not be constitute, unless the pretended Debtor, or some representing him, were called.  
The Lords notwithstanding Found Process; and that there were no necessity of calling or transferring against the Heirs of the Debtor. Actor Sinclar, Bernie and others, alteri Lockheart. Monro Clerk. In Praesentia.   

D. 338. Doctor Borthuick contra the Earl of Crawfurd. eod. die.  
THE Earl of Crauford, having borrowed 8000 marks from the Mother and Grandmother, and two of their Children, for themselves and in name and behalf of their said Children; he is obliged by his Bond to infeft the said Mother and Grandmother in Liferent and the said Children in Fie in an Annualrent out of certain Lands; but by a mistake, the Precept of Season, contained in the Bond, is in favours only of the Mother and Grandmother, and for infefting them as Fiars of the said Annualrent, and accordingly they are infeft: And yet thereafter the said Mother and Grandmother acknowledging, that the said Infeftment was so taken upon mistake, did by a Disposition, bearing the Narrative foresaid, dispone the Fee in favours of the said Children: and there was a Pursuit intented at their instance, against the said Earl of Craufurd, for poinding of the Ground, Wherein It was Alleged, That the Mother and Grandmother, being only Lifrenters, could not resign the Fee, which they had not: and if the Pursuers made use of their Right from them, the Defenders ought to be assoilyied; because the Mother and Grandmother, by a Transaction betwixt the said Earl of Crawfurd and them, had accepted the time of the Englishes, a parcel of Lands in satisfaction of the said Debt.  
The Lords Found, notwithstanding of the said Alledgance, that the Pursuers ought to have process for poinding the Ground; In respect the Mother and Grandmother had de facto the Fie in their person upon the said Precept and Season: And the same being given indebite, as said is, they might have been compelled to denude themselves thereof: and therefore might voluntarly, and accordingly did denude themselves thereof, and the said Transaction could not prejudge them, seeing they derived their Right from the said Persons qualificate, in respect of their Interest and Error foresaid; and they might have been compelled to give the same: and the Earl of Crawfurd was not in bona fide to contract with them;  by the Bond granted by himself, they were only Fiars, and the other but Liferenters. Actor Lockhart and Beaton, alteri Cuningham and Suinton. Clerk in praesentia.   

D. 339. Doctor Hay contra Alexander. 17. Febr. 1676.  
DOctor Hay his Case, 28 January 1675. supra, resumed and taken to consideration this day; And though some of the Lords considered, that it was hard to canvel Certifications in Pursuits of Improbation after a long Dependence, and divers Terms given to produce, and delays of Extracting, after Circumduction of the said Terms; and that such Certifications are not only the great Surety of these who obtain the same, but of these who obtain Right from them, conceiving themselves to be secured with such Certifications: Yet the Precedent, and others of the Lords inclined to repone Alexander against the Certification, the Writes being produced; though it was urged, that beside the Security and Interest of People, as said is, it was to be considered, that in this Case, there were Advantages pretended to on both hands, viz. by Alexander of an expired Comprysing; and by the Doctor of the said Certification: and that Alexander and his Authors, by virtue of their Comprysing, had been many years in Possession; though there was probability the Comprysing was satisfied; and it seemed to be equitable that the Doctor should have a Decreet of Removing; and should give a Reversion to Alexander, limited to such a time as the Lords should find just, upon payment of what should be resting and unsatisfied by his and his Author's Intromission, if there there were any part of the Debt yet resting: But this Point was not decided, the Lords having recommended to some of their Number, to endeavour an Accommodation betwixt the Parties.   

D. 340. Abercrombie contra Acheson and Livington. eod. die.  
A Taverner, after she had removed from her Master's Service, and was Married, was pursued to Compt and Reckon for Ale and Wine which the Pursuer offered to prove was laid in in his Cellars.  
The Lords Found, That the Pursuer ought to Lybel and prove that the Debt was yet Resting:  it was to be presumed, that Servants of that quality did Compt Weekly with their Masters; and the Pursuer would not have suffered the Defender to go out from his Service before she had Counted and made payment: And it appeared, that there had been former Decisions to that purpose. Lord Justice Clerk Reporter.   

D. 341. Dundass contra Turnbul and other Creditors to Whitehead of Park. eod. die.  
IN a Competition, betwixt an Infeftment of Annualrent and a posterior Infeftment upon a Comprysing; the Lords inclined to find, that the Infeftment of Annualrent was made public by a pursuit of poinding the Ground before the Infeftment upon the Comprysing: But, some of the Lords not being clear, the case was not decided. Gosford Reporter.   

D. 342. Wauch contra Jamison. eod. die.  
DOctor Bonar, being to go out of the Country did Dispone a Right of Lands and of an Annualrent to Mr. John Smith his near Relation; upon a Backbond granted by the said Mr. John, bearing that the said Right was granted partly in Trust, and partly for surety to the said Mr. John for Sums due for the time to him by Bonar; and of such Sums as Smith should advance to Bonar, or his Creditors: And that the said Right should be Redeemable by Bonar or his Sister, if she should survive him, by payment of the foresaid Sums.  
Thereafter the Doctor did grant a Bond of 5000 Marks to the said Mr. John Smith, bearing no Relation as to the said surety: And bearing, as to the conception, a simple Movable Bond to the said Mr. John his Heirs and Executors: And after the said Mr. John smith's decease, there being a Competition betwixt Doctor Jamison his Heir and the Executor, as to the said Sum of 5000. Marks: And the question being, whether it should be thought to be Heretable, in respect of the said surety; or Movable, In respect of the conception of the said Bond.  
The Lords did consider the case as of great moment, as to the consequence and Interest of the People; and upon debate at the Bar in praesentia and among themselves, they came to these Resolutions; viz. That it was consistent, that a Sum should be Movable, and yet that it should be secured by an Heretable Surety, as in the case of bygone Annualrents due upon Infeftments of Annualrent; and of bygone Feu-duties or Taxations; the same being unquestionably Movable ex sua natura; And yet there being a real surety for the same, and a real Action for poinding the Ground even competent to Executors: And likeways in the case of Wadsets loosed by Requisition, and bearing a provision, that, notwithstanding of Requisition, the real Right should stand unprejudged until payment; in which case the Sum would be Movable, though still secured by Infeftment. 2. That, as to these qualities of Movable or Heretable, in relation to the Interest of Succession and Question betwixt Heirs and Executors, the design of the Creditor & animus, was to be considered principally: And if Debts, either by the conception, were Heretable ab initio, or an Heretable surety taken thereafter for Movable Debts, as a Wadset or Comprysing; It was to be presumed, that the Creditor intended to alter the quality of the Sums, and that they should belong to his Heirs: but if Creditors should take an Heretable surety, without any intention to alter the quality of the Debt, or that the same should lie as bonum stabile and fixed; the Debt continues still Movable: As v. g. If a Creditor, having done exact Diligence, should take a Gift of Liferent Escheat, or Recognition, upon a Back-bond, that he should be satisfied in the first place of his Debt: Or if in a Suspension, a Disposition of the Debtors Estate should be consigned, because he cannot find Caution: Or in the case of Bonorums, a Disposition of an Heretable Estate should be made in favours of his Creditors: Or if a Debtor should Dispone his Estate in favours of a confident person with the burden of his Debts: In these and the like Cases, Because the Creditor does not intent, that his Money should lie as an Heretable Debt, but upon the contrary has done, and is about to do all possible Diligence, for recovery of the same, the Debt continues still Movable, notwithstanding of the said accessary and extrinsic surety. 3. Bonds, being taken after a general Surety in the Terms foresaid, for Debts to be advanced, may be Movable; notwithstanding of such Surety, if it appear that the Creditor intended it should be such: As if such supervenient Bonds should be taken to Executors, Excluding Heirs: Especially when such general Sureties, for Sums as are to be afteradvanced, are not dispositive, but by way of Provision containing Backbonds, and not of the Right itself, viz. That the Receiver of the Right should not be liable to denude, until he get payment of the Sums that should be due to him at any time thereafter; In which case it appears, that he has not a positive Right, and Surety for the said Sum, but an Interest and exception of Retention.  
The Lords in end, In the foresaid Cause, Found that the said Bond of 5000 M. In sua far as it should be made appear, to be made up of the Sum mentioned in the Back-bond, that was due to Smith at that time, should belong to the Heir an as Heretable Sum; In respect, ab initio, the said Surety was granted for the same: But, as to the residue of the said Sums, it should belong to the Executors as Movable;  the Defunct had expressed his Intention that it should be such, by the taking the Bond, in the form and conception of a Movable Bond. Cuninghame and Kincaid for Wauch, alteri Lockheart and McKenzie. Mr. Thomas Hay Clerk. in praesentia.   

D. 343. Ogilvie contra Buckie. 22. February. 1676.  
IMprobation being proponed against a Discharge, after the same had been questioned as Null, because it wanted the Writers Name, at least he was not designed.  
The Lords Found The said Writ Null and not probative, unless the Pursuer should condescend upon a Writer Living; at least, if he were Dead, should produce Writes written or subscribed by him, to the effect the Pursuers may thereupon have the means of indirect probation entire. Actor. Mckenzie altar. Thoirs.   

D. 344. Aerskine contra Rynolds. eod. die.  
THE Lords sustained a Declarator, at the Instance of a Creditor, to hear and see it Found, That certain Sums provided by a Father to his Children, after the contracting of the Debt, should be liable and subject to Execution for their Debt: and that they should be liable themselves in quantum lucrati, though there was not a Reduction intented of the said Rights upon the Act of Parliament 1621. which the Lords were moved to do, not only because they thought, that the said Declarator is a Reduction upon the matter, but the rather that the Summons were offered to be proven by the Defenders own Oaths: and in effect, as to the most of the Sums, they were not a Subject of Reduction; seeing the Debts were not all assigned to the Children; but the Bonds being blank in the Creditors Name, the Father had filled them up in the Name of the Children: and as to such as were assigned, for the most part, they were renewed in the Name of the Children; the former Bonds being given back, with Assignations to the same. Newbyth Reporter.   

D. 345. Hilton contra L. Chines. 24. February 1676.  
THE Lady Chains being infeft in an Annualrent, upon a Right granted by her Husband: Her Season was questioned upon these Grounds: 1. That it was Null, in sua far as the bailie and the Actorney in the Season were one Person, who could not both give and take the Season. And 2. The Provision was during Marriage, and after the Creditor that did compeat, his Debt; and though it could be sustained, where there was no Contract of Marriage, for a competent Provision; yet it could not be sustained for the whole Annualrent, being exorbitant; her Husband's Estate and Debt being considered.  
The Lords, In respect, it did appear evidently, that it was a mistake of the Notar, that the Season did bear the same Person to be both bailie and Actorney, in the Clause of Tradition; And seeing by the first part of the Season, it was clear, that there was a distinct Actorney, who did present the Season to the bailie; Did therefore incline to sustain the Season: but before Answer to that Point, they ordained the Parties to be heard upon the said other Alledgance: and the Relict to condescend upon her Tocher and the Rent of the Estate: and the Creditor upon the Burdens. Newbyth Reporter.   

D. 346. Johnston contra Cullen. eod. die.  
A Tack, being granted by a Husband to another Person, to the behoof of his Wife; to begin at the first Term after the Husband's decease; was not sustained against a singular Successor: because the said Tack was but a Personal Right, not being clad with Possession: and the entry was conferred in tempus indebitum, to begin after the Husband was denuded. Glendoick Reporter. Monro Clerk.   

D. 347. Johnston contra Orchardtoun. eod. die.  
IN a Pursuit upon a Bond of Corroboration, It was Alleged, That the Principal Bond ought to be produced; which was repelled, in respect, the maxim non creditur referenti, nisi constet de relato, holds only in the Case, where there is only a naked Relation to a Writ, and not when the Writ that relates thereto doth proceed to an Obligement thereupon; and it is not only Relative but Dispositive. Glendoick Reporter. Robert Hamilton Clerk.   

D. 348. Burnet contra Swan. eod. die.  
A Season within Burgh being questioned, because it was not found in the Books, was sustained; In respect of the Act of Parliament, excepting such Seasins from necessity of Registration; it being to be presumed, that the Clerks do not fail to registrate the same, and if they do not book them, it ought to be imputed to them, and not to the Party. Sir David Falconer for the Season. Alteri Seaton. Hay Clerk. In praesentia.   

D. 349. _____ contra _____ eod. die.  
IN a Pursuit against a Minor, It was Alleged, Quod non tenetur placitare, because Minor: Whereupon there did arise two Questions, viz. 1. Whether the said exception, being a Dilator, aught to be verified instanter: As to which, It was Found by the Lords, That Minority, being in Fact, could not be verified instanter. 2. It being replied, That the Defender was Major, which was offered to be proven; and a conjunct Probation being desired by the Defender; It was nevertheless Found by the Lords, That the alledgance of Minority being elided by the said Reply of Majority, which only was admitted, the Pursuer ought to be allowed to prove his Reply, without Conjunct Probation to the contrary. Sir David Falconer Actor. alteri _____ Hamilton Clerk. In praesentia.   

D. 350. Rig contra Rig. 6 June 1676.  
THE Lords Found, as they had done formerly in another Case, that where a person of a near Relation stays for any considerable time in Family with another, as in the Case in question a Brother with a Sister; and both are Majores and of that age that they may agree, if it be so intended by either, that the one should be considered and have a Fee and satisfaction as a Servant to his Sister, or that the Sister should have satisfaction for the Aliment and Entertainment of her Brother; if they make no such Transaction, that neither the Sister can claim Aliment, nor the Brother a Fee, upon pretence that he did serve, and did good Offices to his Sister; and that it ought to be thought and presumed, that he did the same upon account of his Relation, for his Entertainment: and that she did entertain him in contemplation of the said Relation, and that he was useful. Hay Clerk.   

D. 351. Pittarro contra the Tenants of Redmyre. 7. June 1676.  
THE Abbot of Arbroth, by an Ancient Charter, having fewed the Miln of Conveth, in these Terms, cum pertinen cum multuris totius parochiae de Conveth: The Fevar of the said Miln in the Year 1597. did obtain a Decreet of the Lords of Session, against some of the Heretors of the said Parish, in foro as to some of the Defenders; but in absence as to others, and in special as to the Heretor of Redmyre being called. And now _____ Carnegie Younger of Pittaro, having pursued, for abstracted Multures, the Heretors and Tenants of Redmyre; and having founded both upon the said Charter of the Miln, and the said Decreet; It was Alleged, That the Defenders Right bears no Astriction: And as to the said Charter, it must be understood of the Multures belonging to the Abbot; and of the Lands pertaining to, or holden of him; and that the Lands of Redmyre do not hold of the Abbot, but of the Laird of Drum, who holds the same of the King: and that the Abbot could not astrict any Land but his own: and as to the said Decreet, that it was a latent Decreet, in absence against the Defenders Author; and that notwithstanding thereof, the defender and his Authors, had been in Possession of Liberty, in swa far as, though they came sometimes to the Pursuers Miln, being nearest and most convenient, and the Multure being also easy as at any other Miln; yet the going to a Miln being facultatis, wherein Astriction cannot be shown, they had used and were in Possession of the said Liberty to go to other Milns.  
It appeared, that the same Defence being proponed in the foresaid Decreet 1597. for these who were compearing, was Repelled; In respect the said Charter was so Ancient, and was so expressly of the Multures of the hail Parish; And after so long a time it was not  to debate the Abbot's Power to astrict the said whole Parish: And the foresaid Charter does bear, that the Abbot did give to the Fever the said Miln, in the same manner, and also freely as one Vmfridus had the said Miln and Multures, by a Grant and Right from K. William: And it was presumable, that the said King, who might have thirled the said Lands holden of himself, did give the Miln and Multures.  
The said Decreet likeways 1597. did mention the Production of a Retour before the Sheriff; and the verdict of an Inquest concerning the said Multures,  
The Lords having among themselves debated, and considered, that the said Decreet 1597, though in absence was a valide Decreet; whereby the Defenders Author is discerned, in all time coming, his Tenants, Cottars and Successors to pay the Multure thereinmentioned: And that the said Decreet was a standing Decreet by the space of 40 years; and never questioned; there was no necessity to debate upon any other Grounds, than that the Pursuer had thereby a Right to the said Multures;  the Defenders did not deny, that they were in use to come to the Miln, but pretend a Liberty and use to go likeways to other Milns: And it cannot be said, that he had the said Liberty, the contrare appearing by the said Decreet which never was questioned, and now cannot be questioned being prescrived, and yet the Lords Assoilyied fra Bygones and Services, not contained in the said Decreet.  
It being Alleged that the Farm should not be thirled: The Lords Found, That the growing Corns being Astricted by the said Decreet, there ought to be an exception, but of Teind and Seed: And that the Tenants were Liable for such Corns as belonged to themselves; and the Master for his Farm. Actores Sinclair and Lermonth etc. for Pittarro alteri for the Defender Lockheart and Falconer. Monro Clerk. In praesentia.   

D. 352. Stenhouse contra The Heretors of Tweedmoor. eod. die.  
THE Laird of Stenhouse, his Lands being designed for a Gleb; pursued some of the Heretors within the Parish for his relief, conform to the Act of Parliament: In which case, in respect the pursuit was by the space of 8. or 9 years after the Designation; And the Heretors were in bona fide, and did possess their own Lands, and had made fructus suos;  
The Lords Found, That the Defenders were not Liable to pay the Annualrent for the Sum discerned from the time of the Designation;  usurae debentur only ex pacto vel mora. Albeit it may appear, That that Relief that is due ex lege is at least also effectual, as if it were ex pacto: And the very Notion of Relief imports that the Party should be relieved of all Damnage sustained by him: And the Pursuer was prejudged, not only by the want of the value of what he was to be Relieved of, but of the Interest of it. Gibson Clerk.   

D. 353. Ramsay contra Zeaman. 7. June. 1676.  
DOctor Zeaman, By Contract of Marriage, betwixt him and Margaret Ramsay, was obliged to employ 10000 lib. to himself, and her in Liferent, and the Heirs of the Marriage: And was also obliged to employ other 20000 lib. to himself, and to the Heirs of the Marriage; with a Provision, that he should have power to burden the said Heirs of the Marriage with an Additional Jointure to his Wife, and the provisions of his other Children; at any time etiam in articulo mortis: Which Jointure and Provision is accepted by the said Margaret, in satisfaction of what else she could claim of Terce or Movables. And thereafter the Doctor in his Testament, having named his Son and appearand Heir, to be his Executor and universal Legator; and having left in Legacy to his Wife the Annualrent of 3000 Marks by and attour her Jointure; and divers Provisions to his other Children, and Legacies to other persons: His Relict and her present Husband pursued her own Son, as Executor to his Father, for payment of the said Legacy left to her: And it being Alleged, That the Inventar of the Testament would not extend to satisfy all the Legacies; and that there ought to be a Defalcation proportionably: It was Answered, That she was not to be considered as an ordinar Legator, but in effect was a Creditor; In respect of the said Provision and Power reserved to the Doctor, as said is: And that he had used the said power and faculty.  
The Lords Found, That the said Addition being left to her in Legacy; she was in no better case than the other Legators; and had no preference before them out of the Executry.  
Yet it is thought, That if there be not so much of the Executry as to satisfy the Relict her Legacy; the Heir will be liable for what she wants; , by the said Provision, the Heirs of the Marriage are burdened with what he should add to her Jointure etiam in articulo mortis: And albeit nemo potest facere ne leges habeant locum in suo Testamento, and no person at any time can reserve a Power to burden his Heirs, at such a time as in Law he is not in legitima potestate; yet when any person gives any thing, or makes a Provision in favours of any other person, or of his Heirs of Provision; he may give and qualify the same sub modo, and with what burden he pleases; and therefore the Defender, being not only Executor, but the only Heir of the Marriage, will be Liable by the said Provision to the said Addition and Provision in favours of his Wife and Children, albeit left in Lecto: And he cannot frustrate the same, upon pretence that he will not serve himself Heir of Provision, but Heir of Line; seeing he is the same person, and is both Heir of Line, and Heir of Provision: And if need bees, the Relict and Children, as Creditors by the said Provision contained in the Contract of Marriage and in the Testament, may get Decrees against him as charged to enter Heir of Provision; and if he renounce may adjudge the 30000 lib. provided to the Heirs of the Marriage. Actor Sinclair alteri McKenze and Zeaman. Gibson Clerk. In praesentia.   

D. 354. Irving contra Forbes. 8. June. 1676.  
IN the case, Irving contra Forbes: It was debated among the Lords, whether a person should be Liable, as vicious Intrometter, notwithstanding that it was Replied, that he was confirmed Executor: And Answered, That as to Superintromission, beyond what was confirmed, he was Liable as Intrometter.  
It was asserted by the Precedent and some others, That it was the custom and daily practic, That notwithstanding of Superintromission even before the Confirmation, the Executors ought not to be Liable, but secundum vires; and that a Dative ad omissa may be taken; yet others were positive of the Opinion, that a Person, Intrometting with more nor is confirmed, was Liable as vicious Intrometter;  it could not be denied, but he was Intrometter; and he could not plead, nor pretend to be Executor, as to what was not confirmed; and if there were no Confirmation he would without question be liable as Intrometter; and the Confirmation ought not to put him in better case; seeing, notwithstanding of the same, as to Superintromission, he is not only Intrometter without warrant and so vicious, but is perjured; having made Faith, the time of the Confirmation, that nothing was omitted; And it is hard that a custom, contrare to the Principles of Law, and to the Opinion of Hope and other Lawyers, should be obtruded; unless, upon a Debate in praesentia, there be a Decision, which may be the Foundation of a Custom.   

D. 355. Burnet contra Gib. 9 June. 1676.  
THE Lords, in a Spuilyie of Teinds, Pursued at the instance of Alexander Burnet contra William Gib, Found, That the Defender, or his Author having enclosed a piece of Marish Ground to be a Yard; and having made no other use of the same since, but for Carrots and Roots; he was not Liable to the Bishop Titular, or his Tacksman of the Parsonage Teinds, for payment either of the value of the Parsonage Teind, or for the Viccarage Teind; which was found by plurality of one or two Voices.  
These that were for the Decision did found their Opinion upon these Grounds, viz. 1. That the Heretor potest uti Jure suo; and that the Titular has no tye, nor Servitude upon him; but he may either Labour, or not his own Ground; If he do it not in fraudem or aemulationem, of purpose to prejudge the Titular. 2. That the Defender, in order to his own Interest, having thought fit to enclose his Ground, and to make use of it for Carrots and Roots, for which, by the custom of the Country, Teind is not due, neither to Parson, nor Vicar; the Defender is not Liable for Teind;  Viccarage Teind, and the payment of it is regulate, according to Custom.  
It was urged by the Lords that were of an other Opinion, That the Titular of the Teinds had an interest partiarium as to Teinds; so that albeit the Heretor may uti Jure suo, it is to be understood, that he should use the same sine injuria, without prejudice of the Titular: And if, of purpose to prejudge the Titular, he should not Labour but suffer his Lands to lie waste, he will be Liable to the Titular for the value of the Teind that was formerly payable, or might have been gotten; As was Found in the case of the Laird of Polwart against the Minister of Polwart. For, If he should enclose all or a considerable part of his Ground that was arable Land, and whereof the Teind was either paid to, or led by the Titular, it were hard that it should be in his Power to prejudge the Parson to the advantage of the Vicar; But in that case the small Teinds would be considered, as great and parsonage Teinds, quia surrogatum sapit naturam surrogati: And far less, it ought to be in the Power of an Heretor to prejudge altogether the Titular or the Minister, who is provided out of the Teinds, as in the case in question, by encloseing Ground formerly arable, and making that use of it, that neither the Titular nor Parson can have any benefit of Teind; It being unjust, that the Titular should be prejudged, and that the Heretor should advantage himself; and by his own Deed should free himself of Teind: And albeit, by the custom in some places, Teind is not paid for Carrots and Roots in Yards, the same being looked upon as inconsiderable; and the Bounds, where the same are Sown or planted, being small parcels of Ground, for the private use of the Heretors own Family; yet when a considerable Tract of Ground is enclosed and parked, so that the Heretor has the same if not more profit than he has of his other Laboured Ground, by selling the Roots and Fruits of the same, as about Edinburgh, or other great Cities where great parcels of Corn-Land are taken in, and enclosed to the use foresaid; as by the Common Law Teind is payable, even for such Fruits and Profits; So by our Law, the Titular ought not to be prejudged: And the custom, that Teind is not payable, for Roots and such like, aught to be understood of such as grow in Yeards about Houses, as said is, for the proper and domestic use of Heretor or Tennent; but not where a great parcel of Ground is taken in, and destinate for profit and advantage, by Soweing, or Setting, and Selling Herbs and Roots.   

D. 356. Nairn contra Scrymger. 13. June 1676.  
IN a Suspension, at the instance of a Person who had bought Lands, upon that Reason, that the Seller who charged for the Price was obliged by the Contract to give him a perfect Progress, and that the Progress exhibited to him was defective, In swa far as, the Lands did hold of the Bishop, and the Original Right was not produced, but only a Charter of Confirmation in Anno 1611; and the Charter confirmed was not produced; and the Progress, since the Charter of Confirmation, was but late; and some of the Charters had no Season following upon the same; and some Seasins wanted the Warrant of Charters and Precepts: And albeit it was alleged, that the Charters would be found Registrate in the Bishop's Register; that defect was not supplied thereby; seeing the Bishop's Register was not Authentic; and aught to have no other respect than a Register of any other Lord or Baron, of the Writes granted by them.  
The Lords Found, That, though much may be said upon the Progress foresaid, to defend against any Person that will pretend Right to the Lands; and to found Prescription upon them: A Buyer nevertheless was not Obliged to accept and acquiesce to the same as a sufficient Progress; seeing the Buyar ought to have a Right; and Prescription with 40 Years Possession doth not amount to a Right, and there may be Replies upon Interruption: and at the best, Prescription is not a Right but exceptio temporis.  
But the Lords did allow, to the Charger, a time for making out a better Progress: and Found, That the Suspender could not be forced to acquiesce in absolute Warrandice, which was offered in Supplement of the Progress; In respect the same is only the Ground of a Personal Action, and may become ineffectual; if the Person, obliged to Warrant, should become insolvent. Actor Falconer. alteri Stewart, etc. Gibson Clerk. In praesentia.   

D. 357. Cornelius Neilson contra _____ 14. June 1676.  
COrnelius Neilson one of the present Bailies of Edinburgh, having had notice that a Privateer had a Ship taken by him lying at Stonehyve, fraughted with Dails and other Timber, Did bargain with him for a Parcel of Dails and Trees to the value of 200 lib. sterl; And the said person, with whom he had bargained, being found thereafter to be a Pirate, being execute and hanged at London as a Pirate; And the said Ship being found, with the Cargo of it, to be a free Ship belonging to His Majesty's Allies, and unjustly taken by a Pirate; Yet the said Cornelius had the Confidence to intent a Pursuit against the Owners and their Factor, to hear and see it Found and Declared, that he had utiliter, in respect of their Interest, made the said Bargain; seeing otherways the Pirate might and would have carried away the Ship and Cargo; or otherways, not having men in Company enough to navigate both his own and the said Ship, he might or would have burnt and destroyed the same; and the Owners ought to be liable to refound to him what he had given, for the said Parcel of Dails, and some Anchors and Cables: And in the dispute, the said Cornelius Procurators did not stand to hint and insinuate, that he was not without suspicion and jealousy, that the said Person was a Pirate the time that he transacted with him; and that the said Transaction was made upon a principle of Generosity (as they called it) and Humaanity, in behalf and for the Advantage of the Owners.  
It was Alleged for the Defenders, That the Ship and Goods being theirs, they have rei vindicatio of the same, and may claim and recover the Ship and Goods, where ever they are; and that Pirates are of all Theives the greatest; and res furtiva non potest usucapi, and is extra commercium: And by the Law, even when Persons are in bona side, and do buy stolen Goods, and could not probably know whether they were stolen, yet the Owners may claim the same, and will not be liable to refound the Price; but in this Case the Pursuer cannot in the least pretend, that he was in bona fide; seeing by the Law of all Nations, when Goods or Ships are taken via facti, by Privateers or others, they cannot break Bulk, or dispose upon Ship or Cargo, or any part thereof, and if they do, Law looks upon them as Pirates; and these who do buy, or get any of such Goods from them as Receptatores. And seeing the Pursuer doth acknowledge that he had suspicion that the seller was a Pirate, he was in pessima fide to have any dealing with him: And he cannot pretend he was negotiorum gestor, seeing negotiorum gestio is only in the case, where a Friend, in absence of the Party concerned, does him a good Office, eo animo, and upon no other account, but that his Friend should suffer no prejudice: and upon the matter negotiorum gestor, so circumstantiate, contrahit, or quasi contrahit with the Person cujus negotium gerit, which cannot be said in this case; seeing the Owners were altogether unknown to the Pursuer, not only as to their Person but as to their Nation: And the Pretences foresaid of Humanity and Generosity are not presumable, the Pursuer being a Merchant, and who is known to be under the Character of a person apt enough to take the Occasion of advantageous Bargains; and having bought the sa d Goods at an easy rate and great undervalue, and it being evident, that he did intent only his own interest, and not that of the Owners, in swa far as, he did not buy the hail Ship and Cargo per aversionem, but only the parcel foresaid; And it appears by a Commission produced, that he transacted so with the Pirate, that the Ship was consigned in the hands of the persons thereinmentioned, to the effect he might have also many Dails and Timber at the low rate he had agreed for, as would extend to the said Sum of 200 lib. starl. and the superplus should be counted for, not to the Owners, but to the Pirate: And when the Ship was brought ashore, he did not give notice to any Magistrates, that it should be seized upon to be forthcoming to these who should have Interest, there being ground of suspicion, that the said person was a Pirate: And as to the Pretence and Citations adduced, that etiam malae fidei possessores have necessarias impensas allowed to them; That is only in the case of Expenses upon ruinous Houses, which otherways would perish, being debursed by a Person that was in possession; and without which the House could not be preserved from ruin, and in other cases of the like nature: but not in the case of Thiefs, Pirates and Resetters, who cannot pretend to have Repetition of the Price paid by them; the same not being impensae but pretium.  
Tho some of the Lords were of Opinion, That there was no Foundation for the said Pursuit; and that there was rather Ground to Censure the Pursuer as a Receptator; that such practices should have no Encouragement: Yet others being of Opinion, that the Pursuer was favourable, having preserved the said parcel; and a benefit arising to the Owners by his Transaction; The Lords Recommended to the Parties to settle: Actores Cuninghame, Dalrymple, & Falconer, alteri Lockheart and McKenzie. In praesentia.   

D. 358. Doctor Frazer contra Hog. 16. June 1676.  
IN anno 1593. Contractu Permutationis seu Excambii (ut loquimur) celebrato inter Georgium Comitem Mariscallum & Menonem Hog de Blaridryn; Quia dictus Menon dederat & disposuerat dicto Comiti quasdam terras villae Piscatorum vulgo of the Fishertoun de Peterhead; Et villa de Peterhead erecta fuerat in Burgum Baroniae; adeo ut terris istis dicti Menonis commode Comes carere nequiret: Et quia dictus Menon habebat Jus ususfructus & Locationem ad longum tempus terrarum de Blairidryn, Ideo dictus Comes disposuerat dicto Menoni & suis haeredibus praedictas terras de Blairidryn; sed redimendas a dicto Comite & suis successoribus, solutione trium millium mercarum & locatione dictarum terrarum in Annos novemdecem post Redemptionem; pro mercede sedecem librarum singulis Annis pro dictis terris pendi solita; ut in Contractu asseritur: Et pro implemento dicti Contractus, Charta a dicto Comite & filio ejas concessa in anno 1617. dictus Menon investitus & ejus haeredes, dictas terras possederant, donec Dominus Alexander Frazer Archiatreus Regius, acquisito Jure Reversionis seu Retractus in dicto contractu & Investitura contento, Jacobo Hog nepote dicti Menonis praemonito (ut moris est) ut dictam summam reciperet, & praedictas terras revenderet, Actione declaratoria dictas terras vendicabat Jure Retractus, rite ut asserebat redemptas.  
Excipiebat Reus Retractum seu Pactum de retrovendendo apud nos stricti Juris esse & specifice implendum; eo autem pacto cantum te●ras dictas redimendas non solum solutione dictae summae, sed adjectum eas esse relocandas in tempus praedictum; Locationem autem seu Assedationem nec oblatam nec depositam.  
Replicabat Actor Pactum illud de Relocatione injustum & usurarium & illicitum esse; terras siquidem ejus esse valoris ut merces Relocationis tantum non imaginaria sit; Colonum enim pro iis pendere aut pendere posse quotannis sexcentas minas: Et si Reo non solum dicta summa 3000 minarum, sed etiam locatio adeo diuturna & pro mercede adeo exili danda foret; specie Locationis ipsam Proprietatem vel ejus Pretium consecuturum: Adhaec, Constitutione Jacobi 2 di. Parl. 6. cap. 19 Statutum esse, in Contractibus Hypothecariis, quibus terrae alienantur sub pacto de Retrovendendo, & Relocando post Redemptionem; Conditiones & Ass●dationes istas haud servandas, terris redemptis, nisi convenerit de justa mercede & pensione, saltem haud multum citra justam Firmam, ut loquimur.  
Resp●ndebat Reus multum interesse inter Contractus Mutui & alios puta V●na●ionis & Permutationis &c. Ubi enim pecunia foeneratur & creditu●, usurariae stipulationes illicitae sunt; & pacta alioquin licita reprobantur, ut pacta Legis Commissoriae; ea ratione, quod debitori obaerato & i●opi Creditor nihil non exprimet; ea autem ratio in aliis Contractibus cessat; & in hoc casu; nec enim in eo mutuum, & consequenter nec usura nec pactum usurarium nec Debitor inops, sed Contractus Permutationis inter Rei avum, virum haud locupletem & Comitem praepotentem, cui terras suas ut sibi si non necessarias, saltem commodas flagitanti, nedum leges inquiores dare: Constitutionem autem praedictam Jacobi 2di. in Contractibus pignoratitiis locum habere, ubi terrae Creditori impignorantur, ut ex verbis Constitutionis liquet (when Lands are Wadset.) In casu praedicto nec Creditum nec Pignus esse; avum suum nec pecuniam Comiti dedisse, nec repetere posse; cum dicto contractui Clausula Requisitionis (ut loquimur) non insit; nec Reus praedictam summam petere possit; nec Comes teneatur persolvere: avum suum permutasse terras suas cum terris de Blairidryn, ea lege & satis iniqua, ut Reo haud liceat terras avitas reluere; Cum penes Actorem extraneum & singularem successorem facultas sit redimendi, si ea uti velit conditioni parendum; terras tempore Permutationis incultas & forte steriles fuisse, in Regione saltuosa & montana; si sua & parentum industria excultae & meliores sunt, id in suum detrimentum haud retroquendum.  
Quaestio ista, Domino de Castlehill referente, in domum interiorem introducta; & inter Dominos disceptata; Cum de ea sententiis variatum, visa est altiorem indaginem requirere; &, coram ipsis, Partibus & Patronis vocatis, audienda. Actores Lockheart etc. alteri Cuninghame.   

D. 359. Mitchel contra Litlejohn. 20. June. 1676.  
MR. Litlejohn Tailȝiour, by Contract of Marriage with his first Wife Clerk, was obliged to provide whatsoever Lands, Money or other Movable Goods he should acquire during the Marriage, to himself and to the Heirs of the Marriage: And thereafter having Married a Second Wife _____ Mitchel, and having provided her to an Annualrent, he did grant a Right to her a little before his decease, when he was on Deathbed as was Alleged, whereby he declared, that, in consideration, that his Wife had been very dutiful, and it was not reasonable, that, if the Marriage should dissolve before Year and Day, she should want altogether the benefit of her Jointure; therefore he wills, that though he should decease before Year and Day, she should have a Right to the said Annualrent, as it is restricted by the said Write to less than she was provided to: And that the Contract of Marriage and Infeftment thereupon should be effectual pro tanto in the case foresaid; And is obliged to pay the said Annuity.  
This Deed being questioned upon these Grounds. 1. That he could not do any Deed in prejudice of his Heirs on Dead-bed. 2. That the Conquest being provided (as said is) to Heirs of his first Marriage, both as to Lands and Movables, he could not by the foresaid Deed, being a mere Donation, prejudge the Children of the first Marriage. Upon occasion of the said question, the Lords thought fit to consider, what the import of such Clauses of Conquest should be understood to be; the same being so frequent; And there being hinc inde Angustiae, and difficulties on both hands; seeing, upon the one, it may appear hard, that a Husband should be restricted by such Clauses too much; and on the other hand, that such Clauses should be ineffectual, and in the power of the Husband to evacuate them; seeing all obligements ought to be understood cum effectu & ut operentur: And in end it was Resolved, that the said Clause of Conquest, being conceived in the terms foresaid, in favours of the Heirs of the Marriage; the Husband doth not cease to be Fire, so that for Onerous Causes, he may dispose of whatsoever he acquires; and the Heirs of the Marriage will be liable to his Deeds and Obligements thereanent. 2. It was thought, That the Husband could do no Deed in fraudem of the said Clauses, and of purpose to frustrate the same. 3. Tho some of the Lords were of the Opinion, that the Husband could not dispose of the Conquest but for Onerous Causes, yet others thought, that he might dispose thereof, without fraud and for Rational Causes and Considerations; as in the case in question, upon the considerations abovementioned, in favours of a dutiful Wife; And it was so sound by the Major part; albeit others thought indeed, that the Husband, notwithstanding of the foresaid Clauses, might provide a second Wife and his Children by her, out of the Conquest dureing the first Marriage; if he had no other Estate, and the Provisions be competent; But that in the case in question, the Deed foresaid was a Donation, which the Children of the first Marriage, being Creditors by the said Clause of Conquest, might question.  
But the Lords Found, That if the said Deed was on Deathbed, the Defunct having not only granted an Heretable Right, but having obliged himself, his Heirs and Executors, to pay the said Sum, his Executry and Deads' part would be liable to the said Obligement; even as to Movables acquired dureing the first Marriage; which may appear not to be without difficulty; seeing, as to the Conquest, during the first Marriage, there could be no Deads-part; the same being provided to the Children of the first Marriage, as said is.  
Tho the Heir of the Marriage may renounce to be General Heir, and may take a course to establish the Conquest, either in his own, or in the person of an Assigney to his behoof; and so not be liable to the Defuncts Obligement, without an Onerous Cause. Yet it is to be considered, whether, if they should be served Heirs of the Marriage, they would be liable to the same; seeing all Heirs represent the Defunct suo ordine, and are eadem per●ona? Or if they be liable only to the Defuncts Deeds and Obligements for Onerous Causes?  
Item, If such Provisions be not in favours of the Heirs of the Marriage, but only of Bairns; Whether the Bairns will be liable to the Defuncts Debts? And if all the Bairns will be liable to the same as Heirs of Provision?  
It is thought, If Infeftment follow in favours of the Father and the Bairns of the Marriage, they must be Heirs of provision to him: and that all the Bairns (if it be not otherways provided) will be Heirs of Provision.  
But these Points did not fall under debate. Actores Cuningham, alteri Dal●ymple. Hamilton Clerk. In praesentia.   

D. 360. Galbraith contra Lesly. eod. die.  
THE Lords Found, That a Bond being granted by two Persons conjunctly and severally, being Merchants; and for the price of Merchant Ware: the same could not be questioned upon that pretence, that one of them was Minor the time of the granting the same; It being offered to be proven, that he was then, and is since a Trafficking Merchant. Monro Clerk. Sir David Falconer having reported the same, in Order to his Trial, when he was to be admitted a Lord of the Session.   

D. 361. Irving contra Irving. 22. June 1676.  
ALexander Irving of Lenturk raised Suspension and Reduction against John Ross in Strathmore, and Francis Irving Brother to Drum, of a Decreet of Spuilyie and wrongous Intromission; upon these Grounds, that the Witnesses had declared falsely; In swa far as, being adduced by the Pursuer before the Council, they had declared they knew nothing; and in the Process before the Lords, they declared fully and positively, as to all that was Libelled. And 2. They declared upon Quantities so exorbitant, that the same do amount to the twentieth Corn; Whereas in the Country, where the Corns grew, they have scarce the third Corne.  
The Lords Found, That the Decreet, being in foro, could not be questioned upon any Ground; and in special upon the Testimonies of the Witnesses as false; seeing there should be no end nor period of Pleas; and there being no Protestation for Reprobatores. Some of the Lords were of Opinion, that as a Decreet founded upon a false Write may be questioned, so when the same is founded upon false Testimonies, and the falsehood is evident, and may be qualified sine altiore indagine, the same may be likeways questioned: And the Remedy of a Reduction of Decreets in foro, being denied, only upon that pretence of Competent and Omitted, ought not to be denied in such cases; seeing the Ground foresaid, that the Testimonies were false, doth arise upon the Depositions of the Witnesses; and was neither known nor competent to the Defender, who is not allowed to see nor to question dicta testium: And a remedy, which in Law and Reason ought to be allowed, is not taken away, because it is not protested for by a Party, who for the time did not know that there were any Ground for the same. Newbyth Reporter. Gibson Clerk.   

D. 362. _____ contra Sheil. eod. die.  
A Comprysing being deduced at the Instance of an Assigney, against the Representative of the Debtor as lawfully charged; and the Compriser upon his Infeftment having intented a pursuit for Nails and Duties;  
It was Alleged, That the Cedent was debtor to the Defunct, so that the Debt due to the Defunct, did compense the Debt due by him; and the Ground of the Comprysing being satisfied, the Comprysing is extinguished: Which case being Reported to the Lords, they had these Points in debate, and consideration amongst themselves. viz. 1. That Compensation is only of personal Debts, and of Sums of Money, de liquido in liquidum; but is not receivable in the case of Real Rights and Lands, and Pursuits upon the same;  in such processes there is no Debt craved, but the pursuit is founded upon a Real Right: And some of the Lords being inclined to think, that the Alledgance is not founded upon Compensation, but upon Payment or the Equivalent, viz. That the Cedent habebat intus; and in effect, and upon the matter was satisfied, being Debtor in also much as was due to him by the Defunct: And the Lords are in use to favour Debtors, whose Lands are Comprised; and, in order to extinguish Comprisings, to sustain process for Compt and Reckoning; and declaring the same to be extinct, not only by Intromission but by Compensation: Others were of the Opinion, that though Compensation ipso jure minuit & tollit obligationem, where it is proponed; yet if the same be not proponed before the Decreet, whereupon the Comprysing proceeds; and when both Debts are in finibus of a personal Obligement; the Debt contained in the Comprysing cannot be said to have been paid before the Comprysing; and after the Comprysing is deduced, it cannot be extinguished but either by Intromission within the Years of the Legal, or by Redemption. 2. Whatever may be pretended as to the Cedent, that he could not be in bona fide to comprise for a Debt due to him, having also much in his hand as would satisfy the same, yet such pretences are not competent against the Third Person having bona fide comprysed; or having Jus quaesitum; As in the case of a Horning upon a Decreet, it could not be obtruded to the Donator, that the Debt was satisfied; The Obtainer of the Decreet being Debtor to the Defender: And if this should be sustained, expired comprisings and Infeftments thereupon, being now a most ordinary surety, may be easily subverted upon pretence, that the Cedent was Debtor, in Sums equivalent, to the person, against whom the Comprysing is deduced: And there is a great difference betwixt payment and satisfaction, either by actual payment of the Debt, or by Intromission with the mails and Duties of the Lands comprysed, which is obvious and easy to be known; and betwixt the pretence of satisfaction by Compensation; seeing payment is exceptio in rem, and extinguisheth Debts as to all effects; and Intromission is so notour, that the Buyer may and aught to take notice of the same; whereas Compensation is but quasi solutio, and it has never effect, until it be proponed.  
That point was also in consideration with the Lords, Whether Compensation can be proponed by any person, but such as has Right to the Debt? And as to this point, there were different Opinions, and some of the Lords were of the Judgement, that any person, having interest to defend against comprisings and pursuites upon the same, might allege they were satisfied in manner foresaid: But others were of the Opinion, that no person can pretend to compence, but he that could discharge the Debt, whereupon he would compence; and consequently must have Right to the same: And in the case in question, neither a confirmed Testament, containing the Debt due to the Defunct, nor any Right to the same was produced.  
The Act of Parliament, K. Ja. 6th. Parl. 12. Cap. 141. Being so positive, that Compensation is only de liquido in liquidum, before the giving of Decreets, and never after the giving thereof; Some of the Lords were of Opinion, that though the Defender had Right to the Debt due to the Defunct, Compensation could not be received: But some of the Lords having desired, that the advising of these points, being so considerable, should be delayed till to morrow, they were not decided. Thesaurer Depute Reporter. Gibson Clerk.   

D. 363. Lamingtoun contra Raploch. eod. die.  
A Suspension being craved, Upon that reason, that the Charger had been Curator, and ante redditas rationes could not charge him with any Debt; It was Answered, That the Complainer being to be Married, he desired the Charger, and some others to be his Curators, to the effect they might authorise him to Contract; and the Charger had never intrometted.  
Some of the Lords were of Opinion, That if it could be verified by the Complainers Oath, that the Charger had no Intromission; and that these that Intrometted were Responsal; In which case by the Civil Law, there is no actio tutelae, but against these who intrometted; the others who had not Intrometted being only Liable in subsidium, the said reason should not be sustained: But it being pretended, that, by our custom, all Tutors and Curators are Liable, whether they intromet or not without out distinction; and that Pupils may take themselves to any of them: Tho it was not made appear, that the said point was ever debated or decided, yet the Lords Ordained the Complainer to give in a Charge against the Curator, and the Compt to be discussed upon the Bill. Glendoich Reporter.   

D. 364. E. Dumfermling contra Callender. June 1676.  
BY Minute of Contract betwixt the deceased Earl of Callender, and Dam Margaret Hay Countess of Dumfermling, he was obliged to Infeft the said Lady in the Lands and Barony of Livingstoun in Liferent and Conjunctfee; and whatsoever other Lands and Sums of Money should be conquest during the Marriage: He is obliged likeways, to grant surety of the same, to her in Liferent, in the same manner as of the former Lands: And in case of no Issue of Children, the one half of the said Conquest to be disposed upon, as the Lady shall think fit: And the Earl of Dumfermling having intented a Pursuit as Assigney by his Father, who was Heir to the said Lady his Mother, for implement of the said Minute; for declaring what Lands, Sums of Money and others were conquest by the said Earl, dureing the foresaid Marriage; and for Infefting the Pursuer in the half of the said Conquest: It was Alleged, That the said Obligement and Clause of the Minute as to the Conquest, are conditional. viz. In case of no Issue of Children; and that the said condition did not exist. viz. There being an Child procreate of the said Marriage.  
The Lords upon Debate, in praesentia, and among themselves; did Find, that the said Condition did exist, In swa far as, though there were Children of the Marriage, yet there was no Children or Issue the time of the Dissolution of the Marriage, by the Decease of the Lady.  
Albeit It was urged, That these Conditions, si liberi non extiterint, vel non sint procreati; and that Condition, si non sint liberi superstites, were different in Law; and in the conception and import of the same: And in the first case, si non sint liberi, sine adjecto tempore decessus vel dissoluti Matrimonii, deficit ipso momento that there is a Child; And the Condition, being in the Terms foresaid, in case of no Issue, both in Law and in Propriety of Speech, cannot be otherways understood and Interpret: And in Claris non est locus conjecturae aut interpretationi, which is only, where words are Homonymous or Ambiguous: And where a Clause is, of itself, such as may be understood without addition; to make any, upon pretence of the intention of Parties, is not interpretari sed addere; & intentio in ment retenta nihil operatur: And that if there had been Children of the Marriage, who had Lived to that Age, that they had been Married, and had had Children, who had all died before the Dissolving of the Marriage, It could not be said, without absurdity, that there had been no Issue; And both in Law, and by our custom, when there is any Advantage given or provided by the Law, or by Contract, in favours of the Husband in case of Issue, It is ever understood si liberi sint procrea●i, though they do not survive; As in the case of a Courtesy of Scotland: And that Conditions ought to be taken strictly and according to the Letter; especially in this case, the Provision foresaid, that the Lady, in case of no Issue, should have either a Fee, or the half of the Conquest; or a Faculty to dispose of the same.  
It was farther Alleged, That the said Clause doth not import, that the Lady should have the Fee, or the half of the Conquest, but only a personal Faculty and Power to dispose of the half of the Conquest; which she had not used: And nevertheless it was Found by plurality, that the said Provision imported a Fee; In respect the said Minute was a short paper, drawn by my Lord Callender himself, who was altogether ignorant of the stile and conception of Writes; And, if it had been extended, as it was intended, it could not otherways be extended, but the Fee behoved to be provided to the Lady, as the half of the Conquest, And, that the half of the Conquest should be disposed of by the Lady, did import, that she should have a Fee and Dominium; the very nature and essence of Property consisting in potestate Disponendi.  
Some of the Lords were of Opinion, that the said Clause did import only a personal Faculty: Upon these Considerations. 1. That the Right of Dominium, being the highest Right and Interest can be given, it cannot be thought to be given, but when the words are such, as are not applicable to any other interest; whereas the said words do quadrate also well, if not more, to a Personal Faculty, than to an Heretable Fee. 2. The said Clause is conceived per verba maxime personalia, viz. That the half of the Conquest should be disposed by her; and if she should think fit, which are verba arbitrii & facultatis. 3. In dubiis minimum is to be understood & solitum; & ut evitetur absurdum; And Respect is to be had to the quality of the Person; And albeit mean Persons, in their Contracts of Marriage, do sometimes provide, that the Longest liver may have all, It is not usual nor can be instanced, that ever, in a Contract of Persons of quality, a Fee was provided to a Wife; It being the great design, of the Marriage of such Persons, to raise a Family to the Husband; and it being very ordinary, that a personal Faculty should be given to the Wife. 4. If the Contract had been extended, it might, and aught to have been extended in these Terms, That the Lady should Liferent the hail Conquest; and, in case of no Issue, she should have the Personal Faculty foresaid: And though the Conquest had been provided to the Husband and her, and the Longest liver of them two, and the Heirs of the Marriage, whilks faiȝieing the one half to his Heirs, and the other to hers; her Husband would have been Fire; and, in the case foresaid, her Heirs would have been Heirs of Provision to him, as to the half of the Conquest. Actores Sinclair, Bernie, etc. alteri Lockheart, etc.   

D. 365. Doctor Wallace contra Symson. June 1676.  
A Bill of Exchange being drawn by a Merchant in Edinburgh, upon his Correspondent at London, payable to a Merchant at Bristol; the person, to whom the said Bill was payable, was not in England for the time, but had gone to Ireland; but his Friend, having broken up the Letter direct to him, and having Found enclosed the said Bill of Exchange, did endorse the same to be paid to another person upon the place; who did accordingly present the said Bill to the Merchant, on whom it was drawn; who did accept the same conditionally, when it should be right endorsed: And thereafter, the person, to whom the said Bill was payable, having duly endorsed the same to be paid, as the Indorsation did bear; The Mercant, upon whom the said Bill was drawn, did in the interim break, before the Bill swa Indorsed was presented to him; There having interveened betwixt the date of the Bill, which was 2 d. January, and the Right Endorsement of the same, which was about the end of April, about 4. Months; So that the Question was, whether the Drawer of the said Bill should be Liable to Refound the Sum thereincontained?  
It was Alleged, That he could not be Liable, In respect the said Bill was not returned to him protested, either for not Acceptance or for not Payment: And albeit in Law, and by the custom of Merchants, the Drawer be Liable unless the Bill be paid; yet that is ever understood with a Proviso, that Diligence should be done, and Protests should be taken; unless the Person, upon whom the Bill had been drawn, had been evidently non solvent the time of drawing the said Bill; which could not be Alleged in this case, seeing the Defender had drawn upon the same person after the said Bill, to the value of 2000 lib. sterling, which had been Answered: And had likeways Answered Bills of his, of great value; whereas if the Bill in Question had been returned Protested, he would have retained the Provision he had in his Hand, or done Diligence, to recover the value of the said Bill; or might have countermanded the said Bill, and given an other Bill payable to a person that was upon the place.  
The Lords notwithstanding Found, That the Defender and Drawer of the said Bill should be Liable: But some of the Lords were of another Judgement: And the Defender Repined, and gave in a Bill, desiring to be Herd.   

D. 366. _____ contra _____ 4. July 676.  
IN a Suspension against an Assigney, upon a Reason of Compensation, viz. That the Suspender had Right to the equivalent Sum due by the Cedent, by an Assignation prior to the Assignation granted by the Cedent to the Charger.  
It was Answered, That the Assignation, granted to the Charger, was intimate, before the Intimation of the Assignation granted to the Suspender: Whereunto It was Replied, That ipso momento, that the Suspender got the Assignation foresaid, being thereby Creditor to the Cedent, he had a Ground of Compensation against the Cedent, and consequently against the Charger as Assigney: And an Assignation, without Intimation, is a sufficient Right, and Ground of Compensation; unless there were an other Assigney to the same Sum, competing upon that Ground, that he had a better Right by an Assignation intimate.  
The Lords notwithstanding did not allow Compensation, and Found the Letters orderly proceeded. Newbyth Reporter, Mr. Thomas Hay Clerk.   

D. 367. Buchanan contra Logie. eod. die.  
THE Lords Found, That a person out of the Country, being cited at the Mercat-Cross of Edinburgh, and Pear and Shoar of Leith, upon 60. Day's warning, to be holden as confessed; though he was not cited personally, and that the Decreet could not be questioned upon that Ground as Null: But if he were Living and desired to be reponed to his Oath, there might be Ground to Repone him. Newbyth Reporter. Mr. John Hay Clerk.   

D. 368. Lesly contra Fletcher. 5. July 1676.  
SIR John Fletcher being obliged, by Contract of Marriage, to provide Dam Marion Lesly his Wife of a second Marriage, to the Liferent of a Sum of 10000 lib. did thereafter Infeft her in the Lands of Gilchristoun, being of more value and of a greater Rent: Whereupon she having obtained a Decreet against the Tenants; The Lords Found her Right, being granted stante Matrimonio, and thereafter revoked, Null; In swa far as it exceeded the Provision in her Contract of Marriage: And sustained her Decreet only effeirand thereto; and ordained her to be Liable for the superplus, until the said Sum of 10000 lib. should be employed for her Liferent, conform to her Contract of Marriage. Forret Reporter. Mr. Thomas Hay Clerk.   

D. 369. Cheisly contra Edgar of Wadderly. eod. die.  
EDgar of Wadderly being Charged, upon an Indenture betwixt him and Samuel chiefly Chirurgeon, for payment of the Sum thereincontained, for his Brother's Prentice-fee, and Entertainment dureing his Prentice-ship: And having Suspended the said Bond, and intented a Reduction thereof upon Minority and Lesion; The Lords Found, That the Second Brother having no other Means nor Provision; his Eldest Brother, who was Heir to his Father, and had the Estate, aught to Entertain him, and to put him to a Calling: And did not sustain the Reason of Lesion. Forret Reporter. Gibson Clerk.   

D. 370. Pitrichie contra Geight. eod. die.  
SIR Richard Maitland of Pitrichie having obtained a Gift of Recognition of the Estate of Geight; There was thereafter a Minute, betwixt him and his Father, and the Laird of Geight; whereby it was agreed, that Pitrichie, who, and his Predecessors had an ancient Wadset of the Lands of Achincreive and others, being a part of the said Barony; should have the Reversion Discharged by Geight; and that Geight should give him a new Right of the said Wadset-Lands, irredeemable and holden of the King; and should pay to Pitrichie for the Charges in obtaining and declaring of the said Gift 4000 Marks: And that, on the other part, Pitrichie should Dispone to Geight the rest of the Estate, and the Right he had thereto by the said Recognition.  
Thereafter Pitrichie, having intented Declarator, for Nullity of the said Minute; upon pretence that Geight did refuse and fail to perform his part; did obtain a Decreet, and did enter into a Bargain with the Earl of Aboyn, and did dispone to him a considerable part of the said Estate; that by his Power and Interest in the Country, he might be maintained, and be able to enjoy the rest: But, before the granting of the said Right to Aboyn, Geight had intented a Reduction of the said Decreet of Nullity; upon that Reason, That the said Decreet was given, In respect he had not the Writes at that time in hand to produce; and to instruct, that he was able to give a Right of the said Wadset-lands to be holden of the King; and that they were now found upon search of the Registers; So that he had not been in mora; and the not production of the said Writes ought not to be imputed to him, but to the Confusion of the Times; his Writes being scattered, and his Father having been long time a Sufferer and Prisoner, for serving the King.  
The Lords Found, That the said Decreet, being in effect upon a Certification for not Production, and Geight condescending, and offering to instruct, that he had not been negligent, and the occasion and manner that the said Writes were not in his Hand; and how he had recovered the same; he ought to be reponed against the same: And that, by the Reduction, before the granting of the Right to Aboyn, it was res litigiosa, and Aboyn aught to be in no better case than Pitrichie.   

D. 371. _____ contra _____ eod. die.  
A Bond, granted by a Woman stante matrimonio, for payment of a Sum of Money, being ratified judicially; It was Found, That the Ratification did not bind her: being of a Deed null in Law, though it was judicial; being likeways stante matrimonio.   

D. 372. Blair of Kinfauns contra Mr. Thomas Fouler. 6. July. 1676.  
IN the Case betwixt Sir William Blair of Kinfaunes and Mr. Thomas Fouler, It was Found, That an Action, at the instance of the Executors of a Minister, for building a Manss, and refounding the Expenses of the same, is competent against the Heritors for the time and their Representatives; but not against a singular Successor: and that it is not Debitum fundi. Newbyth Reporter. Gibson Clerk.   

D. 373. Rynold contra Erskines. eod. die.  
THE Lords Found, That, a Father having assigned certain Bonds for provision of his Children, the Creditors have not only an Action of Reduction competent to them, but a personal Action to refound the Sums uplifted, upon the Bonds, if the Assignation should be found to be fraudulent: But did Reserve to the Defenders to debate, whether the same was fraudulent; The Defenders having Alleged, that the same were granted by their Father, having a plentiful Fortune for the time, so that he might lawfully provide his Children. Newbyth Reporter.   

D. 374. Crauford contra Gordon. eod. die.  
IN the Case, Alexander Crauford contra Sir Lodovick Gordon, The Lords thought the point in question. viz. Whether or not, a Backbond being granted by the Compryser, the time that he did receive an Assignation, whereupon he comprised; or by a person having gotten a Disposition, did affect the said Rights, not only as to the Granters of such Backbonds, and their Representatives, but likeways as to Singular Successors; And if the same should be Found to affect, if it did affect only while the said Right was personal, and before Infeftment, but not after?  
The Lords thought the said point, to be of that importance as to the Consequence and Interest of the People, that it was recommended, that they should have their thoughts thereupon, to the effect that the same may be decided with great consideration; And accordingly, this day, the case being fully debated among themselves, It was carried and found by plurality of Votes, That such Backbonds do affect, even as to a Singular Successor, though extra corpus Juris; And albeit they be granted after the receiving of such Rights; And that they affect comprisings, even after Infeftments has followed thereupon, during the Legal, but not after. Divers of the Lords did Argue and Vote against the said Decision, and in special, A. I. C. N. B. S. T, Upon these Grounds. 1. A Singular Successor does not succeed, in universum Jus as an Heir, but only in Jus Singular; And if the said Jus be simple and pure, without any quality in corpore Juris; any extrinsic quality or Deed may bind the Granter and his Heirs, but not the Singular Successor, who neither can, nor is obliged to know, and take notice of any quality that is not in the Right. 2. The quality of a Right is an Accident of the same, and Accidentis esse est inesse; So that, in Law, where the same is not in corpore Juris, it doth not affect the Right as to Singular Successors. 3. Upon the Considerations foresaid, Reversions, and Bonds for Granting Reversions, do not militate against a Singular Successor, unless they be in corpore Juris, or Registrate; And though there be an express Statute to that purpose, yet it doth not follow a contrario, where there is no Statute, Backbonds should affect; seeing the said Statute is made, conform to the Common Law, and is Declaratory as to Reversions; being then most in contemplation of the Parliament, but doth not derogate from the Common Law in other Cases. 4. Backbonds are upon the matter Reversions and do oblige only to make a Retrocession in favours of the Cedent; and cannot operate more, than if a formal Retrocession were made in favours of the Cedent; which could not prejudge a Singular Successor, unless it were intimate. 5. It would be an irreparable prejudice to the People, and to Singular Successors, who, finding a Right pure without any quality are in bona fide to think, that they may securely take a Right thereto; And yet should have no remedy, if, upon pretence of Backbonds, and Deeds altogether extrinsic, their Right may be questioned. 6. As to the pretence of the prejudice to the People, viz. That they are in use to grant Assignations, in order to the deduceing of comprisings thereupon; and may be frustrate, if the Back-bond should not affect the same, is of no weight;  they trust the Assigneys; And it is their own fault, if they Trust persons that do not deserve Trust; And they have a Remedy by intimateing the Backbonds, which, upon the matter are Translations; whereas a Singular Successor has none. 7. That such Backbonds should affect comprisings, not only before, but after Infeftment during the Legal; But thereafter should cease to qualify the same; It seems to be inconsistent with, and against the principles of Law. In praesentia.   

D. 375. _____ contra _____ eod. die.  
THE Lords Found, That a Bishop and Executors, had Right only to the Quots of such Testaments, as were confirmed in the Bishop's time, in his own Right, as Bishop for the time: And the said Quots, being in effect Sentence-Silver, dies cedit by the Confirmation; so that whosoever is Bishop then, has Right to the same.  
They Found likeways, That Quots being a part of the Bishop's Patrimony and Rent; The Quots, of all Testaments confirmed within the half Year, after the Bishop's decease, did fall under the Ann, and belong to the Bishop's Relict and Executors. Vide Carpzovium. lib. 1. Jurisp. Consistorialis de Salario defuncti Pastoris semestri.   

D. 376. Spence contra Scot 7. July. 1676.  
IN a pursuit for payment of a Sum of Money, It was Alleged, That the Pursuers Cedent was Tutor to the Defender, and had not made his Account: Which Defence the Lords sustained against the Assigney; But it was their meaning, that the Pursuer should not be delayed; and and that a competent time should be given to the Defender to pursue and discuss his Tutor. Glendoich Reporter. Mr. John Hay Clerk.   

D. 377. Johnstoun contra Rome. 8. July. 1676.  
IN a pursuit upon the passive Title of Successor Titulo Lucrativo; In swa far as the Defender had a Disposition from his Father, without an Onerous Cause: The Lords sustained the pursuit, albeit it was Alleged by the Defender, he had made no use of the said Disposition, and was content to renounce the same; which the Lords Found he could not do, being delivered to him. A Concluded Cause Advised. Mr. Thomas Hay Clerk.   

D. 378. Finlaw contra Little. 11. July 1676.  
A Legacy being left in these Terms, viz. That it should be paid out of the Testatrix her Household Plenishing, and Debts due upon Counts: The Lords Found, That albeit the said plenishing, and Debts should not extend to satisfy the said Legacy, that it was not a limited Legacy; but aught to be satisfied out of the other Executry; and that the said's words were only executiva, as to the order and way of Payment in the first place; and Interpretatio should be ut actus valeat; especially seeing the Legator was the Defuncts Relation: And it is to be presumed, that the foresaid qualification was only as to the way of payment; In respect the Defunct did look upon her Plenishing and Debts foresaid, as sufficient to pay the same; And did not declare that the said Legacy should be only paid out of the same, and in case it should be short, that she should have no more: And it appeared to the Lords, that the Executors had given up a very inconsiderable Inventar of the plenishing, and far short of what a person of the Defuncts condition and profession, being a great Innkeeper, behoved to have in order to her Calling. Actores Dalrymple etc. alteri Hog. in praesentia.   

D. 379. Bishop of Dumblain contra Kinloch of Gilmertoun. eod. die.  
IN Anno 1620. His Majesty's Grandfather did Annex the Deanery of the Chapel Royal to the Bishopric of Dumblain: And did mortify thereto an Annualrent of Ten Chalders of Victual out of the Lands of Markle and Traprane: By virtue of which Right the Bishops of Dumblane, have eversince possessed the said Annualrent, until 1638. that the Bishops were suppressed: And thereafter, Mr. Alexander Henderson, and Mr. Robert Blair being provided thereto, as his Majesty's Chaplains, did continue in the possession of the same, till the Bishops were Restored in 1661. and since the Bishop of Dumblane was in possession of the same: But Francis Kinloch now Heretor, though he had been in use of payment of 8. Chalders of Victual, as a part of the said Annuity, out of his Lands, since he acquired a Right to the same, being charged at the instance of the said Bishop, did Suspend upon that Reason, viz. That the said Annualrent was Wadset by the Earl of Bothwel in the Year 1587. to Mr. Thomas Craig for 7000 Marks: And John Murray Earl of Annandale having acquired the Right of the said Annualrent; and having resigned the same in savours of K. Ja. to the effect it might be Mortified, as said is; The King, by the said Mortification, could give no other Right, than what flowed from the said persons his Authors, which was redeemable, as said is; and de facto the said Right was Redeemed; In sua far as, the Right of Reversion of the said Annualrent having come in the person of the Duke of Lennox, Donator to the Forefaulture of the Earl of Bothwell, and from him to the Earl of Balcleugh, and from the late Earl of Balcleugh to Sir John Scot of Seatoun. Caetera desunt.   

D. 380. Jaffray contra Murray. 8. November 1676.  
A Party being pursued, upon the passive Titles; and in special upon that of Charged to enter Heir; and having offered to Renounce, It was Replied that he could not,  Res was not integra; In Respect he had granted a Bond, Of purpose, that thereupon the Estate might be Adjudged; The Lords Found, That albeit he had not granted the Bond upon the design foresaid, yet, the Estate being adjudged and encumbered by his Deed, he ought to be Liable to the Defuncts Creditors pro tanto, Or to purge. Gibson Clerk.  
It is Thought, That if the Appeirand Heir should dolose grant a Bond, that the Defuncts Estate might be thereupon adjudged, aught to be Liable in solidum: But if he grant a Bond which is a lawful Deed, and thereupon his Creditor adjudge, which he could not hinder; It is hard to sustain a passive Title against him; unless his creditor, having adjudged, were satisfied by that course; In which case, seeing the Defuncts creditors are prejudged, It is Reason he should be Liable pro tanto.   

D. 381. Stevart contra Hay. 9 November. 1676.  
Land's being bought after Interdiction: A Reduction of the said Interdiction was pursued at the instance of the Buyer, upon these Reasons. 1. That Interdictions, by the Common Law, are only of prodigi; And Interdictors are in effect given Curatores to them: And, by our custom, albeit Interdictions are granted sine causae Cognition, upon Bonds granted by persons interdicted, upon that consideration and narrative, that they are persons facile, and not fit to manage their Estate; whereupon the Judge presumes, that they are such; and upon a Bill gives warrant to publish the same; yet the Interdiction in question ought not to be sustained, seeing it is not the ordinary stile of other Interdictions; and the Bond of Interdiction bears no narrative of Facility; but only that the Granter, for the standing of his Family, being very Ancient, did oblige himself not to Dispone his Estate without consent of the Persons thereinmentioned, and Letters of Publication were not raised thereupon, but Inhibition was only used.  
2. That Interdictions are a Remedy, for securing weak persons, and ought not to be a snare to others: And the Law favours, and helps these that are decepti, and not decipientes: And that the Pursuer was in effect circumveened, in swa far as, the said Interdiction was not Registrate till the Pursuer was in Terms of Bargaining; and they had searched the Registers, and had not found any such Interdiction; and the only Interdictor on Life, was Witness to the Bargain, and got a part of the price; and the rest of the price was paid to Creditors anterior to the Interdiction; And the Pursuer, relying upon the Ingenuity of the Disponer, though he might have secured himself by taking a Right to the said Debts, did extinguish the same, by taking Discharges and Renounciatons.  
The Lords being divided in their Opinions, The case was not decided this day. _____ Hay Clerk. In praesentia.   

D. 382. Inter eosdem. 10. November. 1676.  
THE Lords sustained the Interdiction abovementioned, the Defenders offering to prove, that the Person Interdicted was not rei suae providus: And Found, That the person interdicted was thereby in the condition of Minors; And that he and his Heirs could not question any Disposition or other Deed done by him, upon the naked head of Interdiction, unless they allege and qualify Lesion: And that the Pursuer of the Reduction may prove that the Bargain was profitably made, and that the price was in rem versum: And the Lords declared, they would not be nice as to Probation; but Reserved the consideration of it to themselves.  
It was further Replied, That the Interdiction is Null, being Execute by a person that was not a Messenger, being deprived; which was Repelled, In respect of the Answer, that it was offered to be proven, that notwithstanding of the Sentence of Deprivation, he was holden and tentus & reputatus to be a Messenger: Notwithstanding it was Triplyed, that the Pursuer, in Fortification of the Sentence of Deprivation, and his own Deposition; offered to prove, that it was the common Opinion of the Country, that the Executor was not a Messenger, then being deprived: Which was thought hard by some of the Lords; being of the Opinion, that at lest habitus and tentus & opinio ought to have been allowed to both Parties to prove; Reserving to the Lords, to Consider the Probation, and to Judge, according to that which should be Found most pregnant.   

D. 383. Paterson contra Johnstoun. eod. die.  
IT was desired by a Bill, That a party, against whom Witnesses had been used, and who had declared, might be allowed to qualify the inability of the Witnesses; and that a Term should be Assigned to that purpose: Whereupon it was Agitate among the Lords, If a Reprobator should be sustained by way of exception, whereupon there would be a new Litiscontestation: And it was urged by some of the Lords, that if the inability of the Witnesses should be qualified upon the ordinary Grounds, whereupon the Witnesses themselves are interrogate, viz. That they are not worth the King's unlaw, and such like; That Reprobator ought not to be sustained; Especially the Party being heard, to object against the Witnesses: And yet the Lords sustained Reprobator, by way of exception, and without Limitation; In respect, the Oath of the Witnesses concerning their own Hability is only an Oath of Calumny; and notwithstanding thereof, a Reprobator may be pursued, by way of Action: And the Objections, against the Witnesses, may come to the Parties knowledge, after they have declared: And as there may be Two Litiscontestations, if an exception of Falsehood, or any other, should arise upon the Production of the Writes; there is eadem ratio as to the Witnesses; seeing the Objections against them could not be proponed before Litiscontestation: And, if they be Relevant, they ought to be proven; And it is the interest of both Parties, that the Reprobator should be received by way of exception; ne lights protelentur: But the Lords Ordained a Condescendance, to be given in, in Writ, of the Grounds of the Reprobator; and to be given to the other party, that he might be heard to debate, upon the Relevancy of the same. Gibson Clerk.   

D. 384. Inglis contra Boswell. 14. Novem. 1676.  
A Father having granted Bonds of provision, in favours of his Children being in familia; and having thereafter contracted Debt; It was Found, That the Creditors, though posterior, are preferable to the Children: And tho, in other cases, It is presumed That Bonds or Writes, being in the hands of these to whom the same are granted, were delivered ab initio; yet, in the case of Children, the Presumption lies against them, that they are still in the hands of their Parents, so that they are masters of the same: And eo ipso, that thereafter they contract Debt, they revock the said Provisions, In swa far as they may prejudge their Creditors; unless it be offered to be proven, that they were delivered, and were the children's Evidents, the time of the contracting the said posterior Debt. Newtoun Reporter. Mr. John Hay Clerk.   

D. 385. Davidson contra Wauchop. 16. Novem. 1676.  
JOHN Wauchop, one of the Macers before the Lords, having taken a Right, by Translation, to a Bond of 700 Marks, alleged granted by the deceased James Davidson Jailor in the Canongate to _____ Horseburgh: And a Reduction and Improbation being intented of the said Bond; The Lords did decern in the Improbation; and Found the said Bond to be false and forged; and remitted _____ Dumbar Forger to the Justice: Albeit the Writer and Witnesses, and the Debtor and Creditor being all deceased, there were no means left for improving the said Bond directly: Which the Lords did, In respect of the indirect Articles aftermentioned, and the concurrence, in great number and pregnancy, of the presumptions and evidences of falsehood, arising intrinsically upon the inspection of the Writ, and the compareing of Papers and otherways, viz. 1. That the Debtor Davidson was a person most Responsal; and the Creditor Horseburgh indigent; So that, the Bond being of date 1644. It could not be thought, that if it had been a true Bond, the Creditor, or his Relict, would, or could have wanted payment so long; nothing being done to recover payment until after 1669. That the said Bond, being Assigned to _____ Laurie, was transferred in favours of John Wauchop, after all the means of Improbation had failed by the decease of Writer and Witnesses. 2. The said _____ Laurie and John Wauchop being examined upon Oath, It appears by their Declaration, that the Assignation of the said Bond in favours of _____ Laurie was never delivered to him, but was still retained by _____ Dumbar, who had Married the Relict of the said Horseburgh; and pretended that the said Assignation was made by Horseburgh, in favours of his Wife, but left Blank; And that Lawries Name was filled up to the use, and in behalf of the said Dumbar and his Relict, for security of a small Debt due to the said Laurie. 3. That John Wauchop did give to Dumbar, for a Translation from Laurie, only 300 Marks, and did promise, in case he should recover the said Debt, to pay 200 Marks more; of which, 100 Marks was to be paid to the said Laurie; And it cannot be thought, that Dumbar would have given away so considerable a Sum, the Bond and Annualrent of the said Sum extending to 100 lib. sterl. for 300 Marks presently, and 200 Marks upon the condition foresaid. 4. It appeared by the Bond and Assignation, that they were written with one Hand, and the Witnesses Subscriptions appeared to be all written with one Hand. 5. The Writer and Witnesses are obscure Persons, and not known; and the designation of them is so general, that they could not be well found; being designed Writers and Indwellers in Edinburgh, and no otherways. 6. It appeared, by comparing other Papers written by Dumbar, both as to the Character, and the Spelling; that the said Papers, being written by Dumbar, are the same Writ, that the Bond and Assignation is of. 7. It appeared by some Papers subscribed by Davidson, produced by Wauchop to astruct and approve, that his Subscription to the said Papers is not like that of the Bond.  
Divers Papers were produced, being alleged to be Forged by Dumbar; being Bonds granted by persons who were Dead; and whereof the Writer and Witness were likeways Dead; which did labour of the same Grounds of Suspicion and falsehood: And albeit they were not declared to be false, yet being questioned and a warrant being given by the Lords to apprehend Dumbar, he had escaped, and was Fugitive: And the said Dumbar is looked upon, and is pessimae famae as a Falsary and a Forger.  
The Lords were evil satisfied, That their Macer should have taken a Right to, and used such a Writ; But as yet have not Censured him. In praesentia.   

D. 386. Paterson contra McKenzie. 22. Novem. 1676.  
THE Defender, in the Improbation of an Assignation, transferred in in his favours, being urged to abide by the same; and having offered to abide by the same, as given to him for an Onerous Cause; and as true for any thing he knew: It was Answered, That Certification ought to be granted, unless the Defender would abide by the same positively, as a true Deed: , otherways, false Writes might be conveyed through many Hands, and the using of the same might escape impune; notwithstanding of the Act of Parliament, against the users of false Writes; if they should be allowed to qualify their abideing by the same, in manner foresaid; which is contrar, to the very Notion of abiding by; which imports a positive asserting the truth of the same. Upon which Debate the Lords Considered the great inconvenients on either hand, if a Right may be taken to false Writes and used impune; whereas before any person take Right to the same, they ought to inform themselves concerning the same, and the Condition and Quality of their Cedents. And on the other part, if commerce should be obstructed so far as a Right should not be taken without hazard to Papers, having no intrinsic nullity or defect, that of falsehood being altogether extrinsic, and which cannot be known.  
The Lords, in respect the Cedent, who had made the Translation of the Writ quarrelled, was Living, Ordained him to abide by the same simply: And suffered the person, who has now Right thereto, to abide at the same with the foresaid quality; But reserved to themselves, at the advising of the Cause, to consider what the said qualification may import in behalf of the User. Actor. Mckenzie and others, alteri Falconer. Haystoun Clerk. In praesentia.   

D. 387. Weir contra E. Brainford. 24. November 1676.  
HIS Majesty and the Parliament having rescinded the Forefaulture of the late Earl of Brainford, who had been Forefaulted the time of the Troubles for his Loyalty; did so qualify the Act of Rescission and Restitution, that albeit he had Daughters, who by the Law would have been Heirs of Line; yet the Estate was settled by the Parliament, upon his Grandchild, Son to the Lord Forrester, who had Married one of the Daughters.  
Mr. William Weir, having Right by Assignation to a Debt of 5000 Marks. due by the Earl of Brainford to Patrick Ker, one of the grandchildren of the said Earl; and a Decreet being obtained for the said Debt, against Edward Ruthven the Lord Forester's Son, as having succeeded in the said Estate, and being bonorum possessor, and having Right as said is, to said Estate, aught to be Liable passive to the Burden.  
The Lords, by the said Decreet, Declared, that the Estate should be Liable; and thereupon Adjudication having followed against the said Edward, of a part of the Estate, and Infeftment upon the same; the said Edward did intent Reduction of the said Adjudication upon that Reason, That the said Decreet against Edward Ruthven, whereupon it proceeded, was Extracted wrongously, and not conform to the Minute's and Interloquitor; which were in these Terms, that the Estate should be Liable to the Debt; but not that the said Edward should be discerned to pay; as the Decreet bears: And that there could be no Adjudication against the said Edward, who was not Heir to the said Earl: but there ought to have been a Decreet and Adjudication, against his Heirs of Line, being charged to enter Heir.  
Upon Debate among the Lords, some were of the Opinion, and did Represent, that there could be no Adjudication against the Heirs of Line, nor Decereet Cognitionis causa; seeing they could not be charged to enter Heir in special to that Estate, which, by the Act of Parliament did not belong to them; but was settled upon the said Edward, as said is; And that the said Decreet against Edward was Disconform to the Lords Interloquitor;  it was not intended, by the said Decreet, that the said Edward or any other Estate of his should be Liable to the said Debt; It being expressly declared in the said Decreet, that he should be free of personal Execution: And the said Decreet was, but in effect, a Decreet Cognitionis causa: And therefore behoved to bear the Decerniture foresaid, that he should be discerned to make payment, which was only dicis causa, to the effect Execution might follow by Adjudication: And, by the Summons, whereupon the Decreet proceeded, it was only craved, that the Estate should be affected; And, by the Adjudication, Bramfords Estate was only affected, and the Adjudger was content to declare, that he should affect no other Estate.  
Yet some of the Lords were of the Opinion, That the Decreet not being in these Terms, that the Lords discerned Cognitionis causa, to the effect Execution might follow against Bramfords' Estate; It was in Arbitrio Judicis, to sustain the Decreet to be a Ground of Adjudication or not: And that Mr. William Weir, having been accessary to the Appeals, at the instance of Calendar from the Lords of Session, deserved no favour: And it was carried by plurality, that the Adjudication should be reduced. Newtoun Reporter. Mr. John Hay Clerk.   

D. 388. Sheill Minister of Prestounkirk contra His Parishioners. 28. November 1676.  
THE Lords Found, That Viccarage Teinds are ruled by Custom, and Local as to the Quota and Kind's, and manner of payment of such Teinds as are truly Viccarage: So far, that in a pursuit for Viccarage Teinds; The Defenders Alleging, that some of them had been in use of paying only some certain Kind's by the space of 20. Years; The Lord Found the said Alledgance Relevant, to free them of other Kind's; Albeit they d d Reply, that the Pursuer was in possession of the Kind's in question within the Parish; some others of the Parish, having been in use to pay the same: And that Viccarage is nomen universitatis, ut Baronia, and possession of a part interrupts Prescription; and is, in Law, Possession of the whole. Newtoun Reporter.   

D. 389. John Ker contra Jean Ker. eod. die.  
IN a pursuit at the instance of a Donator: It was Alleged, That the Debt pursued for, was Heretable quoad fiscum: And it being Replied, That the Pursuer had Right thereto as Executor Creditor: The Lords Found Process upon that Title though supervenient; The Testament being confirmed after the intenting of the Cause.  
In the same Cause, It was Found, That a Testament being confirmed, the nearest of Kin ipso momento has Jus quaesitum to that part of the Goods which belong to them, and do transmit the same to their Executors, and these who represent them; though the Testament was not Execute, before the decease of the nearest of Kin: And that the said Interest and Action, being in effect a Legitima, and competent to them by the Law and Act of Parliament, is settled in their person and doth transmit; though the same be not recovered in their own time.   

D. 390. Scot contra Toish. eod. die.  
AN Assignation, being made in Holland, according to the custom there, by way of Instrument, under the Hand of a Notar, a Tabellion having retained the Warrant in his Hands, Signed by the Parties, was sustained, in respect of the custom and consuetudo loci. Justice-Clerk Reporter.   

D. 391. Drumellier contra E. Tweeddale. 30. Novem. 1676.  
IT was objected against a Witness, That he was Testis Domesticus, being Servant to the Defender; at least having been his Servant the time of the Citation: Whereunto It was Answered, That he was not presently his Servant; and though he was his Servant the time of the Citation, he might now be a habile Witness: The Reason, why Servants cannot be Witnesses in behalf of their Masters, ceasing in this Case, viz. That their Masters might have influence upon them; and that they may declare in their Favours, out of fear, to be put out of their Service: And as to the pretence, that it is presumed, that the Defender put the Witness out of his Service, of purpose, that he might used as a Witness; the same doth amount only to praesumptio hominis, which cedit veritati; And animus and design not being probable, but by the Oath of the Party, the Defender and the Witness were free to declare, that he was not removed out of the Defenders Service upon the design foresaid; And it was more strongly to be presumed, that neither the Defender, being a Person of Quality, nor the Witness would perjure themselves.  
It was farther urged, That the witness was to be used upon a paper that had been produced after the intention of the Cause, and for improving the Date of the same; And that he was removed out of the Defenders Service  the production of the said paper; So that he could not have that prospect and design to use him as a witness, and that he was removed upon the account foresaid.  
The Lords, before Answer, Ordained, that the Time of the production of the said paper might be tried. Redford Reporter. Gibson Clerk.   

D. 392. Grierson contra The Laird of Lagg. 1. December. 1676.  
A Superior, having obtained the Gift of his own Ward, did pursue his Subvassal at the instance of a Donator, in Trust and to his behoof for mails and Duties, dureing the Ward: And the Defender having Alleged, That the Pursuit was to the behoof of the Superior himself; and that he or his Predecessor had Disponed to the Defender his Lands with absolute warrandice.  
The Lords Found, That the Gift of Ward, being given to the Vassal, did accresce to the Subvassal, paying his proportion of the Composition: Albeit it was urged, that as the King might have given the said Gift to another, he might have given it to the Vassal himself; and he could not be in a worse case than another Donator: And that the Subvassal knowing the nature of the Right, that the Superior held Lands ward; was Liable to all Casualties arising ex natura rei, to what Donator soever the same be given.  
It was controverted amongst the Lords, What should be the Ground of the Decision in point of Law: And some were of the Opinion, that it was upon that Ground, that Jus superveniens accrescit; the Lands being disponed to the Subvassal ut optima maxima: But it was the Opinion of others, That Jus superveniens accrescit, when it is either of the Property, or of any Servitude, or of Casualties that had fallen before the Right granted to the Vassal; but not of Casualties arising thereafter ex natura rei: And therefore they thought, that the Right should be found to accresce to the Vassal, upon that Ground, that the Relation betwixt a Superior, and his Vassal, and the mutual obligation & fides betwixt them, is such and so exuberant, that the Superior should not take advantage of a Casuality fallen upon account of his own person, and by his Minority: And that a Right of Ward, granted to the Vassal himself, or to any other to his behoof, is upon the matter a Discharge of the Casuality, both as to himself, and as to the Subvassal, that is concerned in consequence. Newtoun Reporter. Haystoun Clerk.   

D. 393. Home contra Scot eod die.  
IN a Process for Nails and Duties; It was Alleged, That one of the Defenders was in possession by the space of 7. Years, by virtue of a Tack, and had the benefit of a possessory Judgement: And it being Replied, That he ought to say, that he had a Tack from a person having Right: And neverthess, The Lords Found, That is was sufficient to Allege, that he had a Tack, and by virtue thereof in so long possession.  
This Decision seemed, to some of the Lords, to be hard; in respect a Tennent is not properly in possession, but detinet to the behoof the Setter; So that he could be in no better case than his Master, who, notwithstanding of his possession, either in his own person, or in the person of his Tennent, cannot plead the benefit of a Possessory Judgement; unless he had, or should allege upon, some Right; And if the Master were called as de facto he was in the said process, It were inconsistent, that his Tennent should have the benefit of a Possessory Judgement and not himself. In praesentia.   

D. 394. Rutherford contra Weddel. 5. December. 1676.  
THE Lords, In a Suspension at the instance of a Bankrupt, who was Prisoner; did allow him to come out without the habit; Because It was represented, that the Debt was for the most part not contracted by himself, but by his Father: Albeit some of the Lords were of the Opinion, that the Act of Sederunt bearing no distinction, and being made upon good consideration, and conform to the practice of all other Nations; That Bankrupts should be known by a habit to be persons, that deserved no Trust; and that others may be affrighted from contracting or under-going Debts, which they are not able to pay: And that the pretence foresaid was frivolous, it not being presumable, that a person would be Heir and become Liable to Debts, that he had not Contracted, unless there were Effects and sufficiency of Estate, to pay the same: And if such pretences should be allowed; the Law would be altogether elusory. Gosford Reporter. Mr. Thomas Hay Clerk.   

D. 395. The Town of Glasgow contra Greenock. 7. December 1676.  
THE Town of Glasgow, having intented a Declarator against the Laird of Greenock, containing these Conclusions, viz. That it should not be lawful to Greenock, or his Burgh of Barony, to import any Goods from Abroad; which, by the late Regulation, and Act of Parliament concerning the privileges of burgh's Royal, being the 5. Act of the 3d. Session of his Majesty's Second Parliament, belongeth to the Royal burgh's; and are to be imported by them privative; and in special Wine, Brandy; and Salt. 2. That if they should be found to contraveen the said Act of Parliament, that the unfree Goods deprehended should not only be Escheat; but their whole Goods; conform to former Laws and Acts of Parliament against unfree Men.  
It was Alleged for the Defenders; That, at least, they ought to be in the same case as Strangers, and Unfree-men of Foreign Nations; who may import without limitation, making Offer to the Royal burgh's; and if they do not buy the same from them, being obliged to Sell them in whole sale, and at the price to be limited and appointed by the Burgh where Offer is made; and that the burgh's of Barony had been in use of importing as Strangers, the same being qualified as said is; And the said Custom was not contrary to Law, but conform to divers Acts of Parliament, and in special the 100 Act of K. Ja. 5th. his _____ Parliament, bearing, that if any Freeman, or other Scots-man dwelling within this Realm, should bring home Wines, Salt, or Timber; That the Magistrates of burgh's, where the same is entered, should set a price upon the same; which imports that Unfree-men may import the same.  
The Lords Found, That by the said late Act of Parliament; The matter of Trade is so regulated; That as the burgh's of Barony their privileges to import Goods and Commodities, that they could not import before, are settled upon them; and on the other part, Royal burgh's are secured from the encroachment of burgh's of Barony; So that they cannot import, but the particulars allowed to them by the said Act: Therefore that, upon no pretence, the burgh's of Barony and Unfree-Men can import any other Goods; and that they are not to have the Liberty that Strangers have;  Strangers are allowed the Liberty of Trade and Commerce, being qualified as said is: And if the same were denied, there would be no Trade betwixt our Merchants and them: Whereas the Liberty of Trade, and to import Foreign Commodities, is only lodged and settled upon Royal Burrows, upon good Considerations; and intuitu of the same they are Liable to a 6th. part of Taxations, and other public Burdens. 2. It was Found, That, albeit in the late Act of Parliament, there be not mention of Salt as one of the Commodities allowed to the Royal Burrows, and contained in the specification, that the same does only belong to the Royal Burrows;  they are founded as to all Commodities, not expressly allowed by the said Act to burgh's of Barony and Regality in Jure: And the burgh's of Barony are excluded, by the said Act, as to all others except these allowed to them expressly by the said Act; and come under that general, viz. Such as are necessary for Tillage or Building, or for the use of their Manufacture.  
And whereas it was pretended by the Defenders, that Salt is necessary for the curing of their Fishes. The Lords Found, That Manufacture, intended by the Acts of Parliament, is only to be understood of Works erected by Companies or others for making of Cloth, or such like; about which many poor People are Employed and Entertained: And though there be skill in cureing Herring, they are not a Manufacture, but a Native Commodity, without any alteration of the form, and only qualified by the cureing of the same: And that, upon that pretence, the Defenders ought not to be allowed to import Salt: But was Recommended to some of the Lords, being also upon the Council, to move that a course might be taken for Regulateing the price of Salt; that it be not Arbitrary to the Royal Burrowes, to sell the same at such Rates, as the burgh's of Barony cannot, without prejudice, buy the same; So that they may be forced to desist from making or exporting Herring.  
The Lords Found, That the said Act having defined the pain to be the Escheat of the Goods deprehended; And not the Escheat of the Contraveeners whole Goods: And that as to Goods not deprehended, the pain ought not to be greater: And that these who import unlawful Goods, contrare to the Act, though they be not deprehended, may be pursued for the value of the same, and no farther.  
Some of the Lords were of another Opinion, as to this Point, and thought, that seeing the late Act of Parliament, doth mention only the case of unlawful Goods deprehended; and doth regulate the former Practice, as to the attaching and affecting of the same; and it is inconsistent, that both the Goods deprehended should be escheat, and likeways the Contraveeners other Goods should be escheat; That therefore the former Laws are still in vigour. Actor Lockheart, etc. alteri Cuningham. In praesentia.   

D. 396. Marshal contra Holmes. 12 December 1676.  
AN Advocation being produced, after the Judge had discerned, but before he had cleared and dictate the minute of the Decreet; which he did upon the Bench, immediately after production of the Advocation.  
The Lords Found the Decreet Null, as being spreto mandato: But, in respect of the Circumstances, and that the Judge had discerned before, as said is, they turned it in a Lybel. Thesaurer-deput Reporter. Gibson Clerk.   

D. 397. Durham contra Durham. eod. die.  
SIR Alexander Durham having upon Deathbed, given Bond to the Lord Clermount, for 20000. marks; and at the same time, having ordained his Nevoy Mr. Francis Durham his appearand Heir, to pay to Adolphus, natural Son to the said Sir Alexander, 6000. marks; The said Mr. Francis did, after the Defuncts decease, grant Bond relative to the foresaid Bond, and to the order for Adolphus his Provision; whereby he ratified the foresaid Bond, and was obliged to pay the said Provision to Adolphus, upon this condition, that the Countess of Midleton should Warrant and Relieve the Estate of Largo, from all Inconvenients, and in special, such as might arise from his Uncle's Intromission, with public Accounts; and if the Estate should not be free, in manner foresaid, that the said Bond should be void.  
The said Adolphus having pursued upon the foresaid Bond, It was Alleged, That it was Conditional, as said is; And the Defender did condescend, that the Estate was distressed for a Debt of 20000 Marks, for which a Decreet was recovered against his Heir.  
The Lords Found notwithstanding, That the said Resolutive Condition was to be understood so, that the Bond should not be void altogether; but only proportionally effeirand to the distress. Newton Reporter. Mr. Thomas Hay Clerk.  
This Decision, though it may appear equitable, appears to be hard in strictness of Law; the precise Terms of the Condition being considered.   

D. 398. College of Glasgow contra Parishioners of Jedburgh. eod. die.  
THE Lords Found, That a Presentation of an actual Minister before the Term, was not a complete Right to the Stipend; unless there had been a Warrant for his Transportation. Thesaurer-deput Reporter, Gibson Clerk.   

D. 399. Inglis contra Inglis. 13. December 1676.  
MR. Cornelius Inglis, having granted a Bond to Mr. John Inglis, for a Sum due to himself, and for his Relief of Cautionries' for the said Mr. Cornelius; whereby he was obliged, for his Surety, to infeft him in certain Lands to be possessed by him, in case of not payment of the Annualrent due to himself, and the reporting Discharges from the Creditors to whom he was engaged: and whereupon the said Mr. John was infeft by a base Infeftment.  
The said Mr. Cornelius, in respect his Son Mr. Patrick had undertaken to pay his Debts, did dispone to him his Lands; whereupon the said Mr. Patrick was infeft by a Public Infeftment.  
The said Lands being thereafter Comprised from the said Mr. Patrick; and there being a Competition betwixt the said Mr. John Inglis, and divers other Creditors of the said Mr. Cornelius and his Son Mr. Patrick, who had comprised the said Lands from the said Mr. Patrick: The Lords Found, That Mr. John Inglis was preferable to the said other Creditors; In respect, though their Infeftments upon their Comprisings were public and the said Mr. John his Infeftment was holden of the granter, yet the said Mr. John's Right was public as to Mr. Patrick, in swa far as, the said Mr. Patrick had corroborate the same; and, before the said Comprisings, had made payment to the said Mr. John, of certain bygone Annualrents, in contemplation of his said Right; and had taken a Discharge from him, relating to the same; so that his Right, being Public as to Mr. Patrick, was public as to those who had Right from him; and Infeftments holden of the Granter, being valid Rights by the Common Law; and by Act of Parliament and Statute, invalid only as to others, who had gotten public Infeftments, in respect of the presumption of Fraud and Simulation; the said Presumption cedit veritati, and in this case is taken away in manner foresaid.  
The Lords Found, That notwithstanding that the Right was granted to Mr. Patrick, upon the Consideration foresaid, and for payment of the Debts thereinmentioned, that the Creditors mentioned in the same, had not a real Interest in the said Lands, but only a personal Action against the said Mr. Patrick; in respect the said Right was not granted to him for their use and behoof; neither was it expressly burdened with their Debts: and therefore the Lords did Find, That all the Creditors, both of the said Mr. Cornelius and Mr. Patrick, who had Comprised within Year and Day, should come in pari passu.   

D. 400. Margaret Nevoy contra the Lord Balmerinoch. eod. die.  
THE Lord Balmerinoch was pursued, as Representing and Behaving as Heir to the Lord Couper, at the Instance of Margaret Nevoy, and divers other Creditors of the said Lord Couper; upon that Ground, that he had ratified a Disposition, made by the said Lord Couper, in favours of his Lady on Deathbed; and was obliged to comprise the said's Lands, and to give the said Lady a Right to the Comprysing, to be deduced, that should be preferable to other Creditors; And that by the Act of Sederunt in my Lord Nithsdales' Case, appearand Heirs, granting Bonds to the effect their Predecessors Estate may be established in their Person or in the Person of some Confident to their behoof, are liable as Behaving: and It was Alleged for the Defender, that Behaving is magis animi quam facti, and it is evident that the Defender did shun to be Heir; and did of purpose take the Course foresaid, that he should not represent the defunct.  
The Lords Found, That the Condescendence was only relevant in these Terms, viz. That the Defender, or any Confident to his behoof, had comprised the said Estate for Balmerinoch's own Debt; and had possessed by virtue of the Comprysing: Or that the Lord Balmerinoch had communicate the Right of the said Comprysing to the Lady Couper; and that she had possessed by virtue thereof; and could not defend herself with her own Right as being in Lecto, Or otherways defective.  
It was the Opinion of some of the Lords, That it was sufficient and Relevant to say, that Balmerinoch had Comprysed for his own Debt; and was obliged to Communicate the said Comprysing; and had ratified the Lady Couper's Right: For these Reasons. 1. The Law considers quod agitur, and not quoth simulate concipitur; And the Lord Balmerinoch, by taking the course foresaid to comprise for his own Debt, intends upon the matter adire, and to carry away his Uncle's Estate, to frustrate Creditors. 2. Tho it be pretended, that there is a difference betwixt Nithsdal's Case and this, In respect in that case, the Adjudication was upon Bonds granted by himself, after his Father's decease; And, in this, the Comprysing is for my Lord Balmerinoch's Debts, Contracted before my Lord Couper's Death; The said difference is not considerable, seeing as to that case, there was a design to carry away the Defuncts Estate, by a Deed of the Appearand Heir, to the prejudice of Creditors; and there is the same in this. 3. Tho my Lord Balmerinoch had granted only a Ratification, without Communicating any Right; eo ipso he behaved as Heir; In respect he had ratified the Ladies Right, for any Right or Interest he had himself; and he had an Interest, as Appearand Heir, sufficient to establish a Right in the Person of the said Lady, and to prejudge Creditors; so that they could not question the same;  Rights on Deathbed, being consented to by the Appearand Heir when they are made, or ex post facto, become valid and unquestionable ex capite Lecti, as appears by the Law of the Majesty, concerning Rights on Deathbed.   

D. 401. Earl of Argyle contra The Lord Mcdonald. 14. December 1676.  
THE Earl of Argyle, having pursued the Lord Mcdonald, for Reduction of a Feu holden of the Pursuer ob non solutum Canonem; It was Alleged, That the Defender had a disposition of the Superiority from Lochzeal before my Lord Argyl's Right, by a Disposition likeways from him: And though my Lord Argyle, having completed his Right before the Pursuer by an Infeftment upon the same, will have Right to the Feu-duties after his Infeftment; yet the Defender had Right to the bygones by the foresaid Disposition made to him; which, being of the Lands and Superiority and made to the Vassal himself, was, upon the matter, an Assignation to the Feu-duties and a Discharge: And farther, That as to the Feu-duties after my Lord Argyl's Right, he was in bona fide, not to pay the same, having the foresaid Disposition as said is: And my Lord Argyle having done nothing upon his Right to make Interruption; And therefore the Summons ought not to be sustained upon Cessation and not payment, before Intimation of the Pursuers Right to the Defender: Both which Alledgances the Lords Found Relevant.  
In the same Case, The Lord Mcdonald having proponed an Alledgance, viz. That my Lord Argyle was obliged by Bond to warrant Lochzeal at the Hands of the Defender; and of any pursuit competent upon the said Disposition made to the Defender, & quem de evictione tenet Actio, agentem repellit Exceptio; And the same being Found Relevant, the Defender giving his Oath of Calumny thereupon; The Lords, In respect the Defender being in Town had refused, at least had not come to give his Oath of Calumny, had discerned: But the Lord Mcdonald having intented Reduction of that Decreet, upon offer to give his Oath of Calumny; upon pretence, that it was towards the end of the Session, when his Oath of Calumny was craved; and that upon some occasions, he had been forced to go home, It was Alleged for the Earl of Argyle, that upon Mcdonalds Refusal to give his Oath of Calumny, it was, in construction of Law, a Calumnious Alledgance, and could not now be received; And the greatest favour could be shown to him, was, that he should be heard to verify the same instanter. The Lords did decern, superseding Extracting, until a day in January; that, in the mean time, the Defender might verify the said Alledgance; having taken his Oath of Calumny, that the Writ was not in his own Hand. Actores Lockheart and Bernie. alteri Cuninghame and Thoirs. In praesentia.   

D. 402. Litlejohn contra Mitchel. eod. die.  
THE Lords Found, That Bonds granted on Deathbed, albeit they are Legacies, as to that effect, that they do affect only the Deads' part, yet they are preferable to other Legacies left in the ordinary ways of Legacies; and that the Defunct was in legitima potestate as to the affecting of his part, and granting of Bonds to that effect. Justice Clerk Reporter. Gibson Clerk.   

D. 403. _____ contra _____ eod. die.  
THO in Improbations the user of Writes, questioned as false, aught to compear to abide by the same; yet a Commission was granted to take the Defenders Declaration that he did abide by, In respect he was a person of great Age.   

D. 404. Wallace contra Murray. eod. die.  
THERE being a pursuit, at the instance of a Creditor against the Representatives of an Intrometter with the Debtors Goods, The Lords Found, That the Passive Title of Intrometter could not be sustained, after the Intrometters decease, to make him Liable as universal Intrometter: And yet sustained the same in quantum he was locupletatus; the Pursuer for the Defenders farther surety, confirming before the Extracting of the Sentence, a Testament as Executor Creditor to his Debtor. Thesaurer Depute Reporter. Gibson Clerk.   

D. 405. Grant of Rosollis contra L. Bamff. 19 Decem. 1676.  
THE Lord Bamff, having acquired the Lands of Craigstoun from John Lion, did give three Bonds to the said John Lion Blank in the Creditors Name, containing each of them 5000 Marks; And, at the desire of the said John, did give a Letter with the said Bonds with a Blank direction, bearing that the said John Lion, having Disponed to him the Lands of Craigstoun, for which he had become Debtor by certain Blank Bonds containing 5000 Marks; And therefore desiring that no person might scruple to take the said Bonds; For it should be no dissatisfaction to him, that they took them without acquainting him; but that it should be holden, as if they had received the Bonds in the beginning, and had their Names filled up therein at that time.  
The said John Lion did fill up the Name of John Grant of Rosollis in the said Bonds; and delivered the said Letter to him, putting a direction upon the same, for the said John Grant: Whereupon the Lord Bamff being charged did Suspend, upon that reason, that he ought to have Retention, because the said Bonds were granted for the price of the said Lands and in contemplation of a valid surety, free of all Incumberances; and the surety not being valid, In respect the Lands were affected with Hornings, Inhibitions, and comprisings, equivalent to the Sums contained in the Bonds; he had in Law Condiction, as being ob causam non secutam.  
There was also compearance for the Donator of the said John Lions Escheat, who did produce his Gift and Decreet of general Declarator; and Alleged, that he ought to be preferred, because he had Right to the Sums due by the said Blank-bonds; In respect the Chargers Name was filled up in cursu Rebellionis: And the said Blanks, being ab initio the Rebels, while they were Blank, they fell under his Escheat; and he could not fill up, or deliver the same, in prejudice of the Fisk.  
The Lords Found, That the pretence foresaid of Condictio causa data, though competent against the said John Lion himself, if the Bonds had been filled up in his own Name, would not be competent against the Charger, if his Name had been filled up ab initio; Because if the Suspender had been content to give Bond to him, It would have been delegatio, in which case the Exceptions competent against delegantem would not have been competent against the Person, in whose favours the Delegation was made: And that the Charger was upon the matter in the same case, seeing the Suspender by his Letter was content, that the Bonds should be holden, as if they had been filled up ab initio.  
The Lords also Found, That the said Bonds being Blank, though they continued Blank, were the said John Lions proper Bonds; and if he had deceased before the filling up of the same, they would have fallen under his Executry; and consequently, he being Rebel and his Escheat gifted and declared, they fell under his Escheat: And His Majesty, and the Donator could not be prejudged by any Deed of the Rebel, in filling up of the same.  
It was also Found, That albeit the Lord Bamff, by his Letter, was bound up, that he could not question the said Bonds upon the pretence foresaid of Condictio, or any other that might have been competent against the said John Lion; Yet, notwithstanding of the said Letter, the King might have given, and he might accept either a Gift of Lion's Escheat, or a Right from the Donator, and thereupon might claim Right to the said Sums. Thesaurer Depute Reporter. Mr. John Hay Clerk.   

D. 406. Tennent, Young, and others, contra Sandy Procurator-Fiscal of the Regality of Ogilface. eod. die.  
IN a Declarator of a Liferent-Escheat; It was Alleged, That there could be no Escheat upon the Horning libeled; Because it was upon Letters direct by the Secret Council, upon a Decreet of a Regality Court; And by the Acts of Parliament, The Lords of Session are only warranted, to direct Letters of Horning summarily, upon the Decreets of Sheriffs, and Bailies of Regality, and other Inferior Judges.  
The Lords Thought, That the Council could not direct Letters of Horning upon the said Decreet; , before the Acts of Parliament, Letters of Horning could not be direct upon the Decreets of Inferior Judges summarily, without a Decreet Conform before the Lords of Session; And Statutes being Stricti Juris, the Council could not direct Letters, unless by the same Statute they had been warranted to that effect; and it appears, that the said Statute was founded upon good Reason and Considerations, though they be not expressed, viz. That the Lords of Session are always sitting in the time of Session; and in vacance, there is some of their Number appointed to receive and pass Bills of Suspension, if there be cause; whereas the Council sitteth but once a Week ordinarily in Session-time; and in Vacance but thrice. 2. The Lords do not pass Suspensions but upon good Reasons, and they are to consider the said Decreets, which is not proper for the Council. 3. As Suspensions are raised of the said Decreets, so oft times there is a necessity of raising Reductions; and the Lords of Council are not competent Judges to the Reduction of the said Decreets: But the Lords thought not fit, that there should be a question betwixt them and the Council, concerning their Privilege; and therefore did forbear to give answer, until some accommodation should be endeavoured: And it was proposed by some, that the Decreet of the Regality Court, being for keeping of Conventicles; and that practice, concerning so much the Peace of the Country, that all Disturbance thereby might be prevented; and upon that account, it being recommended to the Council, by Act of Parliament, that they should see the Laws against Conventicles put effectually in execution; The Council, as they might conveen the Contraveeners before themselves, may commissionate the Inferior Courts to proceed as their Delegates; and upon their Decreets given by them as their Delegates, that they may direct Letters of Horning. Thesaurer-depute Reporter.   

D. 407. Ker contra Hunter. 20 December 1676.  
A Personal Action was sustained, upon a Right of Annualrent, against the Tenants during their Possession, for the Nails and Duties effeirand to the said Annualrent. Thesaurer-depute Reporter. Mr. Thomas Hay Clerk.   

D. 408. Carnegie of Balmachie contra Durham of Anachie. eod. die.  
THE Lords Found, That albeit by the common Law, Annualrent be due for Tocher; yet, by Our Custom, it is not payable, unless it be so provided by the Bond or Contract for the same: but in the case in question, They Found the Defender liable to pay Annualrent, in respect the Debtor had been in use of payment, at the least, had promised to pay Annualrent for certain years bygone: and Annualrent once paid, implies a  Paction to continue the payment of the same. Thesaurer-depute Reporter. _____ Clerk.   

D. 409. Veitch contra Pallat. eod. die.  
THE Lords Found, That a Rebel, contracting Debt after Rebellion, cannot assign in satisfaction of the same, any debt due to him: and though the Assigney should transact with the Debtor of the Debt assigned, before a Gift and Declarator; the Donator will be preferable. Lockheart and Hog for Veitch, alteri Cuningham and Seaton. Gibson Clerk. In praesentia.   

D. 410. Inter eosdem. eod. die.  
AND in the same Case, It was Found, That a Bond granted after Horning, though it did bear that the same was for Wines; yet being the Rebel's assertion, could not prejudge the King: but it being alleged, and offered to be proven, that the said Wines were truly furnished before the Rebellion: The Lords Found the Alledgance relevant to be proven, only by the Rebels Compt Books, and by Books of Entry; and not simply by Witnesses, without such Adminicles in Write.   

D. 411.  contra Veitch. eod. die.  
THE Lords likeways Found, That the Presumption introduced by the Act of Parliament, that Gifts of Escheat are simulate, in respect that the Rebel is suffered to possess; is only in that case, where the Rebel has a Visible and Considerable Estate of Lands or Tacks, and is in possession of the same: but when the Rebel's Estate is either not considerable, consisting only of an Aiker or two, (which was the case in question) or in nominibus, and not known to the Donator, so that the Donator had reason not to trouble himself, and to look after either that which was inconsiderable, or which was not known to him; there is no ground to presume that the Gift is simulate.   

D. 412. Tait contra Walker. 22. December 1676.  
THE Children of a second Marriage, having pursued the Son of the first, for Implement of their Mother's Contract of Marriage, and the Provisions therein contained in their favours: It was Alleged, That they were Debtors themselves, in swa far as, they were Executors named and confirmed to their Father: And It being Replied, That the Testament was given up by the Mother, they being Infants for the time, and she was not their Tutrix, and so could not bind them.  
The Lords Found, That there was Difficulty in the case, in respect the Pursuers were now past 40 years, and they had never questioned or desired to be reponed against the said Confirmation: And on the other part, It was hard, that a Deed of their Mother, having no Authority to do the same as Tutor or Curator should bind them; and there was no necessity to be reponed against the same, it not being their Deed, and being ipso Jure void: and therefore before Answer, the Lords thought sit to try, if the Pursuers had meddled with any part of the Executry, or had done any Deed that could import Homologation of the said Testament. Newbyth Reporter.   

D. 413. _____ contra _____ eod. die.  
IT was questioned amongst the Lords, whether an Inhibition could be sustained, albeit the Execution did not bear a Copy to have been affixed at the Mercat-cross; And it was Resolved as to the future, it should be declared, that Executions of Inhibitions should be null, unless Copies were affixed; In respect there can be no Executions without giving of Copies, either personally, or at their dwelling house: And when the lieges are inhibit at the Mercat-cross in general, so that a Copy cannot be given to every person, it ought to be left at the Mercat-cross in subsidium: But, because it was informed, that many Executions did not bear Copies to be left at the Mercat-cross, The Lords did forbear to give Answer as to the Inhibition in question, until the stile and custom should be tried.   

D. 414. Dick of Grange contra Sir Andrew Dick. 22. December. 1676.  
SIR Andrew Dick having obtained, upon a Petition to His Majesty, a Warrant to the Exchequer, to pay to his Wife and Children 130 lib. sterl. Yearly: The said Annuity being Arrested at the instance of _____ Dick of Grange; It was Alleged, in a Process to make forthcoming, that, being Alimentary, it could not be Arrested: Whereunto it was Replied, that the said Sum was not Alimentary, so that it could not be affected with Sir Andrew his Debts; In respect, whatsomever belongeth to a Debtor, either on his own Right or Jure Mariti is Liable to his Debts; and it is not in the Power of a Debtor to make any thing belong unto him Alimentary, but there must be an express constitution to that effect; which is only in that case, where the King or any other person doth give any thing, and doth qualify their own Gift with that express provision, that it should be only for the Aliment of the person gratified, that it should not be affected with any Debt or Execution for the same; whereas His Majesties Grant was only in the Terms foresaid, and was procured from His Majesty, not upon any special consideration or respect to Sir Andrew's Lady, but upon a Representation made by Sir Andrew, that he had a former Wadset from the Earl of Mortoun of his Estate in Orknay, and the same being taken from him by a Reduction at the instance of His Majesty of the Earl of Mortoun's Right of Orkney; he and his Family would be in a sad condition: And therefore the said Annuity being granted by His Majesty in lieu and intuitu of the said former Right, surrogatum sapit naturam surrogati.  
It was farther Replied, That albeit the said Annuity were Alimentary, the Pursuers Debt ought to affect the same, being likeways Alimentary, In respect it was for Money furnished for the Aliment and Entertainment of the said Sir Andrew and his Lady, & privilegiatus non utitur privilegio contra privilegiatum.  
The Lords Found, That the said Annuity was Alimentary and could not be Arrested, and the Aliment being the die in diem, the Debt due to the Pursuer could not affect the same, unless it had been for Aliment, while the Annuity in question was in cursu. Forret Reporter. Mr. Thomas Hay Clerk.   

D. 415. E. Argyle contra The Laird of M●naughtoun. 3. January 1677.  
IN a pursuit at the instance of the Earl of Argyle, against the Laird of M●nauchtoun, who held some Lands of him Ward, for the single avail of his Marriage; It was Alleged for the Defender. 1. That the Defender had Married the time of the Usurpation, at which time the Casualties of Ward and Marriage were taken away by an Act and Proclamation of the Usurpers, whereby the Defender was secured and was in bona fide to Marry without requireing the Superiors Consent. 2. De facto the Superior had consented to his Marriage, In swa far as the Defender having given notice to him by a Letter, the Marquis of Argyle being then at London, that he was to Marry with a Gentlewoman, who is now his Wife, the Marquis did return a Letter (which was produced) showing that he could not but approve his matching with the said Gentlewoman being the Laird of Ardkindles Daughter; and if they should proceed to the Marriage, that he wished them well.  
Whereunto, It was Replied, That the Usurpers by their Act could not prejudge the Pursuer, or any other Superior, but that they might claim the Obventions and Casualties, that did fall unto them, by the nature of their Vassals Right; as it was found in the case of Sir George Kina●rd and the Master of Grace, that Lands holden in Ward being Disponed in the time of the Usurpation, without the Superiors consent, did recognise notwithstanding of the said Act: And as to the said Consent, It was Replied, that the said Letter was but a Civil Compliment, without any mention of the Marquis his Interest as Superior, and without an express Licence to Marry, and Discharging any Interest, or pretence that he had to the Defenders Marriage.  
Upon Debate at the Bar and among the Lords, Some were of the Opinion, that there being no Contempt that could be alleged of the Superior; and the Vassal having so much reason to think, that he needed not his Consent, In respect the said Act was a Law de facto, and for the time; the whole Country being forced to submit to the Usurpers, and to acquiesce to their Orders; That Communis error facit Jus, and quaevis causa excusat as to Casualties arising upon feudal Delinquency or Contempt: And the Superiors Interest, that was intended of the Law, was not that he should have a Sum of Money, but that his Vassal should not Marry without his Consent, and match with Families either disaffected, or in which the Superior could not have confidence; and the avail of Marriage is penal in case the Vassal should either Marry without the Superiors consent, or should refuse to Marry a person proffered by the Superior to be his Wife.  
Upon the foresaid Considerations, they were of Opinion, that the Defence was relevant; and that there was a great difference betwixt the case of Recognition and Marriage, in regard the reason of the Decision in the case foresaid, was, that the Vassal did upon the matter contemn the Superior, after the King's Restitution, seeing he did not apply for a Confirmation; Whereas the Vassal, being once married, it were to no purpose to desire the Superiors Consent.  
On the other part, some of the Lords argued, that the single Avail is not penal, but only the double; seeing the Vassal, attaining to the age of marriage, if he should die unmaryed, yet the single avail would be due: Whereunto It was Answered, That poena is in Law, when a Person is liable to pay a Sum, either for doing or not doing a Deed; and as the Vassal is liable to the double Avail, for refuseing the Person offered by the Superior, so he is liable to the single for not marrying, and though matrimonia are libera, so that a Person may marry or not as he pleases, yet causative many things are allowed, which cannot be directly: And it being the design of the Feudal Law, and Superiors, in giving out their Lands, to have still Vassals to serve them and their Family, the appearand Heir is obliged by the nature of his Holding to marry, or in poenam to pay the avail: and if the Vassal should desire his Superior to offer him a Person that he might marry, or to consent that he should marry, such a Person as he thought fit for him; and the Superior should refuse both, it were hard, that notwithstanding the Vassal should be liable to pay the Avail of his marriage.  
The Lords nevertheless Found, That the single Avail of Marriage is not penal. Actores Lockheart and Hamilton, alteri Cuningham. Mr. John Hay Clerk. In praesentia. Vide infra 23. January 1677. inter eosdem.   

D. 416. Mitchelson contra Mitchelson. 4. January. 1677.  
A Younger Brother, being served, before the Bailies of Kirkcaldie, Heir of Line to the immediate elder Brother: Thereafter the eldest Brother did desire to be served Heir of Conquest to the same Person; and the Bailies not being clear to proceed, in respect of the former Service, unless it had been reduced: The Lords Thought, That, upon their Refusal, the Elder Brother may Advocate for Iniquity; and that the Brieves may be served before the Macers: and that the Eldest Brother being wronged by the foresaid Service, to which he was not called, so that it was res inter alios acta, he ought not to be prejudged thereby, nor put to the trouble and Charges of a Reduction. Gibson Clerk.   

D. 417. Earl of Glencairn contra Brisbains. 5. January 1677.  
FRancis Freeland of that Ilk, having disponed to John Mcknair and Robert Hamilton irredeemably: and they thereafter having disponed the same, with consent of the said Francis, to John Brisbain: And the said John having granted a Reversion to the said Francis his Heirs of his own Body allanerly; for payment of the Sum of 8000 marks, and what farther Sums should be debursed for improving the Lands, building or repairing the Houses, with Annualrent frae the Debursements, upon the said John Freeland his own Declaration; and that after the first Term after the said Francis his decease: The Earl of Glencairn, Creditor to the said Francis Freeland, alleging that the said Reversion was granted by Fraud and Contryvance, and in prejudice of him and Lawful Creditors; and that the said Reversion was granted in manner foresaid, not in favours of his Debtor but his Heirs for eludeing their Execution; Pursued a Reduction of the said Disposition made in favours of Hamilton and Mcnaire; and a Declarator that Brisbaines Right should fall in consequence; and that it should be lawful to him to comprise the said Reversion, and to use an Order as if it had been granted to the said Francis Freeland himself.  
The Lords Thought, That if the Price were not adequate (which was to be tried) the Conclusions foresaid should be sustained. Thesaurer-depute Reporter. Gibson Clerk.   

D. 418. Creditors of Mouswel contra The Lady and Children. 6. January. 1677.  
JAmes Douglas of Mouswel, by Contract of Marriage, betwixt his Eldest Son James Douglas, and _____ Lawrie, did dispone to his Son the Fee of his Estate, reserving his own Liferent; and with a Provision, to be contained in the Infeftment, That it should be lawful to him to take on and burden the Estate with the Sum of 18000 marks, for the Provision of his other Children, and for doing his other Affairs: And accordingly the said James did provide, to eight Children, 9000. marks out of the said Estate, by a Bond granted within a year after the said Marriage, and Infeftment thereupon.  
Both the Father and the Son the Fire being deceased; and the Son having left only one Son of the Marriage an Infant; there followed a Contract betwixt Agnes Rome Grandmother to the Child, and Janet Lawrie the Mother, and certain Friends of the Family, whereby it was agreed, that the Grandmother should quite 200 marks of her Liferent yearly, and the Mother 400 marks of her Liferent; and that the Grandmother should Confirm her Husband's Testament for payment of his Debts; and for the superplus of the Debt, the Friends should undertake the same; and upon payment, having taken Right thereto, should superseded personal Execution, until the Child were major; the Annualrents being in the mean time paid by the Grandmother, as Tutrix to her Grandchild. The Grandchild having deceased, while he was yet Infant; both the Creditors and the Friends, and the Relict, did take a course to affect the Estate by comprisings; and upon their Infeftments and Rights, having pursued the Tenants, so that they were forced to raise a multiple Poinding; It was Alleged for the Creditors, That the Grandmother her Liferent aught to be restricted, conform to the said Contract, whereby she had discharged the said 200. marks yearly: Whereunto It being Answered, That res devenerat in alium casum; and that the said Restriction was in favours of her Grandchild, and for the standing of the Family, and in contemplation of the Undertaking, and Obligement foresaid of the Friends, which they had not done, and cessante causa cessat effectus: and, the Estate being altogether ruined, she ought to be in her own place.  
And albeit it was thereto Replied by the Creditors, That, whatever might be pretended to be the impulsive Cause, yet the said Restriction being once granted doth continue, notwithstanding of the pretence foresaid; seeing there is no resolutive Clause or Provision, that the Case  falling out, the Grandmother should be in her own place; but on the contrare it appears by the Contract, that the Death of the Child was then under her consideration, In respect, it is provided expressly, that if the Child should die the Restriction of the Mother's Life-rent should cease, and she should be in her own place; and so, the Provision foresaid being only in favours of the Mother, and not of the Grandmother, Exceptio firmat Regulam in non exceptis: It being considered likeways, there was not the same reason for the Grandmother, In respect by the decease of the Child, the Mother's Interest in the Estate did altogether cease, whereas the Heir, who did succeed to the Child, was the Grandmothers own Son: And as to the pretence, that the Friends had not fulfilled their part of the Contract, It was Answered, that the Contract being in effect in favours of the Family, both the Relict and the Creditors were thereby obliged, and might yet be urged to fulfil their obligements: And though they should both fail, the Family could not be prejudged; and that the Friends, accordingly as they were obliged, they had taken course with the Debts: and though it was pretended that they had not done it debito tempore, the said pretence was of no moment, seeing no time is limited by the Contract.  
Nevertheless the Lords Reponed the Relict against the said Restriction.  
In the same Cause, There being a Competition betwixt some of the Creditors, whose Debts were Contracted by the Grandfather Agnes Rom's Husband before his Sons Contract of Marriage; and betwixt the Children, who were Infeft, as said is, upon the Bond of Provision, granted by their Father, conform to the faculty foresaid.  
It was Alleged for the Creditors, That they ought to be preferred, In respect, that upon Bonds of Corroboration granted by the Son the Fire, they had Comprysed and were Infeft by public Infeftments; at least had charged the Superior; So that their Right being public, and for a true Debt anterior to the children's Provision, they were preferable to the Children, their Infeftment being base.  
The Lords Found, That the Children should be preferred, In respect the comprisings were against the Son; and the Comprysers could be in no better Case than the Son himself, whose Right was affected with the said faculty in favours of the Children: So that neither he, nor any having Right from him, could question the Right granted by virtue of, and conform to the said Faculty.  
This Decision, being by plurality, seemed hard to some of the Lords; who did consider, that the foresaid Faculty was not only in behalf of the Children, but of supervenient Creditors, if the Father had thereafter Contracted any Debt, and if the Father had given surety to the said Supervenient Creditors by base Infeftments, and if his Anterior Creditors before the said Contract had comprysed and had been Infeft, they would have been preferred to the said posterior Creditors having only base Rights, and multo magis to the Children.  
They considered also, That the Estate being, by the said Contract, Disponed simply to the Son, with a Reservation only of the Father's Liferent and the said Faculty; and the Son not being obliged to pay the Father's Debts by the said Contract, if there had been 18000 Marks of Debt anterior to the Contract, Anterior Creditors might have pursued the Son for the same, not only because he was Appearand Heir and Successor Titulo Lucrativo, but because he was obliged by the Contract, at least his Estate burdened for the said Sum; And the Anterior Creditors might either have taken that course, or might have Comprysed the Interest competent to the Father by the said Faculty: And seeing the Son might have been forced in manner foresaid to satisfy the said Creditors, he might have granted Bonds of Corroboration, whereupon they might have Comprysed; and having comprysed, and having gotten public Rights, they are preferable to the base Right of the Children.  
In the same Cause, The Creditors did allege, that they ought to be preferred to the Children, because their Provision was after their Debt, and was without an Onerous Cause; And nevertheless the Lords Found the Defence for the Children Relevant, viz. That their Father, the time of the granting of the said Bon●, for their Provision, had a sufficient Estate, besides, out of which the Creditors might have been satisfied.  
This Decision, being also by the Major part, seemed hard to others, who thought that a Debtor could do no Deed in prejudice of his Creditors, without an Onerous Cause: And though the Father might be looked upon, the time of the granting of Provisions to Children as in a good condition, and therefore the Creditors to be secure and needed not do Diligence, yet if thereafter he should become insolvent, the loss ought to be upon the Children, and not the Creditors: And that it being a principle, That a Debtor can do nothing in prejudice of his Creditor, without an Onerous Cause, It is certainly both Fraud and prejudice, that he should not pay his Debt, but should give away, to his Children, that part of his Estate which the Creditors might have affected: And Inhibitions being only in these terms, That the Party Inhibite should do no Deed in defraud of the Creditor; It might be pretended, by the same Reason in Reductions ex capite Inhibitionis, that the Party Inhibite did nothing in defraud or prejudice of the Pursuer, In respect, the time of the granting the Bond or Right craved to be reduced, he had Effects and sufficiency of Estate beside. Lockheart etc. for Queensberry and other Creditors. Cuninghame, Anderson and Mckenzie for the Children and Relict. Gibson Clerk. In praesentia.   

D. 419. Stewart of Castlemilk contra Sir John Whitefoord. 10. January 1677.  
SIR Archibald Stewart of Castlemilk, having pursued a Reduction of a Disposition of the Lands of Coats, made by James Stewart of Minto, in favours of Sir John Whitefoord; ex capite metus: In swa far as, the said Sir John Whitefoord had taken the said James and kept him in privato carcere for some time; and thereafter, having a Caption against him, had detained him Prisoner: and had caused transport and convey him in that condition, from divers places in the night Season; and by his Servants had threatened him with long Imprisonment; and in end had prevailed with him to dispone to him the said's Lands, being eight Chalders Victual of Rent, and where there was a Coal of 100 lib. sterl. of Rent; upon an Obligement only to pay him an yearly Annuity of 400. marks: In which process, the said Sir John, and Duke Hamilton, who had thereafter acquired the said Lands from the said Sir John, did compear, and propone the Defences following. 1. That the foresaid Qualifications of Force were not Relevant to import metus, qui potest cadere in Constantem virum, being neither mortis nor Cruciatus; nor so circumstantiate, as is required of the Law, for founding the said Action. And 2 That albeit metus were relevantly qualified, the foresaid Deed cannot be questioned upon pretence of the same, unless the said James Stewart had been lesed or damnified by the same;  it appears by the Title, quod metus causa, etc. A Reduction and Restitution upon that head is not competent, ubi non est damnum, & nihil abest; as is clear by divers Texts, in the case of a Creditor useing force to get what is unquestionably due to him; and in this case the said James had no prejudice, in respect he was obliged by an antecedent Minute to dispon the said Lands: so that the said Disposition was but for implement of the said Minute, which the said Sir John did give back to be canceled by Minto, when he got the said Disposition. And 3. It was offered to be proven, that, after the said James was at liberty, the said Disposition was granted by him.  
The Lords Found, That the Libel and Qualifications of metus and Force were relevant; and yet, in respect the Defenders were so positive as to their Alledgance, that the Disponer was at liberty when he granted the said Right; they allowed a conjunct Probation concerning the said Qualifications of Force, and the condition the Disponer was in for the time, and the way of granting the said Right; whether he was under Restraint and the Impression of Fear, or in Freedom? Or whether the samen was granted by him freely and voluntarly?  
As to the said other Defence, that there was not damnum, the Lords repelled the same; and would not allow that point of Fact to be tried, whether or not there were a former Minute, for Implement of which the said Right was granted? And whether it was given back for, and the time of the granting of the said Disposition?  
Some of the Lords were of the Opinion, That the Qualifications libelled, were not relevant to import such a force and metus, as could be the ground of a Reduction of the said Right; ex eo capite; though they were convinced that the practice foresaid is most unwarrantable and dolosa; and that thereupon the Right may be questioned as to Sir John himself, but not as to a singular Successor: and that there is a difference betwixt a Reduction ex capite metus, which is competent against singular Successors; and a Reduction ex capite doli, which is not competent against a singular Successor, who bona fide has acquired a Right, for an Onerous Cause.  
But divers of the Lords were of Opinion, that the Defence foresaid, that there was not damnum, was most relevant, for these Reasons; viz. All Restitutions upon what mediums soever, whether metus or dolus, or lubricum aetatis, are against damnum and prejudice; for frustra should Restitution be craved, if there be no damnum. 2. It is evident by divers Laws, and the Title foresaid, quod metus, etc. That ex edicto quod metus causa, etc. non datur actio si nihil absit; & succurritur only captis & laesis. 3. By the Civil Law, there were divers Remedies competent to these who had been forced to do any deed; viz. A Civil action ex Edicto Praetoris, and a Criminal Action ex lege Julia; and a Penal Remedy ex decreto Divi Marci, That a Creditor by force, extorting what is truly due, amittit Jus Crediti: And our Reductions ex capite metus are but Civil Actions, as that ex Edicto: And the said other Remedies being penal, by the Municipal Law of the Romans, cannot be introduced by the Lords of Session being Civil Judges, without an Act of Parliament. 4. All Restitutions should Repone both Parties in integrum; and it were unjust, that if it were constant, and the Lords were convinced upon their own certain knowledge, that there had been an antecedent Minute, and that the same had been canceled upon the granting of the said Disposition, that Minto should be restored, and not the said Sir John; that now res non est integra, seeing the antecedent Minute is not Extant; and though it were Extant, it would be ineffectual, In respect Minto has Disponed the foresaid Lands to this Pursuer who is Infeft; and, having the first Infeftment would be preferable, whether the Minute were Extant or not. 5. As to the pretence that was so much urged, that it would be of dangerous consequence, that such Deeds extorted by force should be sustained upon the pretext of non damnum; and that it would tend to encourage such practices, the same is of no weight; seeing the Deed, being just upon the matter, may and aught to be sustained, and yet the way of procureing the same may be severely punished. 6. As to the difficulty of Probation, there being no Adminicles in Write, that there were such a Minute, It is not considerable;  multa permittuntur causative, which cannot be done directly; and that though the Result of Probation by Witnesses, may be the making up or taking away of Writes, which cannot be done directly, but by Write; yet when that which is to be proven is in Fact, it may be proven by Witnesses; as in the same case, that the Disposition in question was Extorted, it may be proven by Witnesses, to take away the said Disposition: And if a person should be forced to grant a Disposition of Lands of 20. Chalders of Victual of Rent, and in Exchange should get a Disposition at the same time of other Lands of the half value, it were a good Defence and probable by Witnesses, that the Pursuer did get, the time of the granting the Disposition of Lands, worth 20 Chalder Victual, a Disposition of less value; and Contingentia causae and of a Transaction and circumstances of the same, ought not to be divided; but may and aught to be entirely proven by Witnesses, also well for the Defender as the Pursuer. Actor Lockheart and Sinclair. alteri Cuningham and McKenzie. Mr. John Hay Clerk. In praesentia.   

D. 420. Commissar of St. Andrews contra Watson. 11. January 1677.  
THE Lords sustained a pursuit at the instance of the Master of the Ground, against these who had bought, from his Tennent, his Corns and other Goods, wherein the Pursuer had a Tacite Hypoth●●k. Glendoich Reporter. Mr. John Hay Clerk.   

D. 421. Viscount of Oxenford contra Mr. John Cockburn. eod. die.  
MR. John Cockburne, having gone Abroad with the Viscount of Oxenford; and after his Return, having gotten several Bonds from the said Viscount of considerable Sums, and also a Pension of 1000 Marks: And having charged upon the same, the Viscount Suspended upon that Reason, that the said Mr. John, dureing their being Abroad, had received great Sums of Money remitted to him upon the Viscounts account, for which he had not Counted; and that, after Compt and Reckoning, he will be found Debtor to the Viscount in more than the Sums charged for: And it being Alleged by the said Mr. John, that he is only comptable for his Intromission, and that his Actual Intromission ought to be Instructed by Write or by his Oath; and the Declarations, of Merchants and Factors Abroad, cannot be Probation to bind upon him so great Intromissions.  
The Lords considered the condition of the Viscount for the time, that he could not Intromet himself; and that the said Mr. John had such Influence upon him, that having been his Governor at Schools, and upon the desire of his Friends being put from him by an Act of Council, He, notwithstanding, without and contrare to the Advice of his Friends, carried him Abroad; and since his return had gotten from him the Bonds foresaid: And therefore thought fit to try the Business to the bottom; And to ordain the said Mr. John to give in his Counts of what was received and debursed, when the Viscount was Abroad; and the Factors and other Witnesses to be Examined, concerning his Intromission; and whether or not any Moneys, that were remitted for the Viscounts use, were received by the Viscount himself, or by the said Mr. John. Redford Reporter. Mr. John Hay Clerk.   

D. 422. Laird of Bavilay contra Barbara Dalmahoy. eod. die.  
A Horning, against a Person dwelling within the Shire of Edinburgh, upon Lands Annexed to the Barony of Renfrew, being denounced at Edinburgh, was sustained; In respect that the said Lands were Locally within the Shire of Edinburgh: And the Rebel, In respect of his Residence there, was Liable to the Jurisdiction of the Sheriff, and to all Burdens, and had all Capacities competent to the Shire of Edinburgh, Mr. John Hay Clerk.   

D. 423. bailie contra Somervel. eod. die.  
THERE being a Provision in a Contract of Marriage in these Terms, that 5000 Marks of the Tocher should return to the Father in Law, in case his Daughter should decease before her Husband, within the space of 6 Years after the Marriage, there being no Children betwixt them then on life; and in case the Father in Law should have Heirs Male within the space of six Years after the Marriage.  
The Lords Found The said Provision copulative; and that the Tocher should not return, albeit the Father in Law had Heirs Male within the foresaid time;  the other Member of the said condition did not exist; In respect, albeit his Daughter deceased within the said time, yet she had a Child of the Marriage that survived. Gosford Reporter. Mr. John Hay Clerk.   

D. 424. Jaffray contra Laird of Wamfray. 12. Jan. 1677.  
A Sum, due be a Bond bearing an Obligement to Infeft and Requisition; was Found to be Movable after Requisition; and to fall under Escheat, notwithstanding the late Act of Parliament Ordaining Bonds bearing Annualrent to be Heretable; but remains still Heretable quoad fiscum; In respect Bonds of the nature foresaid became Movable by Requisition, even before the said Act of Parliament; And the Fisk, since by the foresaid Act of Parliament, is not put in better case, is not in worse. Glendoich Reporter. Mr. John Hay Clerk.   

D. 425. Inter eosdem. eod. die.  
IN the same case It was Found, That an Instrument of Requisition was Null, because it did not bear, that the Procuratory was produced: And an Instrument being produced extended under the Notars Hand, and being quarrelled upon the Ground foresaid, The Lords did not allow the Notar to give out an other Instrument, bearing the Procuratory to be produced; nor did admit probation by Witnesses, that the Procuratory was produced;  such Solemnities are not presumed, and cannot be proven by Witnesses, but by valide and formal Instruments: And a Notar having given out an Instrument, that is defective, cannot thereafter give an other to supply the defect; Otherways the question being betwixt the Creditors, who had done lawful Diligence and a Donator, it should be in the power of a Notar to prefer and gratify either party, as he should be prevailed with, either to give out, or not to give another Instrument.   

D. 426. Inglis contra Lawrie. eod. die.  
SOme of the Lords were of the Opinion, that a Husband may give validly, during Marriage, to his Wife, a Provision or Jointure, where there is no Contract of Marriage: But that the Wife could not give to the Husband, though there were not a Contract of Marriage, and that she might revock any such Donation: which appears to be hard and unequal. Actor Colt, alteri Dalrymple. Mr. Thomas Hay Clerk. But this Point was not decided.   

D. 427. Fordel contra Caribber. 16. January 1677.  
IN a Reduction, at the instance of the Laird of Fordel, against Monteeths of Caribber, of a Disposition granted by Monteeths of Randyfurd to Caribber; upon that Reason, That the said Disposition was not delivered, but was lying by the Defunct in his Charter Chest, and blank in the Name and Date; and that the Defender intrometted with the same unwarrantably, and filled up his Name.  
The Lords Ordained certain Persons, who were going to France, to be examined before Debate; reserving to themselves to consider what their Depositions should work.  
Tho it may appear hard, that a Writ should be taken away by Witnesses; yet the Reason being relevant, and in Fact, and resolving in dole and Fraud, it may be proven by Witnesses. Mr. John Hay Clerk.   

D. 428. Stewart of Ardvorlich contra Riddoch. eod. die.  
DAVID Riddoch, by Contract of Marriage betwixt his Son Alexander and Jonet Ballentyne, did dispone to the said Alexander his Estate: and thereafter did dispone the same to his second Son David Riddoch, for payment and with the burden of all his Debts: who did thereafter dispone the same to Stewart of Ardvorlich for a just price.  
The said Stewart of Ardvorlich pursued a Reduction of the Disposition, contained in the said Alexander his Contract of Marriage; upon that Reason, That the said Contract of Marriage was not delivered to the said Alexander, at the least there being but only one double subscribed, the same was given back to David Riddoch the Father; and was lying by him the time of his decease: And it was evident, that it was never intended, that any other use should be made of the said Contract, but only in order to get a Marriage to the said Alexander, as being provided to the said Estate; in swa far as the said Disposition, in favours of the said Alexander, was without the burden of the Disponers Debts, which were very great; and did not so much as reserve his Liferent: Whereunto It was Answered, That the Contract was a mutual Evident, subscribed by both Parties, and that Marriage had followed upon the same; and therefore it could not be taken away, upon the pretence of not delivery.  
The Lords Found, That though the Contract had been beside the Father the time of his decease, it was not to be considered as instrumentum penes debitorem, being a mutual Evident: But thereafter It was Replied, That the Pursuer offered to prove, that not only the said Contract was lying by the Disponer, the time of his decease, but an Assignation blank of the said Contract; which, being in the Disponers Hands, was in effect a retrocession or Discharge of the Disposition, contained in the Contract: Which Reply the Lords found Relevant. In praesentia.  
This Reply was Found also probable prout de jure.   

D. 429. Cuningham contra Halyburton. eod. die.  
THE Lords Found, That a Tacksman of Lands, within Burgh, may be removed, if he be behind in payment of his Duty; unless he find Caution as to the future; in the same manner as Tacksmen of Land in the Country. Forret Reporter. Gibson Clerk.   

D. 430. _____ contra _____ eod. die.  
THE Lords Found, That a Burgess of the Town, though he be not Incola, if he trade, may be stented for payment of his Majesty's Taxation.   

D. 431. Earl of Glencairn contra Brisbain. eod. die.  
THE Lords Found, In the Case abovementioned Glencairn contra Brisbaine, That the true Value of the Lands should be proven, to the effect it may be known whether the Price be adequate or not: And albeit the Lands had not been laboured by Tenants, being still in the Heretors' hands, the Value might and ought to be proven, by the soweing and increase, and the quantity of the Land; and what Lands in that part, of the like quantity and quality, may be set for: And it was not enough, that now the Earl of Glencairn offered 2000 marks more, in respect the Lands might have been improven; or the said offer might be made upon Picque or Emulation. Hatton Reporter. Mr. Thomas Hay Clerk.  
In this Case the Lords allowed a conjunct Probation:   

D. 432. Caribber contra Fordel. 17. January 1677.  
THIS Day again in the Case abovementioned Caribber contra Fordel, The Lords did Find, upon a Bill given in by Caribber, That albeit Writ cannot be taken away but by Write directly; and that a Disposition could not be taken away but by a Renounciation or some other Writ, where there is no question as to the Validity and Formality of the same; Yet it may be taken away by a Reduction Ex capite Metus & Doli, and minoris aetatis and Lesion: And that in such pursuits, the Reasons being in Fact, and libeled either upon Force or Circumvention and Fraud, are probable by witnesses; and that the Reduction at Fordels instance upon that Reason, viz. That the Disposition in question was found among the Defuncts papers, the time of his Decease, and was intrometted with and filled up by Caribber, is ex eodem capite Doli. Mr. John Hay Clerk.   

D. 433. _____ contra _____ eod. die.  
AN Edict of executry, being Advocate from the Commissars; a Bill was given in, desiring that the Advocation might be summarily discussed, seeing both nearest of Kin, Creditors, and the Fisk were concerned, that the Testament should be confirmed and execute; which Desire, the Lords thought could not be granted, in respect of the Act of Regulation: but it was thought a great Escape and Inadvertency, that such Advocations should be passed, seeing the Lords could not confirm Testaments: and if any Party should be prejudged by any Act of the Commissars, it may be reduced, upon the head of Iniquity: And the Lords thought, it was fit that a new Edict should be raised; and if an Advocation should be sought, the Reason should be discussed upon the Bill.   

D. 434. Earl Argyle contra Mcnaughtoun. 23. Jan. 1677.  
IN the Case abovementioned, Earl of Argyle contra Mcnaughtoun, It was Found, That Mcnaughtoun having acquainted the deceased Marquis of Argyle, that he was to Marry with his Lady; and that the Marquis having returned an Answer by his Letter of the Tenor abovementioned; the said Letter imported his Consent to the Marriage; and that the Marquis having consented, he could not claim the Benefit of the Marriage. Vide supra 3. January 1677.   

D. 435. Tailfer contra sandiland's. eod. die.  
A Curator having in his Accounts given in an Article of Incident Charges upon occasion of the Minors Affairs, viz. That he had met with Agents and others in Taverns, in Relation to the Pupils Affairs; and had been at Charges in drinking with them, extending to a considerable Sum, during the whole time of his Charge: The Lords did not allow the same in the Terms foresaid; But Ordained him to condescend upon the particulars: And if he kept a Book and Diary of his Debursements, so that he might warrantably declare, that he had truly debursed the particulars thereinmentioned; they inclined to modify the same to such a Sum, as they should find reasonable.   

D. 436. Home of Ford contra Stevart. 24. January 1677.  
A Wadset being granted in these Terms, That the Wadsetter should possess the Lands; and that the Granter should free the Wadsetter of Levies of Horse, and Feu-duties, and Ministers Stipends: It was Found that the Wadsetter is not Liable to Compt and Reckon for the Duties and superplus of the same, exceeding the Annualrent; In respect, the Wadset was a proper Wadset; and the Wadsetter was not free of all Hazards of the Fruits, Tenants, War and Vastation. Redford Reporter. Mr. Thomas Hay Clerk.   

D. 437. Ronald Grahame contra Sarah Rome. eod. die.  
JOhn Rome being obliged by his Contract of Marriage with his second Wife to provide 10000 Marks in favours of himself, and his Spouse in Conjunct-fee, and the Heirs of the Marriage; whilks Failyieing to his own Heirs and Assigneys: And to provide also 5000 Marks in favours of the Remanent Bairns of the said Marriage:  
The Lords Found, That the Father was Fire of the said Sums; and that the Heir of the Marriage and Remanent Bairns had an Interest only to succeed to him as Heirs of Provision in the same: And that the Creditors might affect the said Sums; and would be preferable to the Bairns; Notwithstanding their Debts were Contracted after the said Contract of Marriage, and Inhibition thereupon; seeing the Inhibition could not take away his Fee: And the Import and Effect both of the said Obligements and Inhibition is only, that the Father should do no fraudulent Deed, without an Onerous Cause, in prejudice of the same. Gosford Reporter.   

D. 438. Ardblair contra Wilson. eod. die.  
A Bond being granted by James Bisset of Neitherbalcarne to the Laird of Ardblair for Love and Favour; to be paid after his decease: The Lords Found, That the said Bond, being granted without an Onerous Cause, to be paid in manner foresaid after the Granters decease; could not prejudge posterior Creditors, who were in bona fide to lend their Money, notwithstanding any such Latent Deeds and Bonds.  
This Decision seems to be hard;  it was lawful both to the Granter and Receiver of the said Bond, to grant and receive the same: And the said Donation, being lawful ab initio, could not become thereafter unlawful by any Deed of the Granter: And Fraud cannot be pretended, but where Creditors or others, the time of the granting of such Bonds, were prejudged; unless it did appear by some speciality and circumstance in the case, that there had been a design to Cheat and Circumveen these who were to lend their Money, by granting and settleing upon the Relations of the Debtor, his Estate; and thereafter to get in his Hands, his Creditors Means, whom he was not able to satisfy; which was Found in the Case of Maisson and Pollock, and was not Alleged in this Case. Nevoy Reporter. Mr. John Hay Clerk.   

D. 439. Sinclair contra Home of Renton. eod. die.  
A Bond of Corroboration being granted for a Sum due upon a Wadset; with power to use Execution without Requisition: The Lords Found, That the Creditor may summarily comprise upon the same without previous Requisition. Glendoich Reporter. Mr. John Hay Clerk.   

D. 440. Nairn contra Stuart of Innernytie. eod. die.  
A Presentation being granted by a Bishop to a Prebendary in favours of a person dureing his Life-time; and after his decease to his Son: The Lords Found, in a multiple poinding and competition, betwixt the persons substitute in the said Presentation; and another Prebendar provided by the succeeding Bishop, by the decease of the first Prebendar; That the Substitution, contained in the Presentation foresaid, did expire by the decease of the Father, and that the Substitution was void; In respect, the Bishop could not, in prejudice of his Successor, grant a Presentation in the Terms foresaid, bearing a Tailzie and Substitution. Castlehill Reporter. Mr. John Hay Clerk.   

D. 441. Drumellier contra E. Tweeddale. eod. die.  
IT being objected against Major Bunting, being led as a Witness for Drumellier against the Earl of Tweeddale; That he had given Partial Counsel, at least had concerned himself as a Party for Drumellier; In swa far as, he had been at Consultations with him, in Relation to the Process.  
The Lords Found, That he could not be a Witness, though he was a person of Integrity above exception; and that he was free to declare that, at the said Consultations, the point, whereupon he was to be used as a Witness, was not in consideration. Gibson Clerk.   

D. 442. Grange Dick contra Oliphant. eod. die.  
AN Assignation being granted for relief, and payment of certain Sums mentioned in the Assignation; for which the Assigney was Cautioner for the Cedent; the same was questioned upon that head, that it was never delivered, but was still in the Cedents Hands: The Lords Found, That the said Assignation was never delivered: And yet they Found, That it was an effectual Evident in favours of the Assigney, In respect the Cedent had made the same public by a Horning thereupon. Sir George Lockheart etc. alteri Cuninghame etc. In praesentia.   

D. 443. Ker contra Kers. 25 January. 1677.  
A Disposition being questioned, as being made in lecto, at least delivered then: It appeared by the Deposition of one of the Witnesses, used for proving the Lybel, that the said Writ was subscribed divers Years before the Disponer was on deathbed; and that the same was delivered before deathbed to the said Witness: and that the Defunct having called for it on deathbed, for drawing two other Dispositions, of the Lands contained therein; one in favours of the Pursuer the Disponers Heir; and the other in favours of a Son of the Disponer, who was Father to the Person in whose favours the Disposition in question was made: And upon debate amongst the Lords, what should be the import of the said Testimony, seeing the Depositar did not declare in what Terms the same was given to him by the Disponer; whether to the behoof of the said Person, in whose favours it was made or not; or upon any other account, for keeping the same, so that the Disponer might call for and alter it: It was Found, 1. That the Disponer might have revoked the same; In respect it did not appear, that it was delivered to the behoof of the Person to whom it was made.  
This Decision seems to be hard; in respect the Disposition was now in the Hands of the Receiver, so that it was to be presumed, that it was delivered, either to him, or to the said other Person to his behoof: and the delivery ought to be construed, and presumed to have been, ut operetur: and the nature of the Act itself, imports that it should be to the behoof foresaid: It not being to be imagined, that if the Disponer had intended to have retained the Power in his Hands, either to make the said Right effectual, or not; he would have given it out off his Hands.  
2. The Lords Found, Upon the Testimony foresaid, That the Disponer having revoked the said Disposition not simply, but to the effect foresaid, that the said two Dispositions should be granted; The Pursuer therefore had not Right to the whole Lands, contained in the said first Disposition; but that the same should divide, conform to the said two Dispositions. Mr. Thomas Hay Clerk. In praesentia.   

D. 444. Procurator-Fiscal of Glasgow contra Cowan. 26 January 1677.  
THE Commissar of Glasgow, having sustained Process, at the Instance of the Procurator-Fiscal, for the trial of a falsehood of Executions, whereupon a Decreet had proceeded: and having upon Probation of the falsehood, discerned the user of the said Executions, to pay 300. lib. to the Procurator-Fiscal as a Fine: and the said Decreet being suspended; The Lords Found, That the Commissar was not competent Judge to the improbation of Executions, by way of Action; seeing they cannot reduce their own Decreets; and Improbation is a Reduction ex capite falsi. Justice-Clerk Reporter. Mr. Thomas Hay Clerk.  
It is to be considered, that the most part of Decreets,  Inferior Judges, are for Null-Defence, and upon false Executions: and it were hard, that there should be no Remedy but by Improbations before the Lords, which may depend long and are very chargeable; So that Decreets before Inferior Judges being for the most part for inconsiderable Sums, the Remedy should be worse than the Mischief.  
It appears indeed, that the Commissars have not power to Fine; that being a Criminal Jurisdiction; and that they are not Judges to Improbation by the indirect manner; The Trial of Falsehood, by circumstances and presumptions, being Altioris Indaginis; and of that Difficulty, that it ought not to be left to an Inferior Judge. Item, The Trial of Falsehood, as to that effect that Falsaries may be punished, ought not to be by any Inferior Judge; But it seems to be just and necessary, that Parties, grieved by such Decreets, should be allowed to pursue the obtainers of the same, to hear and see them reponed against the said Decreets, upon that Ground that they were not cited to the same; to be proven by the Witnesses and Executer himself, declaring that they pursue to that effect allanerly: And it appears not to be inconsistent with Law and Form, that this course should be taken; seeing the Judge does not reduce his own Decreet, ex capite iniquitatis; and it may be provided, that such Pursuits, though they be upon the matter Improbations, are only to the effect foresaid; and that no other effect or consequence shall follow upon the same; and multa fiunt per indirectum, which cannot be directly: And if a Party, who is holden as confessed, should raise a lybel before an Inferior Judge, that it may be Found that he was not Contumax, being out of the Country, or Sick, or detained by Storm, or some other insuperable Impediment; and that therefore he should be reponed; and the Decreet should be holden as a Lybel; such a Pursuit would not be incompetent, though in effect it would be a Reduction upon the matter.   

D. 445. Donaldson contra Rinne. 27 January 1677.  
IT was moved, whether or not a Decreet of an Inferior Judge, being questioned upon that Ground of Iniquity, that the Lybel was not proven; and the Depositions of the Witnesses being produced by the Pursuer ab initio; The Lord of the Outer House may advise the Probation; Or if it ought to be advised by the whole Lords? It was Found, That the Depositions being produced (as said is) the Lord may give his own Interloquitor, as upon any other Writ produced ab initio, to instruct the Lybel. Tho some of the Lords were of Opinion, that the Probation ought to be considered and advised by the hail Lords; And it was hard, that the Probation being found sufficient, by a competent Judge, it should be in the power of one single Lord to review the same, and find the contrare. Mr. John Hay Clerk.   

D. 446. Murray Pupil contra _____ 31. January 1677.  
A Pupil of 4. Years of Age, being pursued upon the Passive Title of a Charge to enter Heir; and the Friends conceiving that it were fit to Renounce: none of them being Curators, nor being willing to meddle, and to authorise the Pupil to renounce; The Lords Discerned, but superseded Personal Execution, until the Pupil should be past Pupillarity. Castlehil Reporter.   

D. 447. Master of Rae contra Sinclar of Dumbaith. 1. February 1677.  
SInclar of Dumbaith, Sandside and others having in a Hostile manner invaded the Lord Raes Country: There was a Criminal pursuit intented against them for the Crimes committed upon the occasion foresaid; but the said pursuit being taken away by a Remission, there was thereafter a Spuilyie pursued at the instance of the Master of Rae, having Assignation from his Father; and by his Tenants whose Goods had been Rob and taken: And it being Alleged against the said Pursuit, that it was prescrived, The Lords sustained the Reply, that the Prescription was interrupted by the foresaid Process before the Justices: And again this Day a Summons of Spuilyie, which had been formerly intented, being produced; and it being Alleged, that by the said Summons and Execution upon the same, the Prescription was interrupted, The Lords Found, That the same did not interrupt; In regard it appeared, that the Names of the Defenders have been Blank in the saids Summons, and since filled up with another Ink: And it appeared by the Executions, that the same were at the instance of Grace of Arbo and others mentioned in the Summons, without specifying the said other Persons; and the Defenders had settled with, and satisfied Arbo; So that it appeared, that the Names of the said other persons had been filled up in the body of the Summons, of purpose to be a Ground for the said Reply: But though the Lords did not sustain the Process, as to the effect of giving the Pursuer Juramentum in litem; In regard the Goods Libelled, were Libelled to extend, as to the number of Good, and the Damnage sustained by the Pursuers Cedent, to vast Sums, exceeding the value of that whole Country; yet the Lords did adhere to their former Interloquitor, That they would consider, the time of the advising, the profits of the Goods as in a Spuilyie.  
It occurred to some of the Lords and was moved, whether Juramentum in litem, being given to the Party wronged; and upon that account, that the quantities and the Kind's of Goods, taken from him, could not be so well known to others and proven; if the same be a personal favour; Or if it may be extended to an Assigney? Newbyth Reporter.   

D. 448. Holmes contra Martial. 2. February 1677.  
THE Lords Found, That a Woman, being provided by her Contract of Marriage, to a Liferent of the Conquest of Lands, or other Goods that should be acquired dureing the Marriage: And the question being of Movables, and she having accepted a Third of the same, she could not return to crave a Liferent of the other two parts; though it was Alleged by her, she had not accepted the same in satisfaction of what she could claim. 2. It was Found, That a Woman, being provided, as said is, to a Liferent of all the Movables her Husband had the time he Married her; and which he should acquire during the Marriage; It was in her Option, either to take her to her Liferent of the whole; or to claim the 3d part in property; but, making Election, could not . Tho this was Found by plurality, yet some of the Lords were of Opinion, that by the Provision foresaid she has only a Liferent; and that she had not the said Election;  eo ipso that she is provided to a Liferent of all, it is intended and agreed, there should be no Communio bonorum; It being inconsistent, that she should be both Proprietar and Liferentar usufructu formali, Newbyth Reporter. Gibson Clerk.   

D. 449. _____ contra Tait. 6 February 1677.  
THE Lords Found, That a Bond, being granted on Deathbed, with consent of his Appearand Heir for his Interest; bearing an obligement to pay a Sum of Money; Is to be considered, not as a Legacy, but as a Bond inter vivos: , by the Common Law, all persons are in legitima potestate as to the granting of Bonds; And our custom, whereby persons on Deathbed are not in in liege poustie, is qualified with an exception, viz. unless the Heir consent; in whose favours the same is introduced.  
Castlehill Reporter.   

D. 450. _____ contra _____ eod. die.  
THE Lords Found, That Appearand Heirs may be pursued, as behaving before the year expire; seeing eo ipso that miscent, adeunt passive: And as to that pretence, that they would be wronged if it should have appeared by the probation that they did not meddle; It is of no weight;  the Lords may modify Expenses.   

D. 451. _____ contra _____ 29. February. 1677.  
AN Exhibition being pursued at the instance of an Heir of Conquest: And it being Alleged by the Heir of Line, that some of the Lands, whereof the Writes were craved to be exhibited, were in Holland; and that by the custom there, the Eldest Brother did not succeed as Heir of Conquest; but all the Brothers and Sisters equally; so that the Writes ought not to be delivered to the Pursuer, who had only an Interest as to the fifth part; whereas the Defender had four parts, having acquired three from his Brothers and Sisters, and having one himself; and he having the far greater interest in the Land and Writes, aught to have the keeping of the same, being Liable to make them forthcoming to the Pursuer.  
The Lords notwithstanding preferred the Elder Brother to the keeping of the Writes.  
In that same Cause, It was Alleged, That, as to the Lands in Scotland, the Defuncts Right was only by a Comprysing, which was personal, and whereupon no Infeftment had followed; and which belonged to the Heir of Line, as Tacks and Reversions: The Lords, nevertheless, Found, that the Heir of Conquest has Right to the same, conform to a late Decision.   

D. 452. Purveyance contra Knight. 8 June 1677.  
THE Lords Found, Upon the advising of a concluded Cause, after Debate in praesentia, in the Case in question, That Liber Rationum, and a Compt-Book of a Merchant, containing an Article of Debt, due by him to the Pursuer, was a sufficient Probation: In respect the said Compt-Book was written with the Merchants own Hand; and he was known to be a person of great Honesty and Exactness: and the Article was so clear, that the time therein mentioned, he stated himself to be Debtor in the said Sum, all by gone Annualrents being paid; and in an other part and Article of the said Book, he did acknowledge, that he had borrowed the said Sum, and was special as to the time; and there was a great Confidence and near Relation betwixt him and the Creditor; and therefore the Lords decided as said is; in respect of the said Circumstances: but thought it hard, that Compt-Books in Scotland, where there is not that exactness that is else where, in keeping Books, should have that Faith that is given to them elsewhere. Mr. Robert Stewart Actor, alteri Cuningham. Mr. John Hay Clerk. In praesentia.   

D. 453. Campbel contra Taite. eod. die.  
THE Lybel being referred to the Defenders Oath; and he having declared upon a general Interrogator, that he was not owing the Sum acclaimed; It was urged, the time of the advising of the Oath, that the Defender should declare, whether or not he had gotten a parcel of Lint, and what way he had paid the price of the same. The Lords Found, That he should not be urged to declare upon that Interrogator; In respect it was not desired he should be interrogate upon the same when he did declare; and having denied that he was any ways Debtor, he would be involved in Perjury, if upon a special Interrogator he should acknowledge that he was Debtor upon the account therein mentioned. Mr. Thomas Hay Clerk. Stewart and Swinton Advocats.   

D. 454. Patrick contra Anderson. eod. die.  
AN Executor, having alleged that the Testament was Exhausted, and for probation, having produced the Defuncts Bond, with a Discharge from the Creditor after the Defuncts decease: and it being Found, That the same did not prove, unless there had been a Sentence produced: It was thereafter Alleged for the Executor, that seeing he instructed the Debt, and that he had paid the same bona fide, the same aught to be allowed for his liberation; at least that the said Debt should come in pari passu with the Pursuers; unless they could object against the same, as not a true Debt; which was Repelled; in respect no Legal Diligence had been done for the said Debt.  
Some of the Lords were of Opinion, that it should have been allowed to come in pari passu; In respect the Diligence, used by the Pursuer, in intenting a Pursuit against the Executor, was only Personal, and did not affect the Goods; and the Executry being short, and the Goods being to be forthcoming to all Parties having Interest, any Creditor may compear for his interest, and crave to have a proportion of the same at any time before Sentence; Otherways a great Creditor, in also much as may be equivalent to the executry, if he should pursue the Executor before the other Creditors, they may be all frustrate. Mr. Thomas Hay Clerk.   

D. 455. Blackwood contra Pinkill. 9 June 1677.  
A Father having infeft his Grandchild in Fee of his Estate, and his Son Father to the Fire, in Liferent; with a Provision, that the Liferent should be alimentary to him: The Lords, Upon a Debate among themselves, concerning the said Qualification of the Liferent, were of the Opinion, that the Son being provided before to some other Lands simply, without the said Quality, the Creditors of the Son might, by their Diligence, affect the said alimentary Liferent; except so much of the same as the Lords should think fit to reserve for a competent Aliment to the Son: but there was not a Decision in the Case. Mr. John Hay Clerk. Concluded Cause.   

D. 456. Captain Binnie contra Gibson. 20 June 1677.  
THE Lords Found, That a Party, being pursued as representing his predecessor; for payment of the Sum due by a Bond; might propone a Defence of Payment; notwithstanding that he had, before, pursued an Improbation of the said Bond: In respect the Bond being ancient and not granted by himself, he was in bona fide to pursue Improbation of the same; and thereafter it appearing to be a true Bond, he may also allege payment; giving his Oath of Calumny upon the Defence.   

D. 457. Pringle contra Pringle of Torsonce. 21. June 1677.  
THE Laird of Torsonce having disponed his Estate to his Eldest Son for Love and Favour; with a Provision contained in the Disposition, that it should be lawful to him to burden the said's Lands by Wadsets of the same; Or Annualrents forth thereof, for the Sum of 5000 Marks Redeemable by his Son: And having thereafter granted a Bond to a Daughter of a second Marriage, of 1000 marks, who did pursue the Representatives of the Son, for the said Sum, It was Alleged for the Defender, That he could not be pursued Personally; but if there were any Ground of an Action, it would be only for a Declarator, that the Lands are liable to the said Debt. 2. That there could be no Ground of Declarator, in respect the Disponer had not made use of the said Faculty, nor granted a Wadset for the said Sum; and that the Defunct had a personal Estate and Executry; And in swa far as, he had not, conform to the said faculty, secured the Pursuer out of the said Lands, he had declared his Intention, not to make use of the said faculty.  
The Lords Found, That the Pursuer ought to discuss the Executry, and any other Estate belonging to the Disponer: and if the said Sum could not be recovered out of the personal Estate, that he might have recourse against the said Lands; which was Found by the Lords, upon these considerations, viz. That the Right made by the Father being for Love and Favour, the said Reservation ought to be interpret benign, and it was to be considered quid actum; the Father's intention being to have a Power, to contract also much Debt as might amount to the said Sum; And eo ipso that he did grant the said Bond, he did burden the said Lands virtually; and in his own time they might have been comprysed for the said Sum; and therefore may be now affected and comprysed. 2. The Fathers End being to have power to burden with the said Sum, the modus and way was insert ex stylo by the writer; that which is mentioned in the Disposition being the most ordinary, and therefore to be understood demonstrative but not taxative. 3. Tho some of the Lords were of Opinion, That the Pursuer may immediately, as other Creditors, have recourse against the Estate; yet it seemed to be reasonable, that, in this case, the Reservation being in the Terms foresaid; and the Bond, whereupon the Security was founded, not relating to the same, the Executry should be first discussed:  by the Common Law the Executry was ever first liable; And tho, by the Lords Practise, Creditors may pursue either the Heir or Executor, yet there being such a speciality in this case, and the Defender not representing personally the Grandfather, as Heir, or otherways by Progress, his Representatives ought to be first discussed, and the said Lands to be liable only in subsidium. Actores Sir George McKenzie, Mr. Robert Stewart. Alteri Lockheart and Pringle. Gibson Clerk. In praesentia.   

D. 458. Malloch contra The Relict of David Boid. 26. June 1677.  
A Second Compryser having pursued a Declarator, that the prior Comprysing was satisfied by Intromission; and the Defender having in the Compt and Reckoning given in an Article of Debursements for prosecuting and defending of Processes concerning his Right; The Lords Found, That, as to the extinguishing of the Comprysing upon the account of Intromission, the Expenses in deduceing the Comprysing and obtaining Infeftment were only to be allowed; but not any other extrinsic Debursements: But the Comprysing being extinct and satisfied, if there were any superplus of Nails and Duties, for which the Compryser was to be comptable, he might retain, of the first end of the same, such as were profitably expended, not only in Relation to his own, but the Pursuers Right. Newbyth Reporter.   

D. 459. _____ contra _____ eod. die.  
THE Defender, in a Spuilyies, having Alleged that the Goods were his own; and that, having given them to the Pursuer to be grass, he might have taken away his own Goods: It was Replied, That the Pursuer was not obliged to debate the Right and property of the said Goods; but in spolio, he needed Lybel no more, but that the Goods were upon his Ground and in his Possession; and taken away vi and in manner Lybeled: And spoliatus ante omnia restituendus.  
The Lords debated among themselves, whether the Defence be Relevant; and did not decide the case: Some being of Opinion, that if it should evidently appear, that the Pursuer was not in Possession of the Goods as suos, but in behalf of the Defender; as if there were a Writ betwixt the Pursuer and Defender, bearing that the Goods were the Defenders; and that the Pursuer contractu Locationis & Conductionis had taken the same in graseing; that the Defender could not be Liable for Spuilyie of his own Goods: But if it should appear, that there was any violence in taking them away, he may be pursued for a Riot.   

D. 460. Drumkilbo contra Mcmath and Oliphant. eod. die.  
JAnet Mcmath Lady Grange being Creditrix to the Laird of Kilspindie; And having, upon an Arrestment in the hands of Drumkilbo, obtained a Decreet to make forthcoming; There was thereafter a Suspension of double poinding against the said Janet Mcmath, and Sir Laurence Oliphant of Gask, who pretended Right to the Sum due by Drumkilbo, by an Assignation intimate before the Arrestment: And in the Competition foresaid, the said Sir Laurence was preferred. But thereafter in an Improbation of the said Assignation, at the instance of the said Janet Mcmath, the said Sir Laurence having abiden by the same, It was Found, after a long and litigious dependence by the space of 50 Years, that the Assignation was false: And William Dick of Grange, the said Janet her Son, having thereafter intented a pursuit against the said Sir Laurence, to hear and see it declared, that in respect the said Sir Laurence, by his compearance, and making use of the said false Assignation, had been preferred; and had rendered the foresaid Diligence by Arrestment ineffectual; and had transacted and made benefit of the said false Assignation; That therefore, In swa far as he was Lucratus he should make the same forthcoming for payment of the Pursuers just Debt; Especially it being considered, that he had Discharged one of the Cautioners in Drumkilbo his Bond: It was Answered, That he was in bona fide to acquire a Right to the said Assignation, neither knowing, nor being accessary to the forging of the same; and he had made no benefit by uplifting from Drumkilbo any part of the said Debt; but by transferring his Right in favours of Mr. John Blair; which he had done bona fide: And as to the Discharging the Cautioner, it could not prejudge the Pursuer, seeing the Discharge would fall in consequence of the Assignation.  
The Lords Found, That, albeit he were not accessary to the Forgery, yet having used a false Writ, and having litigiously so long maintained the same; and upon that occasion, the Pursuer being altogether frustrate; he ought to be Liable in quantum lucratus, and what he had gotten more by the Transaction with Mr. George Blair than he had given for acquireing the said Right: And the Lords reserved Action to the Pursuer against the Cautioner: And in case the Cautioner should be Assoilyied, without prejudice to have recourse against the said Sir Laurence as Accords. Actores Lockheart, Monnypenny etc. alteri Cuninghame etc. Mr. Thomas Hay Clerk. In praesentia.   

D. 461. _____ contra The Laird of Cramond. eod. die.  
MR. Cornelius Inglis being Debtor to Mr. John Inglis of Cramond in the Sum of 3500. Marks; He did give to Cramond, for Security of the said Sum, and for relief of Cautionries for him, extending to towards 10000 M. a Bond for payment and relieving him of the said Sums; with an obligement to Infeft in the Lands thereinmentioned, for his Security and relief of the said Sums; and a precept of Sasine whereupon Infeftment followed: And thereafter, Mr. Patrick Inglis, the said Mr. Cornelius his Eldest Son, did grant a Bond to Cramond, relateing expressly to the said former Bond and Right of Relief, and in Corroboration thereof, and the Infeftment thereupon, containing an Obligement for Payment and relief of the said Sums.  
Thereafter the said Mr. Patrick did obtain, from his Father, a Right and Infeftment of the said Lands, upon that narrative, that he had undertaken the payment of his Father's Debts; and that he was engaged for him; and that the said Right was granted to him for his Relief; whereupon he obtained Possession; and, before any Diligence, at the instance of any of the other Creditors, he did pay some Annualrent to Cramond upon a Discharge, relateing to Cramonds Right and Infeftment foresaid.  
Thereafter there being a Multiple poinding raised against Cramond, and some of the Creditors, who had deduced a Comprysing against the said Mr. Patrick of his Right; the Creditors Alleged, that they ought to be preferred, because Cramonds Right was only base, and the said Mr. Patrick's Right was clad with Possession, before any pretence of Possession in the person of Cramond; and that they having Comprysed Mr. Patrick's Right are thereupon preferable to Cramond; Whereunto it was Answered, That Cramonds Right, being a Right of Relief, could not take Possession ex natura of the Right, until a distress; and because it was provided by the Right itself, that Cramond should enter to the Possession in case of distress; and in case he should not be paid of his Annualrent; which he could not do before Declarator: And that the Lords had divers times Found, that Infeftments of Warrandice, whereupon there could be no Possession before Eviction, should be preferred to posterior Infeftments; and that Infeftments of Annualrent, being anterior, should be sustained in a Competition with posterior base Infeftments clad with Possession; Because the first Term of Payment of the Annualrent was not come, when the posterior Infeftment came to have Possession; and that the Competition was not betwixt Cramonds and the Comprysers' Infeftment upon the Comprysing, but Mr. Patrick's own Infeftment; and that Cramonds Infeftment was clad with Possession before the Compysers' Right and Interest, by payment of the Annualrent of the said Sum due to Cramond himself; as appeared by the Discharge accepted by Mr. Patrick relating to Cramond his Right and Infeftment foresaid: And that base Infeftments by the Common Law being valide; And by the Act of Parliament K. Ja. 5th. in anno 1540 It being provided, that for obviating Fraud by granting private and latent Infeftments, in prejudice of posterior Infeftments that are public, being either holden of the Superior or by Possession; the said Act of Parliament cannot be extended to this Case; In Respect Cramonds Right cannot be said to have been fraudulent and private as to Mr. Patrick; In respect he did not only know the same, but did ratify and corroborate the said Right as said is, both before his own Right and after the same; and before the interest of Creditors, he did in effect ratify and homologate the same, by making payment conform thereto, as said is.  
The Lords, In Respect the case was of moment, as to the Preparative, Ordained that it should be Debated amongst themselves: And upon the Debate, they decided these points. 1. That, the said Act of Parliament K. Ja. 5th. being general, and there being no Exceptions of Infeftments of Relief, the said Act is comprehensive of the same. 2. Tho the Act of Parliament, anent Registration of Seasings, does secure Singular Successors, yet the said Act of Parliament K. Ja. 5th. is not taken away, though in in some cases, the Lords are apt to favour prior Infeftments, where there is no presumption of Fraud: And therefore, when there is any pretence of Possession, as in the case of Infeftments of Warrandice, they Found that fictione Juris the Possession of the principal Lands is the possession of the Warrandice. 3. That albeit Mr. Patrick could not question Cramonds Right for the Reason foresaid, yet the Comprysers, being Singular Successors, may question the same.  
The Lords therefore preferred the Creditors: And yet sustained Cramonds Infeftment, In swa far as concerns the Sum foresaid due to himself, and not as to Cautionries'; In respect the said Discharge was only of the Annualrent of the Sum due to himself.  
This Decision appears to be hard, upon these Considerations: First, Because Cramonds Infeftment, though base, as to the point of Right, by the Common Law is preferable: And as to the said Statute, it introduces only a praesumptio Juris, that base Infeftments, not clad with Possession, are presumptively fraudulent: And the Question, whether Cramonds Infeftment was fraudulent, was to be considered in relation to Mr. Patrick and his Infeftment, and not to his Successors: And the said presumption was taken away by Mr. Patrick his Deed foresaid, having corroborate, as said is, Cramonds Infeftment; which was verified by a Writ Subscribed by Witnesses, and which was was Found to militate, even against the Creditors, and to  Cramonds Infeftment with Possession. 2. Cramonds Right being Jus individuum, though upon distinct Grounds, it could not be fraudulent and private ex parte, and ex parte public. Actores Sir John Cuninghame, etc. alteri Lockheart. In praesentia.   

D. 462. Mr. John Kincaid contra Gordon of Abergeldie. eod. die.  
MR. John Kincaid having pursued Gordon of Abergeldie, as representing his Father, by Behaving: His Defence was, That he had Right by an expired Comprysing, whereby his Father was denuded, so that he could not be Heir to him. But in the same Process, in respect a Reduction and Declarator was intented at the said Mr. Kincaid's instance, within ten Years after the appearand Heir had purchased a Right to the said Comprysing; The Lords, though there were no Order used, did simul & semel sustain the said Processes: and appointed Compt and Reckoning, and Auditors.   
FINIS.   

ERRATA in the Decisions.  
PAge 4. lin. 15. read rata. p. 9 l. p●nult. Pursuer 1 Person. p. 15. l. 29. Laird of r. Lord. p. 17. l. 17. after him add but. ibid. l 26. after of add ●. p 33 l 7. after Goods, add The Reason was found relevant. p. 35. l 21. r. conclude. p. 37. l. 5. have 1. give. p. 50 l. 9 after we add no. p. 51. l. 38. most r. more. p. 54. l. 9 after anterior add to the Sons Right. p. 58. l. 35. after Right add till. p. 65. l. 11. purchase 1. possession p. 73. l. ult. yet 1. so. p. 74. l. 37. after to add an. p. 75 l. 35. D ctor 1. Granter. p. 84. l. 22 after confirmable, add Quots of Testaments confirmed before the Act restoring Quots to the Bishops. p. 85. l. 18. due r. done. p. ●9. l. 18. after by. add Writt or. p. 105. l. 11. Donator r. Executor. p. 108. l. 27. ●eu-duties r. Augmentations. p. 111. l. 43. after Creditor add confirmed before the Act of Sederunt. p. 17●. l. antep. after flagitanti add ●ecula●e non potuit.   

INDEX OF THE Pursuers and Defenders NAMES Mentioned in the foregoing Decisions.  

A.  
ABercrombie contra Page 19  
Abercrombie contra Atcheson and Livington. Page 162.  
Aberdeen College contra the Town thereof. Page 130, 133.  
Aberdeen College contra Page 157.  
Abernethie contra Forbes, Page 159.  
Act of Sederunt anent proponing Alledgances. Page 74.  
Act of Sederunt anent liberation of Prisoners. Page 114.  
Act of Sederunt anent Advocations. Page 126.  
Advocats their ●●int Petition. Page 106.  
Aetskine contra Rynolds. Page 164.  
Allan contra Campbel. Page 28.  
Anderson contra Tarbet. Page 56.  
Anderson contra Low●s. Page 149, 160.  
Antrobus contra Anderson. Page 32.  
Ardblair contra Wilson. Page 214.  
Argyle (Earl) contra L Mcdonald. Page 197.  
Argyle contra Menaughtan Page 203, 213.  
Armstoun (Lord) contra Murray. Page 153.  
Auchinleck contra E Menteath. Page 127.  
Auchintoul contra Inns. Page 88   

B.  
BAillie contra Somervel. Page 210.  
Bairdner contra Collier. Page 142.  
Balmedie contra Bailies of Abernethie. Page 54.  
Balmerinoch contra Tenants of Northbervick. Page 90.  
Banchries' Parochiners contra their Minister. Page 124.  
Barclay contra Arbuthnet. Page 151.  
Bavilay contra Dalmahoy. Page 210.  
Bayne contra Carvie. Page 71.  
Bernie contra Page 57  
Bernie contra Montgomerie. Page 137.  
Binnie contra Binnie. Page 56.  
Binnie contra S●ot. Page 115.  
Binnie contra Brotherstones. Page 124.  
Binnie contra Gibson. P. 221.  
Binnie contra Farquhar. P. 19  
Bishop of Edinburgh his Executors contra the present Bishop. P. 83.  
Bishop of Dumblain contra Kinloch. P. 185.  
Bislet contra Broun. P. 10.  
Blackwood contra Pinkill. P. 221.  
Blair contra Blair. P. 67.  
Blair contra Kinloch. P. 151.  
Blair contra Fouler. P. 182.  
Blantyre contra Walkingshaw. P. 6.  
contra Blantyre. P. 14.  
Bogie contra Executors of the Lady Oxford. P. 73.  
Boid contra Story. P. 76.  
Bonars Relict contra his Representatives. P. 141.  
Borthwick (Lord) contra Ker. P. 15.  
Borthwick (Doctor) contra E. Craufurd. P. 161.  
Bowie contra Hamilton. P. 18.  
Broun contra Veatch and Scot P. 7.  
Broun contra Ogilvie. P. 116.  
Bruce contra Bruce. P. 132.  
Bryand contra Grhame. P. 6.  
Bu●hanan contra Logie. P. 181.  
Burd contra Reid. P. 118.  
Burgie (Lady) contra Strachan. P. 39  
Burnet contra Leyes. P. 3.  
Burnet contra Johnston. P. 9  
Burnet contra Lutgrue. P. 115.  
Burnet contra McCleilan. P. 117.  
Burnet contra Swan. P. 166.  
Burnet contra Gib. P. 169.  
Bute (Lady) contra Sheriff thereof. P. 7.   

C.  
CAmphel contra Tait, P. 220.  
Carfrae contra Tailȝiefer, P. 104.  
Carnegie contra Durham, P. 200.  
Carse contra Carse, P. 17.  
Cassils' contra Whiteford, P. 24.  
Chalmers contra Ferquharson and Gordon, P. 105.  
Cheap contra Philp, P. 34.  
Cheyne contra Chrystie, P. 19  
Cheislie contra Edgar, P. 181.  
Clerk contra Stewart, P. 139  
Colarnic (Lady) contra Tenants, P. 112.  
Collector of the Taxations contra the Parson of Auldhamstocks, P. 49.  
Colvil contra Fevars of Culross, P. 28.  
Commissars of Edinburgh contra the Commissars of Briechen, P. 64.  
Commissar of St. Andrews contra Watson, P. 209.  
Craig contra Edgar, P. 85.  
contra Laird of Cramond, P. 224.  
Cranston contra Wilkieson, P. 9  
Cranston contra Ker, P. 113.  
Cranston contra Broun, P. 86,  
Craufurd contra Town of Edinburgh, P. 16.  
Craufurd contra Gordon, P. 183.  
Cry contra Findlater, P. 37.  
Cruickshanks contra Watt, P. 122.  
Cuming contra Johnston, P. 16.  
Cuningham contra Lees, P. 75.  
Cuningham contra Maxuel, P. 152.  
Cuningham contra Halyburton, P. 212.   

D.  
Dallying contra McKenzie, P. 153.  
Dalrymple contra P. 31.  
Dalziel contra P. 47.  
Davidson contra Town of Innerness, P. 32.  
Davidson contra Richardson, P. 49.  
Davidson contra Wauchop, P. 188.  
Dick contra Dick, P. 202.  
Dick contra Oliphant, P. 215.  
Dickison contra sandiland's, P. 5.  
Donaldson contra Rinnie, P. 217.  
Douglas contra L. Wamphray, P. 258.  
Douglas contra Jackson and Grahame, P. 121.  
Douglass contra Carlyle, etc. P. 132.  
Drumelʒier contra E. Tweeddale, P. 191, 215.  
Drumkilbo contra Mcmath and Oliphant, P. 223.  
Drummond contra Menʒies, P. 92.  
Drummond Rickarton contra P. 157.  
Dumfermling E. contra E. Callender, P. 161, 178.  
Dundass contra Turnbul, and other Creditors of Whitehead of Park, P. 163.  
Dundee Town contra E. Findlater, P. 59  
Dundonald E. contra Glenagies and the E. Marr, P. 141.  
Dunmure contra Lutfutt, P. 138.  
Dunse Presbytrie contra P. 122.  
Durham contra Durham. P. 195.   

E.  
EDinburgh Town contra E. Loudoun, P. 101.  
Edmondstoun contra Preston, P. 103.  
Elis contra Keith and Wiseheart, P. 4, 38  
Elies contra Wiseheart, P. 10.  
Elis contra Hall and others. P. 148.   

F.  
FAlconer contra E. Kinghorn, P. 6.  
Ferguson contra More, P. 4.  
Ferguson contra P. 69.  
Findlay contra Little, P. 184.  
Fyffe contra Daw, P. 39  
Forbes contra Blair, P. 33.  
Forbes contra Inns, P. 52.  
Forbes contra Ross, etc. P. 148.  
Fordel contra Caribber, P. 211, 213.  
Fountain contra Maxuel, P. 48.  
Fraler contra Hog, P. 173.  
Fullerton contra Laird of Boyne. P. 116.   

G.  
GAlbraith contra Lesly, P. 175.  
Gardner contra Colvil, P. 44.  
Gibson contra Fife, P. 160.  
Gibson contra Reynold & Tailʒeor. P. 145.  
Gilchrist contra Murray. P. 136.  
Gilespie contra Auchinleck P. 50.  
Glasgow (Town) contra P. 58.  
Glasgow (Town) contra Greenock. P. 193.  
Galsgow (College) contra Parochiners of Jedburgh. P. 195.  
Glasgow (procurator Fiscal) contra Cowan. P. 216  
Glencairn (Earl) contra Brisbaines. P. 204. 213.  
Glencorse (Laird) contra his Brethren and Sisters. P. 53.  
Glendoning contra E. Nithsdale. P. 102.  
Gordon contra Pitsligo. P. 82.  
Gordon and Ludquharne contra P. 93. & seq.  
Govan contra Paip. P. 21.  
Grahame contra Rome. P. 214.  
Grants and Row contra Viscount of Stormount. P. 4.  
Grant contra Grant P. 126.  
Grant contra Barclay. P. 158.  
Grant contra Lord Bamff. P. 198.  
Grace contra Gordon. P. 16.  
Grace contra Forbes and Lindsay. P. 68  
Grace contra Cockburn. P. 129.  
Grierson contra Laird of Lag. P. 192.  
Grott contra Sutherland. P. 68   

H.  
HAll contra Murray: P. 138.  
Halcartoun (Lord) contra Robison. P. 144.  
Halyburton contra Halyburton. P. 16.  
Halyburton contra Scott. P. 63.  
Halyburton of Innerleiths' Petition. P. 145.  
Hamilton contra Broun. P. 27.  
Hamilton contra Smith P. 37.  
Hamilton contra Symenton. P. 38.  
Hamilton contra Lord Beilhaven. P. 49.  
Hamilton contra Earl of Kinghorne. P. 81.  
Hamilton contra Maxuel. P. 133.  
Harper contra Hamilton P. 13.  
Harroway contra Haitly. P. 31.  
Hartshaw contra Hartwoodburn. P. 27.  
Hattoun (Lord) contra Baterson. P. 66.  
Hay contra Litlejohn. P. 28.  
Hay contra Magistrates of Elgine P. 17.  
Hay contra Oliphant. P. 36.  
Hay contra Drummond. P. 47.  
Hay contra Jamison and Alexander. P. 108.  
Hay contra Grace. P. 125.  
Hay contra Alexander. P. 162.  
Heckford contra Ker. P. 129.  
Hedderwick contra Wauch. P. 10.  
Hempsfield contra Bannatyne. P. 98.  
Henderson contra Henderson. P. 68  
Henderson contra P. 40.  
Hermistoun contra Lord Sinclar. P. 39  
Hermistoun contra Cockburn. P. 69.  
contra Hepburne. P. 74.  
Hilton contra Lady Chains P. 165.  
Hog contra Countess of Home. P. 49.  
Holmes contra Marshell. P. 218.  
Home contra Creditors of Kello P. 26.  
Home contra Countess of Murray. P. 35.  
Homes contra Paterson. P. 50.  
Home contra Fewars of Coldinghame. P. 52.  
Home contra Tailzifer. P. 58.  
Home and Elphingston contra Murray. P. 89.  
Home contra Scot P. 192.  
Home contra Stevart. P. 214.   

I.  
JAffray contra Murray. P. 185.  
Jaffray contra Laird Wamphray. P. 211.  
Inglis contra Boswell. P. 187.  
Inglis contra Inglis. P. 195.  
Inglis contra Laurie. P. 211.  
and Laird Innes contra. P. 57  
Innerness (Town) contra Forbes etc. P. 77.  
Inns contra Inns. P. 99  
Johnstoun contra Cuninghame. P. 35.  
Johnstoun contra Erskine. P. 62.  
Johnstoun contra Cullen. P. 165.  
Johnstoun contra Orchartoun. P. Ibid.  
Johnstoun contra Rome. P. 184.  
Johnstoun of Wamphry Supplicant. P. 153.  
Irving contra Carruthers. P. 117.  
Irving contra Forbes. P. 169.  
Irving contra Irving. P. 175.  
Justice contra Stirling. P. 58.  
Justice Clerk contra Lamberton. P. 46.   

K.  
KEith contra Lundie. P. 39  
Keith contra Grahame. P. 60.  
Kelhead contra Irving and Borthwick. P. 92.  
Kennedy contra Hamilton. P. 19  
Ker contra Ker. P. 39 61. 191. 216.  
Ker contra Ruthven. P. 71.  
Ker contra Hunter. P. 200.  
Ker contra Fleyming. P. 35.  
Key contra Creditors P. 142.  
Kilburny contra Cuningham. P. 70.  
Kincaid contra Gordon. P. 225.  
Kinghorn (Earl) contra Laird Udney: P. 53.  
King's Majesties Letters to the Lords of Session. P. 71.  
Kinloch contra Rait. P. 91.  
Kinnier contra P. 122.  
Kyle contra Grace. P. 126.   

L:  
LAmingtoun ontra Raploch. P. 177  
Langlands Supplicant. P. 137.  
Lauderdale (Earl) contra Vassals of Musselburgh. P. 48.  
Lauderdale (Earl) contra Lady and Lord Yester. P. 134.  
Lepar contra Burnet. P. 5.  
Lesly contra Bayne. P. 21.  
Lesly contra Lesly. P. 25.  
Lesly contra Fletcher. P. 181.  
Letter from the Lords of Session to the King. P. 102.  
Linlithgowes' Freeholders contra their Commissioners to Parliament. P. 76.  
Litlejohn contra Mitchel. P. 198.  
Livingston contra Garner. P. 137.  
Lugtoun (Lady) contra Hepburne and Creichtoun. P. 67.  
Lumsden contra Summer. P. 30.  
Luss (Laird) contra Earl of Nithsdale. P. 100  
Lion King at Arms contra P. 13.   

M.  
Mackbrae contra Mclaine. P. ●7.  
Mcintoish contra Frazer. P. 100  
Mcintoish contra McKenzie. P. 110.  
Mckenzie contra Fairholm. P. 11. 14. & 23.  
Mck●ttrick contra P. 56.  
Mcleod contra Young. P. 5●  
Mcmillan contra Meldrums. P. 128.  
Mcne●sh contra Bryce and her Husband. P. 155.  
Mcquaill contra Mcmillan. P. 15●.  
Malloch contra the Relic of David Boid. P. 222.  
Marshell contra Forrest and his Spouse. P. 160.  
Marshel contra Holmes. P. 195.  
contra Martin. P. 118.  
Mastertouns Creditors and Relict. P. 154.  
Maxuel contra Tenants of Duncow. P. 64.  
Maxuel contra Maxuel. P. 105.  
contra Maxuel. P. 100  
Meldrum contra Tolquhone. P. 104.  
Menʒies contra Burnet. P. 14. 28.  
contra Miln. P. 21.  
Miltoun (Lady) contra Whiteford. P. 64.  
Minister Moram contra Bairfoot. P. 11.  
Mitchel contra Mitchel. P. 30.  
Mitchel contra Litlejohn P. 174.  
Mitchelson contra Mitchelson, P. 204.  
Monmouth (Duke) and Duchess contra Scot P. 40.  
Monmouth (Duke) contra Earl of Tweeddale. P. 117.  
Monteith contra E. Callender and Gloret. P. 22.  
Mr. Henry Morison, P. 141.  
Mowbray contra Arbuthnet, P. 90.  
Mouswel La. contra the Creditors on the Estate, P. 152.  
Mouswel its Creditors contra the Lady and her Children, P. 205.  
Mure contra Law, P. 73.  
contra Murehead and Scot, P. 60.  
Murray contra Tutor of Stormont, P. 71.  
Murray contra P. 217.   

N.  
NAirn contra Scrymgeor, P. 170.  
Nairn contra Stewart, P. 215.  
Neilson contra Arthur, P. 67.  
Neilson contra P. 170.  
Nevoy contra L. Balmerinoch, P. 196.  
Newburgh (Earl) contta Stewart, P. 15.  
Nicolson contra Laird of Philorth, P. 50.  
Nisbet contra Hamilton, P. 157.   

O.  
OGilvie contra Buckie, P. 164.  
Oliphant contra Drummond, P. 7.  
Oliphant contra P. 112, 143.  
Oxford Viscount contra Cockburn. P. 210.   

P.  
 contra Veatch, P. 201.  
Paplay contra Magistrates of Edinburgh, P. 61.  
Park contra Rysly, P. 158.  
Parkman contra Allan P. 55, 61.  
Paterson contra Johnston, P. 187.  
Paterson contra Mᶜkenzie, P. 189.  
Paton contra Stirling of Ardoch, P. 63, 75, 82.  
Patrick contra Anderson, P. 220.  
Perths' Sheriff contra P. 153.  
Petrie contra Richart, P. 12.  
Pilton contra Creditors of the Lord Sinclar, P. 87.  
Pitmedden contra seaton's, P. 96.  
Pitrichie (Lord) contra Laird Geight, P. 181.  
Pittarro contra E. Northesk, P. 97.  
Pittarro contra Tenants of Redmyre, P. 166.  
Pollock contra Pollock, P. 45, 57  
Pringle contra Cranston, P. 4.  
Pringle contra Pringle, P. 221.  
Purves contra Blackwood, P. 20.  
Purveyance contra Knight. P. 220,   

R.  
RAe (Master) contra Dumbyth. P. 156. 218.  
Ramsay contra carstair's. P. 69.  
Ramsay contra Zeaman. P. 168.  
Rankin contra Skelmorly. P. 47.  
Rattraw contra P. 125.  
Reid contra Tailzifer. P. 20  
Reid contra Lady Lundy. P. 65  
Reynolds contra Erskines. P. 182  
Rig contra Rig. P. 166.  
Rioch contra P. 49.  
Rutherford contra Weddel. P. 193.   

S.  
sandiland's contra Earl of Hadington. P. 69.  
Scott contra Murray. P. 127  
Scott contra Kennedy. P. 155  
Scott contra Toish P. 191  
contra Scot P. 60  
Scrimgeor contra Kingheny P. 111  
Shaw contra P. 26. 58  
contra Sheill P. 176  
Sheill contra Parochiners. P. 190  
Simpson contra Adamson P. 59  
Sinclar (Hugh's) Creditors contra Annandale. P. 71  
Sinclair contra Home P. 215  
Spence contra Scot P. 184  
Spencerfield (Lady) contra Hamilton P. 75  
Steill contra Hay P. 9  
Stenhouse (Laird) contra Heretors of Tweedmoor P. 168  
Stewart contra Mcduff P. 89  
Stewart contra Riddoch P. 138. 212  
Stewart contra Hay P. 186  
Stewart contra Whiteford. P. 207  
Strachan contra Morison P. 57   

T.  
TAcksmen of the Customs contra Greenhead P. 45  
Tailfer contra sandiland's P. 214  
Tait contra Walker P. 201  
contra Tait P. 219  
Tarsappies Creditors contra Kilfaunes P. 70  
Tennent, Young etc. contra Sandy P. 200  
Thoirs contra Tolquhone P. 85. 96  
Thomson contra Mckittrick P. 10  
Thomson contra Stevenson P. 26. 30  
Thomson and Halyburton contra Ogilvy and Watson P. 128  
Thomson contra Eleis P. 155  
Torwoodhead (Lady contra Tenants P. 121  
Traquair (Lady) contra Earl of Wintoun P. 60  
Trotters contra Lundy P. 44  
Trotter contra Trotter P. 56  
Tulliallans Minister contra Colvil and Kincardine P. 108  
Tutor to the Laird of Aitons' Daughter Supplicant P. 135   

U.  
URquhart contra Frazer P. 23  
Urquhart contra Cheyne P. 24   

V.  
VA●se contra sandiland's, P. 147, 151.  
Vanse his Petition, P. 146.  
Veatch contra Duncan, P. 3.  
Veatch contra Creditors of Ker and , P. 118, 123, 145, 201.  
Veatch contra Hamilton, P. 154.   

W.  
WAllace contra Symson, P. 179.  
Wallace contra Murray, P. 198.  
Wamphray Laird, Supplicant P. 153.  
Warden contra Berrie, P. 147.  
Watt contra Halyburton, P. 34.  
Watson of Dunykier contra his Vassals, P. 36.  
Watson contra Law. P. 37.  
Wauch contra Jamison, P. 163.  
Weavers of Edinburgh contra Magistrates thereof P. 29.  
Wedderburn contra Scrymgeor P. 9, 14.  
Weir contra E. Brainford. P. 189.  
Weymes contra Bruce, P. 131.  
Whitehead contra Straiton, P. 43.  
Wilkie contra P. 13.  
Wilson contra Magistrates of Queensferry, P. 51.  
Wilson contra Deans, P. 155.   

Y.  
YOung contra Young. P. 29.   

Z.  
ZInzian contra Kinloch P. 30    

An Alphabetical INDEX FOR Finding the Principal Matters handled in my Lord DIRLETON 'S Collection of Decisions. Where it was thought fit, for better Orders sake, to prefix to them Numerical Figures, and the Letter d. Whi●h there and in the following INDEX denotes either Decision or Dispute.  

A.  
ABBEY should not protect against Captions. decision 127.  
ABIDING by a Writ. d. 142. see d. 168. d. 262. d. 265. d. 286. d. 386. d. 403.  
Abideing by a Bond, as truly assigned and delivered by the Cedent. d. 11.  
Abideing by, in Improbations. d. 291.  
ABSOLUTE Warrandice of Kirk-lands, extended to warrant from the designation of a Gleib; Tho it was Alleged, That ex natura rei, and not ex defectu Juris the Gleib was evicted; but not to extend to a Supervenient Law. d. 93.  
ACTIO TUTELAE. d. 314.  
ACT before Answer. d. 183.  
ADJUDICATION. d. 270. d. 305. d. 324. see. d. 45. d. 107.  
Adjudication of the Earl of Bramfords' Estate. d. 387.  
ADVISEING of the Cause. see d. 73  
If an ADVOCATE, upon a Bill summarily given in against him, be obliged to deliver up. v. g. Goods entrusted to him; or if he be only obliged to Answer summarily in Complaints against him, in Relation to his Office and Trust? d. 290.  
Advocates, who had withdrawn, their Petition for Readmission. d. 226.  
ADVOCATION. d. 261. d. 228. d. 294. d. 396.  
Advocation of an Edict of Executry. d. 433.  
Advocation upon a Competition of double Rights. d. 279.  
All Advocations, before they be passed, to be Reported to the whole Lords. d. 260.  
ALIENATIONS in prejudice of Creditors. d. 287.  
ALIMENT. d. 165. d. 177. d. 414. d. 455.  
Aliment and Fee. d. 350.  
Aliment craved in the interim, until a Provision falls payable. d. 2.  
ANN. see d. 194. d. 379.  
ANNUALRENT. d. 408. see d. 45. d. 146. d. 154. d. 266. d. 407.  
An Annualrenter Comprysing for the principal Sum, may pass from his Comprysing, and recur to his Infeftment of Annualrent. d. 83.  
ANNUITY. see d. 241.  
Annuity payable out of the first and readiest Rents, found to be entirely due, though the Rents were exhausted with Debts. d. 99  
Annuity to a Wife out of Lands, liable to Public Burdens, d. 143.  
APPEARAND HEIR. d. 119. see d. 63. d. 95. d. 270. d. 450.  
Appearand Heir to a Baron, cannot have a Movable Heirship, not being actually Baro. d. 209.  
ARBITRIUM JUDICIS not allowed to alter a punishment determined by Law. d. 20.  
ARRESTMENT. see d. 201. d. 300.  
Arrestment being on a Decreet, turned thereafter into a Lybel, may be loused. d. 284.  
Arrestment cannot be loused upon pretence, that it was laid on after the Decreet was Suspended. d. 263.  
First Arrestment, though last Decreet of forthcoming (being sine mora) found preferable. d. 110.  
Arrestment upon a Dependence. d. 237.  
ARTICULATUS LIBELLUS. see d. 314.  
ASSIGNATION. see d. 123.  
Assignation, after Summons Execute, not sustained as a Title, albeit the Cedent concurred. d. 46.  
Assignation Blank in the Creditors Name. d. 54.  
Assignation by a Wife to her Husband by her Contract of Marriage. d. 195.  
Assignation not intimate in the Cedents Life-time. d. 51.  
An Assignation to mails an Duties in all time coming, obliges the Cedent and his Heirs, to grant a Disposition, whereupon the Assigney may be Infeft. d. 89.  
ASTRICTION. d. 293. d. 351. see d. 173.  
ATTESTER of a Cautioner acquit, proving that the Cautioner was then Repute Responsal as to that Debt. d. 121  
AVAIL of Marriage. see d. 415.   

B.  
BACKBONDS. d. 211. see d. 162.  
Backbond to the Exchequer. see d. 198.  
Backbonds by Comprysers .. d. 374.  
BACKTACK. see d. 57  
BAILIF. see d. 131,  
BANKRUPTS. d. 94. see d. 198. d. 249. d. 282. d. 287. d. 292.  
BANNA. see d. 13.  
BARON. d. 209.  
BASE Infeftments. d. 461.  
A Base Infeftment sustained to a Wife as public, others being in possession by Redeemable Rights from the Husband, though he was not in possession himself. d. 100  
BEHAVING as Heir. d, 400. d. 450. d. 462.  
BENEFICE. see d. 115.  
BIDEING be. see Abideing be a Writ. Litera A.  
BILLS of Exchange. d. 231. d. 365. see d. 236.  
BISHOPS. see d. 194. d. 375.  
BLANK Writs. d. 334. d. 403. see d. 54. d. 139.  
BONAE fidei possessor. d. 123.  
BOND blank in the Creditors Name. d. 139.  
A BOND being granted by a Wife and her Husband with a Clause to Infeft; though null as to the Obligement to pay the Sum yet valide as to the Right of her Lands. d. 6. d. 25.  
A Bond granted by a Father to a Daughter is revockable, if it be not completed by delivery, or by Infeftment, if it be Heretable: Or by Assignation intimated, or confirmed Testament, if it be Movable. d. 106.  
Bond of provision. d. 140. see d. 384.  
A Bond to a Husband and his Wife, and the longest liver, and the Heirs betwixt them, and to the Heirs of the longest Liver, Found to make the Husband Fire. d. 144.  
A Bond reduced, being Subscribed by one Notar in a matter of Importance. d. 135  
A Bond whereof the Term of payment was long after the Date, and Annualrent to be paid in the interim, Found Heretable quoad fiscum. d. 39  
Bonds granted on Death bed. d. 402. d. 449.  
Bonds of provision undelivered, though prior in date but posterior in delivery, cannot affect the Fee interveening. d. 129.  
BONORUM. d. 282.  
BOOKING of Seasins. see d. 384.  
BOX of Journeymen. see d. 70.  
BURGAL Lands. see d. 22, d. 190.  
A Burges that is not Incola. see d. 430.  
burgh's of Barony. see d. 395.  
burgh's Royal. see d. 78. d. 124. d. 190.  
If burgh's Royal cannot fine Unfreemen for Tradeing, but only Charge them to desist. d. 79,   

C.  
CAPER. see d. 247.  
CAPTIONS. see d. 127.  
CAUSA data & non secuta. d, 308.  
CAUTIONER. see d. 26. d. 31. d. 50. d. 55. d. 121. d. 122. d. 147. d. 213.  
If Cautioners may take Assignation, and burden the Cocautioners with the whole Debt? d. 212. d. 228.  
If Cautioners will be liberate, when Magistraters are Liable loco Rei ex delicto? d. 91.  
CERTIFICATION in Improbations d. 210. d. 230.  
Certification in an Improbation, of an Old Comprysing, not sustained. d. 50.  
Certification pro confesso. see d. 243.  
Certification in an Improbation being Extracted, production of the Writ immediately thereafter will not Repone against the same. d. 80.  
Certification in an Improbation not granted, where the Defender produced a more Eminent progress than the Pursuer, until that were discussed. d. 113.  
In a CESSIO bonorum, The ordinar Oath runs in their Terms, That the Bankrupt had made no fraudulent Right, since the subscribing of the Disposition. d. 292.  
CHAMBERLANES. see d. 37.  
CHARGES upon six days benorth Dee. d. 222.  
children's Provisions. d. 344. d. 373. see d. 418. d. 437.  
CIRCUMDUCTION of the Term. d. 307.  
Circumduction of a Decreet Reponed against as to Personal, but not as to Real Execution. d. 98.  
CITATION. d. 243. see d. 232. d. 367.  
Citation of Parties out of the Country. d. 170.  
CLAUSE cum Curiis & Bloodwitis. see d. 5.  
The Clause cum Molendinis & multuris Importeth freedom from Astriction. d. 1.  
Clause de non alienando. d. 136.  
Clause in favours of a Husband and Wife, and their Heirs, makes the Husband Fire, as persona dignior. d. 85.  
Clauses of Conquest. d. 359.  
Clauses of Conquest, how to be understood in Contracts of Marriage? d. 9  
COALS. see d. 220.  
Coals constant and casual Rent, how modified? d. 175.  
COLLECTORS Fee. see. d. 65.  
COLLEGIAT Church. see d. 112.  
COMMISSARY-Court. see d. 314.  
Commissaries. see D. 221.  
COMMISSION. see d. 207. d. 208.  
Commission, for taking of a Stranger's Oath in Holland, sustained, though not subscribed by the Party, being Subscribed by the Judges there. d. 239.  
COMMISSIONERS. see d. 188.  
COMMUNION betwixt Husband and Wife. d. 136. see d. 302. d. 315.  
COMMUNITY and Pasture, and casting Peats and Truff. d. 149.  
COMPENSATION. d. 191. d. 326. d. 366. see d. 200. d. 211.  
Compensation a quo tempore to be sustained? d. 309.  
Compensation against a Comprysing. d. 362  
Compensation when granted against an Assigney upon a Debt of the Cedent? d. 3.  
COMPETITION betwixt Assigneys and Arresters. d. 201.  
Competition betwixt Donator and Creditor, d. 249.  
Competition betwixt a Compryser and an Annualrenter. d. 328.  
Competition betwixt Creditors and Children. d. 384.  
Competition of double Rights. see d. 279.  
Competition of posterior Creditors, with Creditors by Bonds, without an Onerous Cause. d. 438.  
Competition of Heirs and discussing. d. 69.  
COMPOSITION. see d. 174.  
COMPRYSING. d. 235. d. 251. d. 439. d. 458. see d. 24. d. 44. d. 63. d. 83. d. 133. d. 211. d. 230. d. 203. d. 385. d. 362. d. 374.  
Comprysing of a Wadset, d. 330.  
Comprysing upon a Charge to enter Heir Null; the person, at whose instance the charge was, having no Right to the Debt the time of the Charge, but acquired thereafter. d. 47.  
Comprysing upon a Heretable Bond, without Requisition sustained. d. 22.  
Comprysing does not extinguish a Wadset. d. 134.  
comprisings before the Year 1652. not regulat by the Act Debtor and Creditor. d. 60  
A Compryser upon Debts, anterior to the Debtors Rebellion, being Infeft before Year and Day, is preferable to the Donator of the Liferent Escheat. d. 178.  
COMPT-Books of Merchants. d. 452.  
CONDITION. see d. 18. d. 32.  
Condition Resolutive. see d. 397.  
Conditions copulative. d. 423.  
Conditions in Contracts of Marriage, si non sint liberi, etc. d. 364.  
CONDUCTIO Rei dubiae. see d. 108.  
Couductores Vectigalium. Ibidem.  
CONFESSION presumptive of a person holden as confessed. d. 217.  
CONFIDENT persons getting Dispositions from Debtors, may at the Debtors desire satisfy such Creditors, as they shall think fit. d. 174.  
CONFIRMATION necessary in Scotland of goods there, belonging to Strangers elsewhere. d. 21.  
CONJUNCT probation of the value of Lands. d. 431.  
CONQUEST. see d. 9 d. 359.  
Conquest found probable by the Debtor, and Witnesses in the Bond. d. 68  
CONSIGNATION in Improbations d. 278.  
CONSVETUDO Loci. d. 390.  
CONTINGENTIA Causae non debet dividi. see d. 288.  
A CONTRACT Subsequent to a Wadset, (whereby the Back-tack duties, are accumulated and made a princial Sum, and that there should be no Redemption, till these were Satisfied) not regarded, in respect the said Contract was not Registrate, in the Register of Reversions. d. 27.  
Contracts of Marriage. see d. 9 d. 123. d. 161. d. 169. d. 172. d. 185. d. 195. d. 364.  
CORREI debendi. see d. 231.  
COUNTERBAND Goods. d. 132. d. 153.  
CREDITORS on the account of Funerals and Drugs. d. 206.  
When Creditors do appear in Adjudications not called, they ought to be admitted with that quality, that the Adjudger shall be in the same case, as to any Adjudication at their Instance, as if both Adjudgers were within Year and Day. d. 324.  
CURATOR. d. 363. d. 435. see d. 88 d. 316.  
Curator non datur personae, sed rebus, so that the Minors. person is not in potestate. d. 321.  
Curators' Subscriveing only to Writs and not the Minors. d. 216.   

D.  
DAMNAGE by Ruinous Houses sustained; without necessity to say, that the Defender was required to repair his House. d. 66.  
DATE. see d. 179.  
DEATHBED. Vide in Lecto. Litera L.  
DEBTOR non praesumitur donare how to be interpret? d. 333.  
DEBITUM Fundi. d. 274. d. 372.  
DECIMAE inclusae not Liable to the Augmentation of Ministers Stipends. d. 229.  
DEEDS in Lecto. see in Lecto Lit. L.  
DECLARATOR of, Redemption. d. 276.  
A Declarator, that children's Provisions, being granted after Contracting of the Debt, should be Liable to the Creditors and their Diligence, sustained without Reduction. d. 344.  
Declarator general of Nonentry being intented, the hail Duties are due. d. 28.  
Declarator of the Nullity of a Minute. d. 118.  
DECLINATOR of Judges. d. 303.  
DECREET see d. 98. d. 203.  
A Decreet against a person holden as confessed craved to be declared Null. d. 232  
Decreets in foro. d. 361. see d. 225. d. 370.  
Decreets of Inferior Judges. see d. 445.  
DEFENCE after Litiscontestation. d. 246.  
In DELICTS by Spuilyie and wrongous Intromission Decreets against persons are construed to be in solidum. d. 247.  
DELIVERY of Writts. d. 150. d. 272. d. 442. see d. 106. d. 129.  
Dementia. See d. 76.  
DENOUNCIATION of Lands. see d. 328.  
DEPENDENCE. see d. 36.  
DEPOSITIONS of Witnesses in one Process craved to be repeated in another. d. 219.  
Depositions of Witnesses to lie in Retentis. d. 236.  
DESIGNATION of Lands for a Gleib, and relief thereof, conform to the Act of Parliament from the rest of the Heritors, but Annualrent found not due from the time of the Designation. d. 352.  
DISCHARGES granted by a Master to Tenants without Witnesses. d. 189.  
A DISPONER may qualify his Right, and in special if the person be a Pupil; that such as are named in the Disposition, should Administrate. d. 316.  
A Disposition made after Inhibition, but before the Registration of the same, may be reduced ex capite Inhibitionis. d. 254.  
DISCUSSING of Heirs. see d. 69.  
DONATIO inter virum & Vxorem. d. 204. d. 426. d. 362.  
DONATOR. see d. 14. d. 249. d. 389. d. 411.  
A Donator of ultimus Haeres: d. 38.  
The Donator, a quo tempore has he Right to the full Rents? d. 273.   

E  
EDICT of Executry. d. 433.  
EJECTION sustained at the Master's instance, though the Tennent did not concur, but not quoad omnes effectus. d. 19  
Ejection sustained at the Wife's instance, where the Husband is absent. d. 105.  
ERROR and mistake. d. 338.  
ESCAPE of Prisoners. d. 299. d. 301. d. 306.  
ESCHEAT. see d. 14. d. 59 d. 75. d. 162. d. 205. d. 331. d. 409. d. 411.  
Escheat passes cum sua causa. d. 177.  
EXAMINATION of Witnesses in an Improbation. d. 42.  
EXCEPTIO Falsi proponed peremptory d. 126.  
Exceptions quo casu they affirm the Lybel. see d. 199. d. 223.  
EXCHANGE. see d. 231.  
EXECUTOR. d. 62. d. 182. d. 454 d. 412. see d. 181. d. 187. d. 205. d. 224.  
An Executor has not an absolute property in the Goods confirmed, but only qualified and for Administration. d. 302.  
Executor Creditor. see d. 389.  
Executor Creditor Liable to do Diligence. d. 35.  
Executors giving Oath upon the Inventar. d. 97.  
EXERCITORES navis Liable in solidum. d. 166.  
EXHIBITION sustained of Writts' intrometted with by the Defender, albeit not proven, that he had them at or since the intenting of the Cause, he having meddled with them in the Charter-chest, whereby fraud is presumed. d. 114.  
Exhibition ad deliberandum. d. 49. d. 258.  
EXPENSES. see d. 281. d. 458.  
Expenses of Executors upon pursueing of Processes do affect Legators. d. 181.  
Anent EXTRACTING of Decreets; and when res est integra as to the proponing of New Defences. d. 203.   

F.  
FACULTY reserved in a Disposition to burden with a Sum. d. 457.  
Faculty reserved out of the Right of Fee, to burden the same with a Sum of Money. d. 418.  
Causa FALSI. see d. 196. d. 385.  
FEES of Commissioners to the Parliament. d. 188.  
FEVARS'. see d. 190.  
FEU-DUTY. see d. 92. d. 229.  
FIRE. see d, 95, d, 136, d, 144, d, 213 d, 350, d, 418.  
FINES. see d, 311.  
FRAUDULENT Rights. d. 48. d. 156.  
Fraudulent Rights contrare to the Act of Parliament 1621. d. 198.  
FUNERALS. see d. 206.  
FORTHCOMING. see d. 110.  
Forthcoming, in effect Execution, and equivalent to a poinding. d. 53.   

G.  
GESTIO pro haerede. d. 151. see d. 119.  
Gestio pro haerede, by Intromission with Rents not sustained, where there is a Title. d. 67.  
Gestio pro Haerede elided by the Behavers having got a Gift of the Defuncts Escheat ante motam litem. d. 331.  
Gestio pro Haerede inferred by the Appearand Heirs consent to expired comprisings. d. 63.  
GIFT of Ward, in favours of the Vassal himself, accresces to the Subvassal. d. 392  
Gifts of Escheat. d, 409, see d, 187, d, 224. d, 249.  
Gifts of Escheat and Backbonds d, 162  
Gifts of Escheat when presumed simulate. d, 411.  
GLEIB. see d, 93. d, 352.  
GOODS Disponed stante rebellione fall under Escheat. d. 75.  
GOVERNORS going Abroad with young men, their case as to their Intromission. d. 421.  
GRANA crescentia. see d, 293.  
GRASS due to Ministers. d, 256.   

H.  
HABIT of Bankrupts. d. 282.  
HEIR. see d, 69, d, 85, d, 169, d, 172, d. 214, d, 353, d, 400, d, 416 d, 450.  
Heir of Line. see d, 107, d, 295.  
If an Heir of Provision may be pursued where the Heir of Line has renounced, but not yet discussed by Adjudication. d, 107.  
Heirs of Conquest see d, 295.  
Heirship Movable see d, 151, d, 209.  
HERITABLE. see d. 39  
Heritable Bonds decided to belong, not to the Heirs of Line, but of Conquest. d. 295.  
HOMOLOGATION. see d. 27.  
HORNING. d, 253, d. 422. see d. 59, d, 222. d. 406.  
HUSBAND. see d, 85, d, 100, d, 105 d, 125, d, 144. d. 182, d, 315, d, 319. d, 336.  
Husband and Wife; and how far her Oath will oblige him? d. 71.  
A Husband convened for his Wife's Debt. d. 332.  
A Husband taking burden for his Wife. d. 257.  
A Husband Liable for the Wife's Debt in quantum lucratus; But an ordinary Tocher being ad sustinenda Onera Matrimonii is not Lucrum. d. 10.  
HYPOTHEQUE. see d. 420.   

I  
JACTUS Retis. see d. 220  
IMPENSAE necessariae not allowed to a Compryser, in a Declarator that he was satisfied by Intromission. d. 133.  
IMPROBATION. d. 168. d. 196. d. d. 230. d. 339. d. 262. d. 286. d. 385. d. 386. d. 456. see d. 42. d. 50. d. 80. d. 113. d. 145. d. 163. d. 210. d. 265, d. 278. d. 291. d. 403.  
In an Improbation; an Extract out of the Books of an Inferior Court, does not satisfy the production. d. 285.  
Improbation of Executions before Inferior Judges. d. 444.  
Improbation of poinding will not elide Spuilȝe, being proponed at advising of the Cause. d. 73.  
INCORPORATION, see d. 152.  
INFEFTMENT. see d. 100 d. 160. d. 399.  
INFEFTMENT of Annualrent. see d. 83.  
Infeftment of Annualrent and personal action thereupon. d. 407.  
Infeftment of Annualrent made public, by a poinding of the Ground. d. 341.  
Infeftment of Warrandice base, to be holden of the Granter, preferable to a public Infeftment of property granted thereafter holden of the Superior, and clad with possession divers Years; and the possession of the principal Lands is interpreted the possession of the Warrandice Lands. d. 15.  
INFERIOR Judges. see d. 279. d. 294. d. 406. d. 444.  
INHIBITION, d. 213. d. 254. d. 413.  
Inhibition against a Wise. d. 264.  
Inhibition at the Instance of the Heir of a Marriage. d. 214.  
Inhibition upon a Dependence. d. 36.  
Inhibition upon an obligement to Warrant. d. 116. d. 117.  
Inhibitions do not affect Renounciations; so that the Debtor in a Wadset may pay his Debt and take a Renounciation, though the Creditor Granter be inhibited d. 96.  
INNOVATION. d. 240.  
INSTITORIA Actio. see d. 319.  
INSTRUMENT of Requisition must be perfected, and cannot be supplied by an unsubscribed minute after the Notars decease. d. 102.  
INSTRUMENT Bellica see d. 132.  
Instrumenta quae in quibusdam sapiunt naturam Testamenti, & in alijs naturam actus inter vivos, cui Juri ascribenda sunt? d. 103.  
Instrumentum penes debitorem repertum. see d. 428,  
INTERDICTION. d. 381. d. 382. see d. 29. d. 34.  
INTERRUPTION. d. 216.  
INTROMISSION. d. 221. d. 224. see d. 67. d. 133. d. 137. d. 187. d. 199. d. 223. d. 205. d. 404.  
INVENTAR. see d. 97.  
JOURNEY-MENS' keeping of a Box. d. 70.  
JUDGES. see Declinator.  
JURAMENTUM in Litem. see d. 322. d. 447.  
JURISDICTION. see d. 279.  
Jurisdiction of a Bailif of Regality. d. 131.  
JUS Mariti. see d. 123.  
Jus praesentationis. see d. 112.  
Jus Relictae. d. 315.  
Jus superveniens. d. 128.  
Jus tacitae Hypothecae how far competent to the Master of the Ground? d. 329.   

K.  
KEEPING of Writs. d. 451.  
Keeping of Writs of Lands, where there is a joint interest, allowed to him who offers Caution to the other portioners. d. 227.  
KING'S Decreet arbitral. see d. 229.  
KIRK. see d. 112.  
Kirk-Lands. see d. 93.   

L.  
In LECTO d. 443. see d. 40. d. 157. d. 186. d. 193. d. 353. d, 402. d. 449.  
A LEGACY, left upon condition, subsists, though the Condition did not exist, when there is praesumptio voluntatis Testatoris. d. 18. d. 32.  
LEGATORS. d. 378. see d. 181. d. 402.  
LEGATUM of a Heretable Sum. d. 197.  
LETTERS of Horning upon the decreets of Inferior Judges. d. 406.  
LIFERENT. see d. 9 d. 33.  
Liferent Escheat. see d. 198.  
A LIFERENTER of the whole must entertain the Fire, though only appearand Heir, the time of the entertainment. d. 95.  
LITISCONTESTATION. see d. 74. d. 119. d. 246.  
LOCUS poenitentiae. d. 192.  
LOOSEING of Arrestment. d. 300.  
LORD of the Outter house adviseing probation. d. 445.  
Lords of Session. see d. 180. see, Trial.  
Lords of Session their Letter to the King. d. 218.  
The LYON sustained Judge Competent in an Action against a Messenger's Cautioner for damnage and interest. d. 30.   

M.  
MAGISTRATES of burgh's. see d. 91.  
Magistrates of burgh's are not obliged to officiate longer than one year. d. 124.  
Magistrates takeing Assignation to a debt, for which they were liable subsidiary, do come in place of the principal, and the Cautioner is liberate. d. 147.  
Magistrates liable for the Negligence of their predecessors; an Incorporation being persona quae non moritur. d. 152.  
MANDATUM excedens how far Liable. d. 259.  
MARRIAGE. d. 415. see d. 202. d. 327.  
MASTER of the Ground. see d. 329.  
MENSAL Kirk. see d. 325.  
MERCES. see d. 220.  
MERCHANTS. see d. 452.  
A Merchant's current account does not prescribe. d. 318.  
MESSENGER. see d. 235.  
METUS. see d. 419.  
A MILN-DAMN cannot be drawn from one side of a Burn to another, without consent of the Heritor having Lands on the other side, or a Servitude. d. 87.  
MINISTER. see d. 25. d. 112. d. 229. d. 256.  
Minister's Stipend. d. 398.  
MINOR. see d. 61. d. 72. d. 88 d. 216. d. 321.  
Minor non tenetur placitare competent against Declarators of Right, but not when the Minor is pursued in a Molestation, where a pursuer is in possession. d. 64.  
A Minor Cautioner for his Father in a Bond, Null. d. 26. d. 31. d. 55.  
MINORITY excluded, It being offered to be proven, that the Minor was then a Traffiqueing Merchant. d. 360.  
Minority and Lesion. d. 369.  
MODIFICATION of Expenses. d. 281.  
Clause cum MOLENDINIS & Multuris. see d. 1.  
MOLESTATION. see d. 64.  
MOOR. see d. 86.  
MORTIFICATION. d. 379.  
Mortification for a Library Keeper to the College of Aberdeen. d. 269. d. 27.  
MOVABLE Bond. d. 424.  
Movable Heirship. see d. 209.  
Movable Sums. see d. 342.  
Movables Disponed to a Wife with the burden of the Debts, and that they shall be affected with the same, yet the Property thereof is settled in the person of the Wife. d. 320.  
MUIR. see Moor.  
MULTURES. see d. 58. d. 293.   

N.  
NAUTAE, Caupones etc. If it takes place in the case of a Horse stolen out of the Park, it being told the Pursuer, that the Keeper would not be Answerable? d. 104.  
NEAREST of Kin. see d. 389.  
NEGOTIORUM Gestor. d. 357.  
NON Creditur Referenti nisi constet de Relato, how to be understood? d. 347.  
NON ENTRY. see d. 28. d. 273.  
NON Memini. d. 245.  
NOTAR. see d. 102. d. 135.  
NOTARS' Subscription in subsidium wanting the solemnity de mandato, if Null? d. 81.  
NOVATION. see d. 240.   

O.  
OATH. d. 453. see d. 97. d. 101. d. 225. d. 239. d. 245. d. 280.  
Oath of a Tutrix after she was clothed with a Husband. d. 336.  
OBJECTION aga nst a Right of Annualrent, not competent to hinder a Decreet of Adjudication thereupon, but reserved to the poinding of the Ground. d. 45.  
OFFER of Victual payable betwixt Zuil and Candlemass. d. 267.  
ORDER of Redemption. see d. 251.   

P.  
PARLIAMENT. see d. 188.  
A PARTY holden as confessed being out of the Country upon a citation at the Mercat Cross of Edinburgh. d. 367.  
PARTIES having Interest not called. d. 244.  
If Parties may be Reponed against a Decreet in foro. d. 370.  
PARTNERS and socii Liable in solidum conjunctly and severally. d. 8.  
The PASSIVE Title of Intrometter, not sustained after the Intrometters decease to make Liable as Universal Intrometter but in quantum locupletatus. d. 404.  
The Passive Titles are not acknowledged by a Defence in Jure; Otherways, if the Defence be founded upon a Right in the person of the Predecessor. d. 199. d. 223.  
PASTURE see d. 149.  
PATRON. see d. 25.  
PAULIANA actio. see d. 287.  
PAYMENT of Feu-duties probable prout de Jure. d. 92.  
PERSONAL Faculty. see d. 364.  
PIRATES see d. 357.  
Locus POENITENTIAE. see d. 192.  
POINDING. see d. 73.  
Poinding of the Ground. see d. 338. d. 341. d. 146.  
Poinding to be begun before setting of the Sun, and completed before Daylight be gone. d. 250.  
POSSESSION. see d. 161.  
Possession of a part validates an Infeftment of Annualrent in solidum. d. 154.  
POSSESSORY Judgement. d. 393.  
A Possessory Judgement only competent by virtue of a Real Right. d. 155.  
PREBEND. see d. 112. d. 440.  
Receiving PRECEPTS upon Chamberlands (for the Creditors farther security) do not oblige them to the formalities of protesting, presenting etc. d. 37.  
PRESCRIPTION. d. 196. d. 271 d. 318. d. 322.  
Prescription, as to a Cautioner, elided by payment of Annualrent by the principal d. 112.  
Prescription of Annualrent, if stopped by a Decreet of poinding the Ground against the Tenants, the Heretor not being called? d. 146.  
Prescription of Horning, as to Escheat, interrupted by the King's Minority, and the late Usurpation. d. 59  
PRESENTATION to a prebendary with a Substitution. d. 440.  
PRESUMPTIONS for taking away of a Bond. d. 215.  
PRISONERS, see d. 299.  
Prisoners for small Debts, viz. not exceeding 200 Marks, may be enlarged with the Parties consent, without Relaxation. d. 238.  
If Prisoners for a Debt may be allowed by permission from the Lords to go out in the Day time with a Keeper? d. 298.  
PRIVILEGED Debts. see d. 206  
PRIZE. d. 207. d. 208. see d. 132. d. 247.  
In a Prize, Found, that the Owners may be heard to Reduce the Sentence upon Reasons omitted by the Skipper. d. 120.  
PROBATION. d. 410.  
Probation by Witnesses. d. 427. d. 428. d. 432. see d. 419.  
Probation prout de Jure. d. 158. d. 160.  
PROCLAMATION remitting Fines, due upon the contraveening of penal Statutes. d. 311.  
PRODUCTION in an Improbation see d. 285.  
PROGRESS of Writts. d. 356.  
PROMISE see d. 192.  
Promise not probable by Witnesses. d. 317  
PROPER Wadsets. d. 268.  
PROTECTIONS are understood to be allowed, only in the case when persons are obliged to appear personally to be Witnesses; or to give their Oaths before the Session, Exchequer, etc. and cannot appear by procurators. d. 313.  
PROVING the Tenor of a Comprising d. 283.  
Proving the Tenor not sustained, without a sufficient Adminicle in Writ. d. 77.  
PROVESTS of burgh's Royal not Liable subsidiary, albeit, being charged, they go not personally to apprehend Rebels, having sent their Officers. d. 78.  
PROVISION in a Contract of Marriage in favours of Heirs Female, d. 169 d. 172.  
Provision to a Wife in Lecto restricted to a Terce. d. 141.  
Provisions of Children. d. 373. d. 437. see d. 344. d. 418.  
PUBLICATIO Testimoniorum allowed in no case, but Improbations ex quaestione falsi. d. 163.  
Public Burdens. see d. 143.  
Public Infeftments. d. 399.  
PUPIL. see d. 90. d. 242. d. 316.  
A Pupil charged to enter Heir. d. 446.   

Q.  
QUALIFIED Oath. d. 225. d. 280 d. 294.  
A QUALITY in an Oath super facto alieno resolves in an Exception, and must be proven. d. 101.  
QUOTS of Testaments. see d. 375.  
Quots of Testaments not confirmed in the Bishop's Life-time fall not under the Bishop's Executry or Ann. d. 194.   

R.  
RATIFICATION of a Bond granted by a Wife stante Matrimonio does not bind her, being of a Deed Null in Law. d. 371.  
REAL RIGHT. see d. 155.  
REAL Clause. see d. 41.  
REBEL see d. 411.  
A Rebel being allowed by the Donator to continue in possession for five years, or thereabout, The Gift of Escheat presumed simulate. d. 14.  
REDEEMABLE Rights. see d. 100  
REDEMPTION. see d. 251. d. 276. d. 358.  
REDUCTION. see d. 7. d. 72. d. 237.  
Reduction and Production therein. d. 111  
Reduction at the instance of a Creditor of a Reversion, granted not to the Debtor himself, but to his Heirs allenarly. d. 417.  
Reduction ex capite metus. d. 419.  
Reduction ex capite Minoritatis. d. 61.  
Reduction ex capite Minoritatis sustained of a Bond granted with consent of Curators, albeit the Money was delivered to them, seeing it was not converted to the Minors use. d. 88  
Reduction ob non solutum Canonem. d. 401.  
Reduction of an Interdiction. d. 34.  
Reduction of an Interdiction, the person being rei suae providus. d. 29.  
Reduction, of an usurary Bond or Contract, must be with concourse of the King's Advocate. d. 56.  
In a Reduction of a Testament ex capite dementiae, the pursuer ordained to condescend on qualifications inferring it. d. 76.  
REGALITY. see d. 131.  
REGISTRATION of Sasines of Burgal Lands. see d. 22.  
RELICT. d. 448.  
A Relict not kenned to her Terce, cannot stop a Removing. d. 234.  
A Relict provided to a Liferent of all Goods belonging to her Husband, aught to sell such Goods as may perish, and make the Sum arising therefrom forthcoming after her decease. d. 32.  
A Relics Liferent burdened with a Sum of Money, borrowed by the Husband for making the purchase of the said Right, viz. as to the Annualrents of the said Debt dureing the Relics Life-time. d. 9  
RELIEF. see d. 82. d. 212. d. 228.  
Relief de Jure inest, where persons are obliged conjunctly and severally as principal Debtors. d. 4.  
REMOVEING. see d. 234.  
RENOUNCIATION not allowed from one, who had granted Bond, that the Estate might be adjudged. d. 380.  
Renounciations. see d. 96. d. 119. d. 270 d. 276.  
RENTS. see d. 99  
REPLY of Majority Found probable by the Pursuer only, and a Conjunct Probation denied. d. 349.  
REPROBATORS. d. 383.  
Reprobators, upon probation of Corruption probable prout de Jure after Sentence. d. 160.  
REQUISITION. d. 425. see d. 22 d. 102.  
RES inter alios acta. see d. 219.  
Res Litigiosa. see d. 370.  
RESERVATION of a power to burden Heirs etiam in Lecto. d. 353.  
RESOLUTIVE Condition. d. 397.  
RESTRAINT. see d. 299.  
RETENTION. d. 241.  
In RETENTIS. see d. 74.  
REVERSION. see d. 27. d. 276. d. 417.  
If Reversions, limited to a time, do prescrive against Wives clad with Husband? d. 297.  
ROYAL burgh's and burgh's of Barony their Liberties. d. 395.  
RUINOUS Houses. see d. 66.   

S.  
SASINE. see d. 22. d. 345.  
Sasine by a Husband to his Wife propriis manibus. d. 125.  
A Sasine within Burgh not booked. d. 348.  
SERVICE of Heirs. d. 416. see d. 323.  
SERVITUDE see d. 87. d. 312.  
A Servitude, of a Divot in a Moor, found not to hinder an Heritor to Labour and improve the same, there being so much thereof set apart as would satisfy the end of the Servitude. d. 86.  
SESSION-Books do not prove the Age of a Party, to infer Reduction ex capite Minoritatis. d. 72.  
SINGLE avail of Marriage. d. 202.  
SOCII. see d. 8.  
SOLENNES Induciae. see d. 167.  
In SOLUTUM data. d. 200.  
A SUN subscribing as Witness to the Father's Provision, of the rest of the Children on Deathbed, hinders Reduction ex capite lecti. d. 40.  
A SPECIAL service in an Annualrent does give Right to Heretable Bonds, and all other Heretable Estate whereupon Infeftment did not follow. d. 323.  
Post SPONSALIA & Banna, a Woman not sui Juris, and can do no deed in prejudice of herself, or of her future Husband, without his consent. d. 13.  
If SPONSIONES ludicrae, anent Marrying, aught to be allowed? d. 327.  
SPULZIE. d. 447. d. 459. see d. 322.  
Spuilyies being restricted to wrongous' Intromission, the Defenders are not liable in solidum but conjunctly. d. 137.  
STENTS imposed by burgh's upon their Fevers. d. 190.  
STIPENDS. see d. 229. d. 325. d. 398.  
STRANGERS. see d. 21. d. 239.  
SUBSCRIPTION in subsidium. see d. 81.  
SUBSIDIARY Action against the user of false Writs. d, 460.  
SUBSTITUTION. see d. 213.  
A SUBVASSAL, being Infeft by a Baron cum curi●s & Bloodwitis, may hold Courts and unlaw for Blood. d. 5.  
Subvassals, being in possession, aught to be called in an Improbation against the Vassal their Author. d. 145.  
If a SUCCESSOR in a Benefice be Liable for his Predecessors Taxation? d. 115.  
Successor Titulo Lucrativo. d. 130. d. 184 d. 377.  
A SUM, expressly provided by a Clause in a Disposition and Infeftment, to be paid by the Receiver of the Disposition, otherways his Right to be void, such a Clause found Real. d. 41.  
Sums may be Movable, though secured by Heretable Rights. d. 342.  
SUPERVENIENT Title. d. 389.  
SUSPECT Tutor. see d. 90.   

T.  
TACITE Hypotheque. d. 420  
TACK. see d. 145.  
Tack of Teinds. d. 289.  
A Tack, not clad with possession and conferred in tempus indebitum. d. 346.  
A Tack razed in the date. d. 179.  
A Tack, set by a Minister for more than three years without consent of the Patron, how sustained? d. 25.  
Tacks after Redemption. d, 358.  
Tacks; and in what case remittitur Merces? d, 220.  
TACKSMEN of Lands within Burgh. d, 429.  
TAILZIES. d, 257, d, 266.  
TAVERNERS are presumed to Compt Weekly with their Masters. d, 340.  
TAXATION. see d, 115, d, 241.  
Taxation not augmented upon the account of the Collectors Charges. d, 65.  
TEINDS. d, 148, d, 355. see d, 289, d, 388.  
Teinds belong to the Minister Jure Repraesentationis, albeit the Kirk be a Member of a Collegiate Church, and the Minister not prebend. d, 112.  
TENENDAS. see d, 149.  
TENANTS. see d, 189.  
TENOR and proving thereof. see d, 77, d, 185, d, 304.  
If the Tenor of comprisings may be proven? d, 24.  
TENTUS & reputatus. see d, 381, d, 382.  
TERCE, d, 141, d, 234.  
TESTAMENT. see d, 76, d, 103, d, 375, d, 159, d, 194, d, 197.  
Testament sufficiently executed by a Decreet, though no payment be made thereupon. d, 49.  
TESTIMONIES of Witnesses. see d, 361.  
TESTIS Domesticus. d, 390.  
In Testium conflictu major pars praevalet. d, 109.  
THIRLAGE. d, 312, see d, 293 d, 351.  
Thirlage constitute by reservation of Multures, as to these who consent to the reservation, albeit no preceding Thirlage. d, 58.  
TRANSFERRENE. d, 52, d, 337.  
Transferring in a Reduction. d, 7.  
TRIAL at the Admission of the Lords of Session. d, 180.  
TRUST. see d, 186, d, 193.  
trusties. see d, 174.  
trusties when they denude are to be relieved of all hazard, upon account of the Trust. d, 43.  
TUTELAE Actio. see d. 314.  
TUTOR and Pupil. d. 242. d. 376. see d. 336.  
A Tutor being pursued to remove as suspect, there being Debts betwixt him and the Pupil, another friend appointed by the Lords to be joined to him. d. 90.  
A Tutor craving by a Bill, that he might set his Pupils Lands for lesser Duties, refused. d. 277.  
Tutor's Liable only for the time they accept and not after they knew they were named. d. 233.   

V  
VACANT Stipends. d. 325.  
Non VALENS agere. see d. 297.  
VASSAL. see d. 145.  
VASTATION by War, Found to give Conductores Vectigalium a proportional abatement; albeit it be Conductio rei dubiae. d. 108.  
VICCARAGE. d. 388. see d. 148.  
VICTUAL. see d. 267.  
VICIOUS Intromission. d. 187. d. 205. d. 354.   

U.  
ULTIMUS Haeres. see d. 38.  
UNFREEMEN. see d. 79.  
USURARY Bond. see d. 56.   

W.  
WADSET. d. 436. see d. 27. d. 96. d. 134. d. 268. d. 330. d. 439.  
A Wadset bearing only for security, and until the Wadsetter should be satisfied by Intromission, Found to be an improper Wadset, though without a Backtack. d. 57,  
WADSETTERS must count for the excrescence of the duties. d. 176.  
WAIRD Lands being disponed by a Father, with obligement for two Infeftments; The Son must complete the said Right by Entreing and Infefting the Party, Reserving to him Action for Relief of his Ward and Marriage as accords. d. 82.  
WARRANDICE. see. d, 15. d. 93.  
WARRANDICE from Astriction. d: 173.  
The WARRANDICE of a Disposition of a Comprising, found in dubio to warrant the Validity of the Compryseing and the Reality of the Debt; but not to refound the price in case of Eviction. d. 44.  
WARRANDICE of Lands is absolute, unless expressly limited: But Warrandice in Assignations of Bonds is only debitorem esse, but non esse locupletem. d. 248.  
WEARING the Habit. d. 252.  
WIFE. see. d. 6. d, 10. d. 71. d. 85. d. 100 d. 105. d. 125, d. 141. d. 143. d. 144. d. 182. d. 204. d. 257. d. 264. d. 297. d. 315. d. 332. d. 353. d. 371.  
A Wife consenting to a Disposition of Lands made by her Husband; is not hindered to evict the same, she acquireing thereafter a Right from another Person. d. 128.  
A Wife having a peculium settled upon her exclusive of her Husband's Interest therein, found liable for a Bond granted by her. d. 164.  
The Wife is praeposita negotiis domesticis for Provision of the House. d, 310,  
A Wife Trafiqueing as a Merchand, the Husband is liable for Debts Contracted by her on the account of that Traffic, actione Institoria. d. 319.  
A WIFE'S obligement stante matrimonio. d. 84.  
Wives and conjunct persons ought to abide by Writs Simpliciter. d. 265.  
Wife's Infeftments upon their Contracts of Marriage sustained albeit Base, in respect of the Husband's possession. d. 161.  
WITNESSES. d. 441. see d. 42. d. 109. d. 219. d. 236. d. 317. d. 383. d. 419. d. 427. d. 428. d. 432.  
Witnesses before Answer. d. 171.  
Witnesses depositions how received before Litiscontestation to lie in Retentis? d. 74.  
Witnesses in a Bond not being designed, It's allowed to the person to design them; one of the Witnesses being yet on life. d. 12.  
WRITERS name may be condescended upon after the Writer and Witnesses are Dead: And in what case and Terms? d. 343.  
Writers to the Signet discharged to alter the solennes Jnduciae in Bills and Summonds, except in such as are privileged by the Law. d. 167.   
FINIS.