THE DECISIONS OF THE LORDS OF COUNCIL & SESSION, In the most Important Cases Debate before them, With the ACTS OF SEDERUNT. AS ALSO, An Alphabetical Compend of the Decisions; With an Index of the Acts of Sederunt, and the Pursuers and Defenders Names. From June 1661. to July 1681. PART FIRST, etc. OBSERVED BY Sir JAMES DALRYMPLE of Stair, Knight and Baronet, etc. EDINBURGH, Printed by the Heir of Andrew Anderson, Printer to His most Sacred Majesty, Anno DOM. 1683. Unto the Right Honourable GEORGE EARL of ABERDEEN etc. Lord High Chancellor of SCOTLAND. Sir David Falconer of Newtoun, Lord Precedent of the Session. Sir George Mckenzie of Tarbet, Lord Clerk-Register. Sir james Foulis of Collingtoun. Sir john Lockhart of Casslehill. Sir David Balfour of Forret. Sir james Foulis of Reidfoord. Sir Alexr. Seton of Pitmedden. Sir Roger Hogg of Harcarse. Sir Andrew Birnie of Saline. Sir Patrick Ogilvie of Boyn. Sir john Murray of Drumcairn. Sir George Nicolson of Kemnay. john Wauchop of Edmistoun. Sir Thomas Stevart of Blair. Sir Patrick Lion of Carse. SENATORS of the COLLEGE of JUSTICE, and Ordinar LORDS of COUNCIL and SESSION. WILLIAM Marquess of Queensberry etc. Lord high Thesaurer of SCOTLAND. JOHN Marquis of Athol etc. Lord Privy Seal, and Vice-Admiral of SCOTLAND. ALEXANDER Earl of Murray etc. Conjunct-Secretary of State. JAMES Earl of Pearth etc. Lord Justice-General, Extraordinar LORDS of the SESSION. My Lords, MY Duty and Affection obliges me to Dedicate these Acts and Decisions to your Lordships, because they are your own; I have only been your Servant in Observing and Collecting them, and am confident, they will serve for the Illustration and Vindication of your Justice, and Faithfulness in your Service to the King and Kingdom, to whom it cannot but be highly acceptable and satisfying to see, that in so long a tract of time, you have kept so steady and equal a course in the Administration of Justice with 〈…〉. It hath been looked upon as the privilege of Judges● to bring in Causes to be determined, in what order they thought fit, which gave occasion of great Reverence to, and dependence upon them, and of gratifications to their Friends, but your Lordship's having found so much inconveniency to the Subjects, by their tedious, expensive, and uncertain attendence, unavoidable in that way, you did therefore willingly, and of your proper motion quite that Privilege, and ordered that all men should have dispatch in Justice, as their own diligence put them in readiness to demand it, without pretence of complaint for being postponed or delayed; and you gave the rise for interposing the Authority of Parliament to that Order, which could not but avoid the suspicion of inequality, which did occur, while every Judge in his course, did choice at discretion what Causes to hear, which were readily supposed to be these of his Friends and Relations. As your Lordships have been equal in the Order, so these Decisions will show that you have been impartial in the matter of Justice, and it will appear that you have followed the same uniform Course of Justice, otherwise it had been impossible for you to quadrat with yourselves, if you had followed any other Rule; for if personal Interest had great influence, it could not fail but the same case, would have been diversely determined amongst different Parties: The way of Truth and Justice is one, and never crosseth or just●eth with itself; but the way of Error and Partiality is infinite, and can never be long consonant, and the pretence of varying upon differences in the cases will easily be perceived, when these are not the true motives of Variation, nor can the greatest caution keep former Cases so in memory, as not to fall in flat contradictions in some length of time, when Justice is not the Rule; It was no wonder that inconsistencies did occur, when former Decisions were but little known, and were only Transmitted by uncertain Tradition, from the memory of Judges or Advocats, where a constant Custom was not introduced; but in circumstantiat Cases, all the points of Fact, could not be so preserved, but Pleaders would differ about them, and controvert whether the difference were so material as to be the just motives of alteration; and if they should have recourse to Records, they could thence have little remedy, seeing many eminent Decisions came to be Transacted before any Act or Decreet thereupon were Recorded, and though they were, yet the Motives upon which the Lords did proceed were seldom decernable in the mass of Disputes. The contrarieties that are remarked by the judicious and industrious Lord Dury (who did serve and observe about the same length of time that I have done) are the more excusable, that before his time the Decisions of Session were not much marked, and but in few hands, yea it was a long time before the Decisions observed by Dury, were become common, and were cited by Pleaders, or noticed by Judges. It is impossible to evite the clamours of Parties coming short of their expectation, when they are in heat and fervency carrying on their Cause, and when they have heard the Wit and Eloquence of their Advocats, endeavouring to make their Case, if not evidently just, at least probably such; but when that fervour is cooled, upon second Thoughts, reconsidering the Motives upon which the Lords proceeded, if they see that they Decided not otherwise upon the same Grounds, they cannot be so far wanting to their own quiet, as not to acquiesce and rest satisfied, considering that their first Thoughts were in fervour, and at best, were but the Conceptions of Parties, whose interest hath a secret influence to bias their first Apprehensions, they could not but be convinced that the private and particular opinion of Parties interressed, should quietly cede to the Judgement of so many learned and experienced Judges, having no other concernment in the event of the Cause, but that Justice might be inviolable, and that no pernicious or dangerous preparative might be laid, to the common detriment of all, and who by all the obligations whereof men are capable, towards God, their Prince, Country and Posterity, are engaged to be careful and tender of Justice. It is the great interest of Mankind, that every man should not be Judge in his own Cause, but that there should be indifferent Judges, of good report, men of courage, fearing God, and hating covetousness, who might hear and determine the Controversies of Parties, which necessarily doth imply, that either Party should acquiesce in the public judgement of Authority. It is amongst the greatest interests of Mankind, that they may securely enjoy their Rights and Possessions, being free from fear to be overreached, or oppressed, without remedy; which can not be attained, unless their Rights be lodged in the hands of just and judicious Judges, wherein at first they could have little more to rest on, but the Reputation that their Judges were such, nor could the Judges than have any other Rule than bonum & equum, according to the discretion of good men, and therefore did differ little from Arbiters, until they came to have fixed Customs and Statutes, clear and known, which could not come the length of a sufficient Rule for all Cases, for there will ever be new Cases occurring; and therefore the best expedient to give this most desirable Security, is, to show that Judges do always proceed suitably to themselves without interfeiring; and that they make not Law like the Delphic Sword, bowing or bending to the several Parties, but as a firm and stable Rule, which will ply to no obliquity, but whatever must be regulate by it, must be applied to it, and be strait like it, and so quadrat one to another, which can be no way better known, than by the publishing and comparing of Decisions, whereby it may be seen, that like Cases have like events, and that there is no respect of persons in Judgement; all men cannot be lawyers, nor can the most part have discretion enough to understand aequum & bonum; yet few will be found to want capacity to compare Decisions, and so perceive if they be congruous and uniform, and if they find them such, they may easily be persuaded, that their uniformity could be by no other Rule than Law, and Justice. It is no small prejudice to any Nation, to make them believe or suspect that their Rights are not secured in just hands, for that overturns their quiet and security. The most part will never have a Pursuit determined against them, and far fewer will find themselves worsted by personal considerations, But no man can say but he may, and most do fear that they shall be involved in Law Suits, and if they be not persuaded to find a sure Remedy by just and knowing judges, than all is unsecure and disquieted, so that it is more the advantage of a Nation that their Judges were but reputed just, though they were not, then that they were just, yet were reputed unjust, for this Case toucheth and grieveth all, whereas the former can reach but a few. King james the fifth, who Institute the College of Justice, Ordered one of the Lords to keep a Journal of their Decisions, with which Henry Sinclar Dean of Rastalrig was entrusted, and did observe the same for the space of ten years, as Maitland, Hadingtoun, Hope, Balfour, Spotswood, Dury, and several others since have done; And after Our Sacred Sovereign who now Reigns, did Restore the College of Justice to it's ancient Constitution and Splendour, and did make a full Nomination of the Senators thereof; and Call most of the Eminent Advocats to the Bench, so that after a long interruption, the Session was almost wholly new, therefore it was very necessary that their Decisions should be Observed, which induced me (being one of that Nomination) to undertake that Task, which I did constantly follow, making up this Journal of all the Decisions that had any thing of difficulty or importance in them, which I did design to leave behind me, as a Token of my most devoted affection to that excellent Society, The College of justice, in which, with much satisfaction I spent the far greatest part of my Life, and was very happy in the mutual affection of my Colligues, both while I was at the Bar, and on the Bench, yet the weight of the Charge I did bear, (which in a few years sunk my Predecessor Sir john Gilmour, though a man of great strength of Body and Spirit, when he undertook that Office) made me consider, that it was fit for me, before Age or Infirmity should make that burden more uneasy, to have some remnant of my Life, of which I might be Master, without Diversion, for which some of your Lordships and others knew my Resolution to retire long ago; and therefore I did propose to your Lordships the publishing of these Decisions wherein I have your allowance and approbation. I shall need to say nothing as to these Decisions in behalf of your Lordships, I hope the Matter will speak more for your Honour, than to need any thing further from me; I might say great things of that Judicature, and of yourselves particularly, but I shall forbear, lest any should think it might look like flattery, and therefore shall only add a little for myself. I did not pick out such Decisions as I liked best, leaving out others which might have shown contrariety; nor did I express my opinion when different from the plurality, but I had ever that Deference to your Judgement, that I did not omit any thing that was said for it, much less did I magnify my own opinion against it, though I cannot say that I did oft differ from it. I did form this Breviat of these Decisions, in fresh and recent Memory, de die in diem as they were pronounced; I seldom eat, before I Observed the Interlocutors I judged of difficulty, that past that day, and when I was hindered by any extraordinary occasion, I delayed no longer than that was over. It was neither feasible nor fit that I should set down the large Plead, or the Written Informations of Parties, I did peruse them throughly, and pitched upon the Reasons which were of moment, as to the points determined, whereas in the same Informations, there were many obvious clear Points insisted on, which I omitted. I did always relate the Case as it was proposed or resumed to the Lords, and with the important Reasons offered by Parties, I added these which occurred to the Lords in their Deliberations; so that all the Reasons and Motives upon which the Lords proceeded, will neither be found in Parties Informations, nor Clerks Minute's, for though it was not fit for the Lords to suggest any Point of Fact not alleged by Parties: Yet it was most proper for them to supply the Points of Law arising from the Fact proposed. And in such a Breviat it is not to be expected that I should at large set down the Elegant and Eloquent Disputes of the lawyers, but that I should express the Matter and Moment of their Reasons, with the greatest plainness and equality that I could. It is like, some of my Colligues may have observed other Cases than these, and in these, may have worded Interlocutors otherwise, and adduced some other Reasons, which cannot at all weaken the Credit of these, for some Decisions were passed when I kept my Course in the Outter-House, and others were Reported long after the Informations were given, which might escape me, and many I thought of no such intricacy or importance, as made them fit to be published, but I do with all sincerity and confidence assert, that I did omit none I found of difficulty, upon any design to cover inconsistencies, or any other end of that kind, nor is it of import what the words were, if the Matter were truly expressed; for no Observer did ever look into the Clerk's Minute's, and different Observers will not always have the same Opinion of the importance of Reasons, nor will find themselves obliged to adduce all the Reasons proposed: Neither have I Recorded any Decisions but what was determined while I was present, being resolved to take nothing at a second hand. These Decisions were Written with many different hands, but all of them were then in my Family, and some of them understood not the Matter, by which, and the haste I was forced oftimes to put them to, there was much uncorrect, but I did expect that I might have been present, and have overseen the Press myself; I began to cause Transcribe them with a better hand, and did consider whether it were not fit to amplify and embellish the Disputes so, as might have been expected from so pregnant and eloquent Pleaders, as our time hath afforded, who have been nothing short of their Predecessors, but I thought that this would look too like a new Frame from my own Fancy or Memory, after so long a time, and therefore I resolved they should be kept as they were at first Written, and if so they prove uniform, as it will be a great evidence of your Lordship's Justice, so it will be a strong proof that they are sincere and authentic, having been Written on the several Sederunt days, for more than twenty years together; and therefore I do entreat the favour, that what is uncorrect may be excused and supplied from the Matter. I had the best opportunity to make these Observations, being scarce a day absent in any of these Sessions wherein I have marked them from the first of june 1661. until the first of August 1681. And I was not one day absent from the thirteenth of Ian●ary 1671. when it pleased His Majesty to appoint me to be constant Precedent of the Session in place of my Lord Craigmiller, who had then demitted, except the Summer Session 1679. when I attended His Majesty by His own Command, during all which time, I hope your Lordships will bear me Witness that I never used Arrogance or Insolence, or the least reproachful or bitter expression against any of the number; and I do with great thankfulness acknowledge that I could not have expected more kindness and respect than I found from your Lordships, which made me in gratitude take this Opportunity to testify the Honour and Value I have for that honourable Society, and that I am in great sincerity, LEYDEN October 30. November 9 1683. My Lords, Your Lordship's most humble Servant, IA: DALRYMPLE. His Majesty's Gift and Privilege to Sir james Dalrymple of Stair, for Printing his Institutions, the Acts of Sederunt, and Decisions of the Lords of Session. CHARLES', by the grace of God, King of Great-Britain, France and Ireland, Defender of the Faith, To all and sundry Our lieges and Subjects whom it effeirs, to whose knowledge these Presents shall come, Greeting: Forasmuch as Our Trusty and well-beloved Counsellor, Sir James Dalrymple of Stair, Precedent of Our Session, hath Observed and Written the Acts and Decisions of the Lords of Our Session, since Our happy Restauration to this time: and hath also Written the Institutions of the Law of that Our ancient Kingdom of Scotland. And We being well satisfied with his pains and diligence therien, and knowing his long experience and knowledge of the Laws and Customs of that Our Kingdom, and his constant affection and faithfulness to Us; and being confident of the great benefit may arise to all Our Subjects of that Our ancient Kingdom, by publishing of the said's Decisions and Institutions; and being willing to give to the said Sir James all encouragement therein, Therefore wit ye Us to have Ratified and Approven. Likeas, We by their Our Letters, Ratify and Approve the Contract agreed upon betwixt the said Sir James and Agnes Campbel and Patrick Tailziefer Merchant in Our Burgh of Edinburgh, now her Spouse, having the Right to, and exercing the Office of Our Printer in Our said ancient Kingdom of Scotland, for Printing of the said's Books in all the Heads, Articles and Clauses therein contained whatsomever: Prohibiting all others to Print the said's Books, for the space of ninteen years, without the special leave of the said Sir James, his Heirs and Successors, as the said Contract of the date the 26. ●f March 1681. year●, at length contained in the said Gift and Ratification under Our Privy Seal more fully bears. Given at Our Court at Whitehall, april 11. 1681. years, and of Our Raign● the 33. Year. Per Signaturam manu S. D. N. Regis supra scriptam. Act of Sederunt, Decimo junij 1681. THe Lord Precedent did signify to the Lords, that he having these twenty years Observed the remarkable Practics or Decisions that had passed in this Court, either upon Debate in presence of the whole Lords, or upon Report from the Ordinary in the Outter-house, expressing not only the sum of the Debate, as it was considered, and resumed by the Lords, with the Interlocutor; But also the Grounds whereupon the Lords proceeded: and being of intention to put these Decisions in Print, he had acquainted the King therewith, and had His Majesty's allowance and approbation therein. And the said's Lords considering that the Lord Precedent has been at extraordinary pains, in Observing and Collecting these Decisions, and that the publishing thereof will be of great use and advantage, not only to the College of justice, but to the whole lieges; They approve his Resolution to Print the said's Decisions, and did render him hearty Thanks for undertaking this Work, tending so much to the public Good. Errata vide after the first Index. INDEX Of the Acts of Sederunt. ACt for uniformity of Habit amongst the ordinary Lords, june 5th, 1661. Act for continuing Summons and Writing in Latin as formerly, 1661. Act anent Wakening, June 11. 1661. Act for retaining the principal Writs presented to the Register, and giving forth only Extracts thereof, 1661. Act for Protestation Money, July 4th 1661. Act for granting Commissions to Debtors who are sick, or out of the Country, on the Act Debtor and Creditor, July 31: 1661. Act discharging Lessons, the last Month of the Session, November 28. 1661. Act anent Executors Creditors, February 28. 1662. Act anent granting of Bonds by apparent Heirs; whereupon Apprizing or Adjudications may follow, in prejudice of the Defuncts Creditors. 1662. Act anent Advocats and Expectants, not paying their deuce, 1662. Act discharging Confusion the last day of the Session, February 21. 1663. Act in favours of the Keeper of the Minute-Book, June 6. 1663. Act concerning the buying of the Citiedail, September 8. 1663. Act anent the Seal of Court, November 26. 1663. Act against general Letters, June 8. 1665. Act for Keeping the Bar●s, June 22. 1665. Act anent Pro●tutors, June 30. 1665. Act Ordering no sight of Process in the Summer Session, which were seen in the Winter before, November 8. 1665. His Majesty's Instructions to the Commissars, February 20. 1666. Orders to be observed in Confirmations of all Testaments, Ibid. Instructions to the Clerk, Ibid. Act against Decreets, for not Reproduction of Cessiones bonorum, November 6. 1666. His Majesty's Letter to the Lords concerning Prizes, January 3. 1667. Warrant for general Letters, for the Contribution due out of Benefices to the Lords, November 17. 1668. Oaths to be taken for the price of Fowls, January 15. 1669. Act anent Extracts of Registrate Writs, bearing the Procurators names, though not Subscribing, December 9 1670. Act anent Extracting Acts and Decreets, january 20. 1671. Act against Magistrates of burgh's, for letting Prisoners for debt go out of the Tolbooth, june 14. 1671. His Majesty's Order to the Commissioners of His Thesauray to free the Lords from the Cess, July 19 1671. Act for Keeping the Bars, November 3. 1671. Act concerning privileged Summons, July 21. 1672. Act anent payment of Deuce for Summons, containing two Diets, July 11. 1672. Act concerning Bankrupts, January 23. 1673. Act Ordaining Advocations, or Suspensions of Processes for Conventicles, to be only passed in presentia, or by three Lords in vacant time, June 24. 1673. Letter anent Pryzes, July 8. 1673. Act for Ordering new hear in the Outer House, July 11. 1673. Letter from His Majesty against appeals, June 17. 1674. Act concerning Acts before Answer, July 23. 1674. Act for Trial of those presented to be Ordinary Lords of Session, July the last 1674. Act upon the Marquis of Huntly's disowning Appeals, January 26. 1675. Act concerning Prisoners for debt, February 5. 1675. Act anent Bills of Suspension, February 9 1675. Act Ordaining Processes after Avisandum to be carried to the Ordinary that same day, and Reported in his Week, June 2. 1675. Heugh Riddel sent to the Plantations, July 20. 1675. Act anent passing of Bills for liberty out of Prison, July 21. 1675. Act concerning the granting of Protections, February 1. 1676. His Majesty's Letter concerning the Clerks, June 20: 1676. Act concerning the Registers, july 4. 1676. Act for Inventaring the Registers Books, July 13. 1676. Act anent the manner of Booking Decreets of Registration, November 21. 1676. Act anent the Registers of Seasines and Hornings in the several Shires, January 4. 1677. Act concerning Arrestments, February 1. 1677. Act concerning Advocates, June 7. 1677. Act concerning the sisting of Execution upon Bills of Suspension, July 3. 1677. Act concerning the Suspensions of Protestations, July 10. 1677. Act against Solicitations, November 6. 1677. Act concerning Bills relating to concluded Causes, November 9 1677. Suspensions of the Excize to be passed only in presentia, December 6. 1677. Warrant anent Precepts for giving Seasine upon Retoures, February 15. 1678. Act in favours of the Lord Register, February 22. 1678. Act Discharging Clerks to lend out Processes to any except Advocats and their Servants, February 26. 1678. Act prohibiting the Clerks to give up Bills relating to Processes, whereupon there is any Deliverance of the Lords, July 23. 1678. Act discharging Advocates, and Writers Servants, to Write their Master's Subscription, July last 1678. Act Ordaining Hornings and Inhibitions to be Booked, which were not Booked the time of the Usurpers, January 3. 1679. Orders for payment of the Deuce of the Signet, where Suspensions are appointed to be discussed upon the Bill, January 24. 1679. Act in favours of Intrant Advocats, February 7. 1679. Act anent Executors Creditors, November 14. 1679. Act anent the Registration of Hornings, November 19 1679. Act against Solicitations, December 24. 1679. Act anent the taking of Renunciations from Persons Inhibited, February 19 1680. Act against Petitions for alteration of Acts Extracted, February 24. 1680. His Majesty's Letter in favours of the Lord Register, anent the nomination of the Clerks of Session, June 8. 1680. Act concerning Nottars, July 29. 1680. Act concerning Bills of Suspension, November 9 1680. Act anent the marking of Advocate's compearance for Defenders, November 25. 1680. Act in Favours of the Macers, February 15. 1681. Act anent Seasines and Reversions of Lands within Burgh, February 22. 1681. THE ACTS OF SEDERUNT, OF THE LORDS of SESSION. Beginning the 5th june 1661., and ending in February 1681. ACT for Uniformity of Habit by the ordinary Lords. june 5th. 1661. THE Lords did find, that the whole fifteen ordinary Lords of Session, of whatsoever Place, Dignity, or Title they be, should carry and use the ordinary Habit and Robes of the ordinary Lords of Session in all time coming. ACT for continuing Summons, and writing in Latin as formerly. june 6. 1661. THE Lords taking to their serious consideration, of how dangerous consequence the alteration of Forms and Customs is; They have therefore ordained, and hereby ordain all Summons which formerly abode Continuation, and shall be insisted in before them to be continued in time coming, and an Act to be made thereanent, and Letters to be direct thereon, as was in use to be done before the Year 1651, not exceeding the Rates and Prices formerly exacted. And also, considering that during the Power of the late Usurpers, the use and custom of writing in Latin was then discharged, by the pretended Commissioners for Administration of Justice: Therefore the said's Lords ordain all Charters, Seasings, and other Writes of that nature, alswell such as pass the Seals, as other ways, which were in use to be form and written in Latin, to be continued in the same Language as formerly, before the Year 1652. And to the effect none may pretend Ignorance hereof, ordains these Presents to be published at the Mercat Cross of Edinburgh, after sound of Trumpet by a Macer. ACT anent Warnings. june 11th. 1661. THE said's Lords ordain, That all wakenings of Processes lying undiscust, be execute upon 24 hours, against all such Persons as are for the time within Edinburgh, or Leith, and upon 6 days against all other Parties within this Kingdom; and upon fifteen days against all such Persons as are out of the Kingdom. ACT for retaining the Principal Writes presented to the Register, and giving forth only Extracts thereof. THE which Day, the Lords of Council and Session taking into their consideration, That the custom of the Clerks in the Usurpers time of giving back to the Parties the Principal Bonds, Contracts, and other Writes, given in to be registrat, did tend to the hazard and prejudice of the lieges, and was contrary to the practice formerly observed. They do therefore ordain, that the Clerks of Session, and all Clerks of Inferior Courts and Judicatories, shall henceforth keep and retain the Principal Writes (for which they shall be answerable and give forth only Extracts thereof as formerly, before the Year 1651.) and ordains these Presents to be published at the Mercat Cross of Edinburgh. Likeas, the said's Lords require the Clerks of the Session to be careful in preserving and keeping all Principal Bonds, Contracts, and other Writes to be given in to them to be registrat, and that they be countable for them and for their Servants, so long as they shall give them trust thereof. And that once in the two years they deliver them to be keeped by the Clerk of Register, with the Public Records of the Kingdom. ACT for Protestation Money. july 4. 1661. THE said day the Lords taking to their Consideration, the Litigiousness, and Malitiousness of some Suspenders, who upon frivolous and unjust Reasons and Grounds, purchase Letters of Suspension and Advocation, and will not at the Day of Compearance, nor on any other of the Days appointed for Production of the said's Principal Letters of Suspension and Advocation, produce the respective Letters aforesaid, but keep the famine up, of purpose to trouble, vex, and put to farther Charges and Expenses, the Chargers and Parties Pursuers in the Principal Cause Advocated to the said's Lords. Therefore, the said's Lords ordain the several Sums of Money following to be paid by the saids Suspenders, and Purchasers of the said's Letters of Advocation, to the Chargers and Parties Pursuers in the Principal Cause Advocated to the said's Lords; And that upon their purchasing of Protestation, or Act of Remit against the said Suspenders, and purchasers of the said's Letters of Advocation; viz. If the sum charged for be an hundred marks, or within the same, the sum of 8. lib. Scots; and if the sum be above 100 marks, or not a liquid sum, the sum of ten pounds' money foresaid. And for every Remit the sum of 15. lib. Scots, and ordains an Act to be extended hereupon in manner foresaid. ACT for granting Commissions to Debtors, who are sick or out of the Country on the Act Debtor and Creditor. july 31. 1661. THE Lords of Session considering, that in prosecution of the Act of Parliament of the 12. of july last, anent Creditor and Debtor; such Debtors as are far off the Country, or are, or shall be disabled by Sickness to come here, to take the benefit of the Act, will be thereby prejudged of the benefit thereof, if some course be not taken to prevent the same. They do therefore empower the Lord Precedent, or the Lord Register, or any two of the Lords of Session, upon Petitions, and sufficient Attestations of the Sickness of any Debtor, or of their being forth of the Country, to give Commission during this ensuing Vacation, to such Persons in the Country, as they shall think fit to receive the Oath and Declaration of the Debtors, conform to the said Act, and to report the same betwixt and the day of November next to come, to the Clerk of Register, or his Deputs (Clerk to the Bills) to be Recorded with others of that nature. ACT discharging Lessons the last month of the Session. November 28. 1661. THE same day the Lords considering, that in the end of the Session, the giving way to Young-gentlemen to give proof of their Literature, by making public Lessons, is greatly prejudicial to the lieges: that time which is appointed for hearing and discussing of Interloquitors being taken up with the said's Lessons. Therefore the Lords renews a former Act made to the effect after-specified, in Anno 1650. And of new ordains in all time coming, That any who are to make their Lessons, shall come and make them at such times of the Session, as the hearing of them be not prejudicial to the administration of Justice, and that none shall be heard to make such Lessons any time the last month of of the Session. ACT anent Executors Creditors. February 28. 1662. THE which day, the Lords of Council and Session considering the great confusions that arises amongst the Executors of Defunct Persons, and prejudices sustained by many of them, in prosecution of their respective diligences, against the Executors of Defunct Persons, and otherways, by obtaining the said's Creditors to be themselves discerned Executors Creditors to the Defunct, in prejudice of other Creditors, who either dwelling at a far distance, or being out of the Country, or otherways not knowing of the death of their Debtors, are postponed; and others using sudden diligence are preferred. In respect whereof, and for a remeid in time coming, The saids Lords declare, and ordain, that all Creditors of Defunct Persons using Legal diligence at any time within half a year of the defuncts death, by citation of the Executors Creditors, or intrometters with the Defuncts Goods, or by obtaining themselves discerned, and confirmed Executors Creditors, or by citing of any other Executors confirmed: the said's Executors using any such diligence before the expiring of half a year as said is, shall come in pari passu with any other Creditors, who have used more timely diligence, by obtaining themselves discerned, and confirmed Executors Creditors, or otherwise. It is always declared, That the Creditor using posterior diligence, shall bear a proportional part of the charges warred out by the Executor Creditor first discerned, and confirmed, before he have any benefit of the inventary confirmed; and that it shall be lawful to the saids Creditor to obtain himself joined to the said Executor: and ordains these presents to be insert in the Books of Sederunt, and to be Proclaimed at the the Mercat Cross of Edinburgh. ACT anent granting of Bonds be appearand Heirs; whereupon apprisings, or Adjudications may follow, in prejudice of the Defuncts Creditors. THE said day the Lords of Council and Session taking to their consideration, the manifest Frauds and Prejudices done by appearand Heirs, to the Creditors of their deceased Fathers, or other Predecessors, in their just and lawful debts: Therefore, and for preventing any such fraud for the future, the said's Lords declare, That if any appearand Heir shall grant Bonds, whereupon Adjudications, or apprisings shall be deduced to their own behoof; or that the said's apprisings, or Adjudications shall return before, or after the expyring of the Legal Reversion, in the Persons of the said's appearand Heirs, or any to their behoves. In either of these cases, the said's apprisings or Adjudications shall no ways defend them against their Predecessors Creditors; but that they shall be liable, as behaving themselves as Heirs to their predecessors by intromission with the Rents of their Estates, so Adjudged, and apprised; nor shall it be lawful to them to renunce to be Heirs, after such intromission: and ordains an Act to be made thereupon, and to be registrate in the Books of Sedernut, and to be published at the Mercat Cross of Edinburgh, ACT anent Advocats Expectants. THE said day the Lords of Council and Session understanding, that the greatest number of the Advocats, and Expectants, admitted since the first of january, 1648. years. Are deficient, in paying of Deuce to the keepers of the Box for the Advocats: to wit, twenty marks for every Advocate, and ten marks Scots, for every Expectant; to the prejudice of the Box appointed for the poor, and others their public affairs. Therefore the said Lords ordain all Advocats and Expectants, admitted since january, 1648. who are deficient, in payment of the saids deuce: and all others who shall be admitted, and receive the said respective privileges in time coming, to pay the saids deuce, to the keeper of the Box for the time. And ordains Letters of Horning, and poinding, upon sex days, to be direct against the deficients; upon a subscribed Roll by the Thesaurer: and ordains no suspension to pass but upon consignation. ACT discharging confusion the last day of the Session. February 21. 1663. THE Lords of Council and Session considering, how necessary it is for the advancement, and honour of His Majesty's service, that the Judicatories entrusted in him in the principal administration of Justice to His People, be attended in all their meetings, with due Decency, and Respect from all His good Subjects. And that the rude, disorderly, and barbarous carriage of some Servants attending the College of Justice, and others joining with them upon the last day of the Session, is dishonourable to the Authority of the Court, unsuitable to the gravity becoming the Persons relating thereto, and un-beseeming the civility fit for such a place: have therefore thought fit to discharge, and hereby discharges all Servants of any Advocats, Clerks, Writers, or other members of the College of Justice; and all other Persons whatsoever: That none presume upon the last day of the Session, to throw, or cast any pocks, dust, sand, or stones, or to make any disorder, or to use any rude, or uncivil carriage within the Session House, or in the Parliament Closs. Certifying all such, who being Servants to any Members, or relating to the House, shall in any degree offend herein; they shall suffer three month's imprisonment, and for ever thereafter be debarred the House, and service thereof. And if they shall happen to escape the time of the committing the offence: That their Masters shall be obliged to enter them in prison in the Tolbooth of Edinburgh, within eight days thereafter, under the pain of two hundred marks Scots: and ceritfying all such Persons, who not relating to the House as said is; shall offer to offend in manner foresaid: They shall be apprehended, and committed to waird, for the space of three months; and thereafter banished the Town. And that none pretend ignorance, ordains these presents to be printed, and affixed upon the most patent doors of the Session House; and to be insert in the Books of Sederunt: therein to remain ad futuram rei memoriam. ACT in favours of the keeper of the Minute Book. june 6. 1663. THE which day, the Lords taking to their consideration an overture formerly presented to them, be the Advocats, in favours of john Scot keeper of the Minute Book: showing that the allowance appointed to him for inrolling of Causes; by the Act of Sederunt, dated the 28. of February 1662. is very inconsiderable (being only two shilling scots for every Process) and no ways answerable to his pains, and attendance thereupon: In respect whereof, and for the said john Scot his further encouragement to continue that faithfulness, and integrity, whereof he hath hitherto given proof, in discharging the said trust. The Lords ordain, in time coming the Parties at whose desires any Process shall be enrolled, or his Agent, to pay to the said john Scot, for every Cause that shall be enrolled be him four shilling Scots money allanerly. And ordains these presents to be publicly intimate, and an Act to be extended thereupon. ACT concerning the buying of the Citiedeal. September 8. 1663. THE Lord President having produced before the Lords, a proposition made by the Town Council of Edinburgh, and subscribed by Sir Andrew Ramsay Provost of the said Burgh, bearing as follows, viz. The Lord Provost having reported to the Committee, That the Citiedeal of Leith being of late erected in a Burgh of Regality, which without doubt may in time prove prejudicial to this City, for many undeniable reasons. And that the Honourable Lord the Earl of Lauderdail, to whom His Majesty hath granted the Right of the said Citiedeal, had done the honour and favour to the Council of Edinburgh, as to make them an offer thereof, upon reasonable terms: And that they are come that length in their Treaty; as that it may be had for 6000 lib. Sterling payable in four years; which the Magistrates are not at all in capacity to raise, or make payment of, without the two third parts thereof be raised out of the Chamber of Imposition; which the Council thought not fit to do without the consent of the Grand Committee of the said Imposition. And therefore desired the advice of the Lord Precedent; and all others the Members of the Committee. To which report, and proposition the said Lord Precedent, Sir john Nisbet, Mr. john Ellies, and Robert Hay made answer: That they found His majesty's gift so strike, as they could not of themselves, without consent of the whole College of Justice give consent; That any of the said moieties should be employed otherwise, then to the payment of debts contracted before September, 1650. Therefore the Committee thought expedient, That the Precedent Sir john Nisbet, Mr. john Ellies, and Robert Hay might advise concerning that scruple, and with all conveniency report, that so necessary a bargain might be brought to some conclusion: The said's Lords having considered the above-written proposition in one voice do consent, and give advice, that the two third parts of the price of the Citiedeal be raised forth of the Chamber of Imposition. The Seal of Court. November 26. 1663. MR. Alexander Gibson produced in presence of the Lords their common Seal, wherewith Commissions, and other Papers, which went out of the Country, use to be sealed; which Seal the Lords ordain to be made use of in time coming. And ordained the said Mr. Alexander to make the same forthcoming to the said's Lords, when ever it should be required: And ordains him to give the use of the said Seal to the remanent Clerks, when they have to do therewith. ACT against general Letters. june 8. 1665. THE Lords considering the manifold inconveniences arising of late from the frequent use of directing General Letters, and Charges Summarily; and that the same is contrary to the ancient custom, whereby they were only raised upon Decreets conform: Therefore the Lords do hereby revive and renew that ancient custom: And Enact, and ordain, that in time coming, no Charges, nor Letters of Horning shall be direct Generally, against all and sundry; except allanerly upon Decreets conform; purchased, and obtained be the Parties raisers of the said's Letters. And prohibit and discharge the Writers to the Signet, and the Clerks to the Bills to writ, present, or pass any Bills for General Letters, and the keeper of the signet to affix the signet to any such General Letters; unless the same be direct upon Decreets, conform as said is. Likeas the Lords declare any such General Letters that shall be raised in time coming, where Decreets conform have not proceeded, with all execution following thereupon, to be void, and null, and have no affect; But prejudice always of any General Letters, or Charges raised, or to be raised at the instance of His Majesty's Thesaurer, Thesaurer Depute, or others impowered for His Majesti's Rents, Customs, Casualties, or other deuce belonging to the KING'S Majesty, according as they have been in use to do. And also excepting any General Letters raised, or to be raised at the instance of the Lords of Session, for the contribution money, payable to them, And such other General Letters as are expressly warranted be the Acts of Parliament. And ordains an Act to be extracted hereupon, and insert in the Books of Sederunt. ACT for keeping the Barrs. june 22. 1665. THE Lords considering, what great confusion, and disorder, is occasioned by the thronging of people, of all sorts within the Barrs, of the Inner, and utter House, in the morning, before the Lords sit down, and at twelve a clock in the forenoon, and the prejudice arising there through; by the miscarrying of Processes. For remeid whereof, the Lords do hereby discharge the Macers in time coming; to give access to whatsomever Persons of whatsoever quality, within the Bar of the Inner-house, after any of the said's Lords have entered the House; in the morning, or after twelve a clock: till the Lords be all risen off the Bench, and be removed out of the House. And sicklike, that they permit no person whatsoever, to stay within the Innermost-barr, of the Utter-house, where the ordinary Lord, and Clerks do abide, neither before the ordinary Lord come out after that the Clerks and their Servants have begun to call, nor during the time that the ordinary Lord is upon the Bench, neither after, until the reading of the Minute Book be ended: except the persons following, viz. The keeper of the Minute Book, the King's Solicitor, and one Servant appointed by His majesty's Advocate: And that person appointed for reading the Minute Book, during the time of the reading of the Minute Book and no longer. And the Macers are hereby authorized to carry immediately to prison any person that shall be found within any of the said's Barrs, during the time foresaid● Certifying the said's Macers, that if any of them shall be found negligent in performance of their duty in the premises, They shall forthwith be removed from their Office. And ordains an Act to be extended hereupon. ACT anent Pro-tutors. june 10. 1665. FOrasmuch, as in the Action of count and reckoning depending at the instance of Robert and Bessie Swintouns, against james Notman, at length heard before the Lords of Council and Session; It being questioned, and debated, how far a Protutor is liable by the Law, and Practice of this Kingdom; whether for ommission, as well as for commission, and intromission: And the said's Lords considering, That albeit Pro-tutors be excusable, as to their bygon intromissions; In regard it was not constant hitherto, how far they could be liable: yet finding it expedient, that the foresaid question should be determined as to the future; and the Liege's no longer left in uncertainty thereanent. Therefore the Lords declare, that whatsoever person, or persons shall in time coming intromet with the means and estate of any Minor, and shall act in his affairs, as Pro-tutors, having no right of Tutory, nor curatory, established in their Persons. They shall be liable aswell for what they might have intrometted with, if they had been Tutors, and Curators; as for what they shall intromet with de facto; Sicklike, and in the same manner as Tutors, and Curators, are liable by the Law and Practice of this Kingdom. And the Lords declare, that they will observe this as an inviolable practice in time coming. And ordain these presents to be published, at the Mercat Cross of Edinburgh, and an Act to be extended thereupon, and insert in the Books of Sederunt. ACT ordering no sight of Processes in the Summer Session which were seen in the Winter before. November 8. 1665. THE Lords considering, That through the shortness of the Summer Session, unnecessary giving out, and malicious detaining of Processes, which have been seen the Winter Session immediately preceding: The Liege's are oftimes frustrate of Justice during that Session, after much charges, expenses, time, vexation, and trouble. And having it always in their thought how Justice may be speedily administrat, with the greatest ease, and least expenses to the Subjects. Do declare, that in the future they will not allow Defenders, and their Procurators to see Processes in communi forma, during the Summer Session: where the same has been seen, and returned by them the Winter Session, immediately preceding: and that they will proceed to do Justice therein without indulging to defenders any such sight, during the Summer Sessions, in the future, where there hath been no material amendments, made be the Pursuers, of their Summons nor new pieces produced in the Process; to be instructions and grounds thereof: and which were not seen the Winter Session immediately preceding. And ordains these presents to be insert in the Books of Sederunt. His Majesty's Instructions to the Commissars. February 20. 1666. THE Lord President having received the Instructions following from john Earl of Rothes His Majesty's High Commissioner, did communicate the same to the hail Lords: and that it was His Grace's pleasure, and desire, that the same might be recorded in the Books of Sederunt. The Lords of Council, and Session, ordained the said's Injunctions to be insert, and recorded in the saids Books of Sederunt: under Protestation always, that the recording of there saids Injunctions should be no ways prejudicial to the privilege of the Lords of Session, or deerogate in any sort from their jurisdiction in civil causes. And ordained the said Injuctions after recording thereof; to be given up, and delivered, to the Archbishop of St. Andrews his Grace, or to any having his warrant to receive the same. And that the Extracts of the said's Injunctions be given to all Persons who shall conceive themselves concerned therein, whereof the tenor follows. Sic Supra Scribitur CHARLES R. HIS Majesty Authorises and enjoins, these following Instructions, contained in five Leaves, Attested, and Subscribed by two of the late Commissars of Edinburgh, for regulating the Proceedings, of the Commissars in their respective Courts. Oxford, January 21. 1666. and of His Reign, the seventeenth year. By his Majesty's Command, Sic Subscribitur, LAUDERDAIL. INstructions and Rules set down, and appointed, by the Reverend Fathers, Archbishops, and Bishops, in this Kingdom, to the Commissars, Clerks, Procurator-fiscals, and other Members of Court, of the Whole Ecclesiastical Jurisdiction; having Commission from the said's Reverend Fathers. 1. Ye are by virtue of your Commission, to decide, and judge, in Causes concerning Benefices, and Teinds, in matters of Scandal, Confirmations of Testaments, great, and small, within your bounds, all Causes Testamentar, and in all other matters, wherein the Oath of Party is required; if the same does not exceed forty pounds. And in all other Causes wherein the Parties submit themselves to your Jurisdictions. 2. Ye are to Judge, in Reductions, and Declarators, of Nullity of Marriage, for Impotency, or upon any other ground, or reason whatsomever. All actions of Divorcement for Adultery, or upon any other ground. All Actions, or Questions, of Bastardy, and adherences, when the 'samine shall have a connexion with the Lawfulness of Marriage, or Adultery; all which are reserved to the Commissars of Edinburgh, and do belong to their Jurisdiction, privative. But when the adherence is pursued, upon the account of malicious desertion only; and where there is no question of the Nullity and lawfulness of the Marriage: the inferior Commissars may decide in the 'samine. 3. You are to proceed, in rebus levibus, not exceeding forty pounds upon the Pursuers Claim, without necessity of a libelled Summons: the Defender being always cited at several times, by two distinct Warrants, and Summons, to that purpose. And the case foresaid, where the subject is Leave, not exceeding the said sum; you are to proceed in manner foresaid: whether the Defender be pursued upon his own Deed, or representing any other Person, his predecessors; in rebus levibus; and in Cases of the nature foresaid, If the Claim be referred to the Defenders Oath; and the Defender appear, and be content to depone presently; you are to take his declaration upon the same. And if the Defender desire to see, and be advised with the Claim: ye shall give him a short time to that purpose. If the Claim be referred to the Defenders Oath; and he appear not himself: he is to be warned again pro tertio, and cited personally to give his Oath, with certification, he shall be holden as confessed. In such cases of small moment, if the Claim be not referred to the Parties Oath, nor verified in●ranter; and the Defender appear, you are to give, a short time to him, if he be convened, upon his own Deed; to see the Claim, and answer verbo. And if he be convened as representing any other person, as Executor, or Intrometter; or otherways; you shall assign a time to the Defender to qualify, and give in his Defences in Writ. 4. In Causes of greater moment exceeding forty pounds, and in Arduis, wherein there may be difficulty, you are to proceed upon a Libelled Summons; in the same manner as is prescribed in the Cases abovementioned, except only, that at your discretion, you may assign, a longer time to the Defender to give his Oath; if the Libel be referred thereto: and to answer verbo● or to qualify, and give in his Defences in writ: when the Libel is to be proven otherwise, and the Defender is convened, either as representing another person, or difficulty, or importance of the case doth require; that the Dispute shall be in Writ. 5. You shall be careful that your Clerks shall have and keep on Book for all the ordinary Diets, and Acts; and also another Book fo● Acts of Litiscontestation, either made in absence, or parte comparente, wherein it shall be set down, as shortly as can be, the substance of the Libels and Alleadgences, Interlocutors, and Litiscontestations thereupon; which Record shall be sufficient without necessity, either for extracting the same, or of Registration, or extracting an Act of Litiscontestation ad longum, except either of the Parties shall desire an Act to be extracted ad longum; upon the Parties Charges, who shall desire the same. 6. Your Clerk shall keep a Register of Decreets of whatsoever nature: but so that in cases of small moment, within forty pounds; the said Decreet shall be recorded as shortly as can be. 7. If in any Process whatsomever, the time of Litiscontestation, or after the Interlocutor is pronounced: and when either a Term is assigned for proving the Libel, or any alleadgance; or the Judge having pronounced Interlocutor verbo; or a Signature, being made in Writ; is about to assign a Term, the Defender shall pass from his compearance: or any time thereafter post Litiscontestationem. Nevertheless, Litiscontestation in all such Processes, shall be holden and esteemed, to be made parte comparente. And in like manner, if the Defender, at Sentence, shall pass from his compearance; the Sentence, nevertheless, shall be given out against the saids Defenders; as compearing. 8. Ye shall be careful, that your Summons be execute, always by a sufficient man; before two Witnesses at least. And that the same being returned, and endorsed, be keeped by the Clerk; in case the execution be questioned: and that ye are not to stay the proceeding of the principal Cause, upon offer of Improbation, of the execution: and if any execution shall be found false, and Improven; and if it shall be found, that any of your Advocats, Procurators, or their Servants, or Agents, or other Persons, having interest in your Courts; have written, or caused write the said's executions, or has used, the same, and knowing them, to be false; or are otherways accessary to the said folshood: they shall be declared uncapable of any Office, Trust, Interest, or Practice within the said Court: without prejudice of such further Censure, and punishment as may be inflicted, for the Crime of falsehood; and upon the contriver, or user, or false Writs. 9 Ye shall direct Precepts for Summoning of Witnesses, to compear before you, to be Witnesses in Causes: under such pecunial pains as ye shall think expedient, according to the value of the Causes, and quality of the Person, that bees Summoned. And if the Witnesses contemptuously disobey, the fines, and mulcts, to be uplifted by your Officers: and they to have power to poind for the 'samine. And the pains shall be applied; the one half, for your own use: and the other half to the poor. And if the Witnesses compear not for the first Summons: the Party to have Summons, against the Witnesses not compearing, under greater pecunial pains; to be applied at your discretion: or to raise Letters upon deliverance of the Lords of Session, for compelling them to compear, under the pain of Horning: as you shall think expedient. At the examination of Witnesses, yourselves shall not fail to be present: excluding all others. 10. You shall suffer none of the Advocats, in their procuring, to use frivolous Alleadgances and if they do, sharply to reprove them therefore: and, in case of not amending, for reproof, to proceed to pecunial pains: and if they persist, to deprive them. 11. In the advising of Processes, ye are not the use the advice of any Procurator, or Advocate, or consult with them thereanent; neither admit of them, to be present at the advising of the same. 12. Ye shall tax the expenses of all pleas, of Causes, where Sentence is obtained, before you, and that right highly. And shall insert the same, in the principal Decreet, or Sentence. And the Precept, to be directed out for executing of the Sentence, shall contain Poinding, as well for the said's expenses, as for the principal. 13. Ye may direct your Precepts, to Officers of your Commissariot, or Officers of Arms, or to the Officers of Provost, Bailzies of burgh's; at the desire and option of the Party. If any Person shall deforce your Officers, in execution of your Precepts: ye may be Judges, to all such Deforcements: and inflict the like pains, as by the Law may be inflicted, for deforcing of Officers, of Arms, excepting only the loss of Deforcers, their Escheat. Without prejudice to the Person concerned, to pursue for the same, upon the Deforcement of your Officers, before the competent Judge. 14. If any temporal Judge within this Realm will proceed, in Causes belonging to your Jurisdiction: you shall direct Precepts for Inhibiting them, from all further proceeding thereuntil. 15. Ye shall give forth Inhibition upon Teinds, great and small, as you are desired upon sight of the Parties Title, allanerly. 16. If Summons of Reduction, be Libelled against any of your Decreets, before the Commissars of Edinburgh: ye may cause, notwithstanding, put your Sentence to execution. And if the same be not pursued, within year, and day, the Party being of perfect age, and within this Realm: your Decreet stands unreduced. 17. You, and your Clerk, shall reside in the place of your Commissariots, under the pain of deprivation; except by the Archbishop or Bishops, Consent and Licence, upon grave occasion, you obtain liberty, to do otherways 18. You shall make two Registers, of the Testaments, to be confirmed by you. The one to be keeped by you; and the other to be delivered, to to the Archbishop, or Bishop, yearly. 19 Your Clerk, the time of making the Accounts, two times in the year, viz. the first day of May, and first of November; shall make Faith to the respective Archbishops, Bishops, or any having their Order: That there is no more Testaments Confirmed then these, which are Booked, in the Books, then to be produced. 20. You shall give forth no Precepts, in matters above forty pounds; until the Decreet be first extracted. 21. In case any of you shall happen to fall sick, and not be able to wait upon your Office, or give attendance: or if it shall happen any such Declinator, or exception, (being of Verity) to be proponed against you, as might set, or decline, Sheriffs or any other Judge: In that case, you shall show the Archbishop, or Bishop the 'samine; who then shall deput another, who shall be most fit, and apt, to sit, cognosce, and decide, in the Causes aforesaid. 22. Ye shall find Caution to compear, before the Archbishop, and Bishop, twice every year, viz. The first day of May, and November, and give just count of your intromission with the Quote: where the Archbishop, or Bishop, has not a Quot-master appointed by themselves. And also for payment of your Contribution Silver, to the Commissars of Edinburgh: and that under the pain of five hundred pounds, toties, quoties. 23. If any of you or your Clerks, Confirm any Testaments, and make no account thereof, to your Archbishop, or Bishop, the said's days: the 'samine being sufficiently verified; your Office, shall thereby ipso facto, Vaick. 24. It shall not be leisome for you, to admit any procurator, without Licence of your Archbishop, or Bishop, respective. But you may create, Commissar-officers, that be honest, and faithful, as ye will be answerable. And your Procurators, shall wear Gowns in the Court, as ye are appointed, and enjoined, by these principal injunctions, to do the 'samine yourselves. And that you put the 'samine to execution, betwixt and the day of next to come. 25. The profit of all Summons, Sentences, Transumpts, Registrations, and Confirmations of Testaments, and Registrations of all Tacks, Contracts, Obligations, and other Writs whatsomever, and Extracts of the 'samine. As likewise the profit of the Seal, and Signet; to be divided in manner following: That is to say; the two part thereof to the Commissars, and the third part to the Clerk; he always, finding Paper, Ink, Wax, and Writing-Chamber. ORDERS To be observed in Confirmations of all Testaments. YOU shall have a care, that all Edicts be served generally, at the Paroch Churches, twice, or at least every year. And if any Party shall desire particular Edicts, as occasion offers: you shall cause give them forth, and the general Edict to be given gratis to the Procurator-fiscal. The Edict being Served, and the Person, or Persons, having best right, being discerned Executors, to the Defunct; the Inventary shall be given up by the Executor, who shall make Faith upon the truth of the 'samine. If the Wife be Deceased, and the Husband give up Inventary; both of the Goods, Geir, and Debts, owing by hi●, and to him, such Debts as he gives up, and by his Oath Swears, to be true Debts, should be deduced off the free Geir always, if the Executor suspect any Fraud, that the Debts given up exhaust the free Geir, and think fit to omit the 'samine, he may lawfully do. And their Debts are in Testaments Dative, only to be received as owing by the Defunct, Servants Fe●s for a year preceding the Defuncts decea●e, Duties of Lands, or T●inds for a year, Apothecary's Drogs immediately employed before the Defuncts decease, House-meals for half a year at most, Pensions, and Ministers Stipends, Steelbow-goods, and Corns to the Master: If the man, or the Person whose Testament is to be confirmed, give up the Inventary of Debts, with his own mouth, in a Testament Testamentar; such Debts, as they give up, must be allowed. But if there be no Testament Testamentar made by the Defunct; or that in the 'samine he has ordained his Executor to give up the Inventary of his Goods, Geir, and Debts; in that case, no Debts are to be deduced; except the Debts mentioned, and contained in the immediate preceding Article. Which Deductions being made by the Person deceased; he leaving behind him. Wife and Bairns; if any of the Bairns, be unfori●familiat; the Testament is divided in three parts; and the third part of the ●●ee Geir, pays only Quot. If all the Bairns be forisfamiliat, the Testament than divides in two: and the half of the free Geir pays Quot. If there be no Bairns, the Testament likewise is divided in two: and the half of the free Geir pays Quot. If the Person deceased be single, and has no Bairns unforisf●miliat, in that case the whole free Geir pays Quot, without any division. If it fall out that any challenge the Geir of the Defunct, by virtue of an Assignation, from the Defunct before his decease; he ought, not the less, to Confirm the Testament: notwithstanding of the Assignation. Quia quoad confirmationem Testament; it is estimat to be simulat. But he may as Assignay, make Protestation, That the Confirmation shall not prejudge his Assignation, pro ut de jure. Ye are to advert, that the prices of the Goods, given up in Testament, be estimat, conform to the common course, as they are sold in the Country, neither too high, nor to low, in prejudice of the Quot, and Bairns of the Defunct. Let no Testament be Confirmed, without the Oath of the Executor, and the Relics Oath, Man, or Wife, who survives other; and if any thing shall be found to be omitted: any benefit which would have belonged to the persons omitting, of the which they had no probable ignorance; The 'samine shall pertain to the Archbishop, or Bishop, or to any, to whom they shall dispone it. You shall give no Licence to pursue, except to poor bodies: and that for small sums, and where Debts are desperate. If there be no nomination, or Testament made by the Defunct, or if the Testament Testamentar, shall not be desired to be Confirmed: ye shall Confirm the nearest of Kin, desiring to be Confirmed. And if the nearest of Kin shall not desire to be Confirmed; ye shall Confirm such of the Creditors, as desire to be Confirmed as Creditors: they instructing their Debts. And if● neither nearest of Kin, Executor, nor Creditor, shall desire to be Confirmed, you shall Confirm, the Legators, such of them as desire to be Confirmed; and instruct, that they are Legators. And if no other person having interest foresaid shall Confirms you shall Confirm your Procurator-fiscal, datives, always being duly given thereto before. And if after the saids datives, but before Confirmation; any Person having Interest, shall desire to be Surrogate, in place of the Procurator-fiscal: ye shall Confirm them as Executors, Surrogate, in place of the Procurator-fiscal. And to the effect the Debts may be the better known; ye shall call within your Jurisdictions, the Intrometters with the Defuncts Goods, and Geir, (Datives being given up as said is) to give up Inventar thereof. And in case the Intrometters will not compear, to the effect foresaid. Then ye shall cause Summoned, four or five of the Defuncts nearest neighbours; and others who best knew the samine● who being sworn, shall give up Inventar; of the Dead's Goods, and declare the quantity thereof, under what division the 'samine comes, and the expense, to be made thereupon, shall be modified yearly: at the making of the Accounts. That every one of you have a Procurator-fiscal, who shall be an honest, discreet man, and responsal, for pursuing all common actions, and who shall be discerned Executor dative, to all the Defuncts, within your Jurisdiction where he serves; in case the nearest of Kine of the Dead, nor any other nominat Executor, Confirm not his Testament, in due time. And ilk Procurator-fiscal shall find Caution that the Goods he shall happen to intromet with, shall be forthcoming as effeirs: and shall make Compt yearly, and payment of the saids Goods, that shall happen to be intrometted with by him: to the Archbishop, or Bishop, and shall have three shilling, for ilk pound that he brings in, and makes payment of. The Procurator-fiscals, shall be holden to Compt twice in the year, for the diligence to be done by them, in taking up the names of all the Defunct Persons, within the whole Paroches of your respective Commissariots: wherein they shall be faithful. And if it shall be found that they have exacted Money from the People, or oppressed them, or transacted with such Persons as shall happen to be charged to Confirm, and shall receive Money from them to pass from the said's charges, or for Money or good deed; shall forbear to cause charge any such person, who ought to be charged. Any such Procurator-fiscal so doing; the 'samine being sufficiently proven, shall be deprived from his Office. That all Persons, named, or to be named Executors, to any Defunct; shall Confirm their Testaments within three Months, after the Defunct's death, at farthest. If any person shall be discerned Executor to a Defunct, when he compears not personally, by reason of sickness, or upon any other reasonable occasion: and craves a commission to take the Executors Oath. Ye shall not grant any Commission for that effect, without the Ministers Testificat, of the Parties inability, and knowledge, and consent, of the Archbishop, and Bishop. When an Edict is execute to a day, and the Party compear and desire to be discerned, Executor, and crave a day, to give up Inventary, and Confirm: ye shall continue the decerning of the Party as Executor, until the day, that he should Confirm; to the end all may be done, Simul & semel. You shall not suffer Testaments to have Faith, or any thing contained in them, without Confirmation, ye shall not suffer an e●k of Testaments to be made, exceeding● the third of the Inventary, and that but once, without knowledge of the Archbishop, or Bishop. That the Inventar be likewise given up, as they were the time of the Defuncts decease. And twelve pennies of every pound of the Deads' part, shall be the Quot of all Testaments, both great and small, which shall be Confirmed; as well of the Testaments, dative, as others. And the mitigation, and composition of the 'samine Quot, shall appertain to the Archbishop, or Bishop, to whom it belongs alanerly: if need beiss. Institutions to the Clerk. YE shall have two Register Books, one for the Acts, and Sentences, and another for the Testaments. Which Book of the Testaments, shall be marked by the hand of the Archbishops or Bishops, or Bishops Clerk: and when the 'samine are filled up, to receive a new Book, besides your Book of Registration. Ye are all of you, both Commissars, Clerks, and fiscals, to serve the lieges thankfully: at the Rates, and Prices which are to be settled, by the Archbishops, and Bishops. We have considered the abovementioned Instructions, contained in these five preceding Leaves. And to conceive that it is fit, that the same be Authorized and enjoined, for Regulating the Proceedings of the Commissars; in their respective Courts. Sic Subscribitur, IO. NISBIT. IO. BAIRD. ACT against Decreets, for not Reproduction of c●ssiones bonorum. November 6. 1666. THe Lords considering, the great abuse lately crept in, under the colour, of the Act, ordering Decreets for not Reproduction of Process: to extract Decreets of Bonorum, which was never the Lords meaning, to extend the foresaid Act, to any Summons of Bonorum. Therefore the said's Lords, for Rectification of the foresaid abuse: discharge the granting of any Decreets for not Production, in time coming; in so far as relates to Actions of Bonorum: at the Instance of any Debtor, against his Creditors. But ordain the Pursuer to complain to the Lords, in presentia, in communi forma, for keeping up of Processes, of that Nature: and discharge the Lord Ordinary, in the Outter-house, to decern in any such Causes: but that they be all Advised, and Discerned, in presentia. His Majesty's Letter to the Lords concerning Prizes. january 3. 1667. Follows the Tenor of the Letter, Superscribed thus; CHARLES R. RIght Trusty, and Right well beloved Cusing and Counsellor, Right Trusty, and well beloved Counsellors, and Trusty and well beloved: We Greet you well: we have been often troubled, with Complaints from strangers, in Amity with Us; and others, concerning the Prizes taken by Our private men of War, in that Our Kingdom, and Sentences pronounced by Our High Court of Admiralty there: and whereas We understand, that ye by Our Law, are Authorized to be Supreme judges in all these cases: We do hereby Require, and Authorise you, to think, and conclude on such Orders, as shall be necessary for bringing before you, and Deciding all these Causes in a Summar way: and that ye proceed with all expedition; in respect the Persons concerned, are, for the most part, Strangers. And their Ships, and Goods, being apt to perish; their prejudice may be irreparable; if they have not Summar justice.. And We do most particularly recommend to you, the Subjects of the Kings of Spain, and Sweden, with whom we have particular Treaties, which We shall send to you: And w●ose Ships, and Goods are to pass free; they having such Passes, as are agreed upon, of which, We did send Copies to Our Privy Council; and so We bid you Farewell. Given at Our Court at Whitehall, the twenty seven day of December, One thousand six hundred sixty and six. And of Our Reign, the eighteen year. By His Majesty's Command, Subscribed thus, LAUDERDAIL. Warrant for General Letters, for the Contribution due out of Benefices to the Lords. November 17. 1668. THE Lords have Ordained, and hereby Ordain, Letters, and Executorials of Horning, to be Direct at the Instance of these Ordinary Lords; who have been admitted, since june 1663. or shall be admitted hereafter, against the Archbishops, Bishops, Priors, Heretors, Liferenters, Fevars, Farmers, Tenants, and Tacksmen of the Prelacies within this Kingdom: for payment to them of their respective proportions, of the Contribution Money, payable out of the said's Prelacies, and Allocat to their Predecessors: in whose place they have succeeded, by an Act of Sederunt, of the date, the 11. day of june 1663. and a Roll subjoined thereto; containing the particular division, of the Contribution Money amongst the saids Lords, and that for all Years and Terms, since their admission, and Entry, and Yearly and Termly in time coming. Oaths to be taken for the Price of Fowls. january 15. 1669. THE which day, It being represented to the Lords, That the Magistrates of Edinburgh, desired to know, whether they might warrantably exact the Oaths of the Poultrie-men, and Innkeepers, concerning their contravention, of the Acts lately made for the price of Fowl dressed and undressed. The Lords finds that the Magistrates of Edinburgh, may and aught to exact the Oaths, of the contraveeners of these Acts, either the Poultrie-people, who sell the Fowls undressed, or In-keepers● who sell them dressed. And recommend to the Magistrates to be careful, in the speedy, and exact execution of these Acts. ACT anent extracts of Registrate writs bearing the Procurators named though not subscribed. December 9 1670. THE Lords of Council and Session, do grant warrant to the Lord Register, and the Clerks of Session; his Deputes to registrate such Bands, Contracts, and other Writs, as shall be given in to them to be registrat, and therein to insert the consent of Advocats, as Procurators to the Registration: as they were in use to do formerly● and accordingly to give out extracts thereof, notwithstanding that the Advocats do not subscrib their consent. And appoints this warrant to continue until further order. Likeas, the Lords declare, that any Extracts given out by the Clerks, in manner foresaid; since the first day of November last are warrantably given: and cannot be quarrelled upon that ground, that the Advocats consent to the Registration is not subscribed. ACT Anent Extracting Acts and Decreets. january 20. 1671. THE Lords enacted and ordained that no Act, or Decreet, done either in the Inner or Utter-house shall be extracted until 24 hours elapse, after the same is read in the Minute Book. ACT against Magistrates of burgh's, forletting prisoners for Debt go out of the tolbooth. june 14. 1671. THE Lords considering, That albeit by the Law, Magistrates of burgh's, are obliged to retain, in sure ward and firmance, Persons incarcerat in their Tolbooths for Debt. Yet hitherto they have been in use to indulge Prisoners, to go abroad upon several occasions. And it being expedient, that in time coming the foresaid liberty, taken by the Magistrates, of burgh's should be restrained; and the Law duly observed. Therefore the said's Lords do declare, that hereafter it shall not be lawful to the Magistrates of burgh's, upon any occasion whatsomever, without warrant from His Majesty's Privy Council, or the Lords of Session to permit any Person incarcerat in their Tolbooth for Debt, to go out of Prison, except in the case of the Parties sickness, and extreme danger of Life: The same being always attested upon oath, under the hand of a Physician, Chirurgeon, Appothecary, or Minister of the Gospel in the place: Which Testificat shall be recorded in the Town Court Books. And in that case, that the Magistrates allow the Party only liberty, to reside in some house, within the Town during the continuance of his sickness: They being always answerable that the Party escape not. And upon his recovery to return to Prison. And the Lords declare, that any Magistrates of burgh's who shall contraveen the premises, shall be liable in payment of the Debts● for which the Rebel was incarcerat: And appoints this Act to be intimat to the Agent for the Royal Burrows: and to be insert in the Books of Sederunt. His MAJESTY'S Order to the Commissioners of His Thesaury to free the Lords from the Cess. july 19 1671. CHARLES R. RIght trusty and well beloved Cusing and Counciller, right trusty and well beloved Councillers, and trusty and well beloved, We greet you well. Upon the humble desire of Precedent, and Senators of Our College of justice Signified unto Us by Our Secretary. We have thought fit to express Our so great tenderness of their Privileges, as to discharge the Precedent, and all the ordinary Lords of Session, of their proportions of the Currant Supply granted unto Us, by the late Session of Our Parliament; although they gave their Bond for the same. Therefore Our pleasure is, and We do hereby Authorise you to give Command nor to exact any of the said Supply from the proper states of the said Precedent, and ordinary Lords of Session, but that the same be discharged. And if any part thereof be already Collected, that it be paid back to them respectively; for which this shall be your warrant. And so We bid you heartily Farewell. Given at Our Court at Windsor Casile the 12 day of july, 1671. and of Our Reign the 23 Year. Subscribed thus by his Majesty's command Lauderdail. ACT for keeping the Barrs November 3. 1671. THE Lords of Council and Session considering, that there is great disorder and confusion occasioned by the thronging in of the Advocats men, and others upon the Clerks, and their Servants in the Utter-house before the ordinary Lord go to the Bench. And after twelve a clock at the reading of the Minute Book: For remeid whereof, they ordain the Minute Book in time coming to be read in the nethermost end of the Loft appointed for the Advocats Servants. And prohibit and discharge all Advocats Servants, and other persons, who are not licenced, and allowed to enter, or remain within the Innermost Bar of the Utter-house, where the Clerks, and their Servants stays; under the pain of three pounds' Scots, to be applied the one half for the use of the Poor, and the other to the Macers. And to be further censured by imprisonment, or otherways as the said's Lords shall think sit. And to the end the said Act may be more duly observed. The Lord do ordain, authorise and require the Macers to exact the said ●ine of three pounds, Scots, from any Person whom they shall find within the said Barr. And in case the Party refuse to pay the same: that they carry them to Prison, until they make payment thereof. Certifying the said's Macers, that if upon delation of them, by any of the Clerks, they shall be found negligent in performing of what is hereby enjoined to them, they shall be fined in the said sum of three pounds Scots: and imprisoned during the pleasure of the Lords. And this Sentence to be inflicted upon the Macers, or other transgressors of this Act, as oft as they shall be found to contraveen the same. ACT concerning Privileged Summons. july 21. 1672. THE Lords considering, that divers Summons as declarators, and others, which by the constant from and practice of this Kingdom, did always abide 21. days warning, have of la●e been execute sometimes upon six days, as being privileged by deliverance of the Lords upon Bills given in for that effect; and seeing these Bills being drawn and given in by Writers to the Signet, do pass of Course without perusal, or consideration thereof, by the ordinary, which hath given occasion to the foresaid abuse. And finding it expedient, that it be determined for the future, what Summons shall be Privileged: Therefore the said's Lords do ordain, That in time coming, all Summons shall come in upon 21 days warning. And that none be privileged by the Lord's deliverance, or otherways, except these following, viz. Remove, Recent-spulzie, and Recent Ejections, where the Summons is Execute within 15 days after the committing of the deed intrusions, and coming in the Vice, Causes alimentary, Exhibitions, Summons, for making arrested Goods forthcoming, Transferring, Poynding of the Ground, Wakning, Special Declarators, Suspensions, Prevento●s, and Transumpts. And that Recent-spulzies, Ejections, Intrusions and Succeeding in the Vice be execute upon 15 days: and that all the rest of the foresaids Summons be Execute upon six days: and that the second Citation be likewise upon six days. And it is further declared, That all the Summons abovementioned shall be privileged as a foresaid, whither the Summons bear a privilege or not. And the Lords do hereby prohibit, and discharge the Writers to the Signet, to Write, Form, or Present to the Clerks to be put in any Bills for privileging any Summons, but these above-expr●st; Certifying such as shall coutrav●en, that for the first fault they shall be fyned in one hundred marks Scots, to be applied for the use of the poor: and for the second fault, they shall be deprived of their Office. It is always hereby declared, that this Act is not to be extended to Summons execute against Persons Inhabitants of the Burgh of Edinburgh, or the contiguous Suburbs thereof, who may be Summoned by the second Citation, upon 24 hours, conform to the custom formerly observed. ACT anent payment of deuce for Summons containing two diets. july 11. 1672. FOrasmuch, as the Lords, after mature deliberation, did think fit, That the former custom of continuing Summons, and taking out of Act and Letters thereupon, in all such Causes, and Processes, as formerly did require and abide continuation, should be laid aside in time coming. And that in Place and Lieu thereof; the Summons in all Process of the nature foresaid, should contain two distinct warrants, for citing the Defenders at two several times, and to two several diets, and days of Compearance with the same Certification as before was usual; and contained in the first and second Summons respective. And that Proc●ss●s should be granted in the Causes foresaids, upon Summons containing the warrants abovementioned, and Execute conform to the same, as formerly was granted upon Summons, Act and Letters. And upon an overture given in, and approven by the Lords of Articles. An Act of Parliament hath followed, and is made to that purpose. As the Act of Parliament entitled Act discharging second Summons, at length proports. And seeing the Lords of Session, when they had the said alteration of the former Custom, under their consideration, thought it no ways reasonable, that thereby, either His Majesty's Secretary, or the Clerk of Register, or the ordinary Clerks of Session, his Deputes should be prejudged of their deuce, and profits formerly belonging to them respective. And in regard, the Summons which are to contain the said distinct warrants for Citation, are in effect, and upon the matter, two several Summons, and are equivalent to Summons, Acts and Letter, and have the same effect to all intents: and the profits formerly arising from all Acts of Continuation, and Letters thereupon, are a considerable part of the Deuce belonging to the Lord Secretare, Lord Register, and his Deputs, for their Encouragement, and Service in their respective Offices● and upon the considerations foresaid, it was resolved. That notwithstand,ing, the said alteration, the same should be continued, and secured to them, in manner after mentioned. Therefore, and in order to their satisfaction: The Lords of Session does Statute and Ordain, That for the Signing of all Summons, which formerly did abide continuation; and in lieu thereof, shall now, and hereafter continue the said warrants for two several Citations, the keepers of the Signet shall have, and may take as much as formerly he might have taken, both for Summons and Letters, while the same were signeted a part. As also it is hereby appointed, That all the said's new Summons, containing two distinct warrants for citing to the Defenders two diets be subscribed by the Clerk of Register, or in his absence, by one of his D●puts, or the ordinary Clerks of Session, who at the subscribing thereof, are to receive for the same, the deuce formerly paid, for Act, and Letters. And the Lords do hereby discharge the keeper of the Signet to affix the Signet to any of these new Summons, for two, or more Citations, but such as shall be subscribed by the Clerk of Register, or his Deputes, as said is: and that no Process be granted upon avy such Summons unless they be subscribed by them in manner foresaid. ACT concerning Bankrupts. january 23. 1673. FOrasmuch, as by an Act of Sederunt, of the 26 February, 1669. It is Statute an Ordained, that all Decreets of Bonorum in time coming, should contain a Clause, ordaining the Persons, in whose favour the Bonorum should be granted: To take on, and wear the habit of Bankrupts. Which is a Coat, or upper Garment, which is to cover the Parties clothes, Body and Arms: whereof the one half is to be of a Yellow, and the other half of a Broun Colour, and a Cape, or Hood, which they are to wear on their Heads, Particoloured, as said is, which habit, they are to take on, before they come out of Prison, and come out with it upon them. And that it shall be lawful to the Creditors, to seize upon, and imprison any of them, who shall be found wanting the foresaid habit. And the Lords considering, that this Course, for preventing, and punishing of Bankrupts, hath through the in-observance of the same, proven ineffectual, as to the designed end of the same, do therefore statute, and ordain, That all Decreets, of Bonorum, and Charges to put at liberty, to be raised thereupon, shall thereafter contain the hail tenor of the Act of Sederunt above-written. And that the Magistrates of burgh's shall not put out the Party in whose favours the Decreet, and Letters are granted, until first they put on the habit, and come out of the Tolbooth, betwixt 9 and 12. a clock in the Forenoon, with the habit on them, as is prescribed by the Act. And ordain the Clerks of the Session, the Keepers of, and Writers to the Signet; and others having interest, to be careful, that this Act be punctually observed. And ordain a Copy thereof to be delivered to the Bailies of Edinburgh, to be Registrate in their Books, and keeped for the entry, and liberty of Prisoners in their Tolbooth. ACT ordaining Advocations, or Suspensions, of Processes for Conventicles to be only passed in presentia, or by the three Lords in vacant time. june 24. 1673. THis day the Lords ordained, that no Bill of Advocation be passed of any Processes depending before the Sheriffs and other Judges ordinary, against Persons guilty of keeping Conventicles, unless the same be passed in presentia, during the sitting of the Session, or by three Lords met together in time of Vacancy, and that no supension be passed of Decreets given upon those Processes, except upon Consignation of the sums discerned, or in presence of the whole Lords, or in time of Vacancy by three Lords. And appoint Intimation hereof to be made to the Clerks of the Bills. Letter anent Prizes. july 8. 1673. THis day the Lord Chancellor produced, in presence of the Lords, a Letter directed from the Duke of Lauderdail Lord Secretary, by His majesty's Command to the Lord Chancellor, President, and remanent Senators of the College of Justice, which Letter being Read in presence of the said's Lords: they ordained the same to be Recorded in the Books of Sederunt, whereof the tenor follows. For the right Honourable. The Earl of Rothes Lord Chancellor of Scotland, Sir James Da●ymple of Stair Precedent of the College of justice, and the Remanent Senators thereof: Whitehall, june 30. 1673. My Lords, Since the Receipt of Yours, of the 25. January, I have been using my best Endeavours to know how to satisfy your Lordship's desire therein. And now having acquainted the KING therewith, in presence of divers of his Council here; I am commanded by His Majesty, to let you know, that the Treaty of Breda is certainly void by the War: and that no Ally can claim any benefit thereby, when they carry any provision of Victual, or other Counterband Goods to the Ports of Our Enemies, or when they have Goods belonging to Enemies on Board. As to the other part of the Letter, it was deliberately thought fit in the Council of England, That any number of the Dutch Nation being found aboard, should not confiscate Ship and goods, as it did during the last War, and therefore, that Article was kept out of the Rules, which were given to the Court of Admiralty here in England. But if any part of the Ship belong to any Inhabiting within the Dominions of the States-general; the whole both Shipe and Goods are to be declared Prize, and if the Master have his Residence in Holland, you are left to judge in this case according to Law, and as you shall think just. I have likewise communicated to the KING your answers to the Swedish Envoys memorial. And to the Complaints of the King of Polland, and the City of Danzick, which did give a great dale satisfaction to His Majesty, and severals of His Privy Council there, who were presents And Copies of them were sent unto Sweden. I am, my Lord, your Lordship's most humble Servant, Sic subscribitur LAUDERDAIL. ACT for ordering new hear in the Vtter-house. july 11. 1673. THE which day, the Lords ordain any Lord, who is to hear a Cause debated in the Utter-house, before the Lord ordinary come forth; shall go to the Bench, and call the said Cause at 8 a clock in the morning: And ordain the Advocats, Clerks, and Macers, to be present, and attend at the said hour: and if no Procurators be present, for that Party, that seeketh calling; yet the said Lord shall proceed, in making Act or Decreet; and the said Cause is not to be heard any more thereafter. And if none be appearing for the other Party, at the said hour, or when the Cause shall be called: then that Parties Procurators are not thereafter to be heard by the said Lord, except the said Party, or his Procurators give in two Dollars to the poor's Box. And ordain this Act to be recorded in the Books of Sederunt, and intimate to the Advocats in the Utter-house. Letter from His Majesty against Appeals. june 17. 1674. THis day the Lord Thesaurer Deput produced, in presence of the said's Lords, a Letter, direct from His Majesty, to the Lord Chancellor, Lord Precedent, and Remanent Senators of the College of justice.. Whereof the tenor follows. CHARLES R. RIght trusty and wellbeloved Cusing● and Councilers, Right trusty and wellbeloved Council●rs, and trusty and wellbeloved. We greet you well, We received your Letter of the 28 February, Last, with an account of these Appeals, given into you by the Lord Almond, and Earl of Aboyne, but could not then return any answer, the Session being up. And now upon full consideration of that whole affair, We find it indispensably necessary, for Our Service, and the mentainence of Our Authority, and for the quiet and security of Our Subjects in their Fortunes and Estates, That the honour, and Authority of Our College of justice be inviolably preserved: and that there be an entire confidence in, and deference to all the Decreets and Sentences thereof. And after the Laudable Example of Our Royal Progenitors; We do assure you, that We will constantly mentain Our Authority exercised in that Court, against all Encroachments, Indignities and Reproaches, that may be attempted against the same, or against any of the Lords of Session, whom We shall always cause to be held in special Honour, as these who represent Our Person, and ●ear Our Authority. And as We cannot but declare Our dis-satisfaction with, and abhorance of these Appeals: So it is Our express pleasure, that special care be taken to prevent the like practices for the future; and for that effect, that you cause solemn Intimation to be made, to all Advocats, Clerks, Writeres and others, who are members of, or have dependence upon the College of justice, and others whom it may concern, That none of them presume to advise, consult, propose, plead, speak, or suggest any thing, that doth import the charging of any of the Decreets, and Sentences of the Lords of Session, with In-justice, whether in the Terms of appeals, Protestations, Supplications, Informations, or any other manner of way, either publicly, in the exercise of their Function, or privately in their ordinary conversation with their Clients, or others, under the pain of being utterly excluded, from exercising any Office, in, or, depending upon the College of justice: and that all Advocats to be admitted hereafter have the same declared to them, as a part of the Oath de fid●●, and obedience to the Lords, which is ●e●customed to be given by Advocats at their entry. And We are graciously pleased, that you proceed no further against those who gave in these late appeals, nor ●ga●st these Advocats, who refused to give their Oaths concerning their accession thereto, providing these Advocats do som●nly disown these appeals, and all other appeals, and Protestations, which may any way import a Charging of the Sentences of the Lords, or their In●e● locutors with un-justice, and in case they refuse to disown the same, We peremptorlie command you to debar them from the Ex●rc●se of any part of their Function as Advocats in time coming. And We do Authorize● and strictly Command you to declare any member of the College of justice, or others, who depend thereupon, who shall not give obedience in the particulars abovementioned, incapable to exerce any Office in, or depending upon the College of justice: and for the better discovering cont ivances, you are to receive no Supplications, but such as are signed by an Advocate. As also you are hereby required, if need bees, to put all who depend upon the College of ●ustice to give their Oaths, as Parties, or Witnesses for discovering the contrivances: and in case any other, having no dependence upon the College of justice, shall present any thing Expressing, or Importing the cha●ging of any of your Sentences, with Injustice in the Terms foresaid, or any other way. We do Authorise, and Command you, that you do immediately secure their Pers●ns, if they be present, and if they be absent, that you isue forth Charges, and all other Execution against them for that effect, And that you give an account thereof to Us● That We may signify Our further pleasure therein. For doing of all which, this shall be your sufficient warrant. And so We bid you heartily Farewell. Given at Our Court, at Whitehall the 10 May, 1674. And of Our Reign the 26. year. Sic Subscri●itur, By His Majesty's Command LAUDERDAIL. july 23. 1674. ACT concerning Acts before answer. THE Lords considering, That in several Cases, they are in use before discussing of the Relevancy of the points debated, to ordain the Parties Pursuer, or Defender, or either of them, to produce Writs, or to prove certain Points of fact, that they may have the whole matter entirely before them, both as to the Relevancy, and Probation; whereupon Acts are Extracted: Which are called Acts before Answer. And in regard Questions do, and may arise, concerning the import and effect of such Acts, if the Parties be thereby so concluded, as they may not thereafter propon new alledgances; and what Terms, and Diets should be allowed for Probation: and seeing it will be a great prejudice to the Liege's, if after Acts Extracted, and Probation led thereupon, Parties, or their Pocurators should be permitted to to offer new alledgances, not formerly insisted on in the Act: for Probation whereof, new Terms behoved to be asigned, and thereby Processes would be drawn to a great length. Therefore, the said's Lords do ordain the Parties Procurators to propone all their alledgances in the Cause before, or at the time of pronouncing these Acts, before Answer. And declare, that after these Acts are Extracted; they shall not be heard to propone any new alledgances which were competent, but omitted to be proponed when the Act was pronounced. And the Lords declare, That, where the Parties Pursuer, or Defender are, before answer to the relevancy burdened with the Probation of any point: they shall have the same Terms, or Diets, for Probation thereof, as by the constant practice is allowed to Pursuers for proving their libels, when the same are admitted to their Probation; but if in the same Acts, any point be found relevant, and admitted to Probation: that the Parties Pursuer, or Defender to whose Probation the same is admitted, shall have the same Diets for proving thereof, as are allowed to them respectiuè, in Acts of litis contestation. But after the Probation upon the saids Acts is closed, they shall not be admitted to adduce any other probation, of any points formerly alleged in the Act. And further, the Lords declare, that where any Alledgance, or Reply is founded upon Writs, and that before Answer there to, the Writs are ordained to be produced, in case the Party burdened with the producing of these Writs shall fail therein and thereupon the Term shall be circumduced against him, that the alledgance, or reply in the Case foresaid shall be holden as not proponed. ACT for trial of those presented to be Ordinary Lords of Session: july Last 1674. THE Lords considering, That the KING'S, Majesty, by His Letter, May 19 last, did require them, to present to His Majesty, what Trial they should think best and firest to be taken, for Cognoscing the Qualifications, and sufficiency of such Persons, as His Majesty shall hereafter Nominat to supply any Vacant place in the Session, and the said's Lords, in answer thereunto, having offered their humble opinions. That thereafter, when any new Lords of Session shall be presented by His Majesty, for trial of their Qualifications: they shall sit three days beside the ordinary, in the Utter-house, and shall have inspection of the said Processes, which shall be carried to Interlocutor; and shall make report of the Points taken to the Interlocutor, in presence of the whole Lords. As also for completing their Trial, they shall sit on day in the Inner-house, and after any Dispute is brought to a Period, and the Lords are to advise the same, in order to the pronouncing their Interlocutor; they shall resume the Dispute, and first give their opinion there anent, in presence of the whole Lords. Likeas, His Majesty by His Letter, of the 14. of this instant, having approven the foresaid Rule offered, for the Trial of such as shall be presented by His Majesty, as ordinary Lords of Session, and appointed it to be entered in the Books of Sederunt, for that purpose. The said Lords, in obedience to His Majesty's commands, do ordain the same to be observed, as the constant Rule in all time coming, for Trial of such Persons, as shall be presented by His Majesty to be ordinary Lords of the Session. And ordain these presents to be Recorded in the Books of Sederunt. january 26. 1675. THIS day compeared Personally, George Marquess of Huntly, in presence of the Lords, and declared, that he having given Commission to divers of his Friends, for managing his affairs during his absence forth of the Country, who, as he was informed had given in an Appeal in an Action pursued in his Lordship's name against Gordon of Carnborrow; and craved that in regard he doth pass from the said Appeal, that warrant might be given to deliver up the same to him. Which desire the Lords granted. ACT concerning Prisoners for Debt. February 5. 1675. THere being an Address made to the Lords of Council, and Session by the Keeper of the Tolbooth of Edinburgh, representing, That Persons imprisoned in the said Tolbooth for Debt, upon Captions, having obtained discharge of the Debt, are pressing to be liberat, upon production of the discharge, without a Charge to set at Liberty, which he refuses to do, al●●it the same be usually done, by the Keepers of other Tolbooths. And particularly, by the Jailor of the Tolbooth of the Canongate; and therefore desiring, that the Lords would allow him the same privilege, which is assumed by the Jailor of the Tolbooth of the Canongate, or otherways to determine what both of them ought to do herein. And the said's Lords having taken the general Case to their consideration, and finding, that where the Debt, for which Persons are Incarcerat, is in-considerable, the Expenses of procuring ● Charge to set at Liberty will sometimes near equal the Debt itself, the Prisoners being also poor, and not able to satisfy the said's Expenses; Therefore, the said's Lords do Authorise, and allow the Magistrates of burgh's, to set at Liberty out of their Tolbooths, Persons imprisoned for Debt, by virtue of Letters of Caption, upon production of a sufficient discharge of the Debt, granted by the Creditor, at whose instance they are incarcerat, bearing a Consent to the Debtors Liberation, and duly registrat, if the sum do not exceed two hundred marks Scots, and the Prisoner be not arrested at the Instance of other Parties, the Magistrates, or Keeper of the Tolbooth, being always careful to keep an Extract of the said discharge; and finds no necessity, in this Case of a Charge to set at Liberty. But if the sum, for which the Debtor is Incarcerat, exceed two hundred marks Scots, the Lords discharge the Magistrates of the Burgh to Liberat him out of Prison, without a Suspension, and Charge to set at liberty under His Majesty's Signet. February 9 1675. ACT anent Bills of Suspension. THE Lords finding it expedient, That some settled Rule, and Order be set down, concerning the presenting and passing of Bills of Suspension; That any abuses which of late have crept in, may be prevented in time coming, do ordain: that hereafter, in time of Session, no Bill of Suspension shall be presented to any Lord to be past, but to him who shall be ordinary Lord for the time upon the Bills, and that both in time of Session, and Vacancy, the Ordinary shall continue upon the Bills, from Tuesday to Tuesday, in the inseving week. And ordain the Bills to be presented only by the Clerk of the Bills, or his Servant; and when the Bill of Suspension shall be presented, if the Ordinary, after the perusal thereof, find the Reason's relevant, and sufficiently instructed, that he pass the Bill. And in case application shall be made to him by the other Party concerned, for a hearing; the Ordinary shall Writ towards the foot of the Bill; that before the Bill of Suspension be expede, and go to the Signet, the other Party shall see and answer, and in that Case he may stop execution for sometime, not exceeding a month from the time of presenting the Bill. And if the Ordinary shall re●use the Bill of Suspension, he shall mark upon the back of the Bill with his own hand, that the Bill is refused, in respect the Reasons are either not relevant, or not instructed; which Bill the Clerk is thereby ordered to keep, and mark with his hand, upon the back thereof, what Writs are produced for instructing the Bill. And if the same Bill, or any new Bill of Suspension upon that matter shall be desired to be presented to another Lord being Ordinary for the time, the Clerk shall present to the Ordinary, the Bill of Suspension which was formely refused. In which Case the Ordinary is not to pass the Bill, until it be presented to the whole Lords in time of Session, or to three Lords met together in time of Vacancy. ACT ordaining Processes after Avisandum to be carried to the Ordinary that same day, and reported in his Week. june 2. 1675: THE Lords considering, the inconveniences arising from the giving up of Processes to Parties, or their Advocats, after the same are taken to Interlocutor, the reporting of Causes being thereby much delayed, and it being contrary to the ancient Custom; Therefore, the said's Lords ordain, that in time coming, after any Cause is dispute before the Ordinary, in the Utter-house, and an Avisandum made therein to the Lords, that the Process shall that same day be carried by the Clerk, or his Servants to the Ordinary, that he may peruse the same, and that he may endeavour to report to the Lords, the points taken to Interlocutor the next day thereafter; or at farthest once in his Week. And the Lords discharge either the Ordinary, or the Clerk to give up, or lend out to the Parties, or any Person for them, the Processes, or any part thereof, after an Avisandum is made therein to the Lords, or when the Ordinary shall call for the Process, to consider it himself. And if any Act or Decreet pronounced by the Ordinary shall be stopped upon the desire of any of the Parties, for a new hearing, that the Lord who formerly hard the Cause, shall go to the Bench in the Utter-house, betwixt 8. and 9 a clock in the morning before the ordinary come out, and call, and hear the Parties Procurators, wherein the Lord was Ordinary the immediate preceding Week shall have the preference before any other Lord, who was Ordinary in any of the former Weeks. Likeas, the Lords discharge any written Dispute upon Bills of Suspensions, or Advocation, but where the Ordinary upon the Bills, shall think fit to allow a Bill, to be seen, that he call the Parties the next day and hear what they have to say, viva voce, without taking in written answers. Hugh Riddel sent to the Pla●tations. july 20. 1675. THE which day, anent the Petition given in to the Lords, by john Riddel Merchant in Edinburgh, showing that, Heugh Riddel, the Petitioners only Brother, having committed an unexcusable Crime (Whereat the Supplicant blushes) in cutting some Silver-buttons off a Gentleman's clothes, in the Utter-house, during the time that the Lords were sitting; and being therefore committed to Prison, the said's Lords have most justly ordered him this day to be brought by the public Executioner, from Prison, to the great door of the Session House, at 9 a clock in the forenoon, and to stand till 10. a clock, with a Paper on his Forehead, expresing the Crime whereof he is guilty: and thereafter to be taken by the foresaid Executioner to the Throne, and there to stand with that Paper on his forehead, from ten to eleven a Clock: Which Sentence, the Supplicant acknowledgeth to be less than the said Hugh Riddel deserveth; only he being a young man, and related to honest Parents, and the Supplicants Brother, and never known to have been addicted to any such base Acts formerly: albeit the Petitioner and his Friends, are ashamed in his behalf, to plead any exemption from his deserved punishment, which his riper years may cause him detest and abhor, as an offence to the said's Lords, and Scandal to his Friends, and prejudice to the Party offended: which the said Party offended, willingly forgiveth, out of respect to his Friends. Therefore humbly desiring, that the said's Lords, for preventing such a public Stain upon the Petitioner and his Friends, by the said public disgrace upon a youth of his years, would be pleased to 〈◊〉 his Sentence, as to the way and manner of the disgrace, and infamy, by 〈◊〉 his Imprisonment upon the Supplicants Charges, till there be an occasion for Transporting of him beyond Seas, or where the said's Lords shall judge convenient, whether by way of banishment, or otherwise, during then Pleasure, for which effect the Supplicant shall be obliged by Bond, if the Lo●ds shall require the same: and in the mean time, to be favourably pleased to discharge the Execution of the said Sentence. Which Supplication being considered by the said's Lords; they by their deliverance thereupon, of the 16. of thus Instant, granted Warrant to the Magistrates of Edinburgh, to continue the execution of their Sentence, pronounced against the said Hugh Riddel, until Wednesday the 21. of this Month: betwixt and which time, if he should find sufficient Caution, to conti●●e in Prison upon his own Charges, until an occasion shall offer for his Transportation, to his Majesty's Plantations in America, and that he shall then remove to the said's Plantations, and not return to this Kingdom, under the pain of five thousand marks, Scots Money, to be disposed of as the said's Lords shall think fit, in case he contraveen: In that case, the Lords declare, they will dispense with the execution of their former Sentence: and if Caution were not found, to the effect foresaid, betwixt and the said day, they ordained the former's Sentence to be then put in execution. Likeas, this day the Lords having considered a Bond of Cautionry produced, subscribed by the said john Riddel, dated the 19 day of this Instant; and finding the same to be conform to their foresaid deliverance: therefore they have dispensed, and hereby dispense with the execution of their former Sentence, pronounced against the said Hugh Riddel, upon the 15. Instant; and grants Warrant to the Magistrates of Edinburgh, to deliver the Person of the said Hugh, to the said john Riddel, when he shall desire him, in order to his Transportation. ACT anent passing of Bills for liberty out of Prison. july 21. 1675. THE Lords considering, that oftentimes, where Parties have done ultimate diligence against their Debtors, by apprehending them with Caption, and Incarcerating them: Bills of Suspension and Charges to set at liberty are presented, and past in favours of these Persons, without the knowledge of the Creditors, at whose Instance they are Incarcerat, and to their great prejudice, thereby frustrating the diligence done by them: For remeid whereof, the Lords ordain, That in time coming, when any Person intends to give in a Bill of Suspension, and Charge to set at liberty, that he shall make previous Intimation of the same, to his Creditor, at whose Instance he is Incarcerat, or arrested in Prison, Personally, or at their dwelling place by a Nottar, before Witnesses, mentioning the time when the Bill shall be presented, in case the Creditors be within the Kingdom for the time: and that the Instrument of Intimation to the Creditors, under the Nottars hand, be produced, with the Bill of Suspension, and Charge to set at liberty, when the same is presented to the Ordinary upon the Bills: otherways that the Bill be not past. And the Lords ordain the Intimation to be special, in the time when the Bill shall be presented, being within the latitude of a Week, that the Creditors may be at a certainty, when to attend the same. ACT concerning the granting of Protections. February 1. 1676. THE Lords considering, that divers Persons who are under the hazard of Caption for Debt, pretending that they are cited to bear Witness in Processes, depending before the Lords, do upon production of a Charge given to them for that effect, under Messengers hands, procure Warrants from the Lords, to Discharge the execution of Letters of Caption, and Acts of Warding, against them for some time, albeit they be not made use of as Witnesses; but only the said Charge impetrat by them from a Messenger, that they may obtain the foresaid Warrant. For remeid of which abuse, the Lords declare, that in time coming, they will grant no Warrant for stopping of execution, of Letters of Caption, or Acts of Warding upon that ground, that the Craver thereof is cited as a Witness in a Process, unless, with the Petition, there be given in a Declaration under the hand of the Party Pursuer, or Defender, who adduces the Witnesses, bearing, that the Person who desires the said Warrant is really cited at his instance as a Witness, and that he is a necessary Witness: And the Lords declare, they will fine the Party who gave the said Declaration, if at the conclusion of the Cause, it appear that there was Collusion in giving the same; it being only done, that the said Person might obtain a Personal Protection. His Majesty's Letter concerning the Clerks. june 20. 1676. CHARLES R. RIGHT Trusty and well beloved Cousins and Counsellors, Right Trusty and well beloved Counsellors, and Trusty and well beloved, We Greet you well: We have often evidenced Our Affection to, and Care of you, the Senators of Our College of justice; and as We have Trusted you with the Distribution of justice, and the preservation of the Rights and Properties of Our Subjects in that Kingdom, according to Law; and are very confident of your equal and expedite procedor in justice, to all Our Subjects, which is the most acceptable Service you can perform to Us: So We will suffer none of Our Subjects to reproach your Procedor; much less these who serve before you, and by your Favour and Warrand, have the privilege to procure and plead for others, who (if they should be permitted to defame your Sentences) might prove the unhappy Instruments to lessen the Honour and Confidence which hath been always attributed to that Senate by Natives and Strangers, and might diffuse the Leaven of Malcontents amongst Our People, as if their Rights and Interests were not securely lodged; and thereby make them more capable of evil Impressions, and desirous of change. And We do Require you by all means to suppress and prevent all mutinous Courses, which you have prudently adverted to, and obviate by your Act of Sederunt, of the 5th. of January last, wherewith We are very well satisfied. And We do leave the Advocats, and others of the College of Justice, to be Ordered by you in all things relating to their Employments. And We do further Require you to prevent and punish all Conbinations, and unwarrantable Correspondences amongst Advocates, whereby they may forbear or refuse to Consult, Plead, or concur with these who did so faithfully adhere to Our Service; and did continue in, or early return to their Station; and as further Evidences of Our Royal Favour, We do Ordain, That the three Clerks of Session, who do expede your Decreets, shall be nominate by the Senators of Our college of justice, in all time coming; and that they be subject to their Sensare, and that the Clerk of Register give them Deputations from time to time: and in case of Vaiking of the Clerk of Registers Off●●●, We do Authorise the said's Clerks of Session, to Act by your Warrant, as they shall be Ordered by you, without prejudice, to the Clerk of Register, of all other Benefit, and Emolument belonging ●o, or depending upon that Office. And it is Our further Pleasure, that in all time coming, there be only three ordinary Clerks of Session, besides the Clerk of the Bills, according to the ancient Constitution, and that of the number that now serve you, make choice of three that shall still serve; and that you modify such Satisfaction, to be paid by those that remain, to those that are to go out, as you shall find just and reasonable; and so We bid you Farewell. Given at Our Court at Whitehall, the twenty fourth day of May, One thousand six hundred seventy and six. And of Our Reign, the twenty eight year. Subscribed thus, by His Majesty's Command, LAUDERDAIL. ACT concerning the Registers. july 4. 1676. THE Lords having considered His Majesty's Letter, direct to them, bearing, that whereas by His Majesty's advancing Sir Archibald Primrose of Caringtoun, late Clerk Register, to the Office of justice-general, the Office of Clerk Register is now Vacant; and seeing His Majesty hath thought it necessary for the advantage of His Service, and for the good of His Subjects, that the hail public Records of this Kingdom, which are, and were in the Possession and Custody of the late Clerk Register, or his Deputs and Servants, be put and keeped in good Order: Therefore His Majesty, empowers and authorises the saids Lords, to take special care, and see that the same be effectually done; and to that effect, that they appoint some of their number, to take inspection thereof: and by themselves, and such as they shall employ under them, to put, and continue them in good Order. And His Majesty authorises the saids Lords, and those of their number, appointed by them, to receive the hail public Registers and Records from the late Clerk Register, upon such account and Inventar, as they should find just, safe and secure: and which being effectually gone about, and done, that they render to His Majesty, or to His Secretary, for His Majesty's perusal, a full and exact account of their diligence therein, to the end, His Majesty may thereafter, declare His further Pleasure; and for effectuating hereof, that the Lords in His majesty's Name, and by His Authority, Require the late Clerk Register and his Deputs and Servants, to exhibit and produce the said's hail Records to them, or those appointed by them, immediately after receipt of His Majesty's Letter. The said's Lords in pursuance of His majesty's Command, do nominat and appoint the Lords Thesaurer Depute, Collingtoun, Reidfoord and Newtoun, or any two of them, to meet at such times as they shall think convenient, and to take inspection of the hail public Records of the Kingdom, which are, or were in the Possession and Custody of the Lord Caringtoun, late Clerk Register, or his Deputs and Servants, and by themselves, or such as they shall employ under them, to put, and continue the same in good Order; and authorise the Lords abovenamed, to receive the said's hail public Records from the Lord Caringtoun, upon sufficient Account and Inventar: and to that effect, the Lords in His Majesty's Name, and by His Authority, do Require the Lord Caringtoun and his Deputs and Servants, to exhibit and produce the said's hail public Records, to the Lords abovenamed, or any two of them, whem they shall desire the same; and allows the said Lord Caringtoun, or any Person whom he shall authorise to be present at the Inventaring of the said's Registers, to the end, obedience may be given to His majesty's Letter in all points. ACT for Inventaring the Registers Books. july 13. 1676. THE which day, the Lord Thesaurer Depute, Collingtoun, Reidfoord and Newtoun, made report to the Lords, that conform to the Warrant given to them, they had met with the Lord Caringtoun, late Clerk Register, and had delivered to him the Ordinance, passed by the Lords upon His majesty's Letters, concerning the Registers, and had taken a view of the hail Records in his Custody, in the Parliament-House, and in the Castle of Edinburgh; and that the Lord Caringtoun declared● he would deliver the same, either upon Inventar, or in bulk without Inventary upon oath, that he has Abstracted none of them, as the Lords should think fit to order, he being exonered of the said's Registers: but they found the Warrans to be so many, and not in order that it would take a long time to Inventar them; which report being considered by the Lords, they in pursuance of His Majesty's Commands, do ordain the whole Register Books, which are in the said Lord Caringtoun's Custody, to be presently Inventared by john Anderson Writer in Edinburgh, and any others who shall be appointed by the Lord's abovenamed, who shall give their oaths, that they shall faithfully discharge this Trust, according to such Directions as they shall receive from these appointed by the Lords: and ordain the Inventary to bear, What each Book contains in general, at what time it● begins, and when the same ends, and if there be any blanks in, the Books, that the same be marked in the Inventary: And ordains the said Lord Caringtoun, to give the said john Anderson, or any others to be appointed by the said's, Lords, access to the said's Registers, to the effect foresaid, and allows him, or any he shall appoint, to be present at the said Inventaring: and after the said Inventar shall be made, the Lords do empower those of their number abovenamed, or any two of them, to to take the oath of the Lord Caringtoun, if he hath any more Register Books, Records, or Warrants, then are in the Rooms in the Parliament-House, and Castle of Edinburgh, whereof he is to deliver the Keys, and if he abstracted, or embazeled any of them, or if they be all entire, as he received them, or as they came at any time thereafter to his hands. And likewise ordain any of his Servants, entrusted with the keeping of the said's Registers, to be examined upon oath thereanent: and thereafter ordain the Lord Caringtoun, to deliver the Keys of the Rooms, or Presses where the said's Registers and Warrants are, to these of their number, appointed to receive the 'samine: Which Inventary being made, and the Lord Caringtoun giving his oath, and delivering the Keys● as said is: the Lords ordains the said Lord Caringtoun to be Exonered, and Discharged of the said's Records, and of his Trust in keeping of the same; and ordain an Act of Exoneration to be extended thereupon, in his Favours. The Lords do ordain the Inventar of the Register Books, to be set down in order in time coming, and according to the several matters contained therein. First, of the Records, of Parliament. Secondly of the Records of Council. Thirdly, the Registers of Session: and amongst them of Registrate Writs apart, of Decreets and Acts apart, and of Books of Sederunt. Next to these, the Registers of Exchequer. Then the Registers of the Chancellory. And thereafter, the Registers of Seasins, both the general Registers at Edinburgh, and the special Registers of the Shires. And in all, to keep the order of time. As for the Warrants of the Registers of Session, since the year 1660. they are yet in the hands of the Clerks of Session. And the former Warrants being in great Masses, without any Order; the Lords do appoint, that the said Masses be sorted, putting the Registrat Writs together, and the Processes together; and that the number of them both be taken and set down, that thereafter they may be also digested, according to the Order of time. It is appointed, that so soon as the Inventary shall be perfected, it shall be insert in the Books of Sederunt. ACT anent the manner of Booking Decreets of Registration. November 21. 1676. THE Lords considering that where Registrations are pursued by by way of Action, it is, and hath been the custom of the Clerks, to keep in their hands, the principal Writes, discerned to be Registrate in the same manner as they do, where Writs are Registrat upon the Parties consent. Therefore the Lords ordain, that these Decreets of Registration be Booked together, with Bonds, Contracts, and other Writes, which are Registrat upon the Parties consent, according to the date thereof; and that the Process be keeped with the Warrants of the Registrat Writes. ACT anent the Registers of Seasins and Hornings in the several Shires. january 4. 1677. THE Lords considering, that by the Act of Parliament, in Anno 1672. Concerning the Regulation of Judicatories; the Keepers of the Registers of Hornings, and Inhibitions, and Seasins, and Reversions in the several Shires, are ordained to make exact Minut-books, relating to these Registers, in manner prescribed in that Act: and the Sheriff, Bailzie of the Regality, or Royalty, or their Deputs, with two Justices of Peace, if they be present, are appointed at the times expressed in the said Act, to take inspection of the said's Registers, and the Minut-books relating thereto, and after Collationing thereof, to Subscribe the Minut-book, under the Penalty of an hundred pounds' Scots, for ilk Failzie, in not meeting, and comparing the said's Registers. And the said's Lords to whom the care of seeing the Premises done, is committed by the said Act, having by Missive Letters, of the 31. of july last, direct to the several Sheriffs of this Kingdom, required them by themselves, or their Deputs, to go about the performance of what is enjoined to them by the foresaid Act, and to return a satisfactory account of their diligence, the first day of November thereafter, now bypast: certifying them if they failed, they would be charged with Letters of Horning, for the Penalties contained in the said Act: and seeing the Sheriffs of the Shires abovementioned, and their Deputs, viz. of Argile Renfrew, Wigtoun, Bute, Peebles, Sel●irk, Perth, Kincardin, Aberdene, Nairn, Sutherland, Caithness, Berwick, ●or●ar and Inverness, The Stewart of Kirkcudburgh, and the Stewart of Orkney, have not returned report to the said's Lords, of their diligence in the Premises: therefore the Lords do ordain Letters of Horning to be direct against the saids Sheriffs and Stewarts, and their Deputs, Charging them to meet, and to compare the Registers of Hornings, Inhibitions, Seasins and Reversions, in their respective Shires, with the Minut-books relating thereto; and after Collationing of the same, to Subscribe the Minut-books, conform to the said Act of Parliament, and to make report of their diligence therein to the said's Lords, betwixt and the twenty day of February next: and likewise Charging them to make payment to Sir William Sharp, His Majesty's Cashkeeper, of the Penalties already incurred by them, viz. an hundred pounds' Scots, for ilk bygone Failzie, in not meeting and comparing the said's Registers, at the times expressed in the said Act of Parliament, and that within the space of fifteen days after the Charge, as to such of the said's Sheriffs and their Deputs, who reside upon this side of the River of Spey: and upon twenty one days, as to those who reside benorth Spey. ACT concerning Arrestments. February 1. 1677. THE Lords considering the great prejudice to Creditors, and delay of Justice, occasioned by Arrestments, proceeding upon Decreets, which are not ordinarily loused, whereupon Debtors do procure delay of the Decreets at the instance of their Creditors against them, before the same be extracted, whereby lawful Creditors are hindered in recovering their j●st Debts, until a several Process of double Poinding, calling the Creditors and Arresters to dispute their Rights, be raised and determined; which, if they should come in as distinct Processes, by the course of the Roll, would take a long time, during which, the principal Cause behoved to ●ist. For remeid whereof, the said's Lords do declare, that they will receive all double Poinding, for purging of Arrestments, as incident Processes with the principal Cause, without any new Inrolment; and do further declare; that if the Arrester proceed not in Diligence, by an Action for making forthcoming, whereby his Debtor may be Certiorat of the Arrestment, and may raise double Poinding in the name of his Creditor, in whose hands the Arrestment is made, that they will grant no delay, upon pretence of such Arrestments, albeit upon Decreets: But that the same shall be purged by Caution, to be found by the Creditor to warrant the Debtor, at the hands of the Arrester, and that upon pretence of the Caution found, they will not grant Suspension, except upon Consignation, after Distress by Decreet. Likeas, the said's Lords do declare, that they will grant no Suspension upon Arrestments, laid on after extracting of Decreets; whether upon Decreets or Dependences, but by way of double Poinding; that thereupon both the Creditor and Arrester may be called. ACT concerning Advocats. june 7. 1677. THE Lords having called in the whole Advocats, did intimate to them, that whereas His Majesty had by a Letter, of the 24. of May, 1676. required the saids Lords to prevent and punish all Combinations and unwarrantable Correspondences amongst Advocats, whereby they may forbear, or refuse to Consult or Concur with these who did faithfully adhere to his majesty's Service, and did continue in, or early return to their Station. Which Letter, immediately after receipt thereof, was publicly read before the whole Advocats, notwithstanding whereof, some Advocats do refuse, or forbear to meet with others of the same Station, and jointly Consult their Clients Causes: which being contrair to the Custom, always formerly observed, and very inconvenient and prejudicial to the lieges, who are thereby put to Consult their Advocats severally, and have not the benefit of their joint Advice, as to the matter and manner of carrying on their Causes, whereof the Lords have seen instances in their own presence, by some Advocats, their difiering and disclaiming the alleadgences proponed by others for the same Party: For remeid whereof, the Lords declare, that if any Advocate in time coming, upon the account of Personal prejudice, or any other pretence, shall re●use or forbear to Consult or Concur in the capacity of an Advocate, with any others, whom the Lords do, or shall authorise to be Advocats, that they shall be removed from their Employments. ACT concerning the sisting of Execution upon Bills of Suspension. july 3. 1677. THE which day, the Lords considering that sometimes after Bills of Suspension are past, the same are not exped at the Signet, through the Parties fault, in not finding Caution, or other neglect; and that Bills of Suspension are frequently by Deliverance of the Orpinary, appointed to be seen by the Charger, or his Procurators, and in the mean time, Execution stopped at the Chargers Instance, indefinitely, not limiting the same to a certain day. And seeing some Question may arise, if in these Cases Execution should be sisted, and during what time? For clearing whereof, the Lords declare, that where a Bill of Suspension is past and intimat, or shown to the Charger, or to the Messenger, the time of the Execution, but not expede at the Signet: That Execution is only to sist for the space of fourteen days after the Date of the Deliverance passing the Bill, unless the Ordinary upon further consideration, by a Signature upon the Bill, Subscribed by him, discharge the expeding of the Bill, until a further day, or allow the Suspender a longer time for expeding thereof providing the same exceed not a Month from the Date of the Deliverance of the Bill, passing the same. After elapsing whereof of, the Lords declare, that the Charger may proceed to further Execution, notwithstanding of the foresaid past Bill. And if the Ordinary express no day, but stop Execution indefinitely: The Lords declare that the stop shall continue only for the space of fourteen days from the Date of the Deliverance as aforesaid: but prejudice always of Deliverances given by the Lords in presentia, upon Petitions, ordaining the Reasons of Suspension to be Discussed summarily upon the Bill: and in the mean time, discharging execution. In which case Execution is to sist, until the Cause be Discussed, or the Stop be taken off by the Lords. And the said's Lords prohibit the Clerk of the Bills to write any Date upon the Deliverance of a Bill of Suspension, but in presence of the Ordinary, and that it be the true Date, wherein the same is Subscribed. ACT concerning the Suspensions of Protestations. july 10. 1677. THE Lords considering that the Act of Parliament doth appoint, that where a Protestation is Suspended, the Deliverance of the Bill should mention, that it is the second Suspension, and so forth of all the Suspensions obtained thereafter, that the same is the third or fourth Suspension: Yet notwithstanding by the Fault, or Inadvertency of the Clerk of the Bills, the same is not observed: Therefore the Lords declare, that where there is a Suspension passed of a Protestation, if the Deliverance of the Bill do not bear, that the same is the second Suspension, and so forth of any subsequent Suspensions, that they will recall the Suspension, albeit the same be exped at the Signet, as being contrair to the Act of Parliament. ACT against Solicitations. November 6. 1677. THE Lords taking to their serious consideration, that by several Acts of Sederunt, The Lords have formerly prohibited all Solicitations, in Causes depending before them, whereby Parties did endeavour and expect favour, by the Credit, and Moyon of themselves, or their friends interposing with the Lords, and Personal respects, not relating to the Cause, to the great discouragement of others, who had not the like friendship, or moyon, and to the great trouble of all, conceiving it their interest, and that it might be looked on as a slight, or neglect, if they did not upon all occasions by themselves, or their friends Solicit the whole Lords, at their Houses lying scattered through the several places of the City, imagining thereby, to have much promoted their interest, and paid respect to the Lords, who have no regard to, but are troubled with such Solicitations; it being their duty, and design to do Justice to all impartially, without respect of Persons: Notwithstanding of which Acts, and endeavours of the Lords against Solicitations, the same have been revived upon pretence of giving Information in the Cause: but now seeing written Informations are become ordinary; and that all that aught to be represented to the Lords in any Case, may easily without trouble be done, by written Informations sent to the Lords by a servant, which they will heartily accept, and will not fail to peruse; and finding it unfeasible to hinder Solicitations so long as they admit of Verbal Information. Therefore the Lords do declare, that they will admit of no Solicitation, or Verbal Information, in any Cause depending, or that shall depend before them, during the Dependence thereof either by the Parties themselves, or by any other Person. And to the end, the same may be effectual against all importunity. The said's Lords do Enact and Declare, That it shall be a relevant Reason of Declinator against any of the said's Lords Ordinary, or Extraordinary, that they have received or heard any Solicitation, or Verbal Information in the Cause, during the Dependence thereof. But upon the first observing, that the matter offered to be spoken to them, did bear, or import any Solicitation, or Verbal Information, in a Cause depending, if they did not use all the means they could to stop, or withdraw to hear any further thereof. Or in case any Solicitation, or Information, in a Cause depending, be offered by a Missive-letter, if they do not present the same to the Lords. Likeas, the said's Lords do strictly Prohibit all Advocats, Clerks, Writers and others, depending upon the College of Justice, or their Servants, to offer to any of the Lords, any Solicitation or Information, by Word or Letter, but only by Written Informations Bills or Tickets, for calling, under the pain of Deprivation, and being secluded from the House, excepting the Clerk of the Process, for clearing any Interlocutor, or Minute in the Cause. Likeas, the said's Lords do declare, That if any Party, or others of the lieges, offer any Solicitation or Information, by Word or Missive, that they will Ammerciat them as follows, viz. Every Nobleman in three hundred marks Scots Money: Every Baron, or Knight, in two hundred marks: Every other Heretor, Gentleman, or Chief Burgess, in one hundred Pounds: And every other Person in one hundred marks, toties quoties, to be applied for the use of the Poor. It is always hereby declared, That the Verbal Information of any Party, or other Person for him, when required or allowed Judicially, or before Auditors, in Diets appointed for both Parties to be heard; or before the Ordinaries upon the Bills, in relation to the passing of Bills of Suspension or Advocation; or before any of the Lords, to whom, either by consent of Parties, or by appointment, or Recommendation of the Lords, an Accommodation in any Process is referred, is no ways hereby Prohibited. And to the effect, the lieges may be secured against any prejudice which they may apprehend, by debarring them from Solicitation, or Verbal Information, the Lords do declare, that there shall be free access for all Persons to Inform them by Written Informations, only to be delivered by Servants, and that in all Cases, from time to time; and for the more sure delivery of Informations, they ordain, that every one of the Lords shall have a Servant attending in his House, from● five a Clock, to eight a Clock at night, who shall be holden to receive any Informations, doubles of Bills, or Tickets for Calling, that shall be given in without payment of any Money, under such pain or punishment as the Lords shall think fit: And which Informations, Bills, or Tickets, shall be delivered by the Servants of Advocats, or of the Parties, and by none others. And Ordain this Act to be affixed on the Wall of the Outter-House. And to be Printed, that none may pretend ignorance thereof. ACT concerning Bills relating to concluded Causes: November 9 1677. THE Lords considering, that sometimes after concluded Causes are Advised, and Sentences pronounced therein, Parties endeavour to delay the Extracting thereof for a considerable time, and then do offer Petitions for alteration of the Decreet, whereby the Process not being recent in the Memory of the Lords, they are put of new to peruse the Process and Probation. For remeid● whereof, the Lords Declare, that in timecoming, they will not receive any Petitions, in relation to the Stopping or altering of any Decreet or Interlocutor pronouncing, upon Advising of concluded Causes, unless the Petition be given in within the space of two Sederunt days, after pronouncing of the Decreet or Interlocutor. Suspensions of the Excise to be passed only in presentia. December 6. 1677. THE which day, the Lords Ordained that no Suspension shall be passed of any Charges given for His Majesty's Annuity or Excise, except in presence of the whole Lords. Warrant anent Precepts, for giving Seasine upon Retours. February 15. 1678. THE which day, the Lords Ordained, that Bills craving Warrant to the Director of the Chancellory, to direct Precepts to a Sheriff in that part to grant Infeftement upon Retours, in respect of the Sheriff's refusal, to Infeft the Party; shall not be passed in time coming, by the Ordinary upon the Bills, but the same shall be passed by the whole Lords in presentia; and the Lords discharge the Director of the Chancellory, to direct, or give out any Precepts to Sheriffs in that part, for granting Infeftment upon Retours, unless the Warrant be passed in presentia, as said is. ACT in Favours of the Lord Register. February 22. 1678. THE which day, the Lords considering, that the King's Majesty hath nominated and appointed Sir Thomas Murray of Glendook, one of their number, to be Clerk of Register, with power to him to receive all the Profits of the Office, since the advancement of Sir Archibald Primrose to be Justice-General: and he being accordingly admitted to the said Office. Therefore the Lords do grant Warrant to the Lords, Newtoun and Hercus, to take the Oaths of these Persons, who by their Warrant, were entrusted with the keeping of the public Registers, which were in the Custody of the late Clerk of Register, if they have abstracted or imbazeled any of the said Register Books, or Warrants, or if they be all entire and in the same order as they are set down in the Inventar, insert in the Books of Sederunt. And ordain the Keys of the Rooms, wherein these Registers are, viz. that below the Parliament-House, and of the Chamber in the Castle of Edinburgh, to be delivered to the said Lord Register. And grants Warrant and Order to Mr. Alexander Gibson, one of the Clerks of Session, to make Compt and Payment to the said Lord Register, of the Deuce of the Clerk of Registers Office, which he has intrometted with, by Warrant of the Lords: and declare, that this Act, with the said Lord Register his receipt, shall be a sufficient Exoneration to the said Mr. Alexander Gibson thereof. ACT Discharging Clerks to lend out Processes to any, except Advocats and their Servants. February 26. 1678. THE Lords considering the abuse committed by giving out of Processes, to some Persons attending the House, and pretending to Negotiate in, and manage Processes, who are neither Advocats, nor Servants to Advocats. For remeid whereof, the said's Lords Discharge the Clerks of Session, and their Servants, to give up, or lend out to any Persons, any Processes or Writes, produced therein, except only to Advocats and their known Servants. And the Lords Declare, that each Advocate shall be allowed to have one Servant; and if any shall desire to have more Servants allowed to them then one, appoint them to represent the same to the Lords, and they will take it unto their Consideration. ACT prohibiting the Clerks to give up Bills relating to Processes, whereupon there is any Deliverance of the Lords. july 23. 1678. THE which day, the Lords did Discharge the Clerks to give up to Parties, any Bills or Petitions, whereupon there are Deliverances, relateing to Interlocutors or Decreets in Processes, except where the same are appointed to be seen and Answered. And appoint the Clerks to keep the foresaid principal Petitions, bearing, Deliverances of the Lords, and to give out to parties only doubles thereof. ACT Discharging Advocats, and Writers Servants, to Write their Master's Subscription. july last, 1678. THE which day, the Lords Considering, that there is a corrupt Custom, lately crept in of Advocats, and Writers Servants, adhibiting their Master's Subscriptions, to Petitions and Bills given in to the Lords which is not to be endured. Therefore the Lords declare, that if in time coming, the Servant of any Advocate shall presume to Adhibite and Write his Master's Subscription to a Petition, or to the out-giving, or return of a Process; or if the Servant of any Writer to the Signet, shall Adhibite his Master's Subscription to a Bill of Suspension, or other Bill used to be drawn by Writers, that they will proceed against, and punish these Persons as falsaries and forgers of Writes. ACT Ordaining Hornings and Inhibitions to be Booked, which were not Booked the time of the Usurpers. january 3. 1679. THE which day, the Lord Register, Newtoun and Hercus did make Report to the Lords, that conform to the Warrant given them, of the fourth of December last, they had considered the condition of the general Registers of Hornings and Inhibitions, and of the particular Registers thereof in the Shire of Edinburgh during the Englishes time, and found, that during the said time, there were no Hornings Booked for the space of five years, and three months, or thereby; and that no Inhibition were Booked for the space of three years and six months; and that they had called the Persons who were entrusted in that time, as Clerks to, and Keepers of the said's Registers of Hornings and Inhibitions, and where they were dead, they called and heard their Representatives; but that one of these who had the Keeping of the said's Registers, from the 5. of june 1652. to the 8. of September 1654. Called Thomas Freeman, being deceased, there can be none found to represent him, which being taken in consideration by the Lords, they Ordain the Hornings and Inhibitions to be Booked for the said's years, by such Persons as the Lord Register shall appoint, and allows them for their pains, three shillings four pennies for ilk Leaf of the Book, Written in such manner as the Lord Register shall appoint, And the Lords Ordain the same to be paid by the Persons who enjoyed and possessed the said Offices, and were obliged to have Booked the same, or their Representatives. And where they have none to Represent them by the Person who succeeded next in the said Office, and his Representatives. And Ordain Letters of Horning to be direct upon six days, to the effect foresaid. Orders for payment of the Deuce of the Signet, where Suspensions are appointed to be discussed upon the Bill. january 24. 1679. THE Lords considering that they do frequently grant Warrants to the Ordinary upon the Bills, to Discuss the Reasons of Suspension upon the Bill, especially where the Charger desires the same. And seeing that Warrant or Deliverance, hath the effect of a Suspension past the Signet, the Party ingiver of the Bill of Suspension, being thereby secured against any further Personal Execution, until the Reasons of Suspension be Discussed. It is just and reasonable in this Case, that the Deuce payable for affixing the Signet, should be satisfied, as if the Suspension had been past and exped. Therefore the said's Lords do Ordain, that before the Suspenders Process be heard upon the Reasons of Suspension before the Ordinary upon the Bills, in order to the Discussing thereof, there be paid in to the Clerk of the Bills, or his Servant in that Office, the Deuce payable for affixing the Signet to the Suspension, for which they are to be comptable to the Keeper of the Signet, under the Lord Secretary, and to make payment thereof as he shall call for the same. And appoint the Clerk of the Bills, and his Servants, to keep a Note of such Bills of Suspension, whereof the Reasons are ordained to be be Discussed on the Bills, to the effect foresaid. ACT in Favours of Intrant Advocats. February 7. 1679. THE Lords considering a Petition presented to them by Robert Nairn, Son to Mr. Alexander Nairn of Greenyards, mentioning, That the Petitioner upon a Reference of the Lords, to the Dean of Faculty, and the Advocats, Examinators for taking Trial of his Qualifications, in order to his Admission to the Office of an Advocate, having undergone, both the private and public Trial and Examination, and thereafter applied to the Dean of Faculty, to assign him the Subject of his public Lesson before the Lords; the same is refused, until the Petitioner make payment to the Advocats Box, of 500 marks Scots, conform to a late Act of the Faculty, made to that purpose. And the Lords considering, that the Office and Employment of Advocats, being a liberal profession, albeit they will not allow any sums of money to be imposed upon young men, at their Entry to the Office, and Station of Advocats, yet they recommend to them, to Contribute Voluntarly, for a Library to be erected for the use of the College of Justice. ACT anent Executors Creditors. November 14. 1679. THE Lords considering, that it is imcumbent to all Executors, by virtue of their Office, to execute the Testament of the Defunct● by recovering his Goods, and payment of the Debts owing to him, for the behoof and interest of the Relict Children, or nearest of Kin, Creditors and Legatars of the Defunct. Therefore the said's Lords do Declare, that Executors discerned, and Confirmed as Creditors to the Defunct, are holden as liable to do Diligence, for recovery of the Defuncts Goods and the Debts due to him Confirmed in the Testament, or ●iked, sicklike as other Executors Dative are holden to do by the Law, and practic of this Kingdom. And to the effect, that Creditors be not unnecessarly entangled in the Execution of Defuncts Debts, beyond their own satisfaction; The Lords Declare, that Executors Creditors shall not be obliged to make a total Confirmation; but only of so much as they shall think fit, that there may be place for an Executor, ad ommissa, for the rest, who shall be liable to all Parties having Interest in the same way as principal Executors. It is also Declared, that Executors Creditors, shall have licence to pursue, if they will make Faith, that they are doubtful of the Validity, Existence, or Probation of the Debts of the Defunct, for which they desire licence; the same being returned to the Commissars within such competent time, as they shall appoint, and upon Caution to Confirm as hath been granted in the Case of Licenses formerly. ACT anent the Registration of Hornings. November 19 1679. FOrasmuch; as all Letters of Horning are to be Registrate, either in the Registers of the Shire, where the Denounced Person dwells, or in the general Register of Hornings, keeped at Edinburgh: and the Sheriffs, Clerks, and Keepers of these Registers in the Shires, are by special Act of Parliament, appointed to bring in those Registers, to be marked by the Clerk of Register: and when they mark the Registration of any Horning upon the Letters, they should also insert therein the number of the leaves of the Register wherein the same is Registrate. Which Order is renewed by Act of Regulation, in Anno 1672. And the due observance hereof being of great Importance, for the Benefit and Security of the lieges. Therefore the Lords do accordingly Ordain, all Sheriff Clerks, to bring in their Registers of Horning, to be marked by the Clerk of Register; and that in every Horning to be Registrate by them, they insert at the marking thereof, the particular leaf of the Register, wherein they are Registrate: and that the Sheriff● Clerk take in no Hornings to be Registrate in their Books, but against Persons dwelling within their Shire. And the Lords recommend to the Lord Register, to take special care of the exact observance hereof: And also Ordain the Clerk of the Bills, not to receive any Bill of Caption or others, upon any Horning not Registrate and marked in manner foresaid: And Ordain Letters of Horning, to be direct hereupon, upon a Charge of fifteen days. ACT against Solicitation. December 24. 1679. THE which day, the Lords considering, that notwithstanding of the Act made against Solicitation and verbal Information, dated the sixth day of November 1677. years. Yet some Persons are so bold, as to venture to Solicit the Lords in their Actions. And it being the Resolution of the said's Lords, that so laudable and necessary an Act be made effectual. Therefore they declare, that in any Process now depending or which shall hereafter be intented before them, when the same comes to be advised, they will purge themselves concerning their receiving any Solicitation, or Verbal Information in the Cause, if it shall either be desired by the Partis, or moved by any of their own number. And that they will delate the Persons, who do Solicit, or Verbally inform them, that they may be punished therefore conform to the said Act. ACT anent the taking of Renunciations from Persons Inhibited. February 19 1680. THE Lords considering, That it hath been the ordinary Custom of Debtors, to make payment of sums due upon Wodset, or Anualrent by Infeftment, and to accept Renunciations, or grants of Redemption from the Wodsetter, or Annualrenter; albeit the Credtor had been Inhibit before payment: which being made bona fide the Debtors conceived themselves secure, and that they needed not search Registers, to find Inhibitions against the Wodsetters, or Annualrenters. Which hath tended much to the detriment of Creditors, seeing such Sums secured by Infeftment were not arrestable. For remeid whereof, the said's Lords declare that if the user of an Inhibition upon search of the Registers, or otherway shall find Infeftments of Annualrents, or upon Wodsets, in favours of their Debtor, being Inhibit, and shall make intimation, by Instrument of an-Nottar, to the Persons who have Right to the Reversion of the said's Wodsets, or Annualrents, that the Wodsetter or Annualrenter stands Inhibit, at their instance; and shall produce in presence of the Party, and Nottar the Inhibition duly Registrat. Then, and in that Case, the Lords will not sustain Renunciations, or grants of Redemption, although upon true payment, not being made bona fide in respect of the Intimation, unless the Redemption prcceed by way of action; the Inhibiter being always Cited thereto, or by Suspension of double poinding, upon consignation of the sums, whereupon the Annualrent, or Wodset is Redeemable. And ordain this Act to be Printed and afixed upon the Wall of the Utter-house, that the same may be known to all the Lelges. ACT against Petitions for alteration of Acts Extracted. February 24. 1680. THE which day, the Lords considering, That some times, after Acts of Litis contestation are Extracted, Petitions are given in to them by one of the Parties, craving the Act to be altered, wherein there may be prejudice to the other Party concerned; not being present, nor at that time obliged to be present: conceiving himself in tuto, after Extracting of the Act. For remeid whereof, the Lords declares, that in time coming, they will receive no Bills, or Supplications for alteration of Acts after the Acts are warantably Extracted, seeing both Parties, or either of them may have a sight, or Scroll of the Act before Extracting, if they desire the same. And likewise, because sometimes Bills are given in for adducing of Witnesses, which have not been contained in the first Diligence, but are alleged to have come to Knowledge since the first Diligence was taken out; or after taking out of the second Diligence, whereby Witnesses come to be Examined, when the other Party is not present, nor obleiged to attend, that they may either object against the hability of the Witnesses, or propone Interrogators to them. Therefore the Lords do declare, that in case upon any speciality, they do give warrant to Examine any Witnesses, not contained in the first and second Diligence; that they will only admit the said's Witnesses to be examined at the first and second Terms of Probation, when both Parties are obliedged to attend. His Majesty's Letter in favours of the Lord Register anent the nomination of the Clerks of Session. june 8. 1680. CHARLES R. RIght Trusty, and well beloved Counsellors, and Trusty, and well beloved, We Greet you well: Whereas, by Our Letter to you, of the 24. of May, 1676. We did Ordain, That the three Clerks of the Session, who do Expede your Decre●ts, shall be Nominated by the Senators of Our College of justice, in all time coming. And that the Clerk of Register give them Deputations from time to time; without prejudice to the Clerk of Register, of all other Benefit and Emolument belonging to, or depending upon that Office. And seeing the Office of Clerk of Register was then Vacant, and that the Nomination of the Clerks of Session was always Inherent in, and Depending upon the office of Clerk of Register. And that since We have advanced Sir Thomas Murray of Glendook one of your number, to the said Place: And being well satisfied with the good Service done by him to Us, in the late Convention of Estates, and upon several other occasions. Therefore, as a Mark of our Royal favour to him, We do by these presents, Recall our said Letter, anent the Nomination of the Clerks of Session; and do Empower, Authorise and Appoint the the said Sir Thomas Murray, during his enjoyment of the said Office of our Clerk of Register, Solely to nominate, and appoint the Clerks of Session. So that upon Death, Demission, and Vacancy of any of the Clerks of Session, the said Sir Thomas Murray is to grant Deputations, to such Persons as he shall think fit, and that during their Life-time; and shall as absolutely amply, and freely use, and exerce the said Office of Clerk of Register as any other Clerk of Register formerly did, or might do, declaring the same to be as Effectual to the said Sir Thomas Murray, as to his sole Nomination of the Clerks of Session, as if it had been contained in his Gift, of the Office of Clerk of Register. And ordaining these Presents to be Recorded in your Books of Sederunt. And so We bid you heartily Farewell. Given at Our Court at Whitehall, the twelfth day of November, One thousand six hundred seventy and nine. And of Our Reign, the thirty one year. Sic subscribitur. By His Majesty's Command, LAUDERDAIL. ACT concerning Nottars. july 29. 1680. THE Lords considering, That by Acts of Parliament, it is Statute and Ordained; That Nottars be sufficiently Qualified for exercing that Office, after examination by the Lords of Session; that sufficient Caution be found, for their due Administration of their Office: and in case the Caution be not sufficient, that new and better Caution be found: and after the Decease of the Nottars, their Protocalls are Ordained to be brought in to the Clerk of Register, or his Deputs, appointed by him to that effect, who is empowered to Revise the Protocalls of all Nottars, and consider in what Condition they are. And albeit the due observance of these Acts of Parliament, be a public Concern, as to the interest, and security of the whole Liege's; Yet the said's Lords understanding, that by reason of the late Troubles, and the Confusions ensuing thereupon. Especially during the time of the Usurpers, these Acts have been neglected to be put in Execution: In so far, as many Nottars are Deceased, whose Protocals are not returned to the Clerk of Register, or his Deputes; but do remain in the hands of their Relics, and Children, which occasions divers inconveniencies, and divers of their Protocalls are upon perusal, found to be Defective, and Unformal: and some of their Cautioners are not sufficient. Likeas, divers Persons pretending to have been admitted under the Usurpers, do presume to Officiat as Nottars, albeit they be not lawfully Authorized so to do. For redress of which abuses and disorders, The Lords do Ordain Letters to be direct at the Instance of the Clerk of Register, or his Deput, Clerk to the admission of Nottars, for charging the Relict, and Executors of such Persons as are Deceased, and their Cautioners, to bring in, and deliver to them the Protocall Books of the said's Nottars, conform to the Act of Parliament, and their Respective Acts of Admission. And also Ordains General Letters to be Direct, at the Instance of the Clerk of Register or his said Deput; for charging such Nottars, as they are informed to have Protocalls Detective, or Informal, to produce their Protocalls before the said Deput, at the head Burgh of the Shire, where the Nottar does Reside; and where the Cautioners found for any Nottar is insufficient, to charge that Nottar to find new, and more sufficient Caution. And Ordain these General Letters to be Execute upon six days, and that against such Particular Persons, only as shall be given in a List, under the hand of the Clerk of Register. And the said's Lords do hereby prohibit, and discharge all Persons who were admitted Nottars, under the Usurpers, to Officiat as Nottars, until they be of new admitted. And the said's Lords considering, that it is Statute and Ordained by Acts of Parliament, and specially by the 78. Act Parliament 5. james 5. That all Sheriffs, Stuarts, Bailzies and others, both to B●rgh and Land shall present their Clerks in presence of the Lords of Session, to be Examined, Sworn and admitted by them: and seeing the Clerks of these Courts have neglected for some time by past, ●o compear before the saids Lords, to be tried and approven by them: and it being necessary, and the public Interest of the lieges, that these Acts of Parliament be punctually observed in time coming. Therefore the said's Lords do ordain and require all persons, who hereafter shall be nominate Sheriff Clerks, Clerks of S●ewartries, and Bailiries, before they enter to, and exerce their Office of Clerkship, to compear before the saids Lords, that they may be tried and approven by them, conform to the Act of Parliament, Certifying them, if they failzie therein, they shall be deprived of their Offices. ACT concerning Bills of Suspension. November 9 1630. THE Lords considering, that by former Acts of Sederunt, of the 9 of February 1675. and the 3. of july 1677, They did give Warrant to the Ordinary upon the Bills, to allow a sight of a Bill of Suspension, to the Charger, and to stop Execution for some time, not exceeding a Month, declaring also, that a Bill of Suspension signed by the Ordinary, though not expeded at the Signet, should import a stop of Execution for the space of fourteen days, from the date it was signed, that in the mean time sufficient Caution might be found, and that the Clerk of the Bills might inquire anent the condition of the Cautioner. And now finding that abuses have crept in, stops being procured from several Ordinaries, from time to time, and that when the first fourteen days after, a signed Bill were elapsed, a new one was presented and passed, which stopped Execution for other fourteen days, and so might continue for a long time. Therefore the Lords do declare, that they will give no stops of Execution hereafter, upon Bills of Suspension, fourteen days from the date being a sufficient time, both for seeing and expeding the Bill. And Declares all other stops to be void, except where Causes are ordained by the Lords, to be Discussed upon Bills; and ordains the Clerk of the Bills to make a Minut-book, both of past and refused Bills, by the Alphabetick Order of the Parties surnames, which he is to make patent to any Charger that shall desire to see the same, gratis, and discharges him to present any new Bills in that Cause except to the whole Lords in time of Session, or to three Lords in time of Vacance, as he will be answerable at his peril; and because Parties, or their Procurators, are accustomed to procure Suspensions, upon pretence, that the Copy of the Charge given by the Messenger is general, or unformal; and for verrifying thereof, do produce forged Copies, and sometime forged Writes, for instructing Reasons of Suspension, founded thereupon, never intending to make use of the same; and therefore do suffer Protestations to pass. For remeid whereof, the Lords do declare, that if the Charger shall produce such a Suspension, or a duplicat thereof, under the hand of the Keeper of the Signet, that in that case, the Lords, besides the ordinary expenses of Protestation, will modify large Expenses to the Charger, for his delay; and in case Protestation shall not be admitted but the Suspension shall come to be Discussed: and at the Discussing the Charge, or other Writes mentioned in the Reason of Suspension, be not produced: The Lords Declares, they will hold these Writes false and sorged, and modify large Expenses to the Charger, but prejudice to insist against the forger of the said's Copies or Writes; and ordain a Copy of this Act, and of the other two Acts abovementioned, to be affixed upon the Wall of the Outter-House, and Copies thereof to be delivered to the Clerk of the Bills, to remain affixed on the Wall of the Bill-Chamber, that he may exactly observe the same. ACT anent the marking of Advocats Compearance for Defenders. November 25. 1680. THE Lords declares, that in time coming, where several Defenders are convened in one Summons; and that at the calling thereof by the Clerk, an Advocate shall be marked, compearing indefinitely for the Defenders, and who shall likewise return the Process: that Advocate shall be holden compearing for all the Defenders, unless by the return upon the Process, he qualify his Compearance, and express, for which of the Defenders he compears, and for which of them he doth not compear. ACT in favours of the Macers. February 15. 1681. THE which day, there being a Petition given in to the Lords, by their four ordinary Macers, representing, that where the Lords are in use upon application of Parties to grant Commissions for taking the Oaths of Parties, and the Depositions of Witnesses in Causes, where it appears by Testificats produced, that the Parties or Witnesses, are through age and infirmity, unable to travel. And sometimes Commissions are granted, where the persons live at a great distance, and the matter is of Small moment: By granting of which Commissions, the Petitioners are frustrate of the Deuce payable to them, in case the Parties and Witnesses did come here and Depone before the Lords; and therefore craving that they might have their Deuce, for Parties and Witnesses, where they are Examined by Commission: which being taken to consideration by the saids Lords, they Ordain, that in time coming, where Commissions shall be granted by the Lords, for Examining Parties or Witnesses, that the Macers shall have the half of the Deuce which are paid to them, when Parties and Witnesses do compear before the Lords and Depone, viz. twelve shilling scots for ilk Party to be Examined by Commission, to be paid in manner following, viz. where a Commission is granted for taking a Parties Oath, that the Deuce be paid to Francis Scot, Keeper of the Minut-book, within forty eight hours after the Commission shall be put up in the Minut-book, and in case the same be not paid within that space, that the Commission shall be delet out of the Minut-book, and not Extracted until the same be put up again, and the Deuce paid; and that the saids Dues for Witnesses be paid at the return of the Report and Commission, before an avisandum be put up thereof in the Minut-book: And to the end, the number of the Witnesses may be known, that the Person to whom the Commission is granted, shall set down upon the back of the Commission, or Report, a list subscribed by him, of the Witnesses names: and the Clerks are hereby Ordered, to insert in the Commission a Warrant to the Commissioner to transmit that list with the Report of the Commission; and that Francis Scot attest under his hand, that payment is made to him of the saids Dues, before an avisandum be put up of the Report in the Minute-Book. ACT anent Seasins and Reversions of Lands within Burgh. February 22. 1681. THE Lords of Council and Session considering, that the Act of Parliament 1617. anent the Registration of Seasins and Reversions of all Lands and Annualrents, there is an exception of Land and Annualrents lying within Burgh, and within the Burgages Lands of Royal Burrows, which is supposed to have been upon account of the Books of the Town Clerks of Royal Burrows, wherein the Seasins and Reversions of such Lands might be found. Nevertheless the Lords finds, that not only Seasins within Burgh, are sometimes omitted, and not found insert in the Town Clerk Books: But that frequently, Reversions of Tenements and Annualrents within Burgh, and Assignations to, and Discharges of Reversions, and Bonds for granting such Reversions, are not to be found in the saids Books, to the great detriment of the lieges, and especially of the Inhabitants of the said's Royal Burrows. For Remeid whereof, the Lords do appoint and ordain, the Magistrates of Royal Burrows, and their Successors in Office, to take good Caution and Surety of their Town Clerks, that now are, or shall be in Office, that they insert in their Books, all Seasins of Lands, Tenements, and Annualrents within their respective burgh's, or Burrow-lands; and of all Reversions, Bonds for granting Reversions, Assignations to, and Discharges of Reversions, Renounciations, and grants of Redemption, of any Tenements, or Annualrents within their burgh's, or Burgages Lands, that shall be given at any time hereafter, within the space of four days, from the dates thereof respective, in like manner as is prescribed by Act of Parliament, anent the Registration of Seasins, or Reversions of Lands without Burgh: and that the said Surety be under the pain of the damnage that shall befall to any Party, through the Latency of the said's Writes, which shall be passed by the saids Clerks, or presented to them to be insert in their said's Books. Likeas, the Lords ordains the saids Magistrates to insert an Act hereupon, in their Town Court Books, and to cause publish the same by Tuck of Drum, that none pretend ignorance. And further, the Lords do Declare, that if any Party shall neglect to insert their Seasins, Reversions, Bonds for granting of Reversions, Assignations to, and Discharges of Reversions, Renounciations and grants of Redemption, in manner foresaid, that the Lords will hold and repute them as latent and fraudulent Deeds, keeped up of design, to deceive and prejudge the Purchasers of Tenements and Annualrents within Burgh, bona fide, for just and onerous Causes; and ordains the Provost of Edinburgh, to intimate this Act to the Commissioners of the Royal Burrows, at the next Convention of Burrows, And ordains their Presents to be Printed, and Published at the Mercat Cross of Edinburgh and other places needful. CERTAIN DECISIONS Of several Debates, Intented and Debated BEFORE THE LORDS OF COUNCIL & SESSION, IN Some Weighty and Important Affairs, brought before them. Beginning the 29. of June 1661. and ending in July 1681. james Talzifer contra Maxtoun and Cunninghame. june 29. 1661. JOHN KER, Merchant in Edinburgh, having an Wodset-Right of some Tenements in Edinburgh, William Clerk his Creditor, Comprised the Wodset-Right from him, and obtained Decreet of Removing, against the Tenants of the Tenements; james Tailzifer having Right to the Reversion of the said Wodset, consigned the Sum for which the Wodset was granted, in the hands of the Clerk of the Bills, and thereupon obtained a Suspension of the Decreet of Removing; and thereafter having obtained Right from William Clerk, to his apprizing, did, by Supplication, desire the sum Consigned by him, to be given up to himself; 1. Because the Consignation was not orderly made, conform to the Reversion. And, 2. Though it had been orderly, yet before Declarator, he might pass from the Consignation, and take up his Money, whereby the Wodset Right wou●d remain unprejudged. 3. The Wodset-Right being now returned to himself, by acquiring Clerks apprizing, he had thereby Right to the sum Consigned, for Redemption of the Wodset: Compearance was made for Maxtoun and Cunningham, for whom it was alleged that the consigned Sum ought to be give up to them; because, before William Clerks apprizing, they and William Clerk, had jointly obtained from the King, a Gift of the Escheat, and Liferent of the said john Ker, who had been year and day at the Horn, before Welliam Clerk apprised from him; so that the sum Consigned, being now movable, fell under Kers E●chea●, and thereby they have R●ght to two third parts thereof, and Clerk or Tailzifer by his Right, can only have the other third; and if the Sum were not ●ound to fall under Kers' E●cheat, the Annualrent thereof, during K●rs 〈◊〉 would fall to the three Donators of his Liferent equally, and the ●um ought to be given out, in security to them for their Liferent; and to Tailzifer, as having Right to Clerks apprizing in Fee, except the third, thereto Clerk had Right as joint Donator with them; neither could Tailzifer pass from his Confignation, seeing th●y accepted thereof; nor could he object against any informality in the Consignation made by himself, seeing they passed from that objection. It was answered for Tailzifer, that Maxtoun and Cunninghame had no Right by the single Escheat of Ker; because before the Consignation, by which it is pretended the Consigned Sum became movable, Ker was den●ded by Clerks apprizing: So that the Consigned Sum came in place of the apprizing. It was answered for Maxtoun and Cunninghame, that albeit the Apprizing might carry the Stock and Fee of the Consigned Sum; yet the Liferent of the Annualrent thereof, belongs to the three joint Donators of Kers Liferent, seeing Ker was year and d●y Denounced; whereby jus fuit acquisitum domino Regi, before Welliam Clerk Apprized. It was answered for Tailzifer, the diligences of Lawful Creditors, are still preferred to the Fisk, before Declarator, and here that was no Declarator, of the Liferent of Ker: and therefore Clerks apprizing must carry the whole Right of the Wodset, and in consequence of the Sum Consigned in place thereof. It was answered for Maxtoun and Cunninghame, that although complete Dilligences of Creditors, attaining effect before Declarator, are not liable to Re●●i●ution, in single Escheats, it is not so in Liferent-escheats; especially where the Diligence is not complete, ●n cursu rebellionis, as in this case, and likewise Clerk, Tailzifers' author had homologat the Right of Liferent, by concurring with them, founding thereon in many Process●s. The Lords found the Alleadgence for Maxtoun and Cunninghame, upon the joint Gift of Kers Liferent, Homologate, as said is, relevant and proven; and therefore, ordained the Consigned Money to be given up to Tailzifer, who by virtue of his Right to Clerks apprizing, had the Right of the Stock thereof, and ordained him to employ the same, or give Security for the Annualrent, of two third parts thereof to Maxtoun and Cunninghame, during John Ker's Life-time. Major of Bervick, contra L. of Hayning. june 1. 1661. THE Major of Bervick, and others having right to the Salmond Fishing in Tweed, within Bervick bounds, gave in a Supplication to the Parliament, against the Laird of Hayning, bearing, that he was now draining a Loch, which fell into the Water of Etrick, and thence into the Water of Tweed, which had given a red Tincture to all the River to the Sea, most noisome to the Salmond, which were found never to swim where the said Tincture was, but in other clearer places of the Water, all the Salmond Fishing was prejudged to a great sum, to the detriment of the Country, and the King's Customs; Therefore desiring that he might be ordained to desist and cease: The Parliament remitted the Bill to the Lords. It was alleged for the Defender, that the Bill was not Relevant, because of any alleged prejudice of the Pursuers, to take away from the Defender his undoubted Right of Propertie, giving him power to dispose of his own at his own pleasure. And so to drain his Loch, or to cut his own ground, especially seeing His Majesty, by His Proclamation having invited all His Subjects to draining. The Pursuer answered, that his Petition was most Relevant, and no ways contrair to the Right and Effect of Property, which giveth the Proprietar power to dispose of his own, so that he keep him within his own bounds, and do not send forth any noisome thing upon his Neighbours, but he may not do so to his Neighbour's detriment, especially if he make use of that which is his own, not according to the nature and common use thereof, but against the same, and so though he may build upon his own ground, albeit to the detriment of his Neighbours light or prospect, or may dig a Well in his own ground, albeit thereby he cut off the veins of his neighbours well, yet can he not otherwise prejudge his neighbours, as if he had a Loch on a Hill, he might not cut it, if it drowned his Neighbour's ground below, nor may he build a Milne upon his own ground, so as to take the the water from his Neighbours Milne, nor may he turn the water out of the old Channel, or make it rune other ways upon his Neighbours, than was accustomed. In like manner, in Superior and Inferior Tenements in Town, The Superior may not be made use of, to the detriment of the Inferior, nor the Inferior to the detriment of the Superior, by putting Fire on the Floor, which would smoak the same. The like is provided by many Interdicts in the Civil Law, etc. And therefore the Defender might not contrair to the nature of a Loch, which hath perpetually been a Loch, do any deed beginning within his own Bounds, but ending in a public River, to the detriment of the Fishing; which is worth more than 12000. lib. Sterl. by Year. The Defender answered, that suppose he might not make use of his own, to emit any thing upon his Neighbour's property contrare to Nature, to his Neighbour's Detriment, as in the Instances alleged, they did not meet with this case, because here he offered him to prove, That his Loch had a perpetual Current to the water of Ettrick, which made a Milne go, and when his draining was done (which would be shortly) the Current to the River would be as little, and as pure as ever, so that albeit there was Detriment, it was but Temporary, nor was he working contrary Nature, but helping it, by redding the passage, to let the Loch run quickly away. 2dly. Albeit he might make no new work on his own ground, to the Detriment of his Neighbour's Property, yet might he well send away any stagnant water, corruption or filth, by a public River, whereof one prime use is to purge the earth of all corruption, and to carry it to the Sea, and therefore the Corruption, not only of Men, and Beasts, but of the Earth, as of Minerals, Coal-pits, Lime, and all others might be freely turned thereunto, unless there were a positive Law or Custom to the contrair, albeit there may be detriment of Fishing, which is but a Casuality, and must carry the accident of such inconvenience along with it. And as for the Roman Interdicts, they neither meet the Case, nor are they Laws for us, where the Civil Law is not a Law, but an Example we follow freely when we find it Just and fit. The Lords were Inclined to refuse the said Bill, on that consideration mainly, that it was the proper use of Rivers to carry away the Corruption and Filth of the Earth, which should not be hindered by any Right of Fishing, which is but a Casuality given and taken with the common use of the River, but in regard the matter was remitted by the Parliament, who might, if they found great Inconveniency make a Law for remeid thereof (before answer) The Lords granted Commission to try the condition of the Loch, and how it run before this draining, and how it would run after the same, and how long the draining would continue, and what alteration was in the Fishing of Tweed thereby, and what appearance that the same was caused by the draining of this Loch. Raith of Edmonstoun, Contra the Laird of Niddrie. july 4. 1661. JOhn Boid Merchant in Edinburgh, as Assigny constitute by the Laird of of Wolmet, to a Decreet obtained at his Instance, against Niddrie, for payment of the sum of 7000. marks, for which he gave Band to Wmquhil Wolmet for james Reith of Edmonstoun his good brother, as an Asythment for the Mutilation of the Laird of Wolmet by Edmonstoun, who cut off Wolmets left hand. Niddrie Suspended on double poinding, called the said john Boyd, jean Dowglas, Umquhile Wolmets Relict, and the said james Reith. It was alleged for Niddrie, and the said james Reith, that the Decreet did bear the sum not to be payable till their were delivered, a sufficient Letter of Slain and Remission for the Mutilation, but the Letters of Slain now produced is not sufficient, because it did bear only the Remission of an accidental Mutilation, and this Mutilation being of purpose. 2dly. It was only subscribed by Wolmets Heir, and not by his Wife, and their Children. It was answered for the Chargers, that there was no necessity of a Letter of Slains for Mutilation, but the Remission alone was sufficient. 2dly. This sum was granted for Asythment to Umquhile Wolmet himself in his Life-time, and the Decreet mentioned a Letter of Slains granted by him. 3dly. Any Interest his Wife or Bairns could have, was only for the Asythment of their Damnage, which could be none, seeing Wolmet was a Landed Gentleman, and did not entertain his Family by his handy work, The Lords Repelled the Reason of Suspension; In respect of the Answer on the Decreet and Letters of Slain produced, which they found Sufficient. It was also alleged be the said jean Dowglas, that she ought to be preferred to the said john Boyd, because she had arrested the sum long before his Assignation. It is answered, for Boyd, the Arrestment was upon a dependence and loosed, and there is yet no Decreet upon the Dependence. It is answered for Dowglas, That the losing of the Arrestment would have freed Niddrie, if he had actually paid the sum, but it being yet in his hand, it ought to prefer her as Creditor, doing first Diligence, especially, seeing Wolmet the time of the Assignation, was Rebel, and Bankrupt. The Lords preferred the Assigny, in respect there was no Decreet Extracted upon the Dependence: Reserving to the Arrester after sentence to reduce upon the prior diligence as accords, etc. Tailizfer, Contra Maxtoun and Cuninghame. july 6. 1661. IN the Competition betwixt Tailzifer, Maxtoun and Cuninghame, mentioned june 29. Where Tailzifer was preferred to the Stock of the sum consigned, for the Redemption of the Wodset in Question. It was further alleged for Maxtoun, that he ought to have a share of the Stock, because he produced a mutual Band betwixt himself and William Clerk, Tailzifers' Author, who apprysed the Wodset, whereby they were obliged to to Communicate the Profit that should accresce to them by their Actions intented, and to be intented upon their Rights of john Ker, the common Debtors Lands, without opposing one another upon their several apprisings, Tailzifer answered non relevat against him, who was a singular Successor, this being but a personal Band of his Author, and could not affect his Real Right of apprising, it was answered for Maxtoun, First, Albeit apprisings and Infeftmens' thereupon be Real Rights, in some respect, yet in many others, they were only accounted as Personal Rights, at least might be taken away by Personal deeds, as by Intromission with the mails and Duties of the Apprized Lands, or by payment of the Sums therein contained, which would be valid against singular Successors, without necessity of any Consignation. It was answered for Tailzifer, That this is by reason of the Act of Parliament 1621. Declaring apprisings satisficable by Intromission with the mails and Duties, and so to expire ipso facto, but cannot be streached beyond the Tenor of that Statute, contrair the nature of Real Rights. The Lords repelled the alleadgeance for Maxtoun upon the Band for Communication, which did not affect singular Successors. It was further alleadged● that this mutual Band was Homolgat by Tailzifer in so far as he had concurred in all pursuits with Maxtoun conform to the Tenor of the said Band, and had uplifted the Mails and Duties accordingly. It was answered for Tailzifer, non relevat, to infer Homologation, seeing these Deeds are not relative to any such personal Bond, which Tailzifer never knew, and therefore could not Homologat; whereupon Tailzifers' oath was taken, if he knew the same, who denied: And thereupon the alleadgence was repelled. Maxtoun farther alleged, that albeit there had been no more, but the concurrence judicially, it was sufficient to communicate the Appryzing. It was answered for Tailzifer, non relevat, unless the concurrence had born expressly, to communicate, for the concurrence only to exclude third Parties, would never infer the same. The Lords Repelled Maxtoun's Alleadgences, and adhered to their first Interlocutor. College of St. Andrews Supplicant. july 16. 1661. THE College of St. Andrews Supplicat, that in respect their hail Rents were arrested, at the Instance of Doctor Gleig, and thereby they were not able to entertain their Table and Bursers; craved the arrestment to be loosed, without Caution, in respect they were an Incorporation, for whom no body would be Caution. The Lords after debating the Case amongst themselves, whether arrestment could be loosed without Caution, or upon juratorie cautione, thought it could not; but in this case, they allowed the same to be loosed, the Masters of the Colleges giving a Bond, to bind themselves and their Heirs personally, for what should be uplifted by any of them, whereby every Person stood Caution for his own Intromission, for the University, they not being otherways bound personaliter, but only secundum officium. Relict of Robert Fleming, contra Foresters. july 17. 1661. THE Relict of Robert Fleming, Bailzie of Edinburgh, as his Executrix, Charged Foresters the Bailzies Sister Daughters, to pay 1600. marks, due by their Father, by Bond, and discerned against them as lawfully Charged to enter Heirs to him nineteen years ago, and now eiked to the Bailzies Testament, by the Charger; whereupon She obtained Letters of Horning, Summarily; the Suspenders alleged, the Letters ought to be Suspended simpliciter, because they offered a Renounciation to be Heirs: The Charger answered, non relevat post sententiam et tantum temporis Intervallum: The Suspender replied, they were Minors the time of the Decreet, and that the delay of time was, because their Uncle never Insisted, and it was like, purposed not to Insist. The Charger answered, they were now Majors, and did not reduce intra annos utiles. The Lords admitted the Renunciation. Laird of Buchannan. contra Oseburn. july 24. 1661. THE Laird of Buchannan Pursues, Reduction of a Decreet, obtained against him, at the Instance of Lieutennent Colonel Oseburn, in Anno 1653. upon many Reasons, mainly, because the ground of the Decreet was only a Bill not past the Signet, at the Instance of umquhil, Mr. William Cunninghame, continued in Oseburn, after his decease, without transferring, for rectifying or rescinding a minute of Disposition, of the Lands of Ballindalloch, by Mr. William to Buchannan, put in the hands of Mr. David Buchannan, who gave his Ticket that the same should be keeped, until it were perfeited according to Equity and Justice; and Deponed, that the Point to be rectified, was only the warrandice which in the Minute was absolute, upon which Bills, the then Judges, ordained the Parties to submit, who accordingly submitted to four Friends, and two Overs-men, who were to report, February 10. 1653. Which Oversmen did unwarrantably report, after the expyring of the said Reference, upon the 19 of February, to Buchannans great prejudice, contrair to Justice, in so far as they ordained him to pay Oseburn sixteen years' Purchase, for the price of the Lands, without Production or Debating of the Parties Rights, or calling, or hearing the Arbiters; and with warrandice from Oseburn, and his Goodfathers' Fact, and Deed only, albeit the Lands were insecure, holden Ward, and lying in the Highlands. And found the Rental of the Lands to be five thousand marks yearly, without distinguishing between Stock and Teind, though the Testimony of the Witnesses proves not above three thousand marks, beside the Teind; of which Lands, Oseburn nor his Good-father, had neither Title nor Possession of Buchanbeg; Buchanmore and Ballochroon, which are parts of Ballandoloch, whereunto the Judges did unjustly interpone their authority, superseding twenty thousand marks, until the Right of Buchanbeg, Buchanmore and Ballachroon, were discussed; and whereas the Decreet bears, Buchannan to have consented, he denied the same, neither was there any minute of Process taken upon the day of his alleged consent; but by an Ordinance of the Judges half a year thereafter, made upon their memory, which cannot prove against him, not being subscribed by him, at least he might have resiled, re integra, before extracting the Decreet, as he did. The Defender answered, that whatever was the ground of the Processes, yet there was a Submission subscribed by both Parties, and a Report by the Oversmen conform, which is express contrair to all that is alleged: and is sufficient and full Probation, Arbiters having so great Trust. And the Decreet beareth, the Report made upon the 9 of February: And albeit the minutes of Process were wanting, or contrary, nihil est, because the Clerk being publicus proto notarius his solemn Instruments make full Probation, and the minutes are but the notes taken by him for remembrance, till the full Instrument be completed; against which, Parties may object at Extracting, as not conform to the Warrants, but not thereafter; otherways the Clerks by altering, or losing the minutes, might destroy all Decreets, which are the greatest Securities of the Kingdom. The Report also bears, Inspection of the Parties Rights, and consideration thereof, and of the Debates and Informations given in by either 〈◊〉 in write: And if Buchannan saw not Oseburns Rights, it was his fault, that called not for them out of the Overs-mens' hands, where they long lay, being expired Appryzing and Infeftments against Glengarnock, the ancient Proprietar, and against the Lairds of Buchannan themselves; so that the Report being a Decreet Arbitral, and Confirmed by the Judges, and consented to by Parties, is most solemn. And as to the Consent, it was Judicial and Palpable, by joining hands, and needed no Subscription; it be-being most ordinary, that Decreets bear, Consent of Parties; especially when the Consent quadrateth with, and is conform to a Process; as the compearances of Parties, whereby Decreets became irreduceable, accepting of Offices of Tutory, or Curatory: and so if Buchannan had appeared, and said for forty thousand pound, non faciam vim; but as for the twenty thousand marks, the Right of these Lands would be first cleared. It would have been an unquestionable consent, albeit contrary or extrinsic Acts require Subscription, and ex abundanti, have the same: yet they need not, seeing publica scriptura, by the Instrument Judicial of the Clerks, of Supreme Court, is more Solemn than a private Write by Parties Subscription; and albeit de recenti, at the same time, when consents, or offers are proposed, Parties may resile, yet ex intervallo, they cannot: For there is only locus penitentiae in Dispositions, or Tacks of Lands, where Writ is requisite, not only as an Evidence, but as a solemnity accomplishing the Right: But in other Pactions and Promises, where Write is not essential, there is no place therefore. The Lords having considered the Decreet, and whole Warrants thereof, Reduced, and turned the same in a Libel, ordained O seburn to proceed upon the two Supplications, on which the Decreet was pronounced, and continued his Possession, till the close of the next Session, for they found beside, many informalities, the sentence and Report of the Overs-men, to have been after expyring of the Reference, by the Warrant thereof, subscribed with their hands: And as to the Consent, they found by Signature of Process under all the then Judges hands, that there was no minute of the said Consent at the time it was alleged to have been, but half a year thereafter, made up of their memories: Upon which two Points mainly they Reduced, without Discussing the other Alleadgences: neither had they respect to Buchannans Homologations of the Arbiters Sentences, by taking out Diligences conform, and adducing Witnesses to prove the Rental: nor by acquiescing in his Bills to the price; because there was always some qualities in his Consent. Laird of Lamertoun, contra Earl of Levin, and Alexander Kennedy. Eodem die. THE Laird of Lamertoun having wakened an Improbation against Alexander Kennedy, and the Earl of Levin, for improving of several Bonds, exhibit by the said Alexander Kennedy, and made use of by the Earl of Levin; Lamertoun craved, that the Earl of Levin, might bide by the Bonds, seeing he made use thereof; the Earl offered to abide by them, qualificate●, viz. that he made use of them, as believing they were true Bonds; and that he was not accessary to any falsehood, or forgery thereof. It was alleged, he ought to bide by them simply, for such qualities were contrair to the Act of Parliament, declaring users of false Writs, and abiders by them, to be accounted as accessary thereto; many of the Lords were of opinion, that he should abide by them simply; but that he might protest under the foresaid quality, in respect it was not proper to the Lords, to consider the consequence of his biding by the Bonds, which was Criminal; yet alterius fori; yet it was carried, that he might bide by them qualificate: and therefore he was ordained to give it in in Write, that the Lords may consider how far they will allow it. Mitchels, contra john Hutchison. july 24. 1661. JEAN and Marion Mitchels, having ●pursued john Hutchison, in Anno 1659. for Reduction of a Decreet, obtained by him against them, as Heirs to their Father, upon Minority and Lesion: and also, because their Service, the only ground of the Decreet was Reduced, in Anno 1656. wherein there was an Act of Litiscontestation now wakened. The Defender alleged he got wrong in the said Act; because, he having proponed a Defense upon the Pursuers behaving themselves as Heirs (no way acknowledging their Minority) he alleged they behoved to prove the Reason, as well as the Exception, seeing they were both consistent: yet the Act ordained him to prove his Defense of behaviour; but did not ordain them to prove their Minority. The Lords found this alleadgence relevant. It was further alleged, that the Reduction of the Pursuers retour is not competent against this Defender, to Reduce his Decreet; because the said Reduction was long posterior to his Decreet, and he was not cited to the Reduction. The Pursuers answered, they needed call none to the Reduction of of their Retour, but the Judge, and Clerk, and Inquests and though the Defenders Decreet was anterior, they did not know the same, having been obtained when they were within twelve years of age, and never charged thereupon, before the Reduction of their Retour, and so they never knew it, nor were obliged to know it. The Lords repelled this Defense, and sustained the reason of Reduction, unless the same were elided by the said Defense, of behaving as Heir. Thomas jack, contra Fiddess. Eod die. EODEM die, Thomas jack pursues Fiddess, alleging that Fiddes having given him in custody, the sum of five hundred marks, in Anno 1650. by a Ticket produced, bearing, To be keeped by him with his own, upon the Deponers' hazard; and that the Pursuer for his security, did thereafter go to Dundee, and took his Goods thither, where he lost the said sum, and all his other Goods, by the English taking the Town by storm, and plundering it: yet Fiddess conveened him before the English Officers at Leith, who most unjustly discerned him to pay the sum, and put him in Prison, till he was forced to give Bond for it, and thereafter paid it, unto this Defender his assignee, who concurred with him, and knew the whole matter, and now craved repetition condictione indebiti. The Defender alleged Absolvitor, because the Pursuer made voluntar payment, and so homologat the Decreet, and never questioned the same till now. The Pursuer answered, it was no homologation, nor voluntar, he being compelled to grant it, and expected to remeid from the English Judges, with whom the Officers had so great power; neither could this be counted any Transaction, seeing the whole sum was paid, nor any voluntar consent, nor homologation, being to shun the hazard of Law: So that though these Officers had been a Judicature, if in obedience to their Sentence, he had paid, and after had Reduced the Sentence, he might have repeated what he paid, much more when they had no colour of Authority. The Lords Repelled the Defense of Homologation. It was further alleged for the Defender, Absolvitor; because he offered him to prove, he required his Money from the Pursuer, before he went to Dundee, and got not the same; and it was his fault he took it to Dundee, being a place of hazard. The Pursuer replied, that after the said Requisition, he made offer of the Money, and Fiddes would not receive the same, but continued it upon his hazard, as it was before. The Lords Repelled the Defense, in respect of the Reply: and because the Defense and Reply were consistent, ordained the Parties to prove, hinc inde; the Pursuer his Libel, and Reply; and the Defender his Defense Weymes, contra Lord Torphiohan july 25. 1661. LADY M●ray, jean, Elizabeth and Katherine ●●ymes, pursue the Lord Torphichane, alleging that their Deceased Sister, Dam Anna 〈◊〉, having a Wodset of 20000. Marks, upon the Barony of Errot, granted a Bond of Provision thereof to her Daughter jean Lindsay, thereafter Lady Torphichane, and to the Heirs of her Body, which failzing, to return to the said's Pursuers, with an obligement, that her said Daughter should do nothing to prejudge the said's Heirs of Tailzie; which Bond was delivered by the Earl of Weymes to the Defender, than Husband to the said jean Lindsay, who obliged himself to make the same forthcoming to all Parties having interest, as accords: Yet thereafter, during the Marriage, the said jean Lindsay entered Heir to her Mother; and she and the Defender uplifted the Wodset sum, passing by the Bond of Provision: which sum being in place of the Wodset, and unwarrantably uplifted by the Defender, contrair the Bond of Provision, known to himself, which he was obliged to make forthcoming; he ought to refound the sum. The Defender answered, that the Libel is no ways relevant: for if his Deceased Lady jean Lindsay, being Feear of the Wodset, did uplift the same, and contraveened the Bond of Provision, nihilad eum, who is but a singular Successor, having Right from his Lady, by Contract of Marriage, whereof there was a minute at the time of his Marriage, expressly disponing this sum, without any mention, ●●knowledge of the Bond of Provision; and albeit he knew the fame after his Right, nihil est. And as for his Ticket, it can work nothing; though the Band of Provision were now produced, it being but a Personal Oblidgment, can oblige none but his Lady's Curators, or Successors, and if they will allege, that he is either Heir or Successor Relevant, and his Ticket to make it forthcoming as accords, nihil novi juris tribuit. The Pursuer Replied, That albeit a singular Successor, for an onerous cause might have uplifted the Wodset, and been free, yet the Defender being as the same Person with his Lady, and having no onerous cause, but his Contract of Marriage, wherein there was a plentiful Tochar of 20000. lib. provided to him besides this, and having known the Band of Provision, before the uplifting of the Sum, and so particeps fraudis he is liable to make the Sums received by him forthcoming, by the Act of Parliament, 1621. And also by the Common Law, in quantum est accratus alterius dispendio. The Lords found the Libel and Reply relevant and approven, and therefore discerned Torphichine to refound the Sum. William Ker, contra Parochiners of Cardine. july 26. 1661. WILLIM KER, as Executor confirmed to Umquhile Mr. Andrew Ker his Father, pursues the Minister, and Parochiners of Cardine, for intrometting with his Father's Steipend of the Kirk of Cardine, in Anno 1652. and 1653. And for the Annatine 1654., Because his Father died on the 22 of November, 1653. The Defenders alleged absolvitor, because he being Colleague Minister, placed with the Defuncts consent, and the Defunct being Suspended by the Presbetrie, he got Right to these Years Stepends, and obtained Decreet against the Heritors, and uplifted conform, and so was bona fidei possessor cum titulo. 2. He offered him to prove, by an Act of presbytery, that at the time of his entry he was provided to eight hundred marks of the Defuncts Steipend, by the Defuncts own consent. And as for the Annat, it was not confirmed, and could be extended to no more but the half of 1654. The Pursuer answered to the First, That the presbytery had no power to dispose of that Steipend, by the Act of Parliament 1644. because the Defunct was only Suspended ab officio, which makes not the Kirk Vaick, maxim, seeing the Defunct was Reponed by the Synod, and never disposed, and as to the Decreet, at the Defenders Instance, it was given without calling the Defunct, whom he was in mala fide to misken. To the second, That the Act of Prisbytrie cannot prove, unless it had been subscribed by the Defuncts, own hand, matters of Steipend not being the proper work of Presbitries, but proper for civil Judges, especially, seeing the Defunct was Suspended for Preaching for the Engagement, 1648. Against which that presbytery protested; and so the Act being Eairtester, is the more suspect. To the Third, The Annat not being in bonis defuncti, but indulged by the Law, to the Wife, Bairns, and nearest of Kin to the Defunct Minister, and so originally their Right, though upon occasion of his Service, the same needs no Confirmation, and the Defunct having right proprio jure to the whole Year, 1653. Surviving both Terms Anne signifying a Year further must be the heal Year, one thousand six hundred fifty and four. The Lords Repelled the first Defense, and found the Suspension of the Minister not to make the Steipend Vaccand, and had no respect to the said Decreet, whereto the Defunct was not called. They found also the second Defense not probable by the Act of presbytery, and found that the Anne needed no Confirmation, but that the Anne did only extend to half a Year more than the Defunct had right to proprio jure. Laird of Lamirtoun contra Alexander Kennedy Farl of Levin. Eodem die EOdem die, The Laird of Lamertoun, upon the Improbation mentioned, july 24. Did then desire that Alexander Kennedy producer of the six Bonds quarrelled, might be examined in presentia, and his Person Sequestrated and Secured, and warrant granted to examine new Witnesses. The Lords superceided to give answer till they considered the Process, and now having considered the same, and finding, that the direct manner of Improbation was not Competent, because the Witnesses were dead; and that the Pursuer had insisted in the Indirect manner, and had obtained warrant for Inspection of the Dispositions taken in the Cause, both of Alexander Kennedy himself, and of the Witnesses then adduced, and had given in Articles of Improbation, and the Defenders Articles of Approbation, Replies and Duplyes both which being considered by the Lords, they found grounds of Suspicions and therefore granted all the desires of the Supplication, and Ordained Alexander Kennedy to be keeped close Prisoner in the Tolbooth, till he were reexamined, and Witnesses hinc inde, to be examined by some of the Lords in the Vaccancy, upon what either Parties should desire, which seemed periment to the said's Lords Examinators. Dame Elizabeth Fleming contra her Children November 14. 1661. DAme Elizabeth Fleming Relict and Executrix to Umquhile Malcome Fleming Merchant in Edinburgh, and Tutrix dative to his Bairns, having formerly pursued an Action of Exoneration against her Children, in which she gave up as an Article of her Account a hundred pounds Sterling, paid by her to Patrick Scot of Langshaw, whereupon she had retired her Husband's Bond, and taken a discharge upon the back thereof, and had taken her Husband's name therefrom, whereanent the Defenders alleged, That this being a canceled Paper, could establish no Debt against them, neither could Patrick Scots discharge prove against them that it was a debt restand by their, Father and paid since his death, as Patrick's Testimony and Oath could not prove, much less his Declaration in wri; whereupon, the Lords had ordained Patrick Scots Oath to be taken ex officio; upon the truth of the Debt; and when it was paid to him, and by whom; who having Deponed, that it was paid by this Pursuer after her Husband's Death. The Lords did allow the Article: Now the Cause being wakened at the Pursuers instance, and Sir john Gibson now her Husband, one of the Clerks: The Defenders further alleged, that Patrick Scots oath ought not to have been taken, and could not be sufficient to prove against them, that this was a true Debt, and paid by their Mother, but it behoved to be presumed, if it was a Debt at all, to have been paid by their Father, and the Bond canceled by him, and left amongst his writs, and found by their Mother there; and now after her second Marriage made use of against her own Children; albeit she made no mention of it before: And therefore the canceled Bond being no Writ● subscribed by the Defunct, cannot prove, nor can Patrick, Scot's Discharge, or his Oath make it up; nor any other thing, except the Defenders own Oath, or Writ; seeing Witnesses are not admitted in cases of this Importance. Secondly, though it were Evidently, and Legally Instructed and Proven, yet the Debt was paid by the Mother, she can have no allowance of it, because she paid Voluntarly, not being Tutrix nor Executrix at that time, and canceled it, and took a discharge of it; and so it is both unwarrantably done, and must be presumed to have been of purpose, to gift it to her Children out of her opulent Fortune, having given above forty thousand pounds to the second Husband. The Pursuer answered. That the alleadgances were most Irrelivant, for as to the first, anent the Probation of the truth of the Debt, and payment by the Executrix; It is sufficiently proven by the canceled Bond, at which the Witnesses Names are yet standing; by Patrick Scot's Discharge and Oath, already taken, who is a Person inconcerned; and above all exception, and if need bees, it is offered to be proven by many Witnesses above exception, who saw the Bond un-cancelled after the Defuncts Death, which is abundantly sufficient, to take away the Presumption, that it was retired, and canceled, by the Defunct himself, and that such Probation was Legal, and Warrantable; was formerly found by the Lords of Session, upon the 7th of March, one thousand six hundred twenty nine, betwixt Falconer and Blair, where an Executor pursuing the Hetr, for relief of a movable Debt, produced only the Defuncts canceled Bond, without a discharge, and these same points being alleged; The Lords found, that the Action ought to be sustained, and the truth of the Debt, and the Payment after the Defuncts decease, to be proven by the Creditors Oath; or after his decease by the Heirs Oath; and it is unquestionable, That the Lords, in matters obscure, as to the Probation, may ex ●ob●li officio take all manner of Trial, for finding out the Truth, by Oaths of Parties, Witnesses, or any other manner of way, in matters of greatest moment, which being here already done, and the Testimony so clear, and of so unquestionable a Person as Patrick Scot, there remains no doubt, but the Debt was truly owand, and paid by the Relict, after her Husband's decease. As to the second Point, there is no necessity in Law for Executors, or Tutor● to have Sentence, unless it be in Cases of Competition, to secure themselves, against other Creditors, pursuing afterwards; or Cases dubious, where the Probation is not clear, but to pay a clear Debt without burdening Pupils with unnecessary expenses of Law, against which the Pupils can now allege nothing, wherein they were prejudged, by voluntar payment, such payments were never Repelled: Especially in the Case of a Woman paying so soon after her Husband's death, nor can it be presumed a Donation, because Donations are never presumed, but must be clearly proven; and it is very ordinar to those who have Interest to pay the Debts, and Confirm afterwards. The Lords considering the whole Circumstances, found the Article not to be allowed, a be●t they were clear, that the Debt was true, and really paid by the Executrix; yet seeing she paid, not being then Executrix, nor Tutrix; and canceled the Bond, without taking Assignation; they thought she could not distress her Children with it, but that it was a Donation in their favour. Dame Elizabeth Fleming contra john ●ibson and Fleming. November 19 1661. INter eosdem, There was another Article of the said account, whereby the said Dame Elizabeth Fleming, having lent out a sum of money, in the Name of Mal●ome and Andrew Flemmings, two of her Bairns, she craved, that the said Sum should be taken in part of payment, of the Portions of the whole Bairns; or at least, in so far as was more nor the Portions of these two Bairnes, might be declared, to belong to herself. It was answered for the Bairns, that this Bond was a Donation by the Mother, out of her own means, in favours of her Children; and could not be imputed as a part of their means, because, First The Bond did bear the Money to be lent by her in her children's name, and not in her own; Neither did it bear to be as a part of the Bairns means, nor in satisfaction thereof, as she had specially taken other Bonds in these same Bairns names, and so presumed considerately, to gift the Sum to these two Bairns, of whom one was a pocthmus Child, born eight months after his Father's Death, and so was not thought upon by his Father, nor provided with Legacies as the rest were, Secondly, The Tenor of the Bond bears expressly, the Sum to be payable to the Mother, in Liferent; and one of the Children is substitute Heir to another, in case they had not Children of their own, (Whereas another would have fallen Heir of Line to them, viz. An intervenient Brother) and to them both the Mother herself, and her Heirs were substitute. The Pursuer answered, That supposing this were a Donation; yet it being a free gift, the mother might do it upon what Terms, and Conditions, and what way she pleased. Ita est, by the Tenor of the Bond. It is provided, that she shall uplift the Sum, during her Life, and the Children after her decease; by which Clause, she is more nor a naked Life-renter; and seeing this Clause must be interpret cum effectu, the only meaning of it can be, That during her own Life-time, she might uplift the Sum, and dispose of it at her pleasure: and so evacuat the fee in her children's Persons, seeing there is nothing to oblige her to re-imploy it for the Bairns use, if she should once uplift it, it, as when a Father Infeft his Son in his Lands, reserving his own Liferent, with power to Dispone, during his own life; there the Father is Liferenter, yet by that Reservation, he may annul and evacuat the Sons Fee, even so here: For which two Practics of Dury was adduced, that a Father providing a Sum to himself and his Wife, and the longest liver of them two; and failzing of them by Decease, to his Son, the Son being Infeft in Fee: and in the other Practic, the Father being expressly infeft in an Annualrent for his Life-time; Yet the Lords found, that the Father, during his life-time, might uplift the sum, and Dispose of it at his pleasure. The Lords found, by the Tenor of the Bond, that the Mother had Constitute herself expressly Liferenter, and the Children Feears: And that the power to Charge for the Money, did bear nothing of a power to her to Dispose of it; but was only the ordinar Reservation adjected after the Clause of Annualrent, in these words, but prejudice of the said Annualrent to her, during her life, and after her Decease, to ●he Bairns to uplist the money; and so, that albeit she was not expressly obliged to re-imploy it; yet she Constituting herself Liferenter, without a power to Dispose of the Fee, did sufficiently oblige her to re-imploy the sum. And as to the Practics, the case clearly differed, in this; that there the Father and Mother were not Constitute Liferenters in the sum, though the Father was mentioned Liferenter, of an Annualrent, accessary to the sum: But the Clause being to the Father and Mother, and after their Decease to the Son. It was clear by the common Practics, that the Son was not Feear, but Heir Substitute; so that the Father was Feear, and might Dispose at his pleasure. November 20. 1661. In the foresaid Cause, It was further alleged for the Tutrix, that the Bond in question could not be accounted a Donation, notwithstanding the Reasons before adduced, in so far as she was Debtor to the said's two Bairns, for their Portion, quia debitor non presumitur donare; and therefore, Provisions granted by Husbands to their Wives, albeit they mention not the Contract of Marriage, but love and favour: And so in the Terms of a Donation, yet it is always interpret, to be in satisfaction of a prior obligement in the Contract of Marriage, and not, that both the posterior and former Provision, are due to the Wife. It was answered for the Bairns, that though Donation be not presumed, yet when by the Nature of the Deed done, it appeareth to be animo donandi; I it is truly such, albeit it bear not the name of a Donation, especially in this case: Which Law excepteth from that general Rule, that Parents bestowing sums for the use of their Bairns, from their natural affection, are always presumed to gift, and not to satisfy any former Provision, unless it were so expressed: Upon which ground an Infeftment granted by a Father to his Son, though but a Bastard, Redeemable upon a sum of Money, was not found in satisfaction of a former Bond, granted by him to that natural Son, as is observed by Dury, upon the 24. of july 1623. Stuart contra Fleming: But here, not only is this Bond, not in satisfaction of the former Portion; but bears a Clause of a Liferent, and of a return to the Mother, which are incompatible with an intention of satisfaction. The Lords found the Bond to be in satisfaction of the Bairns Portions, pro tanto, and a Donation pro reliquo; which many thought strange, seeing a Bond of 100 Sterling, mentioned 14th. Instant, re●eired and paid by the Mother, and being proven by Patrick Scots oath, so to have been done, to the satisfaction of most of the Lords, which was clogged with no Provision, was not allowed to be in Satisfaction of these Bairns Portions. Bosewel contra Bosewel. November 22. 1661. JOHN Bosewel Pursues Bosewel of Abden, as representing Henry Bosewel his Father, for payment of a 1000 pounds, due to the Pursuer, by the said umquhil Henry, and insisted against the Defender, as lucrative Successor, by accepting a Disposition of Lands, and Heritage, from the said umquhil Henry, whereunto he would have succeeded, and was therein his appearing Heir. The Defender alleged, he was not lucrative Successor; because the Disposition was for Causes onerous. The Pursuer answered, non relevat, unless it were alleged for Causes onerous, equivalent to the worth of the Land; as was formerly found in the Case of Elizabeth Sinclar contra E●phingst●●● of Cardo●●. The Defender answered maxim relevat, to purge this odious, passive Title, of lucrative Successor, which is no whe●e sustained, but in Scotland; specially, seeing the Pursuer hath a more favourable remeid, by Reduction of the Disposition upon the Act of Parliament, 1621. if the price be not equivalent, and there it is sufficient, to say it was for a considerable sum, or at least, it exceeded the half of the worth, for there is latitude in buying and selling, and as an inconsiderable Sum could not purge this Title; so the want of an inconsiderable part of the full price, could as little incur it. The Lords before answer, ordained the Defender, to produce his Dispositior, and all Instructions of the Cause onerous thereof, that they might consider if there was a considerable want of the equivalence of the price; here the Defender pleaded not, that he was not alioqui successurus, the time of the Disposition, being but Consing German to the Defunct, who might have had Children. Douglas contra johnstoun. Eodem die. EODEM die, In the Competition between Dowglass in Abernethie, who Confirmed himself Executor Creditor to Gilbert Weymes in Dumblane, where Gilbert dwelled; and john johnstoun as Executor, Confirmed to the said Gilbert, by the Commissars of Edinburgh; because Gilbert in a Voyage from Scotland to Holland, died at Sea. The Lords found the Commissars of Edinburgh to have no Right, unless the Defunct had died abroad, animo remanendi, This Interlocutor was stayed, till the Commissars were further heard. Marjory jamison contra Rodorick Mccleud. December 3. 1661. MARIORI jamison, Relict of umquhil Mr. john Alexander Advocate, pursues Rodorick Mccleud, for payment of a Bond of Pension, of 200. marks yearly, granted to her Husband, bearing, For Service done and to be done. The Defender alleged the Libel is not relevant, unless it were alleged, that Mr. john had done Service constantly, after granting of the of the Pension, which the Lords Repelled. The Defender alleged further, that he offered him to prove, that Mr. john did desist from his employment as Advocate, after the Pension, and became Town Clerk of Aberdeen; and the Pension being granted to him, who exerced the Office of an Advocate at that time, must be presumed for his Service, as Advocate. The Lords Repelled this Defense, in respect of the Bond of Pension, bearing, For Services done and to be done, generally. Sir Robert Farquhar contra Lion of Muiresk. Eodem die. SIR Robert Farquhar, pursuing a Reduction of a Disposition, against john Lion of Muiresk, upon Circumvention. The Lords granted Certification, unless not only the Extract, but the Principal Disposition were produced, in respect they were registrate at that time, when the Principals were given back to the Parties. Thomas White contra Crocket. December 4. 1661. THOMAS White pursues Patrick Crocket in Eliot, to make payment of the sum of 600. marks, which the Pursuer alleged he had in a Leather-Girdle, when he lodged with Crocket, being in an Innkeepers House, and that the Defender promised that the Pursuer should want nothing, after the Pursuer had shown him the said Girdle; yet the Defender came ordinarily in the Chamber, where the Pursuer lay that night, and he wanted his money from under his head, which he declared, and show to the Defender the next morning: and therefore, according to the Law, nautae caupones stabularij etc. (which is observed in our Custom) the Defender as Keeper, aught to be Discerned to restore. The question was here only, of the manner of Probation. The Lords found all the Libel Relevant to be proven, pro ut de jure, and declared, that these being proven, they would take the Pursuers oath, in litem, upon the quantity. bailie of Dunnean contra Town of Inverness. Eodem die. bailie of Dunnean pursues the Town of Inverness, for violent Intromission in his Moss, and molesting him therein, both Parties were content to Dispute, as in a Molestation. The Defenders alleged Absolvitur; because the Town of Inverness was Infeft in their B●rgh and Burrow-lands, with common Pasturage in Montkapl●ch, and offered them to prove, the Moss controverted, was a part of Montka●loch, and that they have been in constant Possession thereof accordingly. The Pursuer Replied, the Defense ought to be Repelled; because he offered him to prove, that he was Infeft in his Lands of Dunnean, with Parts and Pertinents; and that the Moss controverted, was proper Part and Pertinent of his said Lands, and that he was in use to debar the Defenders therefrom, and to get Moss Mail for tolerance, to cast therein, and produced the same, under the hand of nine of the Citizens, and one by their Clerk; and therefore, being in libello, aught to be preferred in Probation. The Lords before answer, granted Commission to Examine Witnesses, hinc inde, upon the Possession of either Party: Which being Reported, the Defenders craved the same, with the Dispute, to be Advised. The Pursuers Procurators alleged, there was yet no Litiscontesta●ion, and they were not Insisting, and the Defenders could not compel them to Insist, without a Process to Insist, with certification: in which case, they would get a day to Insist. The Lord found, that the Probation being taken before Answer, was equivalent to Litiscontestation, as to the Points Proposed, and that they mi●ht proceed, both to Advise the Points of Probation, and Relevancy together, and might instantly Decern accordingly; albeit it hindered not the Parties to Propone other Alleadgences, in jure, than it were in the Dispute, as in ordinary Litiscontestation: and therefore the Lords considered the Parties Infeftments, specially that of the Town of Inverness, bearing, with liberty to them to cast Fail and Divote, in the Month of Kaploch, and several other Months, according as they were accustomed of before. Which Clause the Lords found to be Qualified and Taxative, and not to give an absolute Right of Commonly, but only such as they had before, which behoved to be cleared by Posterior long Possession; and found by the Depositions of the Witnesses, that that part of the Town of Inverness, on the North●side of the Water, only had been in Possession, by casting Peats in the Moss controverted, and that the same is a part of Month Kaplock, and that the Pursuer had proven the Right of Property therein: And therefore ordained the Town of Inverness, on the other side of the Water, to desist from the Moss controverted, and granted Commission to settle the Parties, anent their place, in casting in the Moss, or in case of variance, to Report. jean Dalmahoy contra Hamiltoun of Binnie. December 6. 1661. JEan Dalmahoy Charges Alexandee Hamiltoun, of Binnie, for a Tack-Duty of 2000 marks, due to her for her Liferent-lands; he Suspends on this Reason, that he has taken the benefit of the late Act of Parliament, between Debtor and Creditor and this Sum being above 2000 marks, stands thereby Suspended for six years. The Charger Answers, non relevat, because the Act extends not to Rents, or Tack-Duties of Lands, albeit exceeding 1000 Pounds; but only to borrowed Sums, and other money bearing Annualrent; which in Recompense of that forbearance, are accumulat with the Principal Sums. The Lords found the Act not to extend to Rents, or Tack-duties, and therefore repelled the Reason. james Hoom contra Abraham Hoom. Eodem die. JAmes Hoom as assignee to a Reversion, and order of Redemption used by the Earl of Hoom, against Abraham Hoom, pursues Declarator of Redemption, and Removing in the same Process. The Defender alleged Absolvitor, because the Reversion expressed not Assigneys; and therefore, the Defender cannot be obliged to renounce to the Pursuer, an assignee. Secondly, At the time of the Confignation, the Earl required the Wodsetter to Subscribe the Renounciation, to a blank Person, upon a back Bond, declaring the same to the Earls behoove, which he was not obliged to do by the Tenor of the Reversion. Thirdly, No Declarator, till the Earl produce the Sum at the Bar, seeing he lifted it himself. The Lords found, that albeit the Reversion expressed not Assigneys; yet seeing the Order of Redemption was used, by the Earl himself, the assignee had sufficient Right, but Discerned the Defender to Renounce only in favour of the Earl and his Heirs, but not to Dispone to any other Person, as the Earl desired; and Declared, there should be no Decreet extracted, till the Consigned Money were produced, and given up, neither did they decern in the removing, till the Parties were further heard thereupon. Alexander Tailzifer contra Sornebeg. Eodem die. ALexander Tailzifer, as Heir appearand to umquhil Tailzifer of Redheus, Pursues Mistress Margaret Forrester, his Uncle's Relict, and john Schaw of Sornebeg, her Husband, for Exhibition, ad deliberandum, of all Writs granted, not only to the Defunct, but also granted by the Defunct, to his said Relict, or any other Person. The Defender alleged, non relevat; for Writs granted by the Defunct to the Defender, or other Persons; because, albeit the Pursuer were entered Heir, he had no interest for Exhibition thereof, unless there were Clauses in his favour therein, & nemo tenetur edere instrumenta contra se; and if this were sustained, it were the way to make patent, all the Charter Chists in Scotland, at the Instance of appearand Heirs, under pretence to Deliberate, but in effect to pick Quarrels, and find the weakness thereof. The Pursuer answered, maxim relevat; for seeing the Law gives Heirs the benefit of Deliberation, they must have the necessary means thereof, by Inspection, not only of the benefit, but also of the burden of the Defunct, without which they cannot know, num sit damnosa haereditas: Especially in this case, against a Relict, who probably might have had Influence upon the Defunct Husband, to grant Right to her, that might Evacuat the Heritage: And in this case, the appearand Heir had a more large Interest to crave Exhibition, nor the Heir Entered, who could only crave Exhibition for Delivery, Transumpt, or Registration, and so behoved to Libel a peculiar Interest; but the appearand Heirs Interest, is only ad deliberandum: And therefore, the Exhibition, as medium thereto, must reach to all, whereupon he ought to Deliberate. Especially the Defuncts Debt; and albeit it be true, nemo tenetur edere instrumenta contra se, to found, or give Title to the Pursuers Action: Yet he having Title by the Law, to crave Inspection for Deliberation, hath good Interest: Yea, if he produce a Title in himself, he may even force the Defender to Exhibit Writes, ad probandum, by an incident, as well as third Parties, to whose Writ he hath no Right, save only to bear testimony for him. The Lords having heard this Case in their Presence, because the Point had been variously Decided, as to Writs granted by Defuncts, found the Libel Relevant; not only for all Writs, granted to the Defunct; but also granted by the Defunct, to his Relict Bairns, or Servants, in his Family, at the time of his Death, being such Writs, upon which no Infeftment followed; for as to these, they thought the Registers may give as much Evidence, as was sufficient to Deliberate, and would not upon this ground, open Charter Chists, for showing real Rights, and the plurality carried, that even Personal Rights, granted to strangers, should not be produced, hoc modo; severals being of the opinion, that Debts, Discharges and Personal Rights, should be thus Exhibit. In respect that Heirs in Scotland were liable simpliciter, for all the Defuncts Debts: And therefore, should have Inspection, as well of his Debts, as of his Estate, as was found before, between the Lairds of Swintoun and West-nisbit, observed by Dury, February 26. 1633. Katherine Kinross contra Laird of Nunthil. December 10. 1661. KAtharine Kinross, having Charged the Laird of Nunthil, for payment of a Bond, granted to her first Husband, and the longest liver of them two, and their Heirs; which failzing, his Heirs; he Suspends on this Reason, that she is but Liferenter, and the Defunct being Infeft in Fee, she would not Renounce, but the Heir: Which the Lords Sustained, and found the Letters only orderly proceeded for the Annualrent. The Earl of Roxburgh contra Mcdowal of Stodrick. December 11. 1661. THE Deceased Earl of Roxburgh, having obtained Decreet of the Commission, for the valuation of Teinds, in Anno 1635. against Mcdowal of Stodrick; this Earl having Right from the Deceased Earl, pursues Stodrick for payment of the valued Duty. The Defender alleged, no Process, because he had intented Reduction of the said Decreet, and Improbation of a Procuratory mentionated therein, to have been produced by Mr. Robert Trotter, warranding him to consent for Stodrick, to that Valuation; which is the only ground of the Decreet, without either Dispute or Probation. In which Reduction, Terms are taken to produce; and being prejudicial to this Action, it must be first Discussed. The Pursuer answered, that there can be here no prejudiciallity, which is only betwixt two Principal Actions: but here, res est judicata, by a Decreet, & stat sententia, & dubius est eventus litis; neither can Reduction, which is a petitory Judgement, sister the Pursuers Process, which is a possessory Judgement, upon pretence of prejudiciallity; otherwise Possession might still be inverted upon such pretences; Nor can the Earl be put from his Possession thereby: Especially for the years preceding the intenting of the Reduction. The Lords Repelled the Defense, as to the years, ante litem motam, by the Reduction, but Sustained it for the years since, in respect the Earls Possession was not clear, and that the Valuation was exorbitant, near as great as the Stock. Helen Hepburn contra Hamiltoun of Orbestoun. December 12. 1661. HEllen Hepburn, as Executrix to her Father Humbie, Pursues Sir james Hamiltoun of Orbestoun, for payment of a 1000 marks, due to her Father by Bond. The Defender alleged Absolvitor, because there being a Bond of 10000 pounds granted by Balhaven, Humby, Prestoun, and Orbestoun, for the use of the late Duke of Hamiltoun, but there being nothing to Instruct that it was the Duke's Debt: yet there was a Transaction with the Duchess of Hamiltoun, for a lesser Sum, whereof Balhaven, Prestoun and the Defender, had paid their part: by which Transaction, the Pursuers Tutrix and Overseer, did agree to quite this Bond, in respect that her Father was acquitted of any share of the Bond, of 10000 pounds. The Pursuer answered: First, That the Defense ought to be Repelled; because, being but a Verbal Agreement, before Writ was subscribed, either Party might Resile. Secondly, The Transaction cannot be Instructed, there being no Write, and Witnesses are no competent; neither can the Tutrix Oath prove against the Pupil. The Defender answered, to the first, that the Transaction being pactum liberatorium, it required no Write, and so there was not locus penitentiae. And as to the Probation of the Transaction, though Tutor's Oath of Knowledge, of any Debt of the Pupils Predecessors, will not prove against the Pupil, because the Tutor is singularis testis, and not in officio: But a Tutor's Oath as to Deeds done by himself, in officio, would sufficiently prove the same. The Lords thought there was not locus penitentiae, from the Transaction, though but Verbal: but as to the manner of Probation, they ordained the ●utrix, and overseers Oaths to be taken, ex officio. Gordoun of Gight contra Abercrombie of Birkbog. Eodem die. SIR Alexander Aberc●omb●e of Birkbeg, having obtained Decreet of of Ejection, against Sir George Gordoun of Gight, for Repossessing him in certain Lands, and paying the double Rent for the violent Profits. Gight Pursues Reduction of the Decreet, on these Reasons● First, because there was no Law nor Practic, to make the violent Profits of Lands, without Burgh, to be the double of the Rent; which is only competent by Custom, in prediis urbanis. Secondly, The Ejection was prescribed, not being intented within three years, conform to the Act of Parliament. Thirdly, Gights Defense of Entering, in vacuum possessionem, was only found probable, scripto vel juramento, whereas being facti, it was probable by Witnesses. The Lords Repelled the First and Second Reasons, as Competent, and emitted in the Decreet, and as to the Third, The Decreet did bear the alleadgence in the Decreet, to be Gights entering into void possession, with consent of Party, which consent not being qualified by any palpable fact was not Probable by Witnesses. james Hamiltoun contra the Tenants of Overshe●ls. December 13. 1661. JAmes Hamiltoun Merchant in Glasgow, having right to two apprisings of the Lands of Oversheils, Pursues the Tenants for Mails and Duties, and after Litiscontestation, john Rollane Writer Compears for his interest, and produces an apprising, at his Instance; with a Charge against the Superiors. It was alleged he could not be admitted in this state of the Process. The Lords admitted him, in respect he craved no alteration to be in the Litiscontestation, but concurred therein, and craved Preference to what should be found due thereby: The said john being admitted, alleged, he ought to be Preferred, because he had charged the true immediate Superior, whereas the other two Apprysers had taken Infeftment, as if the Lands had holden immediately of the KING. It was answered for james Hamiltoun, that he ought to be preferred, because he was Infeft long before john Rollane, and supposing his Infefment were not of the immediate Superior, yet being in Possession, by virtue thereof, five or six Years, he hath the benefit of a Possessory Judgement, and his Infeftment cannot be taken away without Reduction. The Lords preferred john Rollane, and granted not the benefit of a Possessory judgement without seven years' Possession. john Boyd contra Laird of Niddrie and Edmonstoun. Eodem die. JOhn Boyd, as Assigny Constitute to a Bond of a thousand marks by Wolmet, charged Niddrie the Debtor, who Suspends on double poinding: In which Compearance was made for john Boyd, who having declared upon Oath, that the Assignation was to his behoof, for the satisfaction of the Sum of fourteen hundred pounds, and that the remainder was to Wolmets own behoof; according to which he had granted back bond to Wolmet, and thereafter granted a second back bond to Major Bigger; obliging him to make the Sum forthcoming to Biggar, which was done before any Arrestment; but depones, that he knows, at that time his first back bond was given, and that a Discharge of his first back bond produced, was by a mistake, keeped up by Major Biggar, and not delivered up to him till within this few days; upon this Oath, the Laird of Edmonstoun, who had arrested all Sums due to Wolmet in Niddries the Suspenders hand, in june 1658. alleged, That the aught to be preferred to Biggar, because it is clear, by the Oath, that the superplus of the Sum was to Wolmets behoove, and he having arrested it before the discharge of john Boyds first back bond was delivered to john Boyd, or expressly delivered, to john Boyd's behoof, or otherways, that the first back bond were re-delivered, no deed that john Boyd could do without Wolmets express consent, could prejudge Wolmets Creditors. It was alleged for Biggar, that albeit the first back bond was not delivered back to john Boyd before the Arrestment, nor the discharge delivered to him, yet Wolmet having subscribed the discharge, and delivered it, albeit it came not to john Boyds hands, it was sufficient to take away the first black bond. The Lords preferred the Arrester, and found the discharge could operat nothing, unless it were delivered to john Boyd, or some Person to his behoof, before the Arrestment, for they thought if discharges by Creditors put in a third Parties hands, not delivered to the Debtor, should be sufficient; it would e●ervart all Arrestments, unless the delivery were expressed to the Debtors behoove. Homes contra john Bonnar. December 14. 1661. Marry and Homes, as Donatar to the Escheat, and Liferent of Umquhile john Home, pursued john Bonnar, for Compt, Reckoning, and Payment of the Sum of 16000 marks due to the Rebel, for the price of a House. The Defender alleged absolvitor, because he had bona fide made Compt, Reckoning and Payment to Mr. Alexander Home, Assigny Constitute by the Rebel, before any Citation, or Diligence done against him, to put him in mala fide, so to do, and produced the Assignies discharge, bearing, that the Defender had made Compt with the Assigny● and that there remains only the Sum of 1100. marks, which he acknowledgeds to have received, and therefore discharged him of the whole. The Pursuers alleged the discharge, not bearing Payment of the whole Sum, but only of 1100. marks; nor yet bearing that the Instructions, were given up to the Assigny cannot exoner the Defender; but he must yet Re-produce the Account, and Instructions thereof, likeas he has produced a great part thereof in this Process, because no discharge could be relevant, to liberat this Defender, but only payment made bona fide. The Lords found the Discharge sufficient, to liberat the Defender; mainly, because, albeit the Discharge mentions not the Instructions to be given up, yet the Defenders was not obliged to preserve the same, or be at the hazard thereof. The Pursuer further offered them to prove, that the Defender had yet in his hand, the account and whole Instructions, and therefore aught to repreduce the same, that the Lords might consider, whether the Rebel's Assignyes had allowed any thing to him, which ought not to be allowed, and did belong to the Donatar, which the Lords sustained. james Dewar contra Countess of Murray. December 19 1661. JAmes Dewar, pursues the Countess of Murray, for Ejecting him out of certain Lands, whereof he had Tack, and Spuilzing from him certain Goods. The Defender alleged absolvitor: because there was a Clause in the Pursuers Tack● providing that if two Years Duty run together, the Tack should expire, and in that Case he Renunced the Tack, and thereafter the Pursuer having Counted with the Defenders Chamberlain, by Writ produced; he acknowledged himself Debtor, in such Sums, and such Duties for bygone Years, with this Provision, that if he Failzied in payment thereof, my Lady should, (at her own hand,) intromet with the Corns, and others libeled, which were disponed to her, for satisfaction of the Rent; and likewise, it should be leisum, to my Lady to set the Lands to any other Tenent thereafter, at the Term of Mertimess, and to Dispose thereof, at her pleasure. The Pursuer answered, non relevat, unless by Authority of a Judge, the Failzie had been Declared. The Defender answered, maxim relevat, because Declarators are only necessary, in Reversions, Back-tacks, or Infeftments, being of great Importance; but not in ordinar Tacks, betwixt Master and Tenent. The Lords found the Defense relevant, founded upon the Account, and Bond; in respect of the Tenor thereof as a foresaid; but would not have so done upon the Clause of the Tack, unless it had born expressly a power to enter to the Possession at any time brevi manu. The Pursuer further Replied, That the Defense ought to be repelled; because he offered to prove, before the Ejection, he had paid a great part, and offered the rest. The Lords having considered the Instructions of Offence produced, found, that it was not Special, bearing any Sum of money produced, or offered, and that there was no Consignation following thereupon; and therefore sustained the Defense, notwithstanding the Reply. Earl of Rothes contra Countess of Buck●leuch. December 20. 1661. THE Earl of Rothes; as Donatar to the Waird of the Countess of Buckcleugh, and the said Countess, for herself, pursued the Tutors of Buckcleugh, for Exhibition of the Charter Chest, and heal Evidences, and Writs therein, that the Donatar may have Inspection thereof, to the effect he may know● what Lands are Waird. The Tutors Compeared, and disclaimed the Pursuit, at the Pupils Instance, and alleged. First, No Process, till the Countess were called 2dly, The Lybel is not Relevant, to conclude Inspection of all Writs whereunto the Donator can pretend no interest 3dly. Non relevat for any Writs, because no body is obliged edere Instrumenta contra se. 4thly, If there were any ground for this Pursuit, the Lands holden in Waird, behoved to be particularly libeled. The Lords Repelled the first Defense, in respect the Countess was in processu, and found the second Defense to restrict the Inspection, only to the Countess and her Sister and Father, there Retours, and Warrants thereof, and no more, unless the Pursuer condescend particularly of other Waird Lands, and appointed one of their number to have Inspection of the Charter Chest, who should show the the Procutators of either Party such of the Writs as they found were Waird. Hew● Montgomerie contra Lord Kirkcudbright. Eodem die. Hue Montgomerie of Grainshaw, and Meclellane his Spouse, pursues the Lady Kirkcudbright, for Ejecting them out of the five pound Land of Overlaw, and craved Re-possession, and payment of the mails and Duties intrometted with. The Defender alleged no Process, because it is not alleged, that the Pursuers was in Natural Possession; for only the Natural Possessors can have Decreet of Ejection, because, if there be no deed of violence libeled, but only Intrometting with the mails and Duties, Ejection is not competent, nor any Violent Profits, but only Action for mails and Duties, against the Tenants, or Intrometters. The Pursuers answered, That Ejection may be Competent, though the Pursuer was not in Natural Possession, when a Tennent is Ejected, and a Stranger, without Interest, enters in the Natural Possession; albeit the Tenants should Collud, or neglect, the Heritor having but civil Possession, by uplifting of mails and Duties, needs not warn the Ejecter; but may crave to be Entered, to the Natural Possession, and the Violent Profits. The Defender alleged, the Case is not here so, unless it were alleged, the Tenants were cast out; but the Defender may Defend the Right, to the mails and Duties, upon a better Right than the Pursuer. The Pursuer answered, That he declared, he craved only Re-possession, to the ordinar Profits. The Lords Ordained the Parties to Dispute their Rights to the mails and Duties, and Possession, as in a Double poinding, and as if the Duties were yet in the Tenants hands. The Defender alleged further, that she hath right to the mails and Duties; because she offered her to prove, that the Pursuers Father in Law granted a Back-band, obliging himself, and his Heirs, to Re-dispone these Lands to Umquhile Robert Lord Kirkcud●right, from whom the said's Lands were apprised, to which apprising the Defender hath Right, and thereby has Right to the Back-bond, and that the Defenders Wife represents her Father as Heir, or at least as Lucrative Successor after the Back-bond; and so as he might thereupon have debarred the grant of the Back-bond, so might the Pursuer, as Representing him. The Pursuer alleged, 1. Non Relevat, because the said Back-bond is but a Personal Obligation, and the Defender had thereupon no Real Right, but only to the Superiority; because, by discharges of the Few-dutie produced, he acknowledged the Pursuer to be Proprietar. 2dly, If any such Back-bond was (no way granting the same,) he offered him to prove, that it was Conditional; so soon as the said Umquhile Robert Lord Kirkcudbright should require: Ita est, he has never required. The Defender alleged, he had done the equivalent, because in a Double poinding formerly pursued be the Tenants, he had craved Preference, and the Pursuer alleged, upon the Condition of Requisition in the Back-bond, and also that be the Back-bond, the granter, and his Wife's Liferent was preserved: whereupon the Defender was excluded. The Lords ●●und the Alleadgeance of the said Double poinding was not Equivalent to the Requisition; and therefore found the Replies Relevant, and Assigned a day, to the Defender, to produce the Back-bond, and to the Pursuer ●●●●prove the Qualitie● thereof, and so found the Reply not to acknowledge the Defense, but reserve it to either Party to allege contra ●oducenda, and found the Personal Obligdement sufficient to debar the Pur●●●● albeit the Defender had no other Real Right, seeing thereby she was obliged to grant a Real Right to the Defender. Alexander Barns contra Applegirth. january 1. 1662. ALexander Barns having (Conform to the Act made by the judges,) obtained Letters of Horning Summarily, at his Instance, as Heir to his Brother james B●rns, upon production of his Retour, and a Bond granted by johnstoun of Applegirth; and thereupon, having Denunced him, and Apprized his Lands; Applegirth Suspends, on this Reason, because the foresaid Act of the judges was now Void, and by the late Act of Parliament, confirming their Judicial Proceedings, liberty is granted to quarrel and reduce them upon Iniquity, and this was Iniquity to charge him Summarily, contrair to Law. The Charger answered non Relevat, because he followed the Order in use at that time; and the liberty of Quarrelling is, for Unjustice in the Matter, and not in the Order of Procedor; for then all their Debates would be null, because they proceeded not upon Continuation, and Letters. The Lords sustained the Charge, as a Libel, to the effect, the Suspender might have his Defences, (if he any had) to be proven not instantly, but upon Terms, but declared the apprising should stand valid, for whatsomever was found due, but prejudice to the Horning, as accords. Sir Alexander Hoom of St. Bathanes contra Orr and Pringle. january 3. 1662. SIr Alexander Hoom of Saint Bathanes, having pursued Improbation and Reduction, upon Inhibition against john Orr, and Wate● Pringle, and insisted for all Writs of the Lands in Question, made to the Defenders Predecessors, and Authors of the Lands in Question, and the Defender having alleged no Process, for Writs made to his Authors; unless they were called; and having condescended particularly on, the Authors to be called. The Pursuer offered him to prove, that these Authors were fully denuded, in favours of the Defender, and that the Writs were in the Defenders own hands. The Defender answered non Relevat, though they were in his hands; because his Authors being liable for warrandice, aught to be called, to defend there own Rights. The Pursuer answered, the Defender might intimate to them the Plea. The Defender answered, he was not obliged to Intimate the Plea; but the Pursuers to call the Authors, in this Case, the Summons was sustained, for his Author's Writs, in Anno one thousand six hundred fifty nine Years. And now the Pursuer insisting, for the Defender, taking a second time to produce. The Defender having a reviewe of the said Act, and Interlocutor. The Lords reponed the Defender, and would not sustain the Pursuit, or Act, as to the Author's Rights uncalled. Tippertie contra his Creditors. Eodem die. Inns of Tippertie, being charged by several of his Creditors; Suspends, and alleged payment made by the Suspenders Son to them. The Chargers answered, non Relevat; because they declare the Charge to be to that Sons behoove, who paid them, so that they must allege, it was paid by his means. The Suspender Replied, That seeing they declared it to be to his Sons behoove, the payment was sufficient, because he offered him to prove, by a Transaction, the Son was obliged to pay his Debts. The Charger answered (denying any Transaction,) if it were proven, the Suspender behoved to instruct his part of it performed. The Lords found the Reasons and Reply relevant, reserving the said alleadgance against the Transaction, when produced. James Seaton contra Anothonie Rosewall. Jannuary 4. 1662. JAmes Seaton and others, pursue Anthony Rosewall, to hear it found and declared, That two apprisings, to which he had right, were fully Satisfied, by his, and his Author's Intromission, within the Legalls respective, in the Compt. The Defender alleged, he was only comptable, according to his intromission, conform to the Act of Parliament one thousand six hundred twenty one, anent apprisings, and not according to a Rental of the Lands; as they paid, when he entered. The Pursuers answered that, that they could not charge him by his Yearly Intromissions, which they could not know, but he behoved to charge himself with the Rent of the Lands, as they paid at his entry thereto, and if any Deductions, or Defalcations were in subsequent Years; by necessary setting of the Lands, at a lower Rate, poverty of the Tenants, or waste, he behoved to condescend there upon, and their the Reasons, and Variety thereof, for in Law, an apprizing giving jus pignoris pratorij, the Appryser is comptable for his Diligence, having once entered in Possession, and thereby excluded the Debtor, and Con-creditors from the Possession. It were against Law and Conscience, to say, That if he should abstain, and suffer the Tenants to keep the Rent, or Depauperat, or the Lands to be waste, without any Diligence, that his Legal should thereby expire, and the Debtor and Creditor should be excluded; as was found in the Case of the Earl of Nithisdale, and Countess of Buckcleugh, and was several times so found, be the Lords before. The Lords found the Defender comptable by a Rental, as the Lands paid the time of his Entry, but Prejudice of his just Defalcations, he clearing a reasonable Cause thereof, and proving the truth of the same; for they thought, that albeit, Apprizers are only comptable for their Intromission, That is only for such parts of the Lands, as they intent only to possess, and not for these they never possessed; yet in so far as they once entered to possess, they must do Diligence. It was further alleged, that no allowance ought to be given to the Defender, of a Composition he had given to the Superior, in respect a prior Appryzer had given a Composition before, and so he was obliged for none. The Defender answered, that both the Prior and Posterior Composition was within a Years Rent, which was due to the Superior, which the Lords allowed, seeing it was not alleged that the Composition of a Years Rent was discharged by the Superior, but only according to the Custom of the Burgh, where the Lands lay, so much marked upon the Precept received in name of Composition. Earl of Lauderdail, contra Tenants of Swintoun. january 7. 1662. EArl of Lauderdail, as having Right to the Forefaulture of the Barony of Swintoun, pursues the Tenants for mails and Duties, George Livingstou, one of them alleadges, that he must be assoilzied from one Years Duty; because he offers him to prove, That it is the Custom of the Barony of Swintoun, at least of a distinct Quarter thereof, That the Tenants do always, at their entry, pay half a years Rent, and are free of Rent at the Term they remove; and so do all a long pay a Year, at the least half a Year before the hand, and subsumes, that he has paid accordingly to Swintoun himself, for a Terms Maill, due for the Crop which is after the pursuers Right. The Pursuer alleged non Rel●●at, against him a singular Successor, or against the KING his Author; because, that Party that hath Right to the Land, hath Right to the Fruits, and so to the Rents, which is payable for the fruits, which were extent upon the Land, or growand after that Parties Right● and no payment before the hand, can liberat the Possessor, from the Pursuit of a Singular Successor; Therefore it hath been frequently found, that payment before the hand is not Relevant against an Appryzer, yea even against an Arrester, so that the KING and his Donatar (since their Right was established and known) cannot be excluded, by payment before the hand, to a party who had no Right to the Land, or to the Fruits, that Year, otherways both the KING, and Creditors might be defrauded, by Fore-maills, or by Tacks appointing the Fore-mail to be paid, the first Term, (whatsoever length the Tack be,) Secondly, Any such alleadgances were only probable scripto vel juramenio. The Defender answered, that the Case here is not like the Fore-maills instanced, because every Year is paid within itself, and so the first Year, the half at the beginning thereof, and the half at the middle thereof, and subsequent Years conform, which must be sufficient to the Tennent otherways Tenants paying at Whitsonday and Martinmess, should not be liberat, because the whole Year is not run out, or a Tennent paying his Ferms at Candlesmass should not be secure, against Singular Possessors for the profit of Grass thereof, till Whitsonday. The Lords found the Defense Relevant, and the Custom of the Barony to be proven by Witnesses, and likewise the payment of the Duty in so far as in Victual; and also for the money not exceeding an hundred pounds Termlie. james Stewart, contra Fevars of Aberbadenoch. january 8. 1662. JAmes Stewart, as being Heritably infeft in the Milne of Aberbadenoch, pursues the Fevars of the Barony, for abstract Multures of their Corns, growing within the Barony; or which tholed Fire and Water within the same. The Defenders alleged absolvitor; because they are Infeft in their Lands, feu of the KING, long before the Pursuers Infeftment; which Infeftment bears, cum Molendivis & Multuris, in the tenendas. The Pursuer Replied, that albeit that Clause were sufficient Liberation amongst Subjects, yet this is a Milne of the KING'S Property, whereunto Thirlage is sufficently Constitute, by long Possession, of coming to the Milne, and paying in Towns Multures, and Services; (as is Craig's opinion,) and hath been so found by the Lords, February 5. one thousand six hundred thirty five, Dog contra Mushet. The Defender answered, That albeit Thirlage to the KING'S Milnes may be Constitute without Writ; yet cannot take away an express Exemption granted by the KING. The Lords Repelled the Defense, in respect of the Reply; because they thought that this Clause being but in the tenendas, passed of Course, and when Sig●a●●●● are past the KING'S hand, or Exchequar's, they bear only ten●ndas, etc. without expressing the Particular Clause, which is afterwards extended at the Seals. The Defenders alleged further absolvitor, from the Multure of the Teind, because that was not Thirled; nor had the KING any Right thereto, when he granted the Infeftment of the Milne. The Pursuer Replied, the Defense ought to be Repelled, in respect of the long Possession in Mol●ndo Regio, because the Defenders, and their Tenants past forty years, paid Multures of all their Corns, promiscuously, without exception of Teind; likeas there are several Decreets produced, for abstract Multures of all the Corns without exception. The Defender answered, That the Reply non Relevat; for albeit long Possession may make a Thirlage of the KINGS own Barony, yet that cannot be extended to other men's Rights, of their Lands and Teinds, which cannot be Thirled without their own Consent, or Decreets against themselves called, nor do the Decreets bear Teind per expressum. The Lords found the Defeuse Relevant, notwithstanding of the Reply, except such Teinds that those Fire and Water within the Barony; and likewise s●stai●●ed the Defense for the Corns, e●ten by the Defenders upon the Ground, in the Labouring, etc. Earl of Murray contra Laird of Grant. January 9 1662. THE Earl of Murray Pursues the Laird of Grant, to Re-dispone him certain Lands, which the Earls Father had Disponed to the Defender, and had taken his Back-bond, that if the Earls Friends should find it prejudicial to the Earl, then upon payment of 2800. marks, precisely at Whitsonday, he should Re-dispone, ita est: the Earls Friends by a Testificat produced, found the Bargain to his loss; therefore he offered the sum to the Defender, in his own House, which he refused; and now offers to Re-produce it, cum omni causa. The Defender alleged Absolvitor. First, Because the Back-bond is pactum de retro vendendo: And so a Reversion, which is strictissimi juris, and not to be extended beyond the express Terms thereof; which are, that if james Earl of Murray, should re-pay the Sum at Whitsonday, 1653. precisely, the Defender should Re-dispone: But there is no mention of the Earls● Heirs, and so cannot extend to this Earl, though he were Heir, as he was not served Heir the time of the offer. The Pursuer answered, that when Reversions are meaned to be Personal, and not to be extended to Heirs, they do bear, That if the Reverser in his own time, or at any time during his life, etc. or some such Expression; but there is nothing such here; and the Pursuer was Retoured Heir to his Father, who died shortly before the Term of Redemption; and having used all Diligence, he cannot be excluded, by such an accident, which he could not help. The Lords Repelled both the Defences, albeit there was only an offer, without Consignation, seeing the Back-bond did not bear, Premonition, or Consignation, but only payment, which the Pursuer now offered. Baird contra Baird. Eodem die. BAird in Saint Andrews, having taken the Gift of his Brother's Escheat, upon his Adultery, Pursues Declarator thereupon. The Defender alleged no Processes, till the Crime were Cognosced in the Criminal Court, or at least, he were declared Fugitive and Denunced, for then by the Horning, his Escheat would fall, but there is no Law, nor Statute, making the Penalty of Adultery, to be the Adulterers Escheat; for Queen Maries Statute, anent Adultery, is only making nottour Adultery Capital; but nothing as to other Adulteries. The Pursuer answered, that Custom had made the Penalty of Adultery, to be the single Escheat; and for Probation of the Adultery, in this case, the Defender had publicly confessed it, and had stood in Sackcloth for it a year, and had taken Remission from the King. The Defender answered, that Confession in the Kirk, was necessary to purge Scandel, when such Probation was Adduced, as Churchmen allowed to infer Confession, which is but extra judicialis confessio, and cannot prove, ad ●viles aut criminales effectus, neither can the taking of the King's Remission, instruct these Crimes; seeing Remissions are frequently taken to prevent accusations or trouble. The Lords found the Libel not Relevant, and that no Declarator could pass unless the Defender had compeared judicially in a Criminal Court, and there Confessed, or had been Condemned by Probation; but that the Confession in the Church, or taking Remission, was no sufficient Probation. Andrew Barclay contra Laird of Craigivar. january 10. 1662. ANdrew Barclay Pursues the Lairds of Craigivar, as representing his Father upon all the passive Titles, to pay a Bond due by his Father, and insists against him, as behaving himself as Heir, by intromission with the Mails and Duties of the Lands of Craigivar and F●ntrie. The Defender alleged Absolvitor, because if any Intromission he had (not granting the same) it was by virtue of a singular Title, viz. an apprizing led against himself, upon a Bond due by his Father. The Pursuer answered, non relevat, unless the legal had been expired; for if the appearand Heir In●romet within the Legal, during which, the right of Reversion is unextinct, immiscuit se haereditati: and it is gestio pro haerede. The Lords found the Defense Relevant, albeit the apprizing was not expired, unless the Pursuer allege, that the Defenders Intromission was more than satisfied the whole apprizing. Laird of Rentoun contra Mr. Mark Ker. Eodem die. THe Laird of Rentoun having obtained Decreet against Mr. Mark Ker, for the Teinds of Ferniside, he Suspends on this Reason, that he ought to have retention of the Annuity of the Teind, which he had paid, and whereto he had Right. The Charger answered, that there was no Annuity due out of their Teinds, because he was Infeft, cum decimis inclusis, which are not liable for Annuity. The Suspender Answered, that there was no exception in the Act of Parliament, 1623. of Teinds included. The Lords Recommended the matter to be settled, this being a leading Case, in relation to the Annuity of Teinds included; but they thought that Annuity was not due of Tei●ds included; because such Lands never having had the Teinds drawn, there is nothing to Constitute Teind due for them, either by Law, Paction, or Possession; and so where no Teind is, there can be no Annuity. And also, because the Ground granting Annuity to the King, was because the King having an Interest in the Teinds, after the Reformation and the Titulars pretending also Right, did surrender the same in the King's favours, and submitted to Him, who Confirmed the Titulars questionable Rights, and gave the Heretors the benefit of drawing their own Teinds, upon a Valuation: and therefore the Annuity was appointed to be paid out of the Teinds to the King, but the surrender did not bear, Teinds included. Lord Carnagie. contra january 11. 1662. LAdy Anna Hamiltoun, eldest Daughter to the Deceased William D●ke of Hamiltoun, having obtained Charter of the Lands of innerw ●ik from the King, as becoming in his hand by Recognition, in so far as the Lands being holden Ward; the late Earl of Dirletoun Disponed the same to james Sicily, second Son to his second Daughter, whereupon the said Lady Anna, and Lord Carnagie her Husband, for his Interest, Pursues Declarator of Recognition, against the said james Civil, and against james Maxwels Heirs of Line, and Heir-Male to hear and see them Secluded for ever, and that the Lands were fallen in to the King's hands, and belonged to the Pursuer, as his Donatar by Recognition, through the Ward-vassals alienation thereof, without the consent of the King as Superior. The Defender alleged no Processes; because all Parties having Interest, are not called, viz. Sir Robert Fle●cher, who stands publicly Infeft in the Lands Libelled. The Lords Repelled the Alleadgence, as super juretertii, in respect it was not proponed by Sir Robert, a●d that his Right could not be prejudged by any Sentence, whereto he was not called. Secondly, The Defenders alleged no Process, because the Heirs of Line are not lawfully Called, in so far as three of them are Resident in the Abbey, and are Minors, and their Tutors and Curators are only called at the Mercat Cross of Edinburgh; whereas they Reside within the Regality of Brughtoun, and their Curators should have been Cited at the Cross of the Canongate, as head Burgh of that Regality. The Pursuers answered, that the Defenders Reside in the King's Palace, which is exempt from all Regalities, and must be a part of the Royalty, being the Kings own House, by his Royal Regative. The Lords Repelled the Defense, in respect of the Reply, and found the King's House to be Royalty, and so in the Shire, and not in the Regality. john Nicolson contra Fevars of Tillicutry. january 14. 1662. JOhn Nicolson, as Baron of the Barony of Tillicutry, and Miln thereof, pursues the Fevars of Tillicutry, for a certain quantity of Sergeant Corns, and for their abstracted Multures, for which he had obtained Decreet in his Barony-court, which was Suspended. The Defenders alleged, that his Decreet is null, as being in vacant time. Secondly, As being by the Baron, who is not Competent to Decern in Multures, or Thirlage against his Vassals. Thirdly, The Decreet was without Probation: The Baron neither producing Title, nor proving long Possession: and as to the Sergeant Corn, nothing could Constitute that Servitude but Writ. The Charger answered, that Barons needs no Dispensation, in Vacance, and that Baron Courts use to sit in all times, even of Vacance, by their Constant Privilege: And that the Baron is Competent Judge to Multures, or any other Duty whereof he is in Possession. And as to the Sergeant Corn, in satisfaction of his Decreet, he hath produced his Infeftment, as Baron of the Barony; which gives him Right of Jurisdiction, and so to have Sergeants, whose Fees may be Constitute, and liquidat by long Possession. The Lords found the Reply Relevant, the Charger having 40. years' possession as to the Multures, and the Pursuer declared he insisted not for the King's Feu-duties in kind, but for the Teind, Seed, and Horse Corn. The Defenders alleged Absolvitor, for as much of the Corns as would pay the Feu-duties, Ministers Stipends, and all public Burdens, because they behoved to sell Corns for satisfying of these, and in so far the Corns were not their own, and so they could pay for no more Corns than their own, neither could they be liable for dry Multure, unless it were Constitute by Writ; especially seeing the Charger Libels not upon the Defenders Infeftment, or Bonds of Thirlage, but upon his own Infeftment, only generally, as Infeft in the Miln of the Barony. The Lords Repelled these Alleadgences, and Sustained the Decreet, for all the Corns except Seed, Horse-corn and Teind, which tholled not Fire and Water within the Thirl. Nicol Harper contra Hoom of Plandergaist. Eodem die. NIcol Harper pursues Colonel john Hoom of Plandergaist, for payment of a Debt of umquhil Hoom of Plandergaist his Brother, and condescends, that the Defender hath behaved himself as Heir, at least Successor Lucrative to his Brother, in so far as his Brother Disponed the Lands of Plandergaist to William Hoom of Linthil, to the behoof of the Defender, than his appearand Heir, whereupon the Defender is now in possession. The Defender alleged, non relevat, to infer this passive Title, unless the Disposition had been to the Defender himself, or that he had thereupon been Infeft, but a third Party being only in the real Right, and the Defunct denuded before his death, albeit there was a personal obliegment of Trust in Favours of the appearand Heir, if that cannot make him Lucrative Successor, but the Pursuer may reduce the same, if it was without Cause onerous. The Lords found the Defence relevant, to Liberat the Defender from this passive Title, but would not put the Pursuer to Reduction, but admitted it by Reply, ad hunc effectum, that the Defender should be countable according to his Intromission; and that the Pursuer as a lawful Creditor, should be preferred upon his legal Diligence, to the said Disposition. But the question arising, whether the Disposition, if in trust, was Lucrative or not? and what to be Lucrative imported, whether without any price, or within the half or third of the just price? The Lords before answer, ordained the Disposition to be produced, and such Admin●●les, for instructing of the onerous Cause, as the Defender would make use of, reserving to themselves, what the 'samine should work. Robert Dicky contra Theoder Montgomery. Eodem die. RObert Dicky, as assignee Constitute by Robert Montgomery, to a Contract betwixt Theoder Montgomerie and the said Robert, Charges Theoder to pay 700. marks: He Suspends on this Reason, that the Debt was Discharged before the Assignation, or Intimation, conform to the Discharge produced. The Charger answered, that the Discharge is null, as wanting Witnesses. The Suspender replied, he offered him to prove Holograph. The Charger answered, non relevat, against him, a singular Successor, especially the question being of the Date: For if Writs proven Holograph, could instruct their own Date, no assignee, or any other person using legal Diligence by Arrestment, apprizing, or otherwise could be secure: But that their Cedents, and Authors might evacuat the Right by Discharges, or Renunciation Holograph: And therefore seeing by express Act of Parliament, Writs wanting Witnesses are declared null: The Exception introduced by Custom of Holographon, ought not to be extended, especially in relation to the Debtor against singular Successors. The Suspender alleged, the inconvenience was al● great on the other hand, it being ordinar for Masters to give their Tenants' Holograph Discharges, and whatever favour necessary Assignations by legal Diligence might have, yet this is a voluntar Assignation● The Lords repelled the Reason of Suspension and Reply, in respect of the answer and dupl●, and found the Holograph Discharge not to prove its own date, against the assignee unless the Suspender could instruct it by other Adminicles. George Grant contra Grant of Kirdels. january 15. 1662. GEorge Grant pursues Reduction of a Renunciation of a Wodset, made by Grant of Morinsh to Grant of Kirdels, ex capite inhibitionis, because he had Inhibit Morinsh the Wodsetter, before he granted the Renunciation. The Defender alleged, that he had a Reduction of the Bond, whereupon the Pursuers Inhibition was raised, depending, and declared he held the production satisfied, and repeated his Reason by way of Defense: that the Bond was null, wanting a Date, either of Day, Month, or Year. The Pursuer answered, that the Bond bore, the Term of payment to be Whitsunday 1635. and so instructs that the Bond was betwixt Whitsonday 1634. and Whitsonday 1635. The Defender answered non relevat, unless the Month and Day were also expressed, because otherwise the means of Improbation cease by proving alibi. The Lords Repelled this Defense, seeing the Year was expressed in re antiqua, but if Improbation had been insisted on less Reasons in the indirect manner would be sustained. The Defender alleged further Absolvitor, because this Bond, albeit it be assigned to George Grant the Pursuer; yet it is offered to be proven, that the time of the Assignation, the said George was Pupil, within twelve years of age, in his Father's Family: And so in Law it is presumed, that it was acquired by his Father's Means, and is all one, as if his Father had taken Assignation in his own Name, and granted translation to his Son: And it is clear by the Testament produced, that grant of Ballandallochs Father was Tutor to the Wodsetter; and during his Tutory, any Right taken by him, of sums due by the Pupil, are presumed to be satisfied by the Pupils Means, and to accresce to the Pupil, against whom, he nor his assignee can have no Action, for any particular apart, but the whole must come in in the Tutor's accounts: and offers to prove if need beiss, that the Tutor, int●s hab●●t, being Debtor in greater sums to the Pupil than this. The Pursuer answered; First, the Alleadgence is no way relevant, upon such presumptions, to take away the Right standing in the Defenders Person. Secondly, The Defense is not liquid, and so can make no compensation, albeit his Son were expressly assignee, as he is not. The Lords found the Defense Relevant, unless the Pursuer would condescend and instruct that the Assignation was granted to him otherwise then by his Father's Means. Thomas Fairholme contra Margaret Bisset. january 18. 1662. THomas Fairholm as Executor Creditor, Confirmed to Andrew Reid, pursues Margaret Bisset his Relict, to deliver the Ware in his Chop, contained in the Pursuers Confirmation. The Defender alleged Absolvitor, because she has Confirmed the Ware in the Shop, specially and particularly for the use of the hail Creditors; and the Pursuers Confirmation is only general, not condescending upon the particular Ware: And though the Defenders Confirmation be posterior, yet it is special, and hath attained Possession before any Pursuit, at the Pursuers instance, upon his prior Confirmation; and Confirmations do not establish Property, until Possession or Execution; but is only as a legal Disposition incomplete, as Gifts of Escheat, where the first Sentence, or Possession, gives the first real Right of Property. The Pursuer answered, that his Confirmation is special enough, bearing the Ware of the Shop to be Silks, Stuffs, and others worth 4000 marks; and the Confirmation alone Constitutes the Property unto the Executor, because he is Haeres mobili●m; and the Property being before in hereditatae jacent●, ipso facto, by the Confirmation it is Established in the Executor. Secondly, by the constant practice of this Kingdom, there could no second principal Confirmation, but only ad o●issa, and she could never Confirm that which the first Executor had Confirmed. The Defender answered, that by Act of Sederunt, of the Judges in the Usurpers time, all Executors Confirming within six Months after the Defuncts Death, were ordained to come in together; and therefore it was then the Custom, that all Confirmed principally the same things, seeing they could get no more than what was in their Confirmation: And the Defenders Confirmation being at that time, must be sustained. The Pursuer answered, that the Defender cannot have the benefit of that Act of Sederunt, because she Confirmed not within six Months after the Defuncts Death. The Defender answered, she Confirmed within six Months, or six or seven Days more, which is an inconsiderable difference. The Lords preferred the first Executor to the Goods in the Shop. Mr. john Veach contra Byel of Bassinden. Eodem die. MR. john Veach, as assignee by john Edgar of Wedderlie, to a Reversion, pursues Declarator against Byel of Bassinden, the Wodsetter; who alleged Absolvitor, because the premonition is null, being by a Procurator, and not bearing, the Procuratory produced, neither the Pursuers Assignation to the Reversion. The Pursuer answered non relevat, unless it were alleged, that they had been demanded at that time, and had not been shown. Secondly, If need beiss he offers him to prove, by the Defenders oath, that the Procuratory was then shown. The Defender answered, the Procuratory is not yet produced, and the Pursuer was obliged to have shown it then, albeit not called for. The Lords sustained the Order, the Pursuer reproducing the Procuratory, and proving by the Defenders Oath that the Procuratory was then shown. Alexander Colquhoun contra his Creditors. Eodem die. ALexander Colquhoun in Glasgow, pursues Liberation, supercessione bonorum. The Defenders alleged Absolvitor, because they offer them to prove, that the Pursuer did wittingly deceive them, in borrowing sums, and taking of Ware from them, after he knew that he was insolvendo, and Bankrupt. The Pursuer answered, nonrelevat, against Liberty, which is a favourable Cause, and can be stopped by nothing, but fraudulent Deeds, since the Incarceration, or offering of Aliment. The Defenders craved, that if the Lords inclined to grant Liberty, that the Pursuer might be discerned to sit upon the Dyver-stone; and wear the habit. The Pursuer answered, that was long since out of Custom. The Lords before answer, ordained the Pursuers oath to be taken, upon the Defense, whether he did contract these Debts after he knew himself insolvent and bankrupt, and they resolved if it was so found, they would not grant him Liberty without sitting upon the Dyver-stone, and wearing the Habit. Laird of Polwart contra Hooms. january 21. 1662. THe Laird of Polwart pursues a Declarator of Redemption against Hooms, who allege Absolvitor, because the Reversion was not fulfilled, which bore the sum of a 1000 marks, and a Tack for 19 years after the Redemption. The Pursuer answered, the Alleadgence ought to be Repelled, because the Lands Wodset is worth 400. marks by year; and the Tack-duty is only four pounds, and so it is an Usurary Paction, whereby the Wodsetter will have much more than his principal sum, and his Annualrent, and so it is null, by the common Law, and by special Statute, Par. 1449. cap. 19 bearing, that when Wodsetters take Tacks for long time, after the Bond be out quite; such Tacks shall not be keeped after Redemption, unless they be for the very Mail, or near thereby. The Defender answered; First, That Statute is but an Exception from the Immediate preceding Act of parliament, in favours of Tenants, that their Tacks shall not be broken by singular Successors, buying the Land: and therefore is only understood in that case, when the Wodset Lands are bought from him that hath right to the Reversion, by a singular Successor: but this Pursuer is Heir to the granter of the Wodset. 2ly, That Act is long since in desuetude. 3ly. Whatever the Act might operate amongst strangers, yet it is clear by the Contract of Wodset produced, that the Wodset was granted by the Laird of Polwart to his own Brother; and so must be Repute to be his Portion Natural, and the eldest Brother might well grant a nineteen years Tack to his youngest Brother, albeit there had been no Wodset. Likeas, in the Wodset there is Reserved, the Liferent of a third Party; who lived thirty six Years thereafter, during which time the Wodset got no Rent. The Lords found the Defense and Reply relevant, and Ordained no Declarator to be extracted, till the Tack were Produced, and given up to the Wodsetter. Laird Balvaird, contra Creditors of Annandail. Eodem die. THE Laird Balvaird, As Heir of Tailzie to David Viscount of Stormont, in the Lands of Skun, Pursues the Heirs of Line, of the said David and Mungo Viscount of Stormont, and several their Creditors, Lybelling, That by an Infeftment of Tailzie of the said's Lands, made by the said David Viscount of Stormont. It is expressly Declared and Provided, That none of the Heirs of Tailzie, shall do any Deed prejudicial, to the Tailzie; or contract Debt, whereby the Tailzie may be altered, otherways the Debt so Contracted shall be null, and the Contracter shall ipso facto, lose his Right of Propertie, which shall belong to the nearest Person of the Tailzie, and subsumes that the late Earl of Annandail last Heir of Tailzie Contracted Debts; which might effect the said's Tailzed Lands, and concludes; that it ought to be Declared, that thereby he incurred the Clauses itritant in the Tailzie, and lost his Right of Propertie; and that all the Bonds Contracted by him, and apprised upon, are null, quoad these Lands, and that the Pursuer as nearest Heir of Tailzie, may enter Heir in these Lands, to David and Mungo Viscounts of Stormont, and enjoy the same free of any Debt Contracted since the Tailzie. The Creditors alleged no Process to Annul their Bonds, and apprising, hoc ordine; by way of Declarator, but the Pursuer must via ordinaria Reduce; in which Case, the Creditors will have Terms granted them to produce, the Writs called for to be reduced: which Privilege, being in their favour ought not to be taken from them in this extraordinar unformal way. The Lords repelled the Defense, and sustained the Summons; in respect there was no Bond craved to be produced, or simply reduced; but only that any Bonds granted to the Defenders since the Tailzie are null, and all following thereupon, as to the Lands in Tailzie, which is no more than that they affect not the Lands in the Tailzie, and there is no necessity of Reduction, but where the Writs must be Produced, before they can be Reduced; and even in that case; if the Pursuer satisfy the Production himself, the Defender hath no delay, and here the Pursuer produces all that is necessary, and craves the rest to be Declared null in consequence. The Lords sustained the Summons. Glendinning, contra Earl of Nithisdale, january 22. 1662. GEorge Glendinning of Partoun, pursues the Earl of Nithisdale, for fulfilling of a Contract of Excambion betwixt the Earls Father, and the Pursuers Grandfather; and insist against the Earl, as lawfully charged to enter Heir to his Father. The Earl alleged absolvitor, because he offers him to Renunce to be Heir: The Pursuer replied, the Defense ought to be repelled, quia res non est intigra; because the Earl has done a Deed prejudicial to his Renunciation, viz. he granted a Bond for two thousand pounds sterling to the Earl of Dirltoun, only simulatlie to his own behoof, whereupon his Father's whole Estate was adjudged, and that Adjudication assigned to the Earl himself, and so he having intrometted be that Simulat Title, with the mails and Duties of his Father's Lands, he hath behaved himself as Heir, and cannot Renunce: The Defender duplyed that the Reply aught to be repelled; because he offered not only to Renunce, but also to Purge that Deed of his, and the Adjudication of two thousand pounds sterling, and to declare that it should not prejudge the Pursuer, nor his Father's lawful Creditors, and that he should be comptable for the Price of any Lands he had sold, or any Rents he had uplifted. The Pursuer triplyed, that the duply aught to be repelled; because medio tempore, the Earl had bought in expired Apprisings, with the Profits of the Lands, The Defender quadruplyed, that he was content to restrict any such Rights, to the Sums he truly paid for them, and not to exclude the Pursuer by them. The Pursuer Answered, That he having once behaved himself as Heir, no Offer, nor Renunciation could be received. The Defender Answered, that his Intromission could not be gestio pro herede, because it was singulari titulo, and not as Heir, and in gestione there must appear animus adeundi aut immiscendi. The contrair whereof is here, for the granting of the Bond, and the taking right to the Adjudication thereupon, was of purpose, that his Intromission might not be as Heir, or as immixtion, which can never be without an illegal, and unwarrantable Deed; but all that was here done was Legal, there being no Law, nor Custom to hinder the Earl, to grant a Bond, albeit gratis, and after Dirltoun had Adjudged the Lands, there was no Law to hinder the appearand Heir to take Assignation thereto, and bruik thereby, more than a Stranger; and albeit there were Simulation, or Fraud, that might be a ground to Reduce upon, but not to infer a general passive Title, to make the Defender liable to all his Father's Debts, from which Passive Title, qui res colleratus titulus excus●●, and albeit this Passive Title be not any where else in the World, but in Scotland, yet it was never applied to this Case now in question, but by the contrare, since the Act of Parliament one thousand six hundred twenty one, by which Heirs may be charged to enter Heirs to their Predecessors, not only for the Defuncts Debts, but their own; any Bond granted by the Appearand Heir although gratis, would be valid, to Apprise, or Adjudge the Defuncts Estate, and therefore, there being many Cases, in which the Appearand Heir could not probably know whether the heritage would be Hurtful, or Profitable. This hath been ofttimes advised, as the remeid, be Sir Thomas Hope, and many since; That the Heir Appearand might grant a Bond, and thereupon the Lands being Adjudged, might take Right thereto. The Pursuer answered, the Defender had intrometted with the Rents of his Predecessors Land, which albeit not animo adeundi, yet animo Immiscendi & Lucrandi, which cannot be maintained by a simulat null Bond, by himself to his own behoof, and Adjudication thereupon; and if this were sustained, no Person would ever after enter Heir to his Predecessor, but take this indirect way, to the Defraud, and Vexation of Creditors; and entering so to possess, would buy in other Rights, and maintain his Possession; as this Defender hath done, and would not be obliged, or willing to restrict these Rights, as he doth. The Lords, after long Consideration and debate in the matter, found the Earls offers relevant, but resolved to make and publish an Act of Sederunt, against any such courses in time coming, and declared, that it should be gestio pro haerede, to intromet upon such simulat Titles. Adam Hepburn contra Helen Hepburn. Eodem die. ADam Hepburn, Brother to the Deceased Thomas Hepburn of Humbie Pursues Reduction, and Improbation against Helen Hepburn his Brother Daughter, of a Disposition made by him to his Daughter on Death Bed. The Lords granted a third Term for Production, in respect of the Improbation, albeit there was but a Writ or two called for Nominatim. Laird of Rentoun. contra Mr. Mark Ker. january 24. 1662. THE Laird of Rentoun having obtained Decreet before the Commissaries of Berwick, against Mr. Mark Ker, compearing for three Chalders of Victual of Teind, Mr. Mark Suspends, upon iniquity; because he having proponed a Relevant Defense, that he ought to have allowance of the Annuity which he had paid, which affected the Teinds. It was repelled. The Charger Answered, non relevat, by way of Suspension, without there were a Reduction. The Suspender Answered, the Reason was instantly verified, by inspection of the Decreet. The Lords found the Reason not competent by Suspension without Reduction. Mr. james Ramsay contra Earl of Wintoun. Eodem die. Mr. james Ramsay, as having Right by translation from George Seaton, Assigny constitute by my Lady Semple, to a Bond due by the umquhile Earl of Wintoum, pursues this Earl for payment, who alleged no Process, because the time of the Assignation taken by Sir George Seatoun, he was one of the Defenders Tutors, and so it is presumed, that the Assignation was purchased by the Pupils Means, and as the Tutor could have no Process thereupon against the Pupil, till he had made his Tutor accounts, so neither can his assignee; seeing in Person alibus, all exceptions competent against the Cedent are competent against the assignee. The Lords found the Defense relevant, unless the Pursuer would find Caution to pay what should be found due by Sir George, by the Tutor's Accounts, as they had done before, betwixt Grant and Grant, January 15. 1662. Laird of Lamingtoun contra Sir john chiefly. january 29. 1662. THE Laird of Lamingtoun pursues Sir john chiefly, upon the late Act of Parliament 1661. betwixt Debtor and Creditor, to restrict a proper Wodset, granted by Lamingtoun to him, of the Lands of Symontoun, to his Annualrent. The Defender excepted upon a Back-bond granted by Lamingtoun, whereby he expressly renunced the benefit of the Usurpers Act, betwixt Debtor and Creditor, and all such Acts, made or to be made; and obliged himself, upon Honour and Conscience, not to prejudge Sir John of his bargain, to which no subsequent Law could deerogate, unless it had been specially, notwithstanding any such Paction. Secondly, The foresaid Act has an express exception: That where such Acts, made and to be made are Renounced; the benefit of that Act shall not be competent to such. The Pursuer Answered to the first, That Pactions, or Renunciation of Parties cannot operat, against a posterior Law. Secondly. The persu●t here, is, for restricting of a Wodset to the true Annualrent; for all that was done in the Usurpers Act, was to take Land in satisfaction, and to delay payment, but this Clause of the Act is nothing such, and so is Casus Incogitatus, which could not be held to be Renunced, unless it had been expressed, as to the exception in the Act it is not an Exception general to the whole Act, but to the Antecedent part of the Act; and this Clause, anent Restricting of Wodsets, is posterior to the Exception, and not deerogate thereby. The Lords Repelled the Defense, in respect of the Reply, and found the Exception not to deerogate to the Posterior Clause concerning Wodsets. Lord Burly contra Iohn Sime. january 30. 1662. THE Lord Burly pursues john Sime, for intruding himself in a Coal-heugh, wherein the Pursuers Author was infeft severally, and not in the Land, but only in the Coal, with power to set down Pits through all the bounds of the Land. The Defender alleged absolvitor, because he stood Infeft in the Lands libeled, with Parts and Pertinents, and be virtue thereof, was seven Years in Possession, which must Defend him in Possession, until his Right be reduced. The Pursuer answered, that the Defender could have no benefit of a possessory Judgement, not being expressly Infeft with the benefit of the Coal, in prejudice of the Pursuer, who was expressly Infeft, and Seized in the Coal, and in possession of the Coals past memory. The Defender answered, there was no necessity of an express Infeftment of the Coal, which is carried as part and pertinent, as Craig observes in dieg. de investituturis impropriis,, to have been decided betwixt the Sheriff of Air and Chalmers of Garthgirth, and so being Infeft, and in possession seven years, he has the benefit of a possessory Judgement. The Lords found the Defense Relevant, but Repelled the same, in respect of Interruption within seven years, which was proponed. Halberd Irwing contra Mckartney. Eodem die. HAlbert Irwing pursues Mckartney for Spuilzie of ten Oxen. The Defender alleged Absolvitor, because he Intrometted with the Oxen by Warrant from Mr. Robert Ferguson, to whom the Pursuer had given a Disposition of all his movable Goods, for relief of a Cautionry, for which Mr. Robert first, and now this Defender is Distressed. Secondly, He offers him to prove voluntar Delivery of the Oxen, by the Pursuer to him for the cause foresaid. But because the Pursuer hath summoned several other persons as Complices, which are necessary Witnesses, of purpose, that he might exclude them from being Witnesses, he desires they may be admitted Witnesses, or otherwise Discussed. First, that if they be Assoilzied, they may be Witnesses. The Pursuer answered to the first, non relevat, a Disposition unless there had been Delivery; and albeit there had been an Instrument of Delivery, yet it being dispositio omnium bonorum, two years before the meddling, could be no Warrant for summar meddling, without Sentence of a Judge, and gave only jus ad rem. But specially the meddling with the Plough Goods in time of Labourage, when the Pursuer put other Goods before the Defender. The Lords found the first Defense Relevant, founded upon the general Disposition and Instrument of Possession; and that the Disposition alone, though without any possession, had been sufficient against the Disponer ad vitandum spolium, unless the Defender had Intrometted by violence, being resisted by force. But they proceeded not to the second Defense, which doubtless was Relevant, and the desire reasonable of Discussing the remnant Defenders; First, that they might be Witnesses if Assoilzied: Yea, it seems they could not be hindered to be Witnesses, used for the Defender, though they might be suspect Witnesses against him, as being Interest, to put the Spuilzie upon him for their own relief. Sir james Cunninghame contra Thomas Dalmahoy. February 1. 1662. SIr james Cunninghame pursues Thomas Dalmahoy, and the Tenants of Pollomount, to make payment to him of the Mails and Duties of the Lands of Pollomount, resting at the Death of the late Duchess of Hamiltoun, because she had granted Bond of 500 pound Sterling to the Pursuer, to be paid after her Death; and for security thereof, had assigned the Mails and Duties of her Liferent Lands of Pollomount, which should happen to be due at the time of her Death. It was alleged for Thomas Dalmahoy her second Husband, Absolvitor, because these Mails and Duties belonged to him jure mariti, neither can he be liable for this Debt jure mariti, because it was not Established against him during the Lady's Life; neither could be, because the term of payment was after her Death. The Pursuer answered, that he did not insist against Thomas Dalmahoy as Husband, but as Intrometter with the Rents of Pollomount, due at the Duchess Death, wherewith he hath meddled since: which could not belong to him, jure mariti, being assigned before the Marriage; and if they could belong to him jure mariti, yet it must be with the birding of this Debt. The Lords Repelled the Defense, in respect of the Reply, for they thought a Husband, albeit he was not liable simply for his Wife's Debt, post solutum matrimonij; yet that he should have no more of the Wife's Means, jure mariti, but what was free of Debt, and so behoved to pay her Debt, so far as he enjoyed of her Means, Belshes contra Belshes. Eodem die. IN an Account and Reckoning betwixt Belshes and Belshes, concerning Executry; The Lords found that the prices, given up by the Defunct in his Testament, of his own Goods, should stand, and the Executor be accountable accordingly● seeing there was no enorm prejudice alleged, as if the Defunct had prized the Goods, within a half or third of the true avail, to the advantage of the Executor, and prejudice of the Wife, Bairns, or Creditors. The Lords did also allow Aliment to the Wife, out of her Husband's Movables to the next Term, albeit she Liferented an Annualrent, payable at the next Term. Lord Melvil contra Laird of Fairin. February 4. 1662. THe Lord Melvil pursues the Laird of Fairin, for Warrandice of a Disposition of certain Lands and Teinds, sold to my Lord by him, with absolute Warrandice, and condescends that the Teinds were affected with 13. Bolls by a Locality to the Minister in Anno 1641. The Defender alleged Absolvitor, because this Distress was known, or might have been known to the Pursuer the time of the Bargain, at least to his Tutors who made the Bargain. Secondly, there is no legal Distress but voluntar payment made all the years bygone. The Lords Repelled the Defense, and found, that seeing the Distress by the Stipend was unquestionable; payment made thereof without Processes, prejudged not, and that the Pursuers knowledge could work nothing, being then a Pupil. Laird of Elphingstoun contra Sir Mungo Murray. Eodem die. THe Laird of Elphingstoun having Charged Sir Mungo Murray, for the price of some Lands, bought from him, he Suspends, and alleadges, that by the Disposition the Charger is obliged to relieve him, of all Inhibitions; and now produces several Inhibitions. The Charger answered non relevat, unless there were a Distress, seeing the Disposition bears not to purge but only to relieve, or to warrant against Inhibitions. The Lords considering that the Chaeger vergebat ad inopiam, found the Reasons Relevoan, till Cauton were found to warrant the Suspender from these Inhibitions. They found also, that where the Charger was obliged to pay to the Suspender, the Composition for his Entry to the Lands. That the Suspender should have no Composition if he got it Gratis; albeit he alleged he got it for other good Services. Skeen contra Lumsdean. Eodem die. ANdrew Skeen having Charged Alexander Lumsdean for payment of a sum, for which he was Cautioner for his Brother Mr. Thomas Lumsdean; he Suspends upon this Reason, that the cause of the Bond was two Bills of Exchange● which was Protested. The Suspender answered, he offered him to prove they were paid, after the Protest, by him who drew the Bills, or by Mr. Thomas Lumsdean, in whose Favour the Bills were drawn. The Suspender replied, that the Alleadgence ought to be Repelled, because he was assigned to the protested Bills, for relief of this Cautionry, and intimat his Assignation to Skeen, who delivered the Bills, and got the Bond Charged on. The Charger offered him to prove payments before that Assignation, or Intimation, and ad modum probationis, produced an Instrument under the Seal of Camphire, and a Declaration of the Conservator there, bearing, that upon inspection of Mr. Thomas Lumsdeans Compt Books; they found that he had acknowledged two or three sums paid, in part of these Bills, and expressed the Dates thereof, prior to the Assignation. The Suspender alleged the Compt Books could not prove, unless they were produced, Cognosced and Proven to be Lumsdeans Compt Books. Secondly, they could not prove contra tertium, Thirdly, the Question being de data, and they holograph, they could not prove their Date. Fourthly, these Testificats can prove nothing, unless they had been taken upon Processes, or by Commission. The Lords found the Testificats could not prove, but that the Compt Book being Cognosced, might prove against the assignee, being Brother to Lumsdean, and the Books out of his hand, since he was broken, for amongst Merchants Compt Books or Writs without Witnesses, by their Custom, are sufficient, and ordained Lumsdean and his Brother to Depone, upon the having of the Books, to produce them if they had them, and if not, granted Commission to the Magistrates of Camphire, and Conservator, to Cognosce the Books, and to report what they find of this matter in them. Marjory Grace contra Dalgardno. February 7. 1662. MAjory Grace pursues Dalgardno, as vicious Intromettor with the Goods of a Defunct, to pay his Debt, who alleged Absolvitor, because the Defunct Died Rebel, and at the Horn, and so nihil fuit in bonis defuncti, seeing by the Rebellion, all his Movables belonged to the Fisk, ipso jure, without necessity of tradition, for the King jure coronae, hath the right of Lands without Infeftment, and the right of Movables forefaulted, or fallen in Escheat, without Tradition or Possession. The Pursuer answered, non relevat, because the Defender Intrometting without any warrant from the Fisk, is quassi prodo, and Movables are not ipso facto, in the Property of the Fisk, by the Rebellion: But if they be Disponed by the Rebel for an onerous Cause; the Disposition before Rebellion will be valid, or if they be arrested for the Defuncts Debts, and recovered by Sentence, making forthcoming; or if a Creditor Confirm himself Executor Creditor to the Defunct Rebel, he will be preferred to the Fisk; by all which it appears, that the Rebellion transmits' not the Property. The Defender answered, that these Instances do only show that the King prefereth Creditors, and takes but the benefit of what the Rebel had deductis debitis, or what was Contracted with him bona fide, but doth not say, that the Property of the Goods were not in the Fisk, but in the Rebel. The Lords repelled the Defense. The Defender further alleged, that not only was the Defunct Rebel, but that he had a Gift of his Escheat. The Pursuer answered non relevat, unless it had been before the vicious intromission, or at lest ante motam litem. The Lords Repelled the Defense, unless the Defender would allege that the Gift was ante motam litem; for they thought that the Taking of the Gift was like the Confirmation of an Executor, which purged vicious Intromission, being ante motam litem. john Bonnar contra Robert Foulis. Eodem die. JOhn Bonnar pursues Robert Foulis, to pay the Debt of a Person Incarcerat by Act of Warding, whom the Bailzie set at Liberty without Warrant. The Defender alleged no Processes, because the Person Incarcerat was not Called, who might have proponed Exceptions against the Debt, that it was paid, etc. Secondly, that thereafter the Pursuer had taken himself to the Incarcerat Person, and gotten part of payment from him. The Lords Repelled the Defences and discerned: but because there was a Reduction depending of the Decreet, whereupon the Person was Incarcerat, and that he was set at Liberty in Anno 1659. when there was no judicatory sitting, they superseded Extracting for the time, till the Reduction was Discussed. Countess of Buckcleugh. contra Earl of Terrace. Eodem die. THe Countess of Buckcleugh pursuing Reduction of a Contract of Marriage's betwixt her Sister and the Earl of Terrace. The Lords would not Sustain incident for the Earl of Terrace, albeit he was minor, that Contract being his own Writ, and not his Predecessors. Lockerbie contra Applegirth. Eodem die. JOhnstoun of Lockerbie, having obtained Decreet against jerdine of Applegirth, for a Sum paid by the Pursuers author, as Cautioner for the Defenders Father. The Lords found Annualrent due by the Principal to the Cautioner, by an Act of Sederunt 1613. and that from the year 1619. until now in respect the Cautioner had paid upon distress, by Decreet of Transference, and a Charge of Horning thereon. Acheson contra Mcclean. Eodem die. Damn jean Acheson pursues the Laird of Mcclean, as representing their Predecessors, who was Cautioner in a Suspension. The Defender alleged nothing produced to prove the Suspension Discussed, but Letters of Horning upon a Protestation, which cannot instruct the Protestation. The Lords Repelled the Defense, in respect of the absence of the Register, and the oldness of the Horning. Achinbeck contra Mccleud. Eodem die. IN an Improbation at the Instance of the Laird of Achinbeck, against Mccleud. The Lords found that the Improbation behoved to be continued, albeit the 'samine had an ordinar privilege to pass upon six days, for the first Summons, passed of course periculo penitentis. Acheson contra Earl of Errol. Eodem die. ACheson pursues the Earl of Errol, as presenting his Father, to pay a Debt wherein his Father was Cautioner for the Earl of Mar; and for instructing thereof, produced the Extract of a Bond, Registrate by consent in the Books of Session. The Defender alleged no Process against him; because the Bond was not Registrat by any Procurator for his Father, because he was Dead before the Registration, and so cannot prove against him, neither being a principal Writ Subscribed by his hand, nor being a Decreet of Registration, by consent of his Procurator, nor upon Citation. The Pursuer alleged that it was an authentic Evident, and bore expressly Sic subscribitur Errol: and seeing by Law and Custom, the Pursuer was necessitat to leave the Principal at the Register, when the Registrat the same, and that the Registers are now lost without his fault. The Lords refused to sustain the Extract against the Earl of Errol, but yet would not put the Party to an Action of proving the Tenor, but would receive Admini●les to instruct that Earl was Cautioner; and therefore ex officio, ordained the other Subscribers of the Bond, or any other person that could be adduced, for instructing the Truth to be required ex officio. Thomas Crawford contra Earl of Murray. February 8. 1662. THomas Crawford as Executor Creditor, Confirmed to Umquhil Robert Ing●is; as assignee by his Relict, for satisfaction of her Contract of Marriage, pursues the Earl of Murray for payment of the Sums Confirmed, addebted by him to the said umquhil Robert. The Defender alleged compensation; because he had Assignation to a Debt due by the said umquhil Robert, which as it would have been relevant against Robert himself; so must it be against his Executor. The Pursuer replied: First, non relevat, unless the Assignation had been Intimat before the Confirmation: but an Executor Creditor having done Diligence by Confirmation; it is not in the power of any of the Defuncts Debtors, by taking Assignation from any of his Creditors, to prefer that Creditor to any other Creditor, which is no ways legittimus modus preferendi: But the Creditors must be preferred, only according to their Diligence. Secondly, This Pursuit being for Implement of the Relics Contract of Marriage, and pursued to their behoof, hath by our Law and Custom preference to all other personal Creditors, though having done more Diligence. The Lords found either of these two Replies Relevant to elide the Defense, albeit the Assignation was before any Pursuit, moved upon the Pursuers Confirmation. Lord Torphichan contra Eodem die. THe Lord Torphichan and certain of his Fevars, pursue a Reduction of a Decreet of the Sheriff, whereby he set down Marches betwixt their Lands and others, upon this Ground, that he did not proceed by an Inquest conform to the Act of Parliament, but by Witnesses. Secondly, That he as Superior was not Called. Thirdly, That the Sheriff had unwarrantably Sustained the setting down of Marches foamerly by Arbiters, to be proven by Witnesses. The Defenders answered, the first Reason was not objected, and the Defenders Compearance it was competent and omitted: To the second, the Superour could have no Detriment. To the third, that the setting down of March-stones, being a palpable Fact, might be proven by Witnesses, whether done by the Parties themselves, or by Friends chosen in their presence, their being neither Decreet-arbitral, nor Submission in Writ. The Lords Repelled the Reasons in respect of the Answer, and declared, that if the Land fell in the Superiors hands, by Recognition, Nonentry, or otherwise, The Decreet should not prejudge him if he were not Called. Ramsay of Torbanie contra Mcclellane. February 11. 1662. DAvid Ramsay of Torbanie having raised Suspension, and Reduction of a Decreet against him, at the Instance of Thomas Mcclellane, in Anno 1658. Insists upon this Reason, that he being pursued as Heir to his Father, at the Instance of Thomas Mcclellane, he proponed this Relevant Defense, absolvitor, because the Bond pursued upon, was granted by his Father after he was Interdicted, without consent of the Interdictors, and so could not affect the Person Interdicted Heir, albeit he had succeeded in his Estate. The Defender answered, that the said alleadgence was justly Repelled, in respect of this relevant Reply, that the Interdiction hath no effect as to Movables, and Personal Execution; neither as to any other Lands, than such as lay in the Shires or Jurisdictions where the Interdiction was published and Registrat, conform to the Act of Parliament, ita est: this Interdiction was published and Registrate only at Linlithgow; and therefore if the Defender hath succeeded to any Lands, not lying in Linlithgow Shire, or if he hath meddled with Heirship, Movable, or be vicious Intromettor with his Father's Movables; he is liable for this Sum, albeit after the Interdiction, ita est, he succeeded to Lands in the Stewartry of Kirkcudburgh, and Movables, etc. and therefore the Defense was justly Repelled. The Lords found the Decreet just, and therefore Repelled the Reasons of Suspension and Reduction. Bells contra Wilkie. February 12. 1662. GRissel and Bells raise a Reduction against james Wilkie, of a Decreet obtained at his Instance against them, in Anno 1659. whereby the said james Wilkie being Executor, Confirmed to his Mother, who was one of the Sisters, and Executors of umquhil Patrick Bell their Brother, in which Confirmation the said james gave up the third of the said Patrick's Goods, and thereupon obtained Decreet against these Pursuers, as the two surviving Executors, to pay to the said james, his Mother's third Part of her Brother's Means. The Reason of Reduction was, that the Decreet was unjust, and contrair to the Law and Custom of this Kingdom, whereby there is no right of Representation in Movables, as in heritage, neither doth the Confirmation of the Executors, establish in the Executors, a complete Right, until the Testament be execute, either by obtaining payment, or Decreet; and if the Executor die before Execution, the Right ceases, and is not Transmitted to the Executors Executor, but remains in bonis defuncti of the first Defunct, and therefore Executors ad non Executa must be confirmed, to the first Defunct, which being a constant and unquestionable custom, one of the three Executors deceasing before Executing the Testament, her Right fully ceases; and both the Office of executry, and Benefit, accres●es to the surviving Sisters; as if the deceased Sister had never been Confirmed Executrix. The Defender in the Reduction, Answered, That this Reason was most justly Repelled, because, albeit it be true, that the naked Office of Executry, doth not complete the Right in the Executors Person, and doth not transmit, yet it is as true, that by the Law of God, and of this Land (which is cleared by the express Statute, Parliament 1617. anent Executors) Children surviving their Parents, had always a distinct Right, from the Office of Executry, of their bairns part of gear, which belonged to them, without any Confirmation, and could not be prejudged by the Defunct, and was sufficiently established in their Person jure legittime, if they survive their Defunct Parent, especially if they owned the same by any Legal Diligence; Therefore, after which, if a Child die, the Child of that Bairn will come in with the Survivers; and yet there is no Right of Representation, because jure legittime; it was established in the Bairns Person, by surviving, and owning the same; as well as the Goods, are established in the Person of a Stranger Executor, by executing the Testament: and by the said Act of Parliament, that benefit is extended, not only as to the Bairns Part, but to the Bairns; in relation to Deads' Part, whereinto they succeed, as nearest of Kine, and therefore they have right to the Movables, not by virtue of the Conformation, or Office of Executry, which before that Act carried the whole benefit; as is clear, by the Act, but by a several Right, jure agnationis, as nearest of Kine; and therefore, though the nearest of Kine be not Confirmed Executor, but others be Nominat, or Datives Confirmed, the Executors are comptable to the nearest of Kine, who may pursue them therefore, and therefore, if the nearest of Kine do any Legal Diligence, either by Confirmation, or Process, yea, though they did none, but only survive, the Right of nearest of Kine ipso facto, establishes the Goods in their Person, and so transmits'; and whereas it was alleged, that the contrare was found by the Lords, in Anno one thousand six hundred thirty six, observed by Durie: it is also marked by him, that it being so found by Interlocutor, it was stopped to be heard again, and never discused; neither can it be shown by Custom, or Decision, that the Executors of Children, or nearest of Kine were excluded, from recovering the part of their Parent, which survived, and owned the benefit of the Succession. The Lords assoilzie from the Reduction, and adhered to the former Decreet. Kirktouns contra Laird of Hunthil. Eodem die: ISobel and Kirktouns pursues the Laird of Hunthill, their Tutor, for a Tutor Compt, and payment of all that belonged to their Father, who alleged absolvitor; because nothing alleged, nor produced, to instruct his acceptance of the Office of Tutory. The Pursuers opponned their Father's Testament Confirmed, bearing the same to have been Confirmed by the Defender, and other three Tutors, and that the Tutors gave their Oaths de fideli administratione, in the Office of Tutrie. The Defender answered, non relevat, to instruct, that the Tutors made faith, because this Confirmation is but the Assertion of a Nottour, the Commissary Clerk, without a warrant in writ, subscribed by the Tutors, and can prove in nothing, but what is ordinary the Style of the Court, in Judicial Process, but the Acceptance, and making Faith of Tutors, is altogether Extranious, and is neither necessary, nor ordinar to be done by the Commissars. The Lords sustained the Reply, especially, in respect, that the Commissary Clerk, was this Defenders Uncle, and there was no ground of Suspicion, that he would adject that point without warrant, otherways this were a dangerous preparative. Secondly, The Defender further alleged absolvitor, from a Sum contained in the said Testament as due to him, because there was nothing to instruct it, but the Defuncts Assertion in his Testament, giving up his Debts. The Pursuer answered, that the Defender hath Homologat, by Confirming the Testament, bearing the same, and not protesting against it, which is an acknowledgement thereof. The Defender answered, that there being four Tutors it could not be constant, that they were all present, at the Act of Confirmation, and saw and knew the Inventar; but as it is ordinar in such Cases, they might have come at several times, and made Faith. The Pursuer answered, that some of the four Tutors behoved to do it, and these were thereby bound to have done Diligence for it, and consequently, all the Tuttors being liable in solidum; this Tutor is liable therefore. The Lords found the Reply and Triply relevant, that the Testament so confirmed instructed the Debt. Robert Lockheart contra William Kennedy February 13. 1662. RObert Lockheart, pursues a Declarator of the Redemption of some Lands, against William Kennedy of Achtefardel, who alleged absoliutor; because, before the order was used. The Reversion was discharged, and the Discharge Registrat. The Pursuer Replied, aught to be repelled, because the Granter of the Discharge was Interdicted, before the granting thereof, and the same not granted with the Interdicters consent. The Defender answered, non competit by way of Reply, but only by way of Action of Reduction, as is Ordinar, in the Case of Inhibition and Interdiction. The Lords sustained the Reply, in respect that it was not proponed, by defence to delay the Pursuit, but by Reply, which did only delay the Pursuer himself, and also, that they thought it hard, to cause the Pursuer quite his Possession, and then go to a Reduction. Antonia Birnie contra Liferenters of Rossie: Eodem die. ANtonia Birnie, as Heir appearant, and having Right to the Fee of the Estate of Rossie, and Fordel, pursues her Mother and Grandfather, Liferenters thereof, for a modification of Aliment. The Grandfather made no opposition● It was alleged, for the Mother, that the whole Inheretance was not Liferented. The Pursuer Answered, that what was not Liferented, was affected with Apprizing for the Defuncts Debts, led after his Death. The Defender answered, non relevat, unless the Appryzing had been before the Defuncts Death, but being against the Appearand Heir herself, she ought to sell Land, and pay the Debt and live upon the remainder. The Pursuer offered her to prove the Appryzing and Debts equivalent to the Value of all the Land● not Liferented. Which the Lords found Relevant. james Maxwell contra Adam Maxwell. Eodem die. JAmes Maxwell, pursues Adam Maxwell, for declaring a Disposition of Lands, granted by the said james his Wife to the said Adam, to have been in trust to her behoof, and after her decease, to her Husband, and for adminicle libeled a Bond granted by the said Adam, some Months after the Disposition, whereby he obliged himself to grant a Back-bond to the Lady, by the advice of Lawyers, conform to the Disposition made to him, and obliged him to deliver the said Back-bond to the Lady, or to the Lady's Husband after her Death, whereupon it was alleged, that the Back-bond being to be made by the Advice of both their Lawyers, the Disposition behoved to be in trust. The Defender opponned the Tickit, bearing the Back-bond, to be conform to the Disposition, in which there was an express Reservation of the Lady's Liferent; so that the Back-bond could import no more, then securing of that Liferent. The Pursuer answered, these words, conform to the Disposition, were set upon the Margin of the Tickit, which was all written by the Defenders hand, and might have been added, ex post facto, 2. The Tickit behoved to import more than the Liferent, because the Liferent was fully and clearly reserved, and oftimes repeated in the Disposition, so that Clause had been frustrate. Thirdly, The oblidgment to deliver the Back-bond to the Lady's Husband after her Death, could not be understood, to be only in relation to her Liferent, which and the Husband's interest should cease by her Death. The Lords found the Tickit sufficient to instruct Trust, but because the Terms of the Trust were not clear. They before answer, in Relation to the Probation of the Terms thereof, Ordain the Parties to Compt and Reckon upon all Sums, due by the Lady to the Defender, in contemplation of the Trust, that the same might be allowed and satisfied to the Defender, before he be denuded. james Slumond contra Wood of Grange Eodem die. JAmes Slumond, having charged james Wood of Grange, to pay a Sum wherein he was Cautioner for the Laird of Balcaskie, to Williiam Smith merchant in Edinburgh, who constitute Richard Potter Assigny, who transferred the same, to the said james Slumond, and Suspends. The reason of Suspension was, because this Bond was paid, and retired by Balscaskie, the principal Debtor; who took a blank Translation thereto, from Potter the Assigny; which Translation; with the Bond itself, were surreptitiously taken out of his Coffer, by james Hay, who filled up this Chargers name therein, likeas, the Suspender produced a Declaration of Potter, that the Sum was paid ●o him, by Balcaskie, and therefore the Suspender craved, that the Oaths of this Charger, the said james Hay, and Potter, and also the Witnesses, who were present at the payment of the Sum might be taken before Answer. Which the Lords granted, albeit the Charger had the Translation for an one●rous cause. Children of Monsual. contra Laurie of Naxweltoun. February 14. 1662. THE Children of the Laird Monsuel, as Executor to their Father, pursues Laurie of Maxwelltoun, for a Sum due by him to the Defunct, who alleged Compensation, upon a Debt due by the Defunct, Assigned to the Defender, by the Defuncts Creditor, after the Defuncts Death, and intimat before any Citation, or Diligence, at the instance of any other Creditor. The Pursuer replied, that Debt compensed on, cannot take away this Debt pursued for solidum; because the Defender, as Assigny can be in no better Case than his Cedent, and if he were now pursuing; he would not be preferred fore his whole Sum, but only in so far as the Testament is not yet exhausted, or other prior Diligence done, for an Executor, having but an Office, can prefer no Creditor, but according to his Diligence, much less can any of the Defuncts Debtors, by taking Assignation from any of the Defuncts Creditors, prefer that Creditor whose intimation is no Legal Diligence. The Lords found that the Defender could be in no better Case than the Cedent, and could have only compensation, in so far as the Inventar was not Exhausted, or prior Diligence used, they found also, that a Decreet against a Defender for making arrested Sums forthcoming, at the Instance of an of the Defuncts Creditors, was null, because the Executor Creditor was not called thereto, albeit Decreet was obtained● at the Instance of that Creditor, against another Executor in a former Process. Lady Muswal Elder contra Lady Muswal Younger. February 15. 1662. IN a Contention, betwixt the Lady Muswall Elder, and Younger, upon two Annualrents out of one Barony. The Lords Ordained the first Annualrenter to do Diligence, within twenty days after each Term; that after that time, the second Annualrenter might do Diligence, or otherwise, at her option Ordained the Lands to be divided, conform to the Rents Proportionably, as the two Annualrents. The second Annualrent and the first to take her choice. Laird of Pitfoddels contra Laird of Glenkindy. Eodem die. IN the Revieu of a Decreet in one thousand six hundred fifty nine, at the Instance of the Laird of Pitfoddels, against the Laird of Glenkindy● in which Decreet, Glenkindy Cedents Oath, having been taken, that the Cause of the Bond was, for an Assignation to a Wodset, which was excluded by Apprizing, after Report whereof, Glenkindy the Assigny alleged, that his Cedents Oath could not prejudge him; and it being Answered, that he made no Objection before the Oath taken, neither could make any Just Objection, because the Oath of the Cedent any time, before Intimation● is sufficient against the Assigny, Glenkindy Answered, that his being called in that Process as Assigny, and compearing; and Insisting as Assigny was an intimation, which was before taking of the Oath, which was found Relevant in the said Decreet, and now rescinded by the Lords, upon this consideration, that the Citation being ad hunc offectum, to instruct the cause of the Bond, the insisting in that pursuit could not be such an intimation, as to exclude the Cedents Oath. Earl of Bedfoord contra Lord Balmirino. February 18. 1662. THE Earl of Bedfoord, for satisfaction of his Tocher, due by his Father in Law; the deceased Earl of Somerset, caused Adjudge, in the name of a Person entrusted, all Right compent to the Earl of Summerset, of the Estate of jedburgh, and being Assigned to the Adjudication, pursues the Lord Balmirino, for denuding himself of two Apprisings of the Estate of Jedburgh, conform to three Backbonds produced; granted by umquhile Balmirino, to Summerset, acknowledging, that he had acquired Right to these apprisings, with Summersets own Money, and therefore obliged him to denude himself thereof. The Defender alleged, that his Father being entrusted by the late Earl of Summerset, to acquire the Estate of jedburgh, and having the Fee thereof in his Person, the Defender is not obliged to denude himself, until he be reimbursed, and satisfied of all Sums of Money, which after the said Backbonds he paid for Summerset, or advanced to Summerset, which can only be accounted, to have been in Contemplation of the Trust, and is particularly so expressed, in Summersets Letters produced, bearing, that Balmirino should be satisfied, of what was due to him, out of Tiviotdale, whre the said Estate of jedburgh lies. The Pursuer answered, non rel●vat, against him, as a singular Successor. 2dly. Non competit, by way of Exception; but the Defender hath only Action therefore: especially this Trust being fidei-comissum; which is a kind of Deposition, in which there is neither Compensation, nor Retentation competent. 3dly. there can be here no Compensation, because the Debt is not Liquid. The Defender answered, his Defense stands must Relevant, which he found'st not upon Compensation, but upon the Exception of Retentation, which is competent in all Mandates, and Trusts, by which, as there is a Direct Action, in favour of the Mandator, against the Mandatar, or Person entrusted; so there is a contrare Action, in favours of the Mandatar; for satisfying of all, that he hath expended, by Reason of the Trust; and which he may make use of, beway of Exception of Retention, if he be pursued and whatsomever by in Relation to Compensation, in deposito, by the civil Law, or of the difference of Action, and Exception; yet, thereby they, and by our un controverted Custom, whatever is competent by way of Action, is Competent by Exception, and if this be not receavable by Exception, it is utterly lost, because there is none to represent Summerset. The Lords considering, that Balmirino's Estate was disponed, and apprised, by his Uncle, the Lord Couper, and William Purvis, the Reversion whereof was shortly to expire, which they would not lengthen, and that by an account running, to the expire of these Reversions, the Pursuer being a Stranger, might be frustrate; therefore they Repelled the Defense, but declared, that Estate, or benefit that Bedfoord should make thereby, should be liable to Balmirino, for what Debt he should instruct to be due by Somerset, and withal supers●●eded the Extract f●r a time, that if in the mean time, Balmirino should cause Couper and Purvis Restrict their Rights, to as much Rents as would pay their Annualrents, and secure Bedfoord in the rest of his Estate, and in a certain Bond produced, for what should be found due, They would sustain the Defense by Exception, and Ordain Compt and Reckoning. Lord Carnagy contra Lord Cranburn. February 19 1662. THE Lord Carnagie being Infeft in the Barony of Dirltoun, upon a Gift of Recognition by the KING; pursues a Declarator of Recognition, against the Lord Cranburn, because the late Earl of Dirltoun, holding the said Barony Ward of the KING, had without the KING'S consent, alienat the same to Cranburn, and thereby the Lands had Re-cognized. The Defender alleged, First, No Process, because he is minor, & non tenetur placitare super haereditate paterna. Secondly, The Re-cognition is incurred by the ingratitude, and Delinquence of the Vassal, yet delicta morte extinguntur, so that there being no other Sentence, nor Litiscontestation against Dirltoun, in his own Life, it is now extinct, which holds in all Criminal and Penal Cases, except in Treason only, by a special Act of Parliament. The Lords Repelled both the Defences: The First, in respect that the Defender is not Heir, but singular Successor, and that there is no question of the validity of his Predecessors Right in competition with any other Right, but the Superiors. The other, because Recognition befalls not as a Crime, but as a Condition, employed in the nature of the Right, that if the Vassal alienat, his Fee becomes void. Children of Wolmet contra Mr. Mark Ker. Eodem die. IN a Declarator of Redemption, at the the Instance of the Children Wolmet, against Mr. Mark Ker. It was found that the Declarator needed not be continued, though the Pursuer produced not the Reversion, but an attestat double thereof, and offered to prove, that the principal Reversion was in the Defenders hands. Which was sustained, the Pursuers Right being an apprizing. Earl of Calender. contra Andrew Monro. February 20. 1662. THE Earl of Calender pursues Andrew Monro of Beercrofts, for the valued Teind Duty of his Lands several years: who alleged absolvitor, for the Teinds intrometted with by his Author, preceding his Right. The Pursuer Replied, that Teinds being valued, are like an Annualrent, and are debiti fundi, by the Act of Parliament 1633. anent Valuations. The Teind-masters being appointed to be Infeft in the Right of the Teind, according to the Valuation. The Lords found the Defense Relevant, and found the Teind not to be debitum fundi, albeit valued. Halberd Irvin contra Mackertnay. February 24. 1662. THis day, in a Spulzie betwixt Halberd Irvin and Mackertnay. The Defender principally called, having proponed a Defense, upon a Disposition and Delivery of the Goods in question, and craving to prove the same, by others of the Defenders, called as accessary, as necessary Witnesses, alleging, that the Pursuer had called all that were present upon the ground, as accessories, that thereby he should get no Witnesses. The Lords Ordained the Pursuer in the Spulzie, to declare whether he would insist against these others, as accessary, or as applying any of the Goods to their own behoof, or if he would not, allowed them to be received as Witnesses; and if he did insist against them, Ordained the Process against the principal Party to fist till the accessions were discussed, that such of them as were assoilzied might be used as Witnesses. Alexander Arbuthnet of Fiddes contra Keiths. February 25. 1662. ALezander Arbuthnet of Fiddes, pursues Keiths, the two Daughters of John Keith, and their Husbands, for the avail of their Marriages, belonging to him, as Donatar by the Earl of Marischal their Superior. The Defenders alleged, First, No Process, because nothing produced to instruct that the Lands were Waird, or that the Earl of Marischal is Superior. Secondly, absolvitor from that Conclusion of the Summons● craving not only the Ground to be poinded, for the avail of the Tocher, but also the Defenders personally to pay the same. Thirdly, Absolvitor, because the Earl of Marischal consented to the Defenders Marriage, in so far as he is Witness in the Contract. The Lords repelled all these Alleadgances: The First, in respect that Waird is presumed, where the contrair is not alleged, and the Defender did not disclaim the Earl of Marischal as his Superior. The Second, because they found, that the avail of the Marriage did not follow the Value of the Land holden Waird, but the Parties other Means and Estates also; so that the avail of the Marriage might be much more worth than the profit of the Waird Land: and therefore behoved not only to affect the Ground, but the Heir, or appearand Heir personally: And as to the other Defense of the Earls consent, it was after this Granted, and was only as Witness, neither is the profit of the Marriage, as to the single avail, taken away by having of the Superiors tacit consent: but is a Casuality simply belonging to him, which cannot be taken from him, unless— id— ageb●tur, to renunce the benefit thereof, yet it seems that the Superior, consenting to his Vassals Marriage, can crave no greater Avail then the Vassal gets of Tocher. Brown contra johnstoun. February 26. 1662. BRown having obtained Decreet against Archibald johnstoun of Clachrie for two hundred pounds Sterling: He raises Reduction and Review upon this Reason, that the ground of the said Decreet was a Bill of Exchange drawn by Johnstoun, to be paid by Mukgown in Blackainor-fair in England, Ita est, the alleged Bill is null, not Designing the Writer, nor having any Witnesses, neither hath it the Subscription of Johnstoun, nor the Initial Letters of his Name, but only a mark, most easily Initiable, which is Written about with an unknown hand: Archibald Johnstoun his mark, it being reasoned amongst the Lords, whether this could be accounted a Writ Probative; and it being alleged an Astruction thereof, that this Johnstoun being a Merchant and a Drover, was accustomed ordinarily so to Subscribe, and to give Bills for far greater Sums than this. The Lords thought it would be sufficient amongst Merchants, though it wanted Witnesses, but being unwilling via ordinaria, to allow of such a Writ, or Subscription, for which we have neither Custom nor Decision: Yet in respect of the Decreet, and of the alleged Custom so to Subscribe: They before answer, ordained the Oaths ex officio, to be taken of the Writer of the Bill, if he could be condescended on by either Party, and of the Witnesses who saw Johnstoun Write this mark, or receive the Money, for which the Bill was granted. Creditors of Kinglassie. Competings. Eodem die. IN a Competition betwixt the Creditors of Hamiltoun of Kinglassie. It was alleged for William Hume, who had Right to an Annualrent, that he ought to be preferred to Joseph Lermont, who stood publicly Infeft in the Property, in Anno 1655. because albeit the Annualrent of itself was base, yet long before, it was validat by a Decreet for poinding of the Ground. It was answered, that there was no way to make a base Infeftment valide, but by Possession: here there could be no Possession, because the Annualrent was granted to take effect only after the Granters Death, and the Decreet thereupon was obtained long before his Death, and so could be repute no Possession. The Lords were of Opinion, that the foresaid Decreet of poinding of the Ground upon the base Infeftment, Ordaining the Ground to be poinded (the Terms of payment being come and bygone) was sufficient to validate the base Infeftment: and that thereby it remained no more a private Clandestine Infeftment, by many other Questions falling in. The Matter was laid aside without Decision, vide February 27. 1667. Inter eosdem. John Kinard contra Laird of Fenzies. Eodem die. JOhn Kinard pursues a Declarator of Property of a Myre or Marish in the Carss of Gowrie, against the Laird of Fenzies, who had his Land on the other side thereof, alleging that he and his Predecessors and Authors, have been forty years in Possession of the Myre, as proper Part and Pertinent of the Barony of Rossie, and that the same is severally kend and known by March and Meith, and a Dyke enclosing it from the Defenders Lands: It was alleged for the Defender, that he, his Predecessors and Authors, this forty years has been in Possession of the said Myre, by doing all the Deeds Libelled by the Pursuer, which must give them Right, at least of common Pasturage, Fail and Divot therein: and therefore craves the Defense to be found Relevant, and admitted to his Probation, at least that a Cognition might be by an Inquest, conform to the Act of Parliament, and Witnesses led, hinc inde. The Pursuer Replied, that he offers him to prove that by the space of forty years, he, his Predecessors and Authors Possessed the said Myre, not only by the Deeds Libelled; but also did divide the same in several Parcels to each Tennent in the Barony, and was accordingly Possessed by them, which is sufficient to show that they bruiked the same as Property, and not a promiscuous Commonty. And as for the Defenders Alleadgances of Commonty by common Pasturage, etc. The same aught to be Repelled; because the Pursuer offers him to prove that he interrupted and debarred the Defender from time to time, which hindered him to Acquire a Right of Commonty, by Possession and Prescription, and he cannot allege that he hath any other Right by express Infeftment; and therefore being so much more pregnant than the Defender, there ought to be no Cognition, but he preferred in Probation. The Lords Repelled the Defense in respect of the Libel and Reply, but granted Commission to one of their number, to Examine Witnesses for the Pursuer, omni exceptione majores, after which, the Defender passing from his Compearance, The Lords Declared they would give the Extract of the Interlocutor to the Pursuer, and give his Libel and Reply by way of Condescendence, and Declaration of the manner of the Property, and of his Possession to his Probation. Viscount of Stormount contra Heirs of Line, and Creditors of the Earl of Annandale. Eodem die. THE Viscount of Stormont pursues a Declarator against the Heirs of Line, of Umquhil James Earl of Annandale, and several Creditors of the said Umquhil Earl, who had apprised the Lordship of Skoon, and were Infeft thereupon; to hear and see it found and declared, that David Viscount of Stormount had Disponed these Lands, to Mungo Viscount of Stormount his Brother, and the Heirs-male of his Body, which failzing, to Andrew Lord Balvaird, and the Heirs-male of his Body, etc. with this express provision in the Charter, and repeated verbatum in the Seasine, that it should not be leisom to the said Mungo, or any of the Heirs of Tailzie for the time, to alienate the Lands, or alter the Tailzie, or to do any Deed, whereby the same may be evicted, or Apprized, from the Heirs of Tailzie, otherwise their Right should expire, and should belong to the next Heir of the Contraveener, and that thereby james Earl of Annandale last Infeft, had contraveened the said Clauses by contracting their Debts, whereupon the Lands were Apprised: and thereby had lost his Right, and that the said's Creditors Bonds and their Apprizing are thereby null and void: and likewise that the said james Earl of Annandale, his Retour was null, and that the Pursuer might yet Enter as Heir to Mungo Viscount of Stormont, as if the said james Earl of Annandale had never been Infeft. The Defender alleged; First, No Proses in this Order without a Reduction, without which no Infeftment can be taken away. The Lords Repelled this Alleadgence, and found that a Declarator was als effectual as a Reduction, when all was produced that was necessary to be produced before the ground of Nullity were Discussed, with which all the rest will fall in consequence, and that Reduction was only necessary to force though Defenders to produce by the Certification, but if the Defender would produce himself, he might proceed by way of Declarator of Nullity. Secondly, The Defender alleged no Processes, because by the Co-ception of the Clauses irritant, the Rights is declared to belong to the nearest Heir of the Contraveener; and therefore the Pursuer as served Heir-male general to Andrew Lord Balvaird, hath no Interest till he be served Heir-male to james Earl of Annandale the Contraveener, in which case he cannot quarrel his Deeds or Debts. The Pursuer answered, that by Heir here cannot be understood the Heir actually served, but the Person only that might be Heir, for the Pursuer insisted in this same Processes against the Earl of Annandale, when he was living, and could not have been then excluded, because he was not his heir; and therefore as is ordinar in all Clauses in relation to Heirs, which cannot be effectual, if Heirs served be understood, their Heirs appearing are understood, verba sumenda sunt cum effectu. The Lords also Repelled this Defense. Thirdly, The Defenders alleged absolvitor: Because, first, Clauses de non alienando, are never understood to extend to necessary alienations, as for provision of the Feears Wife and Children, for Redemption of him from Captivity, or any other accident, without his Fault. Secondly, Clauses de non Contrahendo debitum are against Commerce, and utterly rejected. Thirdly, Clauses irritant are resolutive, albeit contained in the Infeftment, are but personal obliegements, and the ground of an Action against the contraveener; but if the Contraveener be denuded, are not effectual against singular Successors; Especially Creditors Contracting bonafide, with one standing Infeft, before the matter became litigious by Processes, upon that Clause, seeing no Inhibition was used: ita est, their Creditors had Apprized and were Infeft before any such Processes upon this Clause, or Inhibition used, and no personal provision could transmit the Right from Annandale to Stormount, upon contraveening the Clausses, nor could hinder the transmission thereof from Annandale, who had the only real Right to the Creditors, by virtue of their Appryzing and Infeftments, which denuded Annandale of the real Right, and which real Right stands now only in the Person of the Creditors Infeft, so that there can be no more in Stormounts Person, but a Personal Provision, for the being within the body of the Infeftment, will not make this Clause real, and to affect the Right, quo ad singulares successores, more than the Clause of Warrandice in the Infeftment, which without question, reaches not singular Successors; and albeit some Provisions in themselves Personal, may affect singular Successors, as the Provision, that if two years run together, the Feu shall become void, or the Clauses of Reversion, or the Inherent Clauses, or quality in Ward holding, but these become real by Law and Statute; for we have a particular Act of Parliament anent Reversions, to be effectual against singular Successors; and another anent Feus', ●b non solutum canonem: and there is no other case that such Provisions are real. The Pursuer answered to the fi●st; albeit alienations do not comprehend judicial Alienations by apprizing in Recognition, and are oftimes not extended to necessary Alienations: Yet here the Clause bears expressly not to altenat, and also to do no Deed whereby the Laws may be Evicted and Apprized; without which the Clauses de alienando, were utterly ineffectual, and repeats the same to t●e second. As to the third, albeit the facto, the real Right be in the Appryzers' Infeftment, yet it is in them effected, with that quality in the condition and bosom of it, that gives good ground, not only against the Earl of Annandale Contraveener, to annul his Right; But also the Apprizer in consequence, quia resoluto jure dantis, resolvitur jus accipientis, Especially in Feudal-rights, where provisionis investiturae, sunt legis feudi, as all Feudists agree, and therefore all such Pactions and Provisions are equivalent to Law. 2d. This Clause of the Infeftment is not only resolutive, but also is an Interdiction Prohibiting the Feear for the time, to alienat, or do any Deed prejudicial, without consent of such other Persons of the Tailzie, were Majors for the time; and therefore, though the Pursuer should enter Heir to Annandale, he might annul these Rights, just as in the Case of an Heir of an Interdicted Person, who may annul all Rights by his Predecessors after the Interdiction. The Defenders answered, that as to this Point concerning the Interdiction, it cannot be effectual; because by a particular Act of Parliament, all Interdictions are appointed to be published, and to be Registrat in the Registers of Inhibitions, otherways they are null: This Interdiction is neither published nor Registrat in that Register. The Pursuer answered, it is als public, because it is not only in his Infeftment, at the great Seal, but it is verbatum in the first Seasine, and repeated in the Earl of Annandales Retour and Seasine, so as that the Creditors ought to have considered his condition when they lent him Money, and known that he was Infeft, otherwise their mistake, though it might be alleged to be bona fidae; yet if Annandale had never been Infeft, their bona fides would have wrought nothing, seeing therefore they did it on their peril, unless they knew he was Infeft, and they could not know he was Infeft by inspection of his Seasine, or of the Register, but they behoved to know this Clause, which is verbatum in it. The Lords did also Repel this Defense and Duply, in respect of the Reply and Triply, and found the resolutive Clause effectual against singular Successors, especially considering it was so public and verbatim in the Seasine, and that it was equivalent to an Interdiction. Thirdly. The Defender further alleged absolvitor, because the pursuer had● behaved himself as Heir to the Earl of Annandale, by Intromission with the Mails and Duties of the same Lands. The Lords Repelled this Defense, because the Pursuer having intented Declarator against Annandale in his own life, they thought the provision was equivalent to an Interdiction, which purged that passive Title. Creditors of Kinglassie. February 27. 1662. IN the Competition betwixt the Creditors of Kinglassie mentioned the former Day, the Dispute anent the base Infeftment, made public by the poinding of the Ground so long before the Term of payment, being reasoned before the Lords in presentia, they sustained the same as before. Marjory Chalmers contra William Dalgardno. Eodem die. MArjory Chalmers pursues William Dalgardno as vicious Intromettor with a Defuncts Goods, to pay his Debt, who alleged absolvitor, because the Rebel died at the Horn, and so had no Goods. Secondly, The Defender hath the gift of his Escheat, and also is Executor Creditor Confirmed to him. Thirdly, The Defender had a Disposition of all the Defuncts Goods, albeit he possessed not thereby during his Life; yet he might Enter in possession, after his Death, and not be vicious Intromettor. The Lords found this Defense Relevant, to elide the passive Title, but prejudice to either Party, to Dispute their Rights, as to the simple avail of the Goods; and they Repelled the first Defense, and found the second and third Defences Relevant only, if the Gift was before the Intenting of this Cause William Hamiltoun contra Mcfarlane of Kirktoun. February 28. 1662. WIlliam Hamiltoun pursues james Mcfarlane of Kirktoun, as Successor titulo lucr●●ivo to his Father, to pay his Debt, who alleged absolvitor, because he was not alioqui successurus, in respect that at the time of the Disposition, he had, and hath an Elder Brother, who went out of the Country, and must be presumed on life, unless the Pursuer will offer to prove that he was Dead before this Disposition; so that at the time thereof, the Defender was not appearand Heir & alioqui successurus, because vita presumitur. The Pursuer answered, the Defense was not Relevant, unless the Defender would be positive, that the time of the Disposition his Elder Brother was on life; especially seeing he had been out of the Country twenty years, and was commonly holden and repute to be Dead. The Lords sustained the Defense, that the Elder Brother was on life the time of the Disposition, and reserved to their own consideration the Probation, in which if the Defender proved simply, that his Brother was actually living the time of the Disposition, there would remain no question: and if he prove that he was living about that time, they would consider, whether in this Case, the presumption of his being yet living, should be probative. Pa●rick Herron contra Martein Stevenson. june 17. 1662. PAtrick Herron having obtained Decreet of Removing against Martein Stevinson, he Suspends on this Reason, that the Decreet was not upon Litiscontestation; but a time being Assigned to the Suspender, to find Caution for the violent Profits, and he failing, was Discerned without being admitted to any Defense; and now alleadges, that he ought not to remove, because he obtained Decreet of Adjudication of the Lands in question, against the common Author, and thereupon charged the Superior long before the Chargers Decreet of Adjudication or Infetment. The Charger answered, that the Reason ought to be Repelled, because the Decreet was given against the Defender, compearing and failing as said is. Secondly, The Charger stands Infeft upon his Adjudication. The Pursuer was never Infeft, neither did he use all Diligence to get himself Infeft, not having Denunced the Superior, and in case he had Suspended, Discussing the Suspension. The Lords found the Reason Relevant and Proven, and Suspended; because they found no necessity for an Appryzer to use further Diligence against the Superior, than the Charge of Horning, unless the Superior had Suspended both, and that in competition the other Party had done greater Diligence. Earl of Marischal contra Charles Bray. june 18. 1662. THe Earl of Marischal having obtained Decreet in his own Baron Court, against Bray, compearing for a years Rend of his Manes of Dunnottor, herein he had been possessed by the English, Bray Suspends, and alleadges compensation upon a Bond assigned to him, due by the Charger, who answered competent and omitted, and so not receivable in the second Instance; especially being Compensation, which by special Act of Parliament, is not to be admitted in the second Instance. The Lords Sustained the Reason of Compensation, and found that a Baron Court was not such a judicature, as that Alleadgences competent and omitted, that should be Repelled in the second Instance. Mr. john Wallace contra Forbes june 19 1662. RObert and William Forbeses and Heugh Wallace, being bound in a Bond as Co-principals, Heugh Wallace being Distressed for all, consigned the Sum to this Chargers Son, Forbes Suspends on this Reason, that there is no Clause of Relief in the Bond, and Wallace being Debtor in solidum, and having gotten Assignation confusione tollitur obligatio. The Charger answered, that though there was no Clauses of Relief, hoc i●est, where many Parties are bound conjunctly and severally, that each is obliged to relieve others. The Lords Repelled the Reason of Suspension for the Suspenders part, and found them liable therefore, but not for the other Co-principal Parties. Isobel Drummond contra jean Skeen. Eodem die. ISobel Drummond pursues jean Skeen as behaving herself as Heir to her Brother james Skeen, by uplifting the Mails of the Lands, wherein he Died Infeft, to fulfil her Contract of Marriage with james. The Defender alleged absolvitor, because the uplifted those Duties by virtue of her Infeftment, being Served Heir to john Skeen, Son to james Skeen, the Pursuers Debtor, who was Infeft, not as Heir to his Father james, but as Heir to her Good-sire. The Pursuer answered, in respect to the Defenders Seasine, or to john Skeens, which were evidently null, seeing james Skeen was Infeft, and so John could not pass over him to his Goodsire; and if any regard were to such Infeftment, it would open a Door to all Fraud, and abstracting of Defuncts Creditors Evidents. The Lords found the Defense Relevant to purge this viticus passive Title, seeing the foulzie was not in this Defender, but in John Skeen his Brother Son, but prejudice to Reduce as accords, but ordained her to Renunce to be Heir to James, that Adjudications might be obtained. Mr. Alexander Vernor contra George Allan. June 24. 1662. MR. Alexander Vernor as Executor to Mr. David Calderwood, Charges George Allane, to pay a part of the Defuncts Stipend, as he who intrometted with the Teinds of the Lands liable therefore, whereupon he had obtained Decreet. The Suspender alleged that the Decreet was in absence, and any intromission he had, was only as a Merchant having bought from Sir Alexander Auchmutty the Heretor, to whom he made payment bona fida, before any Arrestment, or Pursuit against him. The Charger answered non Relevat, because the Suspender is obliged to know, that by Law, the Teinds are liable for the Minister's Stipend. Secondly, He offers him to prove that the Suspender did not make his Bargain for so many Bolls of Victual; but that he took Disposition of the Corns ipsa corpora, before they were drawn. The Lords found the answer Relevant, to elide the Reason, and found the Defender liable for the tenth part of the Corns he bought. Robert Hay contra Hoom of Blackburn. Eodem die. RObert Hay Tailzior pursues Hoom of Blackburn, as representing his Father upon all the passive Titles, to pay a Debt of his Fathers. The Defender alleged absolvitor, because there was nothing produced to instruct the Debt, but an Extract out of the Register, bearing the Bond to have been Registrated by his Father's consent, whereas it is nottour and acknowledged by the Summons, that his Father was Dead long before the Date of the Registration. The Pursuer answered, the Extract is sufficient to instruct the verity of the Bond, being in a public Register of the Session; alb it the Defunct was Dead the time of the Registration, which might have been the Creditors mistake, and cannot prejudge them, seeing vitapresumitur, especially now, when through the loss of the Registers, principal Writs cannot be gotten. The Defender opponed his Defense, and the Decisions of the Lords, lately in the like case concerning the Earl of Errol, because nothing can instruct against any man, but either a Writ Subscribed by him, or the Sentence of a Judge upon Citation or consent, and this is neither. The Lords refused the Extract simply, but ordained the Pursuer to condescend upon Adminicles for instructing thereof, either by Writ or Witnesses, who saw the Bond, etc. of Woodhead contra Barbara Nairn. Eodem die. WOodhead pursues Barbara Nairn, for the Mails and Duties of certain Lands. The Pursuer alleged absolvitor, because she Defender stands Infeft in Liferent of these Lands. It was Replied, The Defenders Husband Disponed these Lands to the Pursuer with her consent, Subscribing the Disposition. It was duplied, The Defenders Subscription and Consent was Extorted, metus causa, whereupon she has Action of Reduction depending, and holds the production satisfied with the Writs produced, and repeats her Reason by way of Duply, viz. if she was compelled by her Husband it was by just fear; because she offered to prove by Witnesses, that he threatened her to consent, or else he should do her a mischief, and that he was a fierce man, and had many times beaten her, and shut her out of Doors, and offered to prove by the Nortar and Witnesses Insert, that at the time of the Subscription, she declared her unwillingness. The Lords found the Defense and Duply Relevant. David Wilkie contra Sir Andrew Ker. Eodem die. DAvid Wilkie and others, Tacks-men of the Castoms, Charged Sir Andrew Ker for the Tack-Duty of the Customs of the Border, Anno 1650. Set by them to him, he Suspends, and alleadges by the public Calamity of the English Entry, in Anno 1650. in july, Traffic was hindered, and by the King's Proclamation, against Commerce with these. The Charger answered, it was a Casuallity ex natura rei, and that they had paid without Defalcation, and the Suspender had profit in former years. The Lords before answer Ordained the Suspender to Compt upon what benefit he got in Anno 1650. and what Profit above the Tack-duty in former years. Adamsons contra Lord Balmerino. june 26. 1662. ADamsons being Infeft in an old Annualrent out of two Tenements in Leith, and having thereupon obtained Decreet of poinding the Ground in Anno 1661. and insisting for poinding one of the Tenants' Goods, now belonging to the Lord Balmerino, for the whole Annualrent; Balmerino Suspends on these Reasons; First, The Heretor against whom the Decreet of poinding was obtained, and all the Tenants were Dead; and therefore it can receive no summar Execution, against the present Heretor and his Tenants, but there must be a new Decreet against them. Secondly, Balmerino hath peaceably possessed this Tenement twenty or thirty years, and thereby hath the Benefit of a possessory Judgement, by which his Infeftment cannot be questioned without Reduction and Declarator. Thirdly, The Englishes possessed this Tenement several years by the public Calamity of War; and therefore there must be Deduction of these years' Annualrents, as is frequently done in Feu-duties. Fourthly, The two Tenements being now in the hands of different singular Successors, Balmerino's Tenement can only be poinded for a part of the Annualrent. The Pursuer answered, that Poinding of the ground is actorialis, chiefly against the Ground; and therefore during the Obtainers Life, it is valued not only against the ground, while it belonged to these Heretors and Possessors, but against the same in whosoever hands it be, that the Movable Goods therein, or the Ground Right thereof may be Apprized. To the second, Annualrents are debita fundi, and a Possessory Judgement takes neither place for them, nor against them. To the third, though in some cases Feu-duties ceass by Devestation, that was never extended to Annualrents, due for the profit of a Stock of Money. To the fourth, the Annualrent being out of two Tenements promiscuously. The Annualrenter may Distress any part for the whole, in whosoever hands the Tenement may be. The Lords Repelled all these Defences, but superseded Execution for one half of the Annualrent for a time, and Ordained the Suspender to give Commission to Balmerino to put the Decreet in Execution against the other Tenements for its proportion, for his relief, medio tempore. Wilson contra Thomson. Eodem die. WIlson having obtained Decreet against Thomson, for poinding of the Ground of a Tenement of Land, Thomson Suspends on this Reason, that the Chargers Infeftment is base, and before it was clad with Possession, the Suspender was publicly Infeft, and thereby excludes the base Infeftment though prior. The Charger answered, that the Reason ought to be repelled, because he had used Citation upon the base Infeftment, before the public Infeftment, by which Citation, res fuit letigiosa. The Lords Repelled the Reason in respect of the Answer, and found the base Infeftment validat by the Citation, whereupon the Decreet followed. Ruthven contra Laird of Gairn. june 27. 1662. THe Laird of Gairn having Infeft his Son in his Estate, reserving his own Liferent; after his Son's Death, his Oye pursues him for an Aliment out of the Estate, conform to the Act of Parliament, appointing the Heir to be Entertained by the Donatars to the Ward, Conjunct-feears, or Liferenters thereof. The Defender alleged absolvitor, because the Act of Parliament cannot be extended to his case, who voluntarly Infeft his Son in his Estate, with the burden of his Liferent. Secondly, If any Aliment were due, the Mother who is Liferenter must bear her part. Thirdly, Aliment is only due where the Heir hath no other means; But here the Heir hath a Stock of Money, which though Liferented by his Mother, yet he may Entertain himself out of the Stock. The Pursuer answered: First, That the Act of Parliament anent Alimenting of Heirs, is generally against Liferenters without exception. Secondly, The Disposition by the Defender to the Son, was for a Tocher worth all the Estate he then had; wherefore no part was Liferented by the Son, or his Wife, the Pursuers Mother, but only a sum of Money which came by herself, and there is no reason that the Stock thereof should be exhausted for the Pursuers Aliment, the Defender having now succeeded to a plentiful Estate. The Lords Repelled the Defense in respect of the Replies. Mr. David Watson contra Mr. james Ellies. Eodem die. MR. David Watson having acquired Right to the Superiority of Stenhouse milne, pursues the Fevers, for their Feu-duties, who allege, First, no Process, the Lands in Question, being Kirk-lands, Disponed to a Lord of Erection; and it is declared, that the Lords of Erection, having only right to the Feu-duty, till they be Redeemed by the KING, at ten Years purchase, by the Act of Parliament thereanent, in Anno 1633. And thereby none have Right, but such as subscribed the submission, surrendering their Interest in the KING'S hands, until the Pursuer Instruct, that his Author did subscribe the said submission, he hath no Interest. Secondly, absolvitor, from the Feu-duties, 1650. and 1651. Because the Lands were wasted these Years, by public calamity of War. Thirdly, absolvitor from Harrage and Carriage; because all Services are reserved to the KING, by the said Act of Parliament. The Lords assoilzied from Harrage and Carriage, but differed for the Feu-duty, being small, and found no necessity for the Pursuer to instruct, that this Author did subscribe the Surrender, after so long time, but that the same was presumed for his so long bruiking the Fee. Sir William Wilson contra Sir William Murray. Eodem die. WIlson having apprised Sir William Murrays Estate, pursues him and his Tenants, for Mails and Duties, who alleged, that by the Act of Parliament 1661. anent Debtor and Creditor, the Lords are empowered to restrict Apprysers, to a part of their Lands apprised, sufficient for the Annualrent, and to leave the rest to the Debtor. The Lords did accordingly restrict, but give the Appryser his option of any of the Apprysed Lands, (except the Debtors House and Mains) paying eight per cent. effeiring to the Sum apprised for; the Appryser being comptable for the superplus above the Annualrent, and public burdens● Dame Margaret Hay contra George Seaton of Barnes. june 28. 1662. UMquhile Sir john Seatoun of Barnes, having provided George Seaton his son, by his Contract of Marriage, to his lands of Barnes, some diferences rose amongst them, upon the fulfilling of some Conditions in the Contract, for settling thereof, there was a minute extended by a Decreet of the Judges, in Anno 1658. by which the said Dame Margaret Hay, second Wife to the said Sir john, was provided to an hundred pound sterling in Liferent, and it was provided, that Sir John might burden the Estate with ten thousand marks to any Person he pleased, to which George his Son did consent, and obliged himself, to be a principal Disponer, Sir john assigned that Clause, and destinat that Provision, for Hendrie Seaton his Son, in Fee, and for the said Dame Margaret Hay in Liferent, whereupon she obtained Decreet before the Lords, the last Session, George suspends the Decreet, and raises Reduction, on this Reason's that the foresaid Clause, gave only power to Sir john, to burden the Estate with a 10000 marks, in which case George was to Consent, and Dispone, which can only be understood of a valid Legal and Effectual burden thereof, but this Assignation is no such burden, because it is done in lecto egreditudinis, and so cannot prejudge George, who is Heir, at least appearand Heir to his Father. The Charger answered, that the Reason was no way relevant. First, because this Provision was in favours of the Defuncts Wife, and Children, and so is not a voluntar Deed, but an Implement of the natural obligation of providing these. 2dly. This Provision, as to the Substance of it, is made in the Minute, and extended Contract in the Father's health; and there is nothing done on Deathbed, but the Designation of the Person, which is nothing else, then if a Parent should in his life time give out Sums payable to his Bairns, leaving their names blank, and should on Deathbed fill up their names. The Suspender answered, that he opponed the Clause, not bearing the presenti, a burden of the Land, but a Power to his Father to burden, neither having any mention of Deathbed, or in articulo mortis, or at any time during his life, and though the Dead, on Deathbed be in favours of Wife, and Children, it hath never been sustained by the Lords in no time, though some have thought it the most favourable Case. The Lords sustained the Provision, and Repelled the Reason of Reduction assoilzied therefrom, and found the Letters Orderly proceeded. Dorathie Grace contra Oswald. Eodem die. UMquhile Mr john Oswald, having Married Dorathie Grace, in England, did at the time of their Contract, grant an English Bond of a 1000 lib. Sterling to the said Dorathies Mother, and on Wilson, ad opus & usum dictae Doratheae, the Condition of which Obligation, is, that if Mr. john shall pay the said's entrusted Person, the Sum of 600 lib. Sterling, or shall secure the said Dorathie in Lands, or Cattles, worth the said Sum of 600 lib. in in his life time, or be his Testament. Then he shall be free of the 1000 lib. Mr. john granted Assignation to the said Dorathie of 5500 merk due to him by the Earl of Lauderdale, bearing expressly the same to be for Implement of the Bond, and Assigning, both principal Sum, and Annualrent, Dorathie confirmed herself Executrix to her husband, gives up this Bond, and obtains Decreet against Lauderdale; who calls Dorathie on the one part, and the appearand Heir, and Creditor, of the said Mr. John on the other part. It was alleged, for the appearand Heir, and Creditors, that they ought to be preferred to the Stock of the Sum, because the Clause, ad opus & usum, could only be understood to be for Dorathies Liferent use, and not in Fee, and as for the Assignation, it was on Deathbed, and so could operat nothing in their prejudice. It was; answered, for the said Dorathie, that she opponned the Clause. The meaning thereof was no other, but that her Mother and Wilson, were Creditors in trust to the use, and behoove of her, and could not be a Liferent Right, because it was provided to her, her Heirs, Executors, and Assigneys; and as to the Assignation, though on Deathbed, yet it may very well be used, as an Adminacle, to clear the meaning of the Parties. The Lords found the Clause to carry the Stock of the Money, and preferred Dorathie, and it being thereafter offered to be proven, that by the Custom of England, such Clauses signify only the Liferent use. The Lords repelled the alleadgance; in respect of the Clause, being provided to Dorathies Heirs and Assignies, and in respect of the clearing meaning thereof by the Testament, would not delay, the Process, upon the proving the Custom of England, the matter being clear in the contrair. William bailie contra Margaret Henderson and janet jameson. july 1. 1662. BY Minute of Contract, betwixt Umquhile jameson, and bailie, bailie obliged himself to Infeft jameson in a Tenement, for which jameson obliged himself to pay three thousand marks of price, jameson being dead, without any further progress upon the Minute. bailie pursues the said Margaret Henderson, as Executrix to him, and the said janet jameson, as Heir to pay him the price. It was alleged, for the Executor, absolvitor, because, the bargain being incomplete, the Heir must perfect it, and dispone the Tenement, and so can only be liable for the price; for by the performance of mutual Minute, the Heir will only get the Land, and therefore the Executor should not be liable for the price, or at least if the Executrix be discerned to pay the price; The Pursuer must dispone to her the third part of the Tenement in Fee, and the two part to the Heir, she being the only Child, and having Right to the two third parts of the Movables, which Movables being exhausted, by the Price of the Tenement; the Tenement ought to come in place of the price. The Pursuer answered, that he could dispone no otherwise, then according to the Minute, but the Executrix might betake her recourse against the Heir, as she pleased, but both as representing the Defunct, were liable to him. The Lords discerned the Executrix to make payment, and would not bring the Debtor, betwixt the Heir and her in this Process, for the third of the Tenement, or for her Terce thereof, but reserved the same, as accords. Breidy contra Breidy and Muire. Eodem die. A Contract of Marriage was sustained, both against Principal and Cautioner, albeit subscribed, but by one Nottar, and by one subscribing Witness, there being more Witnesses insert, in respect, that Marriage followed thereupon. Lord Couper. contra Lord Pitsligo. july 3 1662. THE Lord Couper alleging, That being sitting in Parliament, and taking out his Watch, to see what hours it was; he gave it to my Lord Pitsligo in his hand, and that he refuses to restore it; therefore craves to be restored, and that he may have the Value of it, pretio affectionis, by his own Oath. The Defender alleged absolvitor, because the libel is not relevant, not condescending, quo modo, the Defender is obliged to restore, for if the Pursuer insist upon his Real Right of the Watch, as proprietar, the Lybel is not relevant; because he subsumes not that the Defender is possessor, or haver of the Watch, at the time of the Citation, or since, or at lest dolo desijt poisidere; or if the Pursuer insist upon a personal obligation, he ought to subsume, that the Defender borrowed the Watch, or ●ook the custody thereof, and thereby is Personally obliged to keep and restore. Secondly, albeit the Lybel were relevant, absolvitor, because the Defender offers him to prove, that the Pursuer having put his Watch in his hand, as he conceives, to see what hours it was. The Defender, according to the Ordinar Civility, they being both sitting in Parliament. The Lord Sinclar putting forth his hand, for a sight of the Watch; The Defender did, in the Pursuers presence, put it in his hand, without the Pursuers opposition, or contradiction, which must necessarily import his consent, and liberat the Defender. The Pursuer answered, that he did now condescend, that he lent his Watch to the Defender, and that there was betwixt them, Contractus commodati, because the Defender having put forth his hand, signifying his desire to call for the Watch. The Pursuer put the same in his hand, and though there was no words, yet this Contract may be celebrat, by intervention of any sign of the Parties meaning, which here could be no other than that which is Ordinar, to lend the Defender the Watch, to see what hours it was, which importeth the Defenders oblidgment to restore the same. To the second Defense, non relevat, because the Defenders giving of the Watch to the Lord Sinclar, was so subit an Act, that the Pursuer could not prohibit, specially they being sitting in Parliament in the time: and therefore in that Case his silence cannot import a Consent, The Lords sustained the Lybel, and repelled the Defence, but would not suffer the price of the Watch to be proven by the Pursuers Oath, but pro ut de jure Agnes Peacock contra Matthew bailie. Eodem die. AGnes Peacock, as Executrix to her Husband, having pursued Matthew bailie, for payment of a Sum of Money; he offered to prove payment, and at the Term produced a Discharge, whereupon the Pursuer took Instruments of the Production, and offered to improve the same; and craved that the Defender might be Ordained to Compear Personally, and bide by the same, and a Term being Assigned for that effect; and the Pursuer Ordained to consign a Pand, in case she secumb, in the Improbation; and an Act Extracted thereupon. The Defender coming from the Country, and appearing Personally. The Pursuer alleged, the Discharge is null, wanting Witnesses. The Defender alleged non Competit in this state of the Process, after the exception of Falsehood, quae est exceptoinum ultima; but if the Defender had alleged the same at the production. The Defender would have replied, that it was Holographon, and excluded any Improbation. The Lords found the Exception of nullity not competent in this state of the Process. Allison Kello contra Paxtoun. Eodem die. IN a Process betwixt these Parties, an exception having been proponed. The Lords before answer, Ordained the Proponer to produce the Writs, with certification, that the Defense should be holden as not proponed, in termino certificatione, being craved, an Incident was produced, because the Writs were the Proponders Authors Writs, and in their hands. It was answered, that the Incident was not competent, there being no litiscontestation It was answered, that it was most competent, wherever there was a certification, as in Acts in Reduction, and Improbation. The Lords found the meaning of such Acts, and Certifications to be only, that the Parties should produce their own Writs, they would make use of, and such of their Author's Writs, as they had the time of the Act, and that the other Party might have their Oath thereupon, if they pleased, and therefore refused the Incident. Rentoun of Lambertoun contra Earl of Levin. Eodem die. LAmbertoun having intented an Improbation of Lands, alleged, subscribed by his Father in Favours of the Umquhile Countess of Levin, and her Daughters, and others: and having proceeded to the indirect manner Articles of Probation, and Improbation were given in Writ hinc inde, and a full Dispute thereupon, and all such Witnesses examined, as either Party craved. The Lords having Perused, and Read the whole Process, did, upon the Defenders desire, allow them to be heard viva voce, and both Parties compearing. The Pursuer referred the Dispute to the Lords, without saying any further. And the Defenders having related the Case, and Debated in General, anent the taking away of Writs, by Presumptions and Conjectures, and having entered to Repeat all that was in the written Dispute, and to answer every alleadgance. The Lords declared, that it was not their meaning, that the Dispute should be repeated, but the material, and weighty points, which the Defender thought of most importance, to have been resumed, and urged shortly; Referring to the rest the Lords. Therefore, they Ordained the Defenders, to order their alleadgences, as they might, for all that they had to say betwixt ten and twelve, the nixt day, without any further, unless the Pursuer answered. Thomson contra Mackitrick. Eodem die. THomson and Mackitrick having apprised some Tenements in Drumfriese, Mackitrick the first Appryser insists for Mails and Duties. Thomson alleged, Mackitrick's Season was null, as being within Burgh Royal, and not given by the Bailies, and Town Clerk of the Burgh, conform to the Act of Parliament. The Pursuer answered, that his Season was given by the Provost, and by a Nottar, whom he employed as Town Clerk; not only in that, but in several other Acts: and that because the Town Clerk was excluded from his Office, for not taking of the Tender; and upon the same account there was no bailie; so that to complete this Legal Diligence, he was necessitat to take Infeftment by the Provost, which is sufficient in such Cases; because, though the Act of Parliament mention the Bailies of the Burgh, that it is in opposition to Bailies in that part, but cannot be understood in opposition to the Provost, who has Major●m jurisdictionem, quia majori inest minus, and offers them to prove, that he was Provost, at lest habitus & reputatus Provost and that he did employ his Nottar, as Town Clerk for the time. The Lords sustained the alleadgeance to prefer Mackitrick. The Executors Mr. james Fairly Minister of Leswald. contra the Parochiners. july 5. 1662. THE Executors of Mr. james Fairly, having obtained Decreet, before the Comissaries, against the Parochiners, for the Ann, as being the hail Year, 1658. In respect the Minister died in February, in the Year 1658. The Decreet was Suspended, on this Reason, that the Ann could only be half a Year; seeing the Minister died before the Sowing of the Cropped, or Whitsonday; because, if a Minister serve after Whitsonday, he has the half of that years Stipend, albeit he be Transported, or Deposed; otherways, if a Minister should serve the whole Year till Michalmass day, and then be Transported, or Deposed, he should get nothing; so that the Ann being half a years Stipend, more than the Minister served for, he having only survived till Michalmes 1657. Has only the right to the Michalmes proprio jurae, and half a Year thereafter, as the Ann. The Charger answered, That in Teinds and Stipends, there are not two Terms, but Michalmes for all, and therefore, if the Incumbent be disposed or transported before Michalmes, he has nothing that Year, but if he die after Michalmes any time before the beginning of the nixt Year proprio jure, he has the Year he died in, and the half of the next, as his Ann, but if he live till january in the year ensuing, he has that whole year, as his Ann. Which the Lords found relevant; and therefore the Lords found the Letters orderly proceeded. Duncan Drummond contra Colline Campbel. Eodem die. DVncan Drummond pursues Colline Campbel, for payment of a Debt of his Fathers, because in a Writ betwixt his Father and him. The Father had Disponed all his moveables to him, and he had undertaken his Father's Debt, whereby the Pursuer, as Creditor, had interest to pursue him, to pay this Debt. The Defender having alleged, that the Band and Disposition was never a delivered Evident, either to the Father or to the Son; but two blanks subscribed by them, both were put in the hands of a Nottar; to fill up the Bond and Disposition; but before delivery, both Parties resyled, and desired the Nottar to Cancel and Destroy them, yet Eight or Nine Years after the Nottar gave them up to this Pursuer; and neither to the Father nor to the Son, and the Question being how this should be proven. The Lords before answer Ordained the Nottar, and Witnesses insert to be examined ex Officio, which being done their Testimonies proved, as is alleged before. Then the Question was in jure, whether the Depositation of Writs could be proven any other way, then by the Oath of the Party in whose favours the Writs were conceived, he having the same in his hands. The Lords found, that seeing these two Writs were not produced by the Father, nor the Son, by and to whom they were mutually granted, but by a third Party, in whose favours a Clause therein was conceived, in that case, the deposition probable by the Writer and Witnesses insert, and by the saids Testimonies found the Writs null. Robert Bones. contra Barclay of johnstoun. july 9 1662. RObert Bones having arrested certain Goods, and Bestial, as belonging to john Wood, his Debtor, in the hands of Barclay; pursues for making the same forthcoming. The Defender alleged absolvitor, because the Goods libeled the time of the Arrestment, were the Defender proper Goods, Disponed to him, by the said john Wood, for anterior Rests and Debts, and delivered also before the Arrestment. It was Replied, The Defense ought to be repelled; because Wood the Disponer was Rebel, and at the Horn, before the delivery of the Goods, at the Pursuers instance, and whereby the Tradition being after the Horning, the Disposition is null, as being incomplete before the Horning, and after the Horning the Rebel could do nothing to prejudge the KING, or his Donatar, or the Pursuer, for the Debt, whereupon he was denuded, which by the Act of Parliament one thousand six hundred twenty one, affects the Escheat Goods ubicunque. The Defender answered, That the Reply is not Relevant, unless it were alleged, that the Horning had been before the Disposition; for it is lawful for Creditors, either to poinded, Arrest or take Dispositions of their Debtors Goods though Rebel, being for Debts anterior to the Horning, if the Disposition and Delivery be prior to Declarator, neither can the Act of Parliament, one thousand six hundred twenty one, against Dispositions, in defraud of Creditors operat here; because the Disposition is anterior to the Horning, and for an onerous cause. The Lords found the Defense Relevant, notwithstanding the Reply. Laird of Lamertoun contra Hume of Kaimes. july 10. 1662. HOom of Kaimes being Infeft upon an apprizing of the Lands of Northfield, led against Lamertoun, pursues the Tenants for Mails and Duties, and obtains Decreet, which was Suspended, and Reduction thereof raised on this Reason, that it was spreta authoritate judicis, there being an Advocation judicially produced, before the Sheriff, before pronouncing, at least before the Extracting of this Decreet, in so far as the Suspender came to the Sheriff Court, at the ordinar time of the Court Day, at eleven hours, and produced the Advocation, but the Sheriff had fitten down that Day contrair his Custom, at ten hours, and had pronounced the Decreet before eleven hours. The Charger answered non Relevat, that the Advocation was produced before Extract, not being before Sentence pronounced, because albeit inferior Judges are accustomed sometimes to stop their own Decreets, after they are pronounced, before Extracting, yet sententia definitiva, est ultimus actus judicis, and the Extract is but the Clerk's part, so that it can be no contempt, albeit the Judge would not prohibit the Extract, and as to the● other Member, that the Sheriff sat his Court an hour before the ordinar time, non Relevat, unless he did it of purpose, to anticipat this Advocation. The Lord● found the first member, of the Reason, that the Advocation was produced before Extract, after Sentence, non Relevat; and as to the other member, they found it relevant, as it is circumstantiat, to infer that it was done of purpose to anticipat the Advocation, without necessity to prove, otherways the purpose, and in that case declared, if the same were proven, they would turn the Decreet in a Libel. john Ker contra Ker of Fernilee and others. Eodem die. IOhn Ker having granted a Bond, whereupon he being Charged to Enter Heir to several persons his Predecessors, and having renounced, their Lands were adjudged, John took Assignation to the Adjudication himself, and pursues the Defenders for exhibition of the Rights and Evidents of the Lands, and Delivery thereof. The Defender alleged absolvitor: First, Because the pursuit being upon the Pursuers own Bond, now again Assigned to himself, confusione tollitur obligatio. The Lords Repelled this Defense. Secondly, absolvitor, because the Pursuer can have no Interest upon these Rights proceeding against him, as appearand Heir to these predecessors, and now assigned to him, because there were other appearand Heirs, specially condescended on, nearer of Blood. The Pursuer answered, non Relevat, to take away his Infeftment, which behoved to be Reduced. Secondly, Non competit to the Defenders, unless these nearer appearand Heirs, were compearing for their Interest. The Defender Replied, that the Infeftments having obtained no Possession, and having proceeded only upon a Charge to Enter Heir, against the Pursuer, by Collusion: It was competent by Exception, seeing there was no Service, nor Possession, nor any thing done that the nearer Heirs were obliged to know, and it was also competent to the Defenders, not to deliver the Writs to any having no Right thereto, they being liable to deliver them to the nearest Heir of the true owner. The Lords Repelled this Defense against the Exhibition, reserving it to the Delivery, in which they found it competent to the nearer appearing Heirs, without Reduction. Rentoun of Lamertoun contra Earl of Levin and Alexander Kennedy. July 11. 1662. JOhn Rentoun of Lamertoun, as Heir to his Father, having charged the Deceased Earl of Levin, for the Sum of due by him to umquhil Lamertoun: The Earl suspended upon Compensation, by six Bonds granted by umquhil Lamertoun, to the umquhil Countess of Levin, four of them to herself; and after her Decease to her Daughters, and two of them blank, in the Creditors name, which being done stante Matrimonio, by this Lady, did belong to her Husband jure mariti, and not to her or his Daughters. These Bonds were produced out of the hands of Alexander Kennedy, sometime Master Porter of the Castle of Edinburgh, who declared that he had the foresaid six Bonds in Trust from the umquhil Countess, and the Laird of Lamertoun, in Anno 1649. Levin being then Captain of the Castle of Edinburgh, Lambertoun Constable, and the said Alexander, Porter, and produced a Paper of Trust, subscribed by Lambertoun and my Lady, bearing, that the Bonds were put in Alexander 's hands, as a faithful Person, whom both Trusted, to be keeped till after the Lady's Death, and then delivered, according to her direction: against which Writes, Lambertoun raised Improbation, and Alexander Kennedy abode by the same, and the Earl of Levin declared, he made use of them upon the ground foresaid, in his Improbation; The six Bonds being written by Alexander Kennedy and james Rule who is dead, and the Witnesses being George Watson, spittle and Young, and in some of them Alexander himself, all being dead but Alexander the Producer; the direct manner of Improbation thereof ceased; and therefore they proceed to the indirect manner, and give in many Articles of Improbation, and the Earls Articles of Probation. The Relevancy of which being Dispute, to quadruplyes in Write, and all Persons that either Parties desired, being examined hinc inde, and their Testimonies published to either Party, and they having thereupon Dispute, both as to the Relevancy and Probation, in Write, and being heard at last viva voce. The Lords proceeded to Advise the Cause. The weight of the whole matter lay in these Particulars mainly; First, For astriction of the Writs; the said Paper of Trust holding in it, two living Witnesses and one dead, being true, the Bonds related therein could not be false. This Paper could not be Improven indirectly, because the direct manner was competent by two living Witnesses, whereof the one Deponed, that the Subscription was like his Subscription, as he Subscribed at that time, being young, and the third Witness being dead, proves. It was answered, that the Witnesses insert, proved not; because comparatione literarum, Crawford the Defunct's Subscription, was altogether unlike his true Subscription produced; Learmont says his Subscription was only like his: and though Kill says it was his Subscription, yet none of them Depones to have seen it Subscribed by any Body, or by any Witness, nor to know any thing of the time, place, or truth of the matter contained in the Writs, being but an Evidence to keep the Witnesses in remembrance, either of the Matter or of the Subscription, of the Principal or themselves, albeit they need not be proven here as in England, by the Witnesses insert: Yet in the case of Improbation, if the Witnesses prove nothing of the Fact or Subscription, as remembering that they or the Party Subscribed, but only Deponing that it is their Subscription, which can import no more of certain knowledge, then that it is like their Subscription, seeing none can swear that it may not be feigned so like that they cannot know it: and albeit that would be sufficient, where nothing is in the contrair; Yet where there is strong presumption in the contrair, as the Writ not being in the Parties hands, but in the hand of a third Party, malae famae, and who hath at least betrayed his Trust, never having made these Bonds known, till six or seven years after the Countess of Levins Death; and then offering to sell some of them to others, and with all the Paper of Trust, the Body thereof being written with one hand, and the filling up of the Witnesses with another, which no body hath, or can condescend upon, nor are Designed therein; so the same being null by Act of Parliament, cannot sufficiently astruct the truth of the other Bonds, being in themselves suspect. The Lords found the Paper of Trust not sufficiently to astruct, nor the Testimonies not to prove it sufficient, in respect of the grounds foresaid being instructed, and the many presumptions against these Writs. Therefore they improved the said pretended Paper of Trust. There was further produced for astructing the Bonds, two Holographs alleged, Written and Subscribed by Lamertouns owns hand, relative to the Bonds and Trust; and for proving these were Holograph, they produced a Holograph Account Book of Lambertouns, and six Witnesses, of whom three or four were without exception, and the whole Deponed that they truly believed that the Holographs were Lamertouns hand, and Lambertoun and the Lady Levins Subscriptions. The question than was, whether these Papers were so proven to be Holograph, that they did sufficiently astrict the Bonds, notwithstanding all the grounds instructed against them. The Lords found Negative, upon this consideration, that when the Probation of Holograph is by Witness, who saw the Holograph Writ, Written and Subscribed, albeit they be not instruct, it is a full probation, admitting no contrary probation, but when it is only comparatione literarum; or by Witnesses, Deponing that they believe, or that positively it is the hand writ of the Party, that can import no more, but that it is so like, that it is undecernable for no man who saw it not written, can positively swear with knowledge, that it is impossible to fenzie the hand so like, that it is undecernable, and therefore holograph so proven, admits a stronger contrary Probation; and therefore the Lords found that the Evidents against the Bonds were stronger nor this Probation of holograph. There was also produced three Contracts betwixt umquhil Lambertoun and Kennedy at Striveling, upon the ninth of August 1651. by the last of them, Kennedy was obliged to deliver Lambertoun the Bonds for such several Sums, he obtaining the Lady Levins consent, of all these the Writer and Witnesses were dead, and the Date proven to be false. In this Process the Lords having considered all the indirect Articles of the Improbation, in respect that these Writs in question were never in the alleged Creditors hands; and that there was not one Witness that did Depone, that either they remembered to have Subscribed any of these Writs themselves, or that they saw either the Parties, or any other of the Witnesses Subscribe, or any thing communed, done or acknowledged by either Party, contained in the Writs, and that the Subscription of Watson, one of the Witnesses in all the Bonds, was by comparison with other contraverse Writs, about the same time, altogether unlike his Subscription, and that the Word Witnesses adjoined to the Subscription, of all the Witnesses, did appear to be so like, as written with one hand. They found sufficient ground to Improve the foresaids writs, besides many pregnant presumptions from Kennedies inclination and carriage; which being extrinsic were accounted of less value, and yet the astructions aforesaid, and presumptions on that part were so strong, that several of the Lords were unclear simply, to find the Bonds false, but not authentic probative writs. William Wachope contra Laird of Niddrie. july 15. 1662. THe said William Wachope pursues Niddrie his Brother, to pay him eleven pound Sterling for many years, which he promised to pay him by a missive Letter produced, bearing, a Postscript of that nature. The Defender alleged absolvitor; First, because the Postscript is not Subscribed, and so no sufficient Instrument to prove. Secondly, there is no ground for eleven pound Sterling yearly therein, because the words are, I have sent you five pound ten shillings Sterling now, and I have sent you five pound ten shillings Sterling at Whitsonday, and you shall have as much as long as you live, if you carry yourself as ye do now; which words, as long as ye live, cannot be understood Termly but yearly, nor can relate to both the five pound ten shillings Sterling, but only the last, to which is adjected Donations, being of strike Interpretations. Thirdly, The words foresaid cannot import a Promise, but only a Declaration of the Defenders resolution to continue the same free kindness to his Brother; which resolution he may recall at any time. Fourthly, The Promise is conditional, quamdiu se bene gesserit; wherefore the Defender can be the only Interpreter; and declares, that since his Brother hath not carried himself so well, the meaning of such words being only this, If so long as in my opinion you carry yourself so, and not according to the opinion of any other. The Pursuer to the first Defense opponed the Letter which is holograph, and albeit the Postscript be after the Subscription, yet seeing it can have no other construction, then to be done as a part of the Letter, and not as other unsubscribed Papers, whereanent it is presumed, the Writer changed his mind and left them imperfect, and unsubscribed, which cannot be here, seeing the Letter was sent. To the second, he opponed the terms of the Letter● To the third, alleged omne verbum de ore fideli cadit in debitum; and by these words, can be understood nothing else, but a Promise, which is ordinarily made in such terms. The Lords found not the first Defense Relevant per se, but found the remnant Defences Relevant, and assoilzied. William Swintoun contra july 18. 1662. THe said William Swintoun having used Inhibition against at the Cross where he lived, she falls Heir thereafter to another Person, and immediately Dispones that Persons Lands, whereupon William raised Reduction of that Right, ex capite inhibitionis. The Defender alleged absolvitor, because the Lands Deponed, lie not within the Shire where the Inhibition was used: Therefore replied, the Land fell to the Inhibit Person after the Inhibition; and the Pursuer did all he was obliged to do, or could do till that time: which if it was not sufficient, Creditors will be at a great loss, as to Lands acquired or succeeded in alter Inhibitions. The Lords found the Defense Relevant, that the Inhibition could not extend to Lands in other Shires, befalling to the Inhibit after quocunque titulo; but that the Pursuer ought to have Inhibit de novo, or published and Registrat in that Shire, seeing all Parties count themselves secure, if no Inhibitions be Registrat in the Shire where the Lands lie, without enquiring further. Lord Frazer contra Laird of Phillorth. Eodem die. THe Lord Frazer pursues Declarator of Property of the Barony of Cairnbuilg against the Laird of Phillorth, as being Infeft as Heir to his Father, who was Infeft as heir to his Grandfather, who was Infeft upon the Resignation of Frazer of Doors; and also upon the Resignation of the Laird of Pitsligo, who was Infeft upon an apprizing led against Doors; and also as being Infeft upon an apprizing, at the instance of one Henderson, led against Doors, and declared that he insisted primo loco, upon the two first Rights, flowing from Doors and Pitsligo. The Defender alleged Absolvitor, because the Defender in an Improbation against the Pursuer and his Father, obtained Certification against Doares Seasine; so that it being now improven, all the Rights Libelled on, falls in consequentiam, because Doors is the common Author to them all: and if he had no real Right, all their Rights are a non habente potestatem; so that now the Pursuer has no more in his Person, but a Disposition made by Phillorth's Grandfather to Doors, and a Charter following thereupon, and is in the same case, as if Doors upon that ground were craving declarator of Property, which he could not do, nor would the Lords sustain it, albeit there were no Defender; because that can be no Right of Property, where there is no Seasine. The Pursuer answered: 1. That the Defense is no ways Relevant, nor is the Pursuer in the case of a Declarator, upon a Disposition or Charter without a Seasine, because he produces a progress of Infeftments, and is not obliged hoc ordine, to Dispute Doors his Author's Rights, as being a non habente potestatem, which is only competent by way of Reduction; some representing Doors, his Author being called. 2ly. The Defense is no way competent to this Defender, unless he allege upon a better Right than the Pursuers; for the Pursuer hath done all that is requisite to instruct his Declarator, by production of his Infeftments, and his author's Rights are presumed, and need not be instructed; and albeit the Defender be called, yet he cannot quarrel the Pursuers Authors Right, or hinder his Declarator, unless he allege upon a more valide Right in his own Person. 3ly. The Defense ought to be Repelled, as proponed by this Defender; because he represents Frazer of Phillorth his Grandfather, who Disponed the Lands in question to Doors, and was obliged to infeft him, and did de facto resign in the King's hands, in his favour, and so personally objection, umquhil Phillorth, Doares Author would be for ever excluded from objecting against Doors Right, which flowed from him; so neither can the Defender who represents him object against the Pursuer, who is Successor in Door's Rights. The Defender answered, that being called, albeit he had no Right in his Person, he might propone a Defense upon a Nullity in the Pursuers Right, viz. that it is a non habente potesta●m● which is very competent here by exception. This Decla●ator ●eing judicium petitorium, wherein he may well repeat this Defense, without necessity to call Doors, because Doors being called in the Improbation, all Infeftments in his Person are Improven for not production: and so the Reason is instantly verified; and albeit he were Successor to his Grandfather; (which he denys) yet he may well allege that any Right flowing from his Grandfather is personal and incomplete, and can be no ground of Declarator of Property. The Lords repelled the Defences, and found it not competent to the Defender to quarrel the Pursuers Authors Right, unless he had a better Right. Skeen contra Lumsdean. july 19 1662. SKeen having Charged Alexander Lumsdean, upon a Bond granted by Mr. Thomas Lumsdean as principal, and the said Alexander as Cautioner, he Suspends on this Reason, that the cause of the Bond, was Bills of Exchange, drawn by Verhage upon Kezar in Camphire, to be paid to Skeen, or his Order; which Bills Skeen ordered to be paid to Mr. Thomas Lumsdean's Wife; and Mr. Thomas granted the Bond charged on for the said's Bills; which Bills were protested upon Kezar's not paying of the Bills, as the Protest bears: To which protested Bills Mr. Thomas Lumsdean assigned the Suspender, and whereupon he now alleadges that he must have allowance of the Bills protested, being the cause of the Bond, and therefore Skeen himself is liable for the Bills which must compence the Charger. The Pursuer answered, that the Reason ought to be repelled, because he offered him to prove, that albeit the bills were protested, for not payment, by Kezar, on whom they were drawn; yet Mr. Thomas Lumsdean having gone back to Verhage who drew them, Verhage paid Mr. Thomas, and that before the Intimation of the Suspenders Assignation. 2ly. That Mr. Thomas Lumsdean being Factor in Camphire, in his Factor Book, upon the 109. page thereof, there are four posts of Payment paid by the said Verhage to Mr. Thomas Lumsdean, at divers times, conform to the Magistrates of Camphire their report, upon the Lord's Commission, bearing that the said Factors Compt Book is Authentic and unvitiat; and that Verhage who drew the Bills, and Kezar upon whom they were drawn, had both sworn before them, that Verhage had paid the same to Lumsdean, so the question was upon the manner of probation; whereanent the Suspender alleged, 1. That Compt Books not being subscribed, were not probative Writs, even against the Merchant himself. 2ly. That at least they cannot prove against the Suspender his assignee. 3ly. That they could be no better than Holograph Discharges by the Cedent, which cannot instruct their own Date against the assignee, and so cannot prove the same to have been before the Intimation, as for the Testimonies of Verhage and Kezar, their Testimonies cannot take away Writs and yet are suspected being both Debtors for the Bills, and that it was not instructed who write the Book, whether Lumsdean himself, or his ordinar Book Keeper. The Lords found the Probation sufficient against the assignee; the Charger also proving that the Books were written by Lumsdean himself, or by his ordinar Book-keeper, and thought that the Book proved against this assignee, being Mr. Thomas own Brother, and no suspicion he would wrong him; and there being four several Posts of payment, in several Months, besides the Depositions of the foresaids persons. Fiddes contra jack: july 19: 1662. FIddes pursues jack for payment of a Bond of 500 marks, which jack acknowledged to have received in custody form Fiddes, to be keeped as his own; jack alleged that he had but the custody, and did conform to his Obligation, he sent the Money to Dundee, in Anno 1650. where he lost both it and much more of his own, at the plunder of Dundee. The Pursuer answered, no way granting that his Money was lost at Dundee, yet it ought not to liberat the Defender; because he ofttimes required and desired the Defender to pay him his Money before the plundering of Dundee, and seeing he did not then give it, it was lost upon the Defenders hazard. The Defender answered, that any requisition was made, was but verbal without Instrument, and that it was made to the Defender, being in Edinburgh after this Money: and the Defenders whole means was sent to Dundee for safety, and that at the time of any such desire, he show the Pursuer so, and bid him send for it to Dundee, when he pleased he should have it. The Lords before answer, having ordained Witnesses to be examined, hinc inde, and having advised the same, found, that the Pursuer did desire his Money, and at that same time the Defender told him it was at Dundee, and said he might have it when the pleased to send for it; and Witnesses also proved that he was at Dundee, and was in esteem as a man of good means then, and that he was there a●the plunder of Dundee, and ever since was in a poor miserable condition; and some of them deponed that he had a considerable sum of Money, far above this in question there. The Question was, whether this probation was sufficient to assoilzie, albeit none of the Witnesses did particularly Depone, that they knew the Pursuers Money to have been at Dundee, and lost there. T●e Lords found that the probation was sufficient, the Pursuer giving his oath in Supplement, that it was there, and lost there; for they considered, that at the time of the Pursuers Requisition, the Witnesses proved, the Defender declared it was there; and that ex natura rei, it was hard to prove particularly, this Money being a Fungible, to have been lost there, but that it behoved to be presumed so, seeing the man lost his whole means there, and hath been poor ever since. Montgomery of contra Eodem die. MR. William Wallace having obtained a Disposition of the Lands of Hagburn from Thomas Hunter, he gave a Back-bond obliging him to sell the same at the best avail, and as a part of the price to pay a Bond of Provision to Thoma's Sisters and Brother, granted by their Father, and having retained his own Sums, and such as he was Cautioner for, was obliged to count for the rest; and being first pursued before the Englishes, and now before the Lords, he was discerned to take the Lands at sixteen years' purchase, and a half, and to count accordingly, It was alleged; he could not have allowance of the sums paid to the Brother and Sister, because these could not exclude lawful Creditors. It was answered for Mr. William, he had paid bona fide a part, and had given Bond for the rest, and could not now be called in question. It was answered, he was in mala fide, because the payment was made after intenting of the Reduction against his Right, at the pursuers Authors Instance. Mr. William answered non Relevat, unless there had been a Reason Libelled in that Reduction against these Bonds. The Pursuer answered it was sufficient, that Reduction was used against the whole Right, to which any Reason might be added. The Lords found this alleadgence not Relevent to put Mr. William in mala fide, unless there had been a special Reason of Reduction filled up, and shown to Mr. William against these Bonds particularly. Margaret Anderson and john Elphingstoun contra Mary Wachop. july 22. 1662. MArgaret Anderson and john Elphingstoun, as heir to Anderson, who were the two Daughters of umquhil Mr. David Anderson of Hills, pursues Mary Wachop his Relict and Executrix, to fulfil an Article of his Contract of Marriage, bearing, That if there were no Heirs-male of the Marriage, he band and obliged him and his Heirs-male and Successors whatsomever, to pay to the Daughters of the Marriage 3000. marks, and craved that the Executrix as representing their Father, might pay the same. The Defender alleged Absolvitor, because it is clear by the Clausses of the Contract, that the Father did not bind himself simply, or himself and his Heirs, but that he bound only himself and his Heirs-male, which is the more clear that the Narrative of that Clause bears, because his Estate is provided to his Heirs-male. The Pursuer answered, he opponed the Clause, by which he did not only oblige his Heirs-male, but himself and his Heirs-male; and so in obliging himself, he hath obliged all that Represent him, and he might have been pursued in his own life-time, if his Daughters had come to the age appointed by the provision. 2ly. He has not only obliged himself and his Heirs-male, but his Successors whatsomever, and therefore his Executors. The Lords found that by the Tenor of the Clause, and Narrative thereof, the Defuncts meaning was chiefly to oblige his Heir-male, and albeit Successors whatsomever was added; yet by the Narrative and the order of the Words, they found the Heir-male was first burdened, and behoved first to be discussed. Therefore ordained the Defender to condescend what the Heir-male had to succeed to, and if he was not Entered Heir-male, and had nothing to succeed to as Heir-male, they thought the Defender would be liable. William Montgomery contra Theoder Montgomery. Eodem die. WIlliam Montgomery as Donator to the Escheat of Theoder Montgomery● pursues a general and special Declarator in on Libel; and insists, first, in the general. The Defender alleadges Absolvitor, because the Horning is null, the Denunciation being at the Cross of Edinburgh where the Defender had not his Domicile. The Pursuer opponed the Horning standing, bearing, the Defender to dwell in Edinburgh, and the Horning could not be taken away by Exception, alibi, not instantly verified. The Lords Repelled the Defense but prejudice of Reduction thereupon. Secondly, Absolvitor from the Rents and Duties of the Lands of Whyteslaid in time coming, because these fell not under single Escheat. It was Replied, the Defense ought to be Repelled, because the jus mariti, falls under single Escheat of the Husband, and carries with it per consequence the Liferent of the Wife. The Lords was clear that the Repl● was Relevant; but the Defense not being competent, in the general Declarator, which was first insisted in, they give no Interlocutor on the Reply. Lord Frazer contra Phillorth. july 23. 1662. IN the Declarator of Property of the Barony of Cairnbulg, at the Instance of the Lord Frazer, against the Laird of Phillorth. It was alleged for the Defender Absolvitor, because the Pursuers Father and Grand father's Infeftment is upon the Resignation of Frazer of Doors, Ita est, Frazer of Doors had no real Right in his Person, never having been Seized, at least there is Certification granted against Doors Season, in the Improbation at the Instance of the Defender, against the Pursuer and his Father; so that Doors having no real Right, his Disposition, Instrument of Resignation, and Charter granted by the King, flowing upon the Resignation of the Laird of Phillorth and the Lord Lovit, who had Right to Pttsligo's apprizing, of the hail Estate of Phillorth, can give no Right to declare the Property, especially against the Defenders, who hath a real Right by Infeftment, flowing from Phillorth his Goodsyre, by Resignation, and flowing from the Lord Lovit, which albeit posterior, yet having the first Infeftment, is the first and only Right. The Pursuer answered, the Defense ought to be Repelled, because any Right the Defender hath, is from his own Grandfather, to whom he was alioqui successurus; and thereby the Defender is Successor titulo lucrativo, to his Grandfather, the common Author, after the Disposition granted to Doors, and as umquhil Phillorth Doors Author, personali objectione would be excluded from opposing Doors Right of Property; which Right he had Disponed to Doors● and was obliged to warrant; no more can the Defender, (who by this same Right he Defends, being successor Lucrative to his Grandfather) be heard to exclude the Pursuer, who is Successor to Doors. 2ly. Albeit there be no Seasine, yet umquhil Phillorth and Lovit were fully denuded in favours of Doors, by the Resignation made in the King's hands, and Charter conform, after which any Right granted by them to this Defender, is a non ha●ente potestatem. 3ly. Any Right the Defender hath flowing from the Lord Lovit cannot defend him, because it was but an apprizing against Phillorth the common Author: and it is offered to be proven that the apprizing was satisfied within the Legal, in so far as the Lands of Innernorth were Disponed by Phillorth and Lovit jointly, to Frazer of Doors for 20000. marks, and the Lands of Innerallothy were Disponed by them to Lovits own Sons, irredeemable the price of which Lands being 54000. marks, was the sum appointed for satisfaction of the apprizing betwixt the saids Parties, and so as to the Lands of Cairnbulg, and remnant Lands apprised, the apprizing is extinct. The Defender answered to the first, that he is not Successor titulo lucrativo to his Goodsyre, because the time of the Disposition by his Goodsyre to him, and also the time of his Goodsyres death, his Father was alive, and served Heir to his Goodsyre. 2ly. There was no Right in his Goodsyre when he Disponed; but all the Right was in the Lord Lovit by Pits●igoes apprizing; neither was Lovit denuded by the Resignation or Charter without Seasine, so but that the second Resignation with the first Infeftment is preferable. 3ly. Satisfaction of the apprizing as it is alleged, is not Relevant, unless it be by Intromission with the Mails and Duties of the Lands apprised, conform to the Act of Parliament 1621. but no other payment or satisfaction by the Debtor is sufficient to take away an Infeftment, contra singularem successurum. The Lords Repelled the Defense, founded upon Lovits apprizing, in respect of the Reply of satisfaction thereof, and found no necessity to allege, that the Person having Right to the apprizing, was otherways denuded, the by acknowledgement of payment or satisfaction, and that there needed no form●● grant ●f Redemption or Renunciation, Registrat conform to the Act of Parliam●n anent the Registration of Seasings, Reversions, etc. w●ich the Lords found only to extend to Wodsets, properly so called, and not to Appry●zings; neither yet to an Infeftment for Relief, whereunto the Rents were not to be only for the Annualrent of the sum, but to satisfy the Principal, and therefore seeing the Lords found that the only Right was in the Defenders Grandfather, and that he Disponed to the Defender, that he could be in no better case than his Grandfather, as to the Disposition granted by his Grandfather without a Cause Onerous, being after the Disposition of the same Lands, by that same Grandfather to the Pursuers Author, but found it not necessary to determine the Case of lucrative Successor, as it was here stated to make the Successor liable to all his Predecessors Debts: james Birsbine contra john Monteith. july 24. 1662. JAmes Birsbine pursues john Monteith, as Cautioner for john Birsbine, who was Executor to the Pursuers Father, for payment of the Pursuers Legacy. The Defender alleged no Process, because the Executor himself is not Discussed, and the Cautioner is only liable subsidiary: The Pursuer Replied, there is a Decreet obtained against the Executor produced, and there was no further Discussing requisite, because he is broken, and the Pursuer is content to assign the Debt to the Cautioner. The Defender answered non Relevat, for a Decreet is no sufficient Discussing, but there must be Registrat Horning at least, albeit the Executor had neither Lands nor Movables too Poind or Apprise. The Lords sustained the Defense, and found the Reply not Relevant, till the Registrate Horning were produced. Alexander Shed contra Robert Gordon and David Kill. Eodem die. ALexander Shed pursues Robert Gordon Pupil, as lawfully Charged to enter Heir to his Father, to pay a Debt of his Fathers, compears David Kill the Pupils Uncle, who was Tutor nominat to him, but refused to accept, and therefore shunned to propone any Defense in the Pupils own name● lest it should be an acceptance, or gestio; and therefore produced a Bond of the Defuncts, and as Creditor alleged that he would not suffer his Debtors Estate to be affected in his prejudice, and offered him to prove, that the Debt pursued on was satisfied. The Question was, whether he had Interest as Creditor to propone this Defense. The Lords having considered the Case amongst themselves, found that where Creditors in this manner compeared, it is not cnmpetent to allow their Defense, because it may delay the other Creditors pursuing, so that a third Creditor may be preferred in Diligence; and therefore they Repelled the Defense hoc loco, but declared that it should be receivable against the Pursuer, whenever he should pursue for affecting any of the Defuncts Means or Estate, in the same case as now. Mr. Patrick Weyms contra Mr. james Cunninghame. Eodem die. MR. Patrick Weyms having an Order of Parliament for a Terms vacant Stipend of the Paroch of Leswade, Mr. james Cunninghame alleged that Terms Stipend was not vacand, but belonged to him as incumbent, viz. Whitsonday 1659. because he was admitted before Michalmess 1659., and shortly after Whitsonday; and so the legal Terms of Stipends not being divisable at two Terms, but at Michalmess jointly, he being incumbent before Michalmess, hath the whole year. The Lords Repelled this alleadgence, but preferred Weyms, and found that Ministers had Right to their Stipend Termly, and if he entered before Whitsonday, he had Right to the whole year, and if after Whitsonday, and before Michalmess, but to the half: Barbara Naesmith. contra john jaffray. july 25. 1662. BArbara Naesmith pursues john jaffray her Son, as Heir and Executor to his Father, for payment to her of her umquhil Husband's hail Means and Eschaeat, by virtue of a Missive Letter, written by the Defunct her Sponse, bearing, that if he happen to die before his return, that his Wife should do with what he had as she pleased, that he thought it too little for her; but he desired her to Discharge a 1000 Pounds or a 1000 Marks to his Brother Alexander, and 500 Marks to his Sister Magdalen, if she follow her advice. The Lords having formerly found, that this Letter was donatio mortis causa, or a Legacy, and so could only affect Deads' part. It was now further alleged, that by the pursuers Contract of Marriage, he was obliged to employ 6000. marks on Land, or Annualrent to him and her, and the longest liver of them two, and to the Bairns to be gotten betwixt them, which failzing his Heirs. This Obligement to employ being a Debt, the Movables must be liable for it primo loco, and the Pursuer can only have Deads' part of the remainder of free Goods. The Pursuer answered, that this Destination being on heritable Clauses, cannot affect the Movables, 2ly. The Bairns cannot have Right thereto till they be Heirs, and so they will be both Debtors and Creditors, and the Obligation will be taken away by Confusion. The Lords found this Defense Relevant notwithstanding of the Answer; and that albeit the Clause was heritable, quoad creditorem, yet it was Movable quoad debitorem, and so behoved to be performed out of the Defuncts Movables, and that the entering thereto, would not take away the Obligement by Confusion's more than one paying a movable Debt, wherein he is both Debtor and Creditor; yet he will have action of Relief against the Executors out of the Movables. It was further alleged, that in the said Missive there are two particular Legacies left to the Defuncts Brother and Sisters, which must abate the general Legacy. The Pursuer answered, that both Legacies were only left thus, I wish, etc. which cannot be obligator, nor constitute an effectual Legacy; but is only a desire or recommendation left in the Pursuers option: and for magdalen's Legacy, it was conditional, the following the Pursuers advice, which she did not, but left her contrair her will. The Defenders answered, that verba optativa were sufficient in Legacies, at least were sufficient to make a fidi commissari Legacy; because all fidi commissis, either for restoring the Inheritance, or for restoring Legacies, in the Civil Law were in such Terms; and albeit such words would not be sufficient, intor vivos, yet favore ultimo voluntatis, where the Defuncts will, howsoever manifested, is the Rule, and so is most extended, such words are sufficient, as to the condition in magdalen's Legacy, it cannot be understood of being under the Pursuers command all her life, and so can only be meaned, if Magdalen miscarry contrair to the Pursuers advice, in some considerable matter of her carriage; and however, it is not a suspensitive condition, hindering the payment of the Legacy, but obliging the Legatar thereafter. The Lords found the Legacies constitute, and in terms for said valid; and as for magdalen's Legacy, declared, that in case Magdalen miscarried, and took not the Pursuers Advice, that she should be liable to refound the Legacy to the Pursuer, but would not put her to find Caution for that effect, the condition being so general. Katharin Kinross contra the Laird of Hunthill. THe Laird of Hunthill being obliged by Bond to pay a sum to umquhil Mr. Beverly, and the said Katharin his Spouse the longest liver of them two in Conjunct-fee, and the Heirs betwixt them, which failzing his Heirs, or any person he should design, whereupon they were infeft in an Annualrent. The said Katharin having charged for payment of the sum, Hunthill suspended alleging that she was but Liferenter, and he could never be in tuto till the Feear were called. The Lords formerly found the Letters orderly proceeded for the Annualrent, but superseded to give answer for the Stock, till some to represent Beverly, the Feear were called, who now being called and not compearing, he Debtor alleged he could not be liable to give up the Stock to the Charger, being only Liferenter, neither would her Discharge, or Renunciation of the Wodset liberat him and his Estate, but only a Renunciation of the Heir; neither did the Charge at the Liferenters' Instance, take away the Annualrent, and make the principal sum movable, unless it had been at the Feears Instance. The Charger answered, that she being Conjunct-feear, was not a naked Liferenter, albeit it resolved in a Liferent; and therefore she craved that it should be declared by the Lords, that she had power to uplift the Stock, and to reimploy it as formerly, and that her Discharge and Renunciation should be declared to be sufficient to liberat the Debtor and his Lands, which being so found by the Lords. The Debitor's appearing Heir being called, would be an irreduceable and sufficient ground of Liberation. The Lords declared as aforesaid, but before Extract, ordained the Conjunct-feear to give Bond for Reimployment of the sum to herself in Liferent, and to Beverly's Heirs in Fee; which Bond they ornained to be presently Registrat, and kept by the Clerk, in respect none appeared for the Heir. Lady Milntoun contra Laird of Milntoun. july 26. 1662. LAdy Milntoun pursues probation of the Tenor of a Bond of Interdiction, granted by her Husband young Calderwood, Interdicting himself to her. It was alleged no Process, because there was no sufficient Adminicles in Writ produced, there being no Writ relative to the Interdiction Subscribed by the Party, but only the Extract of Letters of Inhibition. The Lords sustained this as a sufficient Adminicle, in respect the question was not about a Writ that use to be retired, such as Bonds. In this Case also, the Lords examined some Witnesses, ex officio, before Litiscontestation, being old and valitudinary. Margaret Robertson contra William Mcintosh. Eodem die. MArgaret Robertson pursues an Ejection against William Mcintosh, who alleged absolvitor, because he offered him to prove, that he had warned the Defenders umquhile Husband, and that he dying shortly thereafter, he inquired of his Wife, if she would continue in the Possession, and she declared she would not, but willingly removed. It was Replied, Relevat scripto vel juramento; but witnesses cannot be received to prove willingness of Removing, being mentis. The Lords considering that the Defender alleged no Tack nor Title in Writ, but mere Possession were inclinable to sustain the Defense probable pro ut de jure; but withal considering the Parties were Highlanders, and had great advantage, whoever had the benefit of probation; therefore they ordained the Pursuer to condescend what Deeds of violence was done in ejecting her; and both parties to conscend what persons were present at the Pursuers outgoing, and the Defenders incoming, being resolved to examine all these before answer, so that there might be no advantage in probation to either party. Sir John Aiton contra Adam Wat. Eodem die. ADam Wat being first Infeft in an Annualrent out of Whitlands' Estate, Compryzed for some of the bygone Annualrents. Sir john Aiton being infeft after him in an Annualrent of the same Lands, alleadges that Adam hinders him to uplift the Duties, or poinded the Ground for his Annualrent, and yet lets them lie in the common Debtor, or Tenants hands until his apprizing expire, and therefore alleadges that Adam Wat ought either to Intromit, and do exact Diligence, and impute the same in his Compryzing, or suffer Sir john to do Diligence, or at least, that both may do Diligence effeiring to their Sums. The Lords found that Adam Wat ought to be liable for Diligence in time coming, in uplifting the Rents to satisfy his apprizing; and as to the Annualrent, found, that after 40 days after each Term, in which Adam, as the first Annualrenter, might poinded the Ground; it should be leisom for Sir john, as the second Annualrenter, to poinded the same, without respect to Adam Wat's prior Infeftment, if he did not Diligence thereon, within 40 days after ilk Term. Alexander Hamiltoun contra Thomas Harper. july 29. 1662. ALexander Hamiltoun pursues a Removing against Thomas Harper, who alleged Absolvitor, because the Pursuer invaded and beat the Defender, in the Session-house, during the Dependence of this Cause; and therefore by the Act of Parliament 1584. cap. 219. renewed, 1592. cap. 173. The Pursuer cadit causa, and the Defender must be Assoilzied. The Lords having considered the said's Acts of Parliament, and finding thereby that the Invasion must be Cognosced in a Criminal Process, competent to the Justice, and must be found summarily by an Inquest. The Question was, whether beating without effusion of Blood, was such a Criminal Fact? because it seems to be but a Riot: and next whether the Lords would take probation of it themselves, or if it behoved to be Recognosced by the Justices. The Lords found the Defense Relevant, For the Act of Parliament anent violence in the King's presence, or in the Session House, when the Session is sitting, make such deads' to incur death: and therefore whether they would assign a Term to the Defender to prove, that in the mean time he might proceed Criminally, before the justice, and instruct the Defense by the Sentence of the justice, or whether they would receive the Probation themselves, they resolved to hear the P●rties upon it. Laird Balnagoun contra july 30. 1662. THe Laird of Balnaggoun having obtained a Gift of ultmus haeres, of Thomas from the Exchequer, in Anno 1661. and being thereupon Infeft, pursues Removing against Rorie The Defender alleged absolvitor, because the Defender stands Infeft, and by virtue of his Infeftment in Possession 7. years before the warning, by virtue of a Gift of ultimus haeres, granted by the English Exchequer. The Pursuer answered, aught to be Repelled, because the foresaid Gift is null, ipso jure, in so far as it is not confirmed by the late Act of Parliament, anent judicial proceedings in the Usurpers time, wherein Gifts of Bastardy and ultimus haeres were excepted. The Defendet answered, 1. That his Infeftment being clad with 7. years' Possession, cannot be taken away by exception, neither is he obliged in hoc judicio possessorio, to Dispute the validity thereof. 2ly. The said Act of Parliament doth not declare it null, much less null by Exception, such Gifts but doth only not confirm them. The Lords Repelled this Defense, and found the Infeftment null in itself, seeing it was not confirmed. The Defender further alleged absolvitor from this warning, because the Pursuers Gift is not yet decalred. It was answered for the Pursuer, no necessity of Declarator, because it cannot be ever made appear that any such thing was required, or was in Custom and Use, more than in the case of a Gift of Ward, or a Gift of Forefaultry. The Lords found that this Gift behoved to be declared in the same way as a gift of Bastardy. William Zeoman contra Mr Patrick Oliphant. WIlliam Zeoman as having Right by an apprizing to the Lands of Newton, pursues Mr. Patrick Oliphant, to hear and see it found and declared this his apprizing was satisfied, by Intromission with the Mails and Duties within the Legal. The Defender alleged, apprizing cannot be satisfied by his Intromission, because any Intromission he had was by virtue of other Rights, viz. Mr. james Oliphant the common Author, having killed his own Mother, and thereupon he being declared Fugitive, not only upon the Parricide, but upon a Criminal Ditty against him, upon committing Murder under Trust, which is Treason. The Defender obtained Gift of his Forefaultry, and thereupon stands Infeft and in Possession. The Pursuer answered, non Relevat, 〈◊〉 Because the Act of Parliament against Parricide, doth not declare it to infer Forefaultry, but only that the committer thereof should be excluded from Succession: and as to the committing of Slaughter under Trust, the Act of Parliament expresseth what it meaned by Trust, viz. though getting assurance from persons that had been formerly in variance. 2ly. what ever the cause were, yet the Infeftment upon the gift of Forefaultry, cannot be respected● unless there had been a Doom of Forefaultry pronounced for all, that the Justice General does, is to charge the party accused to find Caution to underly the Law, and if he appear not he is Denunced Rebel, and his Escheat only falls, or if having found Caution, he appear not in causa, he is Denunced Fugitive, which hath the same effect, but none of them can inter Forfeiture, unless Doom of Forfeiture had been pronounced, which the Justice doth not, but when the Defender compears; albeit the Parliament Forefaults persons absent, having taken probation of the Libel contra absentes, and unless the Justice had either cited the party with Letters of Treason, under certification of Treason, and that certification had been granted, or had cognosced the Crime. The Defender being present, the Gift of Forfeiture can work nothing. The Lords found the Reply Relevant, unless the Defender would allege as aforesaid, because the Defender was not clear in the matter of Fact, they before answer, Ordained him to produce the Gift and Warrants. Creditors of Andrew Bryson contra his Son. November 14. 1662. IN an Account and Reckoning betwixt the Creditors and Bairns of umquhil Andrew Bryson, the Auditor being warranted to call all Parties, havers of the said umquhil Andrew his Compt Books before him, his Son Mr. Andrew being Called and Examined upon Oath, Depones that he neither has them, nor had them since the intenting of the Cause, but refused to Depone upon his having of the same at any time before, or upon his knowledge who had them. The Lords having heard the Auditors Report thereanent, found that he ought not to be examined upon his knowledge, who had them, but that he ought to Depone●f at any time before the Citation he had the same, and frandfully put the same away, quia propossessoria habetur qui dolo possidere. Mr. Thomas Nicolson contra Lairds of Bightie and Babirnie. Eodem die. THere having been mutual Molestations betwixt Mr. Thomas Nicolson Advocate and the Lairds of Bightie and Babirnie, anent a common Pasturage in the Muire of Bighty, lying contigue to all their Lands. It was alleged for Babirny that he ought to be preferred to Mr. Thomas Nicolson, and the said Mr. Thomas excluded from all Commonty, because Babirny stands Infeft in the Lands of Babirny, which infeftment bears, with common Pasturage in the Muir of Bighty, and Mr. Thomas had no express Infeftment therein. It was answered for Mr. Thomas, that the alleadgence is not Relevant to exclude him, because he, his Predecessors and Authors, are, and have been Infeft in his Lands cum communi pastura, and by virtue of the said's Infeftments, in peaceable Possession Immemorially; or by the space of 40 Years, which was sufficient to establish the Right of Community with Balbirnie, notwithstanding his Infeftment bears express. It was answered for Balbirnie, that not only was his Infeftment more express; but Mr. Thomas Lands and his were holden of divers Superiors, viz. Balbirnie of the KING, and Mr. Thomas were Kirk-lands; and albeit the Muire lies contigue to Mr. Thomas Lands, yet it is not of the same Paroch. The Lords repelled the Reasons of Preference for Balbirnie in respect of the Answer. It was further alleged for Balbirnie, that the Alleadgeances and Answers for Mr. Thomas Nicolson ought to be repelled; because he offers him to prove, that Nicolson was interrupted since the Year 1610. and condescended, by yearly turning his cattle off the ground, and stopping him from casting Peits; and therefore he must say 40 Years Possession, by virtue of an Infeftment preceding that Interruption. It was answered for Nicolson, non relevat, unless either a Legal Interruption by Lawborres, or Summons; or at least a complete and full Interruptio facti, by debarring him on whole year from any deed of Community, but for turning off his Goods, which were presently put on again, and he enjoying all his Profit, such were Attempts, and Incomplete Interruptions, whereof he needed take no notice thereof, seeing he continued his Possession, otherways there would be great inconveniences by such Interruptions, which would be noticed by the lieges, and yet would cut off the Probation of the old Possession before the same. The Lords found that whatsoever the Interruption, 40 Years, or immemoria possessione before the Interruption behoved to be proven, for they thought that what Servituds were introduced only by Possession, by the patience and presumed will of the other Party, being either Proprietar, or having right of Community, any Interruption was sufficient to show, that the other Party willed not, nor consented not to the Right; and if by such Interruptions Parties got wrong, it was their own fault, who did not either declare their Right, or insist in a molestation debito tempore, or use mutual Interruptions; but here it was considered, that Possession before the year 1610. would be equivalent to Immemorial Possession, albeit the Witnesses were not positive, upon 20. Years Possession before, in respect the Years were 50. Years since. Children of Wolmet contra Dowglas and Cuningham. November 20. 1662. IN a Pursuit at the instance of the Children of Wolmet for the Profit of the Coal of Wolmet, intrometted with by the said jean Dowglas Lady Wolmet in her Viduity, by virtue of a Tack of the Coal granted by Umqhile Wolmet to his Children for their Portions, it was alleged for the Defender. First, absolvitor, because the said jean had right to the said Profit of the said Coal, ever since her Husband's Death, by virtue of the Wodset of the Lands and Coals of Wolmet granted by Umquhile Patrick Edmonstcun of Wolmet, to james Loch, wherein there is a Back-tack of the Land and Coal set to the said Umquhile Wolmet, and the said jean his Spouse, for the Annualrent of the Money. It was replied for the Pursuer, that the foresaid Back-tack was taken by Wolmet stante matrimonio, and so was donatio inter virum & uxorem null in itself, nisi morte confirmetur, and was confirmed by Wolmets Death, but Revocked by the Pursuers Tack granted to his Children after the said Back-tack. It was answered for the Pursuers, that the reply ought to be repelled, because the Back-tack was no Donation, but a permutation, in so far as the Lady by her Contract of Marriage was Infeft in the half of the Lands of Wolmet; which Infeftment she renounced in favours of james Loch, at the taking of the Wodset, and in lieu thereof, she got this Back-tack, which therefore can be no Donation, which must be gra●u●tus without a cause onerous. It was replied by the Pursuers, that the duply is not relevant; for albeit it be not a pure Donation, yet quoad excessum the superplus of the benefit of the Back-tack above the benefit of the Contract of Marriage is gratitude, and a Donation, and the reason of the Law against Donations betwixt Man and Wife being mutuo amore se spolient, it holds in it, and it would be easy to allude the intent of that good Law, if Donations contrived under the way of permutation without any real equality were allowable. It was answered for the Defender, that the duply stands relevant, and the superplus of a permutation cannot be called a Donation more than the benefit of an advantageous Vendition: it is true, that if the Donation of the Back-tack had been ex intervallo, after the Lady's Renounciation, it would have been vincus Contractus. but two distinct Donations, or if the matter exchanged had been aliquid ejusdem specei, as an Annualrent of 500 merk with an Annualrent of a 1000 lib. the superplus would have been a Donation; or if the Lady had received a notable excess above the half, yea, above the third of what she quat, it might have been revocable by her Husband, she being reponed to her first Condition, by her Contract of Marriage, but here there is no such exorbitant excess, she having quat a certain Land Rend for the profit of a Coal, which is most uncertain, for the hail Land Rent would not pay the Back-tack, and it is now Wodset, and likewise she is personally liable for the Back-tack Duty. The Lords repelled the Defense, and Duply, in respect of the Reply and Triply; and found the Excess so considerable in this case, that it was as a Donation, and was revoked by the children's Tack, but found that before the Defender made payment of what should be found due by this account she should be reponed and put in statu quo prius, by her Contract of Marriage. It was further alleged for the Defender, absolvitor, because that albeit her Right by the Back-tack were revoked by the children's Tack, yet she is bona fide possessor, & fecit fructus consumptos suos, according to the Law of this Kingdom, and of most of other Nations necessarily introduced, for the good and quiet of the People, because as to and profits, they spend as they have, and therefore what they spend bona fide by a colourable Title; they are secured in that, albeit their Title be taken away; yet they shall not be called in question for what they have enjoyed bona fide before Sentence, or Citation. It was answered, for the Pursuers, that the Defense was not relevant in that case, where the Question is not of industrial fruit, but of natural fruit, such as Coal. Secondly, it is not relevant, unless it were cum titulo not ipso jure null, but here the Defenders Title being a Donation betwixt Man and Wife, is by the Civil Law, which herein we follow null in se nisi morte confirmetur. Thirdly, there must be bona fides which is not here; because it is instructed by a minute of a Contract produced within five months before the children's Tack, that the Lady consented to the providing of the Children by the profit of the Coal, and she cannot be presumed ignorant of so Domestic an affair in favour of her own Children done by her Husband, and she hath given up an Article in her account of the expense of Registrating the children's Tack; by herself, and so she must be presumed to have possessed as protutrix for her Children, and not to Defraud or Exclude them. It was answered, for the Defender, that the defence stands yet relevant, and the Law makes no difference betwixt Industrial and Natural Fruits, he who possesses Lands bona fide is no more comptable for the Grass that grows of itself, nor for the Corn that he labours for. 4. And Coal is an industrial Fruit, having as much pains and expense as Corns, and other industrial Fruit, and more uncertainty: as to the Title albeit be valid, yet sufficit coloratus vel●putativus titulus, and albeit in the ancient Roman Law, such Donations were null in se nisi confirmentur morte yet by the subsequent course of the Law, per ora●ionem Antoniuses they are declared valid in themselves, unless they be revoked, and therefore are not null, but Anullantur medio facto, and there are many nullities, which may consist with a colourable Title, ad hunc affectum lucrari Fructus consumptus, as if the nulitie be not ex defectu substantialium, but by defect of some solemnity, as the not Registration of a Seasine will not make it so null, but that possessor bona fide thereby will employ the Fruits, but if it want tradition of the symble, it will be null in se, but here such Donations have all there essentials, but they are only anullable by a subsequent fact; and as to the Evidence, that the Lady was in mala fide; they are no ways sufficient, by her consent that the Children should be provided with the Coal, was in contemplation of her eldest Sons Marriage, which took no effect, and the rest are meire presumptions, and dato she had known privata notitia non nocet, unless there had been some Intimation, Citation or Judicial Act to put her in mala fide; and especially private knowledge infers not mala fide, unless it had been anterior to her possession. The Pursuer answered to the last point, that albeit private knowledge in some cases would not infer mala fides among strangers, yet a mother knowing the right of her own Children, whereof one were in her womb, it puts her in mala fide, seeing she was thereby obliged to have sought Tutors, and preserved their Right. The Lords found the Evidences sufficient to prove the Defender to have been in mala fide, and therefore repelled this Defense also, and Ordained the Defender to comp for the intromission, but found that the charge ought not to be stated according as the profit of the Coal fell out to be, but as the profit thereof might be communibus annis, in regard she quat her certain Liferent of the Lands for an uncertain Coal, and therefore abated a fourth part of what the free Profit of the Coal was found to be by the last account. Alison Wardlaw contra Robert Grace. Eodem die. ALlison Wardlaw, as Executrix Creditrix confirmed to her Husband, and having confirmed the Rents due to him by Robert Grace Pursuer therefore. The said Robert alleged absolvitor, for a part of these Rents, because paid, which he offered to prove by the Defuncts Compt-book in the Pursuers hands, which Compt-book is written with the Defuncts own hand, and bears several Recepts paid by the Defender at several times. The Pursuer alleged, that the Compt-book cannot prove, because it wants a subscription, and Compt-books do only prove contra scribentem, in the case of Merchants, who keeped exact current Compt-books, which is a special privilege of theirs, and was never extended to any other case, nor to any other person, for a discharge subscribed before Witnesses would not liberat, if it were not delivered to the other Party, much less can a Compt-book, Secondly, Whatever it could work against the writer and his Heirs, yet not against Assigneys or Executors Creditors, who are in effect singular Successors for their own payment, otherways no assignee could be secure, but after the Assignation, the Cedent might write Receipts in his Book; but though he should grant a Holograph Discharge bearing date● before the Assignation, it would not prove against the assignee, The Defender answered, that the Compt-book was sufficient to prove liberation, being by a Judicious Person, though not a Merchant, for it could be done to no other intent, then to preserve the memory of the payment made, which though most ordinar amongst Merchants, is no special privilege of theirs, and albeit an undelivered discharge would not be sufficient, yet that being but unicum hirographum, requiring delivery, hath no effect without delivery, but a Compt-book contains many Writs, and requires no delivery, and albeit it should not prove against an Assigny. as neither would an holograph discharge, yet it is sufficient against an Executor Creditor, who can leave no Right till the Defunct be dead, and so their can be no hazard of Recepts posterior to their Right, and therefore against Creditor, Holograph discharge would prove. The Lords found that the alleadgeance of the Compt-book written with the Defuncts own hand sufficient to instruct payment, of the Articles mentioned therein, but seeing the Defender who paid was on life, and present, Ordained him to make faith that he truly paid accordingly. Primrose contra Duij. November 22. 1662. PRimrose having pursued a Reduction of a Decreet Arbitral betwixt him and Duij. The said Duij alleged homologation of the Decreet, by acceptance and payment of a Precept direct to him by Primrose, for payment of a part of the Sum contained in the Decreet; bearing expressly to be in satisfaction of a part of the Decreet, which was found relevant, and admitted to Duij's probation, for proving whereof, Duij produced the Precept acceptance and Discharge. It was alleged, that the Writs produced proved not to the homologation of the Decreet, as to the Article controverted, being the fraught of a Vessel; which Duij offered to prove, to have been discerned to have been within the third part of the just avail, and the Precept bare payment of five Dollars, discerned for the deterioration of the Tackling, by virtue of a promise. The Lords having considered the Decreet arbitral, and Precept, found it proved not the homologation, as to the point in Question, because the Decreet contained divers heads. The Precept bare to pay the deterioration of the Tackling, and bore expressly, that the same was uncon●raverse, and founded upon the Defenders promise. Sawer contra Rutherfoord November 25. 1662. SAwer having Wodset some Tenements in Edinburgh, to Rutherfoord, wherein there was a Clause irritant, bearing, that if Sawer did not put Rutherfoord in possession of the hail Tenement, the Reversion should expire, whereupon Rutherfoord obtained Declarator, of the expyring of the Reversion, because Sawer had detained a part of the Tenement, Sawer raised Suspension and Reduction of the Decreet of Declarator, upon these Reasons. First, The clause irritant was punctum legis Commissaria in reprobat in Law. Secondly, Because, by the Act of Parliament 1661. betwixt Debtor and Creditor, It was declared, that claules irritant● for not payment of the Sums in Wodsets since 1649. should not be effectual. The Defender answered to the First Reason, that by Act of Sederunt of the Lords, in Anno 1642. Clauses Irritant, and Failzies were declared effectual; and albeit the Lords ex gratia, are in use to suffer Parties failzeing to purge the failzie, by satisfying Damnage and Interest at the Bar; yet it could not now be received a Decreet in foro contradictorio. To the second Reason; It was Answered, that the said Act of Parliament was special, in relation to Clauses Irritant, for not payment of the Sum in the Wodset, which was stricti juris, and could not be extended to this wilful Failzie, in the Pursuers not removing, and possessing him, and for the Decreet it was in absence, albeit a Supplication was given in after the Decreet, desiring to be heard, whereupon he was not heard, but the answer to the Supplication bare, that his desire was only competent, by way of Susppension and Reduction. The Lords found the Decreet not to be in foro contradictorio; and therefore reponed the Pursuer to purge the Failzie, by possessing the Defender, and paying damnage; but found that the Clause in the Act of Parliament reached not to this Case, but whereas the Pursuer craved count and reckoning of the profits of the Wodset Tenement, by the said Act of Parliament bearing, That Improper Wodsets, where the granter of the Wodset, is in the hazard of Public Burden, etc. being since 1649. The Wodsetter should be comptable for the Profits more nor the Annualrents, since the Date of the Wodset. The Lords having considered the Woodset, by which the Wodsetter bore the public Burden, found the said Clause of the Act not extended, to make the Defender comptable since the Date of the Wodset, but only since the Date of the offer, to secure the Wodseter conform to the Act of Parliament, by virtue of an other Clauses of the said Act, Ordaining all Wodsetters to count for the superplus, and to possess the granter of the Wodset, he finding Caution for the Annualrents, or to restrict to his Annualrent. Lord Burghly contra john Syme. Eodem die. LOrd Burghly, and his Authors, being Infeft by the Abbot of Dumfermling, in the Coal-heugh of Keltie, with power to win Coals within the bounds of the Lands of Cocklaw and Losodie; pursues John Sime Heretor of Losodie, for declaring his Right to win Coal in Losodie. The Defender alleged absolvitor, because he and his Authors were Infeft in the Lands of Losodie, with the pertinents, above the Ground, and under the Ground, long before the Pursuers Authors Right. The Pursuer answered, that the Defenders Infeftment could not furnish him Right to the Coal of Losodie; because it bore no power to win Coal, but being only a Feu, which is a perpetual Location, it reaches not to Coal, not being expressed: especially, seeing in the Tenendas all the ordinary privileges were expressed, even of Peit and Turf, and Coal was omitted, and because the Defenders Chartor bore expressly a reservation to the Abbot, and his Successors, to win Coal in Losodie, for their own proper use allenarly. The Defender Answered, that the Right of the Land being Feu, with the Pertinents, did extend to Coal, albeit not expressed, seeing it was not wholly observed; according to craig's opinion, and for the Reservation, it did further clear the Defenders Right, that seeing the Abbot reserved only power to win Coal for his own use, exceptio firma● regulam in non exceptis, whereby the Defender had Right to the remanent of the Coal, neither could the exception extend to the Pursuer, but only to the Abbot, and give to his Successors only, to these Succeeding in the Abbacy, viz. the Earl of Dumfermling. The Pursuer answered, that the Defenders Infeftment was Confirmed long after the Pursuers, and that the Defenders Confirmation was not of the first Feu, but of a second Right, from the first Fevar, and by the Act of Parliament anent Feus', it was declared, that Feus' since March 1658. not confirmed by the King, before 1584. were ●ull, at least another Act of Parliament bore expressly, that where there were divers Feus' granted of the same thing, the first, Confirmation with the last Feu, should be preferable. The Lords found the Defense founded upon the Defenders Rights, relevant, and proven thereby; and therefore found the Pursuer had only right to win Coals in Losodie, for his own use, and found the Pursuer Successor to the Abbots by his Infefments of the said Privilege of winning Coal in Losodie, for his own use only, and found the said's Acts of Parliament, that by the late Act; the Right of the ancient Possessors, and kindly Tenants was reserved; so that if they did not Confirm before the Year 1584. They were only liable for a greater Feu-dutie, wherein the Pursuer not being Superior, had no interest, and found the Defenders Infeftment, that his Authors were kindly Tenants, and had a 19 year tack before the Feu. Patrick and Joseph Douglases contra Lindsay of Wormistoun. December 2. 1662. PAtrick and Joseph Douglases pursues Catharine Lindsay their Mother, as Executrix to their Father, for Compt and Payment of their share of the Executry, and also the said Lindsay of Wormistoun, as her Cautioner found in the Testament, who alleged no Process against him as Cautioner, till the Executrix herself were first discussed; Not only by Compt and Sentence, but also by apprizing of her Estate, poinding of her Movables, and if nothing can be condescended upon to poinded and Appryze, at least by Registrate Horning against her Person: This being but a subsidiary Action as to the Cautioner. The Lords Repelled the Alleadgeance, and sustained the Account, against both, superseding all Execution against the Cautioner, till the Executrix were discussed as aforesaid, which is both to the advantage of the Cautioner, who may concur with the Executor, who is only able to make the Account, and it is also to the advantage of the Pursuers, that the Cautioner resume not the Alleadgeances omitted by the Executor, and so make new Process, and new Probation, as oft falls out. Damn Marion Clerk. contra james Clerk of Pittencrieff. Eodem die. MR. Alexander Clerk, his Estate being Tailzied to his Heirs Male, he obliged his heirs of Line to Renunce, and Resign the same in favours of his Heirs Male; which Disposition he burdened with 20000. Pounds, to Dam Marion Clerk his only Daughter, and Heir of Line. The Clause bore 20000. Pounds to be paid to her out of the said's Lands and Tenement, whereupon she having obtained Decreet, James Clerk the Heir Male Suspends on this Reason, That the foresaid Clause did not personally oblige him, but was only a real burden upon the Lands and Tenement, which he was content should be affected therewith, and offered to Assign and Dispone so much of the Tenement as would satisfy the same. The Lords found the Suspender personally obliged, but only in so far as the value of the Tenement might extend; in respect the Clause in the Disposition mentioned the Sum to be paid, which imports a personal Obligement, and whereby the Suspender accepting the Disposition, is obliged to do Diligence, to have sold the Tenement and paid her therewith; and therefore found the Letters orderly proceeded, superseding Execution of the principal sum for a year, that medio tempore, he might do Diligence to sell and uplift. George Stevart contra Mr. James Nasmith. December 6. 1662. GEorge Stevart having obtained the Gift of the Escheat of one Hume, pursues a general Declarator, wherein compears Mr. James Nasmith, having a Declarator depending of the same Escheat, and alleged he ought to be preferred, having his Gift first past the Privy Seal, and had the first Citation thereupon. George Stevart answered, that his Gift was first passed in Exchequer, and the Composition paid in March, before the Rebel was Denunced on Mr. James Nasmiths Horning, whose Gift passed in Exchequer in June only, and alleged that he being postponed, through the negligence of the Keeper of the Register, whom he had oft desired to give him out his Gift, it must be esteemed as truly then done; and as to the Citation, both being now pursuing, he having done full Diligence, could not be postponed, and produced an Instrument taken against the Keeper of the Register, bearing him to have acknowledged, that the Gift had been sought from him formerly. The Lords having considered the Instrument, and that it was after Nasmiths' Gift was Sealed, although it mentioned former Requisitions, that was but the assertion of the Nottar, or of the Keeper of the Register, and therefore preferred Nasmiths' Gift. Andrew Clapertoun contra Lady Ednem. December 11. 1662. IN Anno 1621. Umquhile Sir john Edmistoun of Ednem, granted a Bond of Provision to jean Stirling of two Bolls of Victual, which he obliged himself to pay to her out of the Mains of Ednem, or any other of his Lands, by virtue thereof she was in Possession, out of the Mains of Ednem, till the year 1640. Andrew Clappertoun her Son and assignee, pursues the Lady Ednem, as Intrometter with the Rents of the Mains of Ednem, to pay the Pension since. The Defender alleged Absolvitor, because she stands Infeft in the Mains of Ednem, by virtue of her Liferent, and thereupon has possessed; and the Pursuers Pension is merely personal, and does not affect the Ground, nor is valid against singular Successors, and though conceived in the best way, can have no more effect, than an Assignation to Mails and Duties, which operats nothing against singular Successors, unless it had been an Ecclesiastical Pension, clothed with Possession, having Letters conform, which only is valid against singular Successors. The Lords found the Defense Relevant. john Oglvie contra Sir james Stewart. Eodem die. PAtrick Leslie, and several Cautioners, granted Bond to Sir james Stewart, who assigned the same to John Denholme, who used Execution, in his Cedents name, and took some of the Debtors with Caption, and being in the Messengers hands, this john Ogilvie assisted to the making of their escape, and thereupon being incarcerat by the Magistrates of Edinburgh, (which concourse of their Authority, by their Officers, as use is, in executing Captions within Edinburgh,) by aggrement; the said john Ogilvie paid 800 lib. to be free, and thereupon obtained Assignation from Sir james Stewart, to as much of the Bond, with warrandice from Sir james own deed, and excepting from the warrandice, an Assignation formerly made by Sir james, to john Denholme, john Ogilvie having pursued one of the Debtors, he was assoilzied, upon a discharge granted by Sir james Stewart, and john Denholme, and they both with one consent, whereupon john Ogilvie charged Sir james upon the Clause of Warrandice, who Suspended, and alleged, that the foresaid discharge was nothing contrair to his oblidgement of Warrandice; because, in the Warrandice, john Denholmes Assignation was excepted, and consequently all deeds done by john, as Assigny. Ita est, this discharge was granted by john Denholme, and would be valid, by john Denholme subscription; and there was no prejudice done to this Pursuer, by Sir james Stewarts subscription, seeing without it, the discharge would exclude him. The Charger answered, that john Denholme subscribed but as Contenter and was not mentioned in the discharge as assignee. The Suspender answered; that the discharge being with his consent, was as effectual, as if he had been principal Party, and each of them discharged with others consent. The Lords found the Reason of the Suspension relevant. George Loggie. contra Peter Loggie. Eodem die. GEorge Loggie having borrowed 800 merk from Peter Loggie his Brother, gave a Wodset therefore. The said George being an old man, without hope of Children, the Reversion was only granted to George, and the Heirs of his own Body, and his Liferent of the Wodset Lands was Reserved, without mentioning of any Back-tack Duty, or Annualrent, George having used an Order and Consigned the 800. merk, obtained Declarator, Peter Suspends, and alleadges no Redemption ought to have been, till the Annualrent were consigned with the Principal. The Charger answered, that the Contract of Wodset bore no Annualrent. The Suspender answered, that albeit it did not, yet he having lent his Money in these Terms, in hopes of Succession, and his Brother having now Married a young Wife, he ought not to take advantage of him, seeing the Annualrent is due, in equity, for the profit of the Money. The Lords, in respect of the Tenor of the Contract of Wodset, found the Letters orderly proceeded, without any Annualrent, and that in this case it could not be due, without 〈◊〉 had been so pactioned and agreed. Lord Balmirino contra Town of Edinburgh. December 18. THe Lord Balmirino pursues the Town of Edinburgh, for Spoliation of the Tynds of the Aikers of Restalrige, whereof the Towns Hospital had a Tack, which being expired, Inhibition was used yearly, for several years. The Defender alleged absolvitor, from any Spuilzie of Teinds, because, since the KING'S Decreet Arbitral, and the Fyfteen and Seventeen Acts of Parliament, 1633. Spuilzie of Teinds is taken away, especially by the said Fyfteen Act. The Parliament Ratifies a former deed of the King's, Declaring, every Heretor shall have the drawing of his own Teynd, and the benefit of a Valuation; and in the mean time, so long as the Teynds are not Valued, the Heretors are only liable for the fifth of the Rent, in name of Teynd, Secondly, By a Contract betwixt the Town and the Pursuers Father, of the Aikers of Restal●ige lyand runrig with these, are set for half a bowl beer the Aiker, which is by the Contract, Declared to be the just and true Rate, and Value thereof, which by necestar consequence declares the Value of the Teynds now in Question, being runrig with the other. The Pursuer answered to the first, That the foresaid Act of Parliament was only meaned in relation to the KING'S Annuity, and albeit the foresaid Clause therein be general, yet it is clear by the 17. Act, which is posterior, that the first part shall be the Teynd, after the Valuation duly led, which hath been constantly allowed, by Custom of the Commission of Plantations, which gave only warrant to Heretors to lead their own Teynd during the Dependence of a Valuation, and therefore Spuilzie of Teynds have been frequently sustained since the saids Acts: As to the second, whatever be the way of conception of the Tack, for the other Aikers not in question be, though it did acknowledge the same to be the just Value thereof, yet it cannot extend to other Teynds; seeing where the Parties agree in the matter, they are not solicitous for the conception of the words, which cannot be drawn in consequence to any other matter. The Lords repelled both these Defences, but declared they would not sustain Spuilzie as to the Oath in Litem, but admitted the Value of the Teynd to the Pursuers probation. Reserving to themselves the modification of the prices, if they should be exorbitantly proven, but not of the quantaties. Lady Tursapie contra Laird of Tursapie. December 20. 1662. THE Lady Tursapie pursues the Laird of Tursapie, who succeeded as Heir to his Brother, her Husband, for the Aliment of the Defuncts Family, till the next Term, after his Death, and specially for the Alinent, and to the Pursuers Son, Heir appearand to his Father. The Defender alleged absolvitor, because the Lybel was no ways relevant against him, as Heir, but by the constant custom, the entertainment of the Defuncts Families, was ever a burden on their Movables, and upon their Executry. The Pursuer answered, though it was ordinarily retained off the Movables, yet the Heir was also liable, seeing the Defunct was obliged to entertain his Servants and Children, at least to a Term, but much more when there were no Movables, or where the Defunct was Rebel, and the Donatar intrometted. The Defender answered, that it was novum to conveen an Heir on this ground, and that the Alledgiance of there being no Movables held not here; neither is it relevant that the Movables were gifted, unless it had been declared before the Defunct's Death and Possession obtained, otherways the Relict ought to have Alimented the Family out of the Movables, which would have liberat her from the Donatar, and is yet ground against the Donatars. The Pursuer answered, she could not retain, because the Donatar with Concourse of the Defender did put her brevi manu from the Defunct's House and all the Movables. The Lords having amongst themselves considered this Process, did put difference between the Aliment of the Appearant Heir, and the rest of the Family: As to the Heir they found, that albeit he was never Infeft, yet as Appearant Heir, he had Right to the Mails and Duties from his Father's Death, until his own Death, though the Terms had been to run before he was born, being in utero, and that the Defender, in so far as meddling with the Rents, was liable for the Appearant Heirs Aliment; but for the rest of the Family, the Lords superseded to give answer till diligence were done against the Donatar, or other Intrometters with the Movables. Thomas Dumbar of Muchrome contra The Vassals of the Barony of Muchrome. Eodem die. THomas Dumbar of Muchrome, pursues Reduction and Improbation against the Vassals of the Barony of Mochrume, wherein all the Terms being run, reserving Defences. Now at the last Term it was alleged, for Hay of Arriolland, no Certification contra non producta against him, because he had produced a Precept of clare constat from the Pursuers Father as Heir, to whom he pursues. Secondly, It was alleged that he had produced sufficiently to exclude the Pursuers Right produced, and so till his Rights produced were discussed and taken away, there could be no Certification contra non producta. The Pursuer answered to the first, that the Precept of clare constat was but in obedience of a Precept out of the Chancellary. As to the Ancient Rights produced, if the Defender would rest thereon, he needed not stand that Certification should be granted against any others not produced, seeing these produced are sufficient; but if the Certification should be thus stopped, the effect of all Improbations and Non-entries should be marred by dropping in new Writs from time to time, and still disputing thereon, and so dispute the Reasons before the Production were closed, at least the Defender ought to allege that the Writs produced are sufficient, and declare he will make use of no further in this Process. The Lords repelled the first Alleadgance on the Precept of clare constat being for obedience, but found the second Alleadgance relevant hoc ordine, and ordained the Defender to condescend upon his Rights by way of Defence to the Pursuer, to answer thereto presently. Colonel john Fullertoun contra Viscount of Kingstoun. january 8. 1663. Colonel john Fullertoun having charged the Viscount of Kingstoun, upon a Bond of borrowed Money, he suspends on these Reasons. That the Colonel granted Assignation to Umquile Sir Alexander Dowglas to a Sum dew by Sir William Thomson; and notwithstanding of the Assignation he uplifted the Sum himself, at least his Brother by his order, whereupon the Lady Kingstoun; Daughter and Heir to the said Sir Alexander, having Licence to pursue, hath pursued the Colonel upon the Warrandice for Re-payment; which Action being seen and returned, and ready to be discussed, the Suspender craves Compensation thereon. The Charger answered, That the reason of Compensation is not relevant, because it is not liquid, the foresaid Sum not being confirmed by any Executor, nor Sentence thereupon; neither can it be instantly verified, because it must abide Probation, that the Colonel or his Brother by his order uplifted the Sum, and there being only a licence to pursue, the Debt cannot be established till a Confirmation. Secondly, Albeit the Compensation were relievable, yet the Reason ought to be repelled; because, that any such Assignation was granted, it was in trust, to the Colonels own behoof, as is instructed by a missive Letter to the Charger produced. It was answered for the Suspender, that the Answers founded upon the missive Letter ought to be repelled, because it was null, neither being Holograph, nor having Witnesses. Secondly, It is most suspect, being written upon old blacked Paper. The Charger answered, that Letters amongst merchand's, though not Holograph, are sustained, and aught much more among Soldiers, especially between the Charger and Sir Alexander, who then was his Lieutenant Colonel; which is the more clear, that there was never a question of it these 20 years, neither was it contained in the Inventar of Sir Alexander's Papers, though there were insert Papers of less moment, but that it was gotten from one White, for 40. or 50. Pound. The Lords repelled the Compensation, as not being liquid, and found the Letters orderly proceeded, superseding Execution till Whitsunday 1663. But upon the other Process against the Charger, The Lords considering the matter was old and dubious, before Answer, they ordained Witnesses to be examined hinc inde, upon all Adminicles that could be adduced for, or against the Trust. Lady Otter contra Laird of Otter. Eodem die. THe Umquhile Laird of Otter, by his Contract of Marriage, having provided his Estate to his Heir Male; provided 5000 Marks to his eldest Heir Female, when she should be capable of Marriage; and an occasion offered, whereupon the said Heir Female her Mother pursues the Heir Male for payment of the Sum, and for payment of an Aliment to the Heir Female during the time she hath been with her Mother, and in time coming, till the provision be paid. The Defender alleged the Libel is no way relevant, for Aliment, he not being obliged by the Contract, for any Aliment, but only for the Sum, at such a time; neither is there any Annualrent due for the Provision, till the Term of payment. Yet the Lords found, that albeit that was no Annualrent, nor provision for Aliment, and that de jure Annualrent is but due, ex pacto, they would in this case allow an Aliment, far within the Annualrent, because it was all that the Daughters got for a very considerable Estate, which was but a very small provision. Patrick nicol contra Sir Alexander Hope. Eodem die. PAtrick nicol pursues a Declarator of Property of his Lands, of Grantoun, and that he had good Right thereto, conform to the Bounds libeled. It was alleged, for Sir Alexander Hope. First, All Parttes having interest are not called, this being an Action, that in effect terminateth upon a Perambulation, or Determining of the Marches. It is a Real Action, and there is necessity to call the Heirs of Sir john Hope, who died last, vest and seized, in the other adjacent Lands. The Pursuer answered, that he offered him to prove, that Sir john had Disponed in favour of Sir Alexander, and resigned in his time. It was answered for Sir Alexander, that Sir john was not Denuded; seeing no Infeftment followed, and the Disposition is but an incomplete Personal Right, so that some having the Real Right must be called. The Lords repelled the Defense, in respect of the Reply. It was further alleged for Sir Alexander, that he had builded a park dyke upon a part of the Ground in Question, before the Pursuers Right, sciente & astante domino: the former Heretor having never opposed, nor contradicted, which must necessarily infer his consent. The Pursuer answered, that it was not relevant, to take away any part of the Property, upon such a presumptive consent, neither was he obliged to disassent, seeing he knew that which was builded upon his Ground, would become his own in edificatum solo cedit. The Lords repelled this Defense also, but they thought that the taciturnity might operat this much, that Sir Alexander might remove the materials of his Wall, or get from Patrick Nicol quantum partem est lucratus, by the building of the Wall. Murray of Merstoun contra Thomas Hunterr. Eodem die. MVrray of Merstoun pursues Thomas Hunter for a Spulzie of Malt, who alleged, that as to that member of the Lybel of the Spulzie of the Malt, by the Defenders hunding out, or command. It is only relevant scripto vel juramento. The Pursuer answered, that she qualified the Probation thus, That the Defender entrusted a Messenger, or Officer, to execute a Precept of poinding, by delivering him the Precept, and therefore the Precept, with the execution thereupon is sufficient Probation. The Defender answered, that the same is not sufficient; because the Officer execute the Precept extra territorium, whereby it became a Spuilzie, which ought not to be imputed to the Defender, unless it were offered to be proven, that he ordained the Officer to poinded this Malt without the Jurisdiction, and that only scripto vel juramento. The Pursuer answered, that as the giving of a Precept of Season, is a sufficient warrant, without any other Procuratry, whatever the effect of the Season be, so must the delivery of the Precept of poinding be sufficient to instruct the warrant, or command to Poynd, wherever the poinding was execute, and the user of the poinding should be liable to the deeds done by the person he entrusts; Especially, seeing not only the Messenger was sent, but other Servants, and Messengers employed by the user of the poinding. The Lords found the giving of the Precept of poinding to the Messenger, and his unwarrantable poinding Extra territorium not sufficient only, but found it relevant, to prove, by the Messenger, and Defenders Servants employed by him, their Oaths, that they were commanded to poinded this Malt, or other goods in this place, being Extra territorium. Skeen contra Lumsdean. Eodem die. SKeen having charged Alexander Lumsdean, for payment of a Bond, for which he was Cautioner for Mr. Thomas Lumsdean his Brother, Alexander Suspends on this Reason; that the Bond was granted for a Bill of Exchange, drawn by one Dutch man, upon another to be paid to Skeen, or his Order, which Bill, Skeen ordained to be paid to Anna Balty Spouse to Mr. Thomas Lumsdean; for which this Bond was granted: Ita est the saids Bills of Exchange were not paid, but protested; and is assigned by Mr. Thomas Lumsdean, and his Spouse, to the Suspender; at least, if any payment was made to Mr. Thomas Lumsdean the Cedent, it was after the Assignation to Alexander Lumsdean the Suspender, and intimation thereof. It was answered, for the Charger, that the Reason ought to be repelled, because he offered him to prove, by Mr. Thomas Lumsdean, at that time Factor at Campheir his Compt-book; that albeit the Bills was once protested, yet they were paid before Assignation, or Intimation. The Lords before answer, having granted several Commissions to the Magistrates, and Conservitor at Campheir, to view and examine the Compt-book which was at Campheir. They reported, that in such a Page of the Book there was three Articles of Receipt, in part of payment of the Bills, after which Pages the Book was containued, and several Counts written therein, and that it was Authentic, and Unvitiat, and all written with the hand of john Muire Mr. Thomas Stepson, who was his Book-keeper, and that they had been a long time since out of Mr. Thomas hands, about the time he Bankerupted, and that they had examined upon Oath, him who drew the Bill, and him upon whom the Bill was drawn, both, who had sworn payment was made, the question was, whether Mr. Thomas Compt-book could prove against Mr Thomas his assignee. It was alleged, It could not, seeing it had no more Effect than as Holograph Discharge, which might be made up after the Assignation, and therefore proves not against the assignee. It was answered, that though a Holograph Discharge will not prove alone, yet if by other Adminicles, Writs or Witnesses, it appears that the Date is true, at least is prior to the Assignation, or Intimation, it will be sufficient against the assignee, so the Adminicles here are pregnant and strong, to prove the time of payment contained in the Compt-Book. The Lords found the Compt-Book and Adminicles sufficient here against the assignee, especially considering, that the Cedent was his Brother, and that it was not presumable, that he would do any Deed, in making up these Receipts in his Compt-Book, in prejudice of his Brother. Thomas Beg contra Sir Thomas Nicolson. january 14. 1663. THomas Beg charges Sir Thomas Nicolson of Carnock upon his Bond of 4000 Mark; he Suspends on this Reason, the Charger is only Liferenter, and hath no right to lift the Sum, because the Bond is conceived thus, to Thomas Beg and his Spouse, the longest Liver of them two in Conjunct-fee, and to the Bairns procreate betwixt them, which failzing, to two Bairns of a former Marriage, Thomas and Margaret Begs, and which Bond contains a Precept of Seasife, for Infefting the said Thomas and his Spouse, and the Bairns of the Marriage, which failzing, the said Thomas and Margaret, Bairns of the former Marriage, according to which there was a Seasine taken, not only to the two Spouses, but to the two Bairns, nominatim, who therefore are Feears. The Lords repelled the Reason; because having considered the Bond, and Infeftment conceived as aforesaid: they found the Husband, by the Conjunct-fee to be Feear, and the Bairns of the Marriage to be destinat Heirs of Provision; and the said Margaret and Thomas, to be only substitue as Heirs of Tailzie, failzing the Bairns of the Marriage; and that therefore, if the Father had died Infeft in the Annualrent, if there had been Bairns of the Marriage, they, Male and Female, jointly and equally behoved to be Served, specially as Heirs of Provision to their Father, and so Infeft, and failzing Bairns, Thomas and Margaret, behoved also to be so served and Infeft: for albeit there needs no general Service, where Persons are nominatim substitute in a personal Right, requiring no Infeftment; yet where there is Infeftment, there must be a special Service. And therefore found the Father, Feear might uplift the Money, or might change the Destination thereof, as he pleased; and albeit Thomas and Margaret were Infeft nominatim, yet they found the Seasine was without Warrant, bearing only to Infeft them, in case of failzie of Heirs of the Marriage, and the Infeftment could only be granted to the Conjunct-feears. john Scot contra Montgomery. Eodem die. JOhn Scot, as assignee to certain Bonds granted by Montgomery to Andrew Robertson, charges Montgomery, who Suspends upon this Reason, that he instantly instructs by a Back-bond, that the Bonds is for the price of certain Lands, and by the Back-bond, it is provided, that these Sums should not be paid, till the Writs of the Lands were delivered, and payment made of some Duties thereof. The Lords found the Back-bond, being before the Assingation relevant, against the assignee, albeit the Bonds were simple, bearing borrowed Money. Greenlaw contra 〈…〉 january 15. 1663. GReenlaw being pursued by 〈…〉 for Spuilzie of two Mares, in May 1654. alleged Absolvitor, because he was then in Arms for the King; and took these Mares for the Service, and had warrant from his Officers; which he offered him to prove by his Pass, and Capitulation produced, expressly including him, with his Officers, who Capitulate. The Pursuer answered, the Mares were great with Foal, and altogether unfit for the Service; and if they were specially commanded to be taken, it might be instructed by Writ. The Lords considering this Capitulation, being about that same time, found, that albeit there had been no Order, yet the Defender being then in Arms, acting modo militari, the Act of Indemnity freed him, and would not give occasion to such Process, and therefore Assoilzied. Tenants of Kilchattan contra Lady Kilchattan, Major Campbel, and bailie Hamilton. january 16. 1663. OLd Kilchattan, in his Sons Contract of Marriage, Dispons the Lands of Kilchattan to his Son young Kilchattan, and his Lady in Conjunct-fee; whereupon there was Infeftment taken, in favours of the Husband and Wife, to be holden from the Disponer, and of the King; but the same was not confirmed till the year 1662. At which time, Major Campbel procures a Confirmation of the Conjunct-Infeftment, and Seasine thereon; which Confirmation hath a Clause insert; bearing the same to be only in so far as may confirm and establish the Right of an Annualrent granted by young Kilchattan to the Major: and thereafter the Lady Confirms the Conjunct-Infeftment simply. In Anno 1654. young Kilchattan Infefts Major Campbel in an Annulrent out of the Lands: thereafter Heugh Hamilton apprised from young Kilchattan, and was Infeft upon this apprizing about that time. It was alleged by the Lady, that she ought to be pre-ferred, because she being joined with her Husband in the Conjunct-Fee, and thereupon Infeft; it is sufficient to give her the Right of Liferent, which is but a personal servitude. It was answered, first, That Major Campbel having procured the first Confirmation, which is expressly limit unto his Annualrent, must be preferred to the Lady, and that such limitations might lawfully be, because it being free for the Superior to Confirm, or not, or to Confirm a part, and not the rest, he might Confirm it to what effect he pleased; and his Confirmation being extended no further, the Lady cannot crave preference, because she is now only Infeft in the Lands in question in Warrandice, that her principal Lands shall be worth so much, and it is not yet declared in what they are defective. The Lords, in respect the Ladies Right was not Confirmed, preferred the Major as to his Annualrents. It was alleged for Heugh Hamiltoun, that he must be preferred to the Annualrenter, because he being publicly Infeft upon his apprising, before the Infeftment of Annualrent, at least before it was clad with Possession, whereby it became a valid Right, the King's Charter upon the apprising, is virtually and equivalently a Confirmation of Kilchattans Infeftment, especially in favours of a Creditor, who could not perfectly know his Debtors condition; which if he had known; and given in expressly a Confirmation to the King, it would have been accepted, seeing the King respects none, and therefore the King's granting of a Charter upon the apprising must be interpret equivalent. The Lords found that the Charter upon the apprising was not equivalent to a Confirmation. It was further alleged for Heugh Hamiltoun, that the Confirmation obtained by Major Campbel, behoved to accresce to him; who had the first complete Right, by public Infeftment upon the apprising, and albeit that base Infeftment upon the Annualrent granted by Kilchattan to Major Campbel, was prior, yet it was null till it was clad with Possession; and therefore if it was not clad with Possession before Heugh Hamiltouns Infeftment, the Confirmation must accresce to Heugh Hamiltouns Infeftment. The Lords found that the base Infeftment was not null for want of Possession, albeit it might be excluded by a public Infeftment before Possession, but found that Heugh Hamiltouns public Infeftment was not complete in itself, because it put Heugh Hamiltoun only in the place of young Kilchattan, who had a null Right till Confirmation: Which Confirmation they found did accresce to the base Infeftment, being clad with Possession at any time before the Confirmation, for at that time it became a complete Right; at which time the apprizing and Infeftment was no complete Right, and therefore the Confirmation, albeit it had not had this restriction accresced to the base Infeftment, as being the first complete Right in suo genere. Earl of Roxburgh contra a Minister. Eodem Die. IN a review of a Decreet at the Instance of a Minister against the Earl of Roxburgh; the point in question was, whether or no the Judges for the time, or now the Lords of Session, were competent to discuss this Nullity, of a Decreet of Locality, by the Commission for Plantation, in that it called the Earls Lands expressly designed, to be his Lands, and he was not called. The Lords found, that albeit they would not decide upon the Nullities of the Decreets of the Commission competent by way of Reduction, which behoved to be before the Commission itself; yet this Nullity being palpable and competent by Exception, or Suspension, that they might thereupon Suspend simpliciter, the Decreet of the Commission. Earl of Errol contra Parochioners of Ury. Eodem die. THe Earl of Roxburgh pursues the Heretors for the Teind, from 1648. till 1662. as he who had Right during that time, by the Act of Parliament, 1649. Establishing the Right of the Teinds in the Patron, in leu of their Patronage; and also as he who had Tack thereof, and had since possessed be tacit relocation. The Defender alleged, as to the first Title, that the Parliament, 1649. was not only annulled, but declared void, ab initio, as a meeting without any Authority, as to the tacit Relocation, it could not extend any further than so many years as the Beneficed Person could set. It was answered for the Earl, that the Rescissory Act could not prejudge him, as to any thing anterior to its date, unless it had born expressly to annul as to bygones. The Lords found the Lybel, and Reply Relevant, as to bygones before the Act, albeit there be no salvo in that Act, as there is in the Rescissory Acts of the remanent Parliaments, and found that the Pursuer had Right, per tacitam relocationem, till he was interrupted, even for years which the Beneficed Person could not validly set, as a Liferenters Tack will be validly set, as a Liferenters Tack will be valide against the Feet, per tacitam relocationem, after her Death, though she could grant no Tack validly after her Death. Relict of Mr. Thomas Swintoun Minister of Ednems contra Laird of Wedderburn. Eodem die. THe Minister of Ednems' Relict Insisting for the reparation of the Manss. It was alleged for the Heretors, that those who have Right to the Teinds as Tacks-men, or otherways, aught to bear a proportion, of the reparation. The Lords found that albeit these who have right to the Teinds, were accustomed to Repair the of Kirks, and the Heretors the rest of the Kirk; yet there was neither Law nor Custom alleged, the Teinds could be burdened with any part of the Reparation. Sword contra Sword. Eodem die. ONe Sword as heir Served and Retoured, to Bailzie Sword of Saint Andrews, pursues for Intromission with the Movable Heirship, for delivery of the same, and produces his Service done at Saint Andrews, and Retoured, whereby he is Served as Oye to the Defunct Bailzie, his Father Brother; compears another Party; who is likewise Served Heir to that same Bailzie, at Edinburgh, and produces his Service Retoured, by which he is served Heir to Bailzie Sword, as his Father Brother Son, whereupon he hath raised a Reduction in Latin, under the Quarter-seal of the other Service, which was prior, and alleadges, that he being in a nearer degree of Blood then the other, in so far as he is a Father Brother Son, and the other Service bears him to be but a Father Brother's Oye. The Lords having considered both the Retoures, and that they were not contradictory, inferring manifest Error of the Assize, because it was sufficient for the Assize to Serve the Father Brother's Oye, if they knew of no nearer Degree; And also because the Defunct Bailzie might have had two Father Brothers, one elder than his Father. and the other younger, and thereby two Heirs, one of Line and another of Conquest, which not being clear by the Retoures; the Lords will not prefer the first Retour as standing, but would hear the Parties upon the Reduction. Mr. James Stuart contra Mr. John Spruile. january 21. 1663. MR. james Stuart and Robert Stuart Bailzie of Lithgow, as Curator to him, as a Furious Person, or Idiot, by Gift of the Exchequer, pursues Mr. john Spruile for Sums of Money due to Mr. james. It was alleged no Process at the Instance of Robert Stuart, as Curator, because by Law, the Tutors or Curators of Furious Persons, are conform to the Act of Parliament to be Cognosced by an Inquest, whether the Person be Furious, and who is his nearest Agnat, of the Father's side, past twenty five. The Lords found Process, Robert Stuart finding Caution to make forth coming, and declared it should be but prejudice to the nearest Agnat, to Serve according to the said Act of Parliament, for they thought, that as the Lords might name Curators, ad litem, in the interim, so might the King, and that the Exchequer was accustomed to do. William Zeoman contra Mr. Patrick Oliphant. january 22. 1663. IN a Competition betwixt Zeoman and Oliphant, anent the Estate of Sir james Oliphant, who having killed his Mother, was pursued Criminally therefore, before the Justice, and being Charged to underly the Law, for the said Crime, under the pain of Rebellion, he compeared not, and the Act of Adjournal was declared Fugitive, and his movable Goods ordained to be Inbrought: The Criminal Libel proceeded, both upon the Act of Parliament against Parricide; and also upon the Act of Parliament, declaring that kill of Persons under assurance of Trust, to be Treasonable; Hereupon the King granted a Gift of Sir james Forefaulture to Sir Patrick Oliphant, who thereupon was Infeft. It was alleged for William Zeoman, who had Right by apprizing, that there could be no respect to the Gift of Forefaulture, because Sir James was never Forefault, but only declared Fugitive, and Denunced as said is; and that any Doom of Forefaulture had been pronounced, the Crime behoved to have been proven before an Assize, else there could be no Forefaulture; neither could the Donator possess, medio tempore, till the Crime were yet put to the Trial of an Assize, because Sir james is dead. The Lords found that the Gift of Forfaultuee could not be effectual for the Reason's foresaid, and found that the Act against Parricide, could be no foundation of a Gift, because it only excluded the Murderer, and his Descendants, to succeed to the Person Murdered, by declaring expressly that the Murderers Collaterals should succeed, and so there was no place for the King. And as for the other Act of Murder under Trust, they found that there being no probation, it could work nothing, and there is no doubt, but though there had been Probation, that Act of Murder under Trust, doth not directly quadrat to this Case, upon that natural Trust betwixt Parents and Children, but only to Trust given by express Paction, or otherwise it could evacuat the benefit of the foresaid other Act anent Parricide, and would prefer the Fisk to the Collaterals of the Murderer, if he had done no wrong, contrair to the said Act, anent Parricide, which is not derogat by the other. Wallace contra Edgar. Eodem die. IAmes Wallace as assignee by james Scot, to a Decreet obtained against john Edgar in Drumfreis, having Charged thereupon, Edgar Suspends, and alleadges Compensation, upon Debts due by Scot the Cedent to the Suspender, before the Intimation of his Assignation; and therefore according to the ordinary Course, Debts due by the Cedent, before Intimation, are Relevant against the assignee, and condescends upon several Bonds and Decreets against the Cedent, assigned to the Suspender, before the Chargers Intimation. The Suspender answered, that albeit any Debt due by the Cedent to the Debtor, before Intimation, will be relevant to compense against the assignee; yet that will not extend to Sums assigned to the Debtor, before the Chargers Assignation, unless that Assignation had been Intimat, before the Chargers Intimation, because the Assignation only doth not Constitute the Suspenders Creditor, or the Cedent Debtor, until it be Intimat; and so there being no debiium and Creditum, before the Intimation, there can be no Compensation, which is contributio debiti & crediti. The Suspender answered, that the Assignation Constitute the Right, and the creditum, but the Intimation was only necessary in case of Competition of other Assigneys, and he needed not Intimat to Scot; quia intus habet, in respect Scot was owing him as much. The Lords found no Compensation, unless the Suspender had Intimat his Assignation to the Cedent, and so had Constitute him his Debtor, before the Cedent was denuded, by the Chargers Assignation and Intimation. Children of Netherlie contra The Heir. january 24. 1663. THe Children of umquhil Edgar of Netherlie, alleging that their Father left to his Heir a competent Estate, and that he died before any Provision or Aliment appointed to them, and that the Heirs Tutor refused to Aliment them: Their Mother being also dead, therefore craved an Aliment to be modified, there being no compearence in the contrair. The Lords found the Brother, as being Heir to the Father, of a competent Estate, liable to Aliment the Children being wholly unprovided, but determined neither the time, nor the quantity, till the Condition of the Estate were Instructed. Bain contra Laird of Streichan. Eodem die. THe Laird of Streichan being pursued by Bain, proponed a Reason of Compensation, and produced a Writ for instructing thereof, being called at the advising of the Cause. The Lords suffered him to Reform the Alleadgence, seeing he instructed it instantly, by another Writ than was formerly produced. Sydeserf of Ruchlaw contra Wood Eodem die. THere being mutual Contraventions betwixt Ruchlaw and Wood, both relating to a peace of Ground, upon the Marches of their Lands, which Ruchlaw alleged to be his Property, and that Wood had contraveened by needful Pasturage thereon, himself being present, when he was desired to remove his Goods off the same: and the other alleging Commonty, and that Ruchlaw had contraveened by wilful debarring him from his Commonty. The Lords before Answer, granted Commission to Examine Witnesses, hinc inde, concerning their Possession of Property, and Commonty; and having advised the Testimonies, found that the Matter was not so clear as to be the ground of a Contravention; and therefore assoilzied both Parties, but declared it should be free to them both, or either of them to turn their Libel into a Molestation, and to reform the same accordingly thereanent. They granted again Commission before answer, to Examine Witnesses, hinc inde, anent either's Possession, and the endurance thereof, which was not cleared by the former Commission. Robert Grahame contra john Rosse. Eodem die. IN a Competition betwixt Grahame and Rosse, and a third Party, all Compryzers, the posterior Appryzers craving to come in pari passu, by virtue of the late Act of Parliament. It was alleged for Grahame, who had obtained Infeftment, that he ought to be preferred; because albeit his apprizing was since january 1652. yet he had been in Possession thereby seven years, and so had the benefit of a Possessory Judgement. This was Repelled, because the Act of Parliament was but late, before which there could be no ground to come in pari passu, and there was no exception in it, of these who had Possessed or not Possessed, before the Act. Secondly, Grahame further alleged, that he ought to be preferred; because he was Infeft in an Annualrent out of the Lands, which is a real Right excepted by the Act of Parliament. Thirdly, That Rosse could not come in, because Rosses apprizing was before 1652. and the Act of Parliament brings in only apprizing since December, 1652. Fourthly, None of the Parties could come in with him, until first they paid him their proportionable part of the Composition, and Expenses bestowed out by him, conform to the Act. The Lords found that albeit Grahames apprizing was not upon the Infeftment of Annualrent, but upon the personal obligement for the Principal, and bygone Annualrents, upon Requisitions, which was a passing from the Infeftment of Annualrent; yet that he might, pro loco & tempore, pass from his apprizing, and might be preferred to his bygone Annualrents, upon his Infeftment of Annualrent; in this Case of Composition, albeit there was yet no apprizing upon the Infeftment of Annualrent; and found that john Rosses apprizing before 1652. was not excluded, but behoved to be in the same Case, as if it had been after: But found that the other Appryzers before they came in, behoved to satisfy the Composition proportionally by the Tenor of the Act. Sir Robert Montgomerie of Skelmarlie contra john Broun. january 28. 1663. SIr Robert Montgomery pursues john Broun, for perfecting a Bargain agreed upon in word betwixt them, where Sir Rob●rt was to Dispone the Right of an apprizing of the Lands of Fordel, for which John was to pay 10000 marks; After which verbal agreement, john Broun write a Letter to Sir Robert, in relation to the Bargain, bearing, that he was afraid not to get the Money at the time agreed upon; and then bearing the said words, all I can say now is, I am not to pass from what was spoken betwixt you and me. The Defender alleged, that this being a Communing in word, anent an heritable Right, est locus penetentiae, there being yet neither Minute, Disposition, or other Security, Subscribed. And as to the Letter, it was not to be respected, because it was no Minute, and mentionated, that the Writer was not fully resolved, that he would be able to provide the Money, and keep the Bargain; as for the Word Signifying, that he would not pass therefrom, it did but express his present resolution, and was not Obligatory; and though they were, so long as Sir Robert might resile, notwithstanding of the Letter, John Broun might also resile. It was answered for the Pursuer, that his Libel stood most Relevant, because there is only locus penitentiae, when there is no Writ; but if any Party oblige himself to stand to a former Communing, his own voluntar Deed, has unquestionably obliged him, unless the other did resile, and the Obligation is as valid in a missive Letter, as the most solemn Bond: Neither are words, I am not to pass, to be interpret, to signify a Resolution, but being in materia obligatoria, must signify an Obligation, otherwise all Minute's must be void, and are ordinarily expressed in such Terms, as are to do, or shall do such things: and whereas there was several Practicques, produced, finding locum penitentiae in such Cases, though they were Earnest, and though there were Possession, and a Letter whereby the Resiler designed another Party by the Lands Disponed, yet there was no Obligation in Writ, as in this Letter: and likewise john Brown paid 3000. marks, of the price, albeit he took a Bond of borrowed Money, till things were perfected, and got the Keys of the Houses. The Lords found there was yet place to Resile, and therefore assoilzied. Margaret Stevenson and her Son contra Ker and others. Eodem die. MArgaret Stevenson pursues Margaret Ker, as vicious Intromissatrix with the Goods of her Husband, for payment of a Debt, wherein he was Cautioner. She alleged absolvitor, because her jutromission was purged, in so far as she had Confirmed herself Executrix Creditrix. It was answered by the Pursuer, non relevat, unless before intenting of the Cause. The Defender answered, it was sufficient, being within year and day, after the Defunct's Death. Which the Lords found Relevant. Lord Balnagoun contra M. Thomas Mckenzie. Eodem die. BAlnagoun as Donator to the Escheat of his Father, pursues Mr, Thomas Mckenzie for the price of some Lands, sold to him by his Father, and for the annualrents since. It was answered for the Defender, that there was no Annualrent due by the Minute; and albeit it was the price of Land, yet Balnagoun had never made Mr. Thomas a Right to this day, but had forced him to be at a huge Expenses and Plea, and so was in mora, that the price was not paid: and albeit●he did possess the Lands, it was by redeeming Wodsets thereupon, contained in the Minute. The Lords found Mr. Thomas liable either for the Annualrent, or for the superplus of the Rents of the Land, more than paid the Annualrent. In this Process it was found that the Probation of a Tenor, before an Inferior judge was null. Margaret Edgar contra john Murray. january 29. 1663. MArgaret Edgar having Charged john Murray, as Cautioner for the umquhil Viscount of Stormont, he Suspends and offers him to prove by her Oath, that she transacted with him to accept a Decreet against the principal to free him. The Charger answered, that she being a Wife called with a Husband, could not swear in his prejudice. The Suspender Replied, that before her Marriage, he had raised a Pursuit, and Cited her to hear and see it found and declared, he was free of Cautionry, in respect of the said Transaction, and so the matter being Litigious, her marrying during the Dependence cannot exclude him from his Oath, but must work against her Husband, who is only jure mariti, a Legal assignee. The Lords found this Reply Relevant. Scot contra Mr. John Dickson. Eodem die. SCot as assignee by her Father to a Bond, Charges Mr. john Dickson to make payment, he Suspends on this Reason, that the Assignation being while the Charger was Wife to Scot her Husband, the Sum belonged to the Husband, jure mariti; and therefore craves Compensation of the like Sums, paid to, or for the Husband. The Charger answered, that though the Date of the Assignation was before her Husband's Death, yet her Father keeped the same in his Custody, and it was not Intimate till after the Husband's Death, and so the Right not being Established in the Wife's Person by Intimation, could not accresce to the Husband, unless the Suspender would instruct that it was Intimate before. The Lords found that seeing the Assignation was now in the Wife's hands, they would not put the Suspender to prove the Delivery thereof, during the Marriage, but that it was presumed to have been delivered according to the Date, and that thereby it became the Husbands, jure mariti, though no Intimation was in his time. Archibald Stuart contra Bogle and Matthie. january 30. 1663. BOgle and Matthie being convened before Archibald Stuart, as bailie of the Regality of Glasgow, for a wrong committed upon two other Persons in the Kirk, upon the Sabbath, thrusting in upon them in Seat, and beating them, they were therefore amerciat in 200. Pounds, half to the Party, and half to the Fiskall. It was alleged the Fine was exorbitant, and that Inferior Courts could not amerciat above ten Pounds, as it had been found by several Decisions. It was answered that this Court being a Regality, and the Fact so atrocius, the Fine was very Competent. The Lords Sustained the Decreet. Town of Linlithgow contra Inhabitants of Borrowstounness. Eodem die. THe Town of Linlithgow having apprehended an Inhabitant of Borrowstounness, in their Town, being an un-free man, and exercising the Trade of Merchandise, they put him in Prison, he granted Bond to forbear in all time coming: Likeas they fined him in a 100 marks, he Suspended and raised Reduction on this Reason, that the Bond was extorted, when so far as he was summarily taken, and put in Prison, and could not get out till he promised to give the Bond, and immediately after he was out subscribed the same. The Charger alleged there was no unjust force or fear, because by the Acts of Parliament, in favours of Free Borrows, all unfree men are discharged to exercise the Trade of Merchandise, whereupon they had obtained Decreet against the same Suspender to desist and cease therefrom. Secondly, They and all other free Borrows had immemorially possessed this privilege, to apprehend persons found within their Town, and forced them to find Caution as Law will, upon Debt due to any in the Town, and particularly to put them in Prison, till they give such Bonds in Surety as this. The Suspender answered to the first, there was no such Warrant by the Act of Parliament, but only to Charge with general Letters, un-free men to find Caution; and for the Privilege of Borrows, to arrest un-free persons within their Towns; it is only in case of Debts, and other Merchandises, due to Burgesses, but cannot be extended to this Case, where there is a special Order set down by Act of Parliament. The Lords found that the burgh's Royal summarily upon Staple Ware of un-free men, and might judge thereanent, but not summarily Incarcerate their Persons, but only to Charge them; and found their Custom and Privilege, not to extend to this Case; and therefore found the Reason of Reduction Relevant. The Lady Carnagy contra The Lord Cranburn. Eodem die. LAdy Anna Hamiltoun and the Lord Carnagie her Husband, as having obtained a Gift of Recognition from the King, of the Barony of Innerweek, and being thereupon Infeft, pursues the Lord Cranburn to whom the 'samine was Disponed, by the Earl of Dirletoun, Grandfather to both, for declaring the Recognition, and the Donatrix Right, in so far as james Maxwel, late Earl of Dirletoun, holding the said's Lands of His Majesty's Ward, and relief had, without His Majesty's consent, Alienat and Disponed the same to james Cicile his Oye, than second Son to the Lord Cranburn, procreate betwixt him and the Earl of Dirletouns second Daughter. It was alleged for the Defender, absolvitor, because where there was no Infeftment, there could be no Alienation nor Recognition; and there could be no Infeftment without the same were granted to the Disponer, or his Procurator, to the accepter to his Procurator; but here there was no accepter nor Procurator, because Cranburn being then a Child, and in England, had granted no Mandate to take this Seasine; and therefore had raised Reduction thereof, as done without his Warrant. And as to the Procuratory expead in the Chancellary, Constituting an Acturney to the said james Cicile, the expeading thereof was without his knowledge or warrant; and therefore the Seasine being taken without his Warrant, was null, and made no Alienation nor Recognition, as if any Heretor Disponing Ward-Lands, and giving a Precept of Seizing, if any third Party should accidentally find, or steal away that Precept, and take Seasine, the same would be found null, as without Warrant, and would infer no Recognition. 2ly, Absolvitor, because the Disposition to the Defender, bears expressly, that Dirltoun Dispones, failzing Heirs-male of his Body, so that it being conditional, and the Seasine being actus legittimus qui nec recipit, di●m nec conditionem, the 'samine is null; for if Di●ltoun had an Heir-male of his own Body, he would have excluded James Cicile, not by way of Reversion, or Retrocession, there being none such in the Disposition; therefore it behoved to be a Suspensive Condition. 3ly. Absolvitor, because though the Seasine had been accepted warrantably, yet the Accepter was minor, and thereupon Leased, and aught to be restored and the Seasine annulled, and consequently the Recognition. The Pursuer answered to the First, non relevat, for albeit there had been no Acturney out of the Chancellary, the Seasine would have been valid, because there needs no other Procuratory, for taking of Seasine, but only the Precept of Seasine, which is an express Mandate of the Disponet, and the having thereof in the Acturneys' hand, is a sufficient evidence of the Warrant or Mandate to be Acturney, for the Receiver, which proves sufficiently his Warrant, neither was there ever any more required to a Seasine in Scotland, and if more were required, all Seasines would be null, it being ordinar to give Seasines to Infants, or absents out of the Country; but the delivery of the Precept by the Disponer, to any Person in Name of the Accepter, is a sufficient Mandate, or Acturney for the Accepter, especially here, where a Grandfather gives Infeftment to his Oye, he might well give a Warrant to an Acturney for him to accept. To the second, albeit the Disposition bears, failing Heirs-male of the Disponers Body: Yet the Precept is directed to give present State and Seasine without delay; whereby it is clear, that the Disponers meaning was not, that this condition should be Suspensive to impede the Infeftment: And therefore all it could operate is, to have the effect of a resolutive Condition, that if any Heir-male should be Supervenient, he might upon that condition pursue James Cicile to renunce the Right, or to declare it null, neither is a Seasine actus legittimus, and though it were, and were incapable of a day or condition, yet that would not annul the Act, but annul the condition or day, as aditio haereditatis, is actus legittimus: Yet if any man enter Heir for a time, or under condition, he is Heir simply; and the time and condition is void, but not the Entry itself. To the Third, albeit regulariter, Minors Leased may be Restored, yet that hath its Exceptions, as a Minor being Denunced Rebel, and his Escheat fallen, or thereafter his Liferent, or bearing in Nonentry, either simply, or through a wrong or informal Infeftment, he would never be restored against these Casualties, so neither against the taking of Seasine, in so far as may infer Recognition. 2ly, There could be by the Seasine no Lesion at that time, Cranburn being then but his Mother's second Son, and not alioqui succ●ssurus, to the half of the Estate, as now he is; neither is ever Lesion interpret by the prejudice of any part of a Deed, unless there were Lesion of the whole, as if Lands were Disponed to a Minor, with the burden of Debts, he could not reduce the burden of Debts as to his Lesion, unless thereby the whole Disposition were to his Lesion. The Lords Repelled these three Defences. Rig of Carberrie contra His Creditors. Eodem die. THE Creditors of Carberrie having obtained a Decreet against Carberrie, and Denunced him thereupon, pursues for Annualrent since the Denunciation, conform to the Act of Parliament thereanent. The Defender alleged Absolvitor, First, Because the Horning was manifestly null, he being Denunced in the Name of Richard the Usurper, after he was out of his pretended Authority. secondly, Because the Decreet being Suspended, a fifth or sixth part thereof was taken away. 3dlie,, The Denunciation was not at the Cross of the Regality of Musselburgh where he dwells, but at Edinburgh, 4lie, Before the Denunciation he had given in a Bill of Suspension, whereupon there was a Deliverance given, superceeding Execution, till the Bill were seen and answered; in the mean time these Pursuers getting the Bill to see, proceeded to Denunce. The Pursuers answered to the first, that it was nottour, and attested by the Keeper of the Signet, that Richard was repute in Scotland, to be in his Authority till the 18. of May 1659. till which the Signet was open, and many Letters passed in his Name, and this Denunciation was upon the sixth of May, and the Charge in april. In respect whereof, the Lords Repelled the first Defense; They Repelled also the second Defense, as to the Annualrent of what was found due by the last Decreet. They Repelled the third Defense, because the Usurper had cried down Regalities: and found the fourth Defense Relevant, scripto vel juramento, viz. That there was a Deliverance stopping Execution the time of the Denunciation. Rickart contra Eodem die. RICKART being Tacks-man of a Room of the Barony of Lowdoun, set the same to a Subtennent, for paying the Heretors' Rent, and so much superplus, whereupon he Charged the Sub-Tennent, who Suspended, and alleged that the Charger had sub-set to him as Tacks-man, and was obliged to produce his Tack to him, and being Warned by the Heretor, he did by way of Instrument require the Chargers Tack (if he any had) to Defend himself thereby, which he refused; and the truth is, he had no Tack unexpired: Whereupon he was necessitate to take a new Tack from the Heretor, for the whole Duty he was obliged to pay to the Heretor, and Rickart before. The Charger answered non Relevat, unless as he had been Warned, he had also been Removed by a Sentence, in which the Charger would have compeared and Defended: And albeit he had not compeared, the Defender had this Defense competent, that he was Tennent to the Charg●●, by payment of Male and Duty, who had Right by Tack, either standing, or at least he bruiked, per tacitam relo●ationem, and he not Warned nor Called. The Lords found the Reason of Suspension Relevant, and that the foresaid Defense of tacit Relocation would not have been Relevant, tacit Relocation being only effectual against singular Successors of the natural Possessor. The Warning of whom is sufficient to interrupt the same, not only as to them who are warned, but any other Tacks-man, whose Tacks are expired, and therefore the Defense in that Case, must always be, that the Defender is Tennent, by payment of Male and Duty to such a person, who either is Infeft, or hath Tack and Terms to run after the Warning; but if the Charger had a Tack standing, the Lords ordained him to produce the same, and they would hear the Parties thereupon. Charles Oliphant contra Douglas of Donnoch. February 3. 1663. Charles' Oliphant as assignee Constitute by David Macbrair, Charges Dornoch to pay the sum of 1800 marks: Compearance is made for an Arrester, as having Arrested before the Assignation, at least before Intimation. The assignee answered, no preference upon this Arrestment, because it was Execute upon the Sabbath Day, and so is not lawful: for by the Law of all Nations, Judicial Acts done by Authority of Judges, upon Legal Process, diebus feriates are null; and there is an Act of Sederunt to that same effect. The Arrester answered, that there was no Law prohibiting such Executions, or declaring them null; and though it was a fault and breach of the Sabbath to do so, that annuls not the Act, fi●ri non debet sed factum valet. The Lords were all clear that such Executions should be prohibit in time coming, but quo ad praeterita, some were none liquct; Yet the major part found the Execution null, for they thought, that albeit Acts of private Parties on the Sabbath Day, might stand legally valid, as if Extracts were Subscribed that day, or a Consignation made, (which had been found valid by a former Decision) yet judicial Acts, authoritate judicis, are null, else Messengers would ordinarily wait Parties upon the Sabbath Day, for all Execution by Horning and Caption, etc. Laird Phillorth contra Lord Frazer. February 4. 1663. SIR Alexander Frazer of Phillorth, being in Distress for Debt, Disponed his Barony of Cairnbuilg; to Robert Frazer of Doors, which Lands of Cairnbuilg lies near to Phillorth, and the House thereof was his Residence, in the Alienation there is a Clause conceived to this effect, that it shall not be leisom to the said Robert Frazer of Doors, to Alienate the Lands, during the Life-time of the said Sir Alexander Frazer, and if the said Robert Frazer did in the contrary, he obliged him to pay to the said Sir Alexander, the Sum of ten thousand pounds for Damnage and Interest, ex pacto convento, and if the said Robert should have a●do to sell the said's Lands, after the death of the said Sir Alexander, he obliged him to make offer there to the Heirsand Assigneys of the said Sir Alexander; or any Person he pleased nominat of the Name of Frazer, for 38000 pounds. The said Robert Frazer of Doors, Disponed the said's Lands to Staniewood, during the life of Sir Alexander Frazer: Sir Alexander assigned the Contract, and the foresaid Clause to this Phillorth, whereupon he raised Improbation and Reduction, of the Disposition granted by Doors to Staniewood, the Lord Frazers' Grandfather upon this Reason, that he as assignee by his Father to the Clause de non alienando, had good interest to pursue Reduction of the Disposition contraveening the said Clause; and true it is that the said Disposition granted by Doors to Staniewood, was null; as proceeding a non habente potestatem, in so far as by the foresaid Clause, in the said alienation granted by his Grandfather to Doors; it was expressly provided, it should not be leisom for Doors to sell, etc. Which being a Provision in the Disposition repeated, at the least generally in the Procuratory of Resignation, is pactum real, effectual against singular Successors, as was lately found in the case of the Lord Stormont, and so must annul the Right made contrair thereto. 2ly, Albeit it were not a real Paction, yet unquestionably the Obligement not to Annalize, did personally oblige Doors, and thereupon there was an Inhibition raised before my Lord Frazers' Grandfather Staniewoods Right: And therefore the Disposition made thereafter aught to be reduced, ex capite inhibitionis. It was answered for the Lord Frazer, to the first member of the Reason, non relevat; for such an Obligation, de non alienando● is reprobat in Law, as being contrair the nature of Property. 2ly, It is not real pactum, albeit it were in the Charter or Seasine, much less being only in the Disposition, and in the Narrative of the Procuratory of Resignation thus, and to the effect the said Robert Frazer may be Infeft, upon the provisions and conditions in manner foresaid, but no further mention thereof; in the Procuratory of Resignation or Infeftment, and so meets not with Stormonts' Case, where the Clause was expressly resolutive, that in such a Case the Right should be null ipso facto; and return to the next person who might be Heir of Tailzie. Which Clause was not only in the Disposition, but in the Procuratory, Charter, and Seasine Registrate; and thereby equivalent to a Publication of an Interdiction: but here there is no resolutive or irritant Clause, nor any Right reserved to return in case of contraveening, nor is it in the Infeftment at all. As to the second, the Inhibition cannot make the Clause effectual to annul the Alienation, because Doors was not simply obliged, not to Alienat during Sir Alexander's Life, but if he did in the contrair, to pay ten thousand pound for Damnage and Interest, ex pacto convento, which cannot be understood of Damnage by delay, or Expense in attaining the principal Obligation, seeing it bears not as is ordinar by and attour performance, and the quantity thereof being so great, it must be evidently understood of the value of the principal Obligation, so that it becomes an alternative or restrictive Clause, whereby it was in Doors option, whether to forbear to sell, or to pay the ten thousand pounds if he did sell, so that the Inhibition can reach no further then to the ten thousand pounds, seeing Doors by selling, became obliged for the ten thousand pounds. The Lords found the Defense Relevant, and that the Clause or Inhibition could extend to no further than ten thousand pounds. It was further alleged for Frazer absolvitor, from the ten thousand pounds, because it being a Movable Sum, fell under Sir Alexander Frazer his Escheat, which was Gifted to one Forbes, and declared expressly as to this ten thousand Pounds, and assigned to the Lord Frazer. The Pursuer answered that this Sum was heritable, because it succeeded in the place of the principal Obligation, not to alienat for such a time; and after that time to offer the Lands of Phillorth and his Heirs, for eight thousand pounds, which is clearly an heritable Clause; and therefore this Sum coming in leu thereof, must belong to the Heir or assignee, and so fell not to the Fisk, seeing surrogatum sapit naturam surrogati, as Sums Consigned for Redemption of Lands before Declarator, are not movable, but belong to the Wodsetters' Heirs or Assigneys; so in mutual Obligations, whereby one person obliges to Dispone, or Resign Lands; and another is obliged for a price, the price would not belong to the Executor, or Fisk, but to the Heir; any sums due for Damnage and Interest, not performing a Disposition, or upon Eviction, belongs to the Heir, not to the Executor. The Defender answered, that this sum is not in the case of any of the former alleadgences, neither is the question here, what would belong to the Executor, but what would belong to the Fisk, for Movable Heirship belongs to the Heir and not to the Executor, and yet belongs to the Fisk, so do sums without Destination of Annualrents, wherein Executors are secluded. So also doth the price of Lands, when they are de presenti, sold by the Defunct. The Lords found this sum movable and belonged to the Fisk, and therefore Assoilzied the Defender from that Member also. Mr. Ninian Hill contra Maxwel. February 5. 1663. MR. Ninian Hill pursues Maxwel as heir to his Father john Maxwel, for payment of a sum due to be paid to Maxwels' Relict yearly after his death, and assigned to the pursuer. The Defender alleged absolvitor, because the Pursuers Cedent being Executor herself to the Defunct, was liable for this sum, & intus habuit. It was answered for the Pursuer, that this being an annual, payment after the Defuncts death, it was proper for his heir to pay the same, not for his Executor, and if the Executor had paid it, he would get relief off the heir. Which the Lords found Relevant. Grahame contra Ross Eodem die. THe Parties having Competed upon Appryzing, being decided the 24. of january. Wherein the Lords found that none of the Appryzers should come in with him who was first Infeft, till first they paid their proportional part of the Composition and Expenses; now having considered again the Tenor of the Act of Parliament, they found that they behoved to satisfy the whole, and that the obtainer of the first Infeftment should bear no share of it, that being all the other Appryzers gave, ●to got the benefit of the Act, to come in pari passu. Lenox contra Lintoun. Eodem die. LEnox being Married to Margaret Mcgie, who was an Heretrix, she dying, Lenox Son was Infeft as Heir to her, who dying also without Issue, this Lenox as his Brother by his Mother, and alleging him to be appearing Heir to his Brother Lenox, in these Lands, whereunto his Brother succeeded to their Mother, craves Exhibitions of the Writs of the Lands, ad deliberandum. The Defender Lintoun alleged absolvitor, because his Son being Infeft in the Lands as Heir to his Mother, his nearest Agnat on the Father's side, his apparent Heir, and ●one on his Mother's side; for we have no intrin succession, neither holds it with us, materni maternis, paterni paternis. Which the Lords found Relevant, and that the Father was apparent Heir to his Son, being once Infeft as Heir to the Mother, and therefore Assoilzied. Lady Carnagy contra Lord Cranburn. Eodem die. THis day afternoon the Lords Advised the rest of the Defences, proponed for the Lord Cranburn, in the Recognition pursued at the Instance of my Lady Carnagy, who alleged first, that Recognition was only competent in proper Ward-holdings, and not in blench Feu, or Burgages; these only being feuda recta & militaria, and all others but fendastra; But the Lands of Innerweek are not a proper Military Feu, holding Ward, being only a Taxed Ward, wherein the word Duties is Taxed yearly, and the Marriage is Taxed to so much, and so is in the nature of a Feu; neither was it ever yet found in Scotland that a Taxt-ward did fall in Recognition. The pursuer answered, that the Defense is not Relevant to rule in our Law, being that alienation of Ward-lands, without the consent of the Superior, infers Recognition, and neither Law nor Custom hath made exception of Taxt-wards, which have but lately occurred in the time of King james, who and King Charles were most sparing to grant Gifts of Recognition, whereby there hath been few Debates or Decisions thereanent, and there is no consequence, that because the Casuality of the Ward, when it falls, is liquidat and Taxed, or the value of the Marriage, that therefore the Fee is not a Military Fee, wherein the Vassal is obliged to assist his Superior in Counsel and in War, in the stoutest Obligations of Faithfulness and Gratitude; and therefore his withdrawing himself from his Vassalage, and obtaining another to him, is the greater Ingratitude that the Superior had Taxed the benefit of the Ward, and Marriage, at low rates, which Casualties, cannot be drawn to prejudge the Superior, of other Casualties but on the contrair, exceptio firmat regulam in non exceptis. The Lords repelled this Defense. It was further alleged, that here was no offer of a Stranger, but of the Vassals own Grandchild, who now is his apparent Heir in one half of these Lands, as being the eldest Son of his second Daughter: and Recognition was never found in such a Case. The Pursuer answered, that albeit the Defender be now apparent Heir to the Vassal Disponer, yet the Case must be considered, as it was in the time of the Disposition, when he had an elder Brother, the then Lord Cranburn living, and was not alioqui successurus: and the Lords had formerly found; that an alienation of Ward-lands, by the Earl of Cassils' to his own Brother, albeit he was his nearest of Kin for the time, having no Children, yet seeing he could not be esteemed alioqui successurus, or Heir apparent, in regard the Earl might have Children, therefore they found Recognition incurred. The Lords repelled this Defense: 3ly, It was further alleged, that there could be no Recognition, where there was no alienation of the Fee, without the the Superiors consent, here there was no alienation of the Fee; because the Seasine being taken to be holden from Dirletoun, of the KING, not confirmed, was altogether null, and therefore Dirletoun was not Divested, nor Cranburn Invested, for such an Infeftment is ineffectual, and incomplete, till Confirmation, and could never be the ground of Pursuit, or Defense against any Party. 2ly, By such an Infeftment, the Superiors consent is a Condition employed, for an Infeftment to be holden of the Superior, is null till Confirming, and implies as much as if the Seasine had been expressly granted, si dominus consenserit, and so can be no obtrusion, or ingratitude. 3ly, Craig in his Dieges. de recognitionibus, Reports the Decision of the Lords betwixt Mckenzie and Bane, whereby they found, that the Seasine being unregistrat, was null, and inferred no Recognition, quia non spectatur affectus, sed effectus; yet that was but an extrinsic nullity, much more here, the Seasine being intrinsically null. The Pursuer answered, First, That if this ground hold, there could be no Recognition, except by subaltern base Infeftments holden of the Vassal, in which there is far less ingratitude, there being no new Vassal obtunded, nor the Vassal withdrawing himself from his Clientel, nor any prejudice to the Superior, because subaltern Infeftments would exclude none of the Casualties of the Superiority, yet such Alienations, exceeding the half of the Fee, do unquestionably infer Recognition, though the ingratitude be no more than this, that the Vassal renders himself unable fitly to serve his Superior, by delapidating his Fee, or the Major part thereof, how much more, when he does all that in him is, to withdraw himself from the Superiors Clientel, by obtruding to him a Stranger, alienating from him the whole Fee, and albeit the Seasine be null, as to other effects, till it be Confirmed: Yet as Craig observes in the foresaid place, Vassalus fecit quantum in se erat. 2ly, Though by our Statute, or peculiar Custom, such Seasins unconfirmed are null; yet by the Act of Parliament 1633. Anent Ward holdings, Recognition is declared to proceed according to common Law, which can be no other than the common Feudal Customs, by which Customs it is sure that the Recognition is chiefly inferred by the Vassals alienation: As to the employed condition, si Dominus consenserit, though that were express, yet the Vassal giving Seasine, the Tradition of Seasine is inconsistent with such a condition, being understood, as a Suspensive condition, for he that delivers Possession de facto, cannot be said upon any condition not to deliver the same de facto, and therefore it is but protestalio contraria facto, and if it be understood as a resolutive condition, as needs it must, it impedes not the Alienation, but only might resolve the same. As to the Decision upon the not Registration of the Seasine una herundo non facit ver, and albeit it might be a rule in that individual Case. It cannot be extended ad alios casus, although it were a Statute, much less a Practic. The Lords also repelled this Defense. 4ly, It was further alleged by the Defender, that Dirletouns Infeftment was granted by the KING, Haeredibus & assignatis quibuscunque, and thereby the KING consented, that he should dispone his Right to any assignee, or singular Successor, and this Clause is equivalent to the ordinar Feudal Clauses, Vassallo & quibus dederit, which is ever understood to exclude Recognition, neither can this be understood to be stilus curiae, as when Assigneys are casten in in Charters passing the Exchequer; but this is an original Grant under the KING'S own Hand. The Pursuer answered, that this Defense ought to be Repelled, because such Concessions, contrair to common course of Law, are stricti juris, and not to be extended ad effectus non expressos praesertim prohibitos, but the adjection of Assigneys is no ways to allow Alienations of the Fee, without consent, but to this effect, because Feuda and Benficia are in themselves stricti juris, and belong not to Assigneys, unless Assigneys be expressed; and therefore albeit no Infeftment had been taken, the Disposition, Charter, or Precept could not be Assigned: so that this is adjected, to the end that those may be Assigned before Infeftment, but after Infeftment, Assignation hath no effect, and this is the true intent of Assigneys. In Dispsitions of Land, it is clear, when the Disponer is obliged to Infeft the Acquirer his Heirs, and Assigneys whatsoever, there is no ground whereon to compel him to grant a second Infeftment to a new assignee; but only to grant the first Infeftment to that Person himself, or to any assignee whatever, which clears the Sense in this case. It hath also this further effect, that singular Successors thereby might have right to a part of the Lands, which though it would not infer Recognition if done, yet if there were no mention of Assigneys it would be null, and as not done in the same Case as a Tack, not mentioning Assigneys. The Lords Repelled this also. 5ly, It was further alleged, that Recognition takes only place, where there is contempt and ingratitude, and so no Deed done through ignorance infers it, as when it is dubious whether the Holding be Ward or not; and therefore Recognition cannot be inferred, seeing there is so much ground here to doubt, this Right being a taxed Ward, and to his Heirs and Assigneys, and it is not clear, whether it would be incurred through a Seasine à se, or to one in his Family, whereupon the wisest of men might doubt, much more Dirletoun being illiterate, not able to read or write. It was answered, ignorantia juris neminem excusat. 2ly, Vbi est copia peritorum ignorantia est supina: Here Dirletoun did this Deed clandistenly, without consulting his ordinar Advocats, or any Lawyers, and so was inexcusable; and if pretence of ignorance could suffice, there could be no Recognition, seeing it cannot miss to be ignorance that any should do that Deed that will be ineffectual, and loss their Right. The Lords Repelled this Defense, and all the Defences jointly, and Discerned. Lord Louvre contra Earl of Dundee. February 6. 1663. THe Lord Louvre, pursues a Reduction of a Disposition made by Carnegy of Craig to the Earl of Dundee, as being posterior to the Pursuers Debts, and in prejudice thereof, upon the Act of Parliament 1621. against Bankrupts, and for instructing of the Reason, repeats the Disposition itself, being betwixt confident Persons, Cusing Germans, and without cause onerous, in so far as it bears Reservation of the Disponers, and his Ladies Liferent, and Provision to be null, if Craig have Heirs of his Body, in whose favours Dundee is to denude himself, upon payment of his expense. The Defender alleged, that the Lybel is not Relevant. Prim●, because Craig is no Bankrupt, nor any Diligence done against him, before the Disposition. 2ly, He is not insolvent by the Disposition, because there is reserved to him a Power to sell as much of the Land as is worth 80000 lib. for Debt, and so is not in fra●dm crea● oru●; but the Pursuer ought to pursue for that Provision, either by apprizing, or personal Action. The Lords found the Reason relevant and proven by the tenor of the Disposition, and therefore reduced, to the effect, that the Pursuer m●ght affect the said's Lands with all Legal Diligence for his Debt, as if the Disposition had not been granted; for they thought, seeing, by this Disposition there remains not Estate sufficient, ad paratam executionem, and that there was no Reason to put the Pursuer to insist in that Clause, to restrict himself thereby to a part of the Land, but that he ought to have preference for his Debt, upon his Diligence, affecting the whole Land. William Montgomery contra Theoder Montgomery and Mr. William Lauder. February, 10. 1663. WIlliam Montgomery, as Donatar to the Liferent-escheat of Theodor Montgomery, pursues a special Declarator against the Tenants of Whit slide belonging to Margaret Hunter in Liferent, and now to Theodor, jure 〈◊〉, for their Duties. It was alleged, that the Horning was null, because the Debt was satisfied before Denunciation. The Pursuer answered, that it was not competent, in the special Declarator, to question the nullity of the Horning. 2ly. Though it were in a general Declarator, it were not competent, not being instantly verified without Reduction. 3ly, It were not probable, but by Writ, before the Denunciation, and not by the Creditors Oath, or having discharges, being in prejudice of the KING, but that no hazard might be of ante-dating it, was required by Act of Parliament, that beside the Writ, the Parties should depone upon the truth of the Date. The Defender answered, to the first; all Defences competent in the general Declarator, are reserved in the special. To the second, there is a Reduction depending. The Lords found the Defense relevant, only scripto of the Denuncer. The Defender further alleged the Horning was null, as being upon a nats' Decreet, and falling therewith in consequence. The Lords repelled the Defense, and found, though the Decreet were null through informality, yet the Horning would not be annulled, but the Party was in contempt, in not Suspending debito tempore. Compearance was also made for Mr. William Lauder, who alleged he had Disposition from the Rebel, before year and day run. The Lords found this Alleadgeance not relevant, unless it were alleged to be for a just Debt, before the Denunciation. It was further alleged for Mr. William, that the Pursuer granted Back-bond to the Thesaurer to employ the Gift, by his appointment, and he offered to satisfy the Donatars Debt, and the whole expense of the Gift. The Lords found this not relevant, without a second Gift, or Declaration from the Thesaurer. Thomas Crawfoord contra 〈…〉 Eodem die. THomas Crawfoord, as Executor Creditor to Umquhile Robert Inglis Pursues some of his Debtors. It was alleged no Process; because Thomas, as Factor for Robert Inglis, had pursued the same Party, for the same Cause, before the Commissaries of Edinburgh, wherein Litiscontestation was made: and so now it cannot be pursued elsewhere, but the Process, aught to be transferred and insisted in. The Pursuer answered, that he pursued then as Factor, but now as Executor-Creditor, who did not consider what Diligence Defuncts did: but might insist therein, or not. 2dly, This being a dilator, is not instantly verified. The Lords found the Defense relevant, but would not find it competent, unless instantly verified; and because it behoved to be instructed by an Act Extracted. Catharine Frazer contra Heugh Frazer. February, 11. 1663. THe said Catharine only Child of a second Marriage, being provided to eight thousand merk of Portion, at her age of 14 years, but no oblidgment of Aliment, or Annualrent till then, pursues her Brother, as Heir to her Father's Estate, being of a good condition for Aliment. He alleadges he was obliged for none, not being Parent, nor his Father obliged by Contract, or Bond for it. The Lords found an Aliment due, for the Pursuers Mother was not alive, and able to Aliment her. Locky contra petoun. February 12. 1663. ELizabeth Locky Spouse to Doctor petoun, pursues a Reduction of a Disposition, granted by her Husband, to certain Persons, as prejudicial to her Contract; in which Contract there was a Clause, declaring Execution to pass at the instance of certain Persons, who concur with this pursuit. The Lords sustained the pursuit, though it was not for Implement, but for Reduction of a Right, impeding the benefit of the Contract, without concourse of the Husband, seeing the Process was against a Deed of the Husbands, and he called passive. Earl of Southesk and Carnegy contra Bromhall. Eodem die. BRomhall having taken the Lord Sinclar with Caption, Southesk and his Son gave Bond, to produce him to the Messengers; or to pay the Sum. on the third of February, betwixt two and ten, whereupon Southesk having reproduced him, craved by Supplication, his Bond up, or to be declared satisfied, and extinct. The Defender answered, First, He not being a Member, or Dependent on the College of Justice, cannot be called thus summarily: especially to declare a Bond void, which is in effect a Reduction. 2dly, The Bond was not performed, in so far as the Lord Sinclar was not reproduced till the 4th of February. The Pursuer answered, that the Defender living in Edinburgh, and not compearing, the Bill, per modum quaerelae might be sustained. To the second, it being modica mora of one day, without damnage to the Defender, and there being trysting amongst the Parties all the time betwixt, it was sufficient. The Lords sustained the Petition, and found it extinct. Relict of George Morison contra His Heirs. Eodem die. THis Relict pursues for Implement of her Contract. It was alleged she had accepted a Wodset, in full satisfaction thereof, which now being Redeemed, she could crave no more, but Re-imploying the Money to her in Liferent. The Lords found, that this acceptance by the Wife, being donatio inter virum & uxorem, she might now revock it, and therefore found the Heir liable to make up what was in the Contract. The Town of Linlithgow contra Unfree-men of Borrowstounness. February 13. 1663. THe Town of Linlithgow insisted in their Charge, upon a Bond granted by some Inhabitants of Borrowstounness, obliging them to desist and cease from ushing the Merchant Trade, under the pain of 500, merk which was Suspended, on this Reason, that the Bond was extorted by unwarrantable force, in so far as the Suspenders were taken in Linlithgow brevi manu, and incarcerat, till they granted the Bond. The Charger produced a Decreet of the Lords, in Anno 1643. against several Inhabitants in Borrowstounness, compearand, who having Suspended the general Letters, upon Act of Parliament, for finding Caution to desist, etc. The Letters were found orderly proceeded; and the Town of Linlithgow empowered, not only to seize upon the Merchant Goods of the Inhabitants of Borrowstounness, if they meddled in Merchant Trading, but also bearing, with power to put the Persons, using the saids Merchant Trade in Prison, till Justice were done upon them; and thereupon allege, that the Suspenders being incarcerat, by virtue, and conform to the foresaid Decreet standing, there was no unwarrantable Force used. 2dly, They produced an Act of the Council of Linlithg●w▪ Bearing the Suspenders, to have compeared before the Council, and to have confessed their wronging of the said Town, in the Trade of Merchandise; and that there was Horning and Caption against them, for the Cause; and therefore declared their willingness to grant the Bond in Question. The Suspenders answered to the First, That albeit the foresaid Decreet bear compearance, yet there is no Dispute in it, and it is evident to be by Collusion, and Surreptitious; because this Conclusion now alleged, is ultra petita, there being no such thing in the general Letters, nor doth the Decreet bear any special Charge given, neither is this Conclusion warrantable, by any Law, or Act of Parliament. 2dly, This Decreet could be no warrant to Incarcerat the Suspenders, because it is given only against some particular Persons, then living in Borrowstounness; without calling either of the Baron or Bailies of the Burgh of B●rronie, and therefore is null, as to any other Persons; and as to the Second Answer, upon the Act of Council, it cannot prove against the Suspenders, being only under the Town-clerks hand, not being a Process upon Citation, nor having a Warrnat subscribed by the Suspenders. The Lords having considered the Bond in Question, albeit they found the tenor thereof not to be contrair the Act of Parliament, yet found the same was unwarranttably taken, if the same was extorted, as aforesaid, and found the Decreet of the Lords not to militat against the Suspenders, or to warrant that incarceration brevi manu, and found the Act of Council proved not against the Suspenders and yet Ordained them to renew a Bond, by the Lord's Authority of the like tenor. Elizabeth Fleming and Sir john Gibson contra Fleming and Robert Baird. BY Contract of Marriage betwixt the said Robert Baird, and his Spouse, he accepted 12000 merk in name of Tocher in satisfaction of all his Wife could succeed to, by her Father, Mother, Sister and Brothers, and discharged his Mother as Executrix, and Tutrix thereof; Yet she having formerly put more Bonds in the name of Robert's Wife, than this Sum, and there being no Assignation to the remainder in the Contract, pursues the said Robert and his Spouse, to grant an Assignation thereof, and to pay what he had uplifted of the Sums, more nor his Tocher. The Defender alleged the Summons are not relevant, he neither obliged ex lege, nor ex pacto to Assign. The Pursuer answered, this being bona fidei contractus, the meaning and interest of the Parties is most to be respected, and therefore though it contains but expressly a discharge, which cannot be effectual, to lift the Sums from the Creditors, but would loss them to both Parties, he must Assign: especially, seeing his acceptance of full satisfaction imports an oblidgment, to denude himself of the superplus. And which the Lords found relevant, and sustained the Summons. Walter riddel contra Eodem die. WAlter riddel, as Executor dative confirmed to one liddel in the Ca●nongate, pursues his Debtors to pay, compears a Donator, as ultimus Haeres, and craves preference. The Pursuer answered. First, His Gift was not declared. 2dly. He offered to prove the Defunct had an Agnat, viz. an Uncle, or an Uncles Son. Which the Lords found relevant to be proven by Witnesses. Robertson contra Buchannan. February 14 1663. RObertson pursues Buchannan, to repay to him a sum of Money, who alleged, that his Bond bearing to pay this Charger, or to Arthur Buchannan his Brother, it is alternative & electic est debitoris, and he has compensation against Arthur, which is equivalent, as if he had paid him. The Lords repelled this alleadgance, and found that the Charger being deliverer of the Money, and now haver of the Bond, it could import no more, but that the other Brother was adjected for the Chargers behoove, and that there is no option to the Debtor in such cases. Mr. james Forsyth contra Archibald petoun. February 17. 1663. MR. james Forsyth, as Executor Confirmed to his Sister, pursues the said Archibald petoun her Husband, for payment of her third of his Free Goods, at the time of her death. The Defender alleged, First, By the Deceased Wife's Contract of Marriage with the Defender, she accepted a 1000 lib. for all she could crave by his decease, in case there were no Bairns of the Marriage, and albeit there was a Bairn surviving her, yet the Bairn shortly thereafter died. The Lords repelled this Defence, and found that the Bairn surviving the Mother, never so short was enough. It was further alleged absolvitor, because the Deceased Wife having a Child surviving her, her share belonged to that Child, as nearest of Kin, and the Child being dead, belongs to the Defender, the Child's Father, as nearest of Kine to the Child, and cannot go back to the Mother's nearest of Kin; because there is no succession of Cognats in Scotland. The Pursuer answered, that if the Child had been Executor Confirmed to the Mother ad eundo haereditate, would transmit the same to the Father, but there being no Confirmation haeredi●as mobilium jacebat, and the Goods remain yet still in bonis defuncti maritis, and albeit it was found in the case of Bells contra Wilkies, that it was not necessary to transmit moveables, that the Testament were execute; yet in that case it was a Confirmation, which was esteemed an addition. The Defender answered, that he had done diligence to have it Confirmed, but during the Child's life, all Judicatories were stopped, and he had taken Instruments of his desire to be Confirmed: and alleged, that as Bairns surviving would transmit their Legittime though they had done no diligence; so this Bairn surviving alone was sufficient. The Lords found, that seeing there was no Confirmation, the Right was not established in the Child's Person, and that the Right could not fall to the Father, but fell to the nearest of Kin of the Mother, and found it was not like a Legittime, which is only of the Father's means, and not of the Mothers, and hath a special privilege in Law, to be transmitted by more superviving. Margaret Hay contra Sir Geo●ge Morison. Eodem die. SIR Geoege Morison having granted a Bond to Umquhile john Bell and Margaret Hay, the longest liver of them two in Conjunct-fee, and after their Decease, to the Bairns of the Marriage, the said Margaret, with concourse of the Bairns, charges for Payment, Sir George Suspends on this Reason; that Margaret is but Liferenter, and the Bairns of the Marriage are but Feears; and therefore, seeing there was an Infeftment upon the said Bond, he ought not to pay the Sum, till the Bairns be Infeft as Heirs of Provision of the Marriage to their Father, and renunce the Infeftment. The Lords discerned, but superseded the Extract, until the Bairns were Infeft, as Heirs of Provision to their Father: and did grant Renunciation, and found, that all the Bairns, Male and Female, jointly and equally, behoved to be Served as Heirs of Provision to their Father in this Annualrent, and Infeft accordingly, and that by Bairns, was not to be understood the Heir of the Marriage only. Colonel james Montgomery contra The Heirs of Robert Halliburtoun Eodem die. IN a Declarator of Redemption of a part of the Lands of Collfield. The Lords sustained the Order, at the instance of the Colonel, as being a Singular Successor, albeit he produced not the Reversion, at the using of the Ardour, nor now, seeing the Defender compeared and he offered to prove by their Oath, or their Curators, that they had the Contract of Wodset in their hand, both then and now. Birsh contra Dowglas. February 18. 1663. BIrsh an Inglish Woman pursues Catharine Dowglas, to pay a Bond, wherein she and her Umquhile Husband were obliged. The Defender alleged absolvitor, because it was a Bond stante matrimonio given by a Wife, which is null in Law. It was replied it is Ratified Judicially, and the Defender obliged never to come in the contrare upon Oath Judicially, which is the strongest Renunciation of that privilege of Wives, and it hath been frequently found, that minors making faith, cannot be restored lesionem conscientia ex juramento violato. The Lords having debated the case at large amongst themselves, found the Bond null notwithstanding of the Oath; for they thought, that where the deed needed no Restitution, as in the case of minors, these deeds are valid, but the minor may be restored; but in deeds ipso jure null, where there need no Restitution, an Oath cannot make, that ane Legal deed which is none, it was win by a Vot or two, many thinking that such privileges introduced by Custom or Statute might be Renunced, and much more swore against; but that it were fit for the future, that all Magistrates were prohibited to take such Oaths of Wives, or Minors, who are as easily induced to Swear, as to oblige, and if they did, that they should be liable to pay the Debt themselves. Dumbar of Hemprigs contra Lady Frazer. Eodem die. MY Lady Frazer, being first married to Sir john Sinclar of Dumbeath, next to the Lord Arbuthnet, and last to the Lord Frazer, Dumbar of Hemprigs as Executor confirmed to Dumbeath, pursues her, and the Lord Frazer her Hushand, for his interest, for delivery, or payment of the Movables of Dumbeath, intrometted by her. It was answered. That she had Right to the half of Dumbeaths' Movables, as his Relict, and her intromission was within that half. It was Replied, that she had only right to third, because Dumbeath had a Bairn of the former Marriage, who survived him, and so the Executory must be imparted. It was duplied, that that Bairn was for as familiat, married, and provided before her Father's Death, and so was not in familia, and albeit, if there had been any other Bairns in the Family, that Bairns part would have accresced to them, yet being no other: It accresced to the Man and Wife; and the Executory is bipartiti. The Lords found the Defense and Duply relevant, albeit it was not alleged, that the Tocher was accepted, in satisfaction of the Bairns Part of Gear, unless those who have Right would offer to confer, and bring in the Tocher received; in which case, they might crave a third, if the same were not Renunced, o● the Tocher accepted instead thereof. It was further alleged for the Lord Frazer, that he could not be liable as Husband; because his Lady being formerly Married to the Lord Arbuthnet, he got the Movables, and his Successors should be liable, at least in the first place. The Lords repelled the alleadgeance, but prejudice to the Lord Frazer, to pursue the Successors of the former Husband, for repetition, as accords. Mckenzie contra john Ross. Eodem die. JOhn Ross having apprised certain Lands belonging to Mckenzie, there is a Pursuit of Compt and Reckoning intented, for declaring, that the apprising was satisfied within the Legal. It was alleged, that the Appryzer was not Comptable for more of the other Parties Minority then seven years, because, in the Act of Parliament 1621. Anent apprizing, it is so provided, and albeit the meaning of the Act of Parliament was declared to be otherways, by the Act of Parliament 1641. Yet that Declaration was contrary to the clear meaning, by the general rescissory Act 1661. The Lords having considered the Rescissory Act● and the Reservation therein, of the Right of Private Parties following upon the deeds of these Parliaments. In Respect thereof, and of the Custom this 20 years, the Appryser useing to Compt for all, found the Appryser Comptable for the whole Year of the Minority. William Blair contra Anderson. Eodem die. William Blair as Assigny, by the Wife and Bairns of Mr. David Anderson, by his second Marriage, pursues his Daughters, both of the first and second Marriage, as Heirs of Line, for Implement of the second Contract of Marriage, and the Daughters of the second Marriage offering to Renunce to be Heirs of Line, but prejudice of their Provision, by Contract of Marriage, as Bairns of that Marriage. The assignee insisted against the Daughters of the first Marriage, as lawfully Charged, etc. Who alleged no Process, because the Provision, by the Contract of Marriage, insisted on, run thus, That Mr. David obliged himself, and his Heirs-male, Successors to him in his Estate, but did oblige no other Heirs. Ita est, there is an Heir-male. The Pursuer answered, albeit Heirs-male were only expressed, other Heirs were not excluded: specially, seeing he bound himself, so that the effect thereof would only be, that the Heir-male should be liable primo loco. The Lords found the Heir-male liable primo loco, and the Heirs of Line secundo loco, and found the Heir-male sufficiently discussed, by an apprizing of the Clause of the Contract of Marriage, in favours of the Heirs-male, they not being Infeft as yet, and having no other Right. Scots contra Earl of Hume. February 19 1663. THe four Daughters of 〈…〉 Scot pursues an Ejection against the Earl of Hume, out of some Lands belonging to them. It was alleged for the Earl absolvitor, because he entered into Possession, by virtue of a Decreet of Removing, given at his instance, Anno 1650. It was Replied, that the Decreet was only against the Pursuers Mother, that they were never called, nor discerned therein. The Earl answered, First, That the Decreet was against the Mother, to remove herself, Bairns, Tenants, and Servants, and her Daughters were in the Family, being then young Bairns; and he was not obliged to know them, they not being Infeft, but having only an old Right; whereupon there was no Infeftment for 40. years the time of the Decreet. The Lords in respect of the Defense, restricted the Process to Restitution, and the ordinary Profits, and discerned the Earl to restore them to Possession instantly, but superseded payment of Profits till both Parties were heard, as to their Rights, for they found, that the Decreet of Removing could not extend to their Children; and albeit they were not Infeft, yet they might maintain their Possession upon their Predecessors Infeftment, how old soever, seeing they continued in Possession. Bessie Muir contra Jean Stirling. Eodem die. THe said Bessie Muir pursues her Mother, as Executrix to her Father, for payment of a Legacy of 8000. marks left in his Testament, subscribed by the Defender, and Confirmed by her, after her Husband's Death. The Defender alleged absolvitor, because she, by the Contract of Marriage, was Provided to the Liferent of all Sums to be Conquest, and albeit she consented to the Legacy, it was Donatio inter virum & uxorem, and for her Confirmation, it cannot import a passing from her own Right, but only her purpose to execute the Defunc●s Will, according to Law, especially she being an illiterate Person. The Pursuer answered, that this Donation was not by the Wife, to, or in favours of the Husband, but of their Children, which, is not revockable, and also the Confirmation humologats the same, seeing the Wife might have Confirmed, and Protested to be without prejudice of her own Right. The Lords Repelled the Defense, in respect of the Reply. Sicily Ruthven contra Hay of Balhousie. Eodem die. CIcil Ruthven having granted a Bond to David Lamb, that thereupon he might Apprise from her an Annualrent, whereunto she was Apparent Heir; whereupon she having obtained a Decreet, and now seeking Adjudication in Lambs Name; Lamb produces under his hand a Writ declaring that his Name was but used in Trust, that he disclaimed the Process. The Lords, notwithstanding Sustained Process, being so far proceeded, in respect of the Declaration, bearing the Trust, and found he could not disclaim, in prejudice of the Trust. Lady Swintoun contra Town of Edinburgh. Eodem die. THe Magistrates, and Council of Edinburgh, having granted them to be Debtors to the Lady Swintoun, by way of Act, conform to their Custom. The Lady supplicat, that the Lords would grant Letters of Horning upon the said Act, whereupon the Magistrates being Cited upon twenty four hours; alleged, they were not Conveenable hoc ordine, by suiting Letters of Horning upon a Bill, but it ought to have been by an ordinary Summons, either craving payment, or Letters conform. The Lords notwithstanding granted Letters of Horning. Bailies of Edinburgh contra Heretors of Eastlothian and Mers. February 20. 1663. THe Bailies pursue these Heretors for so much allowed of the Maintenance of these Shires, of the months of August and September, 1650. And insisting on an Act of Litiscontestation, in Anno 1659. Whereby the Defenders having proponed a Defense of total vastation, the same was found relevant. The Defenders having now raised a review, allege that they ought not to have been put to prove total Vastation, seeing Vastation was Notour, these Shires being the Seat of the War, where the English Aarmy lay, which ought to have freed them, unless the Pursuers had replied, that the Heretors got Rend that year, and had been burdened with the Probation thereof. 2dly, The Order of Sir john smith's general Commissar, and also of the Provisors of the Army, bearing the Provisors to have Furnished such Provisions want Witnesses, and might have been made up since they were out of their Offices. The Lords adhered to the Act, and found the Defense of total Devastation, yet Relevant, in this manner, that the Heretors got no Rent, and granted Commission to receive Witnesses, at the head burgh's of the Shires, for each particular Heretor, to prove their particular Devastations, and Sustained the Order of the General Commissar, he making faith, that he subscribed an Order of the same Tenor while he was in Office. Harry Hamiltoun contra William Hamiltoun. February 21. 1663. HAry Hamiltoun pursues his Brother William, as behaving himself as Heir to their Father john Hamiltoun Apothecary, to pay six thousand marks of Provision by Bond, and condescends that William intrometted with the Rents of the Lands of Vlistobe, whereunto his Father had heritable Right. The Defender answered, that his Father was not Infeft, because he Infeft the Defender therein before his Death, Reserving only his own Liferent. The Pursuer answered, that the Infeftment was under Reversion, and was Redeemed by the Father, which Order, though not Declared, gave him the Right to this Land, and was more than equivalent to an heritable Disposition, clad with Possession, which would make the Apparent Heirs intrometting, infer behaving as Heir, for the Declarator non constituit sed declarat jus constitutum. The Lords Repelled the Defense, and duply, in respect of the condescendence, and reply of the Order used. 2ly. The Defender alleged absolvitor, because those Lands were Apprized from the Defunct, and thereby he was denuded, and so the Defender could not be Heir therein, at least he could have nothing but the Right of Reversion, which reacheth not to Mails and Duties. The Lords found, that unless the Defender had Title, or Tolerance from the Apprizer, the Legal not being expired, but the Debtor in Possession, his Heir intrometting, behaved as Heir, the Apprizing being but a Security, of which the Apprizer might make no use, or but in Part, as he pleased. Stirling contra Campbel. Eodem die. THe same last point was found betwixt these Parties, and also that the Heirs Intromission with the whole Silver work, so comprehending the best of them, which is the Heirship, was gestio pro haerede. Anna Wardlaw contra Frazer of Kilmundi. Eodem die. ANdrew Wardlaw having a Wodset upon some Lands of the Lord Frarzer; The Debtor raises Suspension of multiple Poinding, against Anna Sister and Heir to the said Andrew Wardlaw, and Frazer of Kilmundi pretending Right by a Legacy, from the Defunct to the same Sum. The Heir alleged, that it could be liable to no Legacy, being heritable. The Defender answered, primo, the Legacy was made in pro●inctu belli where there was no occasion to get advice of the Formal and Secure way of disposing of the Wodset, but the Will of the Defunct appearing in eo casu, it must be held as effectual as Testamentum militare in procinc●u, which needs no solemnities. 2ly, The Heirs Husband hath homologat the Legacy, by discounting a part thereof. It was answered, that no Testament whatever can reach heritable Rights with us. 3ly, That the homologation of the Husband cannot prejudge his Wife, nor himself, quoad reliquum not discounted. The Lords found the Heirs had only right, except in so far as the Husband had homologat the Legacy, which they found to prefer the Legator to the whole benefit, the Husband could have thereby jure mariti, but not to prejudice the Wife thereafter. james Aikenhead contra Marjory Aikenhead. February 25. 1663. THe said james insists for the delivery of a Bond granted to his umquhile Father, and Assignation thereto, by his Father to him, against the said Marjory, producer thereof. It was alleged no delivery, because the Assignation, in favours of the Pursuer, was never delivered, but keeped in his Father's Possession, which cannot be accounted his Possession, seeing the Pursuer is a Bastard. 2ly, The conception of the Assignation is to the Pursuer and his Heirs; which failzing, to the said Marjory, and her Heirs, and he being now Minor, ought not to dispose of the Sum in her prejudice. The Lords Repelled the Defences against the delivery, and found that the Pursuer, during his Minority should not uplift the Sum, till the Defender were called, and had access to plead her Interest. Adam Hepburn contr Helen Hepburn. Eodem die. THe Estate of Humby being provided to Heirs whatsoever; umquhile Tomas Hepburn of Humby, in his Contract of Marriage. with Elizabeth Iohns●oun, provides the said Estate to the Heirs-male, and provides 25000. marks for the Daughters, there is a Clause of the Contract, Bearing, that it should be leisome to the said Thomas, at any time, during his Life, to alter the said Provision, or to dispone thereof, according to his pleasure; thereafter, upon Deathbed he Disponed the whole Estate, in favours of his Daughter of the Marriage, being his only Child, Adam Hepburn his Brother, as Heir-male, intents Reduction of that Disposition, as being done in lecto Aegritudinis. It was alleged, for the Defender, primo, Minor non tenetur placitare de Haereditate Paterna. The Defender is Minor, and now the Question of Reduction is, upon her Father's heritage. It was Answered, that the maxim holds not, where the Question is of the Disposition made to the Minor, whether valid or not, but where the Question is not upon the Minors Right, but upon the Father's Right; which Right of the Fathers, or Predecessors, the Minor is not holden to Dispute. The Lords repelled this Defense, in respect of the Reply. 2dly. It was alleged absolvitor, because the Pursuer having only a Personal Provision, in his Favours, conceived in the Contract of Marriage, and there being as yet, no Infeftment to Heirs Male, the maxim, that no deed upon Deathbed, can be prejudicial to Heirs, can be extended to none, but such as are Special Heirs, and not to those who are by destination Heirs, which is less than if a Charter had been granted to the Heir Male, which according to craig's Opinion, is but as nudum pactum, and an uncompleat Right and could not compel the Heirs of Line, to Resign: The Pursuer answered, that the maxim is general, and there is no Distinction by Law, or Custom; whatsoever the Heirs be, so that a Person having a Right to heritable Bonds, bearing Clause of Infeftment, whereupon no Infeftment had followed, could do nothing upon Deathbed in prejudice of the Heirs, who would have succeeded unto those Bonds, as to craig's Opinion of a Charter, it is against Law, and the common Opinion now received that a Charter, or any Provision in Write is effectual against the granter, and his Heirs to compel them to complete the same. The Lords repelled this Defense. 3ly. It was alleged, absolvitor, because the maxim, can be only understood of the Heir of Line, as nearest of blood, so that nothing can be effectually done in their prejudice, but here the Disposition, is but in prejudice of an Heir Male, and in favours of an Heir of Line, in respect of whom the Heir of Male is but a Stranger, which is the more clear, because this maxim being very ancient, was produced before their was any Heir Male, or of Tailzie; and because the Reason of the Law is founded upon the Natural Obligation, Parents and Predecessors have, of providing their Successors, and so can do them no prejudice: especially, when they are weak, and on Deathbed. The Pursuer answered, as before, that the maxim is general; and there is no distinction introduced by Law or Custom of Heirs Male: and albeit the Law had introduced such Heirs since this Common Law; yet in so far as it makes them Heirs. It gives them the Privilege of Heirs, to which the Reason of the Law doth well Quadrat, which is not that Natural Obligation, but this presumption of Law, that Persons on Deathbed are facile, and weaker in their Capacities then at other times, and therefore the Law disables them at that time, to alter the Setlment of their Estates, as they were in their Health; and so allows of no deed, in prejudice of any Heir of whatsoever kind, although in favours of another. The Lords repelled this Defense. 4ly. It was alleged, that the Defunct, having himself constitute this interest of the Heir Male, had reserved this power to himself, to alter it during his life, can signify nothing, unless it Empower him to do it on Deathbed, because, without any such Reversion, he might have altered the Tailzie, during his Leigpoustie. The Pursuer answered, Pactum privatorum non derogat jure communi; Therefore this being a special part of our common Law, anterior to either Act of Parliament, or Practic, no private Provision, or Reversion can capacitat any Person to do that which the Law declares void; especially, being upon a Reason of weakness and infirmity, which is presumed in Persons on Deathbed, presumptione juris & de jure, admitting no contrary probation, for it will not be admitted, to prove that the Disponer was in perfect soundness of mind, and therefore, if any Person should reserve a Power to Dispone, though he were not compos mentis: the Reservation would signify nothing, so here neither is the ordinary word adjected, etiam in articulo mortis, or on Deathbed, and so cannot be extended to that case and can reach only to what is done lawfully, legittimo tempore & modo, and there is far less inconvenience, that a Cause should be superfluous, which is very ordinary, then that it should extend to take away common Law, neither is the Provision adjected as an express condition upon which the Tailzie was made, and no otherwise. The Lords repelled also this defence, in respect of the Reply, and so having advised all the Defences, and Disputes in the afternoon, albeit the Parties had agreed before hand, and the Heir of Lynes Portion doubled, yet the Lords were generally clear in the Decisions abovewritten, as relevant in themselves. James Cuthbert of Dragakers contra Robert Monro of Foules. February 26. 1663. THe said james pursues the said Robert Monro, as Heir to his Predecessor the Laird of Foules, for payment of a Debt due by him, and insists against him as behaving himself as Heir, by intromission with the Movable Heirship. The Defender alleged absolvitor, because it was not condescended, that the Defunct was a Person who could have an Heir, as to Heirship Movable, as being Prelate, Baron or Burgess, and if the Lands of Fowls be condescended on: It is offered to be proven, that he was denuded by apprizing, before his Death to which apprizing he had Right before he was Apparent Heir, being Tutor to another, who was Apparent Heir for the time, and therefore the Defender has neither behaved himself as Heir, by Intrommission with the Movable Heirship, or the Rents of the Defuncts Lands. 3dly. The Defender died Rebel, and his Escheat Gifted, and Declared, and so nihil habuit in se bonis, and could have no Movable Heirship. It is answered, for the Pursuer, to the first, non relevat, that the Lands were apprised from the Defunct, unless the Legal had been expired, yet semel Baro semper Baro. 3ly. The Pursuer having taken Right to the apprizing, while he was Tutor ipso facto, it accresced to the Pupil, and thereby was extinct, and cannot defend his Intromissions. 4ly. It was for a small Sum, and satisfied by Intromission of a year or two, so that the continuance of the Apparent Heir in the Possession, after he was satisfied is gestio. 5ly. The Gift and Declarator, if it was done during the Rebel's Life, it was simulat ●etenta possessione, and so null. The Lords found the apprizing not to purge the Intromission, unless the Legal had been expired, in Movable, and his Apparent Heir might behave himself as Heir, by Intromission with the Rents of the Apprysed Lands; but if the Legal was expired, they found it sufficient, and that semel Baro semper Baro is only to be understood presumptive, nisi contrarium probatur, as also they found the Defender his taking right to the apprizing, while being Tutor, or continuing in Possession after satisfaction thereof, by Intromission not to infer the passive Title, and that the Gift and Declarator did take away the Heirship movable, unless it were offered to be proven simul, or retenta possessione during the Rebel's life-time. Lady Milntoun contra Laird of Milntoun. February 27. 1663. THe Lady Milntoun pursues the probation of a Tenor of a Bond granted by Maxwel of Calderwood, her Husband, bearing, that in respect of his Facility he might be induced to dispose of his Wife's Liferent, and thereby redact them both to want and misery; therefore he obliges himself not to dispose thereof without his Wife's consent, seeing he had no means but what he got by her, hereupon she used Inhibition, which she now produces as an Adminicle, and craves the Tenor of the Bond to be made up by Witnesses. The Defender having alleged. that there behoved here to be libeled and proven a special causus omissionis, because albeit it were proven that such a Bond once was, yet unless it were also proven how it was lost, it must be presumed to have been given back to the Husband, granter thereof, whereby he is liberat, and this is the course observed in the Tenors of all Bonds of borrowed Money. The Pursuer answered, that this was not like a Bond of borrowed Money, the intent whereof is, not to stand as a constant Right, but to be a mean to get payment; but this Bond by its tenor was to stand as a constant Right, to preserve the Dilapidation of the Liferent, and so cannot be presumed to have been quite by redelivery thereof; albeit it had been in the Husband's hands. The Lords before answer to this Dispute● Ordained the Pursuer to condescend what the effect of this Write would be, if it were made up; for if it have no effect, there were no necessity to make it up. The Pursuer condescended upon the effect thereof thus, that it would be effectual as an Interdiction published by the Inhibition, to annual and reduce the Disposition of the Pursuers Liferent, made by her Husband, without her consent, in favours of Milntoun, her Step-son 2. This Bond being accessary to the Contract of Marriage betwixt the same, and the Marriage is pactum dotale, and must have the same effect, as if it were included in the Contract of Marriage; and so is a Provision for Securing of the Pursuers Liferent to herself, and that no Deed by her Husband, without her own consent, should be effectual. The Defender alleged that none of these Condescendences could be effectual, not the first, because if the foresaid Bond were an Interdiction, it would have no effect, unless it were instructed that the granter thereof were prodigus, and if it were Instructed that he was rei suae providus, it could take away the effect thereof, because an Interdiction is nothing else but constitutio Car●●torum prodigo; where albeit it is done of course, periculo facientis sine causae cognition with us: Yet if it be on an false Ground and Narrative, its ineffectual. 2ly. Though it could be instructed, that the Husband was levis; yet the Interdiction is null, being to his own Wife, who cannot be his Curator, being sub potestate viri: Nor Curator to any other, much less can her Husband be made her Pupil, contrair to the Law Divine and Humane. Neither could the Bond be effectual, as a Provision adjected to the Contract of Marriage, because it being from an Husband to his Wife, so soon as he was Married, it returned to himself, jure mari●i, because nothing can consist in the person of the Wife, which belongs not to the Husband, jure mariti, being movable, except an Aliment formerly Constitute to her in a competent measure. The Pursuer answered that she opponed the Bond, and further offered to restore to the Defender, all that he gave for the Disposition of her Liferent. The Lords after they had Reasoned the several Points, in jure, and found that without the offer, the Bond could not be consistent as an Interdiction, in so far as concerned the Husband to annul the Disposition, but were inclined to Sustain the same for the Wife, in so far as might extend to a competent Aliment of her Family to herself, Daughter and Servants, not excluding her Husband: Yer they found the offer so reasonable, to Repay the Sum Paid for the Liferent, being 5000. marks, and the Liferent itself being eight Chalder of Victual, and eight hundred marks, that they found the effect of the Tenor would be to Restore either Party, hinc inde, but desired the Pursuer to let the Defender keep the Possession of the House and Lands, wherein there was many Woods newly cutted, he finding Caution to pay her eight Chalder of Victual, and eight hundred marks, which his Father was obliged to make them worth by the Contract of Marriage. Sir William Gordoun of Lesmore contra Mr. James Leith. june 10. 1663. SIr William Gordoun of Lesmore pursues Mr. james Leith of New-lesly, as representing his Father, on all the passive Titles, and condescended that he behaved himself as Heir, by meddling with his Father's Heirship movable, and with the Mails and Duties of his Father's Lands of New-lesly and side. The Defender answered to the first, that his Father could have no Heirship movable, because he died Rebel, and so his hail Goods belonged to the King as Escheat. 2ly. If need beiss, he offers him to prove that he died not only Rebel, but his Escheat was Gifted, and so as a Confirmation takes away vicious Intromission Movables. So the Gift with the Escheat must purge vicious intromission with Heirship, being before intenting of this Cause. 3ly. He offers him to prove that the Heirship movable was Confirmed promiscuously with the rest of the moveables, and that the Defender had right from the Executor, which Confirmation, though it could not be effectual to carry the Heirship, yet it was a collourable Title, to show that the Defender had not 〈…〉 miscendi, but that he meddled by a singular Title, and neither formerly drew an Heirship, nor meddled therewith, as Heir appearing. The Pursuer answered to the first, that it was not relevant that he was Rebel, nor that his Escheat, unless it had been Gifted before his Intromission, as well as before intenting of the Cause, and that the Defender had Right from the Donator. To the second, it was answered by the Pursuer, that the promiscuous Confirmation was not sufficient, because he offered him to prove, the Defender Confirmed his own Servant to his own behoof. The Lords found that the Defenders Father dying Rebel, was not sufficient, unless it had been Gifted, and declared before intromission, and they found the Reply Relevant, that the promiscuous Confirmation was to the Defenders behoove. As to the second Member of the Condescendence, the Defender alleged,. that albeit his Father was Infeft, yet his Infeftment was only base, not clad with Possession; and that the Defenders Title was by another Party, Possessing, and publicly Infeft before his Father's Death. Which the Lords found Relevant. james Allan. contra james Paterson. june 17. 1663. JAmes Allan charges james Paterson as Cautioner in an Indenter, for a Prentice, set to the Charger for five years, and insists upon that Article of paying two days wages for ilk days absence, and subsumes that the Prentice left his Service after the first two years, and was absent three years, The said james Paterson Suspends on this reason, that it must be presumed Collusion betwixt the Charger and his Prentice, that having gotten the Prentice Fee, and not learned him the Trade, he had suffered him to escape, never making intimation to the Suspender, that he might have brought him back to his Service, while now that he is out of the Country, and not knowing where. The Charger answered, that there was nothing to oblige him to make such intimation, neither could a sufficient presumption of Collusion be sustained. The Lords found the Letters orderly proceeded, either while the Cautioner caused the Prentice Re-enter, and serve out his time, or otherways paid fifty pound for damnage and interest, to which they modified the Charge. Margaret Fleming contra james Gilleis. june 18. 1663. MArgaret Fleming being Infeft in an Annualrent of 700. marks out of Houses in Edinburgh, in Liferent, with absolute warrandice from all dangers, perils and inconveniencies whatsomever; pursues Declarator against the said james Gilleis, as Heretor, for declaring that her Annualrent should be free of all public burden, since the rescinding of the Act of Parliament 1646. whereby Liferenters were ordained to bear proportional part for their Annualrents, with the Heretors. The Defender answered, the Libel was not Relevant, for albeit the Act of Parliament was rescinded, the justice and equity thereof remained, that whatever burden were laid upon Land, shouldly proportionably upon every part thereof, and every profit forth of it. Which Defense the Lords found Relevant and Assoilzied. Francis Hamiltoun contra Mitchel and Keith. Eodem die. SIr Alexander Keith of Ludquharn being obliged by Bond to Robert Mitchel in Leith, for the price of certain Bolls of Victual, was arrested in Leith, till he found Francis Hamiltoun Cautioner as Law will, and both being pursued on the Act, raised Advocation on this reason, that the Bailies of Leith had unjustly forced him to find Caution as Law will; he not being dwelling in Leith, nor Leith not being a Burgh Royal, but a Burgh of Barony. It was answered, that the privilege and custom of the Town of Edinburgh, was to arrest within Leith, and all other privileges and pendicles thereof. The Lords found that it behoved to be condescended, in what place of Leith Ludquharn was arrested, for the Peer of Leith was a part of the Burgh Royal of Edinburgh, and was served by a Bailie of Edinburgh, called the Water bailie, and if he was arrested there, it was valid, but the rest of Leith is but a Burgh of Barony, and in that part thereof, the bailie is called Baron bailie, it were not valid. Euphan Hay contra Elizabeth Carstorphine. June 19 1663. THe said Euphan having obtained Decreet against the said Elizabeth, for certain Furnitur to her House. She suspended on this reason, that her Husband was not called. The Charger offered to prove, in ●ortification of her Decreet, that her Husband was 20. years out of the Country, and she repute as Widow. Which the Lords found Relevant. George Reid contra Thomas Harper. Eodem die. THese Parties competing in a double Poinding, George Reid craved preference, because he was assigned to the Mails and Duties by Thomas Mudie, Heretor of the Land. Thomas Harper alleged that he had arrested the Duties upon a Debt owing to him by William Mudy, Father to the said Thomas, and any Right Thomas had, was fraudulent and null by exception, by the express words of the Act of Parliament 1621. being betwixt Father and Son, without any onerous Cause, and he ought not to be put to Reduce in re minima, his Debt being within a 100 pound. The Lords found he behoved to Reduce, conform to their constant Custom in heritable Rights. Ferguson contra Ferguson. June 23. 1663. UMquhil Ferguson in Restalrig, having a Tack set to him by the Lord Balmerino for certain years, his eldest Brother Son as heir of Conquest, and his youngest Brother Son as heir of Line, competed for the Mails and Duties of the Lands. The Lords found the Tack to belong to the Heir of Line, albeit it was Conquest by the Defender. Mcdowgal contra Laird Glentorchy. June 24. 1663. Mcneil having Disponed certain Lands to Mcdowgal, wherein he was Heir apparent to his Goodsyrs' Brother, obliged himself, to Infeft himself as heir therein, and to Infeft Mcdowgal, at least to renunce to be heir to the Effect, Mcdowgal might obtain the Lands adjudged, whereupon Mcdowgal having raised a Charge to enter heir, Mcneil renunces, and thereupon Mcdowgal craves the Land to be Adjudged, and Glentorchy Discerned to receive and Infeft him; Glentorchy alleged, that he could not receive him, because he had right to the Property himself, unless the Pursuer condescend and instruct his authors, in whose place he craves to be Entered, had Right. The Pursuer answered, that lie needed to instruct no Right, nor was he obliged to Dispute the Superiors Right, but craved the ordinar course to be Entered, suo periculo, with reservation of every man's Right, and the Superiors own Right, as is ordinary in Appryzing and Adjudications. The Defender alleged, that albeit that was sustained in Appryzing, where the Superior gets a years Rend; and though it might be allowed in ordinar Adjudications, proceeding upon a liquid Debt, favore creditorum; yet not in such a Case as this, where the Vassals apparent Heir Dispones, and obliges himself to Renunce of purpose, to Charge his Superior. The Lords found no Process, till the Pursuer instructed his Author's Titles; But an Infeftment being produced, he was not put to Dispute the validity thereof, in this instance. Menzeis contra Laird Glenurchy. Eodem die. THe Daughters of Mr. William Menzeis, as Executrix to him, pursues Glenurchy for payment of a Bond due to their Father, he alleged minority and Lesion, and that he had Reduction thereupon depending. The Pursuers answered no Lesion; because this Bond being granted to their Father, for his Stipend by the Defender, who was Heretor of the Land, he was not leased, because as Heretor he was liable for the Stipend. The Defender answered that his being Heretor could not Oblige him, because his Grandfather was then living, whose Liferent was reserved in his Disposition; who, and the intrometters could only be liable, Stipends not being debita fundi; and it were of very evil consequence, if the Heretor were liable, during the whole life of a Liferent. The Lords found that there being a Liferenter, the Heretor was not liable, and therefore sustained the Reason. Elizabeth contra Eodem die. THe said Elizabeth pursued the Executors of her Husband, and insisted upon several points; First, she craved the Ann, as belonging wholly to her, seeing there was no Children, and the Ann being in favours of the Wife and Children, the nearest of Kin could have no part thereof. The Defenders answered, that the Ann was introduced the time of Popery, when the had no Wife nor Bairns, and so did still most properly belong to the nearest of Kin, who would get it, if there were neither Wife nor Bairns. The Lords found the Ann to divide betwixt the Pursuer and the nearest of Kin. The Pursuer insisted next, and alleged, that a Bond bearing Clausses of Annualrent and Obligement to Infeft, behoved either to give a Right to the half of the Stock, or else to a Terce of the Annualrents. The Lords found the Clausses of Annualrent and Destination, to exclude her from the Stock as Heretor, and the want of Infeftment to exclude her from the Terce of Annualrent. The Pursuer insisted in the next place, and produced a Bond granted by her Father to her Husband, and here the longest liver of them two, and the heirs procreate betwixt them, without any addition or termination, failzing these heirs, and without Clausses of Annualrents or Infeftment, and therefore she claimed the whole Sum as being the longest liver. It was answered, that this Bond did Constitute in her only a Liferent, according to the ordinar conception and interpretation of that Clause, the longest liver of them two betwixt man and wife; but especially heirs procreate betwixt them, being mentioned, which behoved to be the man's heirs, who if they had existed, would have had right as heirs to their Father, not to their Mother; and therefore the Father behoved to be Feear, and the Mother only Liferenter. It was further alleged, that beside the Liferent, the Pursuer behoved to have right to the half of the Stock, because the sum being movable, albeit the Tenor of the Bond made it payable to the Relict for her Liferent use, yet she behoved to employ it so, as the Stock would remain; which Stock would still be divisible betwixt the Relict and nearest of Kin, as being movable. The Lords found that the Pursuer might take her choice of the Liferent, or of the half of the sum, but would not allow her both. james Halyburtoun contra Lord Roxburgh. january 25. 1663. JAmes Halyburtoun as assignee Constitute by his Father, pursues the Earl of Roxburgh, for payment of a Debt due to his Father. The Defender alleged no Process, because the Assignation was not intimate in the Cedents Life, and so he was not denuded, but the sum remained in bonis defuncti. and behoved to be Confirmed, especially, seeing this Assignation is a general Assignation, omnium bonorum, without condescending upon this or any other particular. The Lords Repelled the Defense and found Process. Ninian Stevart of Askoege contra Stevart nf Arnhome. Eodem die. NInian Stevart as heir to his Father Askoege, pursues Reduction of a Transaction of a Tack, which Tack was Assigned to him by his Wife, and by him Transferred to john Stevart heir of a former Marriage. The Reason of Reduction was, because the Translation was on Deathbed, in prejudice of the heir. The Defender alleged Absolvitor, because the Pursuer is Witness in the Translation, which imports his consent. The Pursuer answered that Subscribing as Witness, could import no more, but that the Witness saw the Party Subscribe, but did not oblige to take inspection of the Contents of the Write. 2ly. The Pursuer when he Subscribed was minor. The Defender answered, that in this Case, the Subscribing as Witness behoved to import consent, because that very Subscription itself by the Father, being sick, did import a Deed done on Deathbed; Especially it not being a Testament but a Writ, inter vivos; and for the minority, the Pursuer was in confinio majoris aetatis, and suffered the Defender to possess twenty years, long after his anni utiles was passed. The Lords found the Subscription, as Witness in this Case to import consent, and being quarrelled inter annos utiles, they found sufficient to a minor, though in Confirmation. Gordon contra Frazer. july 3. 1663. GOrdon having Confirmed himself Executor Creditor to Forbes of Auchinvil, pursues 〈…〉 Frazer his Relict for Delivery to him of the Movables, who alleged absolvitor, because the Movables upon the Mayns of Achnivil, were Disponed to her by her umquhil Husband. it was answered, that the Disposition was simulat, inter conjunctas personas retenta possessione, and therefore null. It was duplied, that the Disposition was upon an onerous Cause without simulation, because it bears to be in respect that by the Defuncts Contract of Marriage, he is obliged to Infeft his Wife in five Chalder of Victual out of Auchnivil, for the Aliment and Entertainment of his younger Children, till the age of fourteen years; and because he was necessitate to sell that Land, therefore he Disponed the moveables in leu thereof, which is also instructed by the Contract of Marriage. The Pursuer answered, that this is but a provision to Children, and could not be preferred to the Defuncts Creditors, especially being a provision before the Children were existent, and if such should be allowed, it were easy upon such latent provisions, in favours of Children to prejudge Creditors. The Defender answered, that if the Pursuers Debt had been anterior to the Contract of Marriage, he might have had ground upon the Act of Parliament 1621. but this Debt was posterior to the Contract, and there was no reason to hinder a Parent to provide his Children, and Dispone Movables to him in satisfaction thereof. The Pursuer answered, that both being yet but personal obliegements, not having obtained effectual Possession; the Creditor though posterior, must be preferred to the Children, especially if the Defunct have not sufficient Estate to pay both. 2ly. The Disposition is upon a false Narrative; because the Lands of Auchnivil are yet undisponed. The Lords found that the children's Disposition ought to be preferred, unless the Father were insolvendo at his death: in which case they preferred the Creditors, though posterior; and likewise found the alleadgence Relevant, that the Narrative was false, and so the Disposition without a Cause. Isobel Mow contra Duchess of Bucleugh. july 7. 1663. THe said Isobel having Served Heir to William Mow, her Grandsire Charges the Duchess as Superior, to receive her; she Suspends, and compearence is made for certain persons, to whom the Chargers Father had Disponed the Lands in question, who raised Reduction of the Defenders Retour and Infeftment, upon this Reason, that the Retour was null, Serving the Charger Heir to her Grandsire, as last Vest and Seized, whereas they produced the Infeftments of their Uncle and Father, as Heirs to their Grandsire in these Lands; and therefore instructed that her Grandsire died not as last Invest and Seized, as of Fee, but her Father their Author. It was answered for the Charger, that the Retour could not be taken away, hoc ordine, by Reduction, but behoved to be by a Summons of Error, for Reducing the Service by an Inquest of Error, to be pursued in Latin, by a Precept out of the Chancellary. It was replied, that there needed no Service of Error, but the Retour and Infeftment might be Reduced, unless there had been the question of propinquity of Blood, of a nearer Heir, which might have made the Inquest an Assize of Error, which could not be in this case, seeing the Inquest had done their Duty, who 〈…〉 produced one of the Grandsires Seasine found him to have died last Vest and Seized, as of Fee, and neither could know, nor was obliged to know, that there was a posterior Infeftment to the Defenders Uncle or Father. The Lords found the Reduction receivable, hoc ordine. Hamiltoun contra a Dumb man in Glasgow. july 9 1663. THis Dumb Man having Right to an Annualrent of twenty pound yearly out of a Tenement in Glasgow, thereupon 〈…〉 Hamiltoun his Creditor having arrested, and obtained Decreet for payment of this Annualrent, in Satisfaction of the Dumb-mans' Debt. It was alleged for the Person whose Bond was liable for the Annualrents, Absolvitor for five years thereof, because he had paid these years to the Dumb-mans' Sister by his consent, in so far, as he Delivered the Money to the Sister in presence of the Dumb-man, and obtained her Discharge thereupon, in his name; subscribed also by him, with the initial Letters of his name. It was answered, non relevat, because the Discharge bore not that the Dumb-man received the same, but his Sister: and bears that she is obliedged to warrant it at the Dumb-mans' hand, and his presence, and seeing of Money Delivered, and his Subscription cannot import his consent, because he being Dumb could not know what the extent of the Sum was, nor whatfor years it was. The Lords Repelled the Defense in respect of the Reply. Mr. Thomas Kirkcaldy contra Mr. Robert Balcanquhil, and Heretors of Tranent. Eodem die. THe Heretors of Tranent raised a double poinding against Mr. Robert Balcanquhil, on the one part, and Mr. Thomas Kirkcaldy, on the other part, both claiming the Stipend of Tranent, 1662. It was alleged for Mr. Robert Balcanquhil, he ought to be preferred, because he was Minister at Tranent, by Presentation, and Collation, long anterior to Mr. Thomas Kirkcaldy; and albeit he was Deposed in Anno 1648. yet he was Reponed by the Bishop of Edinburgh, and Synod of Lothian, in October 1662. because of that Narrative, that he was unlawfully Deposed in Anno 1648. and so being Reponed before Martinmass 1662. he thereby must have Right to the half, due at Martinmass 1662. It was answered for Mr. Thomas Kirkcaldy, that Balcanquhils' Repossession being after Michaelmess, 1662. which is the Legal Term of Stipends, and he having Served till that time, by a Title standing, Reposition can operat nothing before its Date, and so cannot reach to Michaelmass Term: The Lords preferred Mr. Thomas Kirkcaldy to the hail year. William Hay contra john Nicolson. june 16. 1664. JOhn Nicolson having granted an Assignation in Anno 1653. of a Bond granted to him by james Crightoun, Sheriff of Nithisdail, principal; and umquhil William Livingstoun Cautioner, the name of the assignee was left blank till 1663. at which time William Hayes name was filled up, and which Assignation contained a Clause of Warrandice against all deadly, as Law will: William Hay having used Execution on the Assignation, against the Principal and Cautioner in the Bond, returns upon the Warrandice, and Charges Nicolson, who Suspends on this Reason, that the Clause of Warrandice, as it is conceived in the Assignation, could import no more, then that the Debt Assigned, was a real Debt resting, and not to be Evicted by any other Right, Especially seeing it did not bear expressly, to warrant it to be good, valide and sufficient, which might infer to warrant, not only that the Assignation should clear the Right of the Debt, but that the Debtor should be solvendo. And secondly, considering that there is no onerous equivalent Cause for granting the Assignation, Nicolson the Creditor might have Discharged, Livingstoun the Cautioner, and given him an Assignation, that he might thereupon Charge the Principal. The Charger opponed the Clause of absolute warrandice, which have ever been esteemed to reach to the Debtors, being solvendo. The Lords found the Claúse thus conceive, could not extend to the sufficiency of the Debtor. Thomson contra Reid. june 15. 1664. JAmes Thomson in Cryle having apprised certain Tenements in Edinburgh, from james Sinclar, pursues james Reid, as one of the Possessors, for Mails and Duties, who alleged that he had bruiked by Tack from james Sinclar, before the apprizing; which Tack bare 80. pound of Tack Duty, and to continue for seven years, and bore expressly a provision, that the said james Reid should retain the Annualrent of 600. marks adebted to him by Sinclar, as a part of the Tack Duty, and that he should not be removed, until the said 600. marks were paid. The Pursuer answered, that the alleadgence was no way Relevant, to account the payment of the 80. pounds of Tack Duty to the Pursuer, out of which the Defender could have no Retention of his Annualrent, because that is but a personal provision, adjected in the Tack, and no part of the Tack, and can work no more, then if such a Provision had been made out of the Tack, in which Case it would only have been a part of the Tack Duty in Compensation of the Annualrent, as an Assignation, would not be effectual against a singular Successor, and would endure no longer than the Land was his, who assigned the Duties; So now the Land ceasing to be Sinclars, the Assignment or Alocation thereof, to be retained for satisfaction of the Annualrent, is not Relevant against this Appryzer, no more than that part of the Clause, by which the Defender is provided, not to remove till his Sum be paid, which was never sustained to be effectual against a singular Successor. The Defender answered, that this Defense stood Relevant, because the Clause of Retention, is adjected immediately to the Tack Duty, and so is as a part thereof, and so is real and Effectual against a singular Successor, because if Sinclar had set the Tack for a grot, it would have been valid; and therefore might more set it for the satisfaction of the Annualrents, and so much Duty further. The Lords Sustained the Defence, that seeing there remained a Tack Duty, over and above the Retention of the Annualrent, and that the Tack had a particular Ish of seven years, that it was valid; but found the Case dubious, if there had been no Tack Duty over and above the Annualrent; but that the Land had been either set expressly for satisfaction of the Annualrent, or for such a sum equivalent thereto, to be retained: In which case the Tacks would want a Tack Duty to the present Here●or; but they ●ound the Clause, for not Removing till the money were paid, but only to be personal, and not effectual against a singular Successor. Murray contra the Executors of Rutherfoord. june 16. 1664. JAmes Murray pursues the Executors of Katharin Rutherfoord, Wife to Doctor Guild, to pay a Legacy of 600. merk, left by Katharin in her Testament to james, in these words, I leave to james Murray 600. marks, whereof 200. marks is in his hand, due to me by Bond; which Bond I ordain to be delivered up to him, and four more, to be paid to him. The Defender alleged, that they could be obliged no further then to Discharge the Bond of 200. marks, with warrandice from their own Deed. The Pursuer answered that the Bond belonged to Doctor Gild the Husband, jure mariti, and was recovered by his Heirs and Executors, already from the Defender; and therefore this being legatum rei alienae. The Defender behoved to make it effectual, and to pay it out of the Defuncts free Movables, especially seeing 600. marks was left, and the Adjection was but the Destination of the manner of payment of it, by Liberation; and which failzing, the principal Legacy stands, and must be fulfilled and adduced, a Decision the last Session, betwixt contra whereby a Legacy of a heritable Bond was ordained to be made up by the Executor, out of the Movables. The Defenders answered, that their Defences stood yet Relevant; for Legacies being poor Donations, did not carry warrandice, so that a thing Legat being Evicted, the Legator had it but cum peri●ulo, and that in the Law, legatum rei alienae est praestandum; because Legacies being favourable, whereby the Testator leaves there expressly, under the name of that which belongs to another, his meaning is extended, to purchase that, or the value thereof to the Lagator; but where he leaved it as his own, and his knowledge of the Right of another, appears not there, as in all Donations, the Legator hath it upon his peril, without warrandice; as if a Testator should leave a Bond, or sum, to which he had right by Assignation, if it were found that there were a prior Assignation intimat, and so the sum Evicted, the Lagator would have no remeid: Or if he left a sum due by a Bond, defective in some necessary Solemnity, as wanting Writer and Witness, such Bond failing, the Legator could not return upon the Executor, and for the instance of an heritable Bond, that is not alike, because it was not res aliena, but propria testatoris, though not testable. The Pursuer answered, that Legacies were most favourable, and ever extended, and that this was lega●um re alienae & ex scientia testatoris, for the Testatrix that a Bond conceived in her name, during the Marriage, would belong to her Husband, jure mariti, at least she was obliged to know the same, for s●ire & scire debere, parificantùr in jure. The Defender answered, that the Action hold not in mulieribus presertim ubi questio est in partibus juris; as in this Case the Testatrix was, and might be ignorant of the Extent of the jus maritime. The Lords Repelled the Defences, and sustained the Libel and Reply, to make up the palpable and known Law, that the Testatrix was Repute, as knowing the same, and that having a half of her Husband's Goods, Testable by her, she might leave the sum as a part of her half, that there was no necessity to divide every sum, but the whole, as many Co-executors discharging a Bond, the Discharge is Relevant, not only for that Co-executors part, but for the whole Bond, if that Co-executors part exceeded the value of the Bond, but the Lords did not find that the Executors behoved to make up every Legacy, that were evicted, or that they were liable, the evictione. Tulliallan and Condie contra Crawfoord. Eodem die. TVlliallan and Condie pursues a Declarator of an apprizing, led against them, as satisfied and paid within the Legal, by Intromission, and as an Article, adduces a Discharge of a part of the Sum apprised. The Defender alleged, that the alleadgence was not now competent, because it was res judicata, before the Lords of Session, in Anno 1637. where the same alleadgence being proponed in a Suspension. The Lords found not the same instructed; and therefore found the Letters orderly proceeded, yet conditionally superseding Execution of the Decreet, till such a day, that in the mean time, if the same were instructed; the Instructions should be received, and nothing was produced during that time, so that it cannot be received more, than 27. years thereafter to take away an apprizing clad with long Possession, and now in the Person of a singular Successor. The Pursuer answered, that his Declarator founded upon the said Article, was most just and relevant; it being now evident, that the Sum apprised for, was paid in part, and as for the point of formality, albeit in ordinary Actions, where Terms are assigned to prove, and so a competent time granted to search for Writs, if Certification be admitted regularly, it is valide, and yet even in that case, the Lords will Repone, upon any singular accident in a Suspension, ubi questio non est de jure, sed de executione. The Lords would not delay Execution, unless the Reasons be instantly verified. Yet in petitione, will not take away the Right. The Lords sustained the Defense, and would not sustain the foresaid Article, in respect of the Decreet, in foro contradictorio, though in a Suspension here, there was no Alleadgence that the Writs were new come to knowledge, or newly found, nor could be, because it was alleged one in the Decreet. Mr. john Hay. contra the Collectors of the vacant Stipends. june 17. 1664. THe Parochiners of Manner, which is a Pendicle of the Parsonage of Peebles, being Charged for the Stipend of the year 1662. Suspends upon double poinding, and calls the Ministers Collectors of the vacant Stipends, and the Parson of Peebles; the Minister alleged that he was presented by the Parson of Peebles Patron, in August 1662. after which he continued to Preach at the Kirk, and was still upon his Trials till he was Admitted in October 1662. and therefore the whole years' Stipends 1662. belongs to him, because the Legal Terms of Teinds and Stipends, is not as of other Rents, Whitsonday and Martinmass, but one Term for all, viz. the separation of the Fruits at Michaelmess; and therefore if he had had Right to the drawn Teind, he might have drawn the whole, so the whole Tack Duty must belong to him. It was alleged for the Parson of Peebles, that this Kirk being a Pendicle of his Parsonage, and some time served for a less, and some times for a more Stipend, as he agreed; it is not a fixed Stipend, but as a helper, and therefore the vacancy thereof belongs not to the Collector of the vacant Stipends, but returns to the Parson who has Right to the whole Fruits of the Benefice, by his Right of Presentation and Collation. It was alleged for the Collectors of the vacant Stipends, that his Stipend was not as the allowance of an helper, but was a several Congregation, separate from the Parsonage of Peebles, and at the Parson's Presentation, and that no helper has a Presentation, and that the Incumbent, not being admitted till after Michaelmess, has no Right to any part of the Fruits of that year, though he was Presented before, because the Kirk cannot be said to be full, but vacant, till the Minister be admitted. The Lords found that this Kirk having a Presentation, could not return in the vacancy to the Parson of Peebles, and that the Presentation being at Lambas, and the Incumbent serving at the Kirk, and Entering to his Trials immediately, till he was Entered, which was in October thereafter, and that he had Right to the half of that years Stipend, not being presented before Whitsonday, and found the other half to belong to the Collector of vacand Stipends. Lairds of Tulliallan and Condie contra Crawfoord. Eodem die. THe Lairds of Tulliallan and Condie, as having a Right from him, pursues Declarator of the Expiration of an apprizing, led at the Instance of Crawfoord, to which Margaret Crawfoord his Daughter, has now Right, and condescends that the sum apprised for, was satisfied within the Legal by Compensation, in so far as Tulliallan had Right to a Contract, whereby Crawfoord the Appryzer was obliged to deliver so many Chalders of Coal weekly, or in Case of Failzie, four pounds for ilk Chalder. It was alleged for the Defender, that this Article of Compensation ought to be repelled: First, because the said Contract is prescribed. 2ly. The apprizing proceeded upon a Decreet of Compt and Reckoning, wherein an Alleadgence being founded upon the same Contract, was passed from, pro loco & tempore, and so can never now be made use of, to take away that Decreet, much less the apprizing against a singular Successor, who seeing the same past, in tuto, to take Right without the hazard thereof. 3ly. The Defender cannot be obliged after forty or fifty years' time, to prove the Delivery of an yearly Duty of Coal. 4ly. The Compensation is not the liquido in liquidum, because the one is a personal Contract, the other is an apprising and Infeftment; the one hath not a liquid price Constitute, but bears expressly, such a Sum in case of failzie, and not as the price, which being much more, than the ordinar price than is but a personal failzie, which cannot be liquidat till Declarator, and modification of a Judge. The Pursuer answered, that he was evicting the rigour of an apprizing, in causa maxime favorabili. And as to the first alleadgence anent the Prescription, offers to prove Interruption by Arrestments, etc. To the second not Relevant, according to the Custom, before the years 1649. competent and omitted, was not relevant against Decreets of Suspension; But Suspenders might either omit, or pass from their Reasons, and Suspend upon them again, which could not but be alswell effectual against the assignee as the Cedent. As to the third, this Article being instructed by Writ, no presumption, nor less time than Prescription, could take it away. To the which, the Coals having a liquid Sum in lieu thereof, the Article is liquid, and as payment within the legal, will annul an apprizing, so will Compensation, which is equiparat in Law, though the Case would not be alike in a Wodset, against a singular Successor. The Lords found the Defences against this Article relevant, viz. that the Article was not liquid by a Sum, Constitute expressly for a price, and that it being alleged, that in the Decreet this alleadgeance was passed from, and an express reservation, that it might be made use of against any other just Debt, then that which was in the Decreet, whereupon the apprizing proceeded. The Lords had also consideration, that the Legal of the apprizing was not yet expired. Lion of Muirask contra Laird of Elsick. Eodem die. Lion of Muirask pursues the Laird of Elsick upon a Debt of his Fathers, as Successor titulo lacrativo. The Defender alleged absolvitor, because any Disposition he had from his Father, was in his Contract of Marriage, whereby 10000● marks of Tocher was received by his Father, and 14000. marks of Debt more, undertaken for his Father, with the burden of his Father's Liferent. The Pursuer answered, the alleadgeance ought to be repelled, because he offered him to prove, that the Land Disponed, was then worth forty or fifty Chalders of Victual, so that the Cause onerous was not the half of the value; and therefore as to the Superplus, he was Lucrative Successor. The Defender answered, that any onerous Cause, or price, though incompetent, was enough to purge this passive Title, and albeit the Pursuer might reduce the Right, and make the Lands liable, because the Cause was not onerous and equivalent, yet he could not be personally liable in solidum, for all the Defuncts Debts. The Lords having seriously considered the business, after a former Interlocutor the last Session, Assoilzing from the passive Title, but finding the Lands redeemable by the Pursuer, or any other Creditor, for the sums paid out, did now find further, that the Defender was liable for the superplus of the just price of the Land, according to the ordinar Rate the time of the Disposition, and that the superplus over and above what he paid or undertook, aught to bear Annualrent, as being the price of Land. james justice contra Earl of Queensberry. Eodem die. IAmes justice as having right to a Bond of 6000. marks, due by the Earl of Queensberry, pursues the Earl, and the Lord Drum●anrig his Son, as taking his Estate, with the burden of his Debt, to pay it; who alleged no Process, because the Pursuers Right was an Assignation, granted by a Tutrix, not bearing in Name of the Pupil, or as Tutrix, in his Name, because being in infancy he could not subscribe: but bearing to be done by her, as taking burden for the Pupil. The Lords found the Assignation not formal, not bearing the Pupil Disponer with his Tutrix, but yet found the Letters orderly proceeded, the Charger before Extract, producing a Ratification by the Pupil and Tutrix formally done. Laird of Prestoun contra Nathaniel Ebred. june 24. 1664. THe Laird of Prestoun pursues Reduction and Improbation, against Nathaniel Ebred, of all his Rights of certain Lands. The Defender alleged Absolvitor, because the Lands in question are Abbay-lands, Erected in a temporal Holding, in favour of Prestoun; and therefore by the Act of Parliament, 1633. all such Lands are annexed to the Crown, and the Feu-duties are only found due to the Lords of Erection, ay and while they be redeemed, which is repeited in the 30. Act of Parliament, 1661. and therefore the Pursuer not being Superior, but the King, he has no interest to Improve of Reduce. The Pursuer answered, that he opponed his Infeftment of the Lands holden of the King, with the King's Advocats concourse. The Defender answered, that the Advocats concourse was but ex stilo curiae, and he could make no concourse sufficient, for any Improbation and Reduction, without the King's special order. The Lords found the Defense Relevant and Assoilzied, at which time it was remembered, that Sir Thomas Hope insisting in an Improbation of his Good-son, the same was not Sustained, because it wanted the King's express Order. Town of Cowper contra Town of Kinnothy. Eodem die. THe Town of Cowper having Charged the Town of Kinnothy to desist from Merchant Trade. They Suspend, and allege, that they have the Privilege of Burgh of Barony, in keeping Ostlers, and selling Wine. The Charger answered, that selling of Wine is one of their chiefest and express Privileges. The Lords considering, that this dipped upon the Controversy, betwixt Burgh Royal and Burgh of Barony, which has remained undecided these thirty years, would not Discuss this particular, but found the Letters orderly proceeded in general, ay and while the Defenders found Caution to desist from Merchant Trade, without determining how far that reached. Moffet contra Black. Eodem die. THere being a Bargain betwixt the said Moffet and Black, for some Packs of Plaids, by which it was agreed, that the buyer for satisfaction of the price, should give Assignation to certain Bonds expressed; but there was no mention what Warrandice. At the Discussing of the Cause the Seller craved absolute Warrandice; and alleged, that seeing it was not Communed, that it should be a restricted Warrandice, it behoved to be an Absolute, being for a Cause onerous, and for the price of the Goods. 2ly. Seeing the Agreement required an Assignation in Writ, to Bonds; the Buyer might, re integra resile, seeing neither the Plaids nor Bonds were Delivered. The Lords found that the Buyer, who insisted, behoved either to give absolute Warrandice, that the Bond was not only due, but should be effectual, and the Creditor solvendo, otherways they suffered the Seller to Resile, especially seeing the Bargain was not made first by words, Absolute for such a price, and afterwards that it had been agreed to give such Bonds for that price; In which case the Bargain, though verbal, would have stood. Alexander Falconer. contra Mr. john Dowgal. Eodem die. ALexander Falconer pursues Mr. john Dowgal, for payment of 1000 marks, left in Legacy by umquhil john Dowgal, by a special Legacy of a Bond, adebted by the Earl of Murray, whereupon he conveens the Earl as Debtor, and Mr. john Dowgal as Executor, for his Interest, to pay the special Legacy. The Exceutor alleged, that the sum belonged to him, because he had Assignation thereto from the Defunct, before the Legacy. The Pursuer Answered, that hoc dato, there was sufficiency of Freegoods to make up this Legacy; and albeit it had been legatum rei alienae; yet being done by the Testator scienter, who cannot be presumed, to be ignorant of his own Assignation, lately made before, it must be satisfied out of the rest of the Freegoods. Which the Lords found Relevant. Duke and Duchess of Hamiltoun contra Scots. Eodem die. DUke and Duchess of Hamiltoun, being Charged for payment of a Sum, due to umquhil Sir William Scot of Clerkingtoun, and assigned by him to his four Children, alleged that by Act of Parliament Commission was granted for deducing so much of his Creditors Annualrents, as should be found just, not exceeding eight years; and therefore there could be no Sentence against him, as to that, till the Commission had decided. The Pursuers answered, that these Annualrents were not due for the years during the time the Duke was Forefault by the English, which ended in Anno. 1656. and they insist but for the Annualrents since that year. It's answered for the Duke, that albeit he had paid many of these years' Annualrents by force of Law, then standing, yet that could not hinder the Deduction, but that he would have Repetition or Deduction, in subsequent years. The Pursuers alleged, he behoved to seek the Heir for Repetition, and could not deduce from them. The Lords in respect of the Commission, would not Decide nor Discuss the Alleadgence, anent the years Annualrent, but superseded to give Answer, till the Commission had determined, even till seven years after the Forefaulture, to make up these that was paid before. In this Process, compearence was made for Sir Laurence Scot, the Heir and Executor Dative, who alleged that there was 2000 marks of the Sum belonged to him, because his Father's Assignation to the Children, contained an express Division of their shares, which was so much less than the hail Sum Assigned. The Children answered, they opponed their Assignation, which bore expressly an Assignation to the hail Sum, and Bond itself: and albeit the Division was short, it was but a mistake of the Defunct, and cannot prejudge the Assigneys. Which the Lords found Relevant. George Melvil contra Mr. Thomas Ferguson. june 25. 1664. GEorge Melvil pursues Mr. Thomas Ferguson his step-son for the value of his aliment, after the Mother's Decease. The Defender alleadged● Absolvitor, because the Defunct was his own Mother, and he had no means of his own, and it must be presumed that she Entertained him free, out of her Maternal Affection, and that his Stepfather did the same, after he had Married his Mother. The Lords sustained the first part of the Defense, but not the second anent the Stepfather after the Mother's decease. Alexander Allan contra Mr. John Colzier. Eodem die. ALexander Allan pursues Mr. john Colzier, to pay a sum of ninety two pounds, adebted for the Defenders Mother, and that upon the Defenders Missive Letter, by which he obliged him to pay the same The Defender answered absolvitor, because by the missive produced, he offered him to become the Pursuers Debtor, for the sum due by his Mother, being about ninety two pounds; but by a Postcript, requires the Pursuer to Intimat to him, or his Friends at Falkland, whether he accepted or not, which he did not then till after the Defenders Mother's Death, and so it being a Conditional offer, not accepted, is not binding. Which the Lords found Relevant and Assoilzied. Cauhame contra Adamson. Eodem die. THomas Cauhame having apprised a Tenement in Dumbar, from joseph johnstoun, pursues james Adamson to remove therefrom, who alleged Absolvitor, because this Apprizer could be in no better case, than johnstoun from whom he apprised, whose Right is affected with this provision, that he should pay 600. pounds to any person his Author pleased to nominat; Ita est, he hath Assigned the Right to the Defender, so that it is a real Burden affecting the Land, even against this singular Successor, and included in his Author's Infeftment. The pursuer answered, that albeit it be in the Infeftmen, yet it is no part of the Infeftment, or real Right, but expressly an obliegment to pay without any Clause Irritant, or without declaring that the Disponers Infeftment should stand valid, as to the Right of that Sum. The which the Lords found Relevant, and Repelled the Defense, but superseded Execution until some time that the Defender might use any means he could for making this Sum to affect the Land. Farquherson contra Gardiner. Eodem die. MR. james Farquherson having obtained a Decreet of Spuilzie, against john Gairdiner and others. Gairdiner Suspends on this Reason, that he meddled with the Goods in question, as a Soldier in a Party in Arms, being then in the Regiment of the Master of Forbes, under the Command of the Earl of Midletoun, and therefore is freed by the Act of Indemnity. The Charger answered, that he oppons the Act Indemnifying only these who Acted by Warrant of any Committee of Estates, or Commander, or other Authority, so that it is not Relevant, unless the Suspender allege, that as he was a Soldier in Arms, so he had such Warrant, and did apply the particulars to the public use, under which he served: And it is offered to be proven, that he took the Goods libeled to his own House, and made use of them to his private use. The Suspenders answered, that this Reason stands Relevant as proponed, because it is clear by the Act of Indemnity, that all things done under any pretended Authority or Command, are Indemnified; and therefore there is a special Exception of private Thefts and Robberies, which confirms the Rule as to public Pilledging in any War, and if there were a necessity to every person to instruct the Command, or Warrant of his Officer, which was not accustomed to be in Writ, the whole Act would be elusory; so that it is sufficient, that the thing was done in the way of a public War; otherwise, all that was taken or converted to private use, of those that were either with Montrose or Glencairn, might lie open to Pursuits, notwithstanding of the Act of Indemnity. The Lords after serious Consideration of this, as a leading Case, found the Reason of Suspension Relevant, that the Defender needed not to prove that he had Warrant, but that the Warrant was presumed, if he proved he Acted with a Party in War, against which, they would admit no contrary Probation, unless it were offered to be proven by the Defenders own Oath, that he did without any Warrant, converted the Goods to his own private use. Margaret Inglis contra Thomas Inglis. Eodem die. MArgaret Inglis having obtained a Decreet before the Commissars of Edinburgh, against Thomas Inglis, for giving her Security of 1000 pounds in Legacy, left in her Father's Testament, and for payment of the Annualrent of the said Legacy. Thomas Suspends on this Reason, that the Legacy being left to be paid, the one half at the Chargers marriage, and the other half at the Death of the Defuncts Wife; buire no Annualrent, as neither doth any other Legacy, much less this, being in diem incertum, which is equivalent to a Conditional Legacy: For if the Defuncts Wife had Survived the Legatar, or if she never Marry, nothing will ever be due. The Charger answered, that this Legacy was in effect alimentar, though not expressly left eo nomine; and therefore aught to be profitable, and that the Lords had been accustomed to give Annualrent in such cases, as in the case of the Lady Otter, and her Daughters. The Suspender answered, that the case was far different, these being lawful Daughters, and their Provisions being in lieu of an Estate of Land, and this Charger being but a Bastard, and come to that age that she may serve for her Maintenance. The Lords considering that the one half of the Sum was payable at the time of the Chargers Marriage, being a Condition in her own power, and that it was not favourable to put her to a necessity of Marry: Therefore they sustained Annualrents for that half, but not for the other. Brown contra Lawson. july 6. 1664. ALexander Brown having obtained a Decreet against William Lawson, as vicious Intrometter with the Goods of umquhil William Lawson of New-milns, he Suspends, and alleadges the Decreet was unjustly given, because it bears, that he excepted upon a Disposition, made by the Defunct for an Onerous Cause, and an Instrument of Possession of the Goods before his Death. The Charger answered, that the Decreet did bear, that the Suspender did judicially acknowledge, that there was no true Delivery of the Goods. The Lords found this collourable Title sufficient to purge the passive Title of vicious Intromission, providing the Defender Confirmed within four months, for they thought the Defuncts Disposition, in articulo mortis, was rather as a Testament or Legacy, in satisfaction of the defenders Debt, then as actus inter vivos. john Miln contra Hoom. july 7. 1664. JOhn Miln Mason, having Charged Sir James Home of Eccles, for payment of a Sum of Money, due by Bond, he Suspended, and alleged that he had the benefit of the Act betwixt Debtor and Creditor, as to personal Execution, seeing he had paid a years Annualrent, and had consigned a Bond of Corroboration, joining the rest of the Annualrents to the principal. The Charger answered, the Suspender could not crave the benefit of the Act, because he had not found caution for the principal, and annual conform to the said Act for his naked Bond of Corroboration, without Caution, could not be interpret Security. The Lords found the Suspender behoved to give security, either by Caution or Infeftment. Ogilbie and Grant contra Ker. Eodem die. THere being a Charge in the Name of james Ogilbie and William Grant, contra Mr. Andrew Ker Minister, on this ground, that by a minute of Contract of Alienation, Ogilbie had sold to Ker, certain Lands, and Ker was expressly Bound by the minute, to pay this Grant and others, in part of the price of the Land, certain Debts due by Ogilbie to them. Ker Suspends upon this Reason, that he had satisfied Ogilbie, and obtained his Discharge. Grant answered, that by the foresaid Clause, contained in the Minute, he had acquired right to the Sum, in satisfaction of his Debt, which Ogilbie his Debtor could not take away, without his consent, especially seeing the Minute took effect; and the Suspender by his Missive Letters, after the Date of this Discharge, Writ to the Laird of Pitmeddin, who was Cautioner to Grant, that he would satisfy the Debt. The Suspender answered, that the Clause in favour of Grant, who was no Contracter, could not give him a Right: First, Because it was never a delivered Evident to Grant. 2ly. Because it was but a Mandate, whereby Ogilbie the Contracter, did order a part of the Sum to be paid to Grant, which Ogilbie might recall at his pleasure, as he might have annulled the Bargain, and destroyed the Writ; especially seeing nothing had yet followed. And as for the Letters, they were not Written to Grant, but to a third Party. The Lords found, that seeing the Bargain took Effect, the Clause in Grants favour, was not a simple Mandate, but a Delegation, whereby Ogilbie constitute Ker his Debtor, to be Debtor to Grant his Creditor, which needed no Intimation, being Contracted by, and so known to Ker himself; and therefore found Ogilbies Discharge ineffectual. Town of Edinburgh contra Lord Ley and William Veatch. July 8. 1664. IN a Double poinding, raised by the Town of Edinburgh, against my Lord Ley on the one part, and William Veitch upon the other. The Ground whereof was this; The Town of Edinburgh being Debtor to umquhil Dowglas of Mortoun, in a Sum of Money, his Son Confirmed himself Executor to his Father, and Confirmed this Sum, which was Arrested in the Towns hands by William Veatch, first; and thereafter by my Lord Ley. It was alleged for William Veatch, that he ought to be preferred, having used the first Diligence by Arresting, several years before my Lord Ley, and having obtained Decreet against the Town, before the Commissars, but before it was Extracted, my Lord Ley obtained Advocation. It was alleged for my Lord Ley, that he ought to be preferred, because the sum Arrested being due to umquhil Dowglas of Mortoun. There was never a Decreet obtained at the Instance of this Executor, establishing it in his Person; and therefore this Competition being betwixt William Veatch, who was only the Executors proper Creditor, and not the Defuncts Creditor. The Defuncts Money ought to be applied: First, to pay the Defuncts Debt, before the Executors Debt, albeit the Executors own Creditor had done the first Diligence. The Lords found, that the Lord Ley, as being Creditor to the Defunct, ought first to be preferred, seeing now he appears before the Debt was Established in the Person of the Executor. Nisbit contra Lesly. Eodem die. JOhn Nisbit, as assignee Constitute by Major Drummond, Charges Lachlan Lesly to pay four Dollars for ilk Soldier of sixty, conform to a Contract betwixt Major Drummond and Lodovick Lesly, for whom Lachlan was Cautioner. Lachlan Suspends on this Reason, that the Charge is to the behoof of Francis Arneil, who was Conjunct Cautioner, and bound for mutual Relief, and therefore he can ask no more, than his share of what he truly paid in Composition. The Charger answered, that he nor Francis Arneil, were not Charging on the Clause of Relief, but on the principal Contract, as assignee: And though he had gotten Assignation thereto gratis, he might crave the same, except his own part. Which the Lords found Relevant. Heugh Kennedy contra George Hutchison. Eodem die. HEugh Kennedy as assignee by Sir Mark Ker, to a Bill of Exchange, which was drawn by George Hutchison, upon William Schaw at London, payable to Sir Mark, for like value received from him, did obtain Decreet against George Hutchison and one Schaw, as Intrometters with the Goods of William Schaw, both for the Bill itself, and for the Exchange, and Re-exchange; the Bill being Protested for not payment. This Decreet being Suspended, it was alleged that there could be no Exchange, or Re-exchange, nor any thing paid for the Bill, because the Bill was not lawfully protested, but being accepted by Schaw at London, he shortly after died; and it was protested at his house where he died, before none of his Relations, having neither Wife nor Children. The Charger answered, that he took Instruments on the Defense, and alleged, that he needed not to prove the passive Title. Secondly, That he had done all that was requisite, having protested at the Dwellinghouse where Schaw resided. The Lords found, that in this Case, that Death intervening, which was an Accident, there could be no Exchange nor Re-exchange, because this was no voluntar Failz●e, nor fault; But found that the Charger, as assignee, might either take himself for the single value against the Person drawer of the Bill, or to his Successors on whom it was drawn. Earl of Airly contra john Mcintosh. Eodem die. THe Earl of Airly pursues john Mcintosh for Contravention, and Lybels' these Deeds, that the Defenders Herds had been found Pasturing several times far within his Ground, for a considerable time: which Ground was without all Controversy the Pursuers. The Lords Sustained the Lybel, it being always proven, that the Herd herded by his Master's Command, or Ratihabition, and referred to themselves, at their conclusion of the Cause, to consider, whether they would sustain the several times of hirding, as several Deeds toties quoties, or if only as one Deed made up of all, and how far the witnesses should be received, as to command, or direction of the Defender. Dumbar of Hempriggs contra Frazer. July 11. 1664. HEmprigs as Executor to Dumbeath, having pursued the Lady Frazer, Relict of Dumbeath, and the Lord Frazer for his Interest, for payment of Executory, intrometted with by the Lady, there being Litiscontestation in the Cause: Dumbeath calls the Act, and craves the Term to be Circumduced against the Lord Frazer, who alleged that now his Lady was dead, and so his interest being jus mariti, ceased. It was answered, Litiscontestation being made, the Debt was Constitute in the Husband's Person, as if he had Contracted to pay it, Litiscontestation being a Judicial Contract. Secondly, The Lord Frazer was Discerned to give Bond to pay what his Lady should be found due. Frazar answered, that no Bond was yet given, and that the Ordinance was only against him as he was cited, which was for his Interest, which is Seized. And which the Lords found Relevant and Assoilzied. Grahame of Hiltoun contra the Heretors of Clackmannan. july 13. 1664. GRahame of Hiltoun having obtained a Decreet against the Heretors of Clackmannan, for a sum of Money Imposed upon that Shire, by the Commity of Estates; the Heretors of the Shire have raised a Revew, and alleged, that this Decreet being obtained before the Commissioners, in the English time, he has liberty to quarrel the Justice thereof, within a year, conform to the Act of Parliament, and now alleadges, that the said's Commissioners did unjustly repel this Defense, proponed for singular Successors within the said Shire; that they ought not to be liable for any part of the said Imposition, having Acquired their Rights long after the same, and before any diligence was used upon the said Act of the Committee. It was answered, that there was no injustice there, because this being a public Burden, imposed upon a Shire by Authority of Parliament, it is debi●um fundi, and affecteth singular Successors; especially, seeing the Act of the Committee of Estates was Ratified in the Parliament, 1641. which Parliament, and Committee, though they be now Rescinded, yet it is with express Reservation of Private Rights acquired thereby, such as this. The Pursuer answered, that every Imposition of this nature, though by Authority of Parliament, is not debitum fundi; but doth only affect the Persons having Right the time of the Imposition; whereanent, the mind of the late Parliament appeareth in so far, as in the Acts thereof, ordaining Impositions to be uplifted during the troubles, Singular Successors are excepted. It was answered exceptio firmat regulam in non exceptis, such an exception had not been needful, if de jure singular Successors had been free. It was answered, many exceptions, though they bear not so expressly, yet they are rather Declaratory of a Right, then in being, then statutory, introducing a new Right. The Lords found Singular Successors free, and reduced the Decreet pro tanto. Earl of Lauderdail contra Wolmet. Eodem die. THe Earl of Lauderdail pursues a Spuilzie of the Teynds of Wolmet, against Major Biggar, who alleged absolvitor, because the Lands of Wolmet were Valued and approven. The Pursuer replied, that the said Decreet of Valuation was improven, by a Decreet of Certification obtained there against, at the instance of Swinton, having Right to these Teynds for the time, by a Gift from the Usurper. The Defender duplyed, that no respect ought to be had to the said Certification; First, because this Pursuer derives no Right from Swintoun, being only restored to his own Right, and Swintouns Right from the Usurper found null: so that as the Pursuer would not be burdened with any Deed of Swintouns, to his prejudice, neither can he have the benefit of any Deed of Swintouns to his advantage. 2dly. The said Certification was most unwarrantable, in so far as the Decreet of Valuation being in the Register of the Valuation of Teynds, the Defender was not obliged to produce it, but the Pursuer ought to have Extracted it himself. 3dly. All Parties having interest were not called to the said Certification, viz. Mr. Mark Ker the Wodsetter, by a public Infeftment, in whose Right Major Biggar, now Succeeds. And last, the Defender alleged, that he had a Reduction of the Certification, upon Minority and Lesion, and the unwarrantable Extracting of it. The Pursuer answered to the first, that seeing Swintoun did use the Pursuers Right, all real advantages which were not Personal, but consequent upon the Real Right, and which belonged not to Swintoun personaliter, but as pretended proprietar: do follow the Real Right itself; and Accresce to the true Proprietar, as if he had acquired a Servitude, or had reduced the Vassals Right, ●b non solutum canonem. To the Second, oppones the Certification, wherein compearance was made, for Wolmet, and three Terms taken to produce, and no such Defense was alleged, as that the Valuation was in a public Register. To the Third, the Pursuer needed not know the Wodsetter, because it was an Improper Wodset, the Heretor Possessing by his Back-bond, as heritable Possessor, seeing the Decreet of Valuation was at the Heretors' instance, it was sufficient to Reduce it against his Heir; for it would not have been necessary to have called the Wodsetter, to obtain the Decreet of Valuation, but the then heritable Possessor: so neither is it necessary to call the Wodsetter to the Reducing or improving thereof. To the last, no such Reduction seen nor ready, neither the Production satisfied. The Lords Repelled the Defense, and duplyes, in respect of the Certification, which they found to accresce to the Pursuer, but prejudice to the Defender, to insist in his Reduction, as accords; and declared, that if the Defender used diligence, in the Reduction, they would take it to consideration at the conclusion of the cause. Balmirrino contra Sir William, Dicks Creditors. july 14. 1664. JAmes Gilmor, for the use of the Lord Balmirrino, being Infeft in the Lands of Northberwick, upon a Right from Sir john Smith, who had Right from Sir William Dick, pursues the Tenants for Mails and Duties. Compearance is made for Sir Williams other Creditors, Wodsetters and Appryzers, who alleged absolvitor, because the Pursuers Right is Extinct, in so far as Balmirrino being Debtor to Sir William Dick, and charged by him, had acquired this Right from Sir john Smith to compence Sir William, and did actually compence him by alleging the same reason of Compensation, producing the Disposition then blank in the Assigneys' name; whereupon the Letters were Suspended Simpliciter, and my Lord assoilzied; and the Disposition given up to Mr. Alexander Dick, which is instructed by the Testimony of William Douny Clerk at that time, Balmirrino answered, First, That William Dounys Testimony, could not make up a Minute of Decreet, where there were no Process, nor Adminicle to be seen. 2dly Though the minute of the Decreet were lying before the Lords, not being Extracted, the Lord Balmirrino might pass from his Reason of Compensation, and take up his Disposition, which is always permitted before Litiscontestation, or Decreet, and Litiscontestation is never accounted until the Act be Extracted: So that there being no Act of Litiscontestation Extracted in the said Process, but only an alleged minute of a Decreet without an Act, neither Party might resile. 3dly, Though the Suspender might not resile Simpliciter, yet it is still competent to him, to propone a several reason of Suspension before Extract; being instantly verified: and now he propones this Reason, that the Debt awand by him to Sir. William Dick, is a public Debt, and the Parliament has Suspended all execution thereupon, till the next Parliament; which by consequence liberats him from making use of, or instructing his Reason of Compensation. The Creditors answered, it was most ordinar for the Lords, to make up Minute's by the Testimonies of the Clerks, when they were lost. So that William Douny being a famous Clerk, his Testimony must make up the Minute, after which the Lord Balmirrino cannot resile from his Reason of Compensation, or take back the Disposition; seeing it was his own fault he did not Extract it, and cannot make use now of a Supervenient Exception, that was not at that time Competent, in prejudice of their Creditors; Balmirrino being now in much worse condition. The Lords found, that the Lord Balmirrino might now propone a Reason of Suspension emergent on the late Act of Parliament and pass from his Reason of Compensation, and take up his Disposition, seeing it did not appear that the Process was miscarried through Balmirrino's fault, or that the Disposition was delivered to Mr. Dick, neither of which did appear by William Dounys Testimony. Thomas Crawfoord contra Prestoun Grange. july 15. 1664. THomas Crawfoord, as assignee by the Earl of Tarquair to a Decreet of the Valuation of the Teynds Lethinhops obtained Decreet against the Laird of Prestoun Grange Heretor thereof; who Suspended upon this Reason, that these Lands were a part of the Patrimony of the Abbacy of Newbotle, which Abbacy was of the Cistertian Order, which Order, did enjoy that Privilege, that they paid no Teynds for their Lands, while they were in their own Labourage, or Pastourage, of which Privilege, not only the Abbots, but after them, the Lord Newbotle, and the Defender hath been in Possession: and accordingly Sir john Stewart of Traquair having pursued the Lord Newbotle before the Commissaries of Edinburgh, in Anno 1587. For the Teynds of the Lands of Newbotle, upon the same Defense, was Assoilzied, which Decreet standing, must be sufficient to the Defender, ay and while it be reduced; likeas, the Defender stood Infeft in the saids Lands by the King, with express Privileges decimarum more solito. The Charger answered. First, That the foresaid Privilege, which sometime did belong to all Monestries, was by Pope Adrian the fourth, limited to the Cistertian Order Templars, Hospitillars, and that for such Lands only as they had before the Lateran Counsel: So that the Suspender cannot enjoy that Privilege. First, because he cannot instruct the Lands to have belonged to the Abbacy, before that Counsel. 2ly, That being a Privilege granted to Churchmen, is Personal, and cannot belong to their Successors, being lay men, and albeit the said Decreet, be in favours of the said Lord Newbotle, yet he was Comendator of the Abbacy, and so in the Title of the Order. The Lords found the Reason relevant, and instructed, by the said Decreet, and Suspended, for such part of the Lands, a● were in the Suspenders own hand. Mr. William colvil contra the Executors of the Lord colvil his Brother Eodem die. MR. William colvil pursues the Executors of the Lord colvil his Brother, for payment of 2000 merk of Portion, Contracted to him by his brother, incase his Brother wanted Heirs Male. It was alleged, for the Defender, absolvitor, because the Contract is null, there being no Witnesses designed therein, to the Lord Colvills' Subscription, but only two Witnesses expressly subscribing as Witnesses to Mr. William Colvils' Subscription, and other two undesigned, subscribing as Witnesses, but not relating to any particular Subscription. The Pursuer answered, that he offered to design, the other two Witnesses which was always found sufficient to take away that nullity. It were answered, for the Defender, that albeit the Designation were sufficient, in recenti, where the Witnesses were on life, because use may be made of these Witnesses, to improve the Write, which could not hold in re antiqua where both Witnesses were dead. The Lords formerly found, that the Designation was not sufficient, without instructing the Write by Witnesses, or Adminicles, for which effect, the Pursuer produced several Writs, subscribed by the Lord colvil, and by one of the two Witnesses, that comparatione literarum might instruct the truth of their Subscriptions; and alleged further, that this being a mutual Contract, and unquestionably, Subscribed by the one Contracter, and being of that nature that he, whose Subscription was unquestionable, did engaged for a more onerous cause then the other. The Lords compared the hand writs, and found them both alike, sustained the Writ. The Pursuer making faith that it was truly subscribed by both Parties. Hospital of Glasgow contra Robert Campbel. july 19 1664. THe Hospital of Glasgow having apprised the Lands of Silvercraige, they thereupon obtained Decreet, which being's Suspended, compearance is made for Robert Campbel in Glasgow, who alleged that he has apprised the Estate of Lamont, from the Laird of Lamont; and that the Lands of Silvercraige are a Part and Pertinent of the Lands Apprized by him, whereby he stands in the Right of the Superior, and offers to prove, that the Lands in question, are Waird, and that the Appearand Heir from whom the Hospital hath apprised, is yet Minor, and therefore the Hospital coming in his place, can be in no better Case nor the Minor; but the Course of the Waird must run, during the Appearant Heirs minority. The Charger answered, that the Course of the Waird cannot now run, because the Lands are full, by the Infeftment of the Appryzer, who stands Infeft, being received by a prior Appryzer of the Superiority, without any Exception, or Reservation of the Waird Duties. It was answered, for Robert Campbel, that George Campbels apprizing of the Superiority was, extinct, by Satisfaction with the Males and Duties, before he received the Hospital, and so there is now place to the Second Appryzer, neither can the filling of the Fee by the Appryzer stop the Course of the Waird, which began before the apprizing; albeit the Appryzer be Infeft simply; seeing all Infeftments on Appryzing, are in obedience, which never imports a passing from any Right of the Superiors, albeit he do not reserve the same; and therefore he may make use of any Right in his Person, not only as to the Casualties of the Superiority, but as to the Property, and his receiving in obedience, is only to give the Appryzer Anteriority of Diligence. Which the Lords found Relevant. Sir. Laurence Scot contra. Lady Shenaltoun Eodem die. IN an Act of Litiscontestation, betwizt Sir. Laurence Scot, and the Lady Shenaltoun; a Defense of Payment being found Relevant, Scripto velj●ramento for Sir Laurence, and not having cited the Lady, to give her Oath, nor produced any Write; the Term was craved to be circumduced. The Lords did not circumduce the Term, but found that the Pursuer should have been still ready to produce his Client to Depone, if the Defender made choice of his Oath. Elizabeth Douglass contra Laird of Wadderburn. Eodem die. ELizabeth Douglass, as Heir to her Goodsire, and Sr. Robert Sinclar of Loc●ermacus her Husbands, pursue a Spuilzie of Teynds against the Laird of Wadderburn, who alleged absolvitor, because he had Tack of the Teynds of the said's lands from the Earl of Hoom, and by virtue thereof, was bona fide Possessor, and behoved to bruik, till his Tack were reduced. 2ly. That he had Right from the Earl of Hoom, by the said Tack, which Earl of Hoom, albeit his Right which he had, the time of the granting of the said Tack, was reduced, yet he has sincepresently in his Person, the Right of the Teynds of the lands from john Stevart of Coldingham, which being jus superveniens authori, must accresce to the Defender, and defend him in this Pursuit. The Pursuer answered to the First Defense, that the Defenders bona fides was interrupted, by Process against him, long before the Years libeled. 2ly. Albeit there had been none, yet this Author, the Earl of Hooms Right being reduced in Parliament, his bona fides being sine omni titulo; is not sufficient; neither needed the Tacks-man to be called to the Reduction, but his Right fell in consequentiam with the granter of the Tacks right. The second Defense, It was answered, that the general maxim of jus Superveniens, has its own fallancies, for the Reason of the maxim is, that when any thing is disponed for a cause onerous, equivalent to the Value thereof: It is always understood, that the Disponer dispones not only what Right he hath already, but whatever Right he shall happen to acquire; seeing he gets the full Value: and therefore sixione juris, whatever Right thereafter comes in his Person, though it be after the Acquirers Right, yet it is holden as conveyed by the Acquirers Right, without any new Deed or Solemnity, but where that Reason is wanting, it holds not as first, if it appear, that the Cause of the Disposition is not at the full Value; than it is presumed, that the Disponer only disponed such Right as he presently had; or if the Disponer deduce a Particular Right: as an apprizing, or Tacks. etc. and either Dispons, but that Right, per expressum, or at lest dispones not for all Right he hath or may have, or does not dispone with absolute Warrandice; In these Cases, the Authors Right supervening, accresces not to the Acquirer, but himself, may make use thereof against the Acquirer, much more any other having Right from from him. 2ly. The maxim holds not, if the Authors Right be Reduced before he acquire the new Right, in which case, the first Right being extinct, nothing can accresce thereto, but the Author may acquire any other new Right, and make use thereof. 3ly, The maxim hath no place, if the Author do not acquire a new Right to the land, which could be the foundation and ground of the Tack granted; as if he acquired but the Right of an Annualrent, which could be no ground of the Defenders Tack, much more, if he acquire a Right to the Mails and Duties of the lands, either upon Sentence to make Arrested Goods furthcommand, or an Assignation, or Disposition of the Mails and Duties made to the Author, for satisfying of a Debt to him, by the Disponer. This would be no Right to the land that could accresce to Validat a Tack. The Defender answered, First, that his first Defense was yet relevant, because, albeit his Authors Right were reduced, he not being called, his Right would be a sufficient colourable Title, to give him the benefit of a Possessory judgement, until his bona fides were interrupted by Process, because his subaltern Right is not extinct, till either by way of Action, or Exception, it be declared extinct; as falling in consequence, with his Authors Right reduced, seeing there is no mention thereof in the Decreet of Reduction. 2ly Albeit Diligence had been used, yet if the user thereof insisted not, but suffered the Defender, to possess bona fide seven year thereafter, it revives that benefit of a new Possessory Judgement. The Lords, as to this Point, found that the Interruption of the bona fides by Process, did still take the same away, unless it were Prescrived, but found, that before any Process, the Defense should be relevant; and therefore sustained only Process, for the year, since the Citation. As to the other Defense in jure. The Defender answered, that his Defense stands yet Relevant, notwithstanding all the Fallacies alleged which are without warrant in Law, and without example with us, where this Maxim hath ever been held unquestionable, that jus Authoris accrescit Successori, unless the Successors Right be expressly limited, to a particular Right, or to any Right the Author then had, but the Defender needs not Disput the Equivalence of the Cause, unless such express Limitation were, added there is no ground to presume an Exception upon the Personal oblidgment of Warrandice, from fact and deed, which oftimes is put in Contracts fully onerous, but on the contrair, there is a several Defense upon that very Clause: that the Earl of Hoom, whatever Right he should acquire, yet if he should make use of it against this Defender, he comes against his own Warrandice, whereby he is obliged, that he has done, nor shall do no deed prejudicial to the Defenders Tack, neither is there any ground of Exception; albeit the Authors Right was reduced, before the new Right acquired from that ground, that the new cannot accresce unto the old Right, being Extinct, because the Maxim bears, that it accresces Successori, non jure Successoris; so that albeit the new Right do not Validat the old Right: yet the new Right becomes the Defenders Right, eo momento, that it became the Authors Right, per fictionem juris, without deed or diligence, and cannot be taken away by any subsequent deed of that Author, more than if before such a deed, he had particularly established his Successors therein; because the fiction of the Law is equivalent to any such establishment, neither is their any ground of Exception, that the Authors Right Superveening, is but an Annualrent, which cannot Validat a Tack; because, if the Author were making use of that Annualrent to poinded the ground, the Defender upon his Tack and Warrandice would exclude him, because he could not come against his own d●ed and oblidgment; yea, albeit it were but a Right to the Mails and Duties, quocunque modo. The Lords having considered the Earl of Hooms new Superveening Right, and that it was but the Right of an Annualrent of 300 lib. Starling, with a Clause, that incase of failzie of payment, he might uplift the hail Mails and Duties till he were paid, and that the Defenders Tack included only Personal Warrandice. They repelled the Defense, and found that such a Right could not accresce to the Defender, to validat his Tack, wherein some of the Lords had respect to that point that the Right was Reduced before this new Right; but others, as it seems, on better grounds laid no weight on that if the cause onerous, had been the full value, and equivalent, or if the Tack had born for all Right that I have, or shall acquire, which would accresce to the Successor, as oft as ever it was acquired, though all the prior Rights had been reduced, but in this Case, the Author not acquiring a new Right to the Lands, but only to the Mails and Duties, which in effect is but Personal, it could not accresce to the Defender, more than if the Author had been Factor to a third Part by the new Right, and albeit the Clauses of Personal Warrandice might have Personally excluded the Earl of Hoom himself, yet seeing, that Right could accresce to the Defender, the Earl of Hoom having renunced, or assigned it to a third Party. The Personal Objection against the Earl of Hoom upon the Personal Clause of Warrandice ceases, neither did the Pursuer insist upon the Earl of Hooms Right, but his own. Elizabeth Scrimgeor contra Executors of Mr. John Murray Eodem die. IN a Compt and Reckoning betwixt Elizabeth Scrimgeor relict of Mr. john Murray Minister, and his Executors, these Queries were reported to the Lords by the Auditor. First, Whether the Defunct dying Infeft in an Annualrent could have an Heir, as to movable Heirship. The Lords found he would, seeing the Annualrent was Feudum, and he might thereby be esteemed as Baro, as well as a petty Fewer. Quest. 2. Whether the Defunct, having died the day before Martinmas 1661. He would have right to any part of the Stipend 1662. As the Annat. The Lords found he would have the half of 1662. Quest. 3. Whether he would have like right to the Gleib, as to the Stipend, by the Ann. The Lords found that could not be debaitable, betwixt the Defuncts Relict and Executors, albeit there was no compearance for a new intrant in which Case, they thought that so soon as the intrant 〈…〉 were admitted, he would have right to the Manse and Gleib, and not the Defunct, though the Defuncts Wife would have right to a part of the Stipend due after his entry. Quest. 4. Whether the heritable Debt could exhaust the movable Estate of the Defunct, to diminish the Relics part, especially if their be no heritable Debt due to the Defunct, or if the heritable Debts due by him exceed these due to him. The Lords found, that seeing the Relict could have no benefit of heritable Debts due to the Defunct, being excluded by the Act of Parliament 1641. renewed, 1662. Therefore she would have no detriment, by such heritable Debt due by the Defunct, whether they exceeded the heritable Debts endue him, or no. In this report, it falling into consideration, whether the Ann would only belong to the Wife, there being no Children, or half to the Wife, and half to the nearest of Kin, they thought it would divide equally betwixt them, though it was not res●lv●d, whether it needed to be confirmed, or would be liable to the Defuncts Debt. Lady Clerkingtoun contra Stewart. july 20. 1664. THe Lady Clerkingtoun, pursues the Heirs of Umquhile David Stewart Son to the Laird of Blackhall, for the Sum of 2000 marks due to her Husband. It was alleged, for Walter Stewart Brother to the Defunct, Defender, no Process, because the Heir of Line, of the Defunct David Stewart was not called, in so far as David, being the only Son of the second Marriage, and having neither Brother nor Sister of that Marriage; his Heir of Line could not be Walter Stewart, youngest Son of the first Marriage, but the Heir of the Eldest Son of the first Marriage; according to craig's Opinion, de successionibus. The Lords found, that in this case, Walter, as the next immediate preceding, was both Heir and of Conquest, and not the eldest Brother. In this Process, it was also alleged, that this Sum was a Clandestine Fraudulent Paction, contrare to the Contract of Marriage, betwixt the Defunct David Stewart, and the Defenders Daughter, whereby 10000 marks being Contracted with her in Tochar, and Blackhall granted a proportionable Liferent thereto; yet under hand, without Blackhalls knowledge his Son was induced to give Bond for this 2000 merk, to take away 2000 merk of the Tochar: and it was remembered by some of the Lords, that in the like Case, a discharge of a part of a Sons Provision granted to his Father, contrair to his Contract of Marriage was found Fraudulent and null, by exception. The Lords did not decide, but rather desired the Parties should agree, but thought this was an unfavourable Act of dangerous consequence. Petrie contra Paul. Eodem die. PEtrie pursues a Removing against Paul, who alleged absolvitor because she possessed, by virtue of her Infeftment. It was replied, the Infeftment was null, by exceptions as following upon a Contract of Marriage which Marriage was dissolved within year and day. It was duplied, that the Infeftment behoved to stand valid, being in recompense of her Tochar, until her Tochar was repaid. Which the Lords found relevant, unless it were alleged, that the Tochar was not paid to the Husband, but in her own hands, or her Debtor. Scot of Braidmeadow contra Scot of Thirlstoun. july 21. 1664. SCot of Braidmeadow pursues Scot of Thirlstain his Curator, for Compt and Reckoning, who alleged absolvitor; because the Pursuer having conveened the Defender before the Sheriff, to count, and Reckon, and to Renunce his curatory, he was ●hen discerned to Renunce the Office, and did Compt for bygones. The Pursuer answered, no respect to that Decreet, because it was during his Minority. In which time the Defender had a competent defence, that he was not comptable; and for the Renunciation of the Office. It was a great Lesion to the Pupil, which the Curator should not have yielded to, but proponed a Defense against the same, that he could not pursue his Curator to Renunce, unless he had condescended, and instructed malversation. The Defender answered, that he had just Reason to suffer Sentence, because his Pupil was Irregular, and meddled with his own Rents by force, and misspent the same. The Lords, Notwithstanding of the Decreet, ordained Compt and Reckoning, and found, that the Decreet could not liberat the Curator, even for his Omissions after, but reserved to the Defender, before the Auditor to condescend what deeds the Pupil had done before, as being relevant pro tanto. Alexander Livingstoun contra Heirs of Line and Daughters of the Lord Forrester. july 22. 1664. ALexander Livingstoun, as assignee to a Debt awand by the deceist Lord Forester, having charged his Daughters, and Heirs of Line and they Renunced, whereupon he pursues Adjudication; Compearance, is made for the Lord Forrester, who produced his Infeftment, and alleged the Lands therein comprehended could not be Adjudged; because the Defunct was denuded thereof, before his Death; and as he could stop the Apparent Heirs, if they were craving themselves to be entered Heirs to their Fathers, so the Adjudger, in their place could not crave Infeftment. The Pursuer answered, the Defense was not Competent hoc loco, and the Defender would not be prejudged by any Infeftment, or Adjudication, if he had sufficient Right. And therefore, as in an apprising, he might Appryse omne jus, that the Defunct had, and thereupon be Infeft: So he hath the like benefit in Adjudication, which hath been ordinarily sustained, periculo petentis. The Lords sustained the Adjudication, as to all Right the Appearand Heirs could have had in the Lands, but not as to the Property, and therefore would not decern the Pursuer to be Infeft, but sustained the Decreet of Adjudication, that thereby he may have Right to Reversions, and Clauses resolutive, or other Personal Clauses, which they thought would be sufficiently carried by the Decreet of Adjudication, without Infeftment, and would not be prejudged by another Adjudger, obtainer of the first ●nfefment, but this was beside the Ordinar Course wherein Adjudications use always to be granted periculo petentis, that thereby omne jus may be carried; and as in Appryzing, it hath been ordinarily found, that the Superior must Infeft the Appryzer, to complete his Legal diligence, albeit●he Superior instruct, that himself hath a Right to the Lands; Because his receiving of the Appryzer, in obedience, will not prejudge his Right, and it were unreasonable to force an Appryzer, or Adjudger to dispute the Point of Right● when all the Writs and Evidences are in their Adversaries hands, and the Creditors being meir Strangers, who upon their Appryzing, or Adjudications can only have Title to exhibition of the Rights, and afterward be obliged to dispute, but here the Case was notour to many of the Lords being near the Town of Edinburgh, that the Lord Forrester had Infeft his Goodson in his Estate. Lord Louvre contra Lady Craig. Eodem die. LOrd Louvre being Infeft in the Estate of Craig, pursues for Mails and Duties; Compearance is made for the Lady Craig Liferenter, who alleadges she stands Infeft, and in Possession of the Lands. The Pursuer answered, that any Infeftment; as to that part thereof, that was not for fulfilling of the Contract of Marriage, was Fraudulent, and in Prejudice of lawful Creditors, and so null by exception, conform to the Act of Parliament 1621. It was answered for the Lady. They opponed the Lords daily Practic ever since the said Act, that Infeftments were never taken away thereupon by Exception or Reply. Which the Lords found Relevant. Montgomerie contra Hoom. Eodem die. WIlliam Mongomery, pursues Alexander Hoom to Remove, who alleged absolvitor, because he stands Infeft, and by virtue thereof, in seven years' Possession, and so hath the benefit of a Possessory Judgement. It was Replied, that before any such Possession, a Decreet of Removing was obtained against the Defender, which made him mala fide Possessor. It was duplied, that since that Decreet, which was in absence, the Defender had Possessed it seven years without Interruption, which acquired the benefit of a new Possessory Judgement. And alleadges that an Interruption of Possession ceases by seven years, albeit in the Point of Right, it ceases not till Forty. The Lords found the Interruption stands for forty Years, and that no Possession thereafter, upon that same ground could give a new Possessory judgement, the Possession being Interrupted, not only by Citation, but by a Decreet of Removing, which stated the other Party in Civil Pessession. Earl of Sutherland contra Mcintosh of Conadge. Eodem die. THe Earl of Sutherland pursues Mcintosh of Conadge for the profit of a Regality belonging to the Earl. viz. Blood-wyts, Escheats. etc. whereof Conadge had obtained Gift from the Usurpers, the time that Regalities were Suppressed; and declared that he insisted for those only that were yet unuplifted, for which the Parties Fyned had not made payment, albeit some of them had given Bond. The Defender alleged absolvitor, for Blood-wyts, and Amerciaments, which might have been done by the Justices of Peace because, as to these, the Inglish had done no wrong; seeing the Justice of Peace might then, and may now Cognosce and Fine for Blood-wyts, whithin the Regality. The Pursuer answered, that as he might have Re-pleadged from the Justice General, if he had not been impeded by the Act of the Usurpers, so much more might he have re-pleadged from the Justice of Peace, and therefore any Blood-wyts discerned by them, belonged to him, as Lord of the Regality. The Lords repelled the Defense, and jo●nd the dead of the justice of Peace could not prejudge the Pursuer. M. John Muirhead contra july 21. 1664. MR. John Muirhead, as assignee pursuing he alleged, that the Assignation not being intimat before the Cedents, death, the Sum was in bonis defuncti, and the assignee could have no Right without Confirmation. The Lords Repelled the alleadgance. James Johnstoun Merchant in Edinburgh, contra The Lady Kincaide November 11. 1664. JAmes johnstoun pursues the Lady Kincaide, as Executrix to her Husband, who alleged absolvitor, because the Testament was exhausted, and she had obtained a Decreet of Exoneration, which being standing un-reduced, she behoved to be assoilzied, seeing there was no Reduction thereof raised. 2ly, Albeit the said Exoneration were quarrallable hoc ordine yet it appears thereby, that the Testament was exhausted. The Pursuer answered, that the first Defense on the Exoneration non Relevat, unless the Pursuer had been cited to the giving thereof; it operats nothing against him, nor needs he Reduce it. 2ly, The second member of the Defense of exhausting the Testament mentioned in the Exoneration, non Relevat, unless it were alleged exhausted by lawful Sentences, before intenting of the Pursuers Cause. The Defender answered, that it was Relevant to allege, that payment was made of lawful Debts of the Defuncts instructed by writ, before intenting of the Pursuers Cause, for seeing the Debt was clear, the Executor ought not to multiply Expenses, by defending against the same, unless it were alleged there were collusion to prefer the Creditors paid. The Lords repelled both members of the Defense, and found that the Executrix might not, without a Sentence prefer any Creditor; especially, seeing it was not a Debt given up in Testament by the Defunct, neither was it alleged, that the Pursuer had long neglected to pursue. Nicolas Murray Lady Craigcaffie contra Cornelius Neilson Merchant in Edinburgh. November 12. 1664. NIcolas Murray pursues a Reduction of a Decreet of the Bailies of Edinburgh, obtained against her, at the instance of Cornelius Neilson upon this Reason, that she being pursued for the Mournings for herself and Family, to her Husband's Funerals; which Mournings were delivered to her, by the said Cornelius, and were bought by her from him, or by her Order sent to her; which was referred to her Oath, and she deponed, that Cornelius had promised to his Father, to give necessars for his Funerals out of his Chop, and according to that promise, had sent unto her. The Bailies found, that this quality adjected in the Oath, that the Furniture was upon Cornelius promise to his Father, resulted in ane Exception, which they found probable by Write, or Oath of Cornelius; who having deponed, denied any such promise, and therefore they discerned, the Lady to pay: Against which her Reason of Reduction is, that she ought to have been Assoilzied by the Bailies, because her Oath did not prove the lybel. viz. That she bought the Wair from Cornelius, or made herself Debtor, therefore, but only that she received the same from him without any Contract, or Ingadgment, which would never make her Debtor, for a Wife, or a Bairn in Family are not liable for their, clothes, unless they promise payment, but only the Father; and in the same manner, the Mourning for the Funerals of the Husband is not the Wifs Debt, but the Husband's Executors. The Defender answered, that the Reason was no ways Relevant, seeing the Pursuers Oath proved the receipt of the Goods, which was sufficient ad victoriam causa. The quality being justly taken away; for albeit the Husband or his Executors were liable for the Relics Mournings, yet a Merchant that gives off the same to the Relict, is not obliged to dispute that, but may take himself to the Relict, who received the same without either Protestation, or Aggreement, not to be liable. The Pursuer answered, that whatever Favour might be pleaded for a Merchant Stranger, yet this Furniture being given by the Defuncts own Son to his Relict, could not oblige her. The Son being the Father's ordinar Merchant. The Lords found, that the Oath before the Bailies proved not the lybel, and that the accepting of the Mournings, did not oblige the Relict, but the Executors seeing the Defunct was a Person of their quality, that his Relict required mourning and therefore Reduced. Galbreath contra Colquhoun. Eodem die. WAlter Galbreath pursues an Exhibition of all Writs made by, or to his Predecessors, ad deliberandum. The Lords restricted the lybel, to Writs made to the Defunct, or his Predecessors, or by them to any Preson in their own Family, or containing any Clause in their ●avour, whereupon the Defender having Deponed, that he had in his hand a Disposition of Lands made by the Pursuers Predecessors, Irredeemably; and that he had his Predecessors progress of these Lands, but that he thought there was no Clause in any of these Writs, in the Pursuer, or his Predecessors Favours. The Lords having considered the Oath, Ordained the Defender to produce the Disposition, denunding the Pursuers Predecessors, and thought that being produced simply, without condition of Reversion, it liberat him from producing the Pursuers Predecessors Progress, though made in their Favours; but because the Pursuer alleged, that in their Predecessors Progress, there was a Clause de non alienando, which would work in his Favour, and that the Oath was not positive, but that he thought. They Ordained the Defender to be examined, if he had any Tailzie. Daughters of Balmirrino contra Eodem die. THe Daughters of Balmirrino having pursued the Heirs Male, for their Portions contained in their Mother's Contract of Marriage, and for a competent Aliment until the same were paid. The Defender renunced to be Heir, and was absent. The Lords advised the Contract, by which they found the Portion payable at the Daughter's age of fyfteen, and Aliment till that time, but no mention of Annualrent, or Aliment thereafter; yet they found that the Aliment behoved to be continued till their Marriage, or the payment of their Tochar: They being Minors, and leised, by not pursuing therefore at the Age of fyfteen, but that they could not have Annualrent, seeing the Contract bore none. Dame Elizabeth Fleming contra Fleming and Baird her Husband. November 16. 1664. IN an Account and Reckoning, betwixt Dame Elizabeth Fleming, and her Daughter, and Robert Baird her Spouse. The Lords having considered the Contract of Marriage, in which Robert Baird accepted 12000 merk, in full satisfaction of all his Wife could claim, by her Father's decease, or otherways; and there being some other Bands in her Name, her Mother craved, that she might be discerned by the Lords, to denude herself and Assign to her Mother; seeing she was satisfied, and she on the other part, craved, that her mother and Sir john Gibson might be obliged to warrant her, that her 12000 merk should be free of any Debt of her Fathers. It was answered for the Mother, that there was no such Provision contained in the Contract, and the Lords in justice could not cause her to go beyond the terms of the Contract, there was no Reason for such a warrandice; seeing Debts might arise to exhauste the hail Inventary. It was answered for the Daughter, that there was no oblidgment in the Contract, for her to assign her Mother, but if the Lords did supply that as consequent upon the tenor of the Contract; they ought also to supply the other. It was answered for the Mother, that there was no reason for her to undertake the hazard, unless it would appear, that there was so considerable Adiminition of her Daughter's Portion, in her favours, as might import her taking of that hazard for that abatement; and albeit such a warrandice were granted, yet● it should only be to warrant the Daughter from the Father's Debt, in so far as might be extended to the superplus of the Daughters full portion, above the 12000 merk. The Lords found, that if there was an abatement in favours of the mother, it behoved to import, t●at she undertook the hazard of the father's Debt, not only as to the superplus, but simply; but seeing it was known to the Lords: They gave the mother her choice, either to count to the Daughter for the whole Portion, if she thought there was no benefit without any such Warrandice, or if, she took herself to the Contract, and so acknowledged there was a benefit. They found her liable to warrant her Daughter simpliciter. Loches and the Earl of Kincairdin contra Hamiltoun. November 18. 1664. HAmiltoun and her Authors, having obtained Decreet against Loches, as Heirs to their Father, for a Sum of money; and Annuals thereof, after Compt and Reckoning, and being thrice Suspended, there are still Decreets in foro, loch's, and the Earl of Kincardine now Suspends again, and alleged, that in the Compt and Reckoning, there were several Recepts of Annualrent, which were not at that time in Loches hands, but in the Earl of Kincardines, whose Father was Co principal bound conjunctly and severally with loch's Father. The Charger opponed her Decreets in foro, and alleged, that Kincairdin had no interest, for neither could the Letters be found Orderly Proceeded, nor yet Suspended against him; and whereas it was alleged, that the Clause of mutual Relief, would force him to Relieve the Loches prorata, he had a good Defense, that they had not intimat to him the Plea, and thereby had Prejudged themselves, of the Defense upon the Ticket in his hands. The Suspenders answered, they were Minors, and that Kincardin having a clear Interest, might choice whether to Defend them, or Defend himself against them. The Lords reponed them to the Tickets now gotten out of my Lord Kincairdins hands, but declared there should be expense granted against them, for all the Decreets to which the Chargers were put. Thomas Guthrie contra Sornbeg. Eodem die. GVthrie pursues Sornbeg, alleging, that their being a first Wodset of the Lands of Thriplandhill, and certain Tenements in Edinburgh, to Alexander Veatch, or his Authors; and a second Wodset of the Lands of Thriplandhill granted to the Pursuers Father, and by a posterior Contract. The Pursuers Father's Wodset was Confirmed, and a certain Sum added thereto, and for both, some Tenements in Edinburgh, were disponed with this provision; that Guthrie should possess thereby, and should be comptable for what was more than his Annualrent, and Sornbeg having redeemed the first Wodset, and taking a Renunciation thereof, and having Right to the Reversion of the whole, entered to the Possession of the Tenements in the Town: whereupon Guthrie craves, that Sornbeg may count and reckon for the Mails and Duties uplifted by him, and possess him in time coming, to the hail Mails and Duties, aye and while he be paid of his Principal Sum, and Annualrents, or satisfied by Intromission. The Defender alleged, First, That he having the Right of Reverson, though posterior, yet having, first Redeemed, and made use thereof, his Right of Reversion by his Disposition, being in effect an Assignation to the Reversion: and Guthries second Wodset being a prior Assignation to the Reversion. The second Assignation with the first Diligence, or Intimation must prefer the Defender. This the Lords repelled, and found no necessity of an Intimation, or Diligence to consumat Guthries Right to the Reversion of the first Wodset, seeing Guthrie was Infeft by his second Infeftment, which was equivalent to the Registrating of a Formal Assignation to the Reversion. 2dly. The Defender alleged, that being Singular Successor; and having Redeemed the first Wodset: which is now extinct, he possesses by an irredeemable Right, and so must have the benefit of a Possessory Judgement. The Lords repelled this Defense, seeing seven years Possession was not alleged. 3dly. The Defender alleged absolvitor, from the bygone Mails and Duties, before intenting of this Cause, because, albeit he had not possessed so long, as to attain the benefit of a Possessory Judgement, which would defend him, not only for bygones, but in time coming; till his Right were Reduced, yet before Citation, he was bona fide possessor, & fecit fructus consumptos suos, which the Lords found relevant. 4ly. The Defender alleged, that by the Pursuers Contract, he was to be comptable for the superplus of the Mails and Duties of the Lands, more than paid his Annualrent, and now the Defender coming in place of the Heretor, the Pursuer is comptable to him for the superplus. The Pursuer answered, that albeit he was comptable, he might detain those Annualrents, and impute them in his Principal Sum. The Lords having considered the Contract, found the Pursuer ought to be Re-possessed, but that he could not detain the superplus, but that he behoved to be comptable yearly to the Defender conform to the contract. Margaret Mcgil contra Ruthven of Gairn. November 22. 1664. MArgaret Mcgil pursues a Reduction of her first Contract of Marriage with Umquhil Patrick Ruthven younger of Gairn, upon two Reasons, First, because it was post nuptias, and so donatio inter virum & uxorem stante matrimonio revocabilis. 2dly. Because she was Minor, and enorlie leised, in so far as she disponed to her Husband, and the Heirs of the Marriage; which failing, to his Heirs 8000 lib. of money, and above; and the half of some Tenements in Edinburgh, worthy 1100 lib. yearly in leiu whereof, her Liferent was only of 8. or 10. Chalders of Victual, and of her own Tenements; but she did not ●etain to herself the Liferent of the Money, or any Part of the Stock, whereby she is leised in that, if the Heirs of the Marriage fail the Money, and the Lands goes to the Heirs of the Husband, and returns not to hers, and that her Provision being worth 20000 lib. she ought, at least to have had the double of the Annualrent thereof in jointure. The Defender answered to the first Reason, that it was no way relevant, seeing this was expressly a Contract of Marriage, although after the Marriage there being no Contract before it is alike, as if it had been before the Marriage; and to the second Reason is not relevant, unless it were enorm lefion; for there being no Portion, or rule in Tochars and Jointures, but that some get a Jointure equivalent to the Aunualrent of their Tochar, some half as much more, some double, and it being ordinar, that Tochars are provided to the Heirs of the Marriage, which failing, to the Man's Heirs, here was no enorm lesion, or any thing extraordinar, although there were an equality. The Pursuer being a Burgess Daughter, and her Husband a Gentleman of an ancient Family, Quality should be compensed with Means. 3dly. The Pursuer, since she was Major had Homologat the Contract, by setting her Jointure Lands, and lifting the Rent thereof. The Lords having, before answer, heard Probation of the Provision, and of the Jointure, and having at length considered the whole Cause. They first Repelled the Defense of Homologation, because the Pursuer was not quarrelling what she got, but what she gave; and therefore requiring Rectification to have more. They also sustained not the first Reason of Reduction, and found the Contract not to be a Donation betwixt Man and Wife: and they found the second Reason of Reduction Relevant, in so far as extended to an enorm lesion beyond the latitude of Contracts of Marriage amongst such Persons, and therefore found it not Relevant, to reduce the Fee of the Wifs Provision, but found it Relevant to add to her a further Conjunct-fee; and therefore Rectified the Contract, in so far as she had Assigned her Sums of Money, without reserving her own Liferent thereof: and found, that seeing the Fee returned not to her, she should have the Liferent of her own Portion, and her Provision out of her Husband's Estate, which is Eight or Ten Chalder of Victual further. Malcome Scot contra Laird of Bearfoord. November 23. 1664. BEarsoord having borrowed 4000 merk from Malcome Scot in Anno 1652. By his Contract, he is obliged to pay the Annualrent thereof, and the Sum at certain Terms, which Contract bears, That for Malcoms better Security Bairford sets to him certain Aikers of Land, for 53. Bolls of Victual yearly, at malcolm's option, either to pay the Bolls, or to pay twenty shilling less than the Candlemess Fires. Bairford alleged, that Malcolm ought to count for the full Fiars, and that the Diminution of twenty shilling, was Usurary, given Malcolm more than his Annualrents, indirectly by that abatement; and therefore both by Common Law, and specially by the late Act of Parliament, betwixt Debtor and Creditor, that Addition was void. It was answered, that there was here no Usurary Paction; But it was free to Malcolm Scot, to take the Lands by his Tack● for what Terms he pleased, and he might have taken it for half as many Bolls, or at four marks the Boll, for each Boll which would have been valid. 2ly. The Case of the Act of Parliament meets not, because that is only in Wodsets; here there is neither Infeftment nor Wodset, but a Personal Obligement, and a Tack. 3ly. There is a just reason to abate so much of the Boll, because the Tennent behoved to be at the Expense of the Selling thereof, and at the hazard of these that bought, if they failed in payment. The Lords Sustained the Tack, without Annulling the Abatement, and found it not Vsurary. Halyburtoun contra Porteous. Eodem die. HAlyburtoun having Married a Widow in the Potterraw, there was no Contract of Marriage betwixt them, but he gave her first an Infeftment in all the Lands he had, the time of the Infeftment, and thereafter he gave her a second Obliegment, providing certain Lands to him and her, and the Heirs betwixt them, which ●ailzing, to divide betwixt their Heirs: Her Heirs pursuing to fulfil this Obliegment. Halyburtoun alleged it was donatio inter virum & uxorem, and now he Revocked. Which the Lords formerly found Relevant, unless the Pursuer condescended, that this Infeftment was Remuneratory, for a proportionable Provision, brought by the Wife, and after condescendence, having considered what the Wife brought, and what of it was before the first Infeftment, and what interveened betwixt the first and the second; Albeit whatever fell unto the Wife, was movable, and would have belonged to the Husband, jure mariti; Yet if it had been of that value, to have Served both the first and second Provision. They would have Sustained both, as Remuneratory in gratitude to the Wife; but they found no such thing condescended on, or Instructed, and therefore they Reduced the second Provision. Collen Hay contra Magistrates of Elgin. Eodem die. COllin Hay pursues the Magistrates of Elgin, for the Debt of a Rebel, Escaping out of their Prison. They Alleged Absolvitor; First, Because it was in the time of Richard the Usurper. 2ly. The Rebel Escaped, by breaking through the Roof of the Prison, and they searched for him immediately after. The Lords Repelled both Defences, seeing the Escape was in day light, during which the Towns Officer should Guard the Prison. Elizabeth Nisbet Lady contra Murray. Eodem die. ELizabeth Nisbit pursues a Poinding of the Ground, of certain Lands wherein she was Infeft, by james Wood her Husband. Compearance is made for Patrick Murray, who alleged that he is Infeft by her Husband, his Debtor in the same Lands, and aught to be preferred. It is answered for the Lady, that she ought to be preferred, because both their Annualrents being base; albeit her Infeftment be posterior; Yet her Husband's Possession being her Possession, and she being Infeft before Patrick Murray's Infeftment was clad with Possession, must be preferred. It was answered for Patrick Murray; First, That a Husband's Possession should be the Wife's Possession, cannot be understood in an Annualrent, because her Husband never Possessed an Annualrent, but the Property. This the Lords Repelled, and found the Possession of the Property, as jus nobilius, to contain the Annualrents eminenter. 2ly. Patrick Murray alleged that the Husband's Possession being the Wives, is only introduced in favours of Contracts of Marriage, favore dotis; That because Wives cannot Possess, during their Husband's life; therefore his Possession is accomp●ed theirs. But this Infeftment in question is not founded upon the Contract of Marriage, but upon a posterior Charter, of a different Tenor. 3ly. Patrick Murray used citation before C●nd●esmess, next after the Lady's Infeftment, and thereupon obtained Decreet in March, which must be drawn back to the Citation. So that the Husband could have no Possession betwixt the Lady's Charter, and his Diligence, there being no intervening Term. It was answered for the Lady, that this Privilege is allowed to Wives, that their Husband's Possession is theirs during their Marriage, favore datis, which may be without a Contract. 2ly. The Husband being in present current Possession, from the very Date of the Wife's Seasine, his Possession is sufficient to validate hers. The Lords found the Lady's Infeftment to be first validat by Possession. It was further alleged by Patrick Murray● that this Infeftment was donatio inter virum & uxorem, not being founded on the Contract of Marriage, which was satisfied before, at least it is to the prejudice of him a lawful Creditor, who was Infeft before the Lady; and therefore seeing the Lady's Infeftment is so free and lucrative, both parties being now Disputing the Possession and power therein. The Lady's Infeftment cannot prejudge him. That the Contract of Marriage was satisfied; he condescends thus, that the Husband was obliged to Infeft his Wife in certain Lands, and to make them worth 18. Chalders of Victual, or otherwise at her option, to Infeft her in an Annualrent, ita est, she made her option, and was Infeft in the Property, after which she cannot return to this Annualrent in question. It was answered for the Lady, that the Clause being conceived in her option, must be Interpret her option not to receive the Infeftment, but to enjoy either of the two she pleased. First, A Seasine cannot import her choice, which might have been given by her Husband, without her knowledge upon the Preccept, contained in the Contract of Marriage, unless it were instructed, that she did accept the same by a Seasine, propriis manibus, or otherwise; and that her Infeftment, was a valid effectual Infeftment. 3ly. Albeit that Article of the Contract of Marriage, were satisfied by taking her choice; yet she being thereafter Infeft upon her Charter produced, in her Liferent Lands, and in the Annualrent in Warrandice thereof, or with power to her to make use of the Annualrent itself, principaliter, at her option, albeit her choice once made, will exclude her from the annualrent, principaliter; yet not in so far as she is Infeft therein, to warrant and make up the principal Lands, which can be accounted no Donation nor Deed, in prejudice of a Creditor, because it doth but make real and effectual the personal obligement of warrandice● contained in the Contract. It was answered for Patrick Murray, that this alleadgance non competent hoc loco, but he must only poind the Ground, until the Lady obtain a Declarator, of what is defective of her Liserent Lands, but cannot come in by way of Reply. The Lords found, that the Lady's acceptance of the Liferent Infeftment, satisfied the obligement in the Contract of Marriage, and did not sustain the posterior Charter, to give her any further choice; but sustained the Right of annualrent constitute therein, in warrandice of the Liferent Lands hoc loco, and ordained the Lady to condescend upon the several Rooms, what they paid, and what was wanting, that she might be preferred in the first place, and Patrick Murray in the second place. Alexander Livingstoun and Schaw of Scrnbeg contra Lord Forrester and Creditors of Grange. Eodem die. ALexander Livingstoun, as assignee by Mistress Margaret Forrester and Sornbeg her Husband, to some Debts owing to her by her Father. The umquhil Lord Forrester having Charged the remnant Daughters, and Heirs of Line, craves Adjudication of the Estate of Forester and Barony of Grange, wherein the Lord Forrester Died Infeft. Compearance is made for a Creditor of Grange, who produces a Back Bond, granted by the Lord Forester to the Laird of Grange, bearing, that the Infeftment was in trust to the use and behoove of the Laird of Grange, and only to the Lord Foresters behoove for Relief of Debts he should be engaged in for Grange● and alleged that he being Granges Creditor; and now insisting against Grange, who has renunced to be Heir for Adjudging of the Estate of Grange; for Granges own Debt he has good Interest in this Process, to allege no Adjudication of Grange Estate, because it is only in Trust, except in so far as may be extended to my Lord Forester's Relief: and if the Pursuer condescend upon any Distress or Engagement, he will instantly relieve the same. The Pursuer answered, that he being now in an anterior Diligence to this Party, ought not to be stopped in his Diligence, but must be admitted to Adjudge from the Lord Forester's Heirs, whatever was in his Person. And the other Party may also proceed according to his Diligence, to Adjudge the Back Bond, and when he pursues thereupon, he shall have an answer. 2ly. There is no reason to stop the Adjudication, and to force the Pursuer to condescend upon my Lord Forresters● Debts or Interest, because a Creditor cannot possibly know them; and therefore Adjudications are always granted, generally of all Right the Debtor had, and is the only ground upon which the Adjudger can pursue the havers of the Debtors Rights, to Exhibit and Deliver them, and thereupon to found Processes and Condescendences, but cannot be urged to condescend before he obtain Adjdication; and also insinuat that he would take his Adjudication, with the burden of the Back Bond: But some of his Advocats resiled therefrom. The Lords having considered the Case amongst themselves, how dangerous it were, if the Creditors, or Persons entrusted, obtaining Infeftment of an entrusted Estate; the Back Bond of Trust being personal, would not exclude them: and albeit the Person entrusted were not solvendo, as in this Case the Entrusted Estate, as to the Heirs and Creditors, would be inavoidablie lost. And some being of opinion, that a Personal Exception upon a Back Bond, could not be competent to burden, or qualify a real Right, or an Action for obtaining thereof: But the most part were of opinion, that albeit the Right, if it were complete, would be real; yet this Action for obtaining thereof, is but Personal; for real Actions are such only which proceed upon real Rights, and against the Ground, such as upon Annualrents; and therefore this being a Personal Action, might be excluded, or qualified by a Personal Exception upon the Back Bond. And therefore they Adjudged, with the Burden of the Back Bond. Earl of Sutherland contra Hugh Gordoun. December 1. 1664. THe Earl of Sutherland pursues a Declarator against Hugh Gordoun his Vassal, that his Right being holden Feu, two terms has run into the third, and thereby the Right is extinct, not only by the Act of Parliament, but by a particular Clause in the Defenders Infeftment, at least in the Disposition, whereupon his Charter and Seasine proceeds. There is also called an Apprizer, who alleged, that he being a singular Successor and a stranger to his Author's Rights, during the Legal unexpyred, is not obliged to possess, and cannot omit his Right by his Author's fault, or by his own Ignorance. The Lords having considered this Case, and reasoning amongst themselves, upon the difference of a Clause Irritant, in an Infeftment Feu, and the benefit of the Act of Parliament, they found that if the Pursuer insisted upon the Act of Parliament, the Defender might purge the Failzie by payment at the Bar, but if he insisted upon the Clause in the Infeftment, it behoved to be considered, whether that Clause was in the real Right, by the Charter and Seasine, either specially or generally, under the provisions contained in the Disposition: Or if it was only in the Disposition. In which case, though it might operat against the Vassal, or his Heirs, yet not against the Appryzer, unless the Seasine had been immediately upon the Disposition. In which case the Disposition serves for a Charter. And therefore ordained the Pursuer to condescend, and it is like, that in favours of the Appryzer, being a stranger, they would suffer him to purge at the Bar, utcunque in this Cause, it was not found necessary to cite all Parties at the Mereat Cross, albeit the Letters bear so. Veatch contra Paterson. December 2. 1664. PAterson having set some Lands to Veatch in Anno 1645. The Tack contained a Clause, that the Tenants should be relieved of all public Burdens; and having left the Land in 1653. two or three years thereafter, he raised a Pursuit against Paterson the Heretor, for payment to him of all the public Burdens he had paid out, and renews the same Pursuit, and produces the Receipts of the public Burdens, and alleadges that there was a Penalty in the Tack of an hundred pound, that he should Possess Veatch, at the Entry of the Tack, wherein he failzied. The Defender alleged, that it must be presumed, that all the Tickets and public burden, was allowed in the Rent, or otherwise past from by the Pursuer, seeing he voluntarly paid his hail Rent; Or otherwise all the public burdens in Scotland, paid by Tennent, may infer a Distress upon their Masters to repay the same. The Pursuer answered, that that presumption could not take away his Writ, viz. the Tickets produced; but if the Defender gave Discharges, he ought to have made mention of the allowance of the public Burdens therein. The Lords having considered the Case, as of Importance for the preparative, found the Defense upon the Presumption Relevant, unless the Pursuer instruct by Writ, or the Defenders Oath, that these Tickets were not allowed in the Rent: And as for the Penalty, the Lords found, that it ought to be restricted to the damnage, and that the same was not now probable otherwise, then by the Defenders Oath. james Wilson contra Alexander Home of Linthill. Eodem die. JAmes Wilson having pursued Alexander Home of Linthill, as Sheriff of the Shire, for the Debt of a Rebel, whom he suffered to Escape. In which, this Defense was found Relevant, that the Rebel in the taking, had wounded these that were taking him, and had Escaped vi majore, The Laird of Clerkingtoun contra The Laird of Corsbie● December 3. 1664. SIr William Dick having apprised some Lands, holden of the Town of Irving, and charged the Magistrates to receive him. The Laird of Corsbie having Compryzed the same Lands, some days after, was received by the Town, the next day after Sir William's Charge; and about a Month after, Sir William was also Infeft. Clerkingtoun having Right from Sir William, pursues Corsbie; First, for Mails and Duties, Corsbie was found to have the benefit of a possessory Judgement, by seven years' Possession, and thereupon was Assoilzied. Now Clerkingtoun insists in a Reduction on this Reason, that he having first apprised, and Charged the Superior, they Colluded with the Defender, and gave him a voluntar infeftment, the next Day after his Charge; and therefore his Infeftment, though after, aught to be drawn back to his Charge and Diligence, and he preferred. The Defender answered, that the Reason ought to be Repelled, because the weight of the Reason is the Pursuers Diligence, and the Superiors Collusion, which hold not, because all the Diligence Sir William Dick did, was the first Charge upon the Letters of four Forms, which bear only with Certification, that in Case of Disobedience, Letters of Horning would be direct simpliciter, and this is no more than a Premonition, and put no Obligation upon the Superior, until the second Charge, which was Horning: Neither did Sir William ever insist any further than the first Requisition. The Lords found that the first Charge was sufficient, in this case, where the Superior gave an Infeftment before the Expyring of the first Charge, and before the second Charge could be given, and thereby that a Superior might prefer an Appryzer, though posterior to a prior, do what Diligence the prior could. But they found, that seeing Sir William Dick had been silent, until his Legal Reversion was expired, and had not challenged the Defender, who was in Possession, and thereby had Excluded him from the benefit of Redemption competent to him, if he had been found to be but the second Right within the Legal. Therefore the Lords found Sir William Dicks apprizing Redeemable by Corsbie, within year and day, after the Sentence. Mr. james Hutcheson contra Earl of Cassils'. Eodem die. MR. james Hutcheson having Charged the Earl of Cassils' for his Stipend. The Earl Suspends, and alleadges, first, that the Charger had no right to the Whitsonday Term, 1663. because that Term was passed before his Presentation, at least before his Institution and Collation. 2ly. There being but a Decreet of Modification, and no Locality. The Earl alleged Locality should be first made, and he liable but for his proportional part of the Stipend. The Lords found that the Stipend affected the Teinds, and the Minister might take himself to any of the Heretors● in so far as he had Teind, and therefore sustained the Condescendence, and ordained the Charger to prove what Teind my Lord had, without prejudice to him to crave his Relief. Lady Craig and Greenhead her Husband contra Lord Luire. Decemb. 7● 1664. THe Lady Craig being Infeft in Liferent, pursues her Tenants. Compearance is made for the Lord Lui●e, who apprised the Lands of her Husband, and alleadges that he ought to be preferred, because he stands publicly Infeft, and any Right the Lady has, is but base, holden of her Husband; and before she attained Possession● he was publicly infeft. It was answered for the Lady, that her Husband's Possession is her Possession, and so her Infeftment was clad with Possession, from the Date thereof: It was answered that that holds only in the case of an Infeftment to a Wife, upon her Contract of Marriage; but this was but an additional gratuitous Infeftment, stante matrimonio, she being competently provided before by her Contract. In which case such Provisions cannot prejudge Lawful Creditors, neither can the Hushands Possession give the benefit of a possessory Judgement to the Wife, unless she had Possessed seven years after his Death. The Lords found, that such Infeftments as these, being gratuitous and voluntar, could not be prejudicial to the Husband's Creditors, nor give the Wife a possessory judgement: And the case here being with a Creditor of the Husbands, they did not proceed further to consider, and determine, if the Husband's Possession, in such a case, would not validat the base Right, as to any acquired Right thereafter. Eccles contra Eccles. Eodem die. IN an Action of a Compt and Reckoning betwixt these two Infants. It was alleged for the Defender, that he being pursued upon his Father's back-bond, obliging him to make Compt and Payment of the means of umquhil Fergus Eccles his Brother, to Thomas Eccles●, and umquhil Andrew Eccles, the Pursuers Father. It was answered, upon condition that Mr. Hugh, the Defenders Father should have the third part to himself. The Question was concerning the manner of Probation. The Pursuer alleged, it was only probable scripto, he being a Pupil and his Father dead. The Defender alleged, it was probable by the Tutor's Oath, being so likely in itself, that Mr. Hugh being the third Brother, should have the third share, and that Thomas the Tutor did accordingly allow him the third share; and there was produced a Testificat of Balloche, that there was an agreement Notwithstanding whereof, the Lords refused to take the Tutor's Oath, ex officio, seeing they found, albeit it were Affirmative it could not prove against the P●pil. Scot in Cairlyle contra Henderson and Wilson. December 8. 1664. RItchard Scot having Charged Henderson and Wilson upon their Bonds, they Suspend, and offer them to prove payment of a part, by Witnesses, and alleadges that it being the Law of England, that Witness can prove to take away Writ, that therefore these Bonds being Contracted in England, with English men, the Suspenders ought to have the same benefit of Probation, they would have had, if they had been Arrested in England, upon their Bonds, or pursued there, and adduced a Practic of Dury, in Anno 1628. The Lords having accuratly Considered and Debated this Case amongst themselves, and finding that locus contractus, was in England. But the Bonds bore expressly a Clause of Registration in Scotland: And that such Bonds had been ordinar betwixt Merchants in England, and Merchants in Scotland; and in no time such a Probation admitted, and that it would furnish an ordinary delay in such Cases, to the disadvantage of Merchants, and hindering of Trade, by always offering to prove payment in England, by Witnesses, which could require long time. Therefore they found the reason only probable, scripto vel juramento. Mr. Cornelius Inglis contra Mr. Rodger Hogg. December 9 1664. MR. Cornelius Inglis pursuing a Removing against certain Tenants near Dumbar, upon an Infeftment and apprizing. It was alleged for the Tenants, that they were Tenants to Mr. Rodger Hogg, by payment of Mail and Duty to him, and he was not called. The Pursuer answered non relevat, unless the Defenders condescend upon Mr. Rodgers Right, which might defend him and them. The Defenders answered, first; that they could not be obliged to Dispute their Masters Right, but he ought to be called to Dispute his own Right. 2ly. It was insinuat, that Mr. Rodger had an apprizing, and a Charge against the Superior. The Lords repelled the Defense, unless the Defenders condescended upon such a Right as were valide to exclude the Pursuer, being prior to his: but the Tenants alleged no such Right, and Mr. Rodgers Charge was posterior to the Pursuers Infeftment. john Veatch younger of Dawick contra Alexander Williamson. Eodem die. JOhn Veatch pursues Williamson upon the Act betwixt Debtor and Creditor, for paying to him of his proportional part of the Mails and Duties of apprised Lands, as coming in pari passu with the Defender, by an apprizing, within a year of his. The Defender alleged absolvitor, because he has Right to the first apprizing, led before the Act of Parliament, betwixt Debtor and Creditor: and therefore he has the benefit of the 21. Act of the last Session of Parliament, declaring, that where an Appryzer, for his own Security, had redeemed a prior apprising, and gotten Right thereto before the Act, betwixt Debtor and Creditor. The said first apprising should have the same effect, it would have had before the Act, Debtor and Creditor, and should not come in pari passu. The Pursuer answered, that behoved only to be understood, where the second Appryzer had upon necessity to shun the expyring of the legal redeemed, and gotten Right to the first apprising, which could not be said here, because the Debtor being minor, the legal had, and has a long course to run. The Lords sustained the Defense without any such limitation, in respect of the express Tenor of the Act of Parliament. Robert Learmonth contra Laurance Russel. Eodem die. RObert Learmonth being pursued by Laurance Russel, for the price of Wines, and the matter referred to his oath, gave in a qualified Oath, bearing, that the Wines in question were sent to him, not to be sold till further order, and that therefore he keeped them unsold till the end of the year, and when they were in hazard of spoilling, sold them for 12 pound Sterling the Tun, and that he that sent them, was Debtor to him by Bonds and Decreets, in a greater sum. It was alleged, neither member of the quality was competent; not the first, because it was offered to be proven, that the Wines at that time gave 20. pound Sterling; and not the second; because it was an exception of Compensation, and relative to Writ. The Lords sustained the first member of the quality, but rejected the second, and found it relevant to be proven, by way of exception. Goldsmiths of Edinburgh contra Robert Haliburton. December 10: 1664. THe Goldsmiths of Edinburgh having obtained Decreet against Haliburton, as Heir to his Father. He suspends upon this Reason, that the Goldsmiths confirmed themselves Executors Creditors to his Father, and must allow the Inventar, which either they have in their hand, or at least should have done Diligence therefore. It was answered for the Executors, that they being Executor Creditors, are not liable for Diligence, having Confirmed but to their own behoof, for their payment, and as Creditors may arrest, apprise, and do all Diligence, severally, the one but prejudice of the other, so may they Confirm. 2ly. They found, that having Confirmed in Edinburgh, whereas the Defunct lived and died within the Diocie of Glasgow, that therefore their Title was null; and therefore did not proceed. And lastlie oppons their Decreet in foro. The Suspender answered, that they can never object against the nullity of their own Title. 2ly. All that time there was no Commissioriat Constitute for the Shire of Air, where the man died, and so Edinburgh was communis patria. The Lords having Debated the general case, whether Executor Creditors were liable for Diligence, waved the same, but found that in this Case, in respect of the questionableness of a Title, they would not find them liable upon their negligence. Lion of Muirask contra Sir Robert Farquhar. Eodem die. MVirask having pursued a Declarator of Redemption of the Lands of Balmellie, against Sir Robert Farquhar, Litis●ontestation was made in the Cause, wherein the Order was sustained, proceeding upon an Adjudication against Sir john Vrquhart, as Heir to his Goodsire, and it was offered to be proven, that he died in the Right of the Reversion of this Wodset, which was but base and holden of the granter, for proving whereof, his Charter was produced, bearing the Barony of Craigfintrie and Balmellie, per expressum. At the advising of the Cause, It was alleged that the Defender having protested for Reservation, contra producenda. It is now instantly verified, that the Grandfather died not in the Right of the Reversion, but that he was denuded by Disposition to his Son, instructed by his Charter produced. The Pursuer answered, that he opponed the state of the Process. And if such a Defense were now competent, it ought to be Repelled, because he hath Right from Sir john Vrquhart, who is Heir Served and Retoured to his Father, in whose favours his Grandfather was Denuded, and has declared, that he consents to the Declarator upon that Ground, and Renounces all other Right. The Defender answered, that the order having been only used upon the Adjudication from Vrquhart, as Heir to his Grandfather, if that be excluded, albeit the Pursuer have another Right, he must use the Order, de novo, and redeem thereupon. 2ly. Sir john Vrquharts Right produced Renounces, but does not Dispone any Right to the Pursuer. The Lords having considered the state of the Process, found that a Reply instantly verified, is receiveable post conclusum in causa, unless it were alleged to have been known to the Proponer, and dolose omitted; by which the Pursuer might be put to a Duply, suffering new Probation. But the Lords found that the Charter produced, bearing the Grandfather to be Denuded, did not instantly verify, because it expressed not Balmellie, and would not allow a Term to prove, part and pertinent. It was further alleged by the Defender, no Declarator till the Sums consigned were reproduced at the Bar; especially, seeing it was offered to be proven, that the Pursuer lifted them himself, and he being at the Bar, it is instantly verified. The Lords sustained the same, and Declared, the Sums being Reproduced before Extract, and that the Pursuer shall be liable for Annualrent, or the Wodsetter shall retain the Duties effeiring thereto. Lord Rollo contra His Chamberland. December 13. 1664. THe Lord Rollo having pursued his Chamberlain for Intromissions, conform to a particular account libelled. The Defenders have compeared, offered to prove he was Discharged, which was found relevant; and now producing the same, it proves but for a part; whereupon the Pursuer craved Sentence for the rest: It was alleged for the Defender, that there was nothing produced to instruct the Intromission. The Pursuer answered that the Defender having made Litiscontestation, upon a Discharge, without denying the Intromission, he has acknowledged the Libel, and the Pursuer cannot be put to prove the same, without inverting the Order, and making two Litiscontestations in the same Cause. The Defender answered, that this being but an omission of the Advacats or Clerks, of a thing palpable, the Lords might repone the Defender. The Lords adhered to the Act of Litiscontestation, but referred to some of their number, to move the Parties to what was equitable; and it was thought, that if the Defender would allege that he was not Intrometter, for these particulars, but that they were in the Pursuer, or his other Chamberlains hands, and were instantly verified by his oath, it were receivable. Bishop of the Isles contra james Hamiltoun. Eodem die. THe Bishop of the Isles pursuing Hamiltoun a Merchant in Edinburgh, for his Teind Fish taken in the Isles, which is a part of the Bishop's Patrimony. The Defender alleged ● that he being a Merchant, and not a taker of Herring, cannot be liable for the Teind thereof, no more than if one should buy Corns in the Mercat, or out of the Barn-yard; he could be convened for the Teind. It was answered for the Pursuer, that it was the immemorial custom that the first buyer from the Fishers, should be liable to the Bishop of the Isles, for the Teind of the Fish, bought, and for proving thereof, produced a Decreet at his Predecessors instance, against some Merchants in Edinburgh; which Decreet did bear, that in a former Decreet, betwixt the same Parties, the Bishops had proven immemorial Possession against the Merchants. 2ly. The instance holds not of buying Corns in the Mercat, or Barn-yeard; but if any body should buy the whole Cropped, when it was upon the Land untaken off, being in the Sheaves or Stoucks, he would undoubtedly be liable as Intrometter for the Teind: so if any Merchant bought not upon the place, where the Fishes were taken, he was not liable: but buying the Fish fresh, as they were taken, in whole Boat-fulls, and selling them there themselves; such Merchants must be liable as Intrometters. The Defender answered, that the Immemorial custom was indeed Relevant, but a Decreet against some few Persons, could not prove it against others, being inter alios actum. But here there was only a Decreet bearing, that there was a former Decreet, in which that was proven. The Lords sustained that member against these who bought the herring and salted them themselves, to be proven by their Oaths, and would not sustain the Probation of the Custom, seeing the principal Decreet was not produced, unless that at least the Testimonies proving that Custom, were repeated and produced out of the old Process, that it might appear, whether there were any ground of Objection against the manner of Probation. Lady Colvil contra Lord Colvil. December 14. 1664. THe Lady Colvil pursues the Lord Colvil to relieve her of the whole Debt, hererable and movable of the Defunct, his Predecessor, because the Defunct in his Testament, had named her, his Lady, Executrix and universal Legatrix, with a special Clause, that she should be free of all his Debt whatsomever. The Defender alleged Absolvitor, because no Deed done by a Defunct in lecto, or in Testament can prejudge his Heir. The Pursuer replied, that this Testament was made in the Defuncts liege poustie. The Defender answered, that on Deathbed, and by Testament equiparantur. Which the Lords found Relevant and assoilzied. Laird of Phillorth contra Forbes of Aslocon. December 16. 1664. PHillorth as Donatar to the Escheat of Forbes of Aslocon, and having obtained general Declarator, insists in his special Declarator. It was alleged Absolvitor, because the Horning, whereupon the Gift was granted, is null, in so far as being beyond Dee, it is upon six days, contrair to to the Act of Parliament 1600. Declaring all Hornings beyond Dee, on less than fifteen day's null, conform to a Decision in Dury, albeit on a Bond, bearing a Clause of Registration on six days only February 14. 1625. Stevart contra Bruce. It was answered for the Pursuer, that the Acts of Parliament hinder not the agreements of Parties; but is expressly anent Hornings, on Lawborrows or the like; but these are on the parties own consent by the Clause of Registration: and if these should not be valide, all the Hornings and other Executorials thereon beyond Dee, since 1600. would be null, and such Bonds would have no effect; seeing upon the Clause of Registration, Horning could not be otherwise direct on six days, and so they should not have any summar execution. The Defender answered that the Act is general of all Hornings, and bears a general Reason, because it is impossible for Parties at such distance, to come to Edinburgh to Suspend in four days, and private pactions cannot derogat from general Laws, where the express reason is for public utility, contrair to which, no man can make himself Rebel, more than he can give power to Incarcerat himself, where Law gives no warrant, but prohibits. The Lords Repelled the Defense, and sustained the Horning. Inns contra Forbes of Touchon. Eodem die. Inns having Charged Forbes of Touchon on an Act of Adjournal, for an Assythment, for wounding him, and reparation of his Blood. He Suspended, and allege the Act was null, wanting Citation, Compearance or probation. It was answered, that being the Act of the Justice General, who is Supreme in criminalibus, it cannot be recognosced by the Lords. The Lords having considered the case amongst themselves, thought that in what was truly Criminal, as to corporal pains or amerciaments in way of punishment, they would not meddle with the Justice Sentences, but Assythment, being civil for the Damnage and Interest of the Party, pursuable before the Lords, they might recognosce thereon, and therefore in respect that the Probation of the Fact was by a Process before the Bailies, they ordained that Process to be produced before answer, and the Suspender to condescend if there was any exorbitancy in the Sum discerned for the Assythment. Mr. Thomas Paterson contra Watson. December 17. 1664. MR. Thomas Paterson Charges Watson to remove from his Gleib, who alleged the Designation is null, because it is not subscribed by the Ministers Designers, but is only the assertion of a Nottar. 2ly. By the Act of Parliament 1663. anent Gleibs, there is an exception of Royal Burrows, to which Ministers Gleibs are not due, ita est, Dysert is a Royal Burgh. The Charger answered to the first, that the having a warrant from the Bishop and presbytery his instrument of Designation is as sufficient as a Seasine, to give Right to Land. And to the second, the Royal Burrows excepted, must only be understood of such who have not a Landwart Congregation, but are chiefly constitute of an Incorporation for Trade; but this Burgh is notourly known to be but a Burgh of Barony, holden of the Lord Sinclar; albeit it has the privilege of Vote in Parliament, and is a Parsonage. The Lords Sustained the Designation, but before Extract, ordained the Testificat of the Ministers Designers, under their hands to be produced. Sarah Blomart contra Earl of Roxburgh. SArah Blomart pursuing the Earl of Roxburgh: he alleged she could have no Processes, being of the United Provinces, who are declared enemies to His Majesty. It was answered, that there was no Denunciation of War by His Majesty, as King of Scotland, nor any Proclamation in Scotland to that purpose. It was replied, that there was a Warrant by the King and Council, to cease upon all the Dutch Vessels in Scotland. The Lords found that this was but an Embargo, and no Denunciation of War in Scotland, and therefore found Process. Mr. james Reid Minister of North-Leith contra William Melvil. December 20. 1664. MR. James Reid Charges William Melvil for the Teind of hard Fish, bought by the said William in the Lewes, and imported by him at Leith. He Suspends on this Reason, that he bought the said Fish from Merchants in the Mercat, and did neither take the same himself, nor bought them immediately when they were green from the Taker, and so can be liable for no Teind. The Charger answered, that he is decennalis & triennalis Possessor of getting twenty shilling of the Last, of all Fish imported at New-haven; and for instructing thereof, produces a Decreet in Anno 1634. and another in Anno 1662. and if need beiss, offers him yet to prove Possession. The Defender answered, that these Decreets are expressly against the Fishers or Takers of Fish, but not against Merchants, buying and importing the same: and as for the Custom, non Relevat, unless it were an universal Custom established by Sentences; for if some few Merchants should have to save themselves trouble, given an uncertain acknowledgement, according to their own discertion, and no fixed Duty, nor by no compulsive way, it imports not. The Lords Suspended the Letters, except only for such Fish as should be taken by the Boats and Fishers of New-haven. Agnes Young and her Husband contra buchanan's. Eodem die. AGnes Young pursues buchanan's, her Children, for her third of her Husband's Movables, and for her Liferent use of the other two thirds, conform to her Contract of Marriage, whereby she is provided, to his Liferent of all Goods and Geir, conquest during the Marriage, movable and immovable. The Defenders answered, that the Pursuer cannot both have the third and the Liferent of the whole, because it must be presumed, that the Liferent of the whole, was given in satisfaction of the third and all. The Pursuer answered, that this could not be presumed, unless it had been so expressed, no more than a Terce is excluded by a provision of Liferent, unless it bear in satisfaction of a Terce. The Lords found the Defense Relevant, that the Pursuer could not both have her third, and the Liferent of the rest, but gave her her option, either of the third, provisione legis, or of her Liferent of the whole, provisione hominis. Earl of Athol contra john Scot Eodem die: THe Earl of Athol having obtained Decreet against john Scot, before the Commissar of Dunkeld, for the Teinds of the said john his Lands. He Suspnds, and raises Reduction on this Reason, that albeit the Decreet bear a Defense proponed, that the Teinds in question are Mortified by the King to a Kirk, and that the same was found Relevant, and that the said john succumbed in proving thereof, yet he offers him to prove that before the Term elapsed, he produced the Mortification before the Commissar, and thereupon took Instruments, which is produced. Which the Lords found Relevant. Mr. George Norvel Advocate contra Margaret Sunter. Eodem die. MR. George Norvel pursuing for Mails and Duties upon an apprizing. Compearance is made for Margaret Sunter, who alleged absolvitor because she was Infeft in Liferent, before Mr. George's Right; which being found relevant for instructing thereof, she produced her Seasine. Which the Lords found not to instruct without an Adminicle, and therefore sustained the Decreet. The said Margaret raised Reduction of this Decreet, on this Reason, that now she produced an Adminicle, viz. her Contract of Marriage. 2ly. That the Decreet is null, because the quantities are not proven. The Charger answered to the first, that the Lords having found the Exception not proven, the Pursuer could not be admitted in the second instance against a Decreet, in foro, upon production of that which she should have produced at first. As to the second, he needed not prove the quantities; seeing her exception was total, without denying the quantities. The Lords found the Decreet valide, but ordained some of their number to deal with Mr. George, to show favour to the poor woman. Doctor Ramsay contra Mr. William Hogg and Alexander Seton. December 22. 1664. THese three Parties having apprised the same Lands, the first Appryzer being Infeft, the second not being, and the third being Infeft: The first Appryzer declared he would not insist for the Mails and Duties of the whole, but only possessed a part. The question came, whether the second Apprizer, not having Charged, should be preferred to the third, who was Infeft. It was alleged for the second Appryzer, that he needed not be Infeft, because the first Appryzer being Infeft in all, he had the only jus proprietatis, and there was nothing remaining, but jus reversionis, which the apprizing alone carried: and as the second Appryzer might redeem the first; as having the right of his Reversion; so he might force him, either to possess the whole, whereby his apprizing might be satisfied, or give warrant to the second to Possess the remainder, so likewise he might use Redemption. It was alleged for the third Appryzer, that if the question were of the Redemption of the Land, the second had good Right; but the question being for the Mails and Duties, a right of Reversion, could never carry these without a Seasine. The Lords considering the Point in Law and the great disadvantage the Liege's should sustain, if all Appryzers were necessitat to take Infeftment, They preferred the second Appryzer. Cornelius Inglis contra Mr. Rodger Hog. Eodem die: MR. Cornelius Inglis being Infest upon an apprizing, pursues a Removing; compearance is made for Mr. Rodger Hog: who alleged that he is also Infeft, and had charged the Superior, though, after the first Appryzer, and had possessed seven years, by lifting the Mails and Duties; and therefore craved the benefit of a Possessory Judgement. The Lords having considered the Case amongst themselves, whether an apprizing and Charge, without Infeftment could give the benefit of a Possessory judgement. They were equally divided in their Votes, and the Precedent resolved before he gave his Vote to settle the Parties. contra Edmistoun of Carden. january 6. 1665. EDmistoun of Carden being pursued by a Creditor of his Fathers, as Lucrative Successor to his Father, by accepting of a Disposition of his Father's Lands, after contracting of the Pursuers Debt, alleged absolvitor; because, being pursued beforeby another Creditor of his Fathers, he did then allege, that his Disposition was not Lucrative; but for a Cause onerous, equivalent to the worth of the Land, which he proved, by instructing the Rental, and Rate of the Land, at the time of the Disposition, by Witnesses, and the Sums undertaken for it by Writ, whereupon he was Assoilzyed, and can never be again convened upon that ground; nam obest exceptio rei judicatae, for if he had been condemned as Lucrative Successor● upon the other Creditors Probation: It would now have proven against him, and therefore, his being Assoilzied must be profitable to him against others; unless Collusion were alleged and Instructed. The Pursuer answered, that this absolvitor was res inter alios acta: and albeit a Condemature would have been effectual against the Defender, non sequitur, that an absolvitor should also be effectual for him; because he was called to that Condemnature, but this Creditor was not at all called to the absolvitor. 2. Even in a Condemnature, if the Defender had omitted any thing, that he might have alleged, in the one case competent, and omitted, would not hinder him to propone the same against another Creditor. Therefore the Defender can only repeit the grounds of that absolvitor; which if he do, the Pursuer will allege. That whereas, in the absolvitor, the Defender was admitted to prove the Rental. The Pursuer omitted to crave the benefit of Probation, which he would have gotten; and this Pursuer offers him to prove, that whereas the Rental was proven to but 18. Chalders of Victual, the true Rental was worth 30. Chalder. 3dly. A part of the onerous Cause, was the Portion of the Defuncts Children, which would not Prejudge the Pursuer being an anterior Creditor's The Lords found, that the absolvitor could not prejudge this Pursuer, as to these points omitted; and that it could not have effect inter alios, except it had been in re antiqua, where the Witness had died, that in that case, the Testimonies out of the former Process, might be repeited; but as to the Rental, the Lords would not give the Pursuer the sole Probation● being so lubric a point, as not only what it paid, but what the Lands were worth, and it might have paid; and ordained Witnesses to be examined, hinc inde; and found, that the Bairns Portions not being paid bona fide, before the intenting of this Cause, could not prejudge the Creditor: but ordained the Defender to Suspend on double poinding, against the Pursuer and the Bairns; but in regard of so much ground, in the matter, they declared they would not sustain the Passive Title, to make him Successor universal, but only as to the just Price, and the Cause Onerou. Grahame of Blackwood contra Brouns. january 7. 1665. JOhn and William Brouns, having apprised certain Lands; and William Grahame having apprised the same, within a year after, pursues an Account and Reckoning against the first Appryzer, upon the last Act of Parliament, betwixt Debtor and Creditor; and craves to come in pari passu with the first Appryzer, not only as to there Mails and Duties of the Lands Intrometted with by the Appryzer, since the said Act of Parliament; but also for these Duties that were Intrometted with before the said Act; and that, because the Act bears expressly, That such apprizing shall come in pari passu, as if there had been one apprizing led for both. It was answered, for the first Appryzer, that what he did uplift bona fide, before any Process intented against him, at this Pursuers instance, he cannot pay back a part thereof to the Pursuer; because he is bona fide Possessor: and because the Act of Parliament bears; That such Appryzing shall come in pari passu: which being in the future, must be understood to be from their intenting of Process, at least from the date of the Act, but not from the beginning. The Lords having considered the Tenor of the Act of Parliament, found that such Appryzing should only come in pari passu, from the date of the Act; but that the bygones uplifted by the first Appryzer, before the Act should be accounted to him in his Sum, but no part thereof repeited to the second Appryzer; and found that the Sums apprised for Principal and Annualrent of both Parties, should be restricted, as they were the time of the Act of Parliament, in one total Sum; and the Rent to be received from that time proportionally, to the total Sums; and that the first Appryzer should have allowance in his preceding Intromission of the expenses of the composition to the Superior, and the charges of the apprizing, without compelling the second Appryzer, to pay him the same. Normand Lesly contra Gilbert Grace. january 10. 1665. NOrmand Lesly, charges Gilbert Grace Provost in Aberdeen, to pay 2000 merk, for which he was Cautioner for William Grace. He Suspends, and alleadges, that the Charger had gotten an Assignation from the said William Grace, to an Bond granted by the Earl of Errol, to him and therefore craved, that the Charger might be discerned to transfer that Assignation to him, being given for the security of the same Sum. It was answered, that the Charger was only obliged to give a discharge to his Cautioner, and not an Assignation of the Bond itself, and much less of any security ex post facto he had gotten therefore. The Lords declared, they would not give the Charger Process, till he Assigned the Bond, and all security gotten therefore to the Cautioner. William Reid contra John Reid. Eodem die. WIlliam Reid pursues john Reid, as his Tutor, to deliver all Writs belonging to the Pupils Father, or which were in his Custody; and Possession quovis modo Intrometted with, by the Tutor. Who alleged, the Pupil could have no interest in any Writs, but these which belonged to his Father. The Lords found, that Pupil had interest to call for Exhibition, and Delivery of all Writs that were in his Father's Possession quovis modo, and ordained the Tutor to exhibit all, but prejudice to any Party having interest, to crave the delivery of these Writs if they belonged to them. Campbel contra Mary Bryson. Eodem die. GEorge Campbel having right by Adjudication, to the Reversion of a Wodset, of some of the Lands of Newlistoun, Wodset by the Laird of Newlistoun; to Andrew Bryson bailie of Edinburgh, whereupon he was publicly Infeft; and thereafter did dispone the same to his Daughter Marry Bryson, and she was Infeft, holden of her Father; which Disposition contained a power to the Father, to dispone on the Sum in the Wodset Right, during his Life-time, without her Consent; after all Andrew Bryson obtained a Confirmation of the foresaid Wodset: with Addition of 16. aikers of Land more, for the same Sum, which was conceived in favours of himself, and the Heirs of the Marriage, whereupon he was Infeft. The said George having used an Order of Redemption; craved Declarator. Compearance is made for the said Mary, who craved the said Sum to be delivered up to her. It was alleged by the Pursuer, that she could not have up the Sum, unless she were Infeft, as Heir to her Father, both in the first and last Wodset, and resigned the same; and so liberat the Land of the Burden thereof; for albeit she was Infeft proprio nomine, yet it was but base holden of her Father: so that the Superiority remained with her Father; and she behoved to be Infeft as Heir to him, and renunce the same. 2. The Corroborative Wodset stood in her Father's Person, who by her Disposition had a Power to dispose of the first Wodset; and so had altered the Fee thereof to himself, and his Heirs. It was answered, that the second Wodset was taken when Mary's mother was dead; and she the only child of that Marriage: and so was alike, as if her name had been expressed. 2. The Declarator itself will sufficiently secure the Redeemer, albeit there were no Resignation. 3dly. The second Wodset, is but accessary to the first; so that the said Mary, having power to renunce the first Wodset proprio nomine, the second may be declared to be extinct in consequence, and further, offered Caution, if need were, to warrant the Redeemer. The Lords found the Lands to be Redeemed, but ordained the Money not to be given up, until the said Mary had Infeft herself, as Heir to her Father, and Resigned, for they thought, the Redeemer ought to put upon no hazard of repetition, or of the danger of the Infeftment unrenunced; seeing it was the ordinar Course to be Infeft, and to renunce. Magaret Arnot contra Mr. Robert Arnot. january 11. 1665. MArgaret Arnot pursues a Reduction, of a Decreet of Exoneration, obtained by William Arnot her Uncle, and Executor to her Father. It was alleged, for Mr. Robert Arnot, Son and Successor to the said William, that all Parties having Interest were not called. viz, The Creditors, and Legatars, who were concerned in the event of the Reduction; for if there Sums and Discharges were not allowed, according to the Exoneration. The Defender behoved to return upon them, for payment; and therefore they ought to be called to defend their Interest. The Lords repelled the Defense, and found no necessity to call the Creditors and Legatars, but that the Defender might intimat the Plea to them. Neilson and Calender contra january 12. 1665. NEilson and Lodovick Calender her Spouse pursue a Transference of an old Summons, on which there was an Inhibition used. It was alleged, that the Executions, of the first Summons were new, and by ocular inspection false, and craved the Pursuer might abide thereby, who refused; and so being without an Execution on the first Summons, but having an Execution on the second were null, The Pursuer craved them to be Transferred instatu quo, but prejudice to the Defender, in the cause to allege no Process; because the first Execution was wanting. The Lords refused to transfer, but some were of opinion, that a new Summons, in eadem causa would be sufficient to make the Inhibition effectual, being raised on the Summons of Registration of a Bond, others thought that albeit the Style bear, that Inhibitions were not granted, but upon fight of the Summons execute; yet it was ordinar to give it on an unregistrate Bond, or a Charge to enter Heir Execute, though there was neither Decreet nor Dependence; and therefore, though Executions be put on to get, these raised; yet they are not adhered to, but now used so, that this Summons, though without Execution, yet might be transferred, and thereon Executions might be used, and thereby the Inhibition stands valid, which was the more clear way, for albeit Summons bear to cite to such a day next to come and so ordinarily cannot be used, no citation being thereon within the year; yet the Lords special warrant may allow a Summons to be sufficient for citation thereafter, as well as they may give other privileges Janet Shand contra Charles Charters. january 13. 1665. CRichtoun of Castelmain, and Crichtoun of St. Leonard, granted a Bond to john Shand, and Herren his Spouse; the longest liver of them two: and their Heirs, etc. With a Clause for Infeftment, whereupon there was an apprizing, led in john Shands life-time, against one of the Debtors: thereafter, john Shand charges the other Debtor for payment; after the Charge; john Shand gives in the Appryzing, to be allowed, and after his Death, his Wife takes Infeftment upon the apprizing, the Bond being now produced before the Lords, in an Exhibition, pursued by janet Schand as Heir to john Shand. There is a competition for delivery, betwixt janet Shand, as Heir to john Shand; as being Heritable, and Charles Charters, as having right from Herrein, john Shands Relict, as being movable. It was alleged by the Heir, that the Sum became heritable, by the Superveening of the apprizing. It was answered, that there was a Charge after the apprizing, which returned the Bond to be movable. It was answered, that the Charge was not against the Party, whose Lands was apprised, but against the other Party. 2ly. The Charge could only return the Bond to its first condition, before the apprizing: So that the Bond being since 1641. the Relict is excluded; and the Charge cannot bring her in. 3ly. Albeit it could, yet after the Charge the Defunct returned to his heritable Right, by obtaining that apprizing allowed, which allowance, the Relict produced, and took Infeftment: so that these last Acts being upon the Real Right, the Heir must be preferred; and therefore the ground of preference of the Executor, or Heir, is the will of the Defunct, either to make use of his heritable or Movable Right, which is still ambulatory, and in his power; and whatever Right he last makes use of, evidences his choice, and according thereto, the Right is either heritable or Movable: but here he did last make use of his Real Right, by allowance of the apprizing, after the Charge, which the Relict homologat, by taking Infeftment conform. It was answered, for the Creditor of the Relict; that this being on Debt, though due by many Debtors. The Charge against one, did sufficiently show the purpose of the Defunct, to make use of his Right; and the Charge doth render the Bond simply movable: and doth not return to the condition it was before the apprizing. To the 3. passing from the Charge must either be express, or a Deed of evident consequence, but the allowance of the apprizing is not such; which might be done only ad hunc effectum, that if the Appryzer should pass from his Charge, the apprizing might revive, and be secure. The Lords found the Sum Heretable. Charles Charters contra a Skipper. Eodem die. Charles' Charters having fraughted a Ship to Queensburgh, by Charter Party. The Skipper was to lie so many lie days, and to bring a Fraught thence; he returned without full Fraught, whereupon Charles refuses full payment; and being discerned by the Bailies of Leith to pay the rest, he Suspends on this Reason, that the Skipper ought to get the Fraught only proportionally to the Loading, and offers to prove the third part less than the full Loading brought home, and that the Skipper could not have his full Fraught, unless he instruct that he intimat to the Factor at Queensburgh, to whom he was direct, of his coming, and that he lay his lie days, and after Intimation to the Factor to give him any Ware he had, he took Instrument, or protested thereon. The Lords found, he ought to prove the Intimation, ut supra, by Witnesses but required no Protest, or Instrument thereon. Edgar. contra Edgar. January 17. 1665. ISobel Edgar pursues for 4000 marks, provided in her Mother's Contract of Marriage, by this Clause; whereby her Father having married her Mother to his second Wife, obliged him, and the Heirs of the first marriage; which failzing, his Heirs and Executors to pay to his Bairns of the second Marriage, 4000 marks, albeit there were but one of them; and if there were more, the same Sum to be divided among them, the Portions of the Male Children to be paid at their age of 21. and the Female at the age of 18. And to pay them five of each hundreth after his Death, till the Terms of payment. Ita est, the Heirs of the first Marriage failzied by decease, and there was four Bairns survived of the second Marriage, whereof two died, before they attained to their age mentioned in the Clause, and now there remains but two, the Pursuer and her Brother, who is become Heir; whereupon she alleadges, that she hath the benefit of the whole 4000 marks. It was answered, for the Brother, that he hath right to the half, because he is a Bairn of the Marriage as well as she; and albeit he be become Heir, yet that takes not away his Share, by this oblidgment as a Bairn of the second Marriage. 2ly. Albeit his being Heir would exclude him, yet the Portions of the two that are deceased having become Heirs by there survivancy transmit the same to their nearest of kine, and so he and the Pursuer be equally nearest of Kin. The Pursuer answered, that the Heirs of the first Marriage having failed, the Clause stands now as if it had been conceived thus; that the Father had obliged himself, and his Heirs, which comprehends all Heirs● to pay to the Bai●ns of the second Marriage; which must be understood of Bairns, beside the Heir; because the Heir is constitute Debtor; and so cannot be thought to be Creditor in the same Clause. The Lords found the conception of the Clause, that the Brother, by falling now Heir, was excluded; seeing it was clear, by the meaning of the Defunct, that his Heir should have his Lands, and his Bairns of his second Marriage, should have, though but one, 4000 marks: but here the Heir, of the first Marriage was never served Heir, They also found, that the Portions of the Children being to an uncertain day, and not conceived to their Heirs, or Assigneys, that they dying before that day, had no right to the Stock, but only the Annualrent, medio tempore, so that the Stock accresced to the surviving Children; as if the Defuncts had never existed, and that their Assigneys, or Creditors could not have affected the same: and so found the Brother had no right, as nearest of Kin to the two deceasing Children, not attaining the Age mentioned in the Contract. William Stewart contra Stewarts. january 18. 1665. WIlliam Stewart pursues a poinding of the Ground, of the Lands of Errol, upon an Infeftment of Annualrent, granted to his Grandfather by the Earl of Errol, by his Bond, and Infeftment following thereupon: in which Bond, there were Cautioners, the Annualrent was for a Sum of 7000 merk. and a Sum of 8000 merk. Compearance is made for the Pursuers Brothers and Sisters, who alleged, that as to the Sum of 7000 marks, it became movable; and belongs to them, as nearest of Kine: In so far as their Father made Requisition for the same: It was answered, the Instrument of Requisition is null; and being disconform to the Clause of Requisition: in respect, that the Original Bond was to the Husband and Wife, the longest liver of them two, in Conjunctfee, and their Heirs, etc. And the Requisition bears expressly, That if the Husband, or his Heirs required, with consent of the Wife, than the Debtor shall pay, ita est the Instrumenet bears no consent. It was answered, that albeit some Points of the Requisition were omitted; yet seeing the mind of the Defunct appears to take himself to his Personal Right, and consequenly to prefer his Executor to his Heir, it is sufficient. The Pursuer answered, non relevat, because every Intimation of the Defuncts Intention is not enough; but it must be haili modo, and the ground whereupon the Sums become movable, is, because the Requisition loses, and takes away the Infeftment; and therefore if the Requisition be null, the Infeftment is valid: and he Bairns can never have access. The Lords found the Requisition null, and preferred the Heir. Stewart contra Stewart. january 19 1665. IN the foresaid Cause, it was further alleged, for the 8000 merk, that it was also movable; because, as to it, there was no Liferenter, and the Fear himself did require. It was answered, for the Children, that the Requisition is null, because it mentions not the production of a Procuratory, nor the production of the Right itself. 2ly. The Requisition is made to Bogie as Cautioner for the Earl of Kinnoul, whereas he was Cautioner for the Earl of Errol, granter of the first Bond. It was replied, oppones the Requisition, bearing, That the Procurators' power was sufficiently known to the Notar. 2ly non Relevat, unless the Person required, had called for the Procuratory or Right, and had been refused. 3ly. The Procuratory is now produced, with the Right, and the Defunct acknowledged the Procuratory; and Right, because he raised horning thereupon. The Lords sustained the Requisition, and found the Sum movable, and preferred the Bairns thereto. Shaw contra Lewens. Eodem die. WIlliam Shaw, being a Factor at London, and dieing there; and having Means both in England and Scotland: There falls a Competition betwixt his Executors nuncupative in England, and his nearest of Kine, Executors in Scotland. Anna Lewens' Executrix confirmed in England; produces a Sentence of the Court of Probat of wills in England, bearing, That upon the Examination of Witnesses, that Court found, that William Shaw did nominat Anna Lewens his Executrix, and universal Legatrix. And that being asked by her, what he would leave to his friends in Scotland. He declared he would leave her all, and them nothing, because they had dealt unnaturally with him. It was alleged, for the Defuncts Cusigns, Executors Confirmed in Scotland, that they ought to be preferred, because as to the Defuncts Means, and Movables in Scotland, the same must be regulate according to the Law in Scotland, where a nuncupative Testament hath no use at all: and albeit, a Legacy may be left by word, yet it cannot exceed a 100 lib. Scots. It was answered, that as to the Succession, the Law of Scotland must regulat: so that what is heritable, cannot be left by Testament, though made out of Scotland. As was found in the Case of the Successors of Col Henderson dying in Holland, and in the Case of contra Meldrum; yet as to the Solemnity of Acts to the Law, and Custom of the Place, where such Acts are done, takes place, as where an Act is done in Scotland: albeit it be only probable by Writ, or Oath of Parties: yet being done in England, it is probable by Witnesses though it were of the greatest moment, and though the Law of Scotland, in Writs of Importance, requires the Subscription of the Party before Witnesses, or of two Nottars, and four Witnesses: yet Writs made in France and Holland, by the Instrument of one Nottar, are valid; so here there being no difference from the Law of Scotland: which always prefers Executors nominat, before nearest of Kin; and the difference only as to the Solemnities, and manner of Probation, that there it may be proven by Witnesses, there was a Nomination, and here only by Writ. The Lords having considered the Reasons, and former Decisions, preferred the Executors, confirmed in Scotland, for they found, that the Question was not here of the manner of Probation, of a Nomination, In which case, they would have followed the Law of the Place, but it was upon the Constitution of the essentials of a Right, viz. A nomination, which, albeit it were certainly known to have been by word; yea, if it were offered to be proven by the nearest of Kin, that they were Witnesses thereto, yet the Solemnity of writ not being interposed, the Nomination is in itself defective, and null in substantialibus. Lord Lour contra january 20. 1665. IN a Process, for making arrested Sums furthcoming, two Arresters, viz. my Lord Lour, and another Competing. It was alleged, for Lour, that the first Arrestment, is null, because the Party was out off the Country, when it was only made at his dwelling house, which is not Legal; seeing all Summons, Intimations, Premonitions, Requisitions, and all Denunciations against Parties out of the Country, must be by Letters of Supplement from the Lords, Execute at the Mercat Cross of Edinburgh, and Peir, and Shore of Leith: So must Arrestments, against these who are out of the Country be there. Which the Lords found relevant, and preferred the second Arrestment Personal. Little contra Earl of Nithsdail. Eodem die. Little pursues an Improbation, and Reduction against the Earl of Nithsdaile, of the Rights of some Lands; Wherein the Lords sustained the Pursuers Interest, on a Compryzing, and Charge, without Infeftment, and though the apprizing was on Litles own Band, simulat and assigned to himself; and found such Deeds might make him liable, as behaving as Heir, if he Intrometted, and were sufficient Titles any other way. The Lords also found, that Certification ought to be granted against Retours, and Charters, though in public Registers, but not against Writs Registrate in the Books of Session, the date being condescended on, by the Defender, were sustained against all Writs, granted to the Defender, and his Authors, but such as Seem to represent them are called, nor against Writs, granted by the Pursuer, his Predecessors, or Authors, but only his Predecessors, to whom he doth Succeed, jure sanguinis, and such Authors, as he produces Right from, but they would not admit Certification against apprizing, if the Infeftment thereupon were produced. Sir John Baird contra The Magistrates of Elgine. january 25. 1665. SIr john Baird pursues the Magistrates of Elgine, for the Debt of a Rebel, whom they suffered to escape forth of their Prison. It was alleged, for the Magistrates absolvitor; because they could be obliged no further, but for their ordinar diligence of Custody, but not contra vim majorem, and offered to prove, that about six a clock at night, in the winter time, the Rebel's Lady going in to Sup with him, the keeper opening the Prison Door to let her in, six or seven Armed men pressed in with her, and that there was sixty more at the Gate. The Pursuer answered, non relevat, because it was the Keeper's fault to let in any body at that time of night. The Lords found the Defense relevant, to be proven by Witnesses, above exception, which were condescended on. Parson of Dysart contra Watson. Eodem die. ANderson Parson of Dysart having a designation of four Aikers of john watson's Land, which was Bishop's Land; charges him to remove● Watson Suspends on this Reason, that there are Parson's Lands in the Paroch, more ewest to the Kirk, and lying about the Parson's Man's, and therefore, according to the Order of the Act of Parliament: anent Designation of Glebs', the Parson's Lands must be designed in the first place, before the Defenders Lands, which are Bishops Lands. It is answered, for the Charger, that the Parson's Lands were Feved out before the said Act of Parliament, and are all build with houses incorporate within the Town of Dysart. It was answered, that the said Act of Parliament bears, That the Parson's Lands shall be first Designed, although they be Feved out before. Which the Lords found relevant, and Ordained the Parson's Land to be cognosced, what quantity was wanting thereof to be made out of the Bishops Land. William Menzies contra Laird of Drum. Eodem die. WIlliam Menzies, as Executor to Alexander Menzies, and umquhil Margart Gordon the other Executor; having obtained Decreet against the Laird of Drum, for 8000 merk: The said Margaret being dead, William charges for the whole, Margaret having died at the Horn Compearance is made for the Donatar. It was alleged for Drum, that he could not be convened at the instance of this Pursuer, without concourse of the other Executor, or some to represent her had been called. For they might have alleged, that this Charger is satisfied of the half of his Executry. The Lords found, that seeing the Testament was execute by a Sentence; the other Executor needed not be called. 2ly. Drum alleged, that he could not be liable to this Executor, but for the half. It was alleged for the Donatar, that he craved preference for the other half. It was answered, that the Donatar could have no interest, because the Sum was heritable; It was answered, that albeit it was heritable, yet it became movable, by the Executors taking a Decreet therefore, in the same Case, as if Requisition had been used. In this the Lords did not decide, some being of opinion, that it was Movable, others contrair, because an Executor being but a Successor, as a Decreet of Registration, or Transference, would not change the Nature of the first Bond, so neither would this Decreet. The Heretors of the Fishing of Don contra The Town of Aberdeen and their Fevers. january 26. 1665. THe Heretors having Salmond Fishing in the Water of Don, above Aberdeen, pursue a Declarator of their Right of Salmond Fishing; and that they ought to be Free of the prejudice sustained by the Cruives built at Aberdeen, and insist upon these Particulars. That the Town of Aberdeen hath no Right to Cruives, but is only Infeft cum piscationibus & piscarijs, and within such a bounds, which cannot carry Salmond Fishing, being inter regalia, much less Cruives. It was answered, that such a Clause granted to an Incorporation, or Community, or being in Baronia, with Immemorial Possession is sufficient; and that there is a later Right granted to the Town, with power of Cruives, within the said Bounds, uti possidebantur. It was answered, that the Pursuers had their Cruives established before that time. The Lords found the Town of Aberdeens' Title to Cruives, albeit conceived, but conform to the first Clause, with long Possession was sufficient. 2ly. The Pursuers insisted against the Transporting of the Cruives from one place to another, which they could not do; Cruives being a Servitude, strictissimi juris: as a way being once chosen, and fixed, cannot be changed: especially, in respect of the Clauses uti possidebantur. It was answered; that there being a Bounds expressed, and mentioning Cruives to have been there before, the meaning can be no other, then that these Cruives should be removed, if Inundations alter the present stans, and uti possidebantur is only understood of the way of building, as before. The Lords found, by the said Clause that the Cruives might be Trasplanted within the Bounds having but one Cruive Dick, and the former Dick demolished, so that the Fishings above be in no worse condition then formerly. 3ly. They insisted for the wydnesse of the Heeks, whereanent it was alleged, that by an Act of Parliament King james the fourth, Hecks were appointed to be five Inches wide; which is confirmed, by an Act 1661. It was answered, that the Act King james the 4th. did relate to a former Act of King david's, which was not to be found, but there were two Acts by King james the 3. Relating to the old Act by King Alexander, which was found to bear three Inch. So that the Act K. james the 4th. though posterior, being but Relative, and the Act Related not known. The Lords found, it was a mistake, in the writing of the Act; and that in the stead of King David, it should have expressed King Alexander; and so born only three Inches, seeing otherways five Inch would let the greatest part of Salmond pass. 4ly. They Insisted for the Saturndays Slop; and craved, that on Saturnday the whole Cruives might stand open: So that no Fish might be taken thereby; according to the old Statute of King Alexander; from the Even Sun on Saturnday, till the Sun rising on Monday. The Lords found, that the Saturndays slop ought to be of the whole Cruives, and that from Saturnday at six a clock, till Monday at Sunrising. 5ly. They Insisted for the Hight of the Cruives, and alleged, that the same aught to be no higher than the water, in its ordinar Course, neither the time of the Flood, nor of Drought; otherways they might build the same as high as they pleased, and that it ought not to be builded perpendicular, which will hinder the Salmonds up-coming, but slopping from the Ground to the top. The Lords considering, that there was no particular Law, as to the height of Cruives, and that ●hir Parties had suffered the other to enjoy the Cruives above 40. Years, that therefore the same should be uti possidebantur, no higher than the old Cruives were. 6ly. They Insisted for the Liberty of the Midlestream, beside and attour Saturndays Slop, which is specially contained in the Acts of Parliament of King Alexander, and King james the third and fourth, and is renewed in the late Act of Parliament of King Charles the second. The least quantity of which bears, That five foot of the middle Stream must be constantly free. It was answered 1. That the old Acts anent the middle Stream were wholly in desuetude, and were in effect derogate, by the Act of King james the sixth, anent Cruives; which ordains the Saturndays Slop to be keeped, but mentions not the middle Stream. And as for the late Act of Parliament; it was Impetrat by these same Parties, and never passed in Articles, or noticed by the Parliament, but as an ordinar Confirmation. It was answered, that there was no prescription of public Rights, against standing Laws, and albeit the desuetude of such Laws could be effectual, yet the late Law Revives and Confirms them all, per expressum, which is not a particular Confirmation; bearing mention of any particular Party, or particular Right; but as a general Confirmation of general Laws, anent all the Cruives in Scotland. The Lords considering that the middle Stream has been long in desuetude, and that this late Ratification was passed without notice; therefore, before answer; They Ordained the Parties to adduce Witnesses, whether the midestream was accustomed in any Cruives in Scotland, and whether the same would be beneficial, or hurtful to the Salmond Fishing of the Kingdom, in general, and whether it were destructive to the Cruives in Common: and likewise, they gave Commission to examine the Witnesses hinc inde, whether their new Cruives were builded upon challes, or they otherways builded then the former Cruives, to the prejudice of the Fishing above in the water. George Hutcheson contra Dickson of Lonhead. Eodem die. GEorge Hutcheson pursues Dickson, for a Sum of money● and for the Annualrent since the denunciation of the Horning. Whereupon the Defender answered, that the Horning was only at the Mercat Cross of Edinburgh, where the Defender dwelled not, and so was null, and could not give Annualrent. It was answered, that albeit such Hornings be not sufficient for an Escheat, yet they are sufficient for Caption; and so are not null: and therefore Annualrents having so much ground, in equity, and by the civil Law, being due ex mora; such denunciations should be sufficient for Annualrent. The Lords found such Hornings' null, and would not allow Annualrent. Logan contra Galbraith. Eodem die. LOgan charges Galbraith to remove from a House; who Suspends, and alleadges, that she is Served, and Kenned to a Terce of the House, which Terce she brukes pro indiviso, with the two thirds. The Charger answered, the Reason ought to be repelled, because, albeit the Defense pro indiviso be relevant against such, who can obtain division: It being their own fault, that they do not first divide, or they pursue Removing; but where it is a House being unum tenementum indivisibile, the Heir, or Successor of the Husband, who has two thirds, and continues in his Possession as well as the Relict in her third, aught to be preferred in the Possession, quia majus trahit minus. The Lords found the answers relevant, to elide the Reason, and discerned the Relict to remove with this quality, that if the Feear did not dwell in the House himself, the Relict should be preferred, giving as much Mail as any other Tenant, and giving Caution for the two part. Lairds of Berfoord and Binstoun, contra Lord Kingstoun. january 21. 1665. BErfoord and Binstoun pursues the Lord Kingstoun, for Spuilzie of certain Corns; he alleged absolvitor, because he Legally drew the same, as their Teynd, by virtue of his Tack from the present Minister, and Inhibition thereon. It was answered, First, That was not sufficient summarily to draw the Defenders Teynds, unless there had been a Sentence on the Inhition, which is but as a warning, and so must not infer Removing, brevi manu ad vitandum tumultum, 2ly. If he had Legally pursued them for a Spuilzie, they would have alleged, and now allege, that they have Tacks standing from the Minister for the time, who, though deposed, yet lives; and all incumbents Tacks serve during their natural life, and no Tack from the next incumbent Prejudges during the life of the former, conform to an express Act of Parliament. The Defender duplyed, that albeit an Act of Parliament required removing not to be summarily, in Lands it did not so in Teynds. 2ly. The Pursuers Tacks are null, without consent of the Patron. The Pursuer triplyed, that they are standing clad with seven years' possession, and their Tacks are subscribed by the Patron Quadruplyed, he was not then Patron, but was standing Forefaulted unrestored. Quadruplyed, it is sufficient coloratus Titulus cum possessione, till the Reduction; And the Lord Bothwells Son Patron, was after restored whereby it revived. The Lords repelled the Defense, in respect of the Pursuers Tacks, and found the Defender might not brevi manu intromet, there being any pretence of Title, but they desired the Pursuer to restrict, to wrongous intromission and without Oath in litem Sir John Scot and Walter Scot contra Sir John Fletcher. Eodem die. WAlter Scot, as being assignee, by Sir john Scot of Scotstarvet, to an Atlas Major, of the late Edition; pursues Sir john Fletcher for delivering thereof, as belonging to the Pursuer, and now in his hand. The Defender answered, non Relevat, unless it were condescended qu● Titulo; for if it came in the Defenders hands, by emption or Gift, it is his own: and in mobilibus possessio presumit Titulum, seeing in these Writ, nor Witnesses uses not to be interposed, and none can seek recovery of such, unless he condescend quo modo desijt possedere, else all commerce would be destroyed, and who ever could prove that once any thing was his, might recover it per mille manus, unless they instruct their title to it. 2. Though it should be condescended, that they were lent, yet it must be proven only scripto vel juramento, being a matter above an hundred pound. The Pursuer answered, that in liquid Sums, or Promises, Witnesses are not receivable above that Sum, but in corporibus, or facts, as in bargains of Victual, made and delivered, Witnesses are sufficient, though for greater Value. The Lords found the Pursuer behoved to condescended upon the way the books was delivered, and found it probable by Witnesses. Mr. William Kintor Advocate contra John Boyd bailie in Edinburgh, Eodem die. MR. William Kintor and john Boyd having both adjudged the Lands of Mountlouthian pursue mutual Reductions of each others Rights; Mr. Williams Right was upon a Decreet, cognitionis causa, against the Appearand Heir renuncing: against which john Boyd, alleged, that the Adjudication was null, proceeding upon a nats' Decreet, cognitionis causa. First, In so far as it was libeled at the instance of Kintor, as assignee by his Brother, who was Heir to his Father, and Execut-Executor, and neither Retour nor Testament produced, and so was null, for want of probation. The Pursuer answered, that he had now produced, in supplement of the Decreet, the Writs. The Lords sustained the Decreet only as ab hoc tempore. 2ly. Boyd alleged, that the Decreet, cognitionis causa proceeded on six hundred marks, which was heritable by Infeftment, and contained Clause of Requisition, and no Requisition produced. The Lords found the Decreet null pro tanto, and to stand for the rest, being upon divers Articles. 3ly. Boyd alleged, that the said Decreet aught to be Reduced, in so far as it proceeded against the Cautioner of a Tutor, for payment of the Annualrent of his Pupils money, during the tutory; and for the Annualrent of that Annualrent a tut●la finita, because the Tutor had uplifted, at least ought to have uplifted, and employed the same for the Pupils behoove, ex officio. It was answered, that albeit Tutors are obliged for their Pupils Rend, which are in Tenants hands; yet not for the Annualrent of their Money, being in secure hands then, and now if the Tutor had lifted it, it would have been lost he being broken; and the Cautioner also: and the Debtors being great men, as the Marquis of Hamiltoun and Lord Burghlie, they would easily have Suspended, and lost the Pursuers pains. The Lords found, that Tutors were obliged to uplift their Pupils Annualrents, though the Creditors were secure, and to employ them for Annualrents, but not for each year they were due, but ante finitam tutelam, because, though he had them, he was not obliged every year to employ them severally, and so sustained the Decreet. 4ly. Boyd alleged, that the years of the tutory aught to have been proven, which was not, and so the Decreet is null. The Lords sustained the Decreet, seeing it was libeled in communi forma, unless it were alleged, that some of these years were post sinitam tutelam, here a Testificat of the Pupils age was produced. Lord Borthwick contra. Mr. Mark Ker. january last. 1665. THe Lord Borthwick pursues a Reduction, ex capite inhibitionis of all Rights made by Sir Mark Ker, to Andrew or Mr. Marks Ker of Moristoun, of certain Lands. The Defenders alleged no Process, because none to represent Sir Mark Ker were called, who being bound in warrandice to the Defenders, aught to be called; whereas, of old Processes sisted till warrants were first discussed; so now the warrant ought at least to be called. The Pursuer answered, that he was not craving Reduction of Sir Marks own Right, but of Moristouns Right, granted by Sir Mark, who was common Author to both. And as to the warrandice, the Defender might intimat the plea, if he pleased. The Lords found no Process till the warrant were called. Alison Kello● contra Pringle. Eodem die. ALison Kello pursues a Reduction against the Lairds of Wadderburn● and Pringle; and craves Certification. It was alleged for Pringle, no Certification; because he was minor, & non tenetur placitare de Haereditate Paterna. The Pursuer answered, primo non relevat, against the Production, but the Minor must produce; and may allege, that in the Debate against the Reason. 2ly. Non constat, that it is Hareditas Paterna, and therefore he must produce, at least his Father's Infeftment. 3ly, All he alleadges, is, that his Father had an heritable Disposition, without Infeftment; which cannot make Haereditatem Paternam, else an heritable Bond were not Reduceable, against a Minor, or an apprizing, and Tack. 4ly. Albeit the alleadgeance were proponed, in the discussing of the Reason; yet the Reason being super dolo & metu, upon which the Defenders Original Right was granted, and not upon the point of Preference of Right; the brocard holds not in that Case, as it would not hold in Improbation, in casu falsi. The Lords found, that the Defender ought to produce his Father's Infeftment; and that a naked Disposition would not be sufficient: which being produced, they would sustain the Defense, quoad reliqua, against the Production; but that they would examine Witnesses, upon any point of fact, in the Reason to remain in retentis, that the Witnesses might not die in the mean time, without discussing the Reason, but prejudice of their Defences. Anderson and Proven contra Town of Edinburgh. Eodem die. ANderson being Creditor to Proven, arrests in the hands of Gairdner all Sums due by him to Proven, and thereupon pursues before the Commissaries of Edinburgh: Gairdner gives his Oath, that he is Debtor to Proven no way, but for the Tack Duty of the Customs of Edinburgh; whereunto he was Sub-tacks-man to Proven, conform to his Bond produced; whereupon, the Commissaries discerned, Gairdner Suspends on double poinding. It was alleged for the Town of Edinburgh, that the Sum in question, being a Sub-tack duty, they had the common privilege of all Masters against their Tenants, and Sub-tennents, that they might pursue either of them, as they pleased, without an Arrestment, or any Diligence, and were always preferable, for their tack-duty to any other Creditor of the principal Tacksman. It was answered, that Custom was not in the case of Rents of Lands; wherein their is tacita hipotheca, and that the principal Tacks-man was only their direct Debtor; and the Sub-tacksman paying to the Principal Tacksman; or which is equivalent, to his Creditor, is for ever free: and the Town of Edinburgh, hath secured themselves, by taking Caution of the Sub-tacksman. The Lords found the Town of Edinburgh preferable, for their tack-duty, and that they had immediate Action against the Sub-tacksman, unless he had made payment, bona fide before, that they might exclude any other Creditor of the Principal Tacks-man, for their tack-duty. George Baptie contra Christian Barclay. Eodem die. CHristian Barclay having pursued George Baptie, before the Commissares, of Edinburgh, for Solemnising Marriage with her; because he had gotten her with Child, under promise of Marriage; as was instructed by his Bond produced, obtained Decreet against him; he Suspends, and raises Reduction, on this Reason, that his Bond was vitiat, in substantialibus, by ocular inspection. 2. That it was Conditional, so soon as he was in readiness. 3ly. That the Charger threatened she would drown herself, for preventing whereof, he had granted this Bond. 4ly. That after the granting thereof, she had carried herself unchastly, and born another Bairn; albeit it cannot be alleged, that ever he co-habited, or conversed with her at all after this Bond: which as it would dissolve the Marriage, though it were Solemnised, multo magis should it hinder the Solemnisation. The Charger answered, to the first, oppons the Bond, wherein albeit there be three or four words delet in that place, thereof obliging him to Solemnize; yet the acknowledgement of the Child's being gotten under promise of Marriage is clear, and sufficient by itself. To the 2. There is nothing alleged, that the Suspender is not in readiness. To the 3. non relevat, there being neither vis nor metus. To the 4th. non relevat, because there being a second Child born after this Bond, which constitute the essentials of a Marriage, the Child is presumed to be the Suspenders, nam Pater est quem matrimonia monstrant, and it cannot be alleged, or proven, that the Child belongs to any other, or that the Charger used any evil carriage with any other. The Lords having considered the Case, found that the presumption was not sufficient, unless it had been a formal Marriage, and therefore Ordained the Charger to instruct, the second Child was the Suspenders; and if there had been any familiarity betwixt them since the Bond. Kirktouns contra Laird of Hunthill. january ult. 1665. TWo Sisters called Kirktouns, having obtained Decreet against the Laird of Hunthill, for their Mother's executry, who left Hunthill her Brother, and two other, Tutors to her Children, in so far, as concerned the means, left them by their Mother; Hunthill Suspends, and raises Reduction, on this Reason. First, That the only ground of the Decreet being a Confirmed Testament, bearing, That Hunthill compeared, and made Faith, and accepted the Office of Tutory; this cannot be sufficient of itself, to instruct he was Tutor: Seing Acts of inferior Courts prove not in any thing, but in points of form of Process, which are ordinary, about in aliis, prove not without a Warrant, and therefore, unless the Warrant of this acceptance were produced, it cannot prove more than an Act of tutory, or Curatrie, or cautionary, will prove without its warrant; and therefore now they crave Certification against the same. 2ly. Neither their Subscription to the Act nor the Principal Testament itself, can be found, though the Registers of that Commissariot, be searched, and others, about that time found neither can it be astructed with the least Act of meddling any way. 3ly. A mother cannot name Tutors, but the Father only, it being Patriae potestatis. It was answered, that albeit in Recenti the warrants of such Acts, aught to be produced, or they are not effectual with out the same: yet it being thertie seven years since this Confirmation, after so may troubles, the Chargers are not obliged to produce the Warrants, being such inconsiderable Little Papers as they are, but they must be presumed, that they were so done, as is expressed in the public Record; seeing this Process has lasted these twvelve years, and before, nor since; till within a year, no mention thereof. It was answered, that there was no prescription run, during which, if at first, the Chargers were obliged to produce, they are still so unless they could fortify, and astruct the truth aliunde, and their silence saith nothing, because it was the Chargers fault, that pursued not till within these twelve years, whereas, if they had pursued timeously the Suspender would then have pursued a Reduction. It was answered, they were Minors, in the Suspenders own house the former time, who would not have keeped and entertained them at all, if he had not known of the Tutory, and that they had means. The Lords found that this naked Testament was not sufficient to astruct the acceptance, without further adminicles. Elphinstoun of Selmes contra The Lord Rollo, and the Laird of Niddrie. 1 February 1665. THe Lord Rollo being addebted in a Sum, to umquhil Mr. David Anderson of Hill, Margaret Anderson his Daughter, gave a procuratory to intromet with all Papers, and to uplift all Sums belonging to her in Scotland, to john Anderson, whereupon john Anderson discharges the Lord Rollo, and takes a new Bond from him, and assignesit to Niddrie. Thereafter Selmes getting Assignation from the said Margaret, Rollo Suspends on double poinding; Selmes alleged, that he, as assignee, had Right to the Sum. It was answered, that Rollo was discharged by the Procurator, before the Assignation. It was answered, primo, that the Procuratory was null, because it wanted the Designation of the Writer, and Witnesses. 2ly. It was offered to be improven as false and fenzied. It was answered to the first, that the Procuratory was made in Ireland, secundum consuetudinem loci, where designation of Witnesses is not required, but a writ, being Sealed, Subscribed and delivered before Witnesses, albeit they be not designed, the writ is effectual. To the second, the Lord Rollo, having made payment bona fide to a Procurator, albeit the Porcuratory should be improven; the Debtor not being accessary, but paying bona fide, could not repeit, otherways all commerce would be marred, and no body will be secure to pay to any assignee, or Procurator, but as payment made, bona fide to them that have no Right, is relevant, only because it is done bona fide, and necessarily; so must it be good, though they have forged the Procuratory. It was answered, that payment was not yet made, but only a new Bond granted, and that it could not be bona fide; seeing the Procuratory, wanting the ordinar Solemnity of Witnesses designed, might have given just ground of doubt, and the Debtor was not to have paid without Sentence. The Lords repelled the first alleadgeance, and sustained the Writ, according to the custom of Ireland; being Nottour to themselves. As to the other point: the Lords did not decide in it till it appeared, whether Niddrie would prev●●● upon the new Bond, and make it equivalent to payment: but they thought that payment made bona fide would be sufficient, albeit the Writ were improven, where there was no ground to doubt. Sir John Fletcher Supplicant. February 3. 1665. SIr john Fletcher having bought the Lands of Crainstoun, and finding that there was an apprizing to be deduced thereof for his Author's Debt, which might cost him trouble; he craved Assessors to be appointed by the Lords, who considering the matter amongst themselves. It carried by the plurality of one or two, to name two Advocats Assessors, but many were on the contrary, conceiving the example of it, would be of great inconveniency, seeing Appryzing were not with continuation of days, and if Parties compeared, and alleged they were Infeft, yet there may be Inhibition, anterior Reversion, or Trust, or nullities in their Right: and if these were denied, they behoved to be instructed, and so Terms of Probation run, while in the mean time the anterior Diligence of others, Appryzing in the country, before the Sheriff would prevent them, and it would hinder any Appryzing ever to be deduced at Edinburgh, and it were hand to put Creditors, who knew not there Debtors Charter Chest, to disput their Rights as in an executive Process. But the Lords inclined, that Sir John's Infeftment should be rather produced, and reserved out of the apprizing, then the apprizing stopped. Falconer contra Earl of Kinghorn. Eodem die. FAlconer pursues the Earl of Kinghorn, for payment of a Bond, wherein his Father was Cautioner. It was alleged the Bond was null, as to Kinghorn; because it mentioned in the first place, three Witnesses to another Parties Subscription, per expressum, mentioning two, without their designation, or expressing whether they were Witnesses to either, or both the two Cautioners: and therefore the Bond was null, by the Act of Parliament. It was answered, that according to the ordinar custom, they offered to design. It was Replied, that the designation behoved to be of living Witnesses; for seeing in itself, the Bond is null, by the Act of Parliament, and that the Lords, by custom, have supplied such Bonds, per equivalentiam. The intent of the Act of Parliament being only, that by the Designation, the Witnesses might be known: and thereby a means of improbation afforded, if the Writ were quarrelled; but after the Witnesses are dead, the Degsination of them cannot attain that effect. The Lords Ordained the Pursuer to Design living Witnesses, or otherways, to condescend upon other Adminicles, to astruct the verity of the Subscription of the Bond. Beg contra Beg. February 4. 1665. THomas Beg in Edinburgh, having a Son of his first Marriage, and providing his Children of two subsequent Marriages to his Means. The Son of the first Marriage pursues his Father, for his Mother's third, and craves Annualrent therefore, he being Minor, and his Father his Tutor of Law, and therefore liable, as other Tutors for Annualrent. Which the Lords found relevant. Paterson contra Pringle Eodem die. ISobel Paterson having lent to Pringles' Wife a 100 lib. scots, and having received a Bond of Pringles in Pand thereof, he thereafter seeking a sight of the Bond, took it away without warrant, whereupon she obtained Decreet against him, before the Commissaries, which He and his Wife Suspended, on this Reason, that he never borrowed any Sum from the Charger, and if his Wife did borrow the same, he knew nothing thereof, or that it was applied to his use, and that she Impignorat his Bond without his knowledge, or warrant. The Lords found, that her having of the Bond, in her hand did infer a warrant to borrow the Money, and oblige her Husband being a matter of small importance. Peter palate contra Thomas Fairholm. ● February 7. 1665. THomas Fairholm Merchant in Edinburgh, having written a Letter to Peter palate Factor at Burdeoux, to Loaden him 30 Tun of Wine. The tenor of the Letter, is, that in respect Fairholm was not acquainted with palate, he had written upon the Credit of his Brother Ninian Williamson Factor at London, who was Palates ordinar correspondent, to Load these Wines in that Ship, which carried the Letter, upon Fairholms account; and bore, That Williamson had Provisions to satisfy the same, and that he would either remit to palate, or draw upon him, as he found convenient. This Letter being sent under a cover of Williamsons to palate, the Wines were sent into Scotland, and Williamson broke about a year thereafter whereupon palate pursues for his Money from Fairholm, who alleged absolvitor, because he having demanded the Wines, not upon his own Credit, but Williamsons, and Williamson having sent under his own cover, as Palla●s Letter bears, the said Order, in which there being mention, that Williamson, had Provisions in his hand: his sending the Letter of that Tenor, under his own cover, is an acknowledgement, that he had those Provisions, and thereby he constitute himself Debtor to palate, and freed Fairholm: likeas, palate acquiesced therein, and drew Bills upon Williamson● which were accepted, but not paid; and was silent, never demanding Money from Fairholm, till Williamson was broken, so that first, Fairholm is free, by the tenor of the Letter, and next, though, thereby he had been bound, yet the damnage sustained by Palates silence, till Williamson was broken, whereby Fairholm was hindered to draw his Provisions out of Williamsons hand, and thereby lost the same through Palates fault, aught to compence palate, and exclude him. palate answered to the first, that he opponed the Letters; which bore expressly the Wines to be sent for Fairholms account; so that albeit it mention Williamsons Credit, and that he had Provisions, it makes him but expromissor, and liberats not Fairholm: as to the second, anent the damnage, palate being secured, both by Fairhlom, and Williamson, might at his option, take himself to either, or to both; and cannot be accounted to have done any fault, in forbearance of either, though an unexpected accident, of Williamsons breaking interveened; so much the more, as Fairholms Letter does not order to draw upon Williamson; but bears, That Fairholme would either draw, or remit, at Williamsons conveniency: So that palate has not failed, in the strike observance of the Order. And if need be, palate offers him to prove, by the custom of Merchants, in the most eminent places abroad, that such Letters did never liberat the Writer. And Fairholm offered to prove, that such Letters did liberat the Writer, unless the receiver had protested, and intimat to the Writer, that he would not acquiesce therein simply, but also in the Credit of the Writer. The Lords found, that the Letter did not liberat Fairholm, notwithstanding of his forbearance to demand, and therefore repelled the Defences, and discerned, but liberat Fairholm from the exchange, and re-exchange: in regard of Palates silence, neither would the Lords delay the matter, upon the opinion of Merchants. David Graham contra George Bruce and Doctor Mairten. Eodem die. DAvid Graham, upon the sight of a Bond unregistrat, of George Bruces, obtained Arrestment; and therewith Arrested a Sum, in Doctor Martin's hand, which was loosed, and after the losing, Assignation being made by George Bruce, to his Sister. In which case, the Lords found, That the Arrestment being upon the Bond, before Registration might be loosed, and notwithstanding of the losing, seeing it was not now paid by the Debtor; they ordained it to be made forthcomand to the Arrester, and preferred him to the assignee, albeit it was alleged, that the tenor of the Arrestment was but till Caution was found, which being found: albeit the Debtor could not oppose to make it forthcoming; yet an assignee, after losing the Arrestment may let. The Lords considered, that the Caution found, in losing Arrestments, is overlie, and insufficient, and so would not insecure Creditors, doing diligence by Arrestment. Lion of Muirask contra Heretors of the Shire. Eodem die. Lion of Muirask, having been Commissioner in the Parliament 1648. did, by virtue of the Act of Parliament, 1661. Allowing Commissioners Charges, to these who served in Parliament 1648. Who adhered to the Engadgment; charges the ●●eretors of the Shire to meet, and Stint; and their being a Stint made, conform to the Valuation: he Charges thereupon● some of the Heretors Suspends, and allege, that they were not charged to meet, and so the Stint Roll is null. 2ly. That is not instructed, that the Charger attended all the days in the Parliament. 3ly. That the Roll ought to be made according to the Retour, and not to the Valuation, conform to the Custom before the troubles. The Lords found, that, seeing the Heretors, who met, expressed in the Stint Roll, that all the Heretors were charged, that it was sufficient, though the Executions against each on of them was not now produced, and because the Sed●runts of the Parliament 1648. were not to be found, They found he had right to the whole Charges during the Parliament, unless for such time, as they shall prove by his oath, that he was absent, but found, that the Stint Roll aught to be according to the Retour, and not to the Valuation: Lady Greenhead conra Lord Louvre. February 10. 1665. THe Lady Craig, and the Laird of Greenhead her second Husband pursues the Tenants of Craig wherein she is Infeft, for Mails and Duties. In which Process, my Lord Louvre co●●pears for his Interest, and alleadges, that he having apprised the Estate of Craig, and being Infeft, thereupon hath raised Reduction of the Lady's Infeftment, on this Reason, that a Part of his Sums being anterior to the Lady's Infeftment, who was competently provided, by her Contract of Marriage, in 30. Chalder of Victual, and this additional Infeftment of fifty Chalder of Victual, being betwixt most Conjunct Persons; Husband and Wife: in so far as it is posterior to the Pursuers lawful Debt; aught to be Reduced upon the Act of Parliament, 1621. The Pursuer answered, the Reason ought to be repelled. First, Because the Act of Parliament being only against gratuitous Dispositions made by Bankerupts, in prejudice of their lawful Creditors, is not relevant: seeing Craig the Disponer was not a Bankrupt; 2ly. As he was not a Bankrupt, so neither was he● insolvendo; because the Reversion of his Estate is sufficient to pay his Debt, albeit the Same were affected with this additional Jointure. It was answered, for the Defender, that albeit the Title, and Narrative of the Act, be against Bankerupts, yet the Statutory part thereof, is against all gratuitous Dispositions, by Conjunct Persons: so that the Defender needs not allege, that either the Disponer was Bankrupt, or insolvendo, but that the Lady's Infeftment is betwixt Conjunct Persons: without an onerous Cause. The Pursuer answered, that the Disponer was neither Bankerupr, nor insolvendo; and the Defender can have no Interest: unless there were fraud or prejudice which the Defender cannot allege; because the Pursuer is content, that the Defender have access by his apprizing to the Jointure Lands, In so far as will satisfy his Annualrents, and by the Act betwixt Debtor and Creditor's the Lords are empowered to restrict Appryzing to their Annualrent, and so he can pretend no prejudice; providing he assign the Lady to his apprizing, in so far as he satisfies his Annualrent, out of her Additional Jointure. The Lords found the answer to the Reduction Relevant, upon purging of the Appryzers' prejudice, not only by admitting him to have access to the apprised Lands upon Assignation, as said is, during the Legal, but with Declaration, that if the Lady Redeemed not within the Legal, the Lands should be irredeemable, and the Lady totally excluded Earl of Lauderdail contra Lord Oxfuird. February 11. 1665. THe Earl of Lauderdail his Guidsir, being Infeft in the Barony of Musselburgh, which is a part of the Abbacy of Dumferling by a Gift from King james, in Anno 1584. Excepted by the Act of Parliament, for Annexation of Kirklands, in Anno 1587. And repeited in the Act of Parliamet 1593. His Father got a Gift in Anno 1641. And Oxfuird got another the same year from the King, as Heir to Queen Ann his Mother, who had a heritable Disposition of the whole Lordship of Dumferling from the King, after Lauderdails first Right; Lauderdail obtained Conformation of his first and subsequent Rights, in the Parliament 1661. Declaring all Rights formerly granted by the King since Lauderdails first Right, void. Which Ratification, bears, an express provision, That it shall not be prejudged by the Act salvo jure cu●uslibet. The Defender alleged, absolvitor in hoc judicio possessorio; because his Father was Infeft by the King, in Anno 1641. And by virtue thereof in possession, twenty years before this pursuit: and as for his Ratification, the Defender not being called thereto; it cannot take away his Right, being founded super jure communi until the Pursuer insist in Reduction. In which case, the Defender shall answer, but is not obliged to answer in hoc judicio, and as for the exception of the Act salvo jur: It's against the common Law: and the Act salvo jure; is posterior without repeiting that exception. The Pursuer opponed his Ratificatiom, excepting the Act salvo jure, which being done upon the King and Parliaments certain knowledge upon consideration of Lauderdails prior Right. The Lords cannot be Judges to reduce the Sentence, and Statute of Parliament; as Durie observes to have been found in the Case of the Earl, of Rothes and john Stewart of coldinghame. The Defender repei●ed his answer; and for these Decisions, opponed the Tenor of the Act salvo jure 1633. And repeited, 1661. Whereby the Lords are ordained to decide, in the Rights of private Parties, according to Law, without respect of Ratification, or other private Statutes, in favours of particular Persons, such as this, which being after this decisions, clears and enlarges the power of the Lords. The Pursuer opponed his Ratification, and exception of the Act salvo jure, which bears expressly, That it should stand as a public Law, and so was no private Statute, mentioned in these Acts, Salvo jure. The Lords having considered the Case, and that such exceptions from the Act Salvo jure were of dangerous consequence to the lieges. They ordained the Parties before answer, to dispute the point of Right as if such an exception of the Act Salvo jure, had not been granted, but they thought that Defense upon a possessory judgement, being but a point of form, whereby the Rights of Parties were not competent by exception, or reply: the Parliament might dispense therewith, and also might repone Parties, as to the matter of Prescription, or quoad minor non tenetur placitare, but if without these and such, the Pursuer had a prior valid Right. The Lords were loath to enter upon the case of the exception of the Act Salvo Jure. Scot of Thirlston contra Scot of Braidmeadow Eodem die. SCot of Thirlston having right to the Teynd of midshef; and pursues the possessor for 24. Years bygone, and in time coming, who alleged absolvitor; because these Teynds are allocal to the Church, co●●or● to a Decreet of locality, produced: bearing, such a Stipend and locatting, so much of it, and for the rest● that the Minister had the Teynds of midshef. It was alleged, that this could not instruct, that those whole Teynds were allocal; but so much, as made up that rest: and the Teynd is worth twice as much, and therefore the Minister had but the twenty Lamb, for the Teynd, which is but half Teynd and was liable to the Pursuer for the rest. It was answered, that Teynds are secundum consuetudinem loci, and if Tyends had never been paid, none would be due, and if the twenty Lambs was all ever paid, they could be liable for no more: The Lords found, that before the intenting of the cause, they would not allow any more nor then what was accustomed to be paid, unless the Pursuer, offer him to prove, that there was a Tack, or use of payment of more, which they would allow accordingly. Sir William Thomson contra Town of Edinburgh, February 14. 1665. THe Magistrates of Edinburgh, having deposed Sir William Thomson Town Clerk, from his Office, on this ground, That a Tack of the new Imposition, and Excise being set to their Tacks-men, (which was to have been subscribed by him, as Clerk, for the Deacons of the Crafts,) he had given it up to the Tacks-man, and had not taken their subscription thereto, neither to their own double, nor taken another double for the Town, albeit the Tack duty was fourscore thousand marks yearly, for two years; and that it being an uncertain casuality, the value of it was most difficult to prove, and not but by the Tacks-mens' own Oath. Sir William raised Reduction, on several Reasons, especially that the sentence was unjust, in so far as it was the putting on of an exorbitant, and incommensurable punishment, of deprivation from an Office of so great Value, upon a Fault of mere negligence, or escape: and that before the Sentence, the tack-duty was all paid, but four months, and now all is paid, and that Sir William was still willing for to have made up the Towns damnage. It was answered, that here was no Process to put a punishment commensurable on a Fault, but Sir William having, by the free Gift of the Town had so profitable a place for his life, upon consideration of his Fidelity and Diligence, there is employed in it, as effectualy, as if expressed, that it is ad vitam aut ad culpam: so that the cognoscing of the Fault is the termination of the Gift freely given, so if their be a fault Justly found by the Town, they might well take back their Gift, they gave upon that condition employed, for it was not the loss in eventu; nor dolus in proposito, that made such a Fault; else all negligences imaginable would not make it up, though a Servant should leave his Master's House, and Coffers open, if nothing happened to follow; yet the Fault was the same, and could not be taken away, by making up the damnage, but here was a Fault of knowledge and importance: for Sir Wil●iam could not by mere negligence, nor ommission give away the Tack to the Tacks-men, and neither see them subscribe their own double, or any other, nor subscribe himself, this Fault was likeas in his Office, he had a particular gratuity, as Clerk to the excise. The Lords repelled the Reason of Reduction, and found the Sentence not to be unjust, upon this ground; because they thought that Sir William being a common Servant, who by his Act of admission, had specially engaged never to quarrel the pleasure of the Magistrates, they, as all Masters have a latitude, in cognoscing their Servants Faults, wherein, though they might have been wished to forbear rigour, yet having done it by their power, as Masters over their Servants; The Lords could not say they had done unjustly, but found that the committing such a Fault terminat their free Gift, being of knowledge and importance, but found that if it could be proven, that the Tack was duly subscribed, and lost thereafter, which was not of knowledge, but of mere omission, incident to any Person, of the greatest diligence, they would not find that a sufficient ground to depose him. Bishop of Dumblain contra Earl of Cassils'. February 15. 1665. THe Bishop of Dumblain pursues the Earls Tenants, for the Teynds of the Abbacy of Cor●regual, as a part of his Patrimony annexed thereto, by the Act of Parliament 1617. The Defender alleged no Process, till the Act of Annexation, being but an Act unprinted were produced. 2ly. Absolvitor, because the Defender had Tacks from the King, in Anno 1641. And by virtue thereof was in possession, and could pay no more than the Duties therein contained, till they were reduced. It was answered to the first, it was nottour, and if the Defender alleged any thing in his favour, in the Act, he might extract it. 2ly. The Defender could not claim the benefit of his Tack, 1641. because the Bishops are restored to all they possessed in Anno 1637. And so not only Right, but Possession, is restored to them as then, which is as sufficient an interruption by public Law, as if it were by Inhibition, ot citation. Which the Lords found relevant, being in recenti after the Act, and never acknowledged by the Bishops. Boyd of Pinkill contra Tenants of Cairsluth. Eodem die. PInkill, as Donatar to the waird of Cairsluth, pursues removing against the Tenants, whose Master compears, and alleadges, that the Gift was to the behoof of the Minor, his Superior; who, as representing his Father and Guidsire, was obliged, in absolute warrandice, against Wairds per expressum. THe Lords considering, whether that could be understood of any other Wairds, than such as had fallen before the warrandice, or if it could extend to all subsequent Wairds, of the Superiors Heir, and so to non-entries, etc. which they thought hard; seeing all holdings were presumed Waird, unless the contrary appear, and the Superior could not be thought to secure against subsequent Wairds, unless it were so specially expressed, all Wairds past and to come: Yet seeing it was found formerly that if the Superior take such a Gift, and be bound in warrandice, that the same should accresce to the Vassals paying their proportional part of the expense, and composition, they found the Defense, that this Gift was to the behoof of the Superior relevant, ad hunc effectum, to restrict it to a proportional part of the expense. Helen Hepburn contra Adam Nisbit. February 16. 1665. HEllen Hepburn pursues Adam Nisbit, to remove from a Tennement in Edinburgh, who alleged absolvitor, because he had a Tack standing for Terms to run. It was replied, that the Tack bore expressly, if two Terms run in the third unpayed, the Tack should expire and be null, ipso facto, without Declarator. It was answered, that notwithstanding clauses so conceived. The Lords hath been accustomed to put them to Declarator, in which case they have the privilege to purge the Failzie at the Bar, and if need beiss, the Defender will now purge. The Lords found the reply relevant, in respect of the conception of the Clause, and would not suffer the Defender to purge, for albeit in Declarators against Feves, ob non solutum canonem, the Lords will suffer the Defenders to purge at the Bar, when the pursuit is upon the Act of Parliament yet they will hardly suffer them to purgewhere that Clause Irritant is expressed in the Infeftment: so Proprietars may pursue their Tenants for failzing to pay the Duties of their Tack, and to find Caution in time coming; else to remove when there is no such Clauses Irritant, and then they may purge, but when the Clause Irritant is expressed, there is far less reason they should have liberty to purge in Tacks then in Feus', where the penalty is much greater. Pringle of Torsonce contra Ker of Sunderlandhall. February 17. 1665. PRringle having apprised the Right of a Wodset, from the Heirs of Sir George Ramsay, does thereupon require and charge for the Money. It was alleged, that he cannot have the Wodset Sum, unless he not only Infest himself in the Wodset, and renounce the same, but put the Defender in peaceable possession, as he did possess the Wodsetter, from whom the Pursuer apprised: and who can be in no better Case, than the Wodsetter himself. The pursuer answered, that he was willing to renounce all Right and Possession, but could not put the Defender in Possession; because a third Party had intruded himself, without the Pursuer, or his Author's Fault, and the Wodset being but a Pledge, the Hipothecar is not liable contra vim major●m, but only pro culpa lata & levi. Therefore if a Pledge be taken away by force, it hinders not the Creditor to demand his Sum. The like must be in intrusion, which is an Act of force, and the Pursuer, who hath only his Annualrent, is not obliged to consume the same upon recovery, but the Defender may do the same. The Defender answered, that whatever might be alleged, in the Case of Intrusion, if in continent, the Wodsetter had intimate the same, and required his Money, yet this intruder has continued a long time. The Lords found the defence and duply relevant to stop the payment of the money till the possession were delivered, seeing the intrussion was ex inter vallo. James Butter contra Grace of Balbrino. Eodem die. JAmes Butter having pursued Grey for payment of a Sum of Money, he alleged prescription, because forty years had run from the date of the Bond, being the last of December 1624. before any Judicial Act, or other interruption done thereon. The Pursuer replied, that he had cited the Defender, upon the first Summons upon the 24 of December. 1664. which was six days within the forty years, from the date. 2ly. It was much more within the 40 years, from the Term of payment of the Bond, from which only, and not from the date prescription runs, quia contra non valentem agere, non currit prescriptio. The Defender answered, that the citation on the first Summons, was not sufficient, unless there had been an Act of Continuation or some Judicial Act within the 40 year; Because the Act of Parliament bears expressly, If the Creditor follow not, and take document within 40 years, the Bond shall expire. The Lords found the reply relevant, and that the Citation on the first Summons was sufficient, being within 40 years of the term of payment. Sir John Baird contra Magistrates of Elgine Eodem die. SIr john Baird pursues the Magistrates of Elgine, for the Debt of a Rebel, escaping out of their Prison, who alleged absolvitor, because the Rebel had the benefit of the Act, Debtor and Creditor; and produced the Clerk of the Bills Certificate thereupon, when he was offered to Prison, and being Imprisoned jointly for an other Debt. The Magistrates protested, that they excepted him not prisoner for this Debt. It was answered, that the benefit of the Act contains an express nullity, if the Annualrents be not paid conform thereto. The Defenders answered, that they could not be Judge to the discharge, and that upon the like case, of a Protection of the Kings, the Magistrates of Striuling were liberat. The Lords repelled the Defense, unless the Clerks attest, the discharge had been first produced, or shown to the Magistrates before the Prisoner was let go. In which case, they might either have refused him, or let him go free. Marquess of Huntly contra Gordoun of Lesmore. February 22. 1665. THe Marquis of Huntly, as Donatar to the Forefaulture of the Marquis of Argyle, as to the Estate of Huntly, obtained Decreet of Parliament against Gordoun of Lesmore, for payment of the Mails and Duties of certain Lands, and for removing therefrom. He Suspends, on these Reasons, First, That the Decreet was null, not preceding upon lawful Citation, but far fewer days than is appointed by Law, and that he was absent, and now alleadges, that his Right to the Lands in question, was by excambion with the Marquis of Argyle, for Lands holden of the Marquis of Huntly, which he had possessed thirty or forty years before, and thereefore, if the Pursuer were dispossessed of the Lands in question, he behoved to possess him in other Lands. 2ly. The Decreet is null, as not proceeding upon trial of an Inquest, cognoscing, the Marquis of Argyle Heretable possessor five years before; conform to the Act of Parliament: nor could that be cog●o●●ed, because, the Defender himself was heritable possessor these years. 3ly. The Defenders Right from the Marquis of Argyle, albeit it was post comissum crimen, yet the crime was latent, proceeding upon missive Letters of his, that was found out of the English hands, which the Defender could not know. The Pursuer answered to the whole; that he opponed the Decreet of Parliament, which ought not to have been Suspended, by the Lords of Session, who are not Judges to Decreets of Parliament, who may dispense with the Diets, and Solemnities of Law, and the Pursuer insists not upon the benefit of the five years' possession, but upon this ground, that the Defenders Rights from the House of huntley, or from Argyle were holden base of Argyle, and not confirmed by the King, and therefore by the Forefaulture of Argyle the Superior, who, by his Right came in Huntley's place, these unconfirmed base Rights fall. Which the Lords found relevant, and in the same Process, Mails and Duties being but generally discerned, without expressing the quantities. The Lords ordained the Pursuer to condescend upon the quantities, and gave him a term to prove. Viscount of Kingstoun contra Colonel Fullertoun. Eodem die. THe Viscount of Kingstoun pursues Colonel Fullertoun, upon the warrandice of an Assignation, made by the said Colonel, to Sir Arthur dowglass of whittinghame. The Defender alleged absolvitor, because the Assignation was only made in trust, which he offered to instruct by many Adminicles, of which these were the chief; that by the Witnesses adduced, it was cleared, that this Assignation remained in the hands of one Cranstoun, who was filler up of the date, and Witnesses therein; that it was never delivered to Whittinghame, and that the Right Assigned, was still retained by the Colonel, who thereupon obtained two Decreets before the Lords, and uplifted the Money from Sir William Thomson Debtor, Cranstoun, who keeped the Assignation, being an Agent in the house, never questioning the same, nor Sir Arthur, or any of his, owning the same for the space of 20 year, till of late; Kingstoun gave 300. merk, to get the Assignation out of the hands of one jenkin, who got it from Cranstoun, and that the Money was to have been presently employed for the levying of Soldiers for a French Regiment, whereof Fullertoun was Colonel, and Sir Arthur Lieutenant Colonel, there were also two Letters of Sir Arthur's produced by the Colonel, acknowledging the trust thereof, the one was alleged to be holograph, but nothing adduced to prove the same, but three other writs, subscribed before Witnesses, for comparing the Subscriptions therein, with the Subscriptions of the Letters. The Pursuer answered, that so solemn a Write, subscribed before Witnesses, could not be taken away by Presumptions, or Witnesses, but either by Writ, or Oath of Party; and as to the Presumptions adduced, there are stronger Presumptions with the solemn Writ then against it: Fullartoun a most circumspect man, would never have given an Assignation in trust, without a Back-bond, and that Sir Arthur died shortly thereafter, Anno 1642. and Cranstoun died Auno 1645. And Whittinghams' Successors were strangers to the business, and the missives adduced were not proven holograph, and were suspect. The Lords found the Defense founded upon the foresaid adminicles relevant and proven and therefore assoilzied. Sir George Movat contra Dumbar of Hembrigs. Eodem die. SIr George Movat, as assignee to a Tochar of 5000 merk, whereunto umquhile Dumbaith was contracter, pursues Hemprigs, as representing him for payment. The Clause of the Contract bore, That the Husband should have the Tochar, out of the first, and readiest Goods of the wifs Father; and that he should have Annualrent therefore, but did not expressly oblige Dumbaith to pay, and therefore he is not liable personally, unless he had intrometted with the Defuncts means. The Lords found the Defender liable, seeing the Clause being in re dotali, it behoved to be interpret cum effectu, and if it did import only a consent, not to hinder the Husband, it signified nothing; and because in Cases conceived passiuè, where it does not appear, who is obliged, the Contracter is understood obliged. Campbel contra Campbel. Eodem die. A Wife pursuing her Father in Law, for employment of her Tochar, conform to her Contract. He alleged absolvitor, because the Clause bore expressly, that so soon as the Tochar was paid completely, he should employ it; and so much more for the Wifs Liferent use, so that, unless it were shown, that the Tochar was completely paid, he was not obliged. The Pursuer answered, that she was not obliged to pay the Tochar, but her Father, and if any neglect or defect were therein, it was not her fault, but the Defender ought to have done diligence, debito ●●mpore, and therefore, albeit the Tochar were not paid, at least he must employ his own part proportionable to what of the Tochar he hath received. Which the Lords found relevant, and if the Pursuer had not restricted herself to that proportion they would have sustained it simply, for all the Defnders own part. Kennedy contra Weir February 23. 1665. KEnnedy of Auchtifardel, having charged William Weir, upon a Bond of 300 merk. He Suspends, and raises Reduction, upon Minority and Lesion. The Charger answered, Minority takes no place where the Minor is in dolo, as si minor sein majorem dixerit, but in this Bond, the Suspender expressly acknowledged himself to be then Major. The Suspender answered, that eadem facilitate, that he was induced to subscribe the Bond, he might be induced to insert that Clause, which therefore cannot prove, unless it were otherways proven, that he did induce the Charger to lend him Money on that ground. The Lords found, his acknowledgement in the Bond was sufficient, unless he instructed, that he was induced to insert that Clause, not on his own motion, or that the Charger knew that he was Minor, or was obliged to know the same, by being his Tutor or Curator, or might have visibly known the same, by the sight of his age, and thought it not reasonable to put it to the Debtors oath, to disappoint the Creditor. Jack contra Pollock and Rutherfoord. Eodem die. MArion Rutherfoord Married David Clerk, and had no Contract of Marriage with him, but he having acquired a little ruinous Tennement, took it to her and him in Conjunct-fee, and in the time of the Plague● he provided her to the Annualrent of 5000 merk. His Heirs raises Reduction of the provision, as being in lecto agritudinis, after he had keeped his house upon suspicion of the plague, of which he died. It was alleged, for the said Marton, that keeping the house upon suspicion of the plague could not be as in lecto aegritudinis, unless it were proven, that he was infected with the Disease, before the provision was granted. 2ly. Even in that Case, Defuncts are not hindered to give Liferents to their Wives, for which there is a natural obligation, according to craig's opinion. The Lords repelled the first alleadgence, but found the second relevant, in so far as might extend to a competent provision to the Wife, and therefore having examined many Witnesses hinc inde, upon the Estate of the Husband, and the Tochar, and frugality of the Wife, and finding his means did consist in a Tenement worth 500 merk by year, beside that inconsiderable Tenement, wherein she was Infeft, they restricted her Annualrent, which came to 300 merk, to 123. lib. which was about the Terce of the Tenement, albeit Terces of Houses within Burgh are not due. In this Process, the Wife and her second Husband, a●d having repaired the other little Tenement, which was ruinous, and builded it much better than ever it was; for which they pursued for the Reparations. The Lords found, that they ought to have the Reparations discerned, not only in so far as is necessary, but in quantum, the Heir will lucrari, by getting greater mail to be paid at the Wife's death, she leaving the Tenement in as good case as now it is. Sir James Mersser of Aldie contra William Rovan. February 24. 1665. SIr james Mersser of Aldie, as Donatar to the Gift of ultimus haeres, of umquhil john Rovan, pursues a Reduction of the Retour, and Service of William Rovan, Served Heir to the Defunct, as his Goodsirs' Brothers Oye: and having obtained Certification, contra non producta; there being nothing produced, but the Retour, Service, Brive and Executions, but no Warrant of the Service, either bearing the Testimony of Witnesses, adduced to prove the propinquity of Blood; or bearing, that the Inquest of proper knowledge, knew the same. The Pursuer now insists in his Reason of Reduction, that the Service is without Warrant, and without Probation by Writ or Witnesses. It was answered, non relevat, as it is libeled, bearing only that it is without probation by Writ or Witnesses, whereas it might proceed upon the proper knowledge of the Inquest, or any two of them. The Pursuer answered, that neither were there any Probation by Writ or Witnesses, nor by the Minuts of Process, bearing, that the Persons of Inquest, of their proper knowledge did Serve. The Lords considering, that the Minuts of these Process upon Service, for Serving general Heirs, which may be before any Judicature, use not to be exactly keeped, would not instantly Reduce for want of the Warrants; but ordained the Persons of Inquest to be produced, to condescend whether they proceeded upon proper knowledge, and what was the Reason of their knowledge. Mc. Gregor contra Menzies. Eodem die. THere being a question arising betwixt Mc. Gregor and Menzies, upon a Decreet Arbitral. The Lords found the Decreet Arbitral null, proceeding upon a Submission of this Tenor, submitting to the Arbiters, ay and while they meet, at any Day and Place they found convenient, with power of Prorogation, without any particular Day, for giving their Sentence blank, or filled up, because the Decreet Arbitral was not within a year of the Date of the Submission, nor any Prorogation during that time. Damn Elizabeth Dowglass and Sir Robert Sinclar of Longformacus contra Laird of Wedderburn. Eodem die. THe Lady Longformacus, as Heir to her Goodsire, William Dowglas of Eveling, who was Donatar to the Escheat and Liferent of john Stewart of Coldinghame, pursues the Laird of Wedderburn, for the Teinds of his Lands, which Teinds pertained to the Abbots of Coldinghame. The Defender alleged absolvitor, because he has Tack to run, flowing from the Earl of Hoom, who was Infeft in the Lordship of Coldinghame● and before that was Commendator thereof by His Majesty. 2ly. john Stewart had ratified all Rights, flowing from the Earl of Hoom; and consequently this Tack after which, the Donatar of his Escheat could not challenge the same; for the Ratification is equivalent, as if the Tack were granted by the Ratifier. The Pursuer answered, that the Defense upon the Tack, and the Earl of Hooms Right aught to be Repelled, because the Earl of Hoomes Right, is Reduced by the Parliament 1621. on this consideration, that the Earl of Bothwel being Commendator of Coldinghame, had demitted the same in his Majesty's hands, whereupon the said john Stewart his Son, was provided by the King, Commendator of Coldinghame, and thereafter the Earl of Bothwel being Forefault, the said john and his other Children were Dishabilitate, and declared incapable to bruik and joy his Land and Heritage, or to succeed to any Person within this Realm, by Sentence of Parliament; whereupon the King provided the Earl of Hoom to be Commendator of Coldinghame; and thereafter on the Earls own Resignation, Infeft him therein, in an erected Lordship, and thereafter in the Parliament 1621. The King and Estates, upon express consideration, that john Stewart was an Infant, no ways accessary to his Father's Crimes, did therefore annul his Dishabilitation, and Rehabilitate him, and declared that he should have Right to the Abbacy of Coldinghame, in the same manner as he had before his Dishabilitation; and Rescinded all Rights and Infeftments of the said Abbacy, granted by His Majesty; to any Person of the said Abbacy, since the said Dishabilitation● in so far as the 'samine might be prejudicial to john Stewart's Provision, that he had before. After all which, john Stewart upon his own Resignation, was Infeft in the Property of Coldinghame; so that the Earl of Hoom's Right being Reduced in Parliament, and falling in consequence with john Stewarts D●shabilitation; whereupon it was founded: the Defenders Tack following thereupon● falls also in Consequence, as was already found by the Lords, in Anno 1628. betwixt the said William Dowglas of Evelen and the Laird of Wedderburn, conform to an Interlocutor, Extracted and produced; which is sufficient inter easdem parts, and cannot be questioned, super eisdem deductis now; albeit at that time Wedderburn passed from his compearance, and so the Decreet against him was in absence, yet the Interlocutor was ordained to be Extracted against him by the Lords, which is sufficient: and as for the Ratification of the Tacks granted by the Earl of Hoom, the 'samine was after john Stewart had Resigned his Comendatorship, and before he was Infeft in Property. The Defender answered; First, That the said Reduction of the Earl of Hoom's Right, was without calling of the Defender: or of the Earl of Hoom himself 2ly. It mentions no particular Right, or any Person, but in general, all Right; and so is but a private Right, impetrat from the Parliament, without hearing of Parties; and therefore falls under the Act of Parliament, salvo jure. And as to the former Interlocutor of the Lords. The reason why the Lords sustained the said Rescissory Act, was because they found themselves not competent to Judge, as to Sentences of Parliament, or to annul the same, upon the not calling of the Parties, in respect that the Act salvo 1621. relates to Ratifications; but not to such Sentences as this: but by Act salvo, 1633. It is expressly declared, that that Act, and all former Acts salvo, should not only extend to Ratifications; but to all other private Acts impetrat without hearing of Parties, and prejudicial to other Parties Rights: and therefore now the Lords ought to proceed upon the Parties Right, without consideration of that Act Rescissory. 2ly. The Act of Parliament Prohibits and annuls all Restitution of Forefaulture by way of Grace, in so far as may be prejudicial to these, who bona fide, acquired Rights from the King, medio tempore: and so the Rehabilitation of john Stewart, cannot prejudge the Earl of Hoom: or the Defender who had Right from the Earl. It was answered for the Pursuer, that there was no difference in the two Acts salvo jure; albeit the last was more express than the first, containing the same in effect. 2ly. john Stewart being Dishabilitat by the Parliament, without Citation or Crime, might justly be Rahabilitate, eodem modo, without Citation, and that not by way of Grace, but in Justice, as not accessary to the Crimes and albeit Forefaultures may not be taken away by way of Reduction, by the Act of Parliament, 1584. cap. 135. yet that cannot be extended to the Dishabilitation of their Children, so that the Parliament doing nothing prejudicial to any Parties Right, but restoring john Stewart to his just Right, eo ipso, the Earl of Hooms Right fell in consequence, as founded upon john Stewarts Dishabilitation, and with it the Defenders Tack. The Lords Repelled the Defense upon the Tack, in respect of the Reply, for albeit the Act of Parliament, 1633. be much larger than the Act salvo, 1621. so that thereby the Lords might have cognosced upon John Stewarts Rehabilitation as without Citation, if it had wronged any other Persons Right, but finding that it was an Act of justice, wronging no Persons Right, they found the same Relevant. Town of Edinburgh contra Sir William Thomson. june 6. 1665. THe ordinar Council of Edinburgh, having Deposed Sir William from his Office of Town Clerk, he raised a Reduction of the Sentence, on four Reasons; first, that the 'samine was thursdays, because it proceeded without Citation, or necessary Solemnities of Process. 2ly. Because the Town could not be Judge in their own Cause. 3ly. Because by the Sett, or the King's Decreet Arbitral, for the Government of the Town, no Person could be admitted to any Office or Benefice therein, but by the great Council consisting of the ordinar Council and their Deacons; and consequently none could be Deposed from such Offices, but by the same great Council, and this Sentence was by the ordinar Council. 4ly. That the Sentence was exorbitant and unjust, in Deposing him for an Omission, sine dolo, lata culpa, aut damno. The Lords having discussed the fourth Reason, and heard the whole Dispute at length in praesentia. The Defender after Interlocutor, but not pronounced on the fourth Reason, borrowed the Process, and refused to redeliver it. The Town called upon a Copy, and represented the manner of abstracting the Process. The question was, what should be done, and whither Sir William might before Litiscontestation, or any Interlocutor pronounced, take up his Process. The Lords admitted Protestation on the Copy, and ordained an Act of Sederunt, prohibiting the Clerks to give up any Process to the Pursuer, after it was Dispute to the full in all the Members thereof, though no Interlocutor were passed, or pronounced thereupon, lest after so long Debate, and hearing, the Lords should at the discretion of Parties, lifting their Process, lose their time, but what had been Dispute, should be advised, de recenti. june 8. 1665. The Lords upon Supplication, ordained an apprizing to be allowed, albeit not only the Debtor against whom it was deduced, was dead, but the threescore days were long since expired, and ordained the allowance to be Registrat, in respect that the late Act of Parliament, declares that such Appryzing as are not Registrat within threescore, shall not be preferred to posterior Appryzing first Registrate, so that the Lords thought, that where the allowance was Registrate, albeit after the threescore days, it would be preferred to any other apprizing Registrat thereafter. Eodem die. The Lords intimat to the Writers, Keeper of the Signet, and Clerk of the Bills, an Act of Sederunt, prohibiting general Letters, upon Presentations or Collations of Ministers, whether having Benefices, or modified Stipends, until every Incumbent obtain a Decreet conform, albeit they should produce their Predecessors Decreet conform, or a Decreet of Locality, containing the Stipend particularly. Swintoun contra Notman. june 10. 1665. SWintoun in his Testament, having named his Wife Tutrix to his Children, and Notman and others, Overseers. His Relict within a year, was married, and so her Tutory ended; shortly after Notman received from her a number of several Tickets, belonging to the Defunct, and gave his receipt Thereof, bearing, that he had received them in his Custody, and keeping● thereafter, he uplifted the Sums, contained in some of the Tickets, and gave a Discharge to the Relict and second Husband, of some particulars, and consented with the Pupil, to a Discharge to a Debtor, which expressly boor, him to be Tutor Testamentar, and did intromet with the Rents of some Tenements, and Disposed upon some Sheep, whereupon Swintoun the Pupil pursues him as Tutor or Protutor, not only for all he Intrometted with, but for the Annualrent thereof, and for all the rest of the Defuncts means, which he ought to have intrometted with, and to have called the Tutrix to an account therefore, and condescended upon the insight and plenishing of the Defuncts House, the Goods in his Shop, he being a Merchant, the Debts in his Compt Books, and these due by his Tickets, not only received by Notman, but by others, and for the remander of his Sheep, and other Movables, and for the rest of his Rents, not uplifted by Notman. It was alleged for Notman; 1. That that member of the Libel was not Relevant, whereby he was pursued, not only for that he Intrometted with, but what he omitted, because a Protutor is not obliged as far as a Tutor for the Pupils whole Means, but this far only, that whatsoever he intromets with, as to that he is obliged as a Tutor, to employ it, and preserve it, and so is liable for Annualrent therefore, and in that he differs from another, negotiorum gestor, who is not liable for Annualrent, but he is not liable for other particulars of other kinds, that he meddled not with, as albeit he had meddled with the Tickets, yet that would not oblige him to meddle with the Compt Books, Plenishing, or cattle; there being no Law to oblige him, neither was there any possibility, that he could meddle therewith, being neither obliged, nor able so to do, having no active title in his Person; for Overseer, non est momen juris, and by our Custom, i● doth oblige to nothing, but is as the fidei commissa, were in the ancient Roman Law in the arbitrament of him, to whom they were committed without any obligation or legal compulsion, ex mera pietate, so that his being Overseers could oblige him in nothing, and his meddling thereafter to preserve the means of the Pupil, when his Tutrix and Mother had superinduced a second Husband, ought not to be hurtful to him; otherways no Overseer will ever meddle in any case, with any thing of the Pupils, whereby their Means may be destroyed. 2ly. He cannot be liable as Tutor notwithstanding of the Discharge, subscribed by him, hoc nomine; because albeit that would prove him Tutor, where the case did not otherways appear, seeing the contrair is manifest; that whereas the Discharge bears him Tutor Testamentar. The Testament produced, bears him only to be Overseer, & fa●sa designatio non obest. 3. The Ticket or receipt of the Bonds cannot oblige him for all these Bonds, but such thereof, whereof he uplifted the Money, and only from that time that he uplifted the same; especially seeing the Ticket bears, that he received them in his Custody, which any friend might do, especially an Overseer; and does not import his purpose of Intromission. The Pursuer answered to the first, that his Lybel was most Relevant, not only for Intromission, but Omission; because a Protutor in Law is obliged in all points as a Tutor, not only pro commissis sed p●o omissis: and albeit he had no active Title, whereby to Intromet, that cannot free him from being liable passive more than a vicious Intromettor, or one behaving as Heir; but he ought either to have forborn, or procured to himself a Tutory dative, and unless Pro-tutors be universally liable, Pupils will be destroyed, because any body will meddle with their Means, knowing they are liable but for what they meddle with, and the A●nualrent thereof, which perhaps will not be made out against them; but if they be universally liable, they will either wholly abstain, or orderly Intromet, by procuring a Title: and albeit Overseers be not liable in the first place, yet they are tutores honorari, lyble after the other Tutors are discussed. As to the third, the receipt of the Bonds, albeit it bear in Custody, yet it is proven by the Writs produced, quod se immiscuit, by uplifting the sums contained in some of the Bonds, and therefore is liable for the whole. The Lords having heard and considered this case at length, found, that seeing there was no Law nor Custom of ours to make a Protutor liable in all points as a Tutor, and that the Civil Law obliges not us, but only we ought to consider the equity and expediency thereof, and therefore they found, that they could not condemn the Defender for omissions, seeing there is no Antecedent, Law, nor Custom: and therefore found, that as Overseer, he was obliged to nothing, and that as Intrometter, he was liable for what he intrometted with, and the annualrent thereof, after his Intromission, and found him liable for the hail Bonds in his Tickets, seeing he meddled with a part of the Money thereof, and found, that if he had meddled with a part of the Sheep, that would make him liable for the whole Sheep of that Flock, and the Annualrent thereof, and found that his being Designed Tutor, contrair to the Testament, did not instruct: but the Lords Declared, that in cases occurring in all time coming they would find Pro-tutors liable in all points as Tutors, and ordained an Act of Sederunt to be made thereupon and published in the House, to all the whole Advocats, that none pretend Ignorance. Sir Alexander Hoom contra june 10. 1665. 〈…〉 pursues for mails and Duties of certain Lands. It was alleged for the Tenants, no Process, because they offered them to prove, that they were Tenants by payment of Mail and Duty to Sir Alexander Hoom their Minister, before intenting of this Cause, and he was not called. 2ly. Absolvitor, because they were Tenants to the said Sir Alexander, who had a right of an apprizing, and Diligence thereupon, anteriour to the Pursuers Right. The Pursuer answered to the first, non relevat, in an action of Mails and Duties; albeit it would be relevant in a Removing. In which two Actions, the Lords have still keeped that difference, that in Remove the Heretor should be called, because thereby his Possession was to be interverted: but in Mails and Duties, the Tenants might Suspend on Double Poinding, and thereupon call both Parties: Or if a Tennent did collude, the master, might use the Tenants' name, but double Poinding could not have place in Remove. To the second, it is not competent to the Tenants to Dispute their Masters Right, which is to them jus tertij; but they should have intimate to their Master, to compear and defend his own Right, who if he will, compear and produce his Interest, may be heard. The Lords Repelled both Defences, unless Sir Alexander compear and produce his Interest. A Letter from the KING. june 14. 1665. THe Lord Ballantine The saurer Depute compeared, and produced a Letter from His Majesty to the Lords, bearing, that His Majesty having heard a doubt moved before him, whether Declarators of Ward, Non-entries, etc. should be discussed before the Lords of Session, or Lords of Exchequer; His Majesty Declared His Pleasure, that in the mean time, till H●s Majesty got further evidence, and clearing therein, such Actions should be pursued before the Lords of Session. Which Letter was ordained to be Recorded in the Books of Sederunt. Aikman contra june 15. 1665. AIkman having Charged upon a Bond of borrowed Money. Suspended, and alleged that the Charge was truly for a Prentis● fee, for a Royto a writer, who was obliged to Educat him three years, and it is offered to be proven by Witnesses, that he beat the Prentice, and put him away with evil usage, within a year and an half, and so can have no more at most, then effeirand to that time. The Charger answered, that he could not divide the Probation, in one single Defense, both by Oath and Witnesses, and that he could not take away Writing by Witnesses, in whole or in part. The Lords sustained the Probation by Oath and Witnesses, as proponed. Cruikshank contra Cruikshank. june 16. 1665. GEorge Cruikshank pursues the Rel●ct and Executrix of Cruicksshank his Uncle, for payment of a Bond of 400. Pound. The Defender alleged absolvitor, because the Defunct had granted an Assignation of certain Sums of Money to David Cruikshanks, the Pursuers Brother, wherein there was a Provision in favours of the Pursuer, that the said David should pay to him a●thousand Pound, which must be understood to be in satisfaction of this Debt, in the first place, nam nemo presumitur donare quamdiu deb●t. The Pursuer answered, that the foresaid Rule hath many exceptions, for it being but a presumption, a stronger presumption in the contrair will elide it as in this case. The Defunct had no Children, and had a considerable fortone, and the Pursuer and the said David his Brother, were the Defuncts nearest of Kin: and albeit the foresaid Disposition be not in the express terms of a Legacy, yet it is donatio mortis causa; for it contains an express power to the Defunct, to Dispone otherwise, during his life, and in another Provision therein, it bears expressly, to be in satisfaction of Debt, due to that other Party, and says not so as to the Pursuer; all which are stronger extensive presumptions, that the Defunct meaned to Gift no less than the whole thousand pounds. Which the Lords found Relevant. William Wright contra George Shiel. Eodem die. WIlliam Wright as assigney by john Shiel in Carlowrie, obtained Decreet against George Shiel in Nortoun as Heir to john Shiel his Brother● for payment of two Bonds. George Shiel Suspends on this Reason, that the Assignation was gratuitous, without onerous Cause, which he offered to prove by the Assigneys' Oath, and offered to prove by the Cedents Oath that the Debt was satisfied. The Lords having at length considered, and Debated this Case among themselves, whether the Cedents Oath could prove against an assignee, when the Assignation was gratuitous, some were of opinion, that it could not, because nothing can prove but Writ or two Witnesses, or Oath of Party, and the Cedent is not the party, but the assignee: and albeit the Cedent could be a Witness, he is but one; and because it is a Rule with us, that the Cedent cannot Depone in prejudice of the assignee, unless the Charge be to the Cedents behoove: and we have no Exception, whether it be gratuitous or onerous; but the most part were of opinion, that in gratuitous Assignations, the Cedents Oath should prove; because an assignee is but Procurator, in rem suam, and doth not proceed upon his own Right, but, utitur jure authoris: and therefore, albeit for Commerce, our Custom hath not allowed the Oath of the Cedent, in prejudice of the assignee; Yet the case in a gratuitous Assignation, hath neither been Debated nor decided; and therefore in it, the Cedents should be sufficient, seeing it cannot be presumed, that he who voluntarly gifted, will swear to his Assigneys' prejudice; and that truly the Cedent is Party, and the assignee pursues but as Procurator, in rem suam. And seeing we have no Law regulating this case, equity and expedience ought to rule it: but in equity no man can put his Debtor in a worse condition, without his consent, either as to the matter, or as to the manner of Probation; and in expedience, the excluding of the Cedents Oath in this case, opens a way for Fraud, that after Debts are paid, they may be assigned, even freely, and the Debtor is excluded from his Probation of the payment. The Lords before answer, Ordained the Assigneys' Oath to be taken, whether Assignation was for a Cause onerous or not. Bruces contra Earl of Mortoun● Eodem die. BRuces pursues the Earl of Mortoun for payment of a Bond, who alleged that the Bond was assigned by the Defunct, and the Assignation intimat, and a Decreet obtained against him thereupon. The Pursuers answered, that this was jus tertij to the Defender, who could not Dispute the Assigneys Right. The Defender answered, that it was exclusio juris agentis. The Lords Repelled the Defense, as being super jure tertij, and discerned, but ordained Suspension to pass, without Caution or Consignation, that the assignee may be called, and Dispute his Right. Gideon Murray contra june 17. 1665. GIdeon Murray having obtained Decreet against for certain Merchant Ware, wherein he was holden as confessed, and thereafter reponed, and the Decreet turned in a Libel. The Receipt of the Goods was found probable, pro ut de jure, and was accordingly proven, and the Cause being concluded, and the Depositions advised. It was alleged for the Defender, first, that he produced and instantly verified, that the Pursuer had granted him a Bond, after the furnishing of the Account of a greater sum, which must be presumed to have included satisfaction of the Account, 2ly. The Decreet was more than three year after the furnishing, and so was not probable by Witnesses; but that manner of Probation was prescribed by the Act of Parliament. The Pursuer answered to the first, that both those Exceptions were competent and omitted, and now after Probation taken; there was no reason to sustain that alleadgence, for after Litiscontestation, no new exceptions can be admitted, unless they be instantly verified and emergent, or at least new come to knowledge, as this is not, for it was obvious, being founded upon so known a Law, as to the Prescription: and as to the other, it is but a weak presumption, no way relevant, unless the posterior Bond had expressed to have been after Compt and Reckoning. The Defender answered, that the Lords might ex nobile officio, repone Parties to Defences, instantly verified, after Litiscontestation● and albeit they ordinarily repone them when the Exceptions are emergent, or new come to knowledge: yet in other Cases, ex officio, they may, as when there is so pregnant a presumption concurring. 2ly Albeit Prescription hinder Pursuits active: Yet seeing the Defender was Creditor by Bond, in a greater Sum. The Pursuer needed not pursue for the Account, quia intus habuit, and the other Party might have compensed upon the Bond; and therefore, as in the Civil Law, in debitis naturalibus & non civilibus licet non dat actionem dat tamen exceptionem: so here the Pursuer may except upon account after three years. The Lords found the presumption not Relevant, and found that the manner of Probation being prescribed, it could not be made use of, either by Action or Exception, albeit there was a compensation competent, yet it befell not, ipso jure, seeing it was not liquid, but liquidable by the other Parties Oath. But as to reponing in this state of the Process, though many of the Lords were in the contrary, yet seeing the exception was but a Prescription, which is but by positive Law, and odious, so that the Pursuer might as well have craved to be reponed against the Prescription, as the Defender against his omission of a palpable Defense, yet in respect of the Prescription, and that the Party was poor, the Lords Reponed. Christian Braidie contra Laird of Fairny. june 21. 1665. CHristian Braidy Relict of james Sword, having Inhibite George Glassfuird upon his Bond, pursues a Reduction of a Disposition, granted by George to the Laird of Fairny, of certain Lands, as being done after her Inhibition. Fairny having produced the Disposition, it bear to be Holograph, whereupon it was alleged, that it was null by the Act of Parliament, requiring all Writs of importance to be subscribed before Witnesses; and this Disposition wanted Witnesses. The Defender offered to prove it was Holograph. The Pursuer Replied, that the question being de data, not that it was subscribed, but when it was subscribed, whether prior or posterior to the Inhibition, Witnesses could not be received, where the question was not against the granter of the Writ, or his heir, but against a third Party. The Lords before answer, did appoint Witnesses to be examined, omni exceptione majores, who being now Examined, both Deponed that they saw the Disposition subscribed, and that it was long before the Inhibition. It was then alleged, that this being done, but before answer, it was entire to Discuss the Relevancy of the alleadgence, whether a Date might be instructed by Witnesses. 2ly. Albeit Witnesses omni exceptione majores were receivable, for such an effect, that these Witnesses were not such, the one being but a Town Officer, and the other Procuratorfiscal of a Sheriff Court, especially seeing there were strong presumptions of fraud, as that nothing followed upon this Disposition, that it remained Clandestine for several years, that thereby the Disponer becoming Bankrupt, had excluded some of his Creditors, and preferred others, and that there was no penuria testium, seeing both their Witnesses assert they saw it subscribed, and the one Deponed, that he Dited it so, that their Names might easily have been insert; and therefore it must be thought, it was done for some Fraudulent intent, as to be of an anterior Date to the Inhibition: and therefore in such a case, the Witnesses should be Persons of Fame, and known Reputation. It was answered, that the Witnesses adduced, were sufficient, seeing they were above exception. Frst, because they were publicly called to the Bar, and received without any objection, so that now none is competent. 2ly. That there is no relevant Exception yet alleged, for the being a Town Officer, is no legal Exception, neither to be of a mean condition, nor to be of a small Estate, if he were worth the King's Unlaw and for the presumptions, they were but mere conjectures; for it was free for a man to make his Disposition all with his own hand, or before Witnesses, and what his motives has been to do it, cannot be known, and so ought not to be presumed fraudulent, nam nullum vitium presumitur. The Lords having fully considered this case, and having Debated, whether Witnesses at all were receivable to astruct the Date of a holograph Writ; and also, whether these Witnesses adduced were sufficient: they found that in respect of the presumptions of Fraud, adduced these two Witnesses, were not sufficient to astruct without further Adminic●es, either by Witnesses of unquestionable Credit, or by Writ. Procuratorfiscal of the Commissariot of Edinburgh contra Thomas Fairholm. june 23. 1665. THomas Fairholm being Charged to give up an Inventar of the Goods and Gear pertaining to umquhil Alexander Deninstoun, whose Daughter he had married. He Suspends on this Reason, that the Defunct had granted a Disposition to one of his Daughters, of his hail movable Goods, and sums of Money, so that he had nothing the time of his Death, and there needed no Confirmation, but he might lawfully possess, by virtue of his Disposition; and there was no Law to force Persons in such a Case to Confirm, neither had it ever been sustained by the Lords. It was answered, that it was juris publici, to have the Goods of Defuncts Confirmed, that nearest of Kin, Children, Creditors, and Legatars, might know the condition thereof; and this Defuncts moveables, albeit Disponed, yet not Delivered, remained in bonis defuncti, and so behoved to be Confirmed. The Lords having Read the Disposition, and finding it to be general, omnium bonorum, that he had, or should have, the time of his Death, and there being nothing alleged of any onerous Cause, or that it was before his sickness, albeit the Case was new, yet they found there was necessity of Confirmation in this Case: But if it had been a Disposition only of special things, as Bonds or Goods, or had been for any onerous Cause, or had been made in leidg pousti, and any symbolical Delivery, the Lords were not so clear in it, but resolved to hear such Cases in their own presence, when they should occur. Colonel James Montgomery contra Wallace and Bovie. june 24. 1665. THe Colonel as Heretor of the Miln of Tarboltoun, having pursued Bovie for abstracted Multures of Drumlie. It was alleged for Bovie and Wallace of Garricks, who had Disponed to him, with warrandice absolvitor; because Wallace and his authors were Infeft in the Milns and Multures, before the Pursuers Infeftment of the Miln. The Pursuer Replied, that the Thirlage was Constitute by a Decreet in Anno. 1569. against the Tenants of Drumlie therein mentioned. The Defender answered; First, that the Heretor was not called. 2ly. That it did not appear, that these Tenants did dwell in Drumlie Wallace, there being two Drumlies lying contigue, one called the Dinks Drumlie, the other called Drumlie Wallace. 3ly. That for any Possession, they offered them to prove that it was interrupted from time to time, by going to other Milns. The Lords having Ordained Witnesses to be Examined, hinc inde, whether the Tenants in the old Decreet, did possess Drumlie Wallace, or the Dinks Drumlie. 2ly. What Possession the Pursuer and his authors had. 3ly. What Interruptions the Defender and their authors had, many Witnesses being Examined, hinc inde. It was clear, that since the year 1653. when Capringtoun, the Pursuers author died, there was no Possession, and there was not above twenty eight years' Possession, proven before, because there was no Witness of that age, that could have been of Discretion forty years before the year 1653. but they found it proven, that the Persons mentionate in the old Decreet, or some of them were Possessors of Drumlie Wallace, and also there was a Tack produced, set by the Pursuers author to one of the Tenants of Drumlie, wherein it was provided, that the Tennent should relieve him of the Multures, and did not express what Miln. The Lords found the old Decreet, although the Master was not called thereto, was not sufficient alone, yet with a long Possession thereafter, they found the same was sufficient to Constitute the astriction, and found the Interruptions by going to other Milns, were not so frequent and long, but that they might have been private and Clandestine, and the Probation during memory, before this controversy was found to instruct anterior Possession, to complete prescription. Irwing contra Strachan. Eodem die. ALexander Strachan as assignee by Patrick Gordon, Charges john Irving to make payment of a Bond of 500 marks, which being Suspended on this Reason, that the Cedent was Debtor to the Suspender in a greater sum, being obliged for the growth of certain Lands, of the Cropped 1633. and certain Bolls of Meal, as the Duty thereof. The Charger answered, that this was not liquidat against him, nor against his Cedent, before his Assignation. The Suspender answered, that it was liquidate before in so far as there was a Decreet of Liquidation obtained against the principal Party for whom the Cedent was Cautioner in the Contract, which must be sufficient against the Cautioner, albeit he was not called, because his obligation was but accessary, unless he could instruct Collusion; and this Decreet of liquidation, proceeds upon Probation of Witnesses. The Lords sustained the Compensation, and found the Liquidation sufficient, being against the Cautioner, though he was not called, and against this assignee, seeing the Decreet was before the Assignation. Alexander Ferguson contra Stevart of Askeoge. june 27. 1665. ALexander Ferguson having obtained a Presentation from the King, as one of the Prebenders of the Chapel-Royal, and thereupon a Decreet conform; and having Charged Stevart of Askeoge, he gives in his special Charge, that the Paroch of Inchgarth, which is now annexed to Rothesay, belonged to his Pr●bendrie, as being a part of the Patrimony of the Chapel-Royal. It was answered for Askeoge, that he bruiks the Teinds by virtue of a Tack granted by Mr. Ninian Stevart Minister of Rothesay, whereof this Kirk, now annexed is a part, and that there is nothing appears to instruct that these Teinds were ever Mortified to the Chapel-Royal, or that the Chapel-Royal was in Possession thereof. The Pursuer answered, that seeing he had the King's Gift, and Decreet conform, it was sufficient, unless the Defender would allege, that the said Mr. Ninian Stevart had a better Right, or was in Possession; for the King being the Common Author, and Fountain of Rights, His Majesty's Gift is sufficient against any that show not a better Right: and as for the Tack produced, it is null, being for nineteen years, without consent of the Patron. The Defender answered, that albeit both Parties were in acquirenda possessione; yet decimae debentur Parocho ejusque praesumuntur nisi aliter appareat: and therefore unless these Teinds have been Transmitted from the Parson of the Paroch, by long Possession, or Mortification, they are his, and the King's Gift alone, cannot take them from his; but here the Parson has been in Possession, by Setting the Tack produced, which is sufficient, as to Possession, albeit it were null by Exception, as it is not; and the nullity thereof is only competent to the Person of the granter, and not to this Pursuer. The Lords found the King's Gift and Decreet conform, with Institution and Collation, was not sufficient, unless either the Mortification of these Teinds, or the Prebenders Possession were instructed. Mr. Walter Caut contra james Loch. Eodem die. MR: Walter Caut having pursued james Loch and his Mother as Tutrix, for her Interest, for the Mails and Duties of some apprised Lands, and the quantities being referred to the Tutrix Oath, she refused to Depone, alleging that she had forgotten the quantities, whereupon the Pursuer craved her to be holden as confessed, upon the Rental given in by him, as if she had acknowledged the same. The Lords found she could not be holden as confessed, being not the Party, but Tutrix, but they found that she might be forced to Depone, by Horning and Caption, as other Witnesses. Alexander Monteith contra Anderson. june 28. 1665. THere being mutual Reductions betwixt Monteith and Anderson, the former having Right to an apprizing, led in Anno 1619. and the other Mr. john Anderson having adjudged in Anno 1656. Mr. john Anderson insisted on this Reason, that Monteiths Apprizing proceeded was on a Sum of 5000. Marks, due by james Nisbet, the common debtor to Gilbert Gourlay, after that james was Rebel, at Mr. john anderson's authors Instance: after which, no Bond granted, could prejudge the other Creditor, having used Diligence before, but the Bond is null by the Act of Parliament 1621. against Bankrupts. It was answered for Monteith, that that Act was only against Fraudulent Dispositions, between confident Persons, without Cause onerous● but here a Bond of borrowed Money, was onerous, and no man was thereby hindered to borrow Money. Anderson answered, that the Narrative of the Rebel's Bond, bearing borrowed Money, could not instruct against a Creditor using prior Diligence. This the Lords Repelled. Anderson insisted upon this Reason, that Gourleys Bond was granted by james Nisbet, james and William arnold's, all Conjunct Principals, without a Clause of Relief; and this Bond was assigned by Gourley, with this express Provision, that no Execution should proceed thereupon, or upon the Bond, or Inhibition against the arnold's: and so if the assignee had been pursuing james Nisbit for all, he might have answered, that the assignee had accepted his Assignation, with this provision, that james Nisbet could not use Execution against the other two Co-principals; and therefore he being excluded from his Relief, could be only liable for his third part, for he would not have subscribed the Bond, but upon consideration of his Relief. Monteith answered, that all the three principals being bound conjunctly and severally, the Creditor might renounce all Execution against two of them, and yet crave the whole from the third, and there was no more done in this case: and albeit there be no Clause of mutual relief expressed, yet hoc in est de natura rei: So that albeit Nisbet, by virtue of the Assignation, thought it had been transferred to him could not have pursued the two Arnots, yet by the obligement of mutual Relief, employed he might, not as assignee, but as coreus debendi. Anderson answered, that if the Clause had born only a Provision, that no execution should pass upon the Assignation, it might have been consistant; but it bears, that no Execution should pass upon the Assignation, or Bond. The Lords found, that the Obligement of mutual Relief, was employed, where parties were bound conjunctly and severally, albeit not expressed, and that the Provision related only to the Bond, quantum ad creditorum, and did not restrict the employed obligement of the Co-principal, and therefore repelled this Reason also. Robert Keill contra john Seaton. june 28. 1665. GEorge Seaton as principal, and the said john Seaton his Cautioner having granted Bond to Robert Keill, and being Charged thereupon, both did suspend, and having alleged payment, they succumbed, and were Discerned; john Suspends again, and raises Reduction upon minority and lesion. The Charger answered, First, That this Reason was competent and omitted in the former Decreet. 2ly. That proponing payment, did homologat the Debt, as if an Heir proponed payment, he would not be admitted foe renounce thereafter, or to deny the passive Title. The Suspender answered, that the former Process being in a Suspension, nothing was competent but what was instantly verified. and so minority and laesion was not competent. The Charger answered, that the Decreet of Registration was turned in a Libel, as being Registrat at the Assigneys' Instance, not having Intimat during the Cedents Life, and at that time the Suspender had raised his Reduction, and so it was competent. The Suspender answered, that he was not obliged to insist in his Reduction, and that the reasons thereof were not proper, even in an ordinary Action, but only by a Reduction. It was further alleged, that competent and omitted, took no place in Suspensions. The Lords had no regard to the last alleadgence, but repelled the alleadgence upon homologation, and upon competent and omitted, in respect that minority and laesion is neither competent by way of Suspension or exception, but by way of Action of Reduction, wherein the Suspender was not obliged to insist. james Pitcairn contra Isobel Edgar. june 28. 1665. UMquhil David Edgar by his Contract of Marriage, provided 4000 marks to be paid by him and his Heir of the first Marriage, which failing, any other his Heirs, to the Bairns of the second Marriage. The portion of the Daughters payable at their age of 18. and the Sons at 21. with five marks yearly of annualrent, after his death, for the children's subsistence. Isobel one of the Children, having married after her Father's death, james Pitcairn her Husband's Creditor, pursues for the sum, as belonging to the Husband, jure mariti. It was answered, that the sum was heritable, bearing Annualrent, and the Term of payment of the Annualrent was come before the marriage, and therefore it did not belong to the Husband, jure mariti. It was answered, that it was not properly an Annualrent, but an aliment of five percent, and that the Term of payment of the Annualrent, was after the Act of Parliament 1641. declaring such Bonds movable: and albeit the Fisk and Relict be there excluded; yet the jus mariti is not, but is only added by the Act 1661. The Lords found, that seeing this Provision bear Annualrent, whether more or less, and that the marriage was after the Term of payment, that it was heritable, and fell not to the Husband, jure mariti, but only the Annualrents thereof, till his death, albeit there was no Contract of Marriage, nor a Tocher, and that the Husband had after the marriage given some provision to the Wife. Mr. George Norvel contra Margaret Hunter. june 29. 1665. MR. George Norvel having Apprized certain Lands, pursued for Mails and Duties against Margaret Hunter Possessor, she compeared, and proponed a Defense, that she stood Infeft in the Lands, by a Right from her Husband before the apprizing, but for proving thereof, she only produced her Seasine. Which the Lords found not to prove without a Warrant, and therefore Discerned. She Suspends, and now produces her Contract of Marriage, as the Warrant of the Seasine, and offers to make Faith, that she had found it out since the Decreet: And farther alleged, that through neglect of the Advocats, or Clerks, her Defense was not proponed, no ways acknowledging the quantities libelled, which she offers to prove to be exorbitant. It was answered, first, that praetextu instrumentorum de novo repertorum sententiae non sunt retractandae. 2ly. The Contract produced is not the Warrant of the Seasine, but a Bond granted for Implement of the Contract, and relating to the Seasine. The Lords Reponed the Suspender, as to the circumduction of the Term, she making Faith, etc. and found the Contract of Marriage a sufficient Adminicle, to astruct the Seasine, seeing it related to a Bond for the same Cause, but refused to Repone her as to the quantities. Heretors of the Miln of Keithick contra Fevers. Eodem die. THe Heritors of the Miln of Keithick, pursues certain Fevers for abstract Multures, who alleged absolvitor, because they are Infeft, ab eodem authore, without astriction before the Pursuer. It was replied the Pursuer is Infeft in this Miln, which is the Miln of the Barony, and per expressum in the Multures of the Lands in question; and offers to prove, that there is a distinct in-sucken Multure, and out-sucken Multure, and that the Pursuer has been in Possession of the In-sucken Multure, these 40. years bygone, out of their Lands. Duplyed the Defender offers him to prove, that the Possession has been Interrupted by his going to other Milns frequently, and without any challenge, or Sentence against them: And seeing the coming to a Miln is but voluntatis, unless they enacted themselves so to do. And that the Pursuers Infeftment, though express, was latent and unknown to the Defender, all that is alleged cannot infer an astriction. The Lords Repelled the Duply, and thought that going to other Milns sometimes, as is ordinar in all Thirlage, was no sufficient Interruption, if they came ordinarily to this Miln, and paid in-sucken Multure, and therefore found the Reply relevant. Richard Thorntoun contra William Miln. Eodem die. THorntoun as assignee by Patrick Seaton, having obtained Decreet before the Bailies of Edinburgh, against William Miln, he Suspends and alleadges Compensation, upon a Compt due by the Cedent, and a Ticket subjoined by him, acknowledging the Compt to be due, subscribed before Witnesses, which must prove against this assignee. It was answered, that the Ticket wanted a date, and so could not instruct itself to be anterior to the Assignation. It was replied, that it was offered to be proven by the Witnesses insert, that it was truly subscribed before the Assignation. Which the Lords sustained. Stevenson contra Crawfoord. june 30. 1665. STevinson being surrogate Executor dative, ad omissa, and having licence to pursue, insists against Crawford for a Debt of the Defuncts, alleged omitted forth of the principal Testament. The Defense was, no Process, until the Executor Dative, ad omissa, be Confirmed; but he cannot insist upon a Licence to pursue, because the principal Executor having made Faith, that the Inventar given up by him, is a full Inventar, any that crave to be Dative, ad omissa, are never admitted, but upon certain knowledge, and so must Confirm, and gets no Licence. The Lords Repelled the Defense, especially seeing the Pursuer was a Creditor. Younger contra johnstoun. Eodem die. AN Porteous Merchant in Edinburgh, having died Infeft in several Tenements in Edinburgh, above 50. years ago, his Relict possessing them as Liferenter to this time. Shortly after his Death, one Patrick Porteous was Served nearest and lawful Heir to him, and thereupon Infeft, so that his Right came by progress to johnstoun, 40. years after; Younger takes a Right from one Stephen Porteous, residenter in Polland, and gets him Served nearest Heir to the Defunct, and thereupon raises Reduction of the first Retour, and all the Infeftments following thereupon, Defense absolvitor, because the Defenders Author being Served Heir 40. years before the Pursuers Authors Service. It is prescribed, and likeways being Infeft 40. years since, all quarrel against, the Infeftment is prescribed: For the first Point, they condescend upon the second Act of Parliament, anent Prescription, of the Reduction of Retours, which bears, that if they be not pursued within 20. year, they shall never be quarrellable thereafter. The Lords having considered this case at length, most part thought that the Retour could not prescrive by the first Act of Parliament, because it excepted Minors, and absents out of the Country, which they found not to be meaned of Absents, Reipublicae causa, but of any absence, nor that it fell not directly within the second Act, which bears expressly, Retours to have been reduced thereafter, should be only reduceable within twenty year. Others thought the Act might not be extended; but bearing expressly, to the future, it could not be drawn back, and the Act of Prescription, 1617. meets not this case; for if under the prescription of Actions, not pursued within forty year, Serving of Persons to their Predecessors Heirs; were comprehended, it would impede any Person to Serve themselves Heir to any Defunct, after forty year, which is yet ordinar, and as to the Infefment, they found, that it fell not in the Case of the Act of Parliament 1617. because it was not clad with Possession, in respect of the Liferenters' life, whose possession behoved to be the possession of the true Heir of her Husband. But the Lords did not decide it, seeing the Case was rarely occurring, and Johnstouns Infeftment very old, unquarrelled; and recomended the parties to agree. Mr. James Nasmith contra Alexander Bower. july 1. 1665. THis being a concluded Cause, a Question arose, upon the Probation; an account being produced between two Merchants, referred to Bowers Oath, that it was his hand writ, and yet resting: he deponed it was his hand writ, but not resting. The question arose, whether he behoved to condescend, and instruct how it was paid; because, though the account written with his hand unsubscribed, was of itself sufficient Probation, the quality was not competent; but he behoved to prove payment, it being alleged that Merchant's hand writ is sufficient: and that a Note upon the back of a Bond, or foot of a Compt, by the Debtors own hand writ, though not subscribed, has been found probative. The Lords found, that if this had been a current Compt-book, it would have been probative, but having been only some feu scheduls of Paper, found it not probative, without subscription, albeit it was acknowledged by the Oath, to be the deponents hand writ. John Boyd late bailie in Edinburgh, contra Mr. William Kintore. july 4. 1665. THere being mutual Reductions, betwixt Mr. William Kintore and john Boyd as to the Rights of the Lands of Moutlothian. john Loyd deriving Right from Mr. Robert Logan, to whom Logan of Coatfield, with consent of Mr. james Raith, and who, for all Right he had to the Land of Mounlothian, disponed the same. And Mr. William Kintore having apprised upon a Decreet against Coatfield, as Cautioner for a Tutor; and upon the Act of Caution inhibited. It was alleged for john Boyd, that whereas, by a former Interlocutor the day of he having objected against Kintor's Decreet, that thereby the Tutor, and his Cautioner were found liable to uplift the Annualrent, of Sums that were in the hands of secure Creditors, which the Tutors had not uplifted, and to be liable for Annualrent post finitam tutelam: now he produces a Decision, out of Dury, july 18. 1629. Nasmith contra Nasmith, whereby it was found, that a Tutor having uplifted his Pupils Annualrent, though very considerable, was not liable for any Annualrent therefore. 2ly. The reason of the Lords Decision then being, that albeit the Tutor was not liable to uplift, and employ the Annualrent every year, as it was due; yet he was liable, once in the Tutory: but it is offered to be proven, that he died two years before the Tutory expired: in which time, he might both have uplifted this Annualrent, and re-imployed it: and therefore being prevented by death, he ought to be free, both of the Annualrent itself, and of the Annualrent thereof. The Lords having considered the Decision, found it so short, and not to hold forth fully the Case, notwithstanding thereof, they adhered to the former Interlocutor, and found, that Tutors are obliged to uplift, and once in their Tutory, to re-imploy the Annualrents of the Pupil; albeit the Debtor were secure, but if the Case had been of Rents of Lands, the Lords thought these aught to have been uplifted yearly, and to be employed on Annualrent; but they found the second alleadgance Relevant, not to free the Tutor of payment of the Annualrent itself, though in secure hands, because he ought to have uplifted it, and had it ready, but found him free of the Annualrent thereof, there being a competent time, in which he might have given it forth, before the Pupillarity past, if he had not been prevented by death; but ordained Kintore to assign to Boyd the Right of the Annualrent, that he might recover the same from the Debtors. It was further alleged for Kintore, that Coatfield the common Author, his Disposition to Mr. Robert Logan, john Boyds Author, was after Kintors' Authors Inhibition. It was answered, that albeit the Disposition by Coatfield to Mr. Robert Logan be posterior, yet Mr. james Raith had a Disposition of the same Lands anterior; who, by consenting, and joint Disponing to Mr. Robert Logan, the Lands of Mountlothian; did in effect constitute him assignee to his anterior Disposition, which is now accomplished by the Adjudication, adjudging the Right of the Lands from Coatfild● Heirs, and thereupon Infeftment has followed, by precepts out of the Chancellary, for supplying Coatfilds procuratory of Resignation, which took no effect in his life. It was answered, that Mr. james Raiths Right being but a Wodset, his consent cannot import the transmitting of his Right, albeit he jointly Dispond: seeing he transmits' no part of the Sums in the Wodset; and therefore does no more in effect, but restrict his Wodset to the remanent Lands: and consents, that Coatfield should Dispone these Lands to Mr. Robert Logan, and so it imports but non repugnantiam, and a Provision that he nor his Successor should not quarrel their Right upon his anterior Right. Which the Lords sustained. Mr. Walter Innes contra George Wilson. july 4. 1665. Inns of Auchbuncart, being pursued as Heir to his Father, upon all the passive Titles alleged that his Father was denounced Rebel, and his Escheat gifted, and the Defender had Right, or warrant from the Donatar before intenting of this Cause. The Pursuer answered, non relevat, except the Gift had been declared, and that the Defenders Intromission had been after Declarator, and the warrant, but the Intromission being anterior, cannot be purged, ex post facto. The Defender answered, that as the confirmation of an Executor, excluds vicious Intromission, had before the Confirmation ante motam litem: so the Gift and Warrand, though without Declarator, purges anterior Intromission, ante motam litem. Which the Lords found relevant. Commissar of S. Andrews contra Boussi. july 4. 1665. THe Commissar of St. Andrews having charged Hay of Boussi to Confirm his Father's Testament, he Suspends, and alleadges his Father had Disponed all his Movable Goods and Gear to him, and so nihil habuit in bonis, and offered him to prove that he was in possession of the whole Goods before his Death. It was answered, the Disposition was but simulat, in so far as it contained a power to the Disponer, to dispose upon any part of his Movables, during all the days of his life, and if such a Disposition were sustained, there should never be another Testament confirmed; and all people would follow this course: which would not only exclude the Quot, but keep the Means of Defuncts in obs●uro. The Lords, in respect of the generality of the Disposition, and the Clause foresaid, repelled the Reason. George Dumbar contra Earl of Dundie. July 5. 1665. GEorge Dumbar having charged the Earl of Dundie as Cautioner for the Laird of Craig to pay 8000 marks of Tochar, provided by craig's Sisters Contract of Marriage, the Earl of Dundie Suspends on this Reason, that he is but liable for his half, because they were not bound conjunctly and severally. The Charger answered, that he was bound as Cautioner, and full Debtor, which was sufficient. Which the Lords sustained Mackie contra Stewart. july 5. 1665. JAmes Mackie, as assignee by Agnes Schaw, conveens Stewart of Mains as as representing his Father, who was Cautioner for employing a Sum of Money to her in Liferent. It was answered, First, the Contract is prescribed. 2ly. It bears these words that the Tochar being paid: The Principal and Cautioner obligded them to employ it upon security; so that the obligation is conditional. And if it be not instructed, that the Tochar was paid, the Defender is not liable. The Pursuer answered to the first, contra non valentem agere, non currit prescriptio; she being a Wife clad with a Husband her not pursuing her own Husband, or his Cautioner, cannot prescrive her Right, To the second, The prescription is run against the Husband, and his Cautioner, who were free to have pursued for the Tochar, and did not; and after 40. years she cannot be put to instruct, that the Tochar was paid, albeit she had been Debtor therefore herself; much more, when another is Debtor. The Lords found both these replies relevant. Mr. John Colvil contra The Lord Balmirino. july 6. 1665. MR. john Colvil, as Executor confirmed to Umquhil Mr. john Colvil, Minister at Kirknewtoun, pursues the Lord Balmirino, for the Stipend, the year 1663. and for the profit of the Gleib. The Defender alleged absolvitor; because payment is made bona fide to the intrant, before intenting of this Cause. It was answered, it could not be paid bona fide, because the Minister died after january 1663. Which being so notour to my Lord Balmirino, to whom the most of the Paroch belongs; and he being so near it, he ought to have made payment to no other of that year, which belonged to the Defunct Minister, as his Ann, extending to the whole years, quia annus inchoatus habe●ur pro completo; as to the Ann: so that if the Minister lived till the first of january, he has that whole year. The Defender answered, that an Ann is only due to the Wife, and Bairns of the Defunct Minister, and this Minister had none. 2ly. That the point is so dubious in Law, he knew not that it would be his, unless, he had lived till Whitsunday. 3ly. The benefit of the Gleib must be the intrants, and falls not under the Ann, as a part of the Stipend, no more than the Manss. The Lords repelled the Defense, as to the Stipend, and found it belonged to the Executor, as nearest of kin, and that the Defunct surviving the first of January, gave him that whole year, but found that the Gleib did not fall under the Ann nor did belong to the Defunct, but only the Crop thereof; if it were sown by himself, before he died. Earl of Argyl contra Mcdougalls of Dumolich and Ziner. july 14. 1665. THe Earl of Argyl having raised a double poinding, in name of the Tenants of certain Lands, calling himself, on the one part, and Mcdougals on the other, as both claming right to the Mails and Duties; Mcdougals' produce a Decreet of Parliament, whereby they having pursued the late Marquis of Argyl; alleging, that he had obtained the Right and Possession of these by Force, and Oppression during the troubles, whereupon his Rights were reduced, and they restored to their Possession. The Earl of Argyl produced his Seasine, upon the King's Gift, with two Dispositions of these Lands, granted to his Father, one in Anno 1632. and another in Anno 1639. And thereupon craved to be preferred. Mcdougals' produced a disclamation of the Process, in name of the Tenants, and alleged no Process; because the Tenants, who were pursuers, passed from the pursuit. It was answered, that their names was but used, that the Parties might discuss their Rights, and so they could not disclaim it, being ordinar to use Tenants names in double poyndings. It was answered, that there was no Reason, that Tenants should be forced to make use of their names, to intervert their Master's Possession. The Lords found, that the Tenants could not disclaim; especially the possession being but late, by Decreet of Parliament, and was contraverse. It was further alleged for Mcdougals, that there was nothing particularly libeled, as Rents due by the Tenants; and therefore there could be no sentence. The Lords repelled the alleadgeance, and found the Sentence might be in general, to be answered, of the Mails and Duties, as is ordinar in Decreets conform. It was further alleged for Mcdougals, that seeing this double poinding was in effect, now used as a Declarator of Right, no Process thereupon; because in all Declarators, Law allows the Defenders 21 days upon the first Summons, and six on the next, that they may prepare, and produce their Rights; and here there is but one Summons on 6 days. 2ly. No Process, because Mcdougals being founded upon a Decreet of Parliament; my Lord Argyl produces no Title, but only a Seasine not expressing these Lands. 3ly. Decreets, especially of Parliament, cannot be taken away, but by Reduction, and not thus summarily. It was answered, that my Lord Argyl insisted here for taking away the pretended Decreet, in Parliament, and restoring the King, and Donatar to the possession of the Lands: so that in effect it is not so much a Declarator of a Right, as a possessory Judgement. And as for the Title, it is sufficient to produce a Siasine, seeing in the Decreet of Parliament, My Lord Argyls Right and possession is quarrelled as wrong, and therefore was acknowledged to have been, and seeing Mcdougals produces no other Right, and the King's Advocate concurres; and if need beiss, my Lord Argyl offers to prove the Lands in question, are parts and pertinents of the Lordship of Lorn, expressed in his Seasine: and albeit this be pretended to be a Decreet of Parliament, yet by Sentence of Parliament since, it is remitted to the Lords, and is in itself visibly null, as having been intented against my Lord Argyl, and pronounced after his death, and Forefaulture without calling the King's Officers. The Lords repelled these Defences, in respect of the replies. James Mathison contra Harry Gib. Eodem die. JAmes Mathison, having obtained a Decreet before the Commissars of Edinburgh, against Gib, he Suspends, and alleadges it was not a cause consistorial, being a bargain of Victual, and that it was not probable any other ways but by his Oath, now after 12. or 13. years. In respect of the Act of Parliament, anent house Mails, and others, which comprehens this case. The Lords repelled the alleadgeance, and found that bargain of Victual not comprehended under that Act of Parliament. James Borthwick contra Janet Skeen july 15. 1665. JAmes Borthwick, being Infeft in the Lands of Oversneip, pursues Reduction, and Removing against janet Skeen the Liferentrix. It was alleged, that the Feet being minor, non tenetur placitare super haereditate paterna, And for the Liferenter, that the minor was obliged to warrant her Liferent-right, and her Possession was the minors Possession; so that if her Right were reduced, and she removed, the privilege of the minor were altogether overthrown. It was answered, That the privilege was personal, and stricti juris, and was to be extended to Majors; and as for the warrandice, it was never sustained as a ground, to exclude a Reduction, because warrandice would be inferred against a Minor, which is but a personal obligement, and not haereditas. The Lords repelled the alleadgance for the Liferenter. Who alleged further, that her Right being Reduced, the Fee was absolute in the person of the Minor, who would not suffer the Liferentrix to be removed, but she did possess by the Minors tolerance. It was answered, that the Pursuers Reduction, behoved to accresce to him and his Right, and not to the Minors Right, that he behoved to enter to the Liferenters' possession, which would not prejudge the Minor; for if the Liferenter died during the Minors Minority, he might return to the possession in the same way, as if the Liferenter were in possession; but as for the tolerance, now the Liferenter having entered by the Liferent Right, and it being reduced in favours of the Pursuer, as the Minor could not thereby attain possession; so neither can he give tolerance to defend the Liferenter. The Lords repelled also this second Defense. Patrick Urquhart contra Thomas Blair. Eodem die. PAtrick Vrquhart having charged Thomas Blair, upon a Bond granted by him and William Young, as co-principalls, Thomas Blair Suspends, and alleadges, that William Young has paid the whole. It was answered, that this was not instructed, and therefore not receivable, being in a Suspension: It was answered, that though in a Suspension, yet a term is always granted, where it is another man's Right. It was answered, that the Suspender is in hazard of breaking, and has not found a good sufficient Cautioner, and therefore if he get delay, he ought to give better Caution: It was answered, that he had found Caution who was accepted, and he was obliged to do no more. The Lords ordained him to make faith de calumnia upon the Reason, but would not put him to find new Caution. Robert Scot contra Silvertounhill. Eodem die. RObert Scot pursuing a poinding of the Ground, for an Annualrent, Silvertounhill compeared, and alleged possession, by virtue of a prior Annualrent, and that the Pursuers Infeftment was base, not clad with Possession. For proving Possession, Robert Scot produced discharges granted by the Annualrenter to the Hetetor for the time, for himself, and in name of the Tenants, which had Witnesses, But designed not the Writers name, and being alleged to be null for want thereof. The Lords ordained Scot to condescend upon the writer of the discharge in respect the Annualrent did extend to 80. lib. and it did prefer one Annualrent to another. Johnstoun of Scheens contra Alexander Brown Eodem die. JOhnstoun being pursued to remove from certain Lands. It was alleged, no Process; because all Parties having interest, were not called, viz. The Defenders wife, in respect he possessed, but by her Right jure mariti, and she was not warned. Which the Lords found relevant. Mr. Thomas Johnstoun contra Mcgregor. july 19 1665. MR. Thomas johnstoun having obtained the Gift of Bastardy of one Mcgregor, and declared in general; insists now, in his special Declarator against Patrick Mcgregor, for 2000 marks belonging to the Bastard. It was alleged absolvitor; because there was a Gift granted in the Usurpers time, and declared, whereupon the Defender had transacted with the Donatar, and satisfied him, and obtained his discharge. It was answered, non relevat, because in the Act of Parliament, confirming Judicial Precedor, under the Usurpers, Gifts of Bastardy, and all following thereupon, are excepted: so that the Defender, had no Defense in the point of Right, and as for his bona fides, it only relevant for what was truly paid, but not for what was in his hand. The Lords repelled the Defense, in respect of the Reply. Mr. James Winerham conra Lady Idingtoun. july 19 1665. MR. james Winerham pursues the Lady Idingtoun personally, for Feu-Duties out of certain Lands Liferented by her. It was answered, non relevat, for any years before the Lady's possession, because Feu Duties may be Pursued, either really, by poinding of the Ground, or personally, against the Intrometters with their profits; and because the Feu-duties are as the yearly Rent; yet that cannot be extended further, than during the years the Possessors intrometted. The Pursuer answered, that the whole profits being liable, for the whole Feu-duties, whether of that, or preceding years, the Lady was liable, not only for the years of her possession, but for bygones. The Lords repelled the alleadgeance, and found the Lady liable personally, only for the years of her possession. Ryce Gum contra Mckewn. Eodem die. RYce Gum having obtained Decreet before the Bailies of the Cannongate, against Mckewn, to repone him to an Assignation, he Suspends, on this Reason, that the Decreet was null, wanting Probation, proceeding only upon the alleged judicial confession of the Suspender, without proponing any defence, acknowledging the Lybel, and succumbing in the Defense but simply confessing the Lybel, which cannot prove against him, being under the hand of an Clerk of an Inferior Court only, without the Suspenders subscription or oath. Which the Lords found relevant. Mr. Robert Dickson contra Mr. Mark Ker. july 21 1665. THere being a competition betwixt Mr. Robert Dickson, and Mr. Mark Ker, as both having the Gift of the Escheat of Hoom of Garden both past the Seal in one day; Mr. Robert Dickson had passed in Exchequer long before, and his Summons was raised two days before his Gift was Sealed, and so was not a Regular Diligence. He alleadges, Mr. Mark Kers was more irregular, because, being a Declarator, his Summons was not upon 21. days. It was answered, the Summons was privileged. It was Replied, that the privilege was granted periculo petentis upon a common Bill, which passes without observation. The Lords considering, that their Gifts were both past in one day, and that there diligence was so near, conjoined the Gift, and declared them jointly. Spreul contra Miller. Eodem die. BArbara Miller having left two Legaces, and named William Wilson her Executor, and universal Legatar, he nominats his Wife, and one Giffin his Executors; Spreul having right to the two Legacies, pursues the Relict, and Executors of Wilson, who was Executor to Barbara Miller, for payment of the Legacies. He alleadges absolvitor, because the first Testament was not Execute. 2ly. The special Legacies must be abated proportionally with the general Legacies: The Lords repelled both the Defences, and found the general Legacy not to come in pari passu with the special, and found that the Executor of the Executor was liable, unless he could allege, that the first Executor had done diligence, and had not recovered, or was exhausted. Laird of Ludquharn contra Laird of Gight. july 21. 1665. THe Laird of Gight having Married Ludquharns Daughter, who remained in her Father's Family, and brought forth a Bairn to Gight, and died; Ludquharn, the Child's Guid-sir keeped her in his Family several years, and now pursues Gight for her Aliment, who alleged absovitor, because the Pursuer never having required a promise of this Aliment, nor desired the Defender to take home his Daughter, It must be presumed, that the Pursuer did it animo donandi, for his own Oye. The Lords found this Defense relevant, for all years preceding the intenting of this Cause. Thomas Rew contra Viscount of Stormont. july 22. 1665. THomas Rew pursues a Reduction of a Decreet obtained by the Viscount of Stormont, who alleged no Process, because the Citation was not within year and day of the Summons, the warrant thereof, which bears, to cite the Defenders to compear the day of next to come. The Lords found the Defense relevant. Johnstoun contra Tenants of Achincorse. Eodem die. JOhnstoun having apprised the Lands of Achincorse, and charged the Lord Dumfries his Superior, to receive him, pursues the Tenants thereof for Mails and Duties. Compearance is made for the Lord Dumfries, Superior, who alleged no Process, till a years Rent were paid to him, as Superior. 2ly, It is offered to be proven that Achincorse the Vassal was in nonentrie, or the Liferent Escheat fallen by his Rebellion, and therefore the Superior aught to be preferred. The Pursuer answered to the first, that seeing it was the Superiors fault, he received not him upon the charge, albeit he offered to receive him now, he could not have a years Rent, till the Pursuer insisted to be infeft. To the second, the Defense ought to be Repelled, seeing there was no Declarator intentit. The Defender answered, that seeing he was to change his Vassal, and the Appryzer sought possession, before he had access, he behoved to pay the years Rend, seeing by the apprizing, and the charge, the Superior will be excluded from his Casualties: To the second, the Superior being acknowledged by the charge he might crave the Casualties of the Superiority, by way of competition, and offered to produce the Horning, cum processu. The Lords sustained the first Defense, but not the second, seeing there was no Horning produced, nor Declarator intentit. Janet Brotherstones contra Ogil and Orrocks. july 26. 1665. JAnet Brotherstones, by her Contract of Marriage, declaring, that she had in Money, Bonds and Goods 4000 marks, is provided to all the conquest, and to the Liferent of the whole Means and Movables, she pursues her Husband's Heirs, for implement, who alleged absolvitor, because she has not fulfilled her part of the Contract and instructs not that she delivered to her Husband 4000 marks in worth or wair. It was answered, it must be presumed, that she has done it after so long time, seeing all she had came in the Possession of her Husband. The Lords found the presumption not sufficient, but before answer, ordained the pursuer to condescend by Witnesses, or otherwise, how she would prove, that she had that means the time of the Marriage, and ordained these to be examined ex officio. Thomas kennedy of Kirkhill contra Agnew of Lochnaw. july 27. 1665. kennedy of Kirkhill, as assignee by Thomas Hay of Park, to a Bond of 1000 lib. granted by Andrew Agnew younger of Lochnaw, charges him thereupon, who Suspends, and raises Reduction on this Reason, that the Bond was granted at the time of his Contract of Marriage, clandestinelie, without the knowledge of his Father, who was Contracter, contra pacta dotalia, & contra bonos mores. The Defender answered, that he having given a very great Tochar, viz. 10000 lib. above his Estate, which is all paid to his Good Sons Father, he did declare, that he was not able to give so much, and thereupon he got this Bond, not to have Execution, till after his death, which he might lawfully do, having given a Tochar suitable to the condition of the Receiver, and above the condition of the Giver. The Lords repelled the Reason, in respect of the Answer. This was thereafter stopped to be further heard. Lilias Hamiltoun contra Her Tenants. Eodem die. LIlias Hamiltoun being Infeft by her Husband, in Liferent, pursues her Tenants; compearance is made for their present Master, who alleged, that her Husbands Right was only a Wodset granted by him; and that he had used an Order, and had Redeemed the Wodset, and paid the money to the Pursuers Husband: and neither knew, nor was obliged to know the Pursuers base Infeftment from her Husband, the Wodsetter, which had never any other Possession, but the Husbands. It was answered, that the Pursuers Seasine being Registrate, he was obliged to know the same, as well as if it had been an Inhibition, especially, seeing there was no Process of Declarator, in which case, all Parties having intress, should have been called at the Mercat Cross, but a voluntar Redemption; albeit upon an Order. The Lords sustained the Defense, notwithstanding of the Reply. Adam Rae contra Heretors of Clackmannan. Eodem die. UMquhile Colonel Rae, having advanced Victual to the Army, at Leith in Anno 1650. And gotten an Assignation to the Maintenance of August and September, from Sir john Smith, than General Commissar, in satisfaction thereof, pursues the Heretors of Clackmannan, for their proportions who alleged, that by their quartering of the King's Army, their whole Rents Anno 1650. was exhausted. It was answered, that it was not our that the exhausting, was after the Battle of Dumbar, which was upon the third of September, 1650. And so could not extend to the maintenance of August and September, which was Assigned before, for so onerous a cause. The Lords repelled the Defense, in respect of the Reply. Captain Muire contra Frazer. july 27. 1665. CAptain Muir, having obtained Decreet against the Heir of Colonel Hugh Frazer for 1000 marks, before the Commissioners, in Anno 1658. Charges thereupon. They Suspend, and raise Reduction, on this Reason; that the Decreet was null without probation, proceeding only upon a Copy, of an obligation alleged taken out of the Register, by one William Baily, who keeped the same at London, which could not prove, not being under the hand of the Clerk Register, or his Deputes, which being proponed in the Decreet, was unjustly repelled. The Pursuer answered, First, There was no review raised within a year, conform to the Act of Parliament, and so the Decreet was not quarrellable upon iniquity, 2ly. Bailies Oath was taken by Commission, that the Extract was subscribed by him. 3ly. The Defender proponed a Defense of payment, and so acknowledged the Debt Debt. It was answered, that the Suspenders were, and are minors; and in the Act of Parliament, there is an exception of Minors, that they may Reduce these Decreets within a year after their Majority. 2ly. They ought to be reponed against their proponing of payment, being Minors, and as to Bailies Oath, neither his Subscription, nor Oath can make a probative Extract; unless the new Extract were now produced; seeing the Registers are returned. The Chargers answered, that if the Suspender would allege, that any Book of the Register containing, Writs Registrat about the time of this Extract, were extant, and returned relevat: but it is known, that several of the Books are lost, and this amongst the rest. The Lords would not sustain the Decreet upon Bailies extract, simply neither did they put the Charger to the proving of a tenor, but allowed the charger to condescend upon the way of his Instruction, that such a Bond was truly subscribed by the Witnesses, insent, or otherways, and ordained the Witnesses to be examined. Adam Rae contra Heritors of Clackmannan. july 28. 1665. IN the Cause of Adam Rae mentioned yesterday, some of the Heretors alleged absolvitor; because they were singular Successors, and by the Act of Parliament, for the Old Maintenance, Singular Successors were excepted. The Lords repelled this alleadgeance, and found, that exception only to be extended to the maintenance contained in that Act. Bessie Scot contra Somervail. Eodem die. BEssie Scot having charged Somervail, who was Cautioner in an Suspension, for payment of an Sum of Money contained in a Bond Suspended. He Suspends on this Reason; That the Money was consigned in the hands of Mr. George Gibson, Clerk to the Bills, for the time. It was answered, that Mr. George Gibson was now out of Office, and insolvent, and the Consignation behoved to be upon the peril of the Consigner. It was answered, that the the Consignation must be upon the peril of that Party, who was the cause of Consignation, and that was the Charger; in so far as it was instructed by an Instrument produced, that the Suspender offered the Annualrent, and so much of the Penalty as the Charger would have Declared upon her Oath, that she had truly paid, which she refused, unless the whole Penalty were paid, whereupon he consigned, through her Fault. The Lords sustained the Reason, and ordained the Noltar, and Witnesses to depon upon the Truth of the Instrument, for Instructing thereof. Dowglas contra Cowan and Russel. july 29. 1665. PEter Russel, by his Ticket, acknowledged him to have received a certain Quantity of Wine, and obliged him to make payment thereof, according to the Condition agreed upon, Dowglas being Assigned to the Ticket, insists for the ordinary Price of Wine. It was alleged no Process, for the ordinar price of Wine, but only for the price agreed on, which behoved to be condescended on, and proven by the Debtors Oath, being above an hundred pounds. It was answered, that, seeing these Conditions were not adjected; the ordinary price was to be understood, unless it were proven by the Debtor, what they were, etc. that they differred from the common Price. The Lords found, that the Debtor, by his Ticket, behoved to condescend on the Conditions, qui potuit legem apertius dicere, and not the Pursuer; but they found Witnesses might prove the condition. Heretors of Don contra Town of Aberdeen. Eodem die. THis day Report being made, concerning the Cruives of Don. The Lords found, that there was no necessity to keep always open a mid-stream, notwithstanding, the several Acts of Parliament made thereanent; which upon enquiry through the Kingdom, they found to be in desuetude, and especially in these Cruives, to be made past memory, with Saturndayes stop only, and ordained the distance of the Hecks to be three Inch Scots measure, whereof 27. make an Elle, vide supra. Lady Knapeirn contra Sir Robert Farquhuar November 9 1665. SIr Robert Farquhar, being Infeft in certain Lands, by the Laird of Knapeirn, with his Lady's consent, pursues the Tenants, and obtains Decreet for Mails and Duties. The Lady pursues Reduction, on these Reasons, that she stood Infeft, and in possession eleven years after her Husband's death, bona fide, without any pursuit; and so being in judicio possessorio, she was tuta re●●ptione. It was answered, that the benefit of a possessory Judgement was never granted to any party, in prejudice of these to whom that Party had Disponed, or consented to a Disposition, which includes an Obligation to possess them; nor can they be in bona fide contrair their own consent, and deed, to possess. The Lords repelled the Defense, in respect of the Reply. It was further alleged, that Sir Robert, by a Declarator produced, had acknowledged nothing of that Wodset due, but what was contained in a fitted account written by him, and subscribed by both Parties, which did innovat the Wodset, and Sir Robert could have no Right thereby, but by this Compt, which only could touch the Husband. Secondly, Albeit the Wodset did stand, in so far as the Compt extends, yet Sir Robert ought to have no benefit by the Wodset, till he produce the Account. It was answered, that the Account was never in his custody, but given to Knaperin, in whose favours it was introduced; and seeing it was clear, that his Wodset was not extinct, but restricted, the Pursuer behoved to condescend in quantum, and to prove it, alliganti incumbit probatio. The Lords ordained, and appointed Sir Robert's Oath to be taken, before answer on his having the count, and yet they sound, that he ought to produce 〈◊〉, but the Interlocutor was stopped the next day. Teilzifeir contra Geddes. November 11. 1665. MArion Geddes, having granted to Samuel Veatch, a blank Bond of 2000 marks, Tailzifer being Creditor to Samuel Veatch; Arrests all Sums in her hand, owing to Samuel: she depones, that she was no ways Debtor to Samuel, but by a Bond given Blank, in the Creditors name, and that she knew not whose name is filled up therein: compearance is made for whose name is filled up in the Bond, and he alleadges, he ought to be preferred to the Arrester, because he offers him to prove his name was filled up in the Bond, and that before the Arrestment, the Bond was Registrate in his name, and that before the said Marion deponed, he had used Inhibition thereupon, which she could not but have known. It was answered, for the Arrester, that he ought to be preferred, because, albeit the Bond was blank ab initio, yet in rei veritate Samuel Veatch was Creditor, and so he behoved to be Legaily denuded, which could not be done by filling up any other persons name, without intimation thereof, made to the Debtor; for seeing a Direct Assignation was not valid, without an Intimation, much less should this indirect way by the Creditors filling up another name than his own in the Blank; which is in effect an Assignation: And seeing the Lords have already found, that the Debtor acknowledging, that he gave a blank Bond to any person, and knows not whose name is filled up in it, is liable to any Arrester, albeit he be under hazard to pay again to that person who has his Board: in justice it followeth, that such Bonds must be intimat, otherways it will unavoidably infer double payment. It was answered, that the Law requires Intimation to Assignation as a necessary Solemnity, but has not required the same to the filling up of a Blank-bond, the case whereof is not alike with an Assignation, because, where the Bond is blank, the Debtor cannot pay any thing bona fide, safely till he see the Bond filled up; but where he knows the name filled up, he may pay bona fide to the Cedent, not knowing of the Assignation. It was answered, that the Law did require to all Assignations, Intimation, but the Case of Blank-bonds was but a late invention, to defraud Creditors, that it might not be known who was Creditor: but seeing it is truly an Assignation it deserves no favour more than a Direct Assignation; and so should have as much Solemnity. The Lords preferred the Arrester, but because the Case was a leading Case, and new, after a second Interlocutor adhering, they allowed the Advocats to offer by B●ll any new Reasons, and particularly, if it could be alleged, that the Debtor granter of the Blank-bond, had before the Arrestment, seen the Blank-bond filled up, and so had deponed, or could depone, that the time of the Arrestment the Debtor saw himself to be Debtor to another person, filled up in the Blank, than he for whose Debt it was Arrested, for in that Case, as the first Creditor that got the Blank-bond might have caused his Debtor retire that Bond, and give a new one, before any Arrestment, so the showing of the filling up of the Blank was equivalent, especially, if the Debt could be proven no otherways but by the Debtors Oath. This Case was not debated, nor was the hazard considered, that the Debtors Oath might prefer one Party to another; nor was the case alike to a renewed Bond: because a renewed Bond would bear a new date, and different Witnesses, that saw the new Creditors name filled up, and would not depend upon the single Testimony of the Debtor. Barbara Skeen, and Mr. David Thors' contra Sir Andrew Ramsay. November 14. 1665. BArbara Skeen being provided by her Contract of Marriage with Umquhile David Ramsay, to 18 Chalders of Victual, or 1800 marks, her Husband having acquired the Lands of Grange Muire, worth 10 Chalders of Victnal; she pursues Sir Andrew Ramsay, as Heir to his Brother, to make her up the superplus. The Defender alleged absolvitor; because he offered him to prove, that the said Barbara stood Infeft in the Lands of Grange Muire, upon a Bond granted by her Husband, which Bond bears: In full satisfaction of the Contract of Marriage, by Virtue of which Infeftment, she having no other Right, she had possessed five or six years after her Husband's death, and thereby had accepted that Right, and had Homologat the same. It was replied, that the Bond being a Deed of the Husbands a Clause foisted thereinto, so far to the detriment of his Wife, and the Infeftment not being taken by her, but by an Acturney, her possession cannot import Homologation thereof, because Homologation being a Tanite, consent is not inferred, but where the Homologator cannot but know the Right Homologat, and can do the Deeds of Homologation no otherways, but by virtue of that Right, neither of which holds here, because the personal oblidgement in the Contract, was a ground for the Wife to have continued her Husband's possession, and would have excluded his Heirs, if they had quarrelled; and not only the Clause must be presumed to be without the Woman's knowledge, but the Bond itself, and the Infeftment especially, considering the simplicity of Wives, and their confidence in their Husbands, who, if this were sustained, would easily deceive them. It was duplied for the Defender, that he offers him to prove, that the Pursuer did not continue her husband's possession, but did begin Possession, her Husband being never in possession before his death, and that she set two several Tacks, expressly as Liferenter, and the third, with consent of Mr. David Thors her Husband being an Advocate; and so she cannot be presumed to have been ignorant, but on the contraire she must bepresumed to have known the Right, and could never denominat her self Liferentrix, by a personal oblidgement, to Infeft her in so much Victual and Money, without mentioning any Land in particular, and her acceptance, though to her detriment, may be the more easily presumed, because she had two Children surviving her Husband, in whose favour the Restriction did accresce, and her Husband did secure her in all that he had, but now ex post facto, the Children being dead, she could not return upon Sir Andrew, her Husband's Brother, contrare to her Homologation. The Lords sustained the Defense, and Duply; for they thought, albeit ignorance might be presumed in a Wife, de recente & intra annum luctus, yet she having continued for so many years, and doing so many deeds, expressly as Liferenter, and that the Bond was not clandistinely, lying by her Husband, but in a third Parties hand, who had taken the Infeftment, they thought, in that case, ignorance was not to be presumed, but knowledge. Wat contra Russel. November 16. 1665. JEan Wat being provided by her Contract of Marriage to certain Lands, and Infeft therein; the Contract contains this Clause, that she shall Aliment, the Bairns of the Marriage, after the Father's death, and in case she marry again, she shall restrict herself to six hundred marks, and the superplus shall remain to the Bairns, for their Aliment: hereupon she pursues Robert Russel, and the other Tenants, for the Mails and Duties of the hail Liferent Lands, who alleged. 1. That she was restricted to six hundred marks, and could crave no more, especially now being married to a second Husband: compearance was also made, for the only Child of the Marriage, who claimed the benefit of the superplus, by virtue of the Clause in the Contract. It was alleged further for the Defenders, that they were Creditors to the Husband, before the Contract of Marriage: and in their Tacks, had a Clause, bearing; That they should retain their Tack duties, while they were paid: and upon their Bonds, they had also Apprized from the Child, as lawfully charged to enter Heir, all Right he had to the Lands So that if the superplus belong to the Child proprio jure, it now belonged to the Defenders, as appryzers. They had also raised Reduction of the Clause of the Contract, in favours of the Children, as being granted by a Father in favours of his own Children, after Contracting of their Debt, and so was fraudulent, and Reduceable, by the Act of Parliament, 1621. Against Bankerupts. It was answered, for the Child, that as for the apprizing, and Decreet against him, as charged to enter Heir, he had Suspended, and raised Reduction, and craved to be reponed; and produced a Renounciation, offering to renounce all Right he could succeed to, as Heir to his Father, but prejudice of this Aliment, which belonged to him proprio jure, as a Restriction granted to him, by his Mother; and as to the Reason of Reduction, upon the Act of Parliament. There was here neither Fault nor Fraud, their being no Law to hinder a Husband to give his Wife what Jointure he pleased; which was never counted in defraud of prior Creditors, nor is their any Restriction, or proportion thereof, but as the Parties agree, which is always sustained in favorem dotium & matrimonij, and the Wife might take what Liferent the Husband was pleased to give her, there was nothing to make her to restrict herself in favours of her Children, for an aliment with restriction, is no Deed of the Father, but of the Mother. It was answered for the Defenders, that the reason of Reduction stood relevant, seeing in this case there was manifest Fraud, in so far as this Liferent was exorbitant, and unproportionable to the Father's Estate, whose hail Lands being only worth 1000 marks, and having nothing but the Tocher, which was 6000. marks, he Infefts his Wife in the hail, and yet restricted her to 600. marks, and provided the rest to his Children; and albeit it appears to flow from the Mother, yet that is but dolose, and in effect it flows from the Father. 2. Seeing the superplus was appointed to be an Aliment to the hail Children, seeing there is but one, it ought to be modified, and what remained above the 600. marks, and a competent Aliment, to belong to the Creditors. The Lords found that the Child's Renunciation should repone him● and found that if the Provision had been Exorbitant, it might have been counted as fraudulent, but they found it not exorbitant, seeing the Land was offered to the Defenders for 900. marks, and there was 200. marks thereof Liferented by another Woman, so that there remained but 100 marks for the Child, and therefore Repelled the Defences, and Discerned. William Dickson contra john Hoom. Eodem die. WIlliam Dickson having charged john Hoom, upon a Bond of 37. Pounds Scots: He suspends, and offers to improve the Bond as not subscribed by him, but another john Hoom. It was answered, Improbation was not receivable, but in a Reduction, or where the original Writ was produced: But this Bond was Registrate in an Inferior Court, and the Charger was not obliged to produce, nor was the Clerk called. The Lords in respect the matter was of small importance, admitted the Reason of Improbation, the Suspender Consigning principal Sum and Annualrent, and declared they would modify a great Penalty, in case he succumbed, and ordained Letters to be direct against the Clerk of the inferior Court, to produce the principal. Howison contra Cockburn. November 17. 1665. THe Executors of David Howison pursue james Cockburn, for the price of several els of Cloth, which the said james, by his Ticket produced, granted him to have received, in name, and for the use of the Laird of Langtoun, his Master. It was alleged absolvitor, because by the Ticket, the Defender is not obliged to pay the Cloth, and doth only act in name of his Master, and therefore the Merchant ought to have called for the Account from his Master, within three years, which he has not done till many years, long after his Master's death. It was replied, that the Ticket must oblige him, at least, docere demandato, for his doing in name of his Master, could not oblige his Master, so that if he be not so obliged, the Merchant loses his Debt, and no body is obliged. It was answered, that he who Acts with any Mandatar, should know his Commission, and if he does not know it, it is upon his own hazard; but if the Mandatar Act not in his own name but his Masters, he does not oblige himself; and if Servants who receive in their Master's name, should be thus obliged to show their warrant, it would be of very evil consequence, seeing their Receipt can be proven by Witnesses, within three years, and their Warrant would not be so probable. The Lords found that post tantum tempus, the Defender was not obliged to instruct his warrant, but the same was presumed to have been known to the Merchant, unless it be proven by the Defenders Oath, that he acted without a warrant, or that he did not apply the Cloth to his Master's use. Baxters in the Canongate November 21. 1665. THere being a Contract betwixt two Baxters in the Canongate, to make use of an Oven, still keeped hot for both their uses, the one pursues the other, as desisting, and obtained Decreet before the Bailies of the Canongate for 36. Pounds of Damnage, which being Suspended. It was alleged ipso jure null, as having compearance, mentioning Defences, Replies, etc. And yet expressing none, but refers the Defenders Action to the Pursuers Probation by Witnesses, who now offered to prove positive, that he continued in doing his part. The Lords would not sustain this visible Nullity, without Reduction, though in re minina, inter pauperes, for preserving of Form. Laurence Scot contra David Boswel of Auchinleck. November 22. 1665. UMquhil David Boswel of Auchinleck, being Debtor to Laurence Scot in 1000 pounds by Bond: He pursues his Daughters, as Heirs of line, and David Boswel now of Auchinleck, his Brother's Son, as Heir-mail, or at least lucrative Successor, by accepting a Disposition of Lands from the Defunct, which were provided to Heirs-mail, and so being alioqui successurus. It was alleged for the said David, no Process against him, till the Heirs of Line were first discu●●. It was Replied, and offered to be proven, that he was obliged to relieve the Heirs of Line. Which the Lords found Relevant. It was further alleged for the Defender, that he could not be convened as lucrative Successor, by the foresaid Disposition, because the time of the Disposition he was not alioqui successurus, in respect that his Father was living. It was answered, that albeit he was not immediate Successor, yet being the mediate Successor, the Disposition was precep●●o haereditatis, and the Lords had already found, that a Disposition to an Oye, made him Lucrative Successor, albeit his Father who was immediate appearand Heir was living. The Lords sustained not the Lylel upon that member, for they found it was not alike, to Dispone to a Brother, as to a Son or a Brothers-son, as to an Oye, because a Brother is not appearand Heir, nor alioqui successurus, seeing the Disponer, has haeredes propinquiores in spe; and therefore cannot be presumed to have Disponed to his Brother, or Brother Son, in fraud of his Creditors, seeing that by that Disposition, he does also prejudge his own Son, if he should have one, and this 〈◊〉 prejudice to the Pursuer, to Reduce the Disposition upon the Act of Parliament, as accords. Mr. james Campbel contra Doctor Beaton. November 23. 1665. DOctor Beaton being Infeft in certain Lands, Wodset by the Laird of Balgillo, does thereafter by a minute, take an absolute Disposition thereof, for a price expressed in the Minute, whereupon Mr. james Campbel arrests in Doctor Beatons hands, all Sums due by him to Balgillo, for payment of a Debt due by Magillo to Mr. james, and likewise juhibits Bagillo, after which there is a Tripartite Contract, betwixt Bagillo on the first part; the Doctor on the second, and john Smith who bought the Lands; on the third, the Doctor and Bagillo Dispone with mutual consent, and the Doctor particularly assigns the Minute to Smith, Bagil●o Renounces the Minute, as to the price; and Smith is obliged to pay the Wodset to the Doctor; the Debtor being before convened, for making arrested Goods forthcoming, and having Deponed that he was owing no Sums to Bagillo, the time of the arrestment, but by the Minute, which was an Inchoat Bargain, never perfected, but was passed from thereafter, and that he was not Disponer to Smith, but only consenter, whereupon he was assoilzied; But Mr. james Campbel, having now found the Tripartite Contract, pursues the Doctor again thereupon, & super dolo, that by passing from the Bargain, and yet assigning the Minute, and not destroying it, he had dolose evacuate Mr. james Inhibition and Arrestment, seeing Smith would defend himself against the Inhibition upon the Minute, which was anterior to the Inhibition, Disponing the Land. It was alleged for the Doctor, that he was tutus exceptione rei judicatae, because he was already assoilzed, having Deponed upon the Arrestment, and the Pursuer could not make use of any Writ in that which he had referred to the Defenders Oath. 2. Albeit the matter were entire, there was nothing to enforce him to perfeit a minute of the sale of Lands, but that he might pass from it before it was extended, or might assign it to any other, which could import no Fraud, seeing he was not obliged to know, or cannot be presumed, that he knew the Inhibition, used against Bagillo. The Pursuer answered, that for the Defenders Oath, he did not now insist upon it, nor did the Writ produced contradict it, for when a Party Depones upon the Tenor of a Writwhich is not his own Writ, it can but be understood according to his memory; but if thereafter by the Writ itself, it do appear to be otherways, it does not infer Perjury, nor can it justly exclude the Pursuer, to make use of that Writ. 2ly. There is not only a different matter of Probation here, but a different medium from the former Process, viz. damnum & dolus, at lest lata culpa dolo aequiparata, in so far as the Doctor did assign the Minute, and exclude the Pursuers Inhibition, which is the more clear, that in the said Contract the Doctor secures himself by Bagilloes' obligement, to warrant the Doctor from any hazard, by assigning the Minute, ubi nimia cautio arguit dolum; neither can the Defender pretend ignorance, not only by the Publication, and Registration of the Inhibition, but upon that very Inhibition, the arrestment being execute against the Doctor. The Lords having Read and Considered the Tripartite contract, they found that after the Arrestment was laid on, the pri●e of the Land was affected, and no Discharge nor Renunciation by the Debtor, could take the price Arrested away from the Arrester; and therefore found the Lybel Relevant, and proven by the Tripartile Contract, produced and discerned, notwithstanding of the former Alsolvitor upon the Doctor's Oath. Bishop of the Isles contra The Fishers of Greenock, Novemb. 24. 1665. THe Bishop of the Isles, as being presented by His Majesty to the Bishopric of the Isles, and whole Teinds, Rents, and Emoluments thereof, and as thereby having Right to the great Teind of all Fish, taken in, and about the Isles of Scotland; Pursues the Fishers of Greenock, for the Teind of Cod and Ling, taken by them, about the Isles of Arran, Bute and Ilsey; but insists only for these taken between Arran and Ilsey, or Boot; and not between these and the Shore, and insists against the Fishers of Greenock, as Fishing in that Bounds: The Defenders alleged, 1. Absolvitor, because the Bishops Right buire expressly, according as his Predecessors had been in Possession, and it was not libelled, nor could it be proven, that ever the Bishop of the Isles was in Possession of the Teind of any Fishy taken by the Inhabitants of the main Land, albeit taken in the place libelled. 2ly. Albeit that Clause were not insert; yet all Teinds of their own Nature, and by the Custom of this Kingdom, are Local and Consuetudinar, and so can be craved out of no place, or for no particular, unless they had been accustomed to be paid of these particulars by that place, as in some places Teinds are paid, not only of Stirk and Lamb, Wool and Milk, but of Staigs, Swine, Hemp, Lint, Eggs; and some places of Fruit, and in other placest of none of these, and that within the same Paroches: And therefore, unless it were Libelled, that Teinds had been accustomed to be paid in this place, they are not due. 3ly. Albeit a Teind here were due of Fish, it could not be due to the Bishop of the Isles, because such Teinds being personal, and not predial, follow the Residence of the Takers, and not the place where they are taken; especially being taken, not in any Bay or Creik of the Isles, but in mari libero, several miles from any Isle, except Ilsey, which is no Island, but a Rock inhabited by no body. 4ly. The Defenders offer them to prove, that they and others upon that Shore of the main-land, has been in Possession 40. years, of a constant fishing of Cod and Ling, in that place, free from all payment of Teinds to the Bishop of the Isles, paying only two marks yearly, to the Tacks-men of the Viccarage of Greenock, granted in Tacks by the Ministers of Greenock. The Pursuer answered, that the Clause in his Charter was in his favour, and is to extend the same to all his Predecessors Possessed, bearing as amply, etc. and that for the Possession, it was sufficient that which he had condescended, viz. that he offered him to prove, that through all his Diocie, the small Teind of Fish belonged to the Ministers as Viccars, but the great Teind of Killing, Ling and Herring, belonged to the Bishop● and was possessed by him and his Predecessors, past memory, but he needs not allege, that he possessed in every several place, where Fish happen to swim; but possessing generally about the Isles, not only as to the Inhabitants of the Isles, being in his Diocie; but also being taken by the Inhabitants of the Main-land throughout the Kingdom. And as in a Barony, Possession of a part, will be sufficient for the whole; so it must be in this Benefice, especially seeing it is but of late that there was any considerable Fishing in the place in question, and there was no reason, if Herring and other Fish, change the Loches where they are ordinarily found, that because there was never Herring Teinded in that Loch, therefore there was none due there. The Lords found the Defense Relevant, viz. that the Defenders, and others upon the Main-land thereabouts had been in immemorial Possession, in the place in question, of Cod and Ling, free from paying any Teind to the Bishops of the Isles; But the Lords would not sustain less than immemorial Possession of the freedom, in respect of the time the Bishops had been out, nor did they determine the Right of the Ministers of Greenock, whether they had Right to the hail Viccarage, or that, as a small duty, but reserved that to them as accords, and they found that the Defense of a constant Fishing, elided the condescendence that this Fishing was but new. Mr. james Chalmers contra Lady Tinnel. Eodem die. MR. james Chalmers Parson of Dumfreis, having obtained a Decreet before the Sheriff, for a part of his Stipend, against this Lady Tinnel, for whom a Procurator compeared, and took a Term to produce her, and she succumbed, whereupon she was holden as confessed. She Suspends, and alleadges that the Decreet bears not the Procurator to have produced any Mandate, and therefore craves to be Reponed to her Oath. The Lords finding that there was nothing else alleged by the Procurator, that might infer his being informed, or having Warrant, but only his taking a day to produce, they would not sustain the Decreet, unless the Charger instructed the same, by proving the quantities. White contra Horn. Novemb. 25. 1665. IN a Competition between White and Horn, the one having Right by progress to the Property of a piece Land, and the other to an Annualrent forth thereof. It was alleged for the Proprietar, First, That the Annualrent was prescribed, no Possession being had thereupon, above forty years. 2ly. The Original Right produced to constitute the Annualrent, is but a Seasine without a Warrant: and albeit the Common Author have given Charter of Ratification thereof; yet it is after the Proprietars Seasine, given by the Common Author to his Daughter, propriis manibus. It was answered for the Annualrenter, to the first, That the Prescription was interrupted by Citations produced, used upon a Summons of Poinding of the Ground, before the Bailies of the Regality of Dumfermling, where the Lands lie. As to the second, that the Confirmation granted to the Annualrenter, is prior to any Charter, Precept, or other Warrant, granted to the Proprietar: for as for the Seasine, propriis manibus; that has no Warrant produced. The Proprietar answered, that the Interruption was not Relevant, because the Executions were null, in so far as the Warrant of the Summons bears, to Cite the Defender Personally; Or otherwise upon the Ground of the Land, or at the Mercat Cross, or Shore of Dumferm●ing, whereupon such as were out of the Country, were Cited● and not upon 60. days, but 25. which Reasons would have excluded that Decreet, and therefore cannot be a legal Interruption. As to the other, albeit the Pursuers first Seasine want a Warrant, yet it hath been clad with natural Possession, and the Annualrentars' hath not. The Lords Repelled both these alleadgences, for the Proprietar; and found the Executions sufficient to interrupt, albeit there were defects in them, that might have hindered Sentence thereupon, especially in re antiquâ, the Lands being in Regality, where the custom might have been, even to Cite Parties absent out of the Country, at the head Burgh of the Regality, and the Shore next thereto, and as the Proprietars Right was not Established by Prescription, so they found that Possession could not give a possessory judgement to the Proprietar, against an Annual●entar, which is debitum fundi. Mr. james Peter contra john Mitchelson. Eodem die. MR. james Peter Minister of Terregh pursues Mitchelson for a part of his Stipend, due out of the Defenders Lands, who alleged no Process, till the Pursuer produced a Title to the Defenders Teinds, seeing he brooked them by a Tack. It was Replied, he offered him to prove seven years' Possession, as a part of the Stipend of Terreghs. Which the Lords sustained without any Title of Possession. Bruce contra Earl of Mortoun. Novemb. 28. 1665. IN an Action for making arrested Sums forthcoming, between Bruc● and the Earl of Mortoun. The Lords found that the Summons behoved to be continued, seeing they were not passed by a special privilege of the Lords, to be without continuation, albeit they were accessary to the Lords Anterior Decreet, against the principal Debtor, which they found to be a ground to have granted the privilege of not Continuation, if it had been desired by a Bill, at the raising of the Summons, but not being demanded, They found quod non in erat de jure. Younger contra johnstouns. Eodem die. PAtrick Porteous having a Tenement of Land in Edinburgh, provided his Wife thereto in Liferent, and died before the year 1608. his Wife lives and Possesses as Liferenter. Yet in Anno 1608. one Porteous his Brother Son, was Served and Retoured Heir to him, and Infeft as Heir, and Disponed the Land, which is come through three several singular Successors to johnstouns, who are Infeft therein, as Heirs to their Father, in Anno 1655. Young●r having acquired a● Disposition from Stephanlaw, Porteus Residenter in Polland, causes Serve the said Stephenlaw, as nearest Heir to the said Patrick, whereupon Stephenlaw is Infeft, and Younger is Infeft. There are now mutual Reductions raised by either Parties, of others Retours and Rights; wherein Younger alleging, that his Author Stephenlaw, Porteous was the nearest of Kin, in so far as Patrick the Defunct had four Brethren, and Stephen Law Porteous was Oye to the eldest Brother, whereas the other pretended Heir was Son to the youngest Brother, which he offered him to prove. It was answered for johnstouns, Absolvitor from that Reason of Reduction, because they had Established their Right by Prescription, in so far as they had a progress of Infeftments, far beyond the space of forty years clad with Possession, by the Liferenter, whose Possession behoved to be accounted their Possession, because the Act of Pa●liament anent Prescription, bears, that the Person Infeft being in Possession by himself, or by his Tenants, or others deriving Right from him, and therefore the Liferenters' Possession is alwise the Fiars. 2ly. By the first Act of Parliament anent Prescriptions of Retours, they prescrive, if they be not quarrelled, within three years. And by the last Act of Parliament 1617. anent the Prescription of Retours, they are declared to be prescrived, if they be not pursued within twenty years. And by the general Act of Prescription 1617. There is a general Clause, that all Reversions, heritable Bonds, and all Actions whatsomever, shall prescrive, if they be not followed within forty years. By all which, Stephenlaw Porteous, not being Retoured till the year 1655. nor having moved any Action against the first Retour. This Action of Reduction, and all other Actions competent, are prescribed. It was answered for Younger, that he being Heir to maintain the right of Blood, which is the most important Right, competent by the Law of Nations, no Statute, nor positive Law can take it away, unless it be express and evident, for the right of Blood can never prescrive, seeing it is certain, that a man may serve himself Heir to his Predecessor, though he died a 1000 years since, if he can instruct his Service. And as for the Acts of Parliament alleged upon, they cannot take away any Right of Blood, for the first Act of Prescription, on three years expressly, bears, to extend to these within the Country, as Stephenlaw was not: and the last Act is expressly, only in relation to Retoures, to be deduced thereafter, but this first Retour quarrelled, was deduced long before, viz. in Anno. 1608. As for the general Act of Prescription, seeing it mentions not Retoures, but only Infeftments● Reversions and heritable Bonds; The general Clause of all Actions whatsomever, ought not to be extended to Retoures, especially, seeing the meaning of the Parliament appears not to have been extended by them to Retoures, because the very next Act doth specially Order the prescription of Retoures. As to the johnstouns Infeftments, they have not the benefit of Prescriptions, never being clad with Possession: For the Liferenters' Possession, as it was the Defuncts Possession: So it did continue to be the true appearand Heirs Possession, although none had been Served to this Day; and therefore the Service or Infeftment following thereupon, cannot take away from the true Heir the presumptive Possession of Law, which the true Heir hath. 2ly. No Prescription can be valid against others: But these that know, or are at least obliged to know the Right, whereupon it proceeds; but the true Heir was not obliged to know their Service, nor was he obliged to Serve himself, but when he pleased, especially seeing he could get no benefit as long as the Liferenter lived, and that he was not obliged to know the first Service, appears, because he was not called thereto, otherways then by a general Citation at the Mercat Cross, to all Parties having Interest, which is but a point of mere form and prejudges no body, and at least could not prejudge a Stranger, living out of the Country, animo remanendi, there being neither special nor general Citation, as to Persons out of the Country on 60. days. The Lords found no weight in this last Point, seeing the Law requires no Citation on 60. days, in cases of Retoures, but only 15. days generally, at the Mercat Cross, which they find every man, origine Scotus, obliged to take notice of, or to have a Procurator at Edinburgh, as in communi patriâ, who may search the Register of Retoures, whether in the public Register, or Town Books, before they prescribe. They also found that there was no ground for Prescription upon the first Act of Parliament, as bearing only relation to these in the Country, nor upon the last Act of Parliament, as bearing only relation Retoures, to be deduced thereafter, neither did they sustain the Prescription upon the first part of the general Act of Prescription; for they found the Liferenters' Possession in the Competition of two Heirs, not to be profitable to either of them, in prejudice of the other, nor yet to be the Possession of singular Successors, seeing it flowed not from these singular Successors, but from the Defunct, to whom both Parties pretended to be Heir; but the Lords found the posterior clause in the Act of Parliament, of all Actions whatsomever to extend to the Reduction of Retoures, and to be general, as to all Actions that may concern Heirs, in prejudice of others: And found it so much the rather to extend to Retoures, that the next ensuing Act finds Retoures to be Deduced thereafter, only to be Reduceable within twenty years, and so finds the Reduction thereof to prescrive sooner than other Rights; and therefore cannot be thought, not to have meaned to reach bygone Retoures, by the general Act. Creditors of James Masson Merchant Supplicants. Nou. 30. 1665. JAmes Masson Merchant in Edinburgh having unexpectedly broke and fled, his Creditors gave in Supplication to the Lords, bearing, that he had most deceitfully broken, having the price of the Goods that he had sold, meditatione fugae, in his hand, and that he either lurked in the abbey, or was to go out of the Country; and therefore craved a Warrant to Messengers of Arms, to secure his Goods, and apprehend his Person wherever the same could be found, until the matter were heard. The Lords having considered the case, that the occasion was very extraordinar, and also the desire, most were of the opinion, that the Lords might grant the Desire, which was done accordingly, with a Recommendation to the Duke of Hamiltoun, Keeper of the King's House, not to suffer him to lurk there, but to expel him, that he might be apprehended: For albeit ordinarily the Lords grant not Caption or Warrant of Wairding the Person of the King's free Liege, till he be Denunced Rebel. Yet seeing the Magistrates of burgh's, and the Admiral grant Acts of Wairding against Parties, until they find Caution to answer as Law-will. The Lords who had eminently in themselves these Jurisdictions, they might do the like in the like case: but some thought that was a special privilege, not to be extended, and this was of dangerous Example to secure persons unheard, more proper for the Council, as a case extraordinar, then for the Session. David Boyd contra Isobel Lauder and john Tailzifer Eodem die. DAvid Boyd pursues john Tailzifer, as Representing his Father, on all the passive Titles, and Isobel Lauder his Mother and Tutrix, for her Interest, and condescends upon his behaving as Heir, by uplifting of the Mails and Duties of his Father's Lands, by his said Tutrix. It was answered, that he being a Pupil, his Tutrix Intromission could not infer that passive Title against him, as hath been frequently sustained these many years. It was answered, that was but since the Usurpation, but before the Tutor's Intromission, did always infer this Title, and the Pupil could only pursue his Tutor for his damnage. The Lords found the Pupil not liable on this passive Title, by his Tutor's Intromission. The Pursuer then insisted against the Tutrix, for paying so far as she had intrometted. It was answered, that she was but called for her Interest, to authorise her Pupil, but not to pay, neither could she be liable to pay, unless a Decreet had been first Established against the Pupil's and then it had been Arrested in her hands, and pursued to be made forthcoming. And yet the Lords found the Tutrix, hoc ordine, liable. White contra Brown. Eodem die. JOhn White as having Right from james White his Father, Charges Brown for 2000 marks, who suspends on this Reason, that this Translation being by a Father to a Son, in his Family, at least having no visible Estate to acquire it: The Suspender cannot be prejudged, as to the manner of Probation, by the Father's Oath, by which he offered him to prove, that the Father was Debtor in a greater Sum. It was answered, that the Cedents Oath could not be taken in prejudice of the assignee. The Lords found that in this case, the Reason was probable by the Cedent Oath. Telzifer contra Geddes. Decemb. 1. 1665. THe competition between Telzifer and Geddes, mentioned the eleventh of November last, being this day again called, Debated and Reconsidered by the Lords at length. The question being, that Marjory sandiland's having granted a Bond to Samuel Veatch, blank in the Creditors name, Samuel filled up Marion Geddes Name therein, whereupon she Registrat the Bond, and Charged him, in the mean time Telzifer, as Veatches Creditor, having Arrested all Sums in Marjory sandiland's hands, adebted by her to Samuel Veatch, and pursuing to make the same forthcoming, she depones that the time of the Arrestment, she was no ways Debtor to Veatch, but by a Bond blank in the Creditors Name, and that she did not know whose Name was filled up in it: But now Telzifer the Arrester compearing, craves to be preferred, because he had arrested the Sum, as belonging to Samuel Veatch his Debtor, before Samuel Veatch was Denuded, by filling up Marion Geddes Name, and intimating, or showing the same to sandiland's the Debtor, and that the filling up of Geddes Name, being but an Assignation, did necessarily require to accomplish it, to Denude the Cedent, an Intimation, for seeing express Assignations do necessarily require Intimation, to prefer them to arrestments; much more ought indirect Assignations, which are suspect of Fraud, and by which a Debtor may keep all his Estate in the Cloud, that none of the Creditors can reach the same, by arrestment or otherwise. And it being answered, that the Bond being delivered blank, there was no present Creditor, but a power granted to the Receiver of the Bond, to make Creditor whom he pleased; at least there was no certain Creditor, so that Samuel Veatch was never Creditor, but had only the power to make the Creditor, and so needed not to be Denuded, nor was there any Law or custom, requiring intimation of the Names filled up in blank Bonds, and if any such thing were done upon the account of Expediency, it ought only to be in time coming. The Lords adhered to their former Interlocutor, and found Veatch to have been the true Creditor, and the filling up of the other Name, to be a Transmission equivalent to an Assignation, and required Intimation, as well for Cases past as to come; for they thought that if Veatch, before the filling of the Bond had been Rebel, it would have fallen within his Escheat. Edward Edgar contra Colvills. Decemb. 2. 1665. EDward Edgar pursues Colvil Success or Lucrative to his Father. Mr. Alexander Colvil, in so far as he accepted an Assignation of an heritable Bond, unto which Bond he would have succeeded as Heir. It was answered, that this passive Title was never extended to Bonds of Provision, granted by a Father to his eldest Son, and if in security and satisfaction of such a Bond of Provision, an Assignation of a Debt, due to the Father and his Heirs, were granted, could not infer an universal Title, to make the Accepter liable to his Predecessors whole Debt, so neither can an Assignation to a Bond, which is no more in effect, and such odious passive Titles are not to be extended, but the Pursuer may Reduce upon the Act of Parliament 1621. or at the farthest, may crave by this Process, the simple avail of what the Defender hath intrometted with, by virtue of the Assignation. The Lords found the condescendence Relevant, as being preceptio haereditatis, and as an Assignation to a Tack, or a small Annualrent, hath been found sufficient, so there is like or more Reason for Assignations to heritable Bonds, which may be more easily conveyed away from Creditors, but they found it not alike as to Bonds of Provision, whereby the Father became Debtor, and in satisfaction and security, whereof he might Assign, and would only import single payment, but not an universal passive Title. Hugh Mcculloh contra Mr. john Craig. Eodem die. HVgh Mcculloh having Right to an Apprizing of an heritable Bond of 2000 marks, due by Umquhil Mr Robert Craig to Patrick Wood, pursues Mr. john Craig as Heir by progress, for payment thereof, and produces a new Extract of the apprizing, by the Clerk of the apprizing, together with the said apprizing, but so spoiled, that neither the Subscription of the Messenger nor Clerk could be known. The Defender alleged no Process, till the Principal apprizing by the Messenger were produced; because it being in effect the Executions of the Messenger, to whom more was trusted then to the Clerk: The Extract by the Clerk without the Messenger was not sufficient. It was answered, that Appryzing of old were all direct to the Sheriffs of the Shire, and were in effect Judicial Process, wherein Parties were Cited, Called and Discerned; and now the Messenger being Constitute Sheriff in that part by the Letters of apprizing, he may choice his own Clerk, and the Extract of that Clerk is sufficient, as of all other Clerks; and albeit for more security, both Clerk and Messenger Subscribe: yet it hath not been determined how far the Messenger's Subscription is necessary: And the Decreet of apprizing is not the Executions of the apprizing, which are distinct therefrom, and Instructions thereof. The Lords thought that the new Extract behoved, either to be astructed with the Letters and Executions, and other Adminicles, or that they would not sustain it alone: But the question was, whether it should be astructed, hoc ordine, or by a proving of the Tenor, in a several Process, which was carried by the plurality. Thomson contra Henderson. Decem. 4. 1665. THomson having granted a Bond to his Brother of a sum of Money, the same was assigned to Henderson, who thereupon Charged. The Debtor suspends, and produces a Discharge by the Cedent of the same Date, and Witnesses with the Bond, and alleged that the Debt being Discharged before the Assignation, excluded the assignee. It was answered, That the Discharge was granted most fraudulently, so that the fraud betwixt the two Brethren, is manifest to have been contrived to deceive, any Person should Contract with the Creditor, whom they saw to have a Bond of a solvendo Person in his hand● and so might be induced to lend him Money, or Contract with him in Marriage, or otherwise; and the Charger having upon that account, lent him Money, and taken Assignation, cannot be excluded by this Contrivance, which was done pessimo dolo. It was answered; First, That dolus was not competent by way of Reply. 2ly. That the assignee took the Assignation on his own Peril, and he should have asked at the Debtor before he took it. The Lords, though the matter was of small Importance, were willing to take the matter of fraud to consideration by way of Reply; and therefore ordained the Suspender to condescend upon some reasonable Cause of the granting of the Bond, and taking back a Discharge thereof at the same time. Beg contra Beg. Decem. 5. 1665. BEg having Disponed some Land to his Son, Redeemable on a Rose-Noble, and having married a second Wife, he Disponed the same to her in Liferent, and assigned her to the Reversion. The Father having used an Order, pursues Declarator. The Son alleadges absolvitor, because he was assigned to an apprizing: Which apprizing carried the Right of the Reversion of that Wodset, and thereby his Father was Denuded of the Reversion, and could not redeem the Wodset, till he Redeemed the apprizing. It was answered, that the Father was not simply Denuded during the Legal: During which time, the apprizing was but like a Right granted in Security, which Denuded not the Fire; as if the Son for Security of a Sum, had been assigned to the Reversion, the Father was not Denuded, but might use the Order, by which the Security was not worse but better; the same holds in this Case; and therefore it is, that he against whom an apprizing is led, may Redeem the first apprizing, albeit the second Appryzer has apprised the Reversion, otherwise no man could redeem an apprizing, unless he redeemed all his apprisings at once, which have different legals; and this Case is as favourable, because the Reversion was only to the Father in his own life; and therefore the Son endeavoured to hinder him to Redeem, by taking Right to this apprizing. It was answered, that the Case was not alike in a Conventional Reversion, as in a legal: And that the apprizing led against the Father in his life, would perpetuat the Reversion; and that this Case was unfavourable, where the Father intended to frustrate his Heir, in favours of the Wife of the second Marriage, to whom he had assigned the Reversion. The Lords having upon the first report considered the favourableness of the Sons Case, sustained the Defense, but afterward upon Bill, ordained them to be heard again in presentia, and having heard them, The Lords were of different opinions, so that that came not to a Vot; But the Lords before answer, ordained the Wife to insist upon her Right, who alleged that she might Redeem, ad hunc effectum, to enjoy the benefit of her Liferent Right, after her Husband's Death. It was answered; First, That she wanted the concourse of her Husband. 2ly. That her Assignation was not intimat. It was answered; First, Her Assignation was Registrat in the Register of Reversions, conform to the Act of Parliament: Which Registration being publicandi causa, needed no intimation. 2ly. That she had a Disposition in Liferent, by her Contract of the Lands, which carried omnejus, in the Disponer, as to the Liferent Right, during her Life, and so carried the Reversion, though not expressed, and her Seasine being registrat, it was equivalent to the Registration of the Assignation. The Lords sustained the Wife's Interest, and declared in her favours, for her Liferent use, and found the Disposition with the Seasine Registrat, and the Assignation also Registrat sufficient. Cheisly contra Cuthbert. Eodem die. CHeisly Charges Cuthbert for his Prentis-fee: Who suspends, and alleadges that he was set Prentice to him as Apothecary, and that he deserted that Employment, and became a Drogeist, and thereupon the Suspender left him. It was answered, that, the breeding of him as a Drogeist was sufficient, and that he now practised as Apothecary and Cherurgeon. The Lords found this answer not Relevant, the Suspender being set to him as Apothecary, to make Drogs, and not as a Drogeisi that buys Drogs, as to the time after he changed: But the Charger having further offered to prove, that he constantly in his Chamber, makes, as well as sell Drogs, the Lords found it Relevant. Richard Cunninghame contra Duke of Hamiltoun. Eodem die. RIchard Cuninghame pursues the Duke and Duchess of Hamiltoun, for payment of a Bond, granted by the late Duke, which being produced, appeared to have been blank in the Sum, Date and Creditors Name. The Defenders alleged, the Bond was null, as wanting the Designation of the Writer. It was answered, that they did now Design him, which has been always allowed by the Lords. It was answered, that though the Lords have done so, ex officio: Yet in a case of this nature, where the Debt is so old, never mentioned before, and the Bond in the substantials blank, in which case the Lords ought to keep by the express words in the Act of Parliament, that such Writs are null, and not to be supplied by an equivalent. The Lords Repelled the Defense, and admitted the Designation. Helen Hill contra Maxwels. Eodem die. IN an account and reckoning between Helen Hill, Relict of john Maxwel in Glasgow, who was one of the Tutors named by john to his Bairns and Mr. Robert and George Maxwels his brethren, who succeeded the Daughters, being dead: john by his Testament leaves his two Daughters, and failing of either of them, by Decease to the other, his universal Legatars; one of the Daughters died Pupil, and the other shortly after her age of 12. years, nominat the said Helen her Mother, universal Legatrix, whereby Helen craved the universal Legacy of both the Daughters. It was alleged that the last Daughter, not having Confirmed herself Executrix to the first; the first share was never established in her Person, and so could not be Transmitted by her Testament, but belonged to the nearest of Kin, of the first Daughter, viz. The said's Maxwells. It was answered, That this being a Substitution of each of the two Daughters, to other, nominatim by the death of the one, it accrest into the other, ipso facto, without Confirmation, as in the case of Bonds of Provision, payable to the Father, and by Decease of him, to such a Bairn named, albeit the Father be Fire, and the Bairn but Heir substitute, it needs not Confirmation; but the Bairn may summarily charge or pursue. The Lords found no need of Confirmation, but that it did accresce to the second Daughter, upon the death of the first, and so was carried by the seconds Testament: In this account, Mr. Robert as Heir, pursuing for the heritable Bonds. The Tutrix answered, that she ought to have allowance of what was warred out upon repairing of the Tenement in Glasgow. It was answered, that she as Tutrix, ex officio, was obliged to exhaust the Movables first, one Person being both Heir and Executor, and not to exhaust the heritable Bonds, that bore Annualrent, and to let the other lie unprofitable, and now to apply it to her own use, by her Legacy. It was answered, That it was employed upon the Heritage, and so was profitable to the Heir only, being employed upon the House, and that by a Warrant, the Heir being then under Tutors, to repair it out of the first and readiest of the Defuncts Estate. The Lords found that Article Relevant, to be deduced out of the heritable Estate. Elizabeth Anderson contra Andrew Cunninghame. December 7. 1665. ANdrew Cunninghames Wife having left a Legacy to Elizabeth Anderson: It was alleged by the Husband, that his Wife's share of the moveables was exhausted. It was answered, That he having confirmed his Wife's Testament, and given up the Debts due by him therein, and made Faith thereon, he cannot now be admitted to adduce any other Debts, especially being so recent before the Testament, within three or four years. It was answered, that he had only made Faith upon the Inventar of the Goods belonging to him, but not of the Debts due by him, which were only given up to abaite the Quot: and albeit it may be presumed that he knew and remembered his own Debt, yet presumptio cedi● veritati, seeing the Creditors now produce their Bond instructing the Debt, and crave preference. Which the Lords found Relevant, vid. june 9 1666. Katharin Smith and William Duncan contra Isobel Robertson. Eodem die. KAtharin Smith and William Duncan having apprized from Isobel Robertson, and john Wilson, all Right they had to a Tenement, under which fell the Liferent-right of Isobel Robertson his Wife, jure mariti, Pursues the said Isobel, for payment of the Mails and Duties that she had uplifted, and of a part of the Tenement that she dwelled in herself: She alleged, first, that her Husbands jus mariti, could not carry her Liferent, seeing immediately after the marriage he went out of the Country, and was never heard of since, and she had obtained Decreet of Adherence against him, and was going on in a Divorce for malicious deserting. The Lords Repelled the Alleadgance, seeing the Divorce was not complete, and this was four years anterior. The said Isobel further alleged absolvitor, for the Rents of her Dwellinghouse for bygones, and for what she had uplifted, because she had done it, bona fide cum titulo, viz. her Husband's obligement to aliment her as his Wife, & bona fide possessor facit fructus consumptos suos. Which the Lords found Relevant, and that albeit her Husband would be liable for these Rents, which alimented his Wife, yet not she. David Veatch contra john Duncan. Eodem die. DAvid Veatch as heritor of the Miln of Dersie, pursues john Duncan, for abstracted Multures, and obtains Decreet. He Charges and john Suspends, both parties being ordained to produce their Rights: the Heritor of the Miln, instructs that his Author was first Infeft in the Miln, before the Defenders Author was Infeft in the Land, and produces a Decreet of the Lords in Anno 1575. declaring the Thirlage, wherein it was alleged that the Heretor of the Miln being first Infeft of the Common-author, and producing a Precept from Cardinal Beaton, than Bishop of St. Andrews Common-author, ordaining the Tenants of the Defenders Land, to pay the Multure to the Miln of Dersie. It was alleged, this was not sufficient, seeing the Charter did not Thirl the Defenders Lands, but was only of the Miln and Multure thereof generally, as for the Cardinal's Precept, it was not with consent of the Chapter, and so could not extend beyond the Bishop's Life: yet the Lords declared the Astriction, notwithstanding it was now alleged, that the Defender was Infeft, cum molendinis & muliuris; by virtue whereof, he had prescribed his freedom by 40. years' time. It being answered that once being Thirled by the Common-author, no Charter granted by him thereafter, could prejudge the Fevar of the Miln. And as for Prescription, offered to prove Interruption, by paying of Insucken-multures within the space of 40. years. William Cranstoun contra Walter Pringle. Decemb. 12. 1665. WIlliam Cranstoun being Vassal to Greenknow, he was amerciat in his Court, for a Blood committed upon Walter Pringle: and being charged, Suspends upon this Reason, that Greenknow not being a Baron, or the King's immediate Tennent, had no power of Blood-waits, unless he had had an express Deputation from his Superior, the Marquis of Huntly, who is Baron only having the Jurisdiction. It was answered, that Greenknow was Infeft, cum curiis & bloodwitis. Which the Lords found sufficient. Mr. John Pearson contra Martin and his Son. Eodem die. MR. john Pearson, by his Contract with Eupham Martin, did conceive the Clause of his Tochar, in their Terms, that it should be payable to him and her, the longest liver of them two in Conjunct-fee and Liferent, and to the Heirs of the Marriage, in Fee; which failzing to return to the Wife's Heirs. By a second Contract, betwixt the Husband and his Wife, it was agreed that that Clause should be altered; and that failzing the Heirs of the Marriage, it should return to the man's Heirs, who thereupon pursue Declarator of Right, by virtue of the second Contract. The Defender being absent. The Lords advised the Cause wherein the difficulty appeared to be, that the Tochar was provided to the Bairns in Fee, So that the Husband and Wife could not alter the Succession, being both Liferenters, because, that the Clause bears, to them in Liferent, and to the Bairns in Fee; yet the Lords sustained the Declarator; seeing the Husband and Wife were named Conjunctfeers, so that either of them behoved to be Fear, and the adjection of, and Liferent could only be understood of the Person that were Liferentar, and albeit it was expressed to be the Bairns in Fee, yet that could be but of a substitution, seeing there were no Bairns then existent. Christian Barns contra Helen Young and her Spouse. Eodem die. HEllen Young being provided to the Annualrent of 800 marks, and to the Conquest, obtained Decreet thereupon, against Christian Barns the Executrix, who Suspends on this Reason, that the Pursuer was Infeft by the Defunct her Father, in a Tenement, in full satisfaction of these provisions. It was answered, nonrelevat, unless it were alleged, that the Charger had accepted. Whereupon it was alleged, Accepted, in so far as she had uplifted the Mails and Duties after her Father's death, and had no other Title ascribe it to. It was answered, that she had another Title, viz. her Goodsir had Disponed this Tenement to her Father and Mother, the longest liver of them two, and the Bairns of the Marriage, be virtue whereof, as Heir Appearand of the Marriage, she might contive, and uplift, and miskene the new infeftment given by her Father. Which the Lords found'st relvant, unless the other Party Insist on that alleadgeance proponed, that the Pursuer had pursued, and obtained payment upon the Title bearing, in satisfaction. John Ramsay contra James Wilson and others. Eodem die. COlonel Cunningham, having impignorat a number of Jewels of great Value, and immediately thereafter, went out of the Country, and never returned. These Jewels were in the Custody of john Ramsay, who, and Mr. Robert Byres had given Bond, to make them furthcoming to the Colonel, and now john Ramsay having been Confirmed Executor to the Colonel, pursues james Wilson, and others, for Exhibition, and Delivery of the Jewels. The Defenders alleged absolvitor, because the Jewels were Impignorat by Mr. Robert Byres for a considerable Sum of Money, who having them in his Possession, it was a sufficient ground for the Defenders to Contract with him, because property of Movables is presumed by Possession; and therefore it is not relevant to lybel, that once the Jewels were Colonel Cunninghams', and therefore they must be restored to his Executors, unless it were also lybeled quomodo desijt possidere, so that the Jewels behoved to have passed from him, without his own Consent, or Alienation, otherwise it is always presumed, that he sold or gifted them, and needs not be proven; else no man could be secure of any Movable: if he who could instruct, that he bought it, could recover it from all possessors, unless they could instruct all the ways the same past from the first Owner. The Pursuer replied, that the Case is not here, as to Movables, that are ordinarily sold in Mercat, but in relation to Jewels of great Value, which cannot be presumed to have been Mr. Robert Byres, because they were never worn by him, as being his proper Good, nor were they Competent to any of his quality: and therefore the Defenders were, in mala fide, to acquire them from him, without knowing his Right. 2ly. It is instructed by Mr. Robert Byres Letter produced, that he acknowledged them to be Colonels, before the Impignoration: and it's offered to be proven, that he broke up john Ramsays Cellar, and took them out. 3dly: The Colonel Impignorat them by Writ, and so the Presumption of allienating them, ceased, because he went immediately out of the Country, and never returned. It was answered, that there is no difference of Jewels, more than any other Movables, which use to pass without Writ from Jewellers that sell them; and the Pursuer having possessed them these, 10. or 12. Years, without question, has right thereto, by usucapion. The Lords found the alleadgeances jointly relevant to elied the presumption, and that there is no usucapion in Movables in Scotland, by Possession in less than 40 years, but only a presumptive Title, which is altogether elided by the Answers. Duke of Hamiltoun contra Laird of Clackmanan. December 14. 1665. THe Duke of Hamiltoun, as Collector of the Taxations 1633. charges the Laird of Clackmannan, who Suspends, and produces Discharges of the first three Terms. It was alleged, these discharges could not liberat, because they were granted by john Scobie, who was neither Sheriff, bailie, nor Clerk; nor does it appear, that he had any Warrant, or Commission nor does his Discharges mention any Commission, or Warrant. It was answered, that by the Discharges produced, it appears, that Ormistoun and Humbie, deputed for the Duke, had granted Discharges to this john Scobie, and offer to prove, that he was in use of uplifting the Taxations during the Terms themselves, and was commonly repute, as Collector thereof, which must be sufficient post tantum tempus. It was answered, that that ground would not oblige the Sheriff, and so both the Heretor and Sheriff, being free, the King looseth his Right. Yet the Lords sustained the Reason. Monteith contra Mr. John Anderson. December 15. 1665. IN a Reduction, at the instance of Monteith against Anderson, a Reason of payment being found relevant, Mr. john produced an Incident, at the first Term, and a Diligence against Witnesses, for proving the having of the Writs, at the second Term. Which Incident the Lords sustained, and would not restrict the Terms of probation in the Incident, to Horning against the Witnesses, and Caption, but allowed four Terms, and ordained the same to be shorter. Mr. John Elies contra Keith. Eodem Die. THere was a Bond of 6000 marks, granted by Wiseheart Parson of Leith, and Keith his Spouse, to Mr. john Elies containing an oblidgement to Infeft him in an Annualrent out of any of their Lands, with a procuratory. The Wife had then the Lands of Benholm, belonging to her heritably, lying in the Mairns, Mr. john having Inhibit her Husband and her, she sold the the Lands before the Inhibition was published at the head Burgh of the Mairns, and having thereafter right to a Sum of 10000 marks for which she was Infeft under Reversion, in other Lands, an order of Redemption was used, and the Money consigned; Mr. john Elies pursues a Declataror, to hear and see it Found and Declared, that the said Keith was obliged to infeft him in an Annualrent, out of her Lands, which she had fraudulently Disponed, contraire her obligation, and therefore was now obliged to Infeft him in other her Lands, or to pay the Sum, as damnage, and interest; and that therefore any other Lands, or Rights belonging to her, might be affected for his payment, and particularly the Wodset now in question. Compearance was made for the Defenders Grandchild, who had a Right from her Grandmother to the Wodset, who alleged, First, That the Bond bearing, an oblidgement for Debt, granted by the Wife, stante matrimonio was null. It was answered, that albeit the Personal oblidgment were null, yet the oblidgment, to Infeft in an Annualrent granted by a Wife, is valid, either against her heritage, or Liferent, and alleged several Dicisions therefore. It was answered, that the Wife might do so, if she had borrowed money for her own use, or were principally bound to Infeft in an Annualrent, but this oblidgment being in security of her Personal obligatigation, with her Husband, the principal obligation being null, the accessary is also null. The Lords repelled the alleadgeance, and found the oblidgement to Infeft valid, albeit accessary, because Deeds, and Obligations of Wife's not to affect their Persons, but Estates are valid; and albeit she had not been bound for the principal Debt, she might either have effectually disponed an Annualrent, or which is all one, obliged herself to Infeft in an Annualrent out of her heritage, & utile per inutile non vitiatur. It was further alleged, that this Wodset, or Sum disponed to her Oy, could not be affected, because her Oy, was the youngest of many Oyes, and did no ways represent her. The Lords sustained this Member of the Declarator also, upon the Act of Parliament, 1621. against Dispositions between Conjunct Persons, without a cause onerous, which they found, might either be a ground to reduce the same, or to declare the same to be affected, as if the Right were in the Disponers' Person. Herein it was also libeled, That this Wodset, albeit acquired after the Inhibition, yet seeing it lay in the same Shire, where the Inhibition was published, the Grandchild's Right were Reduceable, upon the Inhibition. The Lords thought so, because Inhibitions being Personal Prohibitions, reach both acquisita and acquirenda, by the Person Inhibit, in the Shires where it is published. Laird Kilbocho contra Lady Kilbocho. December 20. 1665. THE Lady Kilbocho, by her Contract of Marriage, being provided to certain Lands, with this provision further, that she should have the Liferent of all Lands Conquest, during the Marriage, whereupon she obtained a Decreet in the English time, which being now under Reduction. It was alleged, the Clause of Conquest could only give her the Lands Conquest, with the Burden of the Annualrent of a Sum due by the Defunct, to a Person from whom he bought the Land, as being a part of the Price of the Land, especially, seeing by a writ under the Defuncts hand, he acknowledged, that this Bond was granted for a part of the Price. It was answered, First, That a Personal oblidgement cannot affect the Land, neither can it affect the Lady's Person: but if the Defunct had pleased, he might have granted an Annualrent out of the Lands Conquest, which then would have affected it, which not being done, his declaring that this Sum was a part of the price, cannot be effectual, nor can infer a Probation against his Wife, in prejudice of her anterior Right. Secondly, This alleadgeance might be proponed as well against the Heir of Conquest, as Liferenter thereof, and yet it was never found, that the Heir of Conquest behoved to accept the Land with the Burden of the Sums borrowed to buy it, nor yet to relieve the Heir of Line thereof; but on the contrair, the Heir of Conquest has relief against the Heir of Line, for Personal Debt, though borrowed for acquiring the Right. The Lords found that the Case was not alike with the Heirs of Conquest, whom Defuncts do Infeft, without any burden; and Liferenters, who having a special Competent Provision, this general Clause being but adjected, as uncertain, is not so favourable, or so to be extended; seeing the Husband did not Infeft the Wife in his own time, in the Conquest. And therefore found her to be liable to the Annualrent of this Sum, which they found instructed by the Hubands' Declaration, where the Lady's Father is a subscribing Witness. Sir Rorie Mcclaud contra Walter Young and John Govane Eodem die. WAlter Young, john Govan and Hendrie Hope, by a Letter written to any that they should Buy Kows from in the Highlands, desired, that they might use the Bearer of the Letter kindly, and for whatever quantity of Kows they bought, they should answer such Bills, as he should draw upon them therefore. Hendrie Hope being broken, james Grace, as assignee, pursues the other two for the whole, who alleged, they were only liable for their own Parts. It was answered, that they were obliged to answer such Bills, as the Person entrusted by them should draw; and they produce a Bill drawn by him, upon them, or either of them. It was answered, that such Bills can only relate to the Quantity, and not to the Quality, and manner of obliging; seeing if they had so intended, they would have obliged them, and either of them, or it would have born, what he should draw upon them, or either of them, should be answered. The Lords found every one of them liable in solidum, for they thought that the Clause being dubious, was to be interpret against the Writers, and the Sellers of the Kows, were bona fide to rest upon the interpretation of the Persons entrusted. Sir John Leslie contra Sinclar and Dun. january 22. 1665. SIr john Leslie, as assignee constitute by Sir William Dick to a Bond, obliging Francis Sinclar as Principal, and young Dun as Cautioner, to deliver 30 Chalders of Bear; at 10 merk the Boll, Dun alleadges absolvitor, because he was Minor in Familia Paterna, and so his Father was his Curator of Law, and therefore his subscribing as Cautioner was null, being without his Father's consent. It was answered, the alleadgeance was not competent by exception, against a clear liquid Bond. Secondly, That the Defense is only competent in the Case of Curators chosen. The Lords found the Defense Competent by way of Exception; but before answer to the relevancy ordained the Parties to condescend upon Duns age, the time of his Subscription, and whether he did then administrat, or go about any other affairs. Dame Rachel Burnet contra Lepers. December 23. 1665. BY Contract of Marriage betwixt Mr. john Leper, and his Father, and and Dame Rachel Burnet on the other part, both Father and Son were obliged to employ 20000 lib. upon security for the Liferent use of the said Dame Rachel, who, with concourse of Prestoun her present Husband, pursues the Sisters of the said Mr. john Leper, as Heirs, and otherways representing him, and their Husbands, for their entrests; and likewise Doctor Balfours Wife, only Daughter of an of the Sisters, as Heir to her Father, and Mother, against whom there was Decreet of Registration obtained, during their Lifetimes together, and on this ground, That the Defuncts Husband did by Contract of Marriage, Disposition, or otherways; obtain Right to the Portion of his Wife, one of the Sisters, and Heirs, and therefore is liable in payment in quantum lucratus est. It was alleged for Doctor Balfour and his Wife, that she was willing to renounce to be Heir, to her Mother, but as for the other passive Title, as representing her Father, who was locuple●ior factus; it is no ways relevant, for Marriage, is a cause onerous, and Tochars are granted ad sustinenda onera matrimonij, and therefore are never counted fraudulent deeds, or without an onerous cause; nor do they fall within the Act of Parliament 1621. against fraudful alienations; neither was the Defenders Father liable though there was a Decreet of Registration against him, because before any Execution, the Marriage was dissolved. It was answered, for the Pursuer, that that member of the Lybel stands relevant, because the Defenders Mother being Heir to her Brother, the Contracter could not transmit her Estate to her Husband, without the burden of her Brother's Debt; and it is a most unquestionable Ground in Law and Equity, quod nemo debet cum alieno damno locupletari, and therefore Creditors are still preferred to Portions of Children, though given for their Tochar. The Lords found that Member not Relevant, that Decreet was obtained against the Husband and Wife, stante matrimonio, seeing it received not Execution; and as to the other Member, they thought, that if there were but a moderate and ordinar Tochar, proportionable to the burdens of the Marriage, it would not infer Repartition, or if the Tochar was great, or an universal Disposition of all the Heirs Right, they thought the Husband would be liable, in so far as it was above a proportionable Tochar, and therefore before Answer, Ordained the Contract of Marriage to be produced, and the Pursuer to condescend, if there was any other benefit accresced to the Husband by his Wife, then by virtue of the Contract. It was further alleged, for the Lady Pitmedden, one of the Sisters on Life, that she could only be liable for her own sixth part, as one of the six Heirs Portioners. It was answered, by our Law, that all Heirs were liable in solidum. There was several Decisions alleged on either hand, on the 7. of February 1632. Hoom contra Hoom: Where the Lords found the Heirs Portioners liable but for their own share. Another February 15. and March 21. 1634. Watson contra Or, Whereby one of the Daughters having a Disposition of the whole Estate, was found liable for the whole Debt. And another january 24. 1642. Where one of the Heirs Portioners, having Disponed her share to the other, and thereby being insolvent, that other was found liable in solidum. The Lords having considered the Case, found the Heir Portioner liable, iprmo loco, only for her own share, until the rest of the Heirs Portioners were discussed, but determined not whether these who were solvendo, should be liable in solidum, albeit the Debt exceeded their Portion, or only entirely for their own share, and for as much more as the value of their Succession could amount to. Laird of Cesnock contra Lord Bargany. Eodem die. THE Laird of Cesnock and the Lord Bargany, and Balcarras, being bound conjunctly and severally in a Bond; Cesnock being distressed for the whole, taketh Assignation, and pursues Bargany for two thirds, who alleged payment; and because it was a public Debt, he produced an incident in termino, which the Lords sustained not, because it buire no warrant to cite Cesnock the Principal Party, and the Executions were within 48 hours by one Person, in Kyll, Renfreu, Fyfe, and Edinburgh, and so suspect, but they superseded Extract of the Decreet, to the first of November contra Wilson and Lodowick Callender her Spouse. january 2. 1666. 〈…〉 pursues a Reduction ex capite Inhibitionis, against jean Wilson, and Lodowick Callender her Spouse, of all Dispsitions, of certain Tenements of Leith, made by the Common Author, since the Inhibition. It was alleged, for the Defenders, absolvitor from this Reduction, because the Defenders produced an apprizing led against the common Author, before the Inhibition, and which is sufficient to maintain the Defenders Right of the Lands in question; and to exclude all Rights and Interest the Pursuers can have thereto. It was adswered, non relevat, seeing the Pursuer is not insisting in a Reduction of all Right competent to the Defenders, upon general Reasons, either bearing expressly, or by equivalence that the Pursuer had good Right, and the Defender had no Right; but the Pertner is insisting specially upon particular Rights called for, and upon a special Reason. viz. That they were after the Pursuers Inhibition, so that albeit the Defender have another better Right than the Pursuer, it will not be prejudged by this Reduction, nor can it hinder the conclusion of this Summons. viz. That the Dispositions are null, as being post Inhibitionem. It was answered, for the Defender, that his Defense is relevant, for he alleging, and producing a sufficient Right to the Lands whereof the Dispositions are called for to be Reduced, it takes away all Interest in the Pursuer to these Lands; and therefore he may justly thereupon exclude the Pursuer from troubling the Defender in this, or any other Reduction, which can have no effect. It was answered, that if this ground were laid, no Reduction could be sustained of any particular Right, called for to be reduced, unless the Pursuer did reduce all Rights, that the Defender could produce, which is neither just, nor conform to the Custom; because Pursuers may have necessity to reduce some Rights, in respect of the probation, which may be lost, as either Oaths of Parties, or Witnesses: and yet may not be in readiness to insist against all the Defenders Rights, not having found out theirs, or their Author's progress, but the Lords may reserve the other Rights, seeing their is no possession, or other effect craved, but only Declaratoria juris. The Lords, in respect the Defenders were very poor, and their case favourable, Ordained the Pursuer to insist upon what he had to allege against the Defenders apprizing produced, as if it had been contained in the Reduction; but it is not to be laid as a general Ground, that in no case Reduction may proceed, albeit it exclude not all the Rights produced in the Defenders person, especially, if any singularity, as to the probation appear. George Graham and Jack contra Mr. Andrew Brian. january 3. 1666. GEorge Grahame, as assignee by jack, having charged Mr. Andrew Brian, he Suspends, and raises Improbation, wherein he insists, and craves, that the assignee may abide by the Bond; the assignee declared, that he would abide by it, as being delivered to him, as a real true done Deed, without any knowledge of his in the contrare: and offered to produce the Cedent, to abide by it, who compearing. It was alleged, that he was a Bankrupt, and had a Bonorum; and therefore behoved to find Caution, to appear at all the Diets of Process, or to enter in Prison, till the Cause were Discussed; or at least, that the assignee would be obliged to produce him. The Lords having considered the Case, found that the● assignee was obliged no further, than what was offered, and they found the Cedent not obliged to find Caution, or enter in Prison; but that he should Enact himself to compear judicially, whensoever any Point of the Improbation were referred to his Oath, which might infer the falsehood of the Writ, if confessed, and that if in that Case he compeared not, the Bond should be improven, not only to him, but as to the assignee, inferring no hazard to the assignee, as to the Criminal part, if he were not found accessary. David and Andrew Fairfouls contra Mr. James Binni. january 4. 1666. THE Bairns of the Umquhil Bishop of Glasgow, having charged Mr. james Binni to pay a 1000 marks, he Suspends, and alleadges that they were Minors, not sufficiently Authorized, in so far as they did choose Mr. john Harper, and Achmoutie and their Mother to be their Curators; or any two of them, their Mother always being one; so that their Mother being Dead, who was sine qua non, there behoved to be a new Election. It was answered; that the Pupils were willing to compear, and acknowledge their Curators, as their Curators which is sufficient to Authorise. Which the Lords found relevant. Laird● of Milton contra Lady Milton. Eodem die. THE Laird of Milton pursuing a Reduction of a Decreet of Divorce pronounced by the Commissaries of Edinburgh, at the instance of the Lady Milton his Stepmother, against Calderwood her last Husband, upon Adultery, desired that the Testimonies of the Witnesses might be made private to him, being a matter of so great Importance, as tending to take away the Right of the Lady's Jointure, disponed be her Husband to this Milton. The Lords refused the desire, but Ordained the Clerks to give a Note, expressing the names, Designations, and the preambulatory questions in the Depositions, as their age, married, or Not, purged of partial Council, etc. Lady Bute and her Husband contra Sheriff of Bute. january 5. 1666. THE Lady Bute and her Husband pursue a Reduction of a Right of a part of her Conjunct-fee, made in favours of her Son, upon this Ground, that it was done after her Contract of Marriage with her present Husband, and public Proclamation in the Kirk thereupon. It was answered. First, That once Proclamation was not sufficient. 2dly, That it was offered to be proven, that the Husband knew, that the Right was granted, and yet he proceeded in the Proclamation, and Marriage, which behoved to proport his acquiescence and consent; and alleged likewise the Case was most favourable: because the Lady had married, unsuitably, her Husbands Chapland. It was answered for the Pursuer, that once Proclamation is sufficient, as has been several times found, and that there is no weight to be laid upon her Husband's knowledge, who knew he had a remeed competent in Law, whereby the Deed done by his Wife after the Contract and Proclamation would be null; and so his going on in the Marriage did not infer his acquiescence, or Homolagation. And as for the favour of the cause, it is much more on the Pursuers part, who being provided by her Husband, to 27 Chalders of Victual, had before the Contract of Marriage, quite 20 to her Son; and of the seven remaining, he had urged her to quite 100 lib. And 7 bolls of Victual were only now in question. The Lords found the Reason of Reduction relevant, and repelled the Defense upon the Husband's knowledge, for they thought, that as Deeds of a Wife clad with a Husband, without his consent, are null, after the Solemnisation of the Marriage, because she is then in potestate viri, & sub ejus tutelà, So that she is truly Wife, after the Contract of Marriage, becoming public by Proclamation, and it occurring, as a doubt amongst the Lords, whether the Reduction ought to be sustained at the instance of the Husband only, in so far as concerned his interest jure mariti, so that the Right might be valid against the Lady, if she survived. The Lords sustained the Reason simply, at the instance of both; and found it null as to both, as being done without her Husband's consent. Sir Laurence Oliphant contra Sir James Drummond. january 6. 1666. THE Lord Roll●, his Liferent Escheat being Gifted in Anno 1658. to Walter Stewart, He Assigned the Gift, and his own Debt, the Ground hereof, and the General Declarator obtained thereupon, to Sir james Drum●●mond in Anno 1665. A second Donatar now insists, for special Declarator; wherein compearance is made for Sir james Drummond, who craved preference upon his first Gift, and on his General Declarator. It was answered for the Second Donatar, that the first Gift was simulat, and null by the Act of Parliament 1592. In so far, as the Donatar suffered the Rebel to continue in Possession until this day, and never attained Possession of any part of the Lands, nor did any further diligence, but only the General Declarator in Anno 1658. So, that the Rebel having now possessed by the space of 6, or 7. Years: The presumption contained in the Act of Parliament, that upon the said Possession, the Gift is simulat, and null, takes place. It was answered, that there is no definite time in the Act of Parliament, by which the Rebel's Possession shall presume simulation, and in this ca●e, there was but few Anni utiles● in so far, as the Gift being in Anno 1658. Declarator was obtained that same year, and in Anno 1659. Judicatures ceased, and began not again till 1661. The Lords found, that the Donatar suffering the Rebel to possess 4, or 5. Years was sufficient to infer the presumption of simulation by the said Act of Parliament, and therefore preferred the second Donatar. Inter Eosdem. january ●. AT pronouncing of the former Interlocutor, the first Donatar further alleged, that the Presumption of Simulation, by suffering the Rebel to possess, could not take place in this case. First, because the Donatar himself was a lawful Creditor of the Rebels, whereupon there is a stronger Presumption, that the Gift was to his behoove, for his own satisfaction: And the Act of Parliament can be only meant of Donatars, who have no Interest, but their Gift, and are not Creditors. Secondly, The Lands were Apprized, and the Donatar knew he would be excluded by the Appryzers. The Lords repelled the first alleadgeance, and found the presumptio juris in the Act of Parliament was stronger than the contrair presumption, that the Donatar was Creditor; because it might be his purpose to apply the Gift to the Rebels behoove, and not to take that way, having other ways of payment, competent: and also repelled the second alleadgeance, unless it were alleged, that the Apprizer had been in possession; so that there had not been 3, or 4. Years, in which the Rebel had possessed; and that if the apprizing had attained Possession at that time, it would have excluded the Donatar: but seeing it was offered to be proven, that the Rebel possessed for 3, or 4. Years, which was contrair to the alleadgeance of the Apprizers possession of the hail. They adhered to their former Interlocutor. Elizabeth Broun contra John Scot Eodem die. THere being an Infeftment feu granted, of the Lands of Inglistoun, as Principal, and of the Lands of Fingland, in warrandice thereof long ago, and Infeftment taken of both Principal, and Warrandice Lands in on Seasine, Registrat in the Registers Seasines, Since the Year 1617. Thereafter the Warrandice Lands were disponed to the Earl of Traquair, and he, being publicly Infeft, gave a subaltern Infeftment to his Vassal, who assigned john Scot to the Mails and Duties▪ who having Arrested, insisted to make forthcoming: And likewise Elizabeth Broun, having after the eviction of the Principal Lands, arrested the Rents of the Warrandice Lands, insists to make the same furthcoming to her. It was alleged, that the Original Infeftment whereupon the said Elizabeth Brouns right is founded, is a base Infeftment, and as to the Warrandice Lands never clad with Possession, and the Earl of Traquairs Right, whereon john Scots Right is founded, is a public Infeftment holden of the King, which is always preferred to a base Infeftment without consideration, whether the public Infeftment has attained Possession, or no, or how long, but much more in this case, where the public Infeftment has attained Possession, not only by year and day, but many years: And therefore is directly in the Case of the Act of Parliament 1540 cap. 105. Preferring public Infeftments to prior base Infeftments, not clad with Possession. It was answered, that base Infeftments are of themselves valid, and before the said Act of Parliament, the first Infeftment made always the best Right, whether it was holden of the Disponer, or of his Superior, but that Act of Parliament is correctory of the Common-Law, and Feudal Custom, which by the Act itself, appears then to have been constant, and is only altered by the Statute, upon the presumption of Fraud, which is clear, both by the Title against double Fraudful alienations, and by the Narrative, that divers persons after they have given private State and Seasine to their Bairns, or Friends; do thereafter give for Causes onerous, Infeftment to other persons, and therefore such onerous posterior Infeftments, if they attain Possession year and day, are preferred to the said private Infeftments; but in this Case, there is no Presumption of Simulation. 2dly. By several Decisions alleged and produced, it is clear, that the Lords did prefer base Infeftment of Annualrent to posterior public Infeftments of Property, which interveened before the next Term; so that the Infeftment of Annualrent could not attain Possession; but if base Infeftments without Possession, were unvalid Rights; The Lords could not have found so. 3dly. The Lords have allowed Indirect, and Interpretative Possession to be sufficient, not only in the Case when Liferents are reserved, that thereby the Liferenters' Possession is the Feears, though he never possessed himself, but even when Liferents are not reserved; but that the base Infeftment is thereby excluded from Possession: so base Infeftments granted to wife's are preferred to posterior public Infeftments, though the Wife's do not, nor cannot possess, during the Husband's Life, yet the Husband's possession is counted the Wife's possession, and if a Person Infeft by a base Infeftment should pursue for Mails, or Duties, or Removing; and were excluded by a prior Liferent, constitute by the Pursuers Author's though not reserved in his Right; that very Action would be sufficient to validat the base Infeftment without Possession. 4thly, Whatever might have been alleged, before the Act of Parliament 1617. For Registration of Seasines, there is neither Law, nor Favour since, for posterior acquirers, who might have known the prior Infeftments. And therefore in Infeftments of Warrandice Lands, the Possession of the principal Lands is accounted Possession of the Warrandice Lands; neither is there any ground to oblige a Person who takes a Feu of Lands, to demand a more public infeftment of the Warrandice Lands, then of the principal. It was answered, that albeit the Narrative of the Statute mention Fraudful alienations, yet the dispositive words are General, that wherever an Infeftment hath been public, by Resignation, or Confirmation, and hath attained Possession year and day, the same shall exclude any prior base Infeftment, attaining no Possession, and if the said Act were only to be measured by Fraud then if it could be alleged, and astructed, that the first Infeftment, though base, was for a cause onerous, and without Fraud, it should be preferred; which yet never hath been done. And for the Practics, they meet not this Case, nor the Act of Parliament, because the posterior public Infeftment had attained no Possession. It was answered, that now consuetude had both Interpret and Extended the foresaid Act; for thereby posterior public Infeftments, though they be not for cause onerous, or clad with Possession year and day, are ordinarily preferred contrair to the tenor of the Statute, and base Infeftments, retenta possessione, where the obtainer of the Infeftment is negligent, are accounted Simulat presumptione juris, & de jure but where there is no delay, nor ground of simulation, the base Infeftment is preferred, whether the posterior public Infeftment attain Possession for year and day, or not. The Lords having heard this Case at length, and debated the same accuratly amongst themselves, in respect they found no preceding Decision, whether base Infeftments of Warrandice, where there was possession of the Principal Lands were valid, or not; against posterior public Infeftments. They found this base Infeftment of Warrandice valid against the posterior public Infeftment. The Infeftment in Warrandice being Simul with the Principal, and not ex intervallo, and being after the Act of Parliament 1617. but did not decide the Case to be of general rule for Warrandice, ex intervallo before the said Act. Grissel Seatoun and Laird of Touch. contra Dundas. january 11. 1666. GRissall Seatoun, and the Laird of Touch younger her assignee, pursues Dundas, as charged to enter Heir to Mr. Hendrie Mauld, for payment of a Bond of 8000 marks granted to the said Grissall, by the said Mr. Hendrie her Son. It was alleged that the Bond was null, wanting Witnesses It was Replied, That the Pursuer offered him to prove it Holograph. It was duplied, that albeit it were proven Holograph, as to the body, yet it could not instruct its own date to have been any day before the day that Mr. Hendrie died, and so being granted in lecto aegritudinis, cannot prejudge his Heir whereupon the Defender has a Reduction. It is answered, that the Reduction is not seen, nor is there any Title in the Defender produced as Heir. It was answered, that the nullity as wanting Witnesses, was competent by exception, and the the duply, as being presumed to be in lecto, was but incident, and was not a Defense, but a Duply. The Lords Repelled the Defense upon the nullity of the want of Witnesses in respect of the Reply and found the Duply not competent, hoc ordine, but only by Reduction, and found there was no Title produced in the Reduction. Executors of William Stevinson contra James Crawfoord. january 12. 1666. THE Executors of William Stevinson, having confirmed a Sum of 3000. and odd Pounds due by Bond, by john Ker, to the said William, and also by james Crawfoord, who by his missive Letter, became obliged to pay what bargain of Victual should be made between the said john Ker, and john Stevinson for himself, and as Factor for William Stevinson. And subsums, that this Bond was granted for a Bargain of Victual. It was answered, that albeit this Bond had been in the name of William Stevinson, yet it was to the behoof of john Stevinson his Brother, who having pursued upon the same ground, the Defender was Assoilzied, and that it was to john's behoof alleged, First, That john wrote a Letter to his Brother William, to deliver up his Bond, acknowledging, that it was satisfied, and that john having pursued himself, for the other Bond granted in place of this, The said Umquhil William Stevinson compeared, or a Procurator for him, before the Commissars, and did not pretend any Interest of his own; neither did William, during his Life, which was ten years● thereafter, ever move question of this Bond, nor put he it in the Inventar of his Testament, though that he put most considerable Sums therein. It was answered. 1. That the presumptions alleged, infer not that this Bond was to john Stevinsons' behoof; because, by james Crawfoords Letter, there is mention made of several Bargains of Victual, both with john and William: so that the Bond, and pursuit at John's instance might be for one Bargain, and at Williams, for another, especially, seeing the Sums differ. 2dly, Writ cannot be taken away, by any such Presumptions. It was answered, That if the Defender James Crawfoord had subscribed this Bond, it could more hardly have been taken away by Presumptions, but he hath not subscribed the Bond, but only his missive Letter, which is dubious, whether it be accessary to this Bond, or if that Bond was for this Bargain, and therefore such a writ may well be ●lided, by such strong Presumptions. The Lords found the Presumption Relevant, and that they instructed, the Bond was to John's behoof, and therefore in respect of the ahs●lvitor at Crawfoords instance, they Assoilzied. William Dick contra Sir Andrew Dick. January 13. 1666. WIlliam Dick pursues Sir Andrew Dick his Father, for a modification of his Aliment, whereupon the question was, whether Sir Andrew Dick himself being indigent, and having a great Family, of small Children, and the Pursuer having been Educat a Apprentice, whether the Pursuer should have a Modification. The Lords considering the great Portion the Pursuers Mother brought, and that he was a Person of no ability to Aliment himself by his industry, discerned Sir Andrew to receive him in his House, and to entertain him in meat and Cloth, as he did the rest, or else two hundred marks, at Sir Andrews option. James Crawfoord contra Auchinleck. January 17. 1666. THE Heirs of Line, of Umquhile Sir George Auchinleck of Balmanno being provided to a Portion payable by the Heirs Male, did thereupon charge the Appearand Heir Male, and upon his Renounciation to be Heir, obtained Decreet cognitionis causa, after which that Appearand Heir died, and the Decreet being Assigned to james Crawfoord Writer, he now insists in in a Summons of Adjudication, containing a Declarator, that he having charged the next Appearand Heir, to enter to the last Appearand Heir against whom the Decreet cognitionis causa was obtained, that that Decreet should be transferred against him, and it should be declared, that the Adjudication should proceed against the next Appearand Heir. It was alleged, for the Defender, that the former Appearand Heir having died before Adjudication, and so the Diligence being incomplete, there could be no Process thereon, till this Defender were again charged to enter Heir to the first Defunct, especially, seeing he had Annum deliberandi competent to him, of the Law which would be taken from him, if this order were sustained, and as an Appearand Heir, charged, though the days of the Charge were run before his death, the same would be void, if no Decreet had followed thereupon: And the obtainer behoved to obtain his Diligence thereupon renewed, so it ought to be in this Case. It was answered, the Case was not alike, for here there is a Decreet obtained upon the Heirs Renounciation; and there is no reason to put the Creditor to do diligence again, especially now, since the late Act of Parliament, whereby, if he get not Adjudication within a year, he will be excluded, and there are other Appryzing already deduced. The Lords Sustained the Process, hoc ordine, with this provision, that if this appear and Heir entered, and Infeft himself within year and day, the Adjudication should be redeemable to him within the Legal Reversion of 10. years, by which, neither the Creditor was prejudged of his diligence, nor the Heir of his Privilege. Lord Rentoun Justice Clerk contra Fewars of Coldinghame. Eodem die. MY Lord Rentoun, as being Infeft in the Office of Forrestrie, by the Abbot of Coldinghame, containing many special servitudes upon the whole Inhabitants of the abbacy, as such a duty, out of Waith Goods, and out of all Timber cutted in the Woods of the abbacy, with so many Woods, H●ns and a Threave of Oats, out of every husband Land yearly; pursues Declarator of his Right, and payment of the bygones, since the year 1621. And in time coming; both Parties being formerly ordained before answer, to produce such Writs, and Rights, as they would make use of; and these being now produced, The Pursuer insisted. prim● Loco for Declaring his Right as to the Threave of Oats. It was alleged, for the Defenders, absolvitor, because they had produced their Fews granted by the Abbots of Coldinghame, prior to the Pursuers Infeftment, free of any such burden. It was answered, The Defense ought to be Repelled, because the Pursuer has not only produced his own Infeftment, but his Predecessors, and Authors Infeftments, and his progress to them. viz. The Infeftment granted to David Evin, of the Forrestrie, containing all the Duties a foresaid, which is before any of the Defenders Infeftments produced. It was duplied for the Defender, that the Infeftment granted to the said David Evin is no original Infeftment, but bears, to be granted on his Mother's Resignation, and has no special reddendo, but only relative to the former Infeftments: And therefore, unless the former Infeftments were produced, or it were instructed, that the Resigner had Right, the Infeftment upon Resignation can operat nothing, especially never being clad with Possession, as to the Threaves of Oats in question● for there is great odds betwixt Infeftments granted by Kirkmen, who are but administrators of the benefices, and others, who have plenum dominium, so that Infeftments upon Resignation of Kirkmen are to be understood to confer no more Right than the Resigner had, and not to constitute any original Right where there was none before, in the same way, as Infeftments granted by the King, upon Resignation, are but periculo petentis, and give no Right further than the Resigner had, even against the King. It was answered, for the Pursuer, that his Reply stands relevant, and he produces sufficiently to instruct his predecessors Right; for there is no Law nor Reason to compel Parties to produce the old Original Feus' granted by Kirkmen, but Infeftments upon Resignation are sufficient, neither is the Case alike, as to the King, and Kirkmen, because things pass not by the King ex certa scientia, which no other can pretend; but in this Case, declaring a Right granted by an Abbot, with consent of the Convent; it must be considered what made a Right, the time that it was granted, when there was no more required than his Concession, with consent foresaid, which is sufficient against him, and his successors, neither can they pretend, that such grants are salvo jure suo. And if in matters so Ancient, Original Infeftments from Kirkmen behoved to be produced, that neither Precepts of clare constat, nor Infeftments upon Resignation were sufficient; Few rights of Kirk-lands in Scotland, would be found valid. The Lords Repelled the Defense, in respect of the Reply, and found this Infeftment upon Resignation sufficient. john and joseph Heriots contra James Fleming Messenger and Cautioners. January 19 1666. JOhn and Joseph Heriots having obtained Decreet before the Lion, against James Fleming Messenger, and his Cautioners, depryving the Messenger upon Malversation; in so far, as being employed to execute a Caption, he had taken the Debtor, and had Denounced, and apprised his Lands, and suffered the Debtor to escape, and would not subscribe the Decreet of apprizing, whereupon he was depryved, and discerned to pay 500 marks, conform to the Act of Parliament 1587. cap. 46. And both he, and his Cautioners were discerned to pay the Sum, as Damnage, and Interest to the Pursuer. They Suspend, and allege, that the Decreet is null, in so far as it was pronounced by the Lord Lion, without the concourse of the Heralds, which is required by the said Act. 2dly, Albeit the Lion be empowered to deprive Messengers by the said Act, yet their Cautioners are not under his jurisdiction, nor the damnage, and interest of Parties by Messengers malversation, which is only competent to the Judge ordinary. It was answered to the first, oppons the Decreet wherein the Cautioners compeared, and so acknowledged the Lion's Jurisdiction as he then sat, likeas the Decreet itself bears to be by the Lion, with the Heralds. To the Second. The Cautioners having enacted themselves in the Lion's Books, they have made themselves liable, and for the damnages, they are consequent to every Jurisdiction; and the Lions have been constantly in use to determine the same, as to this Point. The Lords were of different judgements, for they thought, that by the Act of Parliament, the Lion had no such power, but as to long Custom, some thought it was sufficient to give that power, and there was no inconveniency, seeing his Decreets might be Suspended. Others, thought that Custom being clandestine, and without the contradiction of Parties, who might voluntarly submit themselves to any Authority, could not be sufficient. The Lords Ordained before answer, the Lion's Books to be produced, to see if there were such a Custom, before it were decided, and how far that Custom would work. Christian Braidie contra Laird of Fairney January 20. 1666. CHristian Braidie, having pursued a Reduction of a Disposition, ex capute inhibitionis, against the Laird of Fairney, of all Dispositions made by John Glasfoord to him, after her Inhibition, he produced a Disposition, Holograph, wanting Witnesses, of a Date anterior. It was alleged, that the Holograph writ could not prove its own Date, contra tertium. The Lords, before answer, ordained Fairney to adduce Witness, and adminacles, for astructing the Date, he adduced fo●●, the Town Clerk, who deponed he dyted the Disposition, and a Town Officer, who saw it subscribed of the Date it bears, and a third, who deponed he saw it subscribed on a Mercat day, at Coupar, which, as he remembered, was in March or Apryl, 1652. Whereas the Date bears the first of August, 1652. But that Glasfoord, when he wrote it, laid it down upon the Table beside himself, and saw it not delivered, and it being alleged, that the first of August 1652. fell upon a Sunday. The Lords considering, that Infeftment was not taken upon the Disposition for three years, and that there was no Witnesses deponed upon the delivery, found the Witnesses adduced, not to astruct the Date of the Disposition, and therefore reduced the same. Clappertoun contra Laird Tarsonce. Eodem die. CLappertoun raises a Declarator against Tarsonce, for declaring an apprizing at his Instance, against the Pursuer, to have been satisfied within the legal, by payment of the sums by the Debtor, or by Intromission with the Mails and Duties, either within the seven years of the first legal, or within the three years thereafter, during which, by the late Act of Parliament, Appryzing not expired in Anno 1652. were declared Redeemable, or by Sums received from such as bought from the Appryzer, a part of the apprised Lands. It was alleged absolvitor from that member, of satisfaction by the intromission during these three last years; because the Act of Parliament does not expressly prorogat the Reversion, but declares the Lands Redeemable within three years; but does express nothing to whom the Mails and Duties shall belong, which cannot be imputed against the Appryzer, to satisfy the apprizing, because he enjoyed them as his own, the Apprizing by the Law then standing, being expired; & bona fide possessor facit fructus consumptos suos, and therefore a subsequent Law cannot be drawn back, to make him count for that which he might have consumed the more lavishly, thinking it his own. It was answered, that Appryzing were odious, being the taking away the whole Right of Lands, for a sum without proportion to the true value; and therefore all Acts retrenching them, aught to be favourably interpret, especially where the Appryzer gets all his own; and therefore the Act declaring them Redeemable, must be understood in the same case as they were before, and that was either by payment, or intromission. The Lords Repelled the Defense, and sustained the Declarator, both as to payment and intromission; and as to the sum, the Appryzer got for a part of the Land sold by him Irredeemably after the seven years legal was expired. And seeing the Acquirer of that Right was called; they found it also Redeemable from him upon payment of the price paid for it, cum omni causa, and he to be comptable for the Rents, unless the Pursuer would ratify his Right, as an irredeemable Right; in which case the price should be accounted as a part of the sums apprised for Lord Rentoun contra Fevars of Coldinghame. Eodem die. THe Lord Rentoun insisting in the Declarator of his Right of the Office of Forrestry, and of a Threave of Corn with the Fodder, whereof mention is made, january 17. The Defenders proponed a second Defense, viz. That the Pursuer showed no sufficient progress from David Ellen: but only an Infeftment granted by janet Ellen, David's Daughter, and so the Pursuers Goodsir upon janets own Resignation; and albeit there was a Precept of clare constat, produced by the Abbot in favours of janet, yet no Seasine followed thereupon; so that David's Infeftment was not established in the Person of janet; and consequently could not belong to this Pursuer, and the Defenders having gotten their Fews immediately after David's Right free of this Burden; the Right could not be declared, till it were established in the Pursuers Person: and if he should now infeft himself, the Interruption on the Act of Prescription upon the Summons, lybelling upon David's Right, and the progress produced from David, would fall. It was answered, that the Abbot having granted the Infeftment to janet, upon her own Resignation; yet bearing to be expressly to her, as heir to David: It was equivalent to a Precept of clare constat, which does not necessarily require the ordinar form, but a Charter infe●ting such a Person, as heir to such another, who was before infeft, would be as valide; so that in this infeftment of janets, all being materially included to establish David's Right in her Person, she being acknowledged heir to David, albeit it be upon her own Resignation, utile per inutile non vitiatur. The Defenders further alleged absolvitor, because by several Acts of Parliament, infeftments of Kirk-lands before the Reformation, are required to be Confirmed by the Pope, or the King thereafter. Ita est, this is Confirmed by neither before the Fevers Right: And by another Act of Parliament, it is declared, that the first Confirmation, with the last Feu, shall be preferred. Ita est, the Defenders has the first Confirmation. It was answered, that no Law, nor Act of Parliament, required Confirmation of an Office; neither was any Confirmation absolutely necessary before that Act of Parliament; but the Kirk-men might always have Feved without diminution of the Rental of the Lands, as they were the time of the feu; but that Act was made, in regard that at the time of Reformation, the Kirk-men being out of hopes of preserving of Monasteries, and Kirk-lands, did Feu them to their nearest Friends; and therefore the foresaid Act, as being correctory of the common Law, ought not to be extended to any thing, but what is expressed in the Act, which is only Feves of Kirk-lands; and so would neither extend to an Office, as a Baillirie, Forrestrie, etc. nor yet to a Pension, or Annualrent: neither would it extend to Infeftments, by Kirk-men, Ward, such as most of the Infeftments of this Abbacy, and many others are. And seeing Confirmation was not requisite, but the Feu itself was sufficient alone, the last Act preferring the first Confirmation, takes no place, which can only be understood where Confirmations are necessary. It was answered for the Defenders, that albeit an Office requires no Confirmation, where there is nothing given but the Office, and Casualties thereof; Yet where there is a burden upon Lands given therewith, such as this Threave of Oats out of every Husband-land, being far above the proportion of a suitable Fee for the Office, there being above 111. Husband-lands in the abbacy, and some Forrester-lands following the Office, besides other Casualties, Confirmation is necessary, or else the Abbots might have eluded the Law, and exhausted the Benefice. It was answered for the Pursuer, that he oppones the Acts of Parliament, requiring only Confirmations of Kirklands; and albeit the Duties, of this Office affects the Lands nihil est, for if the abbey had Thirled the Lands of the Abbacy to a Miln without the Abbacy: for a Thirled Duty of a far greater value than the Duties of this Office, the constitution of that Thirlage required no Confirmation. The Lords Sustained the Pursuers progress, and Repelled the first Alleadgence, and also Repelled the last Alleadgence, and found no necessity of Confirmation of the Office, and Duties thereof aforesaid, whether the 'samine were holden Feu, or Ward: but did not cognosce, whether the same was Feu, or Ward, etc. albeit that was controverted: neither whether Infeftments of Kirk-lands, holden Ward, needed Confirmation or no. ●contra Earl of Kinghorn. january 23. 1666. 〈…〉 having pursued the Earl of Kinghorn, upon a Bond granted by his Father. He proponed Improbation, by way of Exception, which was sustained, and a Term assigned to prove, and that same Term to the Pursuer to bide by his Bond. The Defender supplicat, that seeing the Act was not extracted, albeit the Term was come, that he might have yet liberty to propone payment. It was answered, he could not, because exceptio falsi est omnium ultima, after which no other could be proponed, much less after the Term was come, and the Pursuer come to bide by the Write. Yet the Lords sustained the Defense of Payment. Colonel James Montgomery and his Spouse contra Stevart. january 24. 1666. MArgaret Mcdonald and Colonel james Montgomery her Spouse, pursue a Declarator against Stevart, Oye and appearand Heir to umquhil Sir William Stevart, to hear and see it found and declared, that umquhil Damn Elizabeth Hamiltoun, Spouse to umquhil Sir William, had Right to certain Bonds and household Plenishing from Sir William, and that the said Margaret had Right thereto, from the said Dame Elizabeth, by her Assignation, and that the sums, and Goods were Movable, and thereby the Assignation granted thereto, albeit on deathbed, was valid. It was condescended on, that the Bonds were Movable by a Charge of Horning. It was answered, that the Charge was but against one of the Cautioners, which was not sufficient to make it movable. The Lords Repelled the Alleadgence. Eleiss of Southside contra Mark Cass of Cockpen: Eodem die. Eleiss of Southside pursues Cass, as Heir to Mr. Richard Cass, or as being charged to enter heir to him. Compearance is made for Cockpen, who was a Creditor to the Defender, and had apprised his Lands; and alleged no Process, because the Pursuer pursues as assignee; The Assignation being his Title, is posterior to the Charge to enter Heir, or Summons which are raised, not in the Cedents Name, but in the Assigneys. It was answered for the Pursuer, that Cockpen could not object this, because he was Curator to the Pursuer, and had apprised the Lands, and proponed this alleadgence of purpose, to exclude this Pursuer, from coming in within year and day, because, it this Summons were cast (the Defender being now out of the Country) before a new Charge to enter Heir, could proceed upon 60. days, and Citation upon 60. days, and the special Charge upon 60. days, the year would elapse. It was answered, that Cockpen had never acted as Curator, and that this Summons was raised by the Pursuer himself, after his Majority, who was Major more than a year ago. It was answered, that the Pursuer had but very lately recovered his Writs from his Curators, though he used all Diligence, and was forced to transume against some of them. The Lords sustained the Summons, in respect Cockpen had been Curator, and so near the time of Minority. Earl of Eglingtoun contra Laird of Cuninghame head. january 27. 1666. THe Earl of Eglingtoun pursues the Laird of Cuninghamehead for the Teinds of his Lands, conform to a Decreet of Valuation. The Defender Alleged absolvitor, because he bruiked by virtue of a Tack, at least by tacit Relocation, which must defend, ay and while the famine be interrupted by Inhibition, or Process. It was replied, the Pursuer produceth Inhibition, and craves only the valued Duties for the years thereafter. It was answered, the Inhibition is direct to Messengers at Arms, and is only execute by a Sheriff in that part. It was answered, that it was sufficient, seeing the Letters bore Messengers, Sheriffs in that part. The Lords found the Inhibition sufficient, to interrupt the tacit Relocation. jean Crichtoun and Mr. john Eleis her Husband contra Maxwel of Kirkhouse. Eodem die. JEan Crichtoun being Served to a Terce of certain Lands belonging to her first Husband Maxwel of Kirkhouse, pursues for Mails and Duties. It is alleged absolvitor, because the Pursuer hath a competent Jointure, more than the third of her Husband's Estate, as than it was; and a Provision of Conquest: and albeit it be not expressly in satisfaction of the Terce; yet it is but a minute, bearing to be extended, and there is a Process of Extension thereof depending: and therefore it ought to be extended with such Clauses as are ordinar in such cases, and this is most ordinar, that competent Provisions use to be in satisfaction of the Terce. It was answered, that the Extension could not be with alteration of any substantial Point, such as this, but only as to Procurators of Resignation, Precepts of Seasine, etc. And to show that it was not Kirk house, his meaning, that the Infeftment should be in satisfaction of the Terce; the Infeftment itself produced, being extended in ample Form, does not bear to be in satisfaction. The Lords Repelled the Defences, and found the Terce competent in this Case. Colonel James Montgomery contra Stevart. Eodem die. IN the Declarator betwixt these Parties mentioned the 24. day Instant. It was alleged that the Plenishing, and Movables could not be declared to belong to the Pursuer, by virtue of Dam Elizabeth Hamiltouns Disposition, in so far as concerns the Movable Heirship, in respect it was done on Death bed, and could not prejudge the Defender, who is Heir, even as to the Heirship-moveable. It was answered, that the said Dam Elizabeth being Infeft neither in Land, nor Annualrent in Fee, could have no Heirship. It was answered, that her Husband and she were infeft in certain Lands by Hoom of Ford, which were Disponed to her Husband▪ and her in Conjunct-fee● and to the heirs of the Marriage, which failzing, to whatsoever Person the said Sir William should assign, or design. And true it is he had assigned that Sum to his Lady, whereby she had Right of the Fee, and so might have heirship. The Lords found that this Designation made the Lady but Heir appearand, or of Tailzie, whereupon she was never Infeft: and by the Conjunct-fee, she was only Liferenter; and that the Assignation to the Sums and Right, gave not her heirs any heirship movable. Heugh Dollas contra Frazer of Inveralochie. january 31. 1666. SIr Mungo Murray having by the Earl of crawford's means, obtained from the King a Gift of the Ward, and Marriage of Frazer of Streichen his Nephew, he did assign the Gift to Mr. james Kennedy, and he to Heugh Dollas, before it past the Scals; and at the time that the Gift was passed in Exchequer, the same was stopped until Sir Mungo gave a Back-bond, bearing, that he had promised at the obtaining of the Gift, to be ruled therein at the Earl of crawford's discretion, who by a Declaration under his hand, declared that the Gift was purchased from the King, for the Minors behoove, and that only a gratuity for Sir Mungoes pains, was to be paid to him; and that the Earl Declared, he allowed Sir Mungo 5000. marks. There was a second Gift taken in the name of Sir William Purves of the same Ward, and Marriage. Heugh Dollas pursuing Declarator of the double avail of the Marriage, because there was a suitable Match offered, and refused. Compearance was made for Sir William Purves▪ and the Lord Frazer his assignee, who declared that their Gift was to Streichans' behoof, and alleged that the first Gift could only be declared as to 5000. marks. contained in the Earl of crawford's Declaration, because of Sir Mungoes Back-bond, the time of passing of the Gift. It was answered, First; That Sir Mungoes Back-bond, and the Earl of crawford's Declaration, could not prejudge the Pursuer, who was a singular Successor to Sir Mungo; especially, seeing it is offered to be proven, that the Gift was assigned, and intimate before the Back-bond: after which, no Writ subscribed by the Cedent could prejudge the assignee. It was answered, that the said Assignation being of the Gift, when it was an incomplete Right, and only a Mandate granted by the King, could not prejudge the Back-bond, granted at the time the Gift past the Exchequer, and Seals; for then only it became a complete Right, and notwithstanding of the Assignation, behoved to pass in the Donatars Cedent; his Name; so that his Back-bond then granted, and Registrat in Exchequer, behoved to affect, and restrict the Gift, otherways all Backbonds granted to the Thesaurer, and Exchequer, might be Evacuat by anterior Assignations. It was answered; that this Back-bond was granted to the Earl of Crawford, then, but a private Person, and hath not the same effect, a● a Bond granted to the Thesaurer. The Lords found this Back-bond granted at the passing of the Gift, and Registrat in the Books of Exchequer, to affect the said Gift, and therefore restricted the Declarator thereto. In this Process it was also alleged that the first Gift was null, bearing the Gift of the Ward, and Marriage to be given upon the Minority of Streichen, and the Decease of his Father; and the second Gift buire, to be upon the Minority of Streichen, and the Decease of his Goodsire, who died last Infeft, his Father never being Infeft. It was answered, that the Designation was not to be respected, seeing the thing itself was constant, and that the Father's Decease, albeit not Infeft, was the immediate cause of the Vaccation; seeing the Oye could have no interest, until the Father, though not Infeft, were dead. The Lords forbore to decide in this, seeing both Parties agreed that the 5000. marks should be effectual, so that it was needless to decide in this; which, if found Relevant, would have taken away the first Gift wholly. Colonel Cuningham● contra Lyll. Feb. 1. 1666. IN a Competition between Colonel Cuninghame and Lyll, both being Arresters, and having obtained Decreets, to make forthcoming in one day; and Colonel Cuninghams' Arrestment being a day prior, he alleged he ought to be preferred, because his Diligence was anterior, and his Decreet behoved to be drawn back to his Arrestment. It was answered for Lyll, that it was only the Decreet to make forthcoming, that constitute the Right; and the Arrestment was but a Judicial Prohibition, hindering the Debtor to Dispone, like an Inhibition; or a Denunciation of Lands to be apprised, and that the last Denunciation, and first apprizing would be preferred: So the Decreet to make forthcoming is the judicial Assignation of the Debt, and both being in one day, aught to come in together. It was answered, that in legal Diligences prior, tempore est p●tior jure, and the Decreet to make forthcoming is Declaratory, finding the sum arrested to belong to the Arrester, by virtue of the Arrestment: and as for the Instance of Appryzing, the first Denunciation can never be postponed, unless the Diligence be defective; for if the first Denuncer take as few days to the time of the apprizing as the other, he will still be preferred. The Lords preferred the first Arrester, being equal in Diligence with the second. contra Mr. John and Henry Rollocks. Eodem die. IN an Exhibition of Writs, it was alleged that Mr. john and Henry Rollocks, being Advocate; and Agent in the Cause, was not obliged to Depone in prejudice of their Clients, or to reveal their secrets; but they ought to pursue their Clients; for a Servant, Factor, or Person entrusted with the custody of Writs, ought not to be Examined in prejudice of their Constituent, unless it were as a Witness. It was answered, that their Client was called. In respect whereof, the Lords ordained the Defenders to Depone concerning the having of the Writs. Fodem die. AN Executor Dative, ad omissa & mala appretiata, pursuing the principal Executrix, and referring the Goods omitted, and Prices to her Oath: She alleged that she had already Deponed at the giving up of the Inventar, and could not be obliged to Depone again. The Lords ordained her to Depone, seeing she might have intrometted after, and more might have come to her knowledge of the worth of the Goods, or a greater price gotten therefore. Archbishop of Glasgow contra Mr. James Logan. Eeb. 6. 1666. THe Archbishop of Glasgow pursues a Declarator against Mr. james Logan, for declaring he had lost his place, as Commissar Clerk of Drumfreis, because he had deserted his place, and gone out of the Country, and because he was a Person insolvent, and denunced Rebel, and had lifted a considerable Sum for the Quots of Testaments, which he had taken with him, and not paid. It was answered that the Defender had his Gift from the former Archbishop, with a power of Deputation, and that his place is, and hath always been served by a Depute; and therefore, neither his absence, nor his being Denunced for Debt, can annul his Gift, or hinder him to Serve by his Deput. It was answered, that the principal Clerk, not having, personam standi in judicio, his Depute cannot sit for him, who could not sit himself, and that he being absent out of the Country, for a considerable space, must be esteemed to have Relinquished his Place. The Lords found the Defense Relevant upon the pour of Deputation, which they found not to be annul●e● by his absence, or denunciation, sine crimine. Livingstoun contra Beg. Eodem die THomas Beg having granted a Bond to Livingstouns his Wife, bearing, that in respect he thought it convenient that they should live a part, he obliged him to pay her a certain Sum of Money yearly for her aliment, and obliged him never to quarrel, or recall that Obligation, being charged thereupon, he Suspends on this Reason, that it was donatio inter virum & uxorem, and so he might recall the same, and now offered to Cohabite with his Wife, and aliment her according to his Means. It was answered, that he had Renunced that privilege, in so far as he had obliged himself, never to Recall, or come against this obliegment. It was answered, that though he had expressly Renunced that privilege, yet the Renunciation was donatio inter virum & uxorem, and he might therefore Recall, and come against both. The Lords found the Reason of Suspension, and Reply relevant in time coming: but not for the bygone time; during which, the Wife had actually lived a part, and alimented herself. Laird of Dury contra The Relict and Daughter of umquhil Dury his Brother. Eodem die. DVry being Served Tutor of Law to his Brother's only Daughter, pursues her Mother for delivery of her to be Educat by her Tutors. It was alleged, that he was to succeed her, and so could not have the Custody of her Person. 2. That she was but nine years old, and her Mother unmarried, and so she was the fittest person to Educate her; especially seeing she was the only living Child of many, and so not likely to be lively. It was answered, that the Tutor insisted not for the custody of his Pupil himself, but condescended on several Persons, with whom she might be Educate; and alleged, that she having 40000. pounds of Provision out of the Family; there was no Reason she should be keeped by her Mother, and Disposed of at the pleasure of her Mother's Friends. The Lords Discerned the Child to be delivered to Mr. Alexander Gibson, one of the Clerks, to be Educate with him: but superseded Execution of the Sentence, till Whitsonday come a year, that she might be delivered to her Father's Friends, before she was eleven years old, and could have any thoughts of Marriage. Watson contra Fleming. Eodem die. THere being an Infeftment of Annualrent granted out of Lands, and Teinds, and an Assignation to the Teind Duties, in so far as extended to the Annualrent. The Teinds, and Lands were thereafter apprised from the common Author, before the Annualrenter had obtained Possession by his Real Right, of the Annualrent, but only by his Assignation to the Teind Duties. It was alleged by the Appryzer, that the Assignation to the Teind Duties could give no longer Right than the property thereof remained in the Cedents Person; which Ceasing by the apprizing, the Assignation ceased therewith, as is ordinarily, and unquestionably sustained in Assignations to Mails and Duties of Land. It was answered, that there was great difference betwixt Lands, which require Infeftment to transmit the same, and Teinds which require none, but are conveyable by an Assignation; for if this had been by an Assignation to the Tack of Teinds, protanto, it would have been unquestionably valid; and therefore being an Assignation to the Teind Duties, it is equivalent as a Disposition to Lands, which would carry the Right of a Reversion, though not expressed, and though there were no more to Dispone but the Reversion only. It was answered, that if the Assignation had been to the Teinds: That is to the Right, or if it had been to the full Teind Duty in the Tack, or of certain Lands; then the case might have been dubious; but being, not of the Teind Duties of any particular Lands, but out of the first and readiest of the Teinds of several Lands, it was not habilis modus. Which the Lords found Relevant. Town of Glasgow contra Town of Dumbarton. Eodem die. THere being mutual Declarators, one at the Instance of the Town of Dumbarton, for Declaring that they had Right by their Infeftments, that all ships coming within Clyde, should make their Entries at Dumbarton, and that they should pay Anchorage, for all Ships Anchoring in the River of Clyde, being within their Infeftment, even from the Water of Leven, to the head of Lochluny, within which bounds is the ordinar station of Newwark, Potterig and Inchgrein, and above which, no Vessel above 24. Tuns goes up Clyde; and likewise for the Measurage, whereby all Ships casting Anchor there, took the Firlots of Dumbarton and measured with, paid 8. pennies of the bowl therefore; and Weightage, which is a Duty for their Weights: and also Tunage, being so much out of every Tun of the Burden of each Ship. And on the other part, Glasgow pursues Declarator of their Liberty to Traffic freely in the River of Clyde; and to make Entry at their Burgh, and to be free of any such burden at Dumbarton. The Lords before answer having ordained either Party to adduce such Writs, and Witnesses as they will make use of in the Cause, for instructing these Burdens, the Possession thereof, Interruptions of the same, and Liberty therefrom; which all being adduced, Dumbarton produced their original Charter, Erecting them in a free Burgh, by King Alexander, in Anno 1221. and another Charter also by King Alexander, repeating their Privileges of Burgh, as free as Edinburgh, or any other Burgh within the Kingdom, cum custumiis & teloniis; and also a Charter in Anno 1609. Ratifying the former Charter, and particularly expressing all these Burdens in question, in the novodamus thereof; and also produced their Entry Books, bearing, the Merchants of Glasgow to have Entered their Ships at Dumbarton, and to have taken the measures of Dumbarton, for measuring their Salt, and to have paid the Duties thereof, and obliging themselves to make use of no others these Voyages, beginning at the year 1616. and continuing till the year 1657. in the beginning whereof, there was ordinarily one Ship every year, and thereafter several Ships every year. Glasgow did also produce their ancient Infeftments by King Alexander, mentioning a prior Infeftment by King William, Erecting them into a free Burgh, with their Books of Entries, of several Ships, for divers years, with an Interlocutor of the Lords, in Anno 1609. wherein Dumbarton having charged for all the Duties now in question. Glasgow Suspended, and Dumton insisted for none of these in question, but only for Entries; and the Lords found, that the Merchants of Glasgow might either Enter at Glasgow, Dumbarton, or any other free Burgh where the King's Customers were, and might break bulk there, with a Contract between Dumbarton and Glasgow, in Anno 1590. obliging them to concur against unfree-men, and not to break bulk upon the River, but in their Towns; and in case of any difference, six of each Town to meet at Ranfrew, and decide the same, and thereupon alleged, that they being a free Burgh, and having the precedence of Dumbarton, both in Parliament, and so acknowledged by the said Contract, and enjoying equal, and free Trade in the River of Clyde, without any such Burden, whereof no mention is made in the foresaid Contract, and being charged for, in Anno 1611. there was not so much as an alleadgence of any Possession of Dumbartons of these Deuce at that time, and the Entry discerned to be free at either Town; and therefore they alleged, that their Privilege of Trading as a free Burgh, aught to be declared, and they assoilzied. It was answered for the Town of Dumbarton, that they had good Right to these Duties, by His Majesty's several Infeftments, granted to them; for the King having power to impose petty Customs, not only in Ports built, and preserved by Industry, but in Stations, and Rivers, Creiks and Bays, as is the Custom of all Kings and Princes, such are the Customs upon the Rivers of Rhyne, Garonnie, Thaimes, and others, to all Ships that anchor there, or pass that way: and whereof, there are severals in Scotland, as the Tonnage, due to Edinburgh of all the Ships breaking bulk at Leith: and the petty Customs of Alloway, Cockenie, and other places. 2ly. Albeit the Kings grant were not sufficient alone, yet being clad with immemorial, or 40. years' Possession, instructed by Witnesses, and the Books of Entry, it is more than sufficient. It was answered for Glasgow, to the first, That petty Duties imposed for Ports, having a mutual Cause, may be appointed at any time by Kings and Princes; it being free to these who are burdened therewith, to come in to that Port, or not: they also appoint petty Customs to be paid to any City, for Goods Imported, and sold there, in consideration of the upholding of their Harbours, and Mercats, as the Tunage of the Harbour of Leith, or anchorage at any Shore, where anchorage is casten upon the Land, or any Goods laid out upon the Land, or where Imposition for anchorage, or other Deuce in a River, or Station, hath been approven by long Custom, and acquiescence; but where burgh's Royal, have not only by their privilege of Trading, but by immemorial Possession, prescribed a liberty of making use of Stations, without birding; no Right granted, or Impetrat by any Party in prejudice thereof, if it be quarrelled before Prescription can take away the liberty of Trading: Nor is the King's Gift any way to be understood, but periculo petentis: and Dumbartons second Charter did expressly bear, that these petty Customs were due, and accustomed before; so that the King's express meaning is, not to Gift them de nova, or to impose a servitude in their favours, upon a far more eminent City than themselves. And as to the Point of Possession, nothing is proven thereanent, till the year 1616. and then it is neither universal, seeing more Entered at Glasgow, then at Dumbarton; nor is it peaceable, nor voluntar, nor is it continual, but interrupted; and albeit it were uninterrupted, yet it is but by single Persons, which cannot infer a Servitude upon the Burgh, and if the King's Gift be periculo petentis, and be surrepticiously impetrat upon a false Narrative, no Possession can validat it, as no Possession of itself, without a Title, could infer such a Servitude. The Lords having considered the Depositions of the Witnesses, Books of Entry, and the hail Writs produced; they found that the alleadgence against Dumbartons Declarator, as founded upon their Charters, without Relation to Possession, was not Relevant, and that the first Charter could not extend to these particulars, not being expressed, unless it had appeared that they had been in immemorial Possession, before the second Charter, and the interruption by the Suspension, raised by Glasgow, and the Lords Interlocutor thereupon● in Anno 1611. for albeit Immemorial, or 40. years' Possession immediately preceding, might have presumed Possession continually before, since the first Charter; yet they found that Interruption, or Suspending that particular in question, and no alleging of Possession by Dumbarton then; but on the contrair, an Interlocutor, as to the liberty of Entry at Glasgow, takes off that Prescription: And likewise they found, that there was nothing proven as to 40. years' Possession, save only 13. sh. 4. d. for the Anchorage of each Ship, and 8. d. for the use of Dumbartons Measures of Salt, for each Boll: and seeing that Possession was also proven to be Interrupted, in that several Ships of Glasgow Resisted, and came away free, and that they had several Salt Measures of their own there. Therefore they found the Charter not validat by 40. years' Possession uninterrupted, and Assoilzie from Dumbartons Declarator, and Declared upon Glasgows Declarator of Liberty. Earl of Panmuire contra Parochiners. Feb. 7. 1666. THe Earl of Panmuire having Right to the Abbacy of Aberbrothick, pursues for a part of the Teinds thereof. It was alleged absolvitor, because they had possessed their Land 40. years free of Teind to any body: and by the general Act of Prescription, all Right prescribes, not pursued within 40. years, and so doth the Right of this Teind. It is answered, that the Right of Teind is founded on Law, and not upon any particular, or private Right; and therefore, albeit in the case of Competition of private Parties, pretending Right to Teinds. One Right may be excluded by another; yet the Teinds themselves must always be due, except where the Lands are decimis inclusis, and did belong to privileged Churchmen of old, such as the Cistertian Order, or Templars, Manse, or Gleibs. The Lords Repelled the Defense, in respect of the Answer, for they thought, albeit the bygones of the Teind preceding the 40. years, might prescribe; yet the Right of Teind could not, more than Customs could prescribe, if they were neglected to be Exacted for forty years, or a Feu-duty. Ker contra Hunter and Tenants of Cambo. Feb. 8. 1666. THe Tenants of Cambo raise a Double-poinding against Ker, and Hunter, both being Infeft in Annualrents, base, where the last base Infeftment within a month of the former, being clad with Possession, by a Decreet of poinding the Ground, a year after both, and no Diligence on the first. The Lords preferred the last Infeftment, as first clad with Possession. It was further alleged, that this Annualrenter had accepted a part of the Land in satisfaction of his Annualrent. It was answered, that there was Write there required, viz. a Renunciation of the rest, and till that was done est locus penitentiae. The Lords considering the Case, found that if the Promise were only to restrict the Annualrent to a part of the Land burdened therewith, it was pactum liberatorium, and there was not locus penitentiae; but if it was a Promise to accept other Lands, or the Property of a part of the Lands burdened, there was locus penitentiae, till the mutual Rights were subscribed, whereby the one Party disponed the Property, and the other the Annualrent. The Heretors of john's Miln contra The Fevars. Feb. 9 1666. THere being an old Thirlage of a Paroch, which was a part of the Barony of Dumfermling, to john's Miln, the Feu of the Miln being first granted by the Abbot of Dumfermling, and the Feu of the Land thereafter: there is a Decreet in Anno 1610. pronounced by the Chancellor, as Lord of the Regality, decerning all the Fevars to pay the five and twenty Curn of all Grains that they brought to the Miln, and a greater of that they Abstracted. The Fevar of the Miln pursuing for Abstracted Multures, and for instructing the Quota, producing this Decreet. It was alleged for the Defenders, that they offered them to prove that, past memory of man, at least 40. years bygone, they have been constantly in use to pay five Bolls of Bear in satisfaction of all Multure; and so can be liable for no further, they having prescribed their liberty from any further. 2ly. That no respect ought to be had to the Decreet, in so far as it Decerns a greater quantity for the Corns Abstracted, then for these grinded, which is without all Reason; especially seeing this is but a Burn Miln, and not sufficient for the Thirl. 3ly. They offer them to prove, that the Miln was insufficient, the years pursued for, and no ways able to serve them, and the rest of the Thirl, as being but a Burn-miln, dry in Summer, and not having Water enough in Winter. It was answered for the Pursuer, to the first, that they offered them to prove, they were in Possession of the Multure libeled within these 40. years, at least that any lesser Duty was accepted by a particular Paction for a time only. To the second, opponed the Decreet standing, against which there has neither been Suspension, nor Reduction, nor any ground for the same. for its like the coming to the Miln frees them from a greater quantity, for abstraction. And seeing the Quota is but the five and twenty Curn, far below the ordinar Thirl Multures; it was very reasonable, that the 'samine being abaited to a less quantity, they should pay a greater if they came not. As to the insufficiency of the Miln, it was answered non Relevat, unless it were through the default of the Pursuer, or his Millers, for they being astricted to a Burn Miln, what defect is therein, without the Pursuers fault, cannot louse the Restriction. The Lords found the Replies Relevant, unless the Defenders condescended upon an insufficiency, through the Pursuers fault. Here occurred to the Lords, whether the Fevars could by Possession, prescrive their liberty as to a lesser Multure, seeing the Possession of a part of the Multure was sufficient to exclude Prescription, as to the whole: some thought, if the Multure had been a certain Quota in the Infeftment of the Miln: Possession also not of the hail, would hindered Prescription of any part; but if the Infeftment of the Miln, was only with the Multures used, and wont, and that the speciality was but by a Decreet, as the use and wont: that in that case, use and wont might change. Others thought not, but in respect the Pursuer insisted not on that Point, but offered to prove Possession, conform to the Dec●eet within these 40. years. The Lords decided not that Point. Here also it was alleged, that by an Act of the Court of Dumfermling, the Defender consenting, at least present, it was Enacted, that such of the Defenders as could not be served, might go to other Milns. The Lords found this alleadgence only Relevant, that it was by consent of the Pursuer, or his Authors, but left it to be the Defenders● after production, to qualify what way the consent was given; but that his presence and silence was not enough. The Collector of the Vaccand Stipends contra Parochioners of Mayboll, and Girvane. Feb. 10. 1666. THe Collector of the Vaccand Stipend, having charged the Heretors of Mayboll, and Girvane, for the Stipend due by them, the year 1663. They Suspend, and produce the Ministers Discharges, who served these years, and alleged they made payment bona fide, before this Charge. It was answered, they were in mala fide by the Act of Parliament, of the last Session of Parliament, declaring the places of Ministers, Entered since 1649. to be Vacant, if they had not obtained Presentation, and Collation conform to the Act. It was answered, that the foresaid Act was not simple, but conditional, if they had not obtained Presentation and Collation; and there was nothing obliging the Parochioners to inquire whether they had done that, which by the Law they were obliged to do; but seeing there was no Charge against them by the Collector of the Vaccand Stipends, and that the Patron, or Ordinar did not present another; but suffered the then Incumbents to preach all that year, they were in bona fide, to think that they might pay them for the time they Served. It was answered, there was a Decreet produced against the same Ministers, for the year 1662. and therefore they could have no Right to the year 1663. The Lords found the Reason of Suspension Relevant and proven notwithstanding of the Answer; because the Decreet was not against the Heretors, and was but obtained in 1664. after they had made payment of the year, 1663. The Minister of North-Leith contra Merchants of Edinburgh. Eodem die. THe Minister of North-leith having pursued some Merchants of Edinburgh Importers of Herring, of dry Fish, Killing, and Ling, at Leith and New-haven, to pay twenty shilling of the Last of Herring, and the twentieth part of the Killing and Ling. It being alleged, that such a burden could not be allowable, because the Teinds was taken where the Fish was taken. 2ly. That it could only reach the Parochioners of North-leith, not the Merchants of Edinburgh. And, 3ly. That they had frequently Traded free of such a Burden. The Lords having ordained the Pursuer to adduce Evidences by Writ, or Witnesses, what Possession they had, and the Defenders what liberty they had; and having heard the Testimonies of the Witnesses, with an old Decreet for the same particulars, but not against the Merchants of Edinb●rgh, nor for dry Fish, they found 40. years' Possession, proven of the said Burden, and therefore Discerned. The Laird of Wedderburn contra Wardlaw. Feb. 13. 1666. WEdderburn pursues a Reduction of a Feu granted to Wardlaw, ob non solutum canonem, by virtue of a Clause irritant in the Infeftment. The Defender offered to purge, by payment at the Bar, and alleged several Decisions that it hath been so allowed. It was answered, that was only the case of a Reduction upon the Act of Parliament, declaring Feus' null for not payment of the Feu Duty, but where there is an express Clause irritant in an Infeftment, that cannot be purgeable at the Bar; else such Clauses should be useless, seeing without these, de jure, the Feu Duties behoved to be paid at the Bar; or otherwise the Feu annulled. The Lords found, that there was a difference betwixt a Clause irritant, and upon the Act of Parliament, and so would not admit of purging at the Bar simply, unless the Defender condescended upon a Reasonable Cause, ad purgàndam moram, and therefore ordained them to Condescend. Archbishop of Glasgow contra Commissar of Glasgow. Feb. 14. 1666. THe Archbishop of Glasgow pursues a Declarator, or to hear and see it found and Declared, that Commissars ought to be persons qualified, and able to judge according to Law, and that if they be not, they might be deprived by the Act 1609. empowering the Bishops, then restored, to appoint able, and sufficient men, Commissars in all time coming; and by the Act of Restitution 1661. whereby the like power is granted, excepting Commissars nominat by the King, unless he be insufficient, or malversant: and subsumes that Mr. William Fleming is not sufficient, nor qualified for that Place; and also, that by the injunctions given to Commissars; mentioned in the Act 1609. there is no place for Deputs, unless it were by special consent of the Bishops, and craves that it may be declared, that the said Mr. William may not Serve by a Depute. The Pursuer insisted on the first member. It was alleged for the Defender, that he had his Place both from the King, and Bishop Fairfoul confirming the same with a Novo damus: and therefore, though he might have been questioned before the said Ratification, and new Gift; yet now he cannot be questioned upon insufficiency, but only on Malversation, whereof there is no point alleged, nor condescended on, nor is his insufficiency qualified by any Act of inorderly Process, or injustice committed by him now these five years, and as Bishop Fairfoul, who acknowledged him to be a fit, and qualified Person, by his Ratification could never quarrel him upon insufficiency, neither can this Bishop. 2ly. The Defender has his Place with power of Deputation; and therefore having given eight thousand marks to the former Bishop for his Ratification, with power of Deputation, he cannot be questioned on his sufficiency, being able, per se aut per deputatum, and no Act alleged of injustice. It was answered by the Pursuer to the first Defense, that albeit this same Bishop had admitted this Commissar, upon hopes of his Qualifications, yet if contrair to his expectation, it appears he is not qualified for so eminent a Judicature. He may justly quarrel him of insufficiency, as well as a Minister whom he ordained. 2ly. Though the same Person might not, yet his Successor in Office might, and is not bound to acknowledge what his Predecessor did by mistake, or otherways to the detriment of the Sea, which were in his option, without a Rule, or requiring Qualifications, as the naming of Commissars. To the Second, albeit Deputes were allowable, as they are not by the Injunctions, yet the principal Commissar, who must Regulat, and answer for them, must also be qualified, both by the Act 1609. and the exception 1661. which enervats both the Defenders Gifts. The Lords found that Member of the Lybel on the Qualifications, and sufficiency Relevant. My Lord Ley contra Porteous. Feb. 15. 1666. MY Lord Ley, having Right by progress to the Reversion of an old Wodset, uses an Order, and pursues Declarator thereupon. The Defender alleged no Declarator, because by the Reversion, there is a Tack to be granted, to begin after Redemption, and to continue for so many years. It was answered, that Tack was thursdays, and invalide, not only by Common law, as an usurary Paction, giving the Wodsetter more than his ordinary Annualrent, but by a special Act of Parliament, ja. 2. Par. 1449. cap. 19 whereby such Tacks taken in Wodsets, to endure long time after the Redemption, for the half mail, or near thereby, shall not be keeped: and as by the late Act of Parliament, between Debtor and Creditor, it is provided, that where old Wodsets were granted before 1650. when annual was at ten for ilk hundreth, the Wodsetter may, upon offer of Caution for the annualrent, take Possession, unless the Wodsetter offered himself to be comptable for what exceeds his annualrent. It was answered for the Defender, that his Defense stands yet Relevant, notwithstanding the answer, for as to the old Act of Parliament, it is in desuetude, and it hath been the common custom to grant such Tacks in Reversions, which have still been observed, and were never quarrelled, neither are they usurary, seeing the Tacksman has the hazard of the Fruits, and all burdens, so his Tack-Duty, how small soever, unless it were elusory, can be no usurary paction, more than taking Lands in a proper Wodset, which pay more than the true annualrent, which was never found usurary. 2ly. This Wodset is granted since that old Act, whereby the benefit thereof is totally passed from. As to the new Act, the Clause bears expressly, that during the none Redemption, or none Requisition, the conditions therein shall take place, which cannot be extended to a Tack, to be granted after Redemption. It was answered, that the first Act bears, not only a Regulation of Wodsets already then granted, but to be granted, bearing expressly, who takes or has taken Lands in Wodsets, etc. and there is nothing in the Wodset to renunce the benefit thereof. As for the custom, Acts of Parliament are not derogat by custom of private parties, acquiescing in their agreements; But the custom of the Lords by current Decisions. As to the last Act, it ought to be drawn, ad pares casus, and the Lands are not effectually Redeemed, till the Tack be ended. The Lords found the last Act no ground for annulling such Tacks, but found the first Act a good ground, if it were subsumed according to it, that the ●ands were set for half Mail or thereby. Lion of Muiresk contra Gordon and others. Eodem die. JOhn Lion of Muiresk, having obtained Decreet of Spuilzie of certain Goods, against Gordon and others, they suspend and allege the Act of Indemnity, that they took these Goods, being under the Command of the Marquis of Hunlly. It was answered, that the Charger was in friendship with the Marquels, and on his side, and so they cannot clothe themselves with the Act of Indemnity, as done upon hostility. 2ly. The Act Indemnifies only Deeds done by Command, and Warrant of any pretended Authority; but here no such Order is alleged, It was answered, that Orders were not given in Writ, and if none get the benefit of the Indemnity,, but these can shew● or prove Orders, few, or none will enjoy it; nor need the Suspenders to Dispute whose side the Charger was on; seeing they acted by Order. The Lords found, that it was sufficient to allege that the Charger was, the time of the Intromission, actually in Arms, and acted it with a Party, being then in Arms, but needed not prove their Order, or the application of the Goods to public use; but found it Relevant, if it were offered to be proven by the Suspenders Oath, that they had no Warrant, or Order, or pro ut de jure, that they applied them to their own private use, not for any public use. james Borthwick contra janet Skeen. Feb. 16. 1666. JAmes Borthwick, having obtained Reduction of janet Skeens Liferent-right, as a non habente potestatem, obtained payment of a Terms Rend before the Decreet of Reduction. janet pursues for that Term, and alleadges that the Decreet of Reduction could not be effectual till it were pronounced, albeit it bear her Right to be null, ab initio, yet that is but stylus curiae. It was answered, that the Tennent paid bona fide, after Reduction obtained, and intimat to him, and that the Lords may ex arbitrio, find the effect of the Reduction, either to be asententia, Litiscontestation, or a Citation. In this Reduction the Lords Assoilzied the Tennent for this Term, though before Sentence. Earl of Winton contra Countess of Winton. Eodem die. THe Earl of Winton pursues a Reduction of an agreement made by his Tutors and Curators with my Lady, giving her a certain Duty for her Interest in his Coal, as being minor, and laesed, in so far as by her Contract, she had only Right to the fourth part of the Coal in his Property; now his Coal for several years, has been in his Fevars' Lands, by Reservation in their Rights. And also craved the bygons. It was answered, that bona fide possessor facit fructus consumptos suos, the Lady by the Agreement, could not count for the years Duty she had gotten. It was answered, that this holds not in the case of Minority, and Laesion. It was answered, that albeit Minority Repones, as to any principal Right, yet not as to the Fruits, and accrescences medio tempore. The Lords Reduced, but Assoilzied the Lady from Repetition. Sharp of Houstoun contra Glen. Eodem die. GLen Pursues for Mails and Duties of some Lands. Houstoun compears, and alleadgesthat he has Right to these Lands, by an Apprizing expired. It was answered, his apprizing was null, because it proceeded on four Bonds, the Term of payment of one whereof was not come the time of the apprizing, and so not being due, the Apprizing was void, quoad totum. It was answered, the sum was due, albeit the day was not come, and so being but, plus petitum tempore, he was willing to admit the apprizing to be longer time by the double, redeemable after the legal were expired, than all the time he apprized before the hand. The Lords found the apprizing void as to that sum. Whereupon occurred to them, to consider whether the apprizing should fall in totum, or stand for the other 3 Bonds. And if it stood for these, whether a proportionable part of the Lands apprised effirand to the Bond, whereof the Term was not come, should be found free, or if the rest should affect the whole Lands, as if for these only the apprizing had been led, wherein the Lords were of different opinions, and recommended to the Reporter to agree the Parties. Lady Otter contra Laird of Otter. Eodem die. LAird of Otter having Infeft his Wife in Conjunct-fee, or Liferent, in certain Lands, cum molendinis, did thereafter build a Miln thereupon, and the question arising betwixt the Liferenter and the Heir, who should have Right to the Miln? The Liferenter alleged aedificium solo cedit. The Heir alleged, that a Miln is distinctum tenementum, that cannot pass without Infeftment, and the Clause in the tenendo cum molendinis, is not sufficient, not being in the Dispositive Clause, nor any Miln built then: and he offered to make up all the Liferenters damnage, by Building on her Ground. The Lords found that the benefit of the Miln belonged to the Liferenter, as to the Multures of all that was ground without the Thirlage, but found it not to extend to Lands of the Defuncts, which he had Thirled to the Miln. John Hay of Knokondie contra Litlejohn. Eodem die. JOHN Hay pursues Litlejohn for the damnage sustained by a House belonging to Litlejohn, falling on the Pursuers House. It was alleged the Defender was only Apprizer of a Liferenters Right, and this behoved to lie upon the Fire, who was obliged to uphold the Liferenters' House. The Lords found the Defender liable, seeing he possessed as Apprizer sixteen years, and also intrometters with the profits of the House, are liable for the damnage sustained thereby, seeing both Fire and Liferenter, were obliged to uphold it, and are liable de damno. Lord Salton contra Laird of Park and Rothemay. Feb. 20. 1666. THe Lord Ochiltry having a Disposition of the Estate of Salton, from the umquhil Lord Salton in anno 1612. Disponed the same to Park Gordon, Rothemay and others. This Lord Salton having granted a Bond to Sir Archibald Stewart of Blackhall, he thereupon apprized all Right that could be competent to the Lord Salton of that Estate: which Right being now retrocessed to the Lord Salton: he pursues Reduction of the Lord Ochiltries' Disposition, and of all these Rights founded thereupon in consequence. The reason of Reduction is founded upon an Interdiction, against the Lord Salton, Disponer, before his Disposition; and there having been a Process formerly depending at the instance of umquhil Sir Archibald Stewart, and being Transferred after his Death, the Lords allowed the Process to proceed upon the Minute of Transference, without Extracting the Decreet of Transference, which behoved to include the Process, and hail minutes, which could not be done for a long time, whereupon the Lord Salton, now insisting in the principal Cause. It was alleged, first, No Process, till the Principal Cause were wakened: For albeit the principal Cause be Transferred; yet it is but instatu quo; and therefore being sleeping, there can be no Process, till after the Transference, there be a wakening. The Lords Repelled this Alleadgence, and found the Transference sufficient without any wakening. It was further alleged Absolvitor, because the Pursuers Title being an Apprizing, the Defender has an anterior Apprizing, which does exclude the Pursuers ay and while it be Reduced, or Redeemed. It was answered, that the ground of this Pursuit being a Reduction, upon Interdiction; the Interdiction cannot be directly apprized, but only the Lands belonging to the Person Interdicted, being Apprized, all Apprizers or other singular Successors, coming in the place of the Heirs of the Person Interdicted, may pursue on their Rights, and thereupon Reduce voluntar Dispositions, made contrair the Interdiction: which Interdiction is not a Right itself, but medium impedimentum exclusiuè of another Right, as an Inhibition, and as a first Appryzer cannot hinder a second Appryzer to make use of his Right, except in prejudice of the first Appryzer; so he cannot hinder him to make use of the Interdiction, to take away a voluntar Dispositions but prejudice of the first Appryzers apprizing, as accords: And in the same way a second Appryzer, or any Creditor might pursue upon an Interdiction or Inhibition against a Creditor. Which the Lords found Relevant, and declared the Pursuer might Reduce this voluntar Disposition upon the Interdiction, but prejudice of the Defenders apprizing. contra Hugh Mcculloch. Eodem die. THe Laird of Balnigoun being arrested in Edinburgh, for a Debt due to a Burges, Heugh Mcculloch became Caution for him in these Terms that he should present him to the Diets of Process, and should make payment of what should be Discerned against him, if he did not produce him, within Terms of Law, pendente lite, Balnigoun raises Advocation, and at the same Diet that the Advocation was produced Judicially before the Bailzies, Heugh Mcculloch also produced Balnigoun, and Protested to be free of his Bond as Cautioner: the Bailzies did not Incarcerat Balnigoun, but refused to Liberat Heugh Mcculloch● till they saw the Event of the Advocation. The Cause b●ing Advocate, and Discerned against Balnigoun, who succumbed in an alleadgence of payment. The Pursuer craved Sentence against him, and Heugh Mcculloch his Cautioner. It was answered for Heugh Mcculloch, that he was free, because he had fulfilled his Bond, in presenting Ballangoun, and Protesting to be free, albeit the Bailzies did not free him, that was their fault. It was answered, that the Advocation being raised, hindered the Bailzies to Incarcerat, because they might not proceed after the Advocation; and therefore the cautionary behoved to stand, otherwise all Acts of Caution, to answer as Law will, might be so elided. The Lords found the Cautioner free, and found that the Bailzies, notwithstanding of the Advocation, might Incarcerat the principal Party, unless he had found new Caution, for seeing if he had found no Caution, a principio, but had been Incarcerat, till the Cause had been Discussed the Advocation would not have liberat him: and whensoever the Cautioner produced him judicially, and protested to be free, he was in the same case as if he had been Incarcerat, and therefore the Bailzies might have detained him in Prison, notwithstanding of the Advocation, which did sister the Cause. Mcbrair contra Sir Robert Crichtoun, alias Murray. Eodem die. DAvid Mcbrair pursues a Removing against Sir Robert Crichtoun, who alleged absolvitor, because the warning was null, in so far as he being notourly out of the Country. The Warning proceeded on 40 days, not only at the Ground and Paroch-kirk, but also at his Dwellinghouse, whereas it ought to have been on Letters of Supplement on 60 days, at the Mercat Cross of Edinburgh, Peer and Shore of Leith. It was answered, that the Act of Parliament anent Warning, was only on 40 days without distinction, being out of the Country, or in the Countrey● and it was sufficient that the Summons of Removing upon the Warning, was upon 60 days; because the Warning at the House, was rather an Intimation than a Citation, which was sufficient, seeing the Defender had been butshort while out of the Country, not animo remanendi, and so had still a Domicile where he was Cited. The Lords sustained the Warning, but in Respect the Defender had probabilem causam dubitandi. They superseded the Execution to the next Whitsonday, without any violent profits. Lord Borthwick contra his Wodsetters. Feb. 21. 1666. THe Lord Borthwick pursues an Account and Reckoning against several Wodsetters, who had Wodsets from him in the year 1660. to Count and Reckon for the Superplus of the Wodset, more than their annualrent since the Act of Parliament between Debtor and Creditor, upon that Clause thereof, appointing Wodseters, who have proper Wodsets before the year 1650. or since before the Act to Compt, and be liable for the superplus more than their due annualrent. It was alleged for the Defenders, That the Pursuers had in the Wodsets expressly Renunced the Usurpers Act in favours of Debtors, and all such Acts made or to be made: and by the said Act between Debtor and Creditor, there is an Exceptions where Persons have renunced such Acts. It was answered that that Exception is insert in the Act before this Clause, in Relation to Wodsets, and does not relate to it, but unto the former Provisions, of Suspending the Sums, which was also the Tenor of the Usurpers Act, and therefore the Exception of the Renuncing such Acts, cannot extend to the Case of accounting for Wodsets, which could not be thought upon, the time of the Wodset, and of the Renunciation; this Clause being according to common Law, to hinder Usury, which might have been indirectly taken by proper Wodsets, though these by the Custom, use not to be quarrelled. The Lords Repelled the Defense, in respect of the Reply, and found the Exception not to extend to the Case of Wodsets. It was further alleged for the Defenders, that they were not liable to to count for the Superplus, for all years bygone since the Act of Parliament, nor at all, except in the Case that they had been required to quite the Possession of the Wodset, and Security had been offered them for their Money, and they had chosen rather to retain the Wodset, and to count for the Superplus; for as to all years preceding, they were bona fide Possessors, and had ground to presume that the Pursuer did acquiesce in the Wodset, as only proportionable to the annualrent, and it were unjust and of evil consequence, that if the granter of the Wodset should forbear to offer Security for 20 years upon his offer then, the Wodsetter should be obliged to Compt from the Act of Parliament. It was answered, that there was no inconveniency, seeing the Wodsetter might, if he pleased, quite the Possession, and then was not comptable at all: But if he would retain the Possession, he could not refuse to count for all bygones, since the Act of Parliament. The Lords having considered the Clause of the Act of Parliament, found the Defenders only liable from the time of the offer of Caution, and Requiring the Possession, and not from the date of the Act of Parliament, seeing the Clause bears, they shall have by the Wodset, which looks to be future only; and seeing the Wodsetters might have Builded or Planted for their own accommodation, and therefore might rather reain the Possession than other Security. Ogilby contra Eodem die. THe like case was decided betwixt Ogilby and where this was further Represented, that the Summons could not be Sustained, unless the offer had been made by way of Instrument before the Summons, yet the Lords Sustained the offer instantly, made to have effect ab hoc tempore, but not from the Citation. It was also further alleged for the Defender, that there was now no Caution offered. It was answered for the Pursuer, that there needed no Caution, if the Wodsetter choised to retain the Possession; because the Wodset itself was sufficient Security. It was answered, that they were not obliged to declare their option, till Caution were first offered by the granter of the Wodset, and the Statute behoved to be strictly Observed. It was answered, that there was here no detriment to the Wodsetter, and the granter of the Wodset might be so poor as not to be able to find Caution. The Lords found, in respect of the Act of Parliament, that Caution behoved to be offered, and would not exceed the Terms thereof. contra The Sheriff of Inverness. Eodem die. 〈…〉 being pursued for Theft-boot before the Sheriff of Inverness, upon the old Act of Parliament james 2. bearing, that whosoever should compone with a Thief, for stolen Goods should be liable in Theft-boot, and punishable as the Thief or Robber. He raises Advocation on this Reason, that the Act was in desuetude, and the matter was of great moment and intricacy, what Deeds should be counted Theft-boot, whereinto no inferior Judge ought to decide, because of the intricacy. It was answered, that the Lords were not Competent Judges in Crimes; and therefore could not Advocate Criminal Causes from inferior Courts, and the Earl of Murray being Sheriff, and having sufficient Deputs, both should concur in the careful deciding of the Cause. It was answered, that albeit the Lords did not Judge Crimes, yet it was competent to them to Advocate Criminal Causes, ad hunc effectum, to remit them to other more competent unsuspect Judges. The Lord's Advocate the Cause from the Sheriff, and Remitted the same to the Iustice● because of the antiquity of the Statute, and intricacy of the Case. Lockhart contra Lord Bargany. Feb. 22. 1666. THe umquhil Lord Bargany being adebted in a sum of Money to Sir William Dick, he apprised, but no Infeftment nor Charge followed. Thereafter a Creditor of umquhil Sir William Dicks, appryzes, but before the apprizing, Lockhart upon a Debt due by Sir William Dick, arrests all sums in my Lord Bargany's hand, and pursues to make forthcoming. This Lord Bargany takes a Right from the appryzer, for whom it was alleged, that he ought to be preferred to the Arrester, because the arrestment was not habilis modu●, in so far as Sir William Dick having apprized for the sum in question, the apprizing is a judicial Disposition, in satisfaction of the sum; and so it could not be arrested, unless it had been movable by a Requisition or Charge. It was answered, that the Act of Parliament, Declaring Arrestment to be valid upon sums, whereon Infeftment did not actually follow, made the Arrestment habile, and the Apprizing can be in no better case, than an heritable Bond Disponing an annualrent. It was answered, that the Act of Parliament was only in the case of Bonds, whereupon no Infeftment followed, but cannot be extended beyond that case, either to a Wodset granted for the sum, where the Property is Disponed, where no Infeftment had followed; or to an Apprizing, which is a judicial Wodset, pignus pretorium. It was answered, that the Reason of the Law was alike in both cases, to abbrige the Liege's unnecessar Expenses by apprizing. The Lords preferred the Apprizer. Bishop of Glasgow contra Commissar of Glasgow. Eodem die. THe Bishop of Glasgow insisted in his Declarator against the Commissar of Glasgow; and alleged first, that by injunctions related to in the Act of Restitution 1609. It was provided, that all Commissars should Reside at the place where the Commissariot Sat, and should not be absent, but upon necessity, and with leave of the Bishop, under the pain of Deposition, and that in case of the absence of the Commissar, through sickness, or other necessity, or through being declined in these Causes, the Bishop should name a Deput: From whence it was alleged, first, That the Commissar had already Transgressed the Injunctions, and deserved Deposition for none Residence, and for appointing Deputes himself, not appointed by the Bishop; yea, for continuing to make use of these Deputs, albeit the Bishop did intimat the Injunctions to him, and did Judicially require the Deput not to sit, and took Instruments thereupon. 2ly. That in time coming it ought to be Declared, that the Commissar ought to Reside, under the pain of Deprivation, and to Act by no Deput, but such as were authorized by the Bishop. It was alleged for the Defender, Absolvitor from this Member of the Declarator, because the Defender had his Office from the King, and the late Bishop of Glasgow, with power of Deputation. And as to the Injunctions, first, They had no authority of Law; for albeit the Act of Parliament 1609. related to Injunctions to be made, yet it did not authorize any Persons to make the same, nor is it constant, that these are the Injunctions that is alleged to be made by the Bishops in anno 1610. 2ly. Albeit they had been then so made, they are in desuetude, because ever since, all Commissars have enjoyed their place with power of Deputation, and exercised the same accordingly. 3ly. There is no Injunction against the Bishops, giving power to the Commissars to Deput; for albeit the Injunctions bear, that in such cases he could not give Deputation; and therefore the Commissar did not wrong, to continue his Deput. And it is most necssar, that the Commissar should have a Power of Deputation, or otherwise, their Office is elusory, seeing the Bishop may be absent, or refuse to Depute any Person, in case of the Commissars necessary absence, and so both delay Justice to the lieges, and Evacuat the Gift. It was answered for the Pursuer, that first, the Injunctions were commonly received and known through all the Kingdom, and are Registrat in the Commissars Books of Edinburgh, being the Supreme Commissariot, and according thereto, the Lords have decided in Advocations and Reductions; and albeit they have not been observed, seeing there is no contrair Decision, they cannot go in desuetude by mere none observance. 2ly, That the Injunctions do import, that no Deputation can be granted by Commissars, but only by the Bishops in casibus expressis. It is clear from the foresaid two Injunctions; for to what effect should the Commissars Residence be required, if he might at his pleasure act by Deputs; and why were these cases expressed, if Deputation were competent in all Cases. 3ly. Albeit the power of Deputation granted by Bishop Fairfowl be sufficient, during his life, and seclude him from quarrelling the same, personali objectione; yet that Exception is not competent against this Archbishop. 4ly, The Injunctions being sent up to the King, His Majesty has Signed and Approven the same, which therefore Revived them, and for the inconveniency upon the Bishop's absence or refusal, is not to be supposed, but that the Bishops concerned in the Commissariots, would provide remeid in such Cases. The Defender answered, that Acts of Parliament were not drawn ad pares casus & consequentias, much less their Injunctions, and though they were now Revived, yet that cannot be drawn back to the power of Deputation granted before: Neither can this Bishop be in better condition than his Prececessor, or quarrel his Predecessors Deed, which he had power to do. The Defender did also resume the Defense, as to sufficiency and trial, that seeing he had power of Deputation, he was not liable to Trial, nor to Reside, if his Deput were sufficient. The Lords found, that albeit the power of Deputation should absolutely stand; yet the principal Commissar behoved to be be sufficient, and ordinarily Resident, seeing his sufficiency was both requisite by the Act of Restitution 1609. and by Exception in the Act of Restitution 1661. and that he ought to direct and overrule his Deputs, for whom he was answerable; and therefore was obliged to Reside, that albeit he did not constantly sit, yet he might advise with his Deputs in important Cases, and the Liege's might have access to him to complain in case of the Deputes Malversation, and as to the power of Deputation itself, and the Injunctions. The Lords found, that the Defender was in bona fide, to enjoy these Privileges till it was declared, notwithstanding he was required to the contrair: but as to the future, they found that he ought to reside, and make use of no Deputs, without the consent of the Archbishop, but whether that should be only pro re nata, or by a warrant for such Persons, not only upon necessary occasions, mentioned in the injunctions, but also in others, that the Deputs might ordinarily sit, and advise with the Commissars, in Cases of importance. The Lords were of different judgements, and recommended to the Bishop in common, to consider what was fit in that Case, but declared only according to the Injunctions without interpretating how far the Deputation should reach. Children of the Earl of Buchan contra Lady of Buchan. February 23. 1666. THe six Children of the Earl of Buchan pursue their Mother for Aliment. It was alleged absolvitor, because their was neither Law, Statute nor Custom of this Kingdom, obliging a Mother to Aliment her Children. 2ly, Albeit there were, she offers her to admit them in her Family, and to entertain them according to her means, but can never be obliged to pay a modification, in Money out of the Family; for in all Cases of Aliment of Wives, or Children against Parents, the offer to accept, and Aliment them in the Family, according to the Parent's Means, doth always exclude Modification? as was lately found in the Case of Sir Andrew Dick and his Son. It was answered, that the Law of Nature is a part of the Law of this, and all other Civil Kingdoms, and according thereto the Lords do always decide, in Cases now occurring, where there was neither Statute nor Custom and if Aliment be due, the manner and measure is in arbitrio judicis, who may justly ordain their Children to be bred from their Mothers, seeing she hath miscarried, and Married a deposed Minister. It was answered, that the Law of Nature, without our Custom is no sufficient Law to us, and does not induce obligationem civilem, but only pietatem & affectum, upon which ground it is, that there was necessity of this Statute to appoint an Aliment for Heirs against the Wairdatars and Liferenters, which insinuats that there was no such Law before, and if the Law of Nature, be the adequat Rule, we are obliged to entertain the Poor, and all in distress; and therefore they might pursue us thereupon. 2dly, There is no Reason to put it in arbitrio judicis, whether a Child should be Educat with the Parent, who must Aliment him, even upon pretence of the Parents miscarriage, for that being the indispensable Right of Parents to educat their Children, as they see cause, especially who demand Aliment of them, it ought not to be in the arbitrement of any Judge, unless it were a Parliament, and this arbitrament would lay the Foundations to encourage Children to desert their Parents, and to claim Aliment out of their Family, and to pretend the Parents miscarriages, as unfit Persons to be bred with, and not breeding them in a fit way; which accusations were prohibit by the Civil Law, and never admitted by our Custom; for albeit the Lords may appoint the way of Education of Pupils, their Parents being dead: yet Tutors have no such interest, as Parents. The Lords found the Mother obliged to Aliment the Children jure naturae, which was sufficient to infer this Civil Obligation, and Action, but found that the offer of Alimenting them in her Family, was sufficient according to her means and they could demand no Aliment, nor Modification extra familiam: For they found that the Lords had thus sustained Aliment to Children against theîr Fathers, not upon the Act of Parliament, which is competent against all Liferenters and Donatars, without consideration of their being Parents, but super jure naturae, which they found, would not extend to the obligation of Charity, and which had no definite rule, but at the discretion of the giver, and was not allowed as a civil obligation by any Nation Grant contra Grant. February 24. 1666. GEorge Crant, having apprised a Wodset Right from Grant of Mornithe; and thereupon obtained a Decreet of Removing, and Mails, and Duties, against Grant of Kirkdails; Reduction was raised thereof, and of the ground of the same. viz, of the Wodset Right on this Reason, that the one half of the Sum was paid, and the Wodset renunced pro tanto, long before the apprizing. It was Replied, that there was an Inhibition, for the Sum, whereupon the apprizing proceeded, after which Inhibition, if any payment was made, or Renunciation granted, the 'samine was reduceable, ex capite Inhibitionis. It was answered, that all that the Inhibition, and Reduction thereupon could work, was in so far, as might extend to the satisfaction of the Sum; and now they were willing to satisfy the whole Sum, cum omni causa. It was answered, that no satisfaction could now be accepted, because apprizing having followed upon the 'samine, and being expired, and no satisfaction being offered within the Legal, or the time of the Reduction, it cannot now be admitted. It was answered, that the Inhibition could not only work, that nothing done after the same should be prejudicial to the Sum, but altered not the Case, as to the apprizing, led long thereafter; unless the Inhibition had been raised upon the apprizing. The Lords found that Inhibition could not be taken away, or satisfied by payment of the Sums after the expiring of the Apprizing, wherein the Precedent remembered of a former Case, that even in the obtaining of the Reduction, ex capite Inhibitionis, the offer to satisfy the Sum, whereon it proceeded was repelled: In respect an apprizing thereupon was expired. Sir Robert Sinclar contra Laird of Waderburn. Eodem die. JOhn Stewart Son to the Earl of Bothwell, being Abbot and Commendator of Coldinghame, the Earl being Forefaulted in Parliament, his Son was dishabilitat to brook any Lands, or Goods in Scotland; whereby john fell from the Right of Provision of the abbacy: Thereafter the King annexed the abbacy of Coldinghame, which was excepted from the general Annexation 1587. to the Crown, excepting the Teinds; and gave Right of Reversion, both of Lands and Teinds, to the Earl of Hoom, who gave a Tack of the Teinds of Kello and Cumerjame to the Laird of Wedderburn. Thereafter john Stewart was, by Act of Parliament restored, and the former Act of Dishabilitation rescinded, whereupon john Stewart demitted his temporal Provision in the King's hands, and got it Erected in an heritable Right: he thereupon Infeft Dowglas of juleck for relief of Sums. Sir Robert Sinclars Lady, as Heir to him, pursues for the Teinds of Kello, and Cumerjame, upon the Infeftment of Relief. He had before obtained Sentence for the Years preceding John Stewarts death, during which, his temporal Provision stood, and as to which there was little controversy by the Act of Rehabilitation; but now the Pursuer insisted for the years after john Stewarts death. It was alleged for the Defender, First, That he has Right by his Tack unexpired, from the Earl of Hoom, who had the only Right of Fee, to the whole abbacy, by his Infeftment granted to him by the King, long before the Infeftment granted to john Stewart. It was answered, that the Earls Infeftment, proceeding upon john Stewarts dishabilitation, that being rescinded, and he rehabilitat, the Earls Infeftment fell in consequentiam, and John Stewarts Right, on his own dimission is the only Right. It was answered, for the Defender, that the Earl of Hooms Right did not proceed solely upon John Stewarts dishabilitation, but on the Act of Annexation following thereon, Anno 1612. And John's Rehabilitation could put him in no better condition, than before the Dishabilitation, and so could extend no further, but to the Personal Provision he then had, It was answered, That in that special Act of Annexation 1612. The Spirituality, or Teind was excepted, as it was in the General Act of Annexation, and so no Right granted by the King, till the Teinds were dimitted in his hand by the Titular could be respected, as being a non habente potestatem, at least not proceeding legitimo modo. It was answered, that the Teinds, though not Annexed, yet by the suppression of the Popish Clergy, they returned to the Crown, for the General Act of Annexation, doth not give the King a Right, but acknowledged his Right by the Ceasing, of the ends for which these Benefices were granted, but the Annexation makes them indissolvable, from the Crown, and indisposable by the King, and so the Teinds being Annexed, they cease not to belong to the King, but they are at his Disposal, and he having disposed of them to the Earl of Hoom, before he disposed of them to John Stewart, the Earls Right is preferable, and so the Defenders, as his Tacksman. It was answered, That all the Erections of Benefices, in Temporalities were only upon Demissions of the Titulars; for though the Popish Clergy was suppressed, yet the King presented Persons to the Benefices, who had the Titles of Abbots, and Commendators, and sat in Parliament, but had not the Office, and in so far they were not suppressed, and so the King could not dispose of the Benefice, till it were demitted by the Titular, in his hands. It was answered, that the King could not dispose in prejudice of the Titular incumbent, but that the Titular, who was a naked Liferenter, his Demission should reach the Fee, it was against reason, and John Stewart being dishabilitat, when the King granted the Earl of Hooms Right, so that there could be no Demission, the King being in the Commendators' place, and could not demit to himself the dishabilitation, at least was equivalent to a Demission, though it had been necessary, as it was not; for albeit de facto, the King Erected upon demissions, yet that he could not after the Abbot's death, have Erected it, or provided another, or even during his Life, reserving his temporal provision there could be no doubt, else the Demission of a Liferenter, or Administrator could never give the King Right of Fee, which the Resigner had, and here, the King had the Right of Fee, but not the Resigner. Yet the Lords found'st that seeing all Erections by Custom, proceeded on Demissions, that the Earl of Hoom's not proceeding so, and John Stewart's proceeding upon his Demission, was preferable, and therefore repelled the Defense. It was further alleged, that john Stewart had Ratified the Defenders Tack. It was answered, that was but personal, and could not be Relevant against the Defender, being a singular Successor. It was answered, that the Pursuers Interest being but for relief, the Defender could satisfy, and pay erest, upon Assignation, and so his singular Title not being absolute, might be so purged. Which the Lords found Relevant. Lord Colvil contra Town of Colross. February 27. 1666. THE Lord Colvil, being Infeft in the heritable Office, of the baillery of Culross, by progress from the Earl of Argyl, first bailie; who was Infeft by the Abbots, before the Reformation; having full power of all Jurisdictions, Civil or Criminal; and of all the Amerciaments, Bloods, and Casualties to his own behoof, he does thereupon pursue a Declarator of the Right, against the Town of Culross, which is within the Lordship of Culross, that he had Right to the Bloods, and to all Jurisdictions, Civil and Criminal amongst the Burgesses thereof. It was alleged, for the Defenders, absolvitor; because their Town was Erected in a Burgh Royal, by the King, with power of Heading and Hanging, and other privileges of burgh's Royal; by virtue whereof, they have been in immemorial Possession, in Exercing all Jurisdiction, Civil, and Criminal amongst their own Burg●sses. The Lords before answer, having ordained either Party to adduce Witness, as to the Possession of their jurisdiction, which being closed, the Debate was reassumed upon the Towns Right, and Possession. It was answered, for the Pursuer, that he, and his Authors being Infeft in the said heritable Office, long before the Erection, and before the Anuexation of the abbacy of Culross, to the Crown, no Right granted thereafter to the Town, could prejudge his established Right; especially, seeing in the very Act of Annexation, such Bailleries are expressly reserved, and declared to be unprejudged: And as to the Towns Possession. It was but clandestine, and not total, for the Bailies did still exercise Jurisdiction, even upon Burgesses of the Town, committing Bloods in the Town, and likewise Strangers committing Bloods, as is instructed by his Court-books, and Witnesses, which is sufficient to hinder Prescription. It was answered, that the Defense stood yet relevant, for the granting of the Bailliery could not be exclusive of the granters own Jurisdiction; but cumulative: and as the Abbots, so the King retained Jurisdiction, and might dissolve a part of the Barony, which thereby ceased to be within the Jurisdiction of the baily of the Barony● and might Erect the same in a Burgh Royal, as he has done in the same way, as the King, after granting an heritable Sheriff-ship, may yet Erect a Barony within the same, which may exclude the the Sheriffs, if the Baron use diligence. The Lords found, that the Erection of the Burgh Royal being after the Constitution of the baillery, could not exclude the same of its Jurisdiction, and Casuality, unless it had been by Possession, sufficient to make prescription, and that the Case was not alike, as if the Barony of a Baron were constitute within an heritable Sheriff-ship; because the Casualties of the heritable Sheriff-ship belonged to the King himself, and could be only understood, without prejudice of subordinat Jurisdiction of Baronies, which were ordinar, and known, but here the Casualties belonging to the Bailli● proprio jure, the Constitution of the Burgh could not prejudge them, even albeit the Lord of the Regalities' consent was thereto produced, seeing the Ballie consented not; but as to the Possession, and Prescription, whether the Town could Prescribe the Right of the Civil Jurisdiction; albeit the bailie exercised the Criminal Jurisdiction of Bloods, or whether the Town could Prescribe their Right of a part of the Civil Jurisdiction, in so far as concerned Trade: The Lords superseded to give answer while the first of june, and that they had time to consider the Depositions of the Witnesses fully. Creditors of Lord Grace contra Lord Grace. Eodem die. CErtain Creditors of the Master of Gray's, being Infeft in Annualrent out of certain of his Lands, pursues poinding of the Ground. It was alleged, for the Lord Grace his Son, absolvitor, because he has Right to an apprizing, and Infeftment of Alexander Milne; which is expired, and prior to the Pursuers Infeftments. It was answered, that the apprizing was satisfied by the Umquhile Master of Grace, and a blank Assignation thereto, was taken, which was amongst the Master's Writs, and this Lord filled up his Name, after the Master's death; this being unquestionably relevant, the difficulty was, concerning the manner of the Probation. The Lords before answer, ordained Witnesses ex officio to be examined, whereupon the Lord Gray's Brother was examined, who acknowledged, he saw the blank Assignation, by his Brother, and Mr. Robert Prestoun being examined, and several other Witnesses, above all exception; and also the Lord Grace himself, who acknowledged he got the Assignation blank after his Father's death, but not amongst his Writs, and that he gave a Bond therefore; Many of the Lords thought, that seeing by the late Act of Parliament, the apprizing, though expired was Redeemable from him, for the Sum he truly paid for it, that it were more just, and safe, that he should be preferred, unless the Creditors would purge, and satisfy the Sum, and that it were a dangerous example to find so important a Writ, as this Assignation, to be taken away by Witnesses; yet the plurality found the Testimonies so pregnant, and unquestionable: They found the Reply proven thereby, and found the apprizing retired, and satisfied by the Debtor, and so extinct. Earl of Landerdail contra Viscount of Oxenfoord. last of February 1666. THE Earl of Lauderdale, being Infeft in the Barony of Muslburgh, which is a part of the abbacy of Dumfermling, and was Erected into a Temporal Lordship, in favour of the Lord Thirlstoun, thereafter Chancellors the Lord Lauderdales' Grand-fathers in Anno 1587. Before the Act of Annexation, wherein the Erection of Musleburgh, to the Lord Thirlstoun is expressly excepted. Thereafter in Anno 1592. the Queen was Infeft by the King, in Liferent, in the abbacy of Dumfermling, with the consent of the Lord Thirlstoun, as to Musleburgh, and his Resignation, as that effect: shortly after, that same year, the King gave the Queen an heritable, and Irredeemable Right of the whole abbacy of Dumfermling, which was Confirmed by a Printed Act of Parliament; the Queen lived till the Year 1618. After which the King was served Heir to his Mother, in the abbacy of Dumfermling, and Infeft therein, being then Prince. The King gave an heritable, and Irredeemable Right to the Lord Oxenfoords Authors, of the Teynds of Coutsland, as a Part of the Lordship of Musleburgh, in Anno 1641. And shortly thereafter, His Majesty did renew the Earl of Lauderdales' Infeftment, of the Lordship of Musleburgh, with a novodamus; Lauderdale being Forefaulted by the Usurpers, Swintoun got a Donative of the Lordship of Musleburgh, and amongst the rest, of the Teyn is of Coutsland; and did raise Inhibition and Reduction of their Rights. After the King's Restauration, the Earl of Lauderdale obtains his Infeftment Confirmed in Parliament, with an express Exception therein, that it should not be derogat, by the Act salvo jure, raises Inhibition of the Teynds, and pursues Action of Spuilzie, and also of Reduction. It was alleged, for the Defender, absolvitor, because he stands Infeft in the Teynds libeled by Infeftment, granted by the King, before the Earl of Lauderdales' Infeftment pursued on, and by virtue of his Infeftment, King Charles the first, and Queen Anne his Authors have been in peaceable Possession, uninterrupted, since the Year of God 1593. And therefore their Right is accomplished, and established by Prescription. It was answered, for the Pursuer, that the Defense ought to be Repelled, because, since the death of Queen Anne, who died in Anno 1618. Till the Interruption made by Swintoun, by Inhibition, and Reduction, in Anno 1656. there are not 40● years run; and till the Queen's death, the Earl of Lauderdales' Grandfather could not pursue, because he had granted Resignation in her favours, for her Liferent, & contra non valentem agere non currit Prescriptio; So Wyves Provisions in their Contract of Marriage, Prescribe not from their Date, but from the time of their Husband's death, all Obligations Prescribe only from the Term of payment, and Infeftments, and Obligements of Relief from the Distress. It was answered, for the Defender, that this Defense stands still Relevant. First, because, as to any interruption made by Swintoun, it cannot be profitable to the Pursuer, because he derives no Right from Swintoun: And as to the Queen's Liferent Infeftment, consented to by Thirlstoun, the Queen never accepted the same, but an heritable Right from the King that same Year, by which heritable Right only she possessed, and did all Deeds of Property, by entering of Vassals, and granting of Fews, which a Liferenter could not do; which heritable Right, Thirlstonn could not misken, because, by a special Printed Act of Parliament, it is Confirmed in Parliament, and past the great Seal, himself being Chancellor. It was answered for the Pursuer, that the Defense, and Duply aught to be Repelled, in respect of the Reply, because the Confirmation of the Queen's heritable Right in Parliament was salvo jure, and he was secured by the Act salvo jure, in the same Parliament, and that he knew thereof, at the passing of the great Seal, is but a weak presumption, and such knowledge could not prejudge him, nor was he in any capacity to pursue upon his own Right, for attaining possession; seeing the Queen's Liferent Right, and heritable, were both compatible; and it was evident, the Queen would exclude him, by his Consent, in the Liferent Right, neither can the Queen's acceptance be questioned, after so long time; seeing the acceptance of the Liferent was to her advantage and profit, before she got the Fee, and did exclude Thirlstouns prior Right, which would have undoubtedly reduced the Queen's Right; and was excepted in the General Act of Annexation; and would not fall under the Act salvo jure. It was also severally alleged, that this Earl of Lauderdales' late Right was Confirmed in Parliament 1661. And all other Rights declared void, and that the Ratification should have the force of a public Law, and not be derogat by the Act salvo jure. It was answered, for the Defender, that in Prescriptione longissimi temporis non requiritur tempus utile, sed continuum, In consideration whereof the time of the said Presciption is made so long, and therefore captivity absence reipublicae causa, want of Jurisdiction, or the like are not respected. 2dly, Thirlstone valebat agere, because he might have Reduced the Queen's Infeftment of Fee, or declared his own Right of Fee to be effectual after her death. And as to the late Act of Parliament, albeit it does exclude the Act salvo jure, yet that is parte inaudita; and upon the impetration of a Party suo periculo, but the Parliament have never assumed power to take away the private Rights of Subjects, except upon another, or better Right, otherways, no man in Scotland can call any thing his own, but a Confirmation in Parliament, with such a clause surreptitiously obtained, shall take away the Unquestionable Right of any other. It was answered, for the Pursuer, that the Parliament had not encroached upon the just Right, of any other, but had only restored the Pursuer to his Grand Fathers Right; and seeing there is no question, but that Right was prior, and better than the Queens, and the Defenders, and was in no hazard, but as to the point of Prescription, that being a rigorous Statute, the Parliament might well excuse the Pursuer, for not pursuing the King and Queen, but rather patiently to abide their pleasure, till they were denuded, in favours of private Parties. It was answered, for the Defender, that all our private Rights, especially of Property, are founded upon positive Law, and there is none stronger than the Right of Prescription; and therefore, if the Parliament can take that away, as to one Person, and not generally, they may annul the Right of any private Person whatsomever. The Lords were unwilling to decide in the whole points of the Debate, but did in the first place, consider the Right of the Parties, without the Act of Parliament, in favours of the Queen, or the late Act, in favours of the Earl and in the point of Right, they repelled the Defense of Prescription, in respect of the Duply of Swintouns interruption, which they found to accresce to the Pursuer cujus jure utebatur, and found, that before the Queen's death, the Prescription could not run, in respect of the Queen's Infeftment of Liferent consented to by Thirlstoun, which would exclude him from any Action, for attaining Possession, and they found, that he was not obliged to use Declarator, or Reduction, which might be competent in the Cases of Distress, or the Rights of Wives, or any other Right, which yet do always exclude Prescription, till Action may be founded thereupon, that may attain Possession. Thomas Millar contra Howison. june 5. 1666. THomas Millar, having pursued the Tenants of one Bailie his Debtor, for making forthcoming, their Duties arrested in their hands. Compears Howison, and produces a Disposition, and Infeftments from bailie of the Tenements, prior to the Arrestment, and craves to be preferred. It was answered for Millar, that Howisons Disposition was null, as being in fraudem Creditorum against the Act of Parliament, being granted after the contracting of Miller's Debt; and albeit, the narrative of the Disposition bears, causes onerous, yet he offered to prove, by Howisons' Oath, that it was not for causes onerous, at least equivalent to the worth of the Land; which was found relevant, and Howison having deponed, that his Disposition was granted for a Sum of 300. marks addebted to himself, and the Sum of 1600. marks adebted to john Burd, for which he was Cautioner for bailie, the Disponer. At the advysing of the Cause. It was alleged, that the Disposition, nor the Disponers' Oath could not sufficiently instruct the cause onerous; seeing the Oath did not bear, that there was a price made, but only that there was no Reversion, nor promise of Redemption granted ● yet the Disposition was truly in Trust, which ofttimes is tacit, as being the meaning of the Parties, and is not express by Reversion, or Back-bond; so that if bailie, or this Arrester would pay these Sums, Howison could have no further Interest. It was answered, that the points referred to Howisons Oath were denied, and that he was not obliged to keep the Bonds, but might destroy them, as being satisfied. The Lords found, that as to Howisons own Bond, he needed not instruct the same, but as to Burds Bond, they found, that he ought to instruct it, by some adminicles, further than his own Oath, that the Debt was, and was paid by him, in respect his Oath bore not a price made, and that he was Uncle to bailie the Disponer. Mr. Alexander Nisbit contra Eodem die. MR. Alexander Nisbit, as assignee to a Sum, pursues the Debtor for payment, compears the Arrester, who had arrested it in the Debtors hand, for a Debt due to him by the Cedent, and whereupon he had obtained Decreet before the Sheriff of Berwick. It was alleged, for the assignee, that the Decreet was null, because the principal Debtor was not called in the Decreet, for making forthcoming, or at least, at that time, he lived not within that Jurisdiction. It was answered, that albeit the Arrester had no more, but his naked Arrestment, he might compear for his Interest, and crave preference to the assignee, whose Intimation was posterior. It was answered, he could not be pursued, hoc ordine● because he, whose Money was arrested, was not yet called, viz. The Assigneys Cedent, who is the Arresters principal Debtor; who, if he were called, might allege, that the Debt whereupon the Arrestment proceeded, was satisfied, which was not competent to the assignee, being jus tertij, to him. The Lords found the Arrester might compear in this Process, without calling his Debtor, but they found, that the assignee might either allege payment in name of his Cedent, or if he craved a time to intimate to his Cedent, they would superseded to extract, till that time, that the Cedent might defend himself. Earl of Cassils' contra Sir Andrew Agnew. june 6. 1666. THe Earl of Cassils', as Superior of some Lands holden of him, by john Gardener, obtained Declarator of his Liferent Escheat, and that a Gift of the said Liferent, granted by the said Earl, to the said john, was null, in so far as it contained a Clause irritant; that if john Gardener should give any Right of the Lands to any of the name of Agnew, the Gift should be null, ipso facto, whereupon in anno 1650. The Earl obtained Declarator of the Clause irritant, by john Gardeners giving Right to Sir Andrew Agnew, and now insists for the Mails and Duties since that Declarator. It was alleged, that the said Earl had accepted the Feu Duty of several Years, since the said Declarator, and thereby had tacitly passed from the Declarator, and could not seek both the Feu-dutie, and also the whole Mails and Duties by the Escheat. It was answered, for the Earl, that having both Rights in his Person, he might poinded the Ground for the Feu-dutie, and his Donatar might pursue for the mails and Duties. 2dly, His acceptance of the Feu-dutie, albeit it could not consist with the mails and Duties, yet it would only extend to these Years, that the Feu-dutie was accepted, and to no others. The Lords found the acceptance of the Feu duty Relevant, only for these Years, for which it was received, but it occurred to some of the Lords, that if it were alleged, there were three consecutive Discharges of the Feu-dutie, that these, as they would presum, all bygone Feu-dutie paid, so they would extend to the mails and Duties, for all years preceding the Discharges; Therefore the Defender was ordained to condescend, if so many Discharges were, and that this point might be debated. William Crawfoord contra Andrew Duncan. June 7. 1666. WIlliam Crawfoord, as assignee to a Bond of 200. marks, granted by Andrew Duncan, pursues for payment. It was alleged, absolvitor; because the Bond was null, having no Date at all, & data est de substantialibus. It was answered, that the Pursuer offered him to prove by the Defenders Oath, that it was his true Subscription, which was sufficient, and the Date is only substantial, when Improbation is alleged, or any Right that might take away the Writ, if it were of such a Date; as a prior Assignation, or general Discharge. The Lords found the Reply Relevant, with this provision, that the Defender might adject, what quality he thought fit, as these mentioned, or that it was done in Minority, or not delivered, etc. but they found him not obliged to depone simpliciter, upon the verity of the subscription, and to prove such qualities, as they had done before, in a Holograph Writ, wanting Date the last Session, in the Process betwixt the Earl of Kinghorn and Sir James Murray. Elizabeth Anderson contra George Cunninghame. june 9 1666. THis Cause betwixt Elizabeth Anderson, and George Cunninghame, anent a Legacy lest by the said George his Wife, to the said Elizabeth Anderson, being debated the 7. of February last. The Lords then found, that George, by confirming his Wife's Testament, in giving up his Debts, to exhaust the free Gear, and abate the Legacy, did not hinder himself to adduce further Debt, for a further abatement: but now it being further alleged, that immediately, before the Confirmation, the Bond he would now add, was registrat, and he charged therewith, he could not be ignorant thereof, at the time of the Confirmation. The Lords altered their Interlocutor, and found that having scienter omitted that Deb●, he could not bring it in to the Legatars prejudice. This was stopped by Bill the next day. Colin Hay contra Magistrates of Elgin. june 12. 1666. COlin Hay pursues the Magistrates of Elgin, for the Debt of a Rebel escaping out of the Prison of Elgin, whom he had arrested there. It was alleged, for the Defenders absolvitor, because the Rebel was not incarcerat by the Pursuer, upon his Caption, but being incarcerat by another, was only arrested in the Tolbooth by the Pursuer, and all that is produced to instruct the same, is only the Execution of a Messenger, who arrested the Rebel. It was answered, there was no difference, whether the Rebel had been incarcerat upon the Pursuers Caption, or had been arrested; for in both Cases the Magistrates are liable: and the keeper of the Tolbooth ought to have a Book, for certifying the Magistrates of all incarcerations, and Arrests in Prison; and if they be neglective therein, it is on their perils; and yet here the Messenger not only Arrested, but the Executions bore, that he intimat the same to the Provost, and Bailies. Which the Lords found sufficient, and Repelled the Defense, and found no difference betwixt Incarceration, and Arresting in Prison. Sinclar of Bryme Supplicant Eodem die. SInclar of Bryme gave in a Bill, bearing, that he had obtained Suspension of all Execution, and specially of apprizing, which he presented at the time of the apprizing, and yet the Messenger, and Writer went on, and apprised; and therefore craved, that the apprizing might be stopped at the Registers, and Seals. The Lords refused to grant the desire of the Bill, without there had been a Summons against the Appryzer past the Signet; but would not upon a Bill cite Parties out of the Town, having no dependence on the House, nor annul, or hinder any pretended Right they had, without citing of them, but resolved to take in consideration the contempt of the Messenger, and Writer, at the discussing of the Cause. Sir Hendrie Hoom contra Tenants of Kello, and Sir Alexander Hoom. june 13. 1666. JOhn Hoom Younger of Kello, being Forefaulted in the Parliament 1661. For being with the English Army, against the King's Army, at Worchester, 1651. Sir Alexander Hoom obtained Gift of the Forefaultry, and thereupon came in possession. Sir Hendrie Hoom having apprised the Lands of Kello, from the said john Hoom, and his Father Alexander Hoom upon their Bond, and having charged the Superiout, in 1653. to Infeft him, obtained Decreet of mails and Duties against the Tenants; which being Suspended upon double poinding; and Sir Hendrie and Sir Alexander competing. It was answered, for Sir Alexander, the Donatar, that he had possessed three years, and offered him to prove, that the Rebel had possessed five years before; therefore craved the benefit of a possessory judgement. 2dly, That he was preferable in point of Right, in so far as he offered him to prove, that the Rebel was five years in possession, before the Forefaulture, which gives the King, and his Donatar complete Right by the Act of Parliament. It was answered, for the Creditor, that he ought to be preferred, because, there being no retour upon the Act of Parliament, finding by the Inquest, that the Rebel was five years in possession, as heritable Possessor, he can neither have the benefit of a possessory Judgement, nor stop the Creditors Diligence, who found themselves upon the apprizing against the Father, who stood publicly Infeft, and there is no sufficient Right in the Rebel's Person alleged, nor produced. It was answered, that the five years' possession might be proven by Witnesses, by way of Exception. 2dly, It was offered, to be proven by an Inquest, conform to the Act of Parliament. The Lords found no benefit of a Possessory judgement competent; neither would they sustain the five years' possession by way of Defense; but discerned superseding Extract, while the 15. of July, within which time, if the Donatar obtained the retour of an Inquest, he should be heard thereupon. The Donatar further alleged seperatim that the Rebel was Infeft by the Father, which was sufficient to prefer him without an Inquest. It was answered, non relevat, unless he had either been publicly Infeft, or by base Infeftment clad with possession, before the Superior was charged upon the Creditors apprizing, which, being equivalent to a public Infeftment, is preferable to the Rebels base Infeftment. It was answered, that the King, or his Donatar needed no possession, nor can be prejudged for want of Diligence. The Lords found the Creditors alleadgeance relevant. jack contra Mowat. Eodem die. THE Lords found, that jack having obtained Decreet, as assignee by his Father, it was relevant for the Debtor, to allege and prove by the Assigneys' Oath, that the Assignation was without a cause onerous, and by the Cedents Oath, that the Debt was paid before Intimation. Sir Henry Hoom contra Sir Alexander Hoom. june 14. 1666. IN the Cause debated yesterday, betwixt Sir Henry Hoom, and Sir Alexander Hoom. It was further alleged, for Sir Alexander Hoom, that the Rebel had not only five years' possession; but was Infeft by an Infeftment holden of his Father, which was clad with Possession, before the Appryzers' charge against the Superior, in so far as the Infeftment bore a reservation of the Father's Liferent, and so the Father's Possession was the Rebel's Possession, and was sufficient to validat the base Infeftment; seeing there could be no other Possession attained, during his Father's life-time; or at least, there was reserved to the Father a yearly Rent, and the Rebel gave his Father a Warrant in Writ to continue his Possession, of such of the Lands for the same. The Lords ordained the Donatar to condescend, whether the Rebel's Infeftment proceeded upon his Contract of Marriage; And he declaring that it was by a distinct Right thereafter. The Lords found the Possession of the Father not relevant, it being betwixt Conjunct Persons, private, and suspect: For they thought, if possession by such Reservation, betwixt Father and Son were sufficient, the Creditors would hardly be secure. Dumbar contra Lord Duffus. Eodem die. THE Lord Duffus having obtained a Decreet of removing, against Dumbar, his Tennent, and having execute the same, by Letters of Possession. The Tenants raises Suspension, and Reduction of the Decreet, and a Summons of Ejection; the Reason of Reduction was, that the Sheriff had done wrong, in repelling and not expressing in the Decreet a relevant Defense. 2dly, That the Tennent could not be discerned to remove; because he was already removed irregularly, by Ejection; and ought not to be put to defend in the removing, till he were repossessed, spoliatus ante omnia est restituendus: which he instructed, by an Instrument taken in the hand of the Clerk of Court; and where it was replied before the Sheriff, that he had not found Caution, for the violent Profits. He answered, that he needed not, seeing the Pursuer himself was in possession, by the Ejection. It was answered, that the Lord Duffus offered him to prove, that all he did, was to put in some Corns, and Plenishing in an ou● house, long after the warning, of the Tennent that had taken the Roum; and that he continued to possess all the rest of the house, and the whole Land, by his cattle, till he was Legally removed; and neither the Family, nor Goods of the new Tennent came in, till then. It was answered, that the alleadgeance was contrair to the Tenants' Lybel of Ejection, bearing, that he was dispossessed, both from the house, and Lands. The Lords considering, that the Tenants was only positive, in Ejection from the House, and had once acknowledged, that he was not Ejected from the Land; they Asso●lzed from the Reduction of the Decreet of Removing; but they sustained the Action of Ejection, and Repelled the Defences, as contrair to the Libel, Reserving to themselves the modification of the violent profits, and the other party to debate, whether, after the Decreet of Removing, the Tennent should have re-possession, or only the profits, or damnages. George Tailzor contra Iames Kniter. Jun● 15. 1666. GEorge Tailzor, having apprised some Lands in Perth, set a Tack of a part of it to james Kniter, who, thereafter apprised the same. Tailzor now pursues a Removing against Kniter, who alleged, absolvitor, because he had apprised the Tenement, within year and day of the Pursuer; and so had Conjunct Right with him. It was answered, that he could not invert his Master's Possession, having taken Tack from him. The Defender answered, it was no inversion, seeing the Pursuer, by Act of Parliament had Right to a part, but not to the whole, and the Defender did not take Assignation to any new Debt, but to an old Debt, due to his Father. The Lords sustained the Defense, he offering the expenses of the Composition, and apprizing, to the first Appryzer, conform to the Act of Parliament. Alexander Stevinson contra Laird of Hermishills. Eodem die. ALexander Stevinson, as assignee by his Father, pursues Hermishills for payment of a Bond, who alleged, absolvitor, because the Defender, as Heir to his Father, had right to a Bond, due by the Pursuers Father, before the Assignation; after which the Assignation was a Deed, infraudem Creditorum; and so null. It was answered, non relevat, unless the Cedent had been Bankrupt, or at least insolvend●. The Lords Repelled the Defense, in respect of the Answer. The Defender further alleged Compensation upon the said Bond; which was relevant● against the Pursuer, both as Heir to, and as assignee by his Father. It was answered, non relevat; against the Pursuer, as Executor, but for his fourth part, being one of four Executors. 2dly, The Defenders Father was Tutor to the Pursuer; & nondum reddidit rationes. The Lords found, that Compensation being equivalent to a discharge, taking away the Debt ipso facto; it might be proponed against any of the Executors, in solidum: but in regard the Tutor's accounts were depending, the Lords sisted his Process, till he Tutors Counts proceeded. Sir Robert Sinclar contra Laird of Houstoun. Eodem die. SIr Robert Sinclar pursues a poinding of the Ground, of the Lands of Leni, upon an old Annualrent, of 20. marks. Constitute above a 100 years ago. Houstoun alleged absolvitor, First, Because he brooked these Lands past Prescription, peaceably, without any pursuit upon this Annualrent. 2dly, Because this Annualrent was base, and never yet clad with Possession; and his Infeftment was public. It was answered to both, that the Pursuer produced a Decreet of poinding the Ground, in Anno 1608. Since which, the Pursuers Minority being deduced, it is not 40. years. Likeas, there is produced a Precept of poinding, for the said Annualrent. It was answered, that the Decreet in Anno 1608. was only against the Tenants, and Possessors; and so is null, the ●eretor not being called. It was answered. First, That albeit the Decreet had been defective, for not calling the Master, yet it was sufficient to interrupt Prescription. 2dly, It was sufficient to give possession, and to validat a base Infeftment, by a civil possession: for as natural possession, by the Tenants' payment would have been sufficient, though without their Master's knowledge, or consent: So a Decreet, yea, a citation against them, is sufficient for a possession, as being equivalent to a natural possession: and albeit the Proprietar could not be prejudged, as to the constituting an Annualrent, in the point of Right, not being called: yet as to the Point of Possession the Right being constitute, he might. 3dly, Albeit the Heretor must be called, when his Ground is first affected with an Annualrent, in attinenda possessione, yet if the Annualrenter be in possession, he may continue the same, without calling the Master; as well as in Tyends, Thirlage. etc. And here the old Precept of poinding was evidence sufficient of a prior Possession, in re tam antiqua. The Lords found, that the Decreet was Possession sufficient, to interrupt Prescription. Minister of contra Lord Elphinstoun. june 16. 1666. MInister of pursues the Lord Elphinstoun, for the Viccarage Teinds of his Lands in his Paroch. It was alleged, absolvitor, because he brooked these Lands by immemorial possession, without paying any Viccarage, and so had prescribed Exemption, and Liberty. It was answered, that the Viccarage being due de jure cummuni; desuetude cannot take them away, nor can any Prescription give Right to them, unless it were by a Title; as if the Lands had been Templar Lands, or belonging to these Orders, which paid no Teynds, but were exempted by the Cannon Law; and therefore, in the last Session, it was found in the Case of the Earl of Panmoor, that 40. Years did not prescribe the Right of Parsonage, except for the Years preceding the 40. It was answered, that there was a great difference betwixt Parsonage and Viccarage, which is Local, and Consuetudinary, which is therefore only found due, according to what has been accustomed to be paid; so that the Teynd of Lint, Hemp, Geess, Stags, Swine, Fruits, Fishes are only due in these parts, where they have been so accustomed: and therefore, as custom may take away a part, so it may extinguish the whole. The Lords found the Defender could be no further liable, then for that Viccarage, which was commonly paid throughout all the Kingdom. viz. Stirk, Lamb, and Wool; and sustained not the same for Milk, or any other particular. But the Defender, upon the twenty one of june, having Supplicat to be further heard, alleging, that it was a common Case, that when the Lands were most in Labourage, and the Viccarage small, and not considerable, that through the whole Country Viccarage was never craved, time out of mind. The Lords stopped Interlocucutor, till they were further heard. Thomas Beg contra Patrick nicol. june 22. 1666. THomas Beg gave Commission, bearing, that he had delivered a certain Sum of Money to Patrick nicol, to buy Wair for him in England; whereunto there is subjoined the said Patrick his acceptance, bearing Sea hazard excepted. Thomas Beg now pursues for the Money, or Wair● Patrick nicol alleged absolvitor; because he offers him to prove, that shortly after the said Commission, he went upon the Voyage, and that the Ship was taken, and the whole Goods there, wherein it must be presumed, the Pursuers Money was. It being impossible for the Defender, to prove that, that individual Money was there, and yet he is willing to make faith, that it was there. It was answered, that the Defender had Factor-fee, and should have transmitted the Money by Bill, as he did some of his own; and at least he might prove, that he had a considerable Sum of Money in the Ship. The Lords sustained the Defense, and Repelled the Reply, and that the Defender being trusted by the Pursuer, he could not refuse his Oath, in Supplement, that his very Money was taken; seeing he neither might, nor could show, what money he had, when he entrèd to his voyage, unless the Pursuer alleged, that he gave the Defender allowance for the Exchange. Earl of Eglingtoun contra Laird of Cunninghamhead. june 23. 1666. THE Earl of Eglingtoun, pursues the Laird of Cunninghamhead for the Teynds of Peastoun, who alleged absolvitor, for 60. lib● Yearly, which by Decreet of the Plate, he paid to the Minister of Irving, and produces the Decreet. It was alleged, that where the Decreet bore, out of the Teinds, it was mere Error of the Clerk, and disconform to the ground of the Decreet; which was a tripartite Contract, whereby the Earl of Eglingtoun agreed for so much Victual, out of his Teynd, beside what was to be paid by the Town of Irving, and Heretors; and the Heretors obliged them, and their Heirs, and Successors of these Lands to pay so much Money; which cannot be understood, out of their Teynd; they being obliged, as Heretors, and the Teynd not being theirs; but the Earl of Eglintouns, who was obliged so much out of his Teynds, besides these oblidgments. It was answered, that this being, to lay a burden of Stipend upon the Stock, is most unfavourable, and the meaning thereof cannot be inferred, unless it had born expressly, out of the Stock; especially, seeing the Teynd was under Tack, and it was ex gratia, for them to pay any more than their Tack-duty, but now when the Tacks are expired, the Earl cannot crave the whole Teynd, and lay this burden upon the Stock. 2dly, The Lords cannot alter the express tenor of the Decreet of Plate, which was a Commission of Parliament. The Lords found, that the tripartite Contract; as to this, did not burden the Teynds, and therefore, seeing the Plate could only decern out of Teynds, they found that by this Contract, the Heretors behoved to relieve the Teynds of this burden, out of their Stock. Arbuthnet contra Mary Keith. Eodem die. Andrew Arbuthnet, having gotten a Gift to the behoof of the Viscount of Arbuthnet, of the Marriage of the Heirs of john Keith of P●tten, did thereupon pursue the two Heirs Portioners, one of them being dead, he insists now against the other, for her part, who alleged no Process, because none was called to represent the other, who is thus far interessed, that the Probation of the avail of the Marriage, against the one will prejudge the other. The Lords Repelled the Defense, and found it would not prejudge the other, against whom new Probation behoved to be used. petoun and Mercer contra petoun. Eodem die. JOhn petoun, as Heretor of the Miln of Mukart, pursues for the abstracted Multures, and alleadges, that the Miln is the Miln of the Barony, and the Lands a part of the Barony, and that they being in immemorial Possession of Intoun Multures, of one peck of the Boll; and that above thirty years ago, there was a Decreet arbitral, by the Marquis of Argyle, Decerning these Multures. The Defenders alleged Absolvitor, because they were Infeft before the Pursuers Right produced, cum molindinis; and as to the Act of Court, the whole Tenants were not present: and the Decreet Arbitral, it is under Reduction. The Lords sustained the Pursuers Condescendence, reserving the Reduction as accords. Masson contra june 27. 1666. MAsson pursuing a Declarator of Escheat. It was answered, that all Parties having Interest were not Cited at the Mercat Cross, conform to the Warrant of the Letters. It was answered, that was but stilus curiae, long indesuetude, and it is enough that the Rebel is Cited, and none would be prejudged, who were not Cited, and any may compear that pleases, for their Entress. The Lords Repelled the Defense, and Forefault the amand given thereupon, as being contrair to the common Custom. Laird of Philorth contra Lord Fraser. june 28. 1666. THe Laird of Philorth pursues a Declarator of Property, of Lands lying about the Kirk-yard of Rathan, and particularly, that a part of the Land within the Kirk-yard-dyke, is his Property, and that therefore the Dyke ought to be Demolished, and specially the Lord Fraser's Arms upon the common Entry of the Kirk-yard-dyke. It was alleged for the Defenders; first, absolvitor, because the Pursuer had homologat the Right of the K●rk, as to the Kirk-yard-dyke, and all within it, in so far as he had buried the Dead of his own Family in the bounds in question; and likewise his Tenants. The Lords found the former part Relevant; but not the latter, unless he had been present at his Tenants Burials, or otherwise had consented. The Defenders further alleged Absolvitor, because the Minister, and Parochioners of Rathan had possessed the Kirk-yard, and Dyke peaceably, by the space of 30 years, which is sufficient, to give them a Right upon this Point. There occurred to the Lords these Points; first, Whether less Possession than 40 years could Constitute the full Right of a Kirk-yard? 2ly. Whether less Possession, by burying of the Dead, could take away another's Property? And whether simply, or so as to give him Damnage, and Interest? 3ly. Whether an Interruption, made after the Building of this Dyke, by the Pursuers raising Summons, shortly thereafter, could operate any thing? if the Defenders had bruiked, since the Interruption, by that space, that would have been sufficient to Constitute a full Right before Interruption. Many were of the opinion that Kirk-yards have as great privilege as any Kirklands; and that in Kirk-lands, 10. years' Possession before the Reformation, or 30. years after, according to the old Act of Sederunt of the Lords, did Constitute a full Right; as well as the long Prescription in other Cases; and likewise that in Ecclesiasticis, 13. years' Possession did Constitute a Right, decennalis & triennalis possessor non tenetur docere de titulo; and that accordingly the Lords were in use to decide in all such Rights; But the Point to be decided was, Whether Interruption once used, endured for 40. years? so that albeit 13. years would suffice; yet the Interruption long before these 13. would alwise be sufficient till the Interruption did prescrive by 40. years; wherein many were in the Negative, that as in a possessoy Judgement on 7. years, if Interruption were alleged, it was always a relevant Reply, that since the Interruption, the Defender has Possessed 7. years without Interruption: so if 10. or 13. years be sufficient to the Kirk, no Interruption preceding, but only such as are done during these years, can be sufficient; for if 13. years will take away the Solemnest Rights, and Writs; much more may it a Citation. Others were for the Affirmative, on this ground, that in the short Prescription of 3. years, in Spuilzies, etc. Interruption once used serves for 40. years; so it must in this case; for he that once Interrupts, is alwise holden as continuing in that Interruption, until it Prescrive, or be otherwise past from. But it was answered, that it did Prescrive by Possessing 13. or 30. years in rebus ecclesiae, Churchmen seldom have, or keep Evidents; albeit in other Cases, Interruption would only prescrive in 40 years. Yet the plurality found, that after Interruption, no less than 40. years' Possession was sufficient, but reserved to the Lords the Question anent the ground, in so far as dead were buried therein, after Probation. john Mcmorlan contra William Melvil. Eodem die WIlliam Melvil, and one Hatter an Englishman, both Residing in England, gave Bond to Gavin Lourie Residing there, after the English Form, who Assigns it to john Mcmorlan. Melvil Suspends upon this Reason, that he had made payment to Gavin Lourie the Cedent, which he offered to prove by Gawin's Oath, and which could not be refused, because he offered to prove that it was the Custom of England, that the Cedents Oath can never be taken away by Assignation, as it is in Scotland, but that Assignations are only as Procuratories, and that payment might be proven there by Witnesses, to take away Writ. It was answered, that the Law of Scotland must regulate the case, because the Assignation is according to the Scots stile, and the Debtor, albeit Residing in England, was a Scots man, and knew the Custom of Scotland. The Lords found that the manner of Probation behoved to be Regulate according to the Custom of England, and so, that payment might be proven by witnesses, or by the Cedents Oath, yet so, as the Cedent could not be holden as confessed, but the Debtor or Suspender behoved to produce him, and move him to Depone: Wherein the Lords so Declared, because they were informed, that the Suspender proponed the Alleadgeance, because the Cedent was Quaker, and would not swear at all. Duke of Hamiltoun contra Duke of Buckcleugh. Eodem die. THe Duke of Hamiltoun, as Collector of the Taxation, having Charged the Duke of Buckcleugh for the Taxation of the Lordship of Dalkeith. He Suspended upon this Reason, that the King Possessed these Lands Himself, the years of the Taxation, and so cannot demand them from the Suspender, who is a Singular Successor. The Charger answered, that he had the Taxation from the King for a Cause Onerous, viz. a Debt. The Lords found the Reason of Suspension Relevant. Dougal Mcpherson contra Sir Rory Mcclaud. june 29. 1666. DOwgal Mcpherson pursues Sir Rory Mcclaud, for payment of a Sum, upon his promise, and the Summons bears a Warrant to Cite him at the Mercat Cross, nearest the place of his Residence, being in the lsles: whereupon the Pursuer craved him to be holden as confessed. The Defender alleged, that he was not Personally apprehended, and so could not be holden as confessed; and that this Citation at the Mercat Cross was periculo petentis, and not to be Sustained in the time of Peace, when there was no Trouble in the Country. The Lords found, that Warrants for such Citations ought not to be granted by common Bills, of course, but only by the Lords, upon special Bills in presentia, but seeing the Defender compeared, they allowed his Procurator a long time to produce him. janet Kid contra Dickson. Eodem die. JAnet Kid pursues Reduction of a Disposition of some Tenements in Forfar, made by her Father on this Ground, that the Disposition is subscribed but by one Nottar, and one Witness, and the Charter by one Nottar, and two Witnesses, and so is null by the Act of Parliament, requiring two Nottars, and four Witnesses, in Writs of importance. It was answered, that the Tenements being small, the price of one expressed, being 200. marks, and the other 300. marks, the foresaids two Writs were sufficient, clad with many years' Possession, in the Defuncts time. who never challenged the same. 2ly, They are Established by the Seasine given propriis manibus, conform to the Obligement of the Disposition, and Charterby a Town-clerk, Registrat in the Town Books. The Lords having Ordained the Defenders to condescend, upon any Adminicles they had, for astructing the verity of the Subscription, they condescended only on seven years' Possession, which the Lords found was not sufficient to Establish the Right, without Reduction: but if the Defender had condescended on 40. years' Possession, The Lords Declared they would hear them Dispute, whether that could be sufficient, or not. Chalmers contra Bassily. june 30. 1666. MR. William Chalmers being to go abroad, grants a Factory to Bassily, bearing, to endure until he returned, and after Discharged the same in Writ; he now writes a Letter to his Father, bearing, That he would do any thing he could to recall, and reduce that Factory, whereon a Reduction was raised on this Reason, That all Factories of their Nature are Revockable at the pleasure of the Constituent, albeit they contain a Term of endurance. It was answered, that this Factory, containing such an endurance, cannot be revoked till the Term come. 2ly. Albeit Factories be Revockable, yet it must be re integra; but here the Factor hath advanced considerable sums of Money, upon consideration of the Factory. The Lords found the Factory Revockable, the Factor being always refounded of what he profitably Expended upon consideration thereof before he quite Possession. Martin Stevinson contra Dobbie. Eodem die. DObby being Tennent to james Stevinson of certain Lands, he gets an Infeftment of Annualrent out of the same Lands, before Whitsonday, but the first Terms payment of the Annualrent was Martinmas thereafter; after Whitsonday and before Martinmas, Martin Stevenson apprizes the Land, and Charges the Superior, and thereupon pursues for Mails and Duties. Dobby excepts upon his Infeftment of Annualrent. The Pursuer answered, that the Infeftment was base, and before it was, or could be clad with Possession, he had Charged the Superior, which was equivalent to a public Infeftment. The Defender answered, that a public Infeftment interveening, before the first term of payment of the Annualrent, did not prejudge the base Infeftment, which could not be presumed to be private, or simulat for want of Possession, till the Term came, at which Possession might be attained, or pursued for. 2ly, The Defender being in Natural Possession, from the very Date of his Seasine, intus habet, and he may retain his own Annualrent, which begins to become due from the Date of his Seasine, de momento in momentum, albeit there be a Term appointed to pay accumulative, so that as the getting payment from the Possessor of any part of the Annualrent, or his Obligement for the same, would be a Possession sufficient; so the Defender having the same in his own hand as Possessor, it is equivalent. The Lords found this Member of the Defense Relevant, and had no necessity to decide the other Point; whether the interveening public Infeftment, before the first Term, would exclude the base Infeftment, without Possession, wherein they thought that there was great odds, if the Appryzers' Infeftment, or Diligence had been before Whitsonday, in respect the first Term of the Annualreni; was not the next Term after the Seasine, and so if it might pass one Term, by the same Reason it might pass ten Terms, and be valid; because in neither Case, could Possession, or Action proceed thereon, and therefore might be suspected of Simulation, so that if the Appryzers' Diligence had been before Whitsonday, the Annualrenter could have no Right to that Term, and so the Appryzer would attain to the Possession, and could hardly be excluded thereafter. Stevin contra Boyd. Eodem die. STevin pursues his Mother as his Tutrix, and john Boyd as Husband, and Factor, for an Account of his Father's means: In which Account these Points were reported: First, There was some old unfashionable Ware in the Defuncts Inventar not Sold, whereof the Tutrix offered to the Pursuer his two third parts in specie. The Pursuer answered, that the Tutrix had priced the same, and behoved to accept them at that price, and that she ought to have done Diligence to have Sold them; and Executors are never liberat but upon payment of the price. The Lords found, that albeit Executors are comptable to Creditors always for the price; yet not so to the Children; and therefore if it was visible that the Ware was old, and could not be Sold, wherein the Tutrix was at the loss of her Third, They found the same should be accepted; but in that Case they found the Tutrix liable for any greater price she got, then that contained in the Testament. The second point was, what Diligence the Tutrix should be liable for, whether Registrat Horning were sufficient, or if Poinding and Apprizing behoved to be used. The Lords found, that Horning would not be sufficient in all Cases, but according to ehe Condition of the Debtors, and therefore ordained the Parties to condescend thereon. Fleming contra Fleming. july 3. 1666. Damn Elizabeth Fleming being Executrix to her Husband, and Tutrix to her Children, gave out the sum of 6000. marks to the Lord Cardross, and took a Bond● bearing the same payable to herself in Liserent, and to Malcolm, and Andrew Flemings, and failzing the one by Decease, to the other; This Bond by a former Interlocutor, was found not to be altogether a Donation; but it satisfied the two Bairns Portions pro tanto. Malcolm being now dead, Andrew the survivor claimed the sum by the Substitution. Thereafter the Children as Executors to Malcolm, claimed the same, on this ground, that this sum not being found a Donation, but to be given in satisfaction of of Andro's Portion, the Tutor could not Substitute any Heir to Malcolm, but behoved to remain as it had been lent, as Malcoms own means, in which case it would belong to his whole Brethren and Sisters, and not to Andrew only. Andrew all eadged, that he being Substitute by his Mother, who had now Right from the remanent Children, she who had Constitute this Substitution could never quarrel the same. It was answered for the Mother, that she did not quarrel the Substitution; but that albeit the Substitution took place, Andrew was her Substitute, and so was in the same condition as Malcolm, so that malcolm's half behoved still to be taken away by Compensation, in so far as she was Creditor to Malcolm, as if Malcolm were alive. It was further alleged for Andrew, that in such a Clause as this, there was no Fire, and Heir, but two conditional, or alternative Fiars, viz. either of the Children that Survived; and therefore such Clauses would never make the Substitute Heir to represent the Defunct, and be liable to his Debts. The Lords found, that by the Clause of Substitution, the Person Substitute was Heir of Provision, yet not so as to be liable to the Person Substitute his whole Debt; but quoad valorem, of what the Substitute had obtained by the Substitution; And therefore found the Sums to belong to Andrew as Heir Substitute, and yet with the Burden of the Compensation, in the same Case as was Competent against Malcolm himself. By which Decision it follows, that the Mother's Substitution to Malcolm was Effectual, for which there is no reason, but the Error was in the first Concoction, for this Sum should have been found a pure Donation by the Mother, not only in respect of her Liferent reserved, which she passed from, but in respect of the Substitution, which she could not pass from, being jus tertij. Earl of Kinghorn contra Laird of Udney. Eodem die. THe umquhil Earl of Kinghorn having granted a Wodset to the umLaird of Vdney, he by his Missives acknowledged the Sums to be satisfied, and obliged him to grant a Renunciation, whereupon the Earl of Kinghorn pursues this Vdney, as representing his Father to grant Renunciation, and Procuratory of Resignation; and condescended upon the passive Titles thus, that umquhil Vdney, after the Receipt of the Sums contained in the Wodset, had Infeft the Defender in the Estate of Vdney, reserving to himself a power to alienat, and Dispone; after which Infeftment, this Missive is subscribed, acknowledging the Receipt of the Sums of before; and thereupon alleged, first, That the Father was obliged by the Contract of Wodset, upon payment of the Sums to Renunce, and Resign, in prejudice of which Obliegements, he had Disponed his Estate to the Defender, who was alioqui successurus, and so as lucrative Successor, is obliged to grant the Resignation. 2ly, The Letter obliging the Father to grant Resignation, albeit it be after the Infeftment; yet seeing there is a power reserved to the Father to Dispone his Obligement, must oblige the Son. It was answered, that there was nothing before the Defenders Infeftment, to instruct payment, the Letter being after, and no Obligement therein could burden him thereafter, unless his Father had Disponed, or had given a Security out of the Estate, conform to the Reservation. The Lords found this passive Title new and extraordinary, therefore moved to the Pursuer to alter this Libel, and Libel therein a Declarator of Redemption, and to conclude the same, either with a Reduction or Declarator, for declaring that the Wodset Right being acknowledged by the Wodsetter to be satisfied, might be declared Extinct; in which case there needed no Resignation; or otherwise might conclude the Defender to grant Resignation, and the Defender thereupon Renuncing to be Heir, the Pursuer might adjudge, and thereupon be Infeft: But others, thought that hardly could a Right be adjudged, which was satisfied and extinct. The Lords referred to the Pursuers choice, which of the ways he thought fit. jean Cuningham contra Laird of Robertland. july 4. 1666. JEan Cuningham as Donatrix to the Escheat of umquhil Sir David Cuningham of Robertland, pursued general Declarator against his Son, who alleged Absolvitor, because the Horning was null, seeing the Charge and Denunciation was only at the Mercat Cross of Edinburgh, whereas by the Act of Parliament, 1597. c. 294. all Hornings Execute against Persons within the Realm, dwelling within Bailleries, or Stewartries, should be Execute at the head Burgh thereof. Ita est, umquhil Robertland, had his Dwellinghouse at Robertland, within the baillery of Cuningham, albeit for a time he was out of the Country, and was a Prisoner of War for the King. The Lords Repelled the Defense, and sustained the Horning, and found that the Act of Parliament met it not; seeing neither the Person Denunced was within the Realm, nor dwelled within the baillery at that time; but had remained several years in England. Hallyburton contra Hallyburton. Eodem die. HALLYBURTON pursues a Reduction of an Infeftment, granted by by his Father upon his Deathbed, to his Sisters, who alleged absolvitor, because he had consented to the Disposition, in so far as he had Subscribed Witness thereto, and if need beiss, offered to prove that he had read the same. It was answered, non relevat, because the Subscribing as Witness, relates only to the verity of the Parties Subscription, and nothing to the matter therein contained, so that whether the same was Read or not, it can import no Probation. The Lords found the Defense Relevant, reserving to themselves to consider what the naked Subscription without the Reading of the Writ should work, in case the Reading thereof were not proven. Earl of Hume contra His Wodsetters. July 5. 1666. THE Earl of Hume pursues certain Wodsetters to Compt and Reckon for the Superplus, more than their Annualrents, conform to the late Act between Debtor and Creditor; Who alleged, first, Absolvitor, because the Reversion produced is null, not being Registrat conform to the Act of Parliament 1555. c. 29. Ordaining all Reversions to be Sealed, and Subscribed by the Parties own hand, or a Notar, which shall make no Faith, if it be not Registrat. It was answered, that that Act of Parliament was in desuetude, not only upon the Point of not Registration, but want of Seasine; otherwise the Act of Parliament 1617. Anent the Registration of Seasines, had dot been necessary. The Lords Repelled the Defense, and found the said old Act of Parliament to be in desuetude. One of the Defenders further alleged, that the Rights of these Reversions are prescribed, because they were not pursued within the 13 years appointed by the Par. 1617. c. 12. It was answered, that the Pursuer, or his Predecessor were Minors, during the space of 4 or 5 years of the said 13 & prescriptio non curit contra minorem. It was answered for the Defenders, that in this part of the Act, there is no exception of Minors; albeit in the former part of the Act, anent the 40 years, Minority be expressly excepted. & exceptio firmat regulam in casibus non exceptis, especially seeing Reversions being but pacta de retro vendendo, and so Bonds were prescribed by the old Act of Parliament, so the addition of 13 years was ex mera gratia, and aught to be strictly interpret. The Lords did also Repel this Defense, and found that the 13 years run not against Minors. It was further alleged for one of the Defenders, that the Reversion made use of against him, was since the Act of Parliament 1617. and not Registrat, and so could not operat against him, who is singular Successor to the Granter thereof. The Pursuer Replied, that before the Defenders Right, he had used an Order of Redemption, and had Execute a Summons of Declarator, whereby res fuit litigiosa; and no Right granted thereafter, can prejudge the Pursuer. The Lords found the Reply Relevant to elide the Defense. Laurence Scot contra The Heirs of Line of Auchinleck. Eodem die. LAurence Scot pursues the Daughters of umquhil David Boswel of Auchinleck, and the Lord Cathcart, and the Lairds of Adamton, and Sornbeg, for a thousand marks adebted by him to the Defunct. The Defenders offered to Renunce. The Pursuer Replied, they could not Renunce, because they had behaved themselves as Heirs, in so far as by agreement betwixt them, and the Heir-male, they had Renunced their Interest of the heritage in his favours, and had gotten sums of money therefore. It was answered, non relevat, unless they had so Renunced, as to prejudge the Creditors, or to Assign, Dispone, or Discharge any thing they might succeed to, but if they only got Sums of Money from the Heir-male, in way of gratuity for their kindliness to the Estate, and to grant a Renunciation voluntarly, as Law would compel them, it would not make them liable; and the truth is, that by the Defuncts Contract of Marriage, the Estate is provided only to the Heirs-male, and only 10000 marks to the Daughters: Likeas, the Defunct Disponed the Estate to his Brother's Son, who adjudged both upon the Clause of the Contract, and Disposition, and the Defenders Renunced to him; as a Creditor, in common form. The Lords found that the getting of Sums of Money, for such a Renunciation, by which the Creditors were not prejudged, did not infer behaving as Heir. Collen Hay contra Magistrates of Elgin. Eodem die. COllin Hay insists in his pursuit against the Magistrates of Elgin, for payment of a Debt due to him by a Debtor, who escaped out of their Prison. It was alleged by the Defenders, that the Prisoner escaped vimajori, without their fault, in so far as on a Sabbath, when the People were all at Preaching, the Officer Keeper of the Prison opening the Door, a Woman did cast a Played over the Officers head, and pulled him at unawars to the ground, in the mean time the Rebel escaped, whom the Officer followed, and was wounded by several persons, whom he had lying darned in the Town, to assist him. The Lords found the Condescendence not Relevant, and that the Magistrates should have had their Tolbooth better Secured, than the same could be forced by one Woman; for there was no other alleged present, before the Prisoner got out, neither was it a competent time to open the Tolbooth upon the Sabbath, when the People could not concur in case of Force. Parson of Morum. contra Laird of Beirford and Beinstoun. july 6. 1666. THe Parson of Morum pursues Reduction of a Tack set by the former Parson to Beirford and Beinstoun, as being granted without consent of the Patron. The Defenders alleged absolvitor, because the Tacks were set by the Parson, who had Commission from the Earl of Buckcleugh, Patron to Set Tacks. 2ly, The Tacks were Set with consent of Francis Stevart, Lord Bothwel expressly, as Patron, which Francis Stevart had Right to the, Patronage, in so far as this Patronage, with the rest of the Estate of Bathwel, being Forefault, the Earls of Buckcleugh, and, Roxburgh got Gifts thereof, but by the King's Decreet Arbitral, betwixt Francis Stevart and them, Buckcleugh was ordained to denude himself of this Patronage, and others in favours of this Francis. The Pursuer answered, first, That no Commission granted by the Patron to the Parson himself, could be sufficient, because the intent of the Act of Parliament, requiring the consent of Patrons, was not for any advantage, or Interest of the Patron, to his own behoof, but to the behoof of the Benefice, that the Incumbent might meliorat the same; and so the Patron was by his Right of Patronage, as Curator Ecclesiae; but Curators cannot authorise their Minors by Commission, at least the Patron cannot give commission to the Beneficed Parson himself, no more than he could Renunce the benefit of the Act of Parliament, and leave the Parson to himself. 2. Before the Tack was Set, the Earl of Buckcleugh, Granter of the Commission was dead, & morte mandatoris perimitur mandatum. As for Francis Stevarts consent, he was not Patron, not being Infeft; but the King's Decreet Arbitral, imported only a Personal obligement for Buckcleugh to denude; so that if Buckcleugh thereafter should have consented to another Tack, that would have been preferred. The Lords found that Member of the Alleadgence, of Buckcleughs, being dead before the Tack, not Relevant, to annul the same, as depending on his Commission; but decided not the first Point, whether Commission could be granted by the Patron, to the Parson himself; but found the last Member Relevant, to defend the Tack; for the Right of Patronage, being jus incorporale, might be Transmitted by Disposition, without Infeftment, and albeit Buckcleugh was not formerly denuded, even by Disposition, so that if he had consented to another Right, that, as more formal, would have been preferred, yet, there being no competition, the Parson cannot quarrel the want of the Patron's consent upon that ground. Isobel Tosh contra David Crookshank. Eodem die. ISobel Tosh pursuing Reduction of a Decreet, pronounced in foro contradictorio, and in presentia, on this ground, that it was Extracted by the Clerks unwarrantably, contrair to what was done by the Lords, which they offered to prove by the Oaths of the Advocats on the other side. It was answered, this were a ground to Reduce all the Lords Decreets, in foro. Yet the Lords sustained the reason to be proven, as said is. Corbet contra Sterling. Eodem die. COrbet of Concorse pursues a Spuilzie of certain Goods out of his House at Glasgow, against William Stirling, who alleged Absolvitor, because he had lawfully poinded them from his Debtor, in whose Possession they were. The Pursuer answered, that he offered him to prove, that he had Disposition of these Goods from that Party, from whom the Defender alleged to have poinded them, and an Instrument of Possession thereupon; and that he had paid Mail for the House where they were several years, and still when he came to Glasgow he did Reside in the House, and made use of the Goods. The Defender answered, that his Defense did yet stand Relevant, because the Condescendence makes it appear, that the Pursuers Right was from the Defenders Debtor, and any Possession he alleadges might be simulat; and the Defender in Fortification of his Legal Execution, offered him to prove, that his Debtor remained in the natural Possession of the House, and made use of the Goods, as his own Goods, and so was in natural Possession thereof, whereby he might lawfully poinded from him. The Pursuer Repeated his Reply; and further alleged, that one of the Bailies of Glasgow alleged that they were his Goods, at the time of the poinding, and offered his Oath. The Defender answered, that that bailie was neither the Pursuers Servant, neither had Commission. The Lords found the Defense for the Poynder Relevant, and more pregnant than the condescenders alleadgence, and Repelled that Member of the Duply, anent the Bailies offering of his Oath. Cranstoun contra Wilkison. july 10. 1666. IN a Pursuit betwixt Cranstoun and Wilkison; The Defender being convened as Heir to his Father, who was Vicious Intrometter with the Pursuers Debtors Goods and Geir. The Lords having of their own proper motion, taken this passive Title to Consideration, as to this Point, whether Vicious Intromission, as it is an universal passive Title, died with the Intromettor, or if it might be pursued against his Representatives, they ordained the Parties to be heard thereupon. which being Reported this day, The Lords found, that no person● as representing a Defunct, could be liable universaliter, upon that Defuncts Vicious Intromission, but only for the true value of his Intromission, and that either by Action or Exception; upon this Consideration, that albeit ●uch Titles have been oft times Libelled, and sometimes Sentence thereupon, when none opposed; yet there had never been a Decision, nor Interlocutor for it; and that the passive Title being penal, sapiens naturam delicti, non transit in haeredes delinquentis in quantum penale; for they thought it were of dangerous consequence, if Persons might be liable, not only to their immediate Predecessor, but to their Goodsire, Grandsire, or Fore-grandsires, vicious Intromission; but if the vicious Intromission had been Established against the Defunct, in his own time, it would be sufficient against all his Successors: Otherways after his death, they could not be put to purge the Vitiosity. or to show the manner, or the Warrant of his Possession. But it was not determined, if Action had been intented against the Defunct, and he died before Sentence, whether his Heir would be liable, there being different Cases as to that Point, which required different Considerations● as if the Defunct died after Probation, or if after Litiscontestation, when at least the particulars were condescended on, and the Defunct compearing, alleged nothing to purge: or if the Pursuit were de recenti, and not long delayed, but the Defunct died, the Pursuer doing all Diligence; or if Diligence were not used, but the matter lay over; in which case, it seems little respect could be had to the intenting the Action only; and it would be as little questionable, that if Probation were led, the Defunct compearing, it would be as valid against him, as if Sentence were obtained, the middle Cases are more dark: But none of them were comprehended in this Decision. james Thomson contra Binnie. Eodem die. THere being a Decreet obtained against Binnie, his Creditors finding him at Linlithgow, secured him, and he found two Burgesses Caution as Law will, who being convened for payment of the Debt, alleged absolvitor, because they were only in common Form Obliged as Cautioners as Law will, which doth not import judicio sisti, & judicatum solvi, but judicio sisti, aut judicatum solvi. Ita est, They sisted the Party for whom they were Cautioners, and put him in the Provosts hands, who put him in Ward, and Protested to be free conform to an Instrument produced. It was answered, non relevat, because they only sisted him judici, but not judicio; they ought to have presented him in the Court, when that Cause was called; and the Pursuer was not obliged to know, or take notice what they did otherways, which might be by way of Collusion. The Lords found the alleadgence Relevant, for there was no Collusion condescended on, providing the Defenders prove by the Witnesses, insert i● the Instrument, that it was so Acted: For they thought, that if the Cautioners put the Debtor in Ward, at any time during the Process, the Pursuer was not prejudged; For if he insisted in his Process, and upon not presenting of the Defender Protested, the Cautioners would either then allege that he was in Prison, or otherways it would import Collusion. Mr. john Hay contra Sir james Dowglas. Eodem die. MR. john Hay of Haistoun, and Sir james Dowglas having both Rights of apprizing of the Estate of Smithfield, did agree, that Sir james should have three parts, and Mr. john one, and did obtain a Decreet at both their Instances for removing a Tennent, from some Aikers; but Sir james Laboured and did Sow the whole; Mr. john did thereafter Sow as much Corn upon the Sown Land, as would have sown his quarter, and now pursues an Intrusion against Sir james, who alleged absolvitor, because Mr. john was never in natural possession, and offered to give the 4. part of the Rent the Aikers paid before. The Pursuer answered, that the removing of the natural Possessor was equivalent, as if Mr. john had been in natural Possession of his Quarter; and therefore the offering to him the Rent was not sufficient, yet he was willing to accept the Rent for this year, so as Sir james would divide for time coming. The Lords found that in this Process they could not compel Sir james to divide, but sustained the Process, ad hunc effectum, that Mr. john should have the 4. part of the Cropped, paying Sir james the Expenses of Labourage. Damn Margaret Hume contra Crawford of Kerse. Eodim die. DAM Margaret Hume having charged the Laird of Kerse, who was Cautioner for the Earl of Lowdoun, for her Liferent, that she had out of the Estate of Lowdoun. He Suspends, and alleadges that the Charger ought to assign him, seeing the Bond wants a Clause of Relief, whereby he will have difficulty to have Relief of the other Cautioners bound. The Lords found that they could not compel the Charger to assign, but in so far as of her own consent she would. Canna contra Eodem die. THere was a Disposition of some Tenements in Dumbar, containing this provision, that the Buyer should pay such a sum of Money● to a Creditor of the Sellers, under the pain, and penalty, that the said Disposition should be null. Infeftment followed upon the Disposition, and the Land is now Transmitted to singular Successors, who pursuing for Mails and Duties. It was alleged for the Creditor by the Reservation, that this Reservation being a real Provision, the Creditor must be preferred to the Mails and Duties, ay and while the Sum be paid. It was answered, first, That this provision was neither in the Charter, nor Seasine, and any Provision in the Disposition, could only be Personal, and could not affect the Ground, nor singular Successors; seeing no Inhibition, nor other Diligence was used on it before their Right. 2ly. Albeit it had been a Provision in the Investiture; yet it could have no Effect against the Ground; which can●not be affected but by an Infeftment, and upon a Provision, neither Action, nor poinding of Annualrents, nor Mails and Duties could proceed. It was answered, that real Provisions must necessarily affect the Ground, and there can none be more real than this, not only being a condition of the Disposition; but also containing a Clause Irritant. The Lords having first ordained the Infeftment to be produced, and finding that the Seasine proceeded upon the Precept in the Disposition, without Charter, being within burgh, the Lords found that the Provision could give no present access to the Mails and Duties, until the Clause Irritant were declared; or that it were declared, that they should have like Execution, by virtue thereof, against the Lands, as if it were in the hands of the first Buyer, which the Lords thought would operat, but had not the occasion here to decide it. john Scot contra Sir Robert Montgomery. july 12. 1666. JOHN Scot pursues Sir Robert Montgomery, as vicious Intrometter with the Goods and Gear of Sir james Scot of Rossie, to pay a Debt due by Sir james to the Pursuer. The Defender alleged absolvitor, because, any Goods he Intrometted with, were Disponed to him, for Onerous Causes, by the Defunct, and delivered conform to an Instrument of Possession produced. It was answered, that the Disposition bears, Horse, Neat, Insight, Plenishing, and all other Goods and Gear, which cannot be extended to any thing of another kind, nor of greater value, as current Money, Jewels, Silver-plate, Chains, etc. which never passed by such general Clauses, unless it be specially Disponed. It was answered, that albeit there had been such Movables, and the Defender had Intrometted therewith, though another having a better Right, might Evict the same; yet the Defender had a probable Ground to Intromet, which is sufficient to purge this Odious passive Title. The Lords found the Disposition and Delivery Relevant, to purge the Vitiosity. Normand Livingstoun contra Lady Glenagies. july 13. 1666. NOrmand Livingstoun having apprised the Lands of Glenagies, pursues the Tenants for Mails and Duties, wherein the Lady compeared, and alleged, that she ought to be preferred, because she is Infeft in a Liferent in the Lands by her Contract of Marriage. It was Replied, that the Lady and her Husband, for all Right that either of them had, had given a Right to their Cautioners to uplist the Mails and Duties of the Lands in question, for payment of Debts, and this Debt particularly, whereon this Appryzer proceeds; with power also, to the Cautioners, to Dispone any part of the Lands for payment of the Debts; which the Lady Ratified Judicially, and which now Excludes her from hindering any of these Creditors to get payment. It was answered for the Lady; first, That this Right was but a Factory, or Commission, and so expired by the Lairds Death. 2ly, It was only in favours of the Cautioners, for their Relief; but the Creditors had no Interest to allege thereupon. 3ly, The Cautioners were never Distressed; and it was a mistake; being to them as Creditors in the Sum; not being so in effect. The Lords having considered the Commission, and that it buir not only the Lady to consent, but for all her Right, to grant Commission, and that, not only it was in favours of the Cautioners, in case of Distress; but also in favours of the Creditors: bearing, to be for payment of the Creditors: Therefore they found the same Relevant against the Lady; to exclude her Infeftment, ay and while the Debts were paid. But this occurred to the Lords, that if the Lady could condescend, that by the Creditors, or Cautioners fault, in not making use of this Commission, the Laird was suffered to continue in Possession, so that if they had used Diligence, the Debts would have been paid, in whole, or in part, and the Ladies Liferent disburdened, pro tanto; they would find the same Relevant. Patrick Keith contra Laird Lesmore, Troup and others. july 14. 1666. PATRICK Keith having Right of Wodset, granted by the Earl of Marischal, pursues a Reduction against the Laird of Lesmore, of a posterior Right, granted by the Earl to him; Which Right was Disponed to Muiresk, who was Infeft, and Disponed to Troup, who is present Heretor; who being all Called, and Litiscontestation made, and the Cause concluded; at the Advising thereof, it was alleged for Troup, that Muiresk was dead, and there could be no advising of the Cause, till some Representing him were Called; for as in initio, there could be no Process against Troup, the present Heretor, till Muiresk his Author were Called: So neither can there be any procedor now, till some Representing him be Called. It was answered, the Pursuer declares that he Insists against Lesmores' Right principaliter; against which only the Reasons are Sustained; and as for Muiresk, and Troops Rights, they will fall in, consequentiam● The Lords found that the Process behoved to be Transferred against Muiresks appearand Heir, before it could be advised: For as the declaring that the Pursuer Insisted principaliter against the first Right, would not have been Relevant ab initio; seeing the Law allows all mediate Authors to be Called, that they may defend the Right, whether and Reasons be Libelled against their Rights, or their Authors; which comes in the place of the old Custom, of sisting Process until the Defenders Warrant were Called, and Discussed: So every Author has alike Interest, to Object against the Reasons. although Libelled principaliter, against the first Authors Right. But the Lords declared, that, seeing the Defender made this unnecessar delay, they would be more favourable in drawing back the Reduction, ad litem motam, aut contestatam. Sharp contra Glen. Eodem die. IN a Competition betwixt two Compryzers; It was alleged, that the Pursuer, who Insisted for the Mails and Duties, his apprizing was extinct, by Intromission within the Legal; Which was offered to be proven by his Pursuers Author, his Oath. It was answered, that his Author's Oath could not be Received against a Singular Successor, standing now Infeft; for as the Cedents Oath is not Receivable against the assignee in personal Rights; much less is the Author's Oath against the singular Successor in real Rights. It was answered, that before this Pursuers Right, res fuit litigiosa, in so far, as the Pursuers Author having before pursued Mails and Duties, in that Process, the Defender offered to prove by his Oath, that the apprizing was satisfied, whereupon litiscontestation was made, whereby res fuit litigiosa, and no posterior Right could prejudge the Defender. Which the Lords found Relevant, and ordained the Author's Oath to be taken. Fountain and Brown contra Maxuell of Nethergate. Eodem die. BRown, as Heir to Mr. Richard Brown, who was Heir to Thomas Brown pursued for exhibition. and delivery of a Wodset Right, granted in favours of Thomas; Wherein the Lords having sustained Witnesses to be admitted to prove, not only the having of the Writs, since the intenting of the Cause, but the having them before, and the fraudful putting them away, which ordinarily is only probable by Writ, or Oath; unless evidences of Fraud be condescended on, in respect the matter was ancient, and the Pursuer had long lived in England, now at the advising of the Cause; several of the Witnesses were found to Depone, that the Defender, before the intenting of the Cause, not only had such a Wodset Right; but was dealing to get the same conveyed in his own Person, which importing Fraud. The Lords would not absolutely decern him to exhibit, but found that he behoved, docere quomodo desijt possedere, or otherways produce, and therefore ordained him to compear, that he might be interrogat, and condescend upon the particular Writs. Thomas Ogilvy contra Lord Grace. july 17. 1666. THomas Ogilvie pursues the Lord Grace, as behaving himself as Heir to his Father, by Intromission with the Mails and Duties, of the Lands wherein his Father died Infeft: as of Fee; for payment of a Debt of his Fathers; who alleged absolvitor, because any Intromission he had, was by a Warrant, and tolerance of Sir George Kinnaird, who stood Infeft in the Lands, upon a Gift of Recognition. It was answered, non relevat, unless the Gift had been Declared, before the Defenders Intromission; because the Gift would not have given Right to the Donatar himself, to possess. The Defender answered, that the Gift was Declared before the Intention of the Pursuers cause, which Declarator, albeit after Intromission, yet must be drawn back to the Gift, to purge the vitiosity of the Defenders Intromission, in the same way, that the Confirmation of a Testament will purge anterior vicious intromission, the Confirmation being before the intenting of the Cause. The Lords found the Defense relevant, to elid the passive Title, seeing any colourable. Title is sufficient, to excuse the vitiosity: but did not find, that the Declarator, before intenting the Cause, had the same Effect, as a Confirmation; because by constant Customs, such confirmations, purge the preceding vitiosity; which has never yet been found in this Case of an Heirs intromission with the Rents of Lands: but the Lords found the Defender liable for the single value of his Intromission. Alexander Burnet contra johnstouns. Eodem die. JOhn johnstoun, having disponed the Lands of Fraster-hill, to Gordoun of Lesmore, whose Right Alexander Burnet having apprised, and by the apprizing, having Right to the Clause of Warrandice contained in the Disposition; charges johnstoun the Disponer, to warrant the Right against a posterior Right, granted by him, to William johnstoun, who had obtained first Infeftment. It was answered, that the Warrandice could have no effect, because there neither was, nor could be a distress, in so far, as in William johnstouns Disposition, john johnstouns, and his Wife's Liferent were reserved, during whose life he could never distress Burnet. 2ly. It was Burnet's author's fault, that for many years, he did not take Infeftment, having long Right before the second Disposition. It was answered, that johnstoun himself could never object this delay, to excuse his fraudulent Deed, of granting double Dispositions, whereby Parties become infamous by the Act of Parliament, 1540 cap. 105. and unto the other point, albeit there was no present distress, yet there was unquestionable ground of a future distress, against which the Defender could answer nothing, that could elid it, and who being but a naked Liferenter, if no execution should pass upon the Clause of Warrandice during his Life-time, he would be fully frustrate. The Lords discerned Johnstoun the Disponer, to purge the posterior Disposition, granted by him, and found neither of the alleadgeances, in the contrair relevant. Brown and Duff contra Bizet. July 18. 1666. BRown, and Duff, having obtained Decreet against Bizet, for a Sum due to Umquhil Andrew Duff Merchant in Polland, Bizet raises Suspension, and Reduction, upon this Reason, that this Sum having been in bonis defuncti, the Charger could have no Right thereto, till it were established in their Persons, by a Confirmation in Scotland, by the Commissaries of Edinburgh, ut in communi patria. It was answered, moveables sequuntur personam, and therefore, wheresoever the moveables be, they are regulat according to the Law of the place where the Defunct resides, and it is instructed by the Testimony of the Consul, and Counsel civitatis Regiae pusensis, that by the Common Law, and Law of that place, moveables belonged to the Wife, and Bairns, and the Pursuers were so cognosced by them, declaring the said Clares Brown Wife, and the said Duff, the only Daughter of Andrew Duff, and therefore they have sufficient Right without Confirmation in Scotland, which appears by the Act of Parliament, James 1. cap. 89. Par. 1426. And it hath been still the Custom so to do, and that it was so decided, the 16. of Feb. 1627. Lauson contra Bastil Kello. It was answered, that it was otherways decided, in the Case of Rob contra French, 25. Feb. 1637. And there was no reason, that these that lived out of the Country animo remanendi, should be in better condition, than these that resided in the same, and behoved to Confirm, and to pay the Quot. The Lords found, that the Testament behoved to be Confirmed, by the Commissars of Edinburgh; for having considered the old Act of Parliament, they found, that the point there ordered was, to what Judicatures the Merchants going abroad to Trade, should be liable, and that such as went abroad, not animo remanendi, should be subject to the jurisdiction of that place, where their Testament would be confirmed. (viz. where they had their Domicills) but these that went out of the Country, to remain, are excepted; but nothing expressed where their Testament should be Confirmed; and for the Decision, the Point in question, was not whether a Confirmation in England was valid, but whether a Confirmation without an Inventar, was valid, and therefore, seeing nothing was objected against the Confirmation itself. The Lords did justly find, that the wanting of an Inventar, in an English Confirmation, where that was the custom, did not prejudge it, neither is the Case determined by the Decision betwixt Rob and French, in respect, that the Executor having Confirmed in England, and rather being Confirmed by the Legatars, would not own the Confirmation, but renunced the same; and therefore the Lords found no Consuetude, or Decision in the Case, but determined the same, ex bono & aequo. Helen Millar contra Watson july 21. 1666. WAtson having obtained a Decreet before the Lords, against Helen Millar, for the Rent of some Tenements in Glasgow. she Suspends, and raises Reduction, on these Reasons. First, That the Decreet was null, as being ultra petita, in so far as the half of the Duties was only libeled, and the whole was discerned. 2dly, That Watson's Right was, as Heir to Watson, who was first Wife to Brown, who stante matrimonio acquired this Right to him, and her, and the one half to her Heirs, and the other to his, which was a Donation betwixt Man and Wife, revocable, and revocked by the Infeftment granted to Helen Millar, in Liferent, his second Wife. It was answered, that the Decreet being in foro contradictorio, was irreduceable. 2dly, That the Right was not granted by the Husband to the Wife; but acquired from a third Party. The Lords reduced the Decreet, finding that it was visibly Extracted by error of the Clerks, being ultra petita, and therefore sustained the second Reason, albeit it was omitted, that it was a Donation betwixt Man and Wife, being acquired to the Man and Wife; and so presumed to be by his means which is equivalent, as if he had been Author, unless that Watson could condescend, that it was by the Wife's means. Gavin Hamiltoun contra Duke Hamiltoun and Bishop of Edinburgh, Eodem die. GAvin Hamiltoun, as assignee by the Collector of vaccand Stipends, charges the Parochiners of Craufoord, Compearance is made for the Bishop of Edinburgh, alleging, that this was a Patrimonial Kirk of the Bishopric of Edinburgh, and so was not comprehended in the late Act of Parliament, anent vaccand Stipends. The Lords repelled the Defense, and preferred the Collector of the Vaccand Stipends; for they found the Act was general, without any such exception. Mr. John Thomson contra Mckitrick, Eodem die. MR. John Thomson pursues M●kitrick, for reduceing of an Infeftment of some Tenements in Dumfries, upon an apprizing, on these Reasons; First, That the apprizing was thursdays, proceeding upon a Bond without Requisition, or Charge; without which, the heritable Bond could not become movable. 2dly, Infeftment, being within Burgh, was not given by the Bailies, and Town Clerk. 3dly, That it was neither Registrate in the Town Books, nor in the Register of Seasings of the Shire. It was answered, to the First, that the Bond bore no Clause of Requisition, but bore on the contrare to be payable, without Requisition, and so, as Movables the Defender might have poinded therefore, without Charge, so might Lands be apprised; to the Second, there being no Magistrates, nor Town Clerk in Office at the time of this Seasine, and the Defender being an Appryzer, necessitat to do Diligence, took Seasine by the Sheriff Clerk, which was necessary, and sufficient: To the Third, the Act of Parliament requires no Registration of Seasines within Burgh, and albeit, they be ordinarily to be found in the Town Books, yet if that should be neglected, they would not be null. The Lords repelled the first Reason, and found no necessity of a Charge: and they had formerly repelled the second Reason, in respect of the Answer made thereto, and did also repel the third Reason. Earl of Southesk contra Marquis of huntley. july 23. 1666. THE Earl of Southesk, and the late Marquis of Argyl, being Cautioners for the late Marquis of Huntly, for the Tochers of the Daughters of Huntly, they got an Infeftment of the Lands of Badzenoch, for their relief, bearing, that according as they should be distressed, they should have access to the Rents of the Lands, in so far as might pay the Annualrent of the Sum, which they should be distressed for. whereupon they were Infeft in Anno 1643. And thereafter Southesk was distressed, in Anno 1653. Whereupon, in Anno 1655. He pursued an Action of mails and Duties, upon the said Infeftment of relieff against the said Lord Argyl, who was in Possession; and my Lord Argyl having long before granted an Bond of relieff to Southesk, he used Horning, and Caption thereupon, in Anno 1655. and in Anno 1658. he used Inhibition upon the said Bond against Argyl, who in Anno 1658 Entered in a new Contract with Southesk, whereby, in Corroberation of the first Infeftment, he granted him a Wodset of the Lands of Enzie, with a Back-tack, by virtue whereof, Southesk uplifted several years of the Back-tack Duty. Southesk now pursues the Marquis of Huntly, and his Tenants, for declaring of his Right, and payment of the mails and Duties. it was alleged for the Defenders. First, absolvitor, because the Marquis of Argyl hath been Retoured, to have possessed the Lands of Badzenoch, peaceably, by the space of 5 years before his Forefaulture, which was in Anno 1661. Conform to the Act of Parliament 1584. By virtue thereof, this Marquis of Huntly, as the King's Donatar, to the Forefaulture, in so far as concerns the Estate of Huntly, has undoubted Right, and needs not dispute what Right Southesk had, before the five years. It was answered, for the Pursuer. First, That the Act of Parliament, 1584., ought not now to take effect, because, by the late Act of Parliament 1617. Seasine and Reversions are appointed to be Registrat, otherwise they are null, and therefore the ground of the Act of Parliament 1584. viz. The abstracting of Evidents Ceasing, the said Act itself must also cease. 2dly. The said Act can only take place, where it is not constant, what Right the Forefault Person had, but that he was repute to be the ancient Heretor of the Lands, but where the Forefault Persons Right is known, to have been Beations Compryzing, or this Conjunct Right, granted to him● and the Pursuer, for their cautionary, presumptio cedit veritati, and the Right must only be holden to be such a Right as truly it was. 3dly. The five years' Possession being in effect a Prescription, in favours of the King, and his Donatar, whatsoever would interrupt any other Prescription; must interrupt this; as if within the five years, the Pursuer had intented a Reduction of the Forefault Persons Right; or an Action for mails and Duties, or had required for his Sums, and charged thereupon, all these would be sufficient interruptions, against this quinquennial Possession, and would take away the presumption of Collusion, or abstracting. 4thly, The five years' possession, by the Act of Parliament bears, expressly, to be peaceable, so that if it was turbata possessio, it would not be enough, and being once a troubled possession, by any legal interruption, after the said interruption, that subsequent possession ceases not to be a troubled possession; though there be no further interruption, within the 5 years, because interruption once used, endures for 40. years. Ita est, Argyls possession was troubled, by pursuits, to count for the mails and Duties of these Lands, upon this Right, and that within a year, or two, before the five, and likewise within the 5. year, the Marquis of Argyl did corroborat this Right, and in corroboration thereof granted Wodset of the Lands of Enzie, for the Sums accummulat, by virtue whereof, the Pursuer, within the 5. years, was in Possession● by uplifting the Back-tack Duty; which being a Cumulative Right, possession thereon is valid, for both. The Defender answered, that his Defense upon the Act of Parliament stood valid, notwithstanding of all the Replies, because the Act is clear, and unrepealled, that 5. years peaceable possession of the Forefault Person, gives the King unquestionable Right, it being retoured by an Inquest, as now this is. And as to the troubling of the possession, no Deed, done before the 5 years, can have any effect, because, as the 5 years cut off the most Solemn anterior Rights, much more a Citation, or other Interruption, and as to the Interruptions, within the 5. years, they are only two, one is an Inhibition against Argyl, which proceeds not upon this Infeftment, but upon a Personal obligement, by Argyl, to relieve the Pursuer; neither does it at all relate to the possession, nor any other Action; but only as an Inhibition, prohibits Alienation. And as for the Contract of Wodset with Argyl, it is post commissum crimen, and so cannot prejudge the Donatar. It was answered, that albeit the Forefault Persons Deeds being voluntar, post commissum crimen, cannot be effectual; yet where it is upon a cause anterior to the Crime. viz. Argyls Intromission, by the Infeftment of Relief and the distress occurring against the Pursuer after the Crime, and he having pursued Argyl for count and reckoning, in anno 1655. does not constitute any new voluntary Right, nor can it be any way collusive, being for an anterior cause; and after a pursuit: and therefore it must work this much, to show, that the 5 years was interrupted, and in the Course thereof, both the Pursuer, and Forefaulted Person acknowledged this Right in question. The Lords found the Reply relevant, upon the Deeds of Interruption, alleged by the Pursuer, jointly, to elid the Act of Parliament. Mr. john Harper contra his Vassal. july 25. 1666. MR. john Harper, pursues a Declarator of Nonentry, against his Vassal, who alleged that he was only liable for theretour mails, till the Decreet of general Declarator was obtained: It was answered, the common custom was, that from the Citation in the general Declarator, Mails and Duties were due in the special, because the general Declarator, declares the Nonentry since the date of the Summons, and so the Mails and Duties are not due from the date of obtaining the Decreet, but from the years discerned therein, which is from the date of the Summons. The Lords found the Mails and Duties due since the time of the Citation, and not only since the time of the Sentence. Earl of Southesk contra Marquis of Huntly. july last, 1666. EArl of Southesks cause mentioned 23 july last, was this day advised, as to another Defense. viz. That my Lord Argyl had right to Beatouns apprizing of the Estate of Huntly, which was long anterior to the Pursuers Infeftment, and whereunto Huntly hath right, as Donatar to Argyl's Forefaulture. This Coutract of the Cumulative Wodset, being granted, in Anno 1656. It was answered, that Beatoun, before he was Infeft upon that apprizing, had renunced all benefit of the apprizing, and discharged the same, in so far as it might be prejudicial to the Pursuers Right; which is presently instructed. It was answered, that Renunciation was but personal, and was never Registrat; and so could not be effectual against any singular Successor; much less against the King's Donatar, having a real Right. It was answered, that Appryzing are not of the nature of other real Rights, but they may be taken away, by Intromission, Payment, or Discharge of the Appryzer, and there needs no Resignation, nor Infeftment. It was answered, that albeit, by the Act of Parliament 1621. Appryzing may be taken away by Intromission, and that it hath been extended to payment, yet never to such personal Backbonds. The Lords found the apprizing to be taken away, by Beatons Back Bond, renuncing the same, in so far as concerns this Pursuer; and found the same relevant against the Donatar. Thomas Crawfoord contra Town of Edinburgh. Eodem die. THomas Crawfoord, having Gift of ultimus haeres of a person, to whom the Town of Edinburgh was Debtor, pursues for payment thereof. The Defender alleged no Process, till the Gift were declared. The Pursuer answered, no necessity of a Declarator in this case, more than in a Gift of Recognition, and Waird, and that there was no person that could be particularly cited. The Lords found the Defense relevant, that this Gift, behoved to ●e declared albeit it were but upon a Citation generally against all and sundry at the Mercat Cross. Sir Lodovick Gordon contra Sir john Keith. Eodem die. SIr Lodovick Gordon, being Assigned to a Sum due to Sir Robert Farquhar by Sir john Keith, pursues Sir John, for payment, who alleged absolvitor, because he had Right to the Sum himself, as Donatar to Sir Robert's Escheat, and that the Sum was Movable, albeit it bore Annualrent, in so far as the Term of payment was not come. It was answered, that Sums were heritable, as to the Fisk, by the Clause of Annualrent, and the only exception was, that if the Term of payment of the Annualrent was not come, the Same was Movable; and nothing in relation to the Term of payment; if the Annualrent was come due, before the Rebellion. The Lords found, that the coming of the Term of payment of the Annualrents made the Sum to become heritable, as to the Fisk, and therefore repelled the Donatars defence. Merchants in Dundee contra Spruce Englishman. November 3. 1666. SOme Merchants of Dundee having sold a considerable quantity of Winesto one Spruce, an Englishman, they pursue him for the price, and because, he disappeared, and no body came to receive the Wines, they supplicat the Lords, that they would give warrant to them, to sell the Wines, lest they should perish, and to be liable only for the best price they could get for them: they did also represent, that Spruce had a Factor in Edinburgh, who being cited by a Macer, did not appear. The Lords refused the Supplication, and found, that the day of the appearance of the Summons, not being come, and the Englishman, neither being present, nor obliged to be present, they could do nothing against him, more than if he had not be in cited, and so could not sequestrate, nor appoint the Wines to be sold: but they lowed the Party to protest, that they had done all diligence that the Wines might not perish, whereof the Lords would take consideration in any Process that should occur. Thomas Canham contra james Adamson. November 7. 1666. JAmes Adamson, having disponed a Tenement to joseph johnstoun, who married his Daughter, in Conjunct-fee, and the Heirs betwixt them, which failzing, to divide between their other Heirs, in the Disposition there was expressly this Clause, providing that the said Joseph, and his foresaids make payment to the said James Adamson, or any he shall name, the Sum of six hundred pounds, wherein, if he failzie, the said Right, and Disposition shall expire, ipso facto. In the Infeftment the former Clause was repeated, but not the Clause Irritant. This Canham appryses the Land from Joseph Johnstoun upon Joseph's debt, and being Infeft, did pursue James Adamson for removing, who objecting the proviso, was notwithstanding discerned to remove. Now he pursues for the mails and Duties, during his occupation. James Adamson alleadges that he ought to have the 600 lib. because he had disponed with that provision. It was answered, this was but personal, to pay, and could never oblige a singular Successor; and all the Pursuer could do, was to proceed upon the Clause irritant by way of Declarator. The Lords, in the end of the last Session, having only seen the Disposition containing the said Clause, but not the Infeftment, repelled the Defense, but reserved the Declarator: but now having seen, that the proviso of payment was in the Infeftment; the cause being so favourable, a person disponing to his own Daughter, and good Son, and the Disponer yet in possession, they did without multiplying further Process, sustain it by exception. George Shein contra James Chrystie. November 15. 1666. GEorge Shein, having pursued umquhil David Chrystie, as charged to enter Heir to James Chrystie his Father, for payment of a Debt of his Fathers, David renunces to be Heir, whereupon George obtained Decreet, cognitionis causa; and David being now dead, he pursues James Chrystie, as now appearand Heir to his Debtor, for Adjudication of an Annualrent, as belonging to the Defunct Debtor, out of the Lands of Bassilie. It was alleged for the Defender, absolvitor, because that Annualrent was but base, never clad with possession, and the Defender stands validly Infeft, singulari titulo. The Pursuer answered, that the Defense is not competent hoc loco, when the Pursuer is but suo periculo, craving Adjudication of his Debtors Right, and cannot be forced to dispute the same, till after Adjudication, he use diligence for getting of the same; but this Defense will be Competent, whensoever upon his Adjudication, he shall pursue. The Defender alleged a Pratique betwixt S●haw of Sornbeg and the Lord Forrester, wherein Foresters public Infeftment was excepted in the Adjudication. Yet the Lords showed no Inclination to follow that Pratique, and therefore Repelled the Defense, and Adjudged. Mr. john Abercromie contra Anderson. Eodem die. MR. john Abercromie as assignee having pursued Anderson, as Debtor for the Debt Assigned: he alleged no Process, because the Assignation was posterior to the date of the Summons and Executions; so that the Assignation, being his sole Title, the Process could not be sustained. It was answered, that the Defender had no prejudice, and that the Cedent concurred. It was answered that the Summons was not in the Cedents name, and so his Concourse could operat nothing, so that the Decreet thereupon would be null: For in the like case, the Lords, last Week, in the Cause betwixt David Hamiltoun and john Kennedy and Symintoun, Reduced an apprizing led twenty years since, because the apprizing proceeded upon a Charge to Enter Heir; and some of the Debts were Assigned to the Appryzer, after the date of the Charge, As to which the Lords found the apprizing null. The Lords sustained the Defense, and found no Process, and had respect to the said Decision of Reduction of the apprizing, which they found to be, as is r●a●ed, though it was alleged that after so long time, an Appryzer was not obliged to produce the Letters of apprizing, or Charge to Enter Heir, or Executions; yet seeing the facto these were produced, and deduced in the apprizing, and mentioning the dates as aforesaid, the same was Reduced pro tanto; but there was no debate reported, whether it should stand pro reliquo; or how far it should extend, seeing the Appryzer, as to the rest, offered to prove it satisfied by Intromission. Alexander Downy contra Robert Young. Nou. 17. 1666. UMquhil Alexander Downy granted an Assignation to his Oye Alexander Downy, of two Bonds, who finding, that after his Goodsires' Decease, Mr. john Hay was Confirmed Executor to his Goodsire, and had given up these bonds in his Inventar, but had not recovered payment: He Confirms himself Executor, ad non Executa, to his Goodsire, and pursues the Debtors for payment of the Bonds. Compearance is made for Robert Young, who alleadges that he is Executor Dative to Mr. John Hay, who Execute Downies Testament, by obtaining Sentence for payment of their Bonds; so that the Bonds were no more in bonis of Alexander Downie, but of Mr. John Hay: and that the Testament being Execute by Decreet there could be no Executor, ad non executa to Downie, the first Defunct. It was answered that the Testament was not Execute by a Decreet, unless the Executor had obtained payment; especially where the Executor was a mere stranger, and was neither nearest of Kin, Creditor, nor Legatar. The Lords found the Testament of Downie Execute by Hay, by the Sentence obtained in Hayes Name; and therefore found that Alexander Downie, the Oye, his Confirmation as Executor, ad non executa null. It was further alleged that Downie being not only Executor, but assignee by his Goodsire; the Assignation, though it had been but a Legacy, would have been sufficient against Mr. john Hay, who is the Cedents Executor: and therefore is also sufficient against Young, who is the Executors Executor, and so represents the first Defunct, Downie the Cedent. It was answered, that Young was not only legitimo modo the Executor, but he is also Creditor of the first Defunct, Downie, in so far as he is Donatar of the Escheat of john Hilstoun, and thereupon has obtained Declarator, and so is in the place of john Hilstoun, to whom umquhil Alexander Downie was Debtor, by his Ticket produced, whereby Downie acknowledges that he had in his hands, Goods worth 6000 pounds, belonging to him, and Hilstoun, in Copartinary; and obliged him to be comptable therefore; which is anterior to the Assignation, granted to Downies own Oye for Love and Favour; whereupon he hath Reduction depending against the Assignation, as in fraudem Creditorum. It was answered that the Ticket, in relation to the Copartinary, was not liquid, bearing only an Obligment to be comptable, with express Exception of desperate Debts, and others. The Lords found, that in respect the Debt was not liquid, Downie the assignee ought to be preferred, and get payment, but Ordained him to find Caution, that in case Young prevailed, he should refound. William Blackwood contra Adam Purves. Nou. 20. 1666. ADam Purves pursues Reduction and Improbation of two Bonds, alleged granted by him to janet Baxter, and of an apprizing led thereon, against certain Tenements in Edinburgh, belonging to him, and craved Certification contra non producta. William Blackwood, to whom by progress, the Right is now come, produces the apprizing, and the Extract of one of the Bonds, whereupon it proceeded, and alleadges no Certification against the Letters, and Executions of the apprizing after so long time; the apprizing being led in Anno 1621. and no Process of Reduction Raised, till after the year 1650. Which the Lords found Relevant. Likeas, he further alleged, no Certification for not production of any of the principal Bonds, because they were Registrat in the Registers of Session, and the Principals were lost. The Pursuer answered, that there were pregnant Points of Falsehood, viz. Purves having gone and left the Kingdom in Anno 1618. And having been a Soldier Abroad, till the year 1630. and these Bonds and the apprizing thereon, both in one Month, and the Bonds granted to a Woman who had no such Estate, but the Servant of a Waiter, of an evil Fame: and one Blair a Witness who was hanged for Falsehood. The Lords refused Certification for not production of the principal Bonds, but prejudice to the Pursuer to insist in his Improbation, by these or other Evidences, by the direct manner, but they admitted Certification against that Bond, the Extract whereof was not produced: yet conditionally to a time, that the Defender might upon the Adminicle of the apprizing, Insist to prove the Tenor. The Parochioners of Port Supplicant. Decem: 4: 1666: THe Parochioners of Port having built a Manse upon the Gleib to their Minister, where there was no Manse before, and having valued the same according to the late Act of Parliament, and stented the same upon the Parochioners and others; They did Supplicat the Lords for Letters of Horning, conform to the stint Roll, in respect that the said late Act of Parliament, being the twentieth Act of the third Session of the last Parliament, bears no warrant for Horning. The Lords ordained Letters of Horning to be past. Sir Alexander Vrquhart contra Sherem. Eodem die. IN anno 1636: Sir Thomas Vrquhart of Cromerty gave a Security of a House and some Lands, and a Salmond-fishing near Bamff, for 4000: marks: and in anno 1637: There was 700: marks eiked and a Back-bond relating to the first Wodset Renounced, and a full Possession granted on both: There is a Clause of Redemption and Requisition upon payment of the principal Sums, and Annualrents resting for the time. Sir Alexander Vrquhart pursues Sherem, as now having Right to the Wodset, for Compt and Reckoning: Who alleged Absolvitor, because this being a proper Wodset, wherein he had the full Possession, hazard of the Profits was not comptable, especially, seeing the chief part of the Wodset was a Fishing, which was most uncertain; and though de facto he happened to get much more than his Annualrent yet it is no Usurary Wodset, seeing he might have loosed all. The Pursuer Replied, that by the saids Clauses of Redemption, and Requisition, he was not only obliged for the principal Sums, but for the bygone Annualrents, resting unpayed; so that the Wodsetter had no hazard: and therefore it is no proper Wodset, and he is comptable. The Defender answered, that the Clause was only adjected ex stylo, for it did not bear, that what Annualrent should be resting over and above Intromission, should be Consigned, but the whole resting Annualrents; or at least it had been adjected, in respect of the Back-bond, restricting the first Wodset: or in case the Wodsetter had been excluded from Possession. The Lords found the Defender comptable in respect of the said's Clauses, but there occurred to themselves this question, whether the Superplus more than the Annualrent should compense? and abate the principal Sum at the time of the Intromission, or only now, whereanent the Lords were of different opinions, many thought that when the meaning of the Parties was not full, and express, that should be followed, which is most ordinar amongst provident Pers●ns, hardly could it be thought that any would take a Wodset upon these Terms to draw out the principal Sum, with excress yearly, but the Lords reserved that Point to be considered, while it appeared whether there was any excress above the Annualrent. Monteith contra Laird of Gloret. Dec: 7: 1666: IN a Competition between Monteith and the Laird of Gloret. It was alleged for Monteith, that he ought to be preferred to the Sums in question, because Glorets' Assignation was obtained by Hamiltoun of Kinglass, and was lying by him blank in the Assigneys' name, and by him filled up with Glorets' Name, and delivered to him, so that Kinglass being his true Author, any Discharge granted by him while the Bonds were blank, and in his power, was relevant against Gloret his assignee, Ita est Kinglass, while or before the Bonds were in his power, did equivalent to a Discharge, viz. obliged himself to pay this Sum, and relieve the principal Debtor thereof; and instead of the Discharge he took this blank Assignation, filled up by him in Glorets' Name. 2ly, The Charge though in Glorets' Name, is to Kinglass' behoof: and if he were Charging his Obliegment to pay the Debt, would exclude him: And therefore must exclude the Charger. It was answered that Gloret was in bona fide, to take this Assignation, knowing nothing of the Back-bond; and that an Obliegment to satisfy the Debt, was not equivalent to a Discharge: Neither is the having of the Assignation, though blank, equivalent to an Assignation, unless the Name of Kinglassie had been filled up and Intimat. The Lords having taken Glorets' Oath before Answer, wherein he acknowledged, that he got this Assignation from Kinglassy, and paid no money for it, and that it was on these Terms▪ Kinglassie being owing him a greater Sum, he was to allow what he got by this Assignation, in part thereof, but Deponed he knew not if it was blank when Kinglasse had it or not. The Lords found that the Assignation being accepted by Gloret in Terms aforesaid, that it was but a Corroborative Security, and so found the Assignation to Kinglassies behoove, and found the Back-bond Relevant to exclude him, and therefore preferred Monteith. Sir George Mckenzie contra Fairholm. Eodem die. SIr George Mckenzie Advocate pursues a Reduction of a Bond granted by him as Cautioner for his Father, (the Bond is now Assigned to john Fairholm) on these Reasons. First, That the Bond is null, as being done by a Minor, being in his Father's Family, and not being Authorized by his Father, as lawful Administrator: And therefore in the same condition as a Minor having Curators, they not Confirming such Deeds are null, and may be Reduced at any time, though they have not been quarrelled within the Minors Age of twenty five. 2ly, Because Curators being chosen as a Security to the Levity of Minors, they cannot Authorize the Minor to the Curators behoove, but such Deeds are null: So neither could the Pursuers Father Authorise him to be Cautioner for himself. The Defender answered; First, That albeit a Father, as lawful Administrator, and Tutor to his Children, excludes all other Tutors, yet he is not Curator after their Pupillarity, because they may choose other Curators, and that filij familias, in the Civil Law could not Contract without their Father's consent. It was a special Statute, per Senatus consultum Macedonianum, and not as Curator. 2ly, The Father cannot be liable for his Omissions by his unprofitable Authorising his Children, for such Actions would be contra pietatem & obsequium. 3ly, There is nothing more frequent in Scotland, than Sons to have a distinct Estate, while in their Father's Families, given by the Father, or otherwise, whereof they have the full Administration without Authority. 4ly, Whatever may be alleged for Children residing in the Family of their Father, yet that cannot be extended to Children, Acting by themselves, far from their Father's Family: but the Pursuer was so living, and Acting at Edinburgh, attending the Tolbooth, and was majori ae●ati proximus, being past 20. The Pursuer answered, that his Reason stood still Relevant, because by the Law of Scotland, a Father is lawful Administrator to his Children, and is not ordinarily designed lawful Tutor, but lawful Administrator, which does not only endure during their Pupillarity, but during their Minority; but at least, till they be Married, or Forisfamiliat; or till they have a distinct Subsistence or Calling. And albeit the Children be not Residing in the Family, yet they are in familia, so long as they are there, and not separat from the same, as the Pursuer was: and albeit the Son may choose other Curators, if the Father permit, or the Judge think fit, and is not conveenable for his Mis-authorizing, or Omission, that infers only that he is only Curator honorarius. The Defender did further alleged, that the Father had further Authorized, in so far as he Subscribed the said Bond, and so consented that his Son should Subscribe, and neither was the Deed in rem su●m, but in rem credito●is. The Lords found the Reasons of Reduction Relevant, and Repelled the Defences: and albeit many thought that the Father Subscribing with the Son, was sufficient to Authorise; yet that it was not sufficient, being Caution for himself, in rem suam but did not proceed to cause the Parties condescend how near Sir George was to Majority, and what was his way of living. Earl Cassils' contra Tenants of Dalmortoun and John Whitefoord of Blarquhan. Decem: 11: 1666: AN Action of Double poinding, at the Instance of the Tenants of Balmortoun, against the Earl of Cassils' on the one part: and john Whitefoord of Blarquhan on the other, both claiming Right to their Multures. It was alleged for the Earl of Cassils', that the Lands in question being holden Ward of him, is now in his hands, by reason of the Ward of Knockdaw his Vassal, he had now Right to their Multures, and they ought to come to the Miln of his Barony, whereof these Lands were Pertinent, and show his Infeftment, containing the Lands of Dalmortoun per expressum. It was alleged for john Whitefoord, that he ought to be preferred, because that Kennedy of Blarquhan, the Earls Vassal, both of the Lands of Dalmortoun and Blarquhan, had Disponed to him the Lands of Blarquhan and Miln of Sklintoch, with astricted Multures, used and wont: at which time Blarquhan caused his Tenants of Dalmortoun, to come to the said Miln of Sklintoch, whereby the Thirlage was not only Constitute of the Lands of Blarquhan, but of Dalmortoun. It was answered for the Earl: First, That the Thirlage of Dalmortoun could not be Constitute by the said Clause; because the Lands of Dalmortoun being no part of that Barony, whereof the Miln of Sklintoch is the Miln: But a distinct Tenement holden of a distinct Superior: Such a general Clause could never have Constitute a Thirlage, unless the Lands had been expressed. 2ly, Albeit the Servitude had been Constitute never so clearly by the Vassal: Yet if it was without the Superiors consent, it could not prejudge him by Ward, or Nonentry. It was answered for john Whitefoord to the First, That the Clause was sufficient to Constitute the Thirlage: and if it wrought not that Effect, it was of no Effect, because the hail Lands of the Barony were Disponed with the Miln, and neither needed, nor could be Thirled: And therefore the Clause of Thirlage behoved to be meaned of some other Lands. 2ly, Vassals may lawfully Constitute Servitudes without consent of the Superior which are not Evacuat by Ward, or Nonentry. 3ly, It is offered to be proven, that the Earl consented to the Right of the ●●lture, in so far as the Lands of Dalmortoun being apprised from Blarquhan by john Gilmour, he assigned the apprizing to john Whitefoord, who Assigned or Disponed the same to Kilkerren: in which Asignation, there was an express Reservation of the Multurs of Dalmortoun to the Miln of Sklintoch: upon which Infeftment the Earl received Kilkerren in these Lands, who is Author to the present Vassal. The Lords found the Clause aforesaid in john Whitefords' Charter not to infer a Servitude of the Lands of Dalmortoun, not being therein expressed; and holden of another Superior: Nor no Decreets nor Enrolments of Court, alleged to astruct the Servitude. And found also the second Reason Relevant, viz. That the Earl as Superior, not having consented, was not prejudged by any Deed of the Vassals. But as to the third Point, the Lords found that the Reservation in Kilkerrens Right, unless it were per expressum, contained in the Charter Subscribed by the Earl of Cassils', could not infer his consent; albeit the Charter related to a Disposition, containing that Clause, but if it were alleged to be expressed in the Charter: they Ordained before answer, the Charter to be produced, that they might consider the terms of the Reservation. Sir Henry Home contra Creditors of Kello and Sir Alexander Home. Decemb: 12: 1666: SIR Henry Home having apprised the Lands of Kello, before the year 1652. pursues the Tenants for Mails and Duties: Compearance is made for either Creditors appryzers, who alleged they ought to come in with him pari passu, by the late Act between Creditor and Debtor; because the apprisings being since the year 1652. was within a year of his apprisings, being effectual by Infeftment, or Charge. It was answered▪ that the Act of Parliament was only in relation to Compryzing, both being since the year 1652. and the Pursuers apprizing being led before, falls not within the same. It was answered, that the Act of Parliament in that Clause thereof in the beginning, mentions expressly, that Compryzing led since 1652. shall come in pari passu with other apprisings; but doth not express, whether these other apprisings are since 1652: but in that is general, and the Reason of the Law is also general, and extensive to this Case. It was answered that the posterior part of that same Clause, clears that point, both in relation to the apprisings, in whose favours, and against which the Law is introduced, viz. that the Clause is only meant the apprisings led since 1652: shall come in pari passu, which must both comprehend these that come in, and these with whom they come in. The Lords Repelled the alleadgence, quoad other Compryzing, and found that their Compryzing could not come in with the Pursuer, he having apprised before the year 1652. and Charged before their apprizing. janet Thomson contra Stevinson. Decem: 13: 1666: JAnet Thomson pursues a Reduction of a Disposition made by her to Stevinson, upon Minority and Lesion; and also upon this Reason, that the Disposition was done within some few days after her Pupillarity, and it being of Land, ought not to have been done without authority of a Judge, especially seeing she had no Curators. The Defender answered to the first, there was no Lesion, because the Disposition bears a sum equivalent to the value of the Land. To the second, non Relevat. The pursuer answered, that the Subscribing and acknowledging the receipt of Money by a Minor, cannot prove itself, but the Minor is Lesed in Subscribing the same. The Defender Duplyed, that he offered to prove by Witnesses, that the price was truly paid, and profitably Employed. The Lords found not the second Reason of Reduction Relevant, the authority of a Judge being only required to the alienation of Lands made by Tutors of their Pupils Lands. Anna Fairly contra Creditors of Sir William Dick. December 14: 1666: ANna Fairly alleging that she obtained an Assignation from umquhil Mr. Alexander Dick, as Factor for his Father, in satisfaction of a Sum due to her by his Father, pursues for delivery of the assignation. The Creditors alleged that the assignation being in the hands and custody of Mr. Alexander the Granter, it must be proven by Writ, he being dead▪ that it was delivered, and not by Witnesses; for there is nothing more frequent, than Parties upon intentions, to subscribe Bonds, Assignations, and other Rights, and yet do not, de facto, deliver them: or if they have been delivered, to satisfy them and retire them and if Witnesses were admitted to prove the delivery, or redelivery of such Writs, the Liege's would be in extreme unsecurity, contrary to our Law, that admits not Witnesses above an hundred Pounds; and therefore Chirographum apud debitorem repeatum praesumitur solutum; which presumption cannot be taken away by Witnesses. The Pursuer answered, that though this holds in Bonds, where there is a Debtor, and no other adminicle to instruct the Debt; yet this is an Assignation, and the Cause thereof otherwise instructed, and most likely to be truly done: and it is offered to be proven, that this Assignation was delivered back to Mr. Alexander, to be made use of as Agent for the Pursuer. The Lords refused to sustain this Member of the Probation, but because of the poverty of the poor Woman, recommended the case to the Creditors, to be favourable to her, and did forbear to write the Interlocutor. Hay of Knockondy contra Litlejohn. Eodem die. HAY of Knockondy pursues Litlejohn for the damnage sustained by him, by the fall of Litlejohns House, called the Tower of Babylon, whereby the Pursuers House, adjacent, was broken down. The Defender alleged; First, The Libel was not relevant, unless he had been required to find Caution, de damno infecto, as is required by the Civil Law, whereby if that Caution were not required, there is an express Text in the Title de damno infecto, that there shall be no Action, but the Party shall impute his loss to his own negligence. Likeas we have two special Statutes, concerning ruinous Houses, which prescrive the method of preserving them, and making up the damnage, none of which being followed, the Defender is not liable. 2ly, Whatsoever might be alleged against the Heretor of the said House, the Defender is only an Appryzer of a Liferent-Right, for a small Sum; and the Liferenter was not obliged to repair a Tenement manifestly ruinous, that could not be preserved, but with great Expense and Rebuilding: much less the Appryzer who hath but a small Sum on it. The Pursuer answered to the first Defense, that his Libel was most Relevant Damnage upon any fault, being due and Reparable by the Law of Nature: and as for the Civil Law, it hath no Effect with us in this point, our Custom neither giving nor requiring such Caution; much less refusing Action, if it be neglected: and as to our own Statutes, though they be very convenient ways for securing of damnage, yet they are not exclusive, nor have they any Clause, except in these Cases, and in that method, Damnage shall be irrecoverable. To the 2d, it was answered, The Pursuer was not obliged to know, or inquire whether the Defender was Heretor or not: but he finding that he was a Neighbour, behaving himself as heritable Possessor, by uplifting the Duties he did pursue him, and if need beiss, offers him to prove, that he did require him to keep him skaithless, though he took no Instrument thereon. The Defender answered, that he was not obliged to take notice of such Requisitions, not being Solemn by Instrument. The Lords found the Defender liable, albeit there had been no Requisition verbal or otherwise, it being proven that the Ruinousness of the Tenement that fell, was notour and manifest to the Defender himself, whereby he was obliged, either to demolish the House, if it was not Reparable, or to have quite his Possession, to evite the imminent damnage of Neighbours. Lord Colvil contra Fevars of Culross. Decemb. 15. 1666. THe Lord Colvil as heritable Bailzie of Culross, having Charged the Lord Kincairn and others for the Taxation of their Lands in Culross, conform to the stint Roll; They Suspended, and alleged that the stint Roll contained a fifth part more than the Taxation. It was answered, and offered to be proven, that it was the Custom of that and other Benefices at their meeting of making the Stent-roll, to add a fifth part for Expenses and Charges of ingathering the Taxation. The Defenders answered, that if any such Custom were, it was against Law, and against the Liberty of the Subject, who could be liable for no payment, but by Law, or of their own consent; or if any such Custom were, it hath been by the consent of the Vassals, or at least they have not questioned the same, nor is there any ground for such an addition, for the King's Officers being obliged by their Office, to Collect His Majesty's Taxations, they can demand nothing of them who paid without Process; and if they be put to Process, the Lords will modify such Expenses as they see cause. The Charger answered, That such immemorial Customs have the strength of Law; and that it was done with the consent of all the Vassals who conveened; and that it was the Suspenders fault that they conveened not to make the stint Roll, which should not put them in better case than they had convened: or if they had convened, and disassented, there is no reason, that the dissassent of a few should be preferred to the consent of the most part, who as they may Vot in the stint Roll, for the Taxation itself; in which the plurality carries: so must they for the necessary Expenses: and all that can be alleged with reason is, that the Lords may modify the Expenses of a fifth part, if it be too high. The Suspenders answered, that Law authorised the Fevars, as a Court and Judicature, to meet and stint, which implies a power to the Plurality, but there is no such warrant for Expenses; as to which, the consent of a hundred cannot oblige the dissassent of one, or of one absent, and the absents have loss enough, that they have not a Vot in their own Stint. The Lords sustained the Reason of the Suspension, notwithstanding of the answer; and found that no Expenses, nor any thing more than the Taxation could be stented, to have effect against these who consented not, but they would modify Expenses, in case of Suspension, as the Cause required, but modified none in this case, because a fifth part was Charged for, more than was due. Lord Newbeath contra Dumbar of Burgie. Decemb. 18. 1666. THE Lord Newbeath having right from james Mcken, who had apprised the Lands of Burgie, pursues Reduction and Improbation against young Burgie and john Watson; and insists on this Reason, that any Rights they have are null, and fraudulent, being Contracted after his Debt, and the Right granted to young Burgie is null, as being but a base Infeftment, not clad with Possession, before the Pursuers public Infeftment. The Defender alleged that his Infeftment was clad with Possession, in so far as his Father's Liferent was reserved thereby, and his Father Possessing by virtue of the Reservation, did validat his Infeftment. 2ly, Albert the Father's own Possession could not be sufficient, yet the Father having Transmitted his Right to Watson, and Watson Possessing, the Suspicion of ●●mulation ceased, and there is a Disposition produced by the Father to Watson, which though it bear to be of the Fee, yet can import no more, but to be of the Liferent, seeing the Father had no more, neither needs it have an Infeftment, seeing it hath but the effect of an Assignation to a Liferent. It was answered, that if the Father had expressly assigned his Liferent, reserved in the base Infeftment, it might have been the ground of a question, whether the Assigneys Possessing so, would have validat the base Infeftment? But since the Father has not taken notice of the Reservation, but Dispones as Heretor, it clears that he did not Possess by the Reservation, but by his own prior Right. The Lords found the Reason of Reduction and Reply Relevant, and that the Father's Possessing by himself, or watson's Possessing by himself, could not validat the base Infeftment. Charles Cass contra Mr. john Wat. Eodem die. DOctor Cass having taken Infeftment of an annualrent, out of the Lands of Robertland, in name of Cockpen and Adam Wat, Charles Cass as Heir to the Doctor, pursues Mr. john Wat, as Heir to his Father, for Compt and Reckoning of the Mails and Duties, and Charges him with the hail Rental being intrometted, or aught to have been intrometted with by him and his Father, by virtue of the Trust in their Person; and also Adam Wat took a gift of Tutory to the Pursuer, and so is liable as his Tutor. The Defender answered, that his Father's Name being borrowed on Trust, could lay no Obligation on him to do any Diligence, but what he thought fit, seeing by his Back-bond he was obliged to denude himself, whenever the Doctor pleased; and the Pursuer has reason to thank him for what he did, and not burden him with what he omitted, seeing he had no allowance therefore: and as for the Tutory, there was a multiple Poinding all the time thereof, depending among five or six Parties, pretending Right by the dependence whereby the Tutor was excluded. The Pursuer answered, that the Defenders Name was not borrowed without his knowledge, but that he accepted thereof, and entered to Possession; and as an Appryzer is not obliged to Possess, but if he Possess, must be answerable for the Rents of the Lands conform to the Rental, so must the Defender. The Lords found the Defender not liable to Diligence. by virtue of the Trust, albeit he did Possess, but Ordained him to Compt for his intromission, and to condescend what Diligence his Father did as Tutor, that if he be found deficient therein, there might be an additional Account to what he intrometted with. Mr. james Cheap contra Mr. john Philip. Decem. 19 1666. MR. james Cheap charges Mr. john Philip, to fulfil a Minute of Alienanation of the Lands of Ormestoun, sold by Mr. james to Mr. john, whereby Mr. john was obliged to pay 25500 marks, as the price, or to assign sufficient Bonds therefore: He Suspends, and offers to Consign Bonds, and amongst the rest, a Bond of 8000 marks due by the Town of Edinburgh. The Charger alleged that he was not obliged to accept that Bond, because at the time of the agreement, and Subscription of the Minute; the Charger particularly excepted the Town of edinburgh's Debt, and the Suspender declared, that it should be no part of the price, which he offered to prove by the Writer and Witnesses insert in the Minute. The Suspender answered, that Witnesses were not competent in this Case, where the words of the Minute are not dubious, but clear and general of any sufficient Debt, for if this were sustained, the alteration of the price, as well as the manner of payment, might be proven by Witnesses. It was answered, that it was no way alike, nothing being here in question, but the manner of payment, and not the quantity of the price. The Lords Ordained the Writer and Witnesses to be Examined before answer. janet Thomson contra Stevinson. Eodem die. IN the Reduction on Minority, at the Instance of janet Thomson contra Stevinson. The Lords Ordained the Pursuers Mother to be received Witness of her Age, cum nota, there being a Testificat already produced, and there being 30 or 40 years since the Pursuers Birth: after which time, it was not likely that others would remember; but she was ordained to Depon● who were Witnesses at the Birth and Baptism, and these to be Examined. Corstorphin contra Martin's. Decem. 21. 1666. JAmes Corstorphin pursues a Reduction of a Disposition made by his Father's Sister, in lecto. It was alleged by Martin's, to whom the Disposition was made, that he could not quarrel the same, because his Father to whom he is Heir, and the other Brethren and Sisters of the Defunct had approven whatsoever Testament, Legacy or Disposition, made or to be made by the Defunct, of her Goods and Gear, Debts and sums of Money, and others whatsoever, that she had, or should have the time of her Decease; so that she having made this Disposition, he cannot quarrel the same. The Pursuer answered; First, That the Ratification in the Terms foresaid, could not be extended to Lands or Annualrents, Constitute by Infeftment, there being no mention of Lands, Annualrents or heritage therein. 2ly, It could not be extended to any Disposition, but Legally made, and therefore not to Dispositions on Deathbed. The Defender answered, that the Ratification bearing expressly sums of Money, did comprehend all sums, although Infeftment of Annualrent were granted for security thereof, which being but accessary to the sum, follows the same. 2ly, There could be no other effect of the Ratification, if it were not to exclude the Heir from quarrelling thereof, as being in lecto, for if the same was made by the Defunct in her liege poustie, it were valide and unquarrelable in itself, and albeit it bear not mention of Deathbed, yet it expresses Disposition of all Goods, she should happen to have the time of her Death; so that if she had acquired Rights after her sickness contracted, she might Dispone the same validly by this Ratification, and yet behoved to be on Deathbed. The Lords found this Ratificatiou not to extend to sums whereupon Infeftment of Annualrent followed, which was carried but by one Vote, and so they came not to the second Point. William Yeoman contra Mr. Patrick Oliphant: Eodem die. WIlliam Yeoman having apprized the Lands of james Oliphant, Son to Sir james Oliphant; and Mr. Patrick Oliphant having also apprised the same, William insists on this reason, that Mr. Patrick's apprizing was satisfied by Intromission within the legal; Mr. Patrick alleged that his whole Intromission could not be countable to satisfy his apprizing, because the two part thereof did only belong to his Debtor, and the third part to Dame Geils Moncrief, who had right to a Terce thereof, and to whom Mr. Patrick was only liable and countable, and for a part of the years he was her Tennent, and had Right from her. It was answered that the Tercer had no complete Right, till she was Served, and kend to her Terce, which, being done after the years in question, the Fire might have Possessed the whole till her Service, and might have forced the Possessors to pay him, so the Appryzer entering in Possession of the whole, upon his apprizing, cannot pretend the Right of the Tercer, and his taking Tack of her, was unwarrantable till she was Served, and done of purpose, that his apprizing might not be fully satisfied, and so the Legal might expire, which is most rigorous and unjust, and offered presently to satisfy the Tercer of her third. It was answered that the Service whensoever done, is drawn back to the Husband's death, and doth but declare, and not constitute the Wife's Right, like the Service of an Heir. The Lords found that Mr. Patrick could not clothe himself with the Tercers Right, to cause the legal expyre; but found the offer Relevant, for besides the favour of the Cause, the case is not alike with an appear and Heir, whose Right, though not declared, yet he continues in his Predecessors Possession, and none other hath any Interest, but the Fire might possess the whole, and exclude the Tercer till she were Served. Paul Henrison contra Laird Ludquharn. Decemb. 22. 1666. PAul Henrison Indweller in the Island of Helgilland, being at the mouth of the Elve, fraughted to Scotland by Hamburgers, was taken by a Privateer, and declared Prize at Peterhead by the Laird of Ludquharn, Admiral Depute there, whereupon he addressed himself to the Admiral Court at Leith, and obtained Decreet for restoring of his Ship upon compearance: Ludquharn gives in a Bill of Suspension of this Decreet, and to dispatch the Stranger, because it was ordained to be heard upon the Bill: Ludquharn alleged that the Admiral's Decreet was unjust, because he offered him to prove by Merchants in Edinburgh, that Helligilland is a part of the Dominion of Denmark, and albeit it be in the present Possession of the Duke of Holstein; yet he holds it of the Crown of Denmark, and as to that, he is Subject to the King of Denmark, and therefore the Inhabitants of that Island are in the state of enimity with the King, and so lawful Prize, It was answered, that the Stranger hath produced a Pass of Sir William Swan, the King's Agent at Hamburgh, bearing that he had taken trial; and found the Ship to be free; and it being notour and acknowledged, that this Stranger is a Subject of the Duke of Holstein, who is a Prince of the Empire, and in Amity with His Majesty, as is declared by a Letter of the King to the Lord Commissioner, it must extend to all His present Subjects, who are not obliged to Dispute how he holds this Islands, or when he got the Right thereof: and his Pass bears him to be a Natural Subject of the Duke of Holsteins', and not of the King of Denmark. It was answered, that the Right of this Island was only in Impignoration, and only in Possession of the Duke of Holstein within this ten year. The Lords adhered to the Admiral's Decreet, and Repelled the Reasons of the Bill. Tweeddies contra Tweeddie. Eodem die. UMquhil Tweeddie of having Disponed his whole Estate to his Eldest Son, at the same time, his Son gives a Bond to his Mother and her Heirs of six thousand marks, the Mother being dead, the other five Bairns pursues a Declarator of Trust against the Heir, that this was the Bairns Provision, put in the Name of the Mother, and offers to prove the same by the Writer and Witnesses insert. It was answered, that Trust was not so probable, otherwise all Rights might be inverted by Witnesses, whose Testimonies, our Law hath Restricted to an hundred Pounds. It was answered, that much more was to be attribute to Witnesses insert, upon whose Testimonies the Parties condescend, and confide, than to common Witnesses. 2dly, Albeit Witnesses were not receiveable to prove Trust alone: Yet where there are strong presumptions concurring, they are admittable even to annul Writs of the greatest importance, as is ordinarily used in the indirect manner of Improbations; and here are strong presumptions, viz. That the Father, at the time of this Bond, did Dispone to the Defender, his Eldest Son, his whole Estate, without a Reservation of his own Liferent, or any other thing, and there were five Children beside, who had no Provision: So that albeit this Bond be conceived to the Wife, her Heirs and Assigneys, yet cannot be presumed to be intended to have fallen back to the Defender as her Heir. The Lords in respect of the presumptions, were inclinable to admit the Witnesses, but they ordained the Pursuers before answer, to what could make a sufficient Probation to adduce such Witnesses as they would make use of for astructing these Presumptions and the Trust. james Hodge in Edinburgh contra james Hodge in Dalkeith. january 2. 1667. JAmes Hodge in Edinburgh, pursues a Declarator of Redemption aghasted james Hodge in Dalkeith, who alleged Absolvitor, because the whole sum, contained in the Reversion, was not Consigned. It was answered, there was Consigned the equivalent, viz. A Decreet against the Defender, for a Liquid sum, which behoved to compense. It was answered, that Reversions being strictissimi juris, Compensations are not to be admitted therein: otherways Wodsetters may be much prejudgeed by taking Assignations from their Creditors, and Consigning the same, and frustrating them of their Moneys, which they had designed for other Creditors, and other uses. It was answered, that this was no Extrinsic Compensation, but a Decreet founded upon an Article contained in the Contract of Wodset. Upon which consideration the Lords Sustained the Order, and Declared. Earl of Murray contra john Hume. Eodem die. THE Earl of Murray pursues Hume his Tennent to find Caution for his Duties, or else to Remove: Who alleged Absolvitor, because the Earl was Debtor to him in a Sum exceeding all the bygone Rents, and this Action hath no place, but when there are some years Rend Resting. It was answered, That the Defender was at the Horn, and his Escheat taken, and so was manifestly, vergent ad inopiam. The Lords would not Sustain this Member, unless bygones had been owing, but superseded to give answer, till the Compensation were proven. Francis Hamiltoun contra Eodem die. FRancis Hamiltoun having Suspended a Decreet, obtained against him for House-mails, on this Reason, that his Wife only took the Tack, which could not oblige him. It was answered, that his Wife keeping a public Tavern, was evidently praeposita huic negotio. Which the Lords Sustained. Another Reason was, that the House became insufficient in the Roof, and the Defender before the Term, required the Pursuer to Repair the same, which he did not; and the Neighbouring House, called The Tower of Babel, falling upon the Roof, made it Ruinous. It was answered, That was an accident without the Pursuers fault, and the Tennent ought to pursue these whose Tenement it was that fell. The Lords found the Reason was not Relevant to Liberate from the Mail, unless the Suspender had abstained to Possess, but found it Relevant to abate the Duties in so far as he was Damnified. Oliphant contra Hamiltoun of Kilpoty. Eodem die. WILLIAM OLIPHANT having obtained a Decreet for poinding of the Ground, against Hamiltoun. He Suspends on this Reason, that he was neither Discerned as Heir, nor Possessor, but as appearand Heir to the Heretor, and was never Charged to Enter Heir. The Lords Repelled the Reason, and found this Action, being real, was competent against the appear and Heir without a Charge. William Oliphant contra Hamiltoun. Eodem die. OLiphant pursuing the foresaid Poinding of the Ground upon an Annualrent. It was alleged Absolvitor from the bygones before the Pursuers Right, because his author was Debtor to the Defender in a liquid sum equivalent. It was answered, that the Pursuer was singular Successor, and no personal Debt of his Authors could infer Compensation of a real Right against him. The Lords found that the bygain Annualrents were movable and compensable with any liquid Debt of the Pursuers Authors. contra Brand. january 3. 1667. Chapman having left his Pack in custody with Brand, In Dundee, about ten or twelve days after, Brand opened the Pack, and made use of the Ware. The Chapman now pursues him for a Spuilzie, who alleged Absolvitor, because the Pack was put in his hands for security of a Debt due by the Pack-man, and he being informed that the Pack-man would not rerurn, did, by warrant of a bailie in Dundee, cause four of the Neighbours, Inventar and Price the Ware. It was answered non relevat, for though the Pack had been impignorat, the Defender could not appryze it summarily, but behoved to take a Sentence to Poind the same. The Lords Repelled the Defense. It was further alleged, that there could be no Spuilzie, nor Oath in litem of the Pursuer, because there was no Violence. It was answered that the Oath in litem is Competent, whether it were a Spuilzie or a breach of Trust, actione depos●●. It was answered, that the Oath in litem being granted mainly, because Parties injured by breach of such Trusts, cannot be put to prove by Witnesses, that which is taken from them, none being obliged to make patent his Pack, or other private Goods to Witnesses, yet where there is another clear way to prove the quantities, viz, the Oaths of the four Persons who opened the Pack, there is no reason to put it to the Pursuers Oath, especially seeing their Inventar is not the eight part of what he claims. The Lords admîtted the Pursuers Oath, in litem, reserving their own Modification, with liberty to the Defender, if he thought fit to produce what of the Ware he had, and to produce these four Persons, that the Pack-man may Depone in their presence. Earl of Sutherland contra Earls of Errol and Marischal. Eodem die. THere being a Decreet of Parliament ranking the Nobility, whereby Earl of Sutherland was put after the Earls of Errol and Marischal: In which Decreet, there is a Reservation to any to be heard before the Judge Ordinar, upon production of more ancient Evidents; whereupon the Earl of Sutherland pursues Reduction of the Decreet of Ranking, containing an Improbation of all Writs, Patents, and other Evidents granted to the Defenders, or their Predecessors, whereby they are Constitute or Designed Earls: they did produce the Decreet of Ranking, and the Earl of Errols Retour, whereupon the Pursuer craved Certification contra non producta, after all the Terms were run. The Defenders alleged no Certification, because they had produced sufficiently, by producing the Decreet of Ranking, and their Retoures, and the Pursuer had only produced his own Retoure, which was since the Decreet of Ranking; so that the Decreet of Ranking was sufficient to exclude all his Titles produced. It was answered, the Retour being the Sentence of a Court, Serving this Earl as Heir to his Fore-Grandsire Grandsire's Grandsires, Fore-Grandsires Goodsire, who is Designed Earl by King Alexander the second: It was sufficient in initio litis. Likeas he did formerly produce the Original Evidents, and which was now in the Clerks hands, and might have been seen by the Defenders, if they pleased. The Lords found the Retoures not sufficient alone, and Ordained the rest to be Reproduced, and seen by the Defenders. Smeatoun contra Crawfoord. Eodem die. Umquhile Patrick Smeatoun granted a Disposition to Crawfoord his Wife, and her Heirs, of a Tenement of Land, whereupon nothing followed during her Life-time, her younger Brothre james Crawfoord Served himself Heir-General to her, and obtained a Decreet of Implement against john Smeaton as Heir to his Father, and having used Horning thereon, obtained Adjudication against Smeatoun, and his Superior, and thereupon was Infeft: which Right was Disponed by him, with consent of William Crawfoord, elder Brother to the Wife. The said john Smeatoun Dispones the same Tenement to Alexandor Smeatoun, and he is Infeft, and thereupon pursues a Reduction of james Crawfoords Retour, and of all that followed thereupon in consequence on this Reason, that the Disposition to the Wife belonged not to james Crawfoord her younger Brother, who was Heir of Line, but to William Crawfoord, her elder Brother, as Heir of Conquest, and so the Service was null, following thereupon; and the Pursuer being first Infeft from Smeatoun, he hath the only Right, because any Infeftment to William the Heir of Conquest will be posterior. It was answered, that it was jus tertij to the Pursuer, whether the Heir of Line was Served or Infeft, or the Heir of Conquest: likeas the Heir of Conquest did concur, and had consented to the Disposition. The Lords found not the Defences Relevant, but considering the Case as Calumnious, seeing it was but of late cleared by Decisions, whether the Heirs of Line, had right to Dispositions without Infeftment, they did superseded to give answer, but ordained the Defender to give in what Evidences he could give, of the onerous cause of his Disposition. Paul Henrison contra Laird of Ludquharn and Captain Seatoun. january 4. 1667. THe Debate betwixt Paul Henrison and Ludquharn, was this day heard again, and it was alleged that the King's Proclamation declared War against the King of Denmark and his Subjects, Ita est the Owners of the Ship are Subjects to the King of Denmark, because it is notour that this Isle is a part of the Kingdom of Denmark, and till of late was in the same condition, as any other of his Territories; and albeit the Duke of Holstein have now an Interest by Possession, or Infeodation, that altars not their subjection to the Crown of Denmark, but the same is still presumed, unless they will positively prove, that the same is altered, and the Duke of Holstein constitute Sovereign therein, and they liberat from his Jurisdiction, Tolls, and Imposts for War. It was answered, that this Stranger was not obliged to Dispute the Right or Investiture of the Duke of Holstein; but it was sufficient for him to say, that before this War they did own him as their Prince for simple acknowledgement of a Superior, or Investitur from him, do not make Subjects, or comprehend them within the Wars, and Quarrels of their Superiors: yea, though there were a Tribute or Jurisdiction due to that Superior, yet if the Prince do enjoy the Privileges of making War and Peace, he is not a simple Subject, but in so far a Sovereign Prince, as some of the Princess of the Empire, hold of the Emperor paying him Tribute: and there lies an appeal to the Sovereign Imperial Court; yet because they can make War and Peace, they are not necessarily involved within the Emperor's Quarrels. So the Duke of Holstein being a Sovereign Prince, and possessing this Island, so as to make use of the Subjects thereof in Peace and War; therefore is not comprehended in the King of Denmark's Quarrel; nor is he, or his Subjects in the Sense of the Proclamation. The Lords adhered to their former Interlocutor upon the 22 of December, when this Case was Debated, and Repelled the Alleadgences proponed for Ludquhurn, unless it were alleged that the Inhabitants of this Island do contribute with the King of Denmark in this War against the King, and they so alleging. The Lords Ordained the Ship and Goods to be valued, and delivered to the Stranger upon Caution; or otherwise to be Sequestrate in some Merchant's hands, that the Ship might be made use of for Fraught, and the Goods sold, and not made unprofitable: and according to the course of Admiralty, the Lords Ordained Ludquharn to find Caution for Cost, Skaith and Damnage, by the delay of that alleadgence. Mr. james Cheap contra Mr. john Philip. jan. 5. 1667. THe Lords having Considered the Testimonies of the Witnesses adduced before answer, betwixt Mr. james Cheap and Mr. john Philip, upon the Debate mentioned the 19 of December last, found the same to prove, and to qualify the Minute, they being the Witnesses insert above exception, and it but a Minute, wherein particulars are not at all, nor fully set down, which will not be drawn in example, as to any full and extended Writs, either for altering any Clause therein expressed; or for adding thereunto any omitted. Laird of Polwart contra Laird of Halyburtoun. Ianu. 16. 1667. THe Laird of Polwart as Heir to his Father, pursues Hallyburtoun for payment of a Ticket of 250 marks, due by the Defender to the Pursuers Father, and for a composition paid by the Pursuers Father, for receiving him in certain Lands, Disponed to him by the Defender, wherein he was obliged to obtain him Infeft. The Defender alleged absolvitor from the payment of the Ticket, because it must be presumed to be paid on these grounds; first, Since the Ticket, the Defender sold Land to the Pursuer, so that it must be presumed it was Counted and included in the price, and albeit that presumption were not sufficient alone, it is fortified by these two, viz. That it is twenty eight years since the Bond was granted, and no word ever heard thereof: and that umquhil Polwart in his Testament, gave up an Inventar of the Debts owing to him, wherein no mention is of the Bond. It was answered, that a Writ could not be taken away by Witnesses proving payment: much less by presumptions: and as to the Taciturnity, which is the main one, umquhil Polwart died about seven years after the Bond was granted, and the Pursuer was Minor most of the time since. It was answered, that Presumptions have been oftimes sufficient to take away Writs, as was found in the case of the Lady Trabroun. The Lords Found the Presumptions not Relevant, and that they were nothing so strong, as these of the Lady Trabroun, which were thus; Trabroun granted a Bond of 5000 marks to Alexander Peebles, which was taken away on these Presumptions, that thereafter Trabroun had granted a Bond of 10000 marks to the said Mr. Alexander, who was his Advocate, with whom he had many Affairs; and therefore it was to be presumed, the last Bond included the first; especially seeing Trabroun decaying in his Fortune, Mr. Alexander apdryzed his Lands upon the last Bond, and not upon the first, which he might have done with the same Expense, and that he never moved any thing thereupon all his Life, by the space of twenty six years; and in the Inventar of his Testament, he made no mention of it: and that his Executors being Examined ex officio, did acknowledge they had found it amongst old cast Papers. The Defender further alleged absolvitor from the Composition, because he was never required by Polwart, to procure the Infeftment from the Earl of Hume, which he could easily have done gratis, he being his Uncle, especially seeing there was no Term in his Obligation to perform; and therefore Interpellatio tantum inducit moram. The Lords found the Defense Relevant, and Assoilzied from the Composition. albeit it was alleged that Polwart for several years had not Componed, that the Composition was much less than a years Rent, and that Halyburtoun was not in good Terms with the Earl of Hume, which was not respected, seeing Hslyburtoun was not required. Reid contra Salmond. Eodem die. REid pursues Barbara Salmond and james Telz●fer her Husband, for a debt due by her Father, as behaving herself as Heir, by Possessing a House wherein her Father died Infeft; and by Setting another House of his to Tenants. It was answered, that james Telzifer was Tennent in the House Possessed by him, before the Defuncts Death, and might Possess, per tacitam relocationem: Neither could he safely leave the House, till he had given it over to some having Right. Which the Lords found Relevant: 2ly. It was alleged that the Defunct had Disponed the same Tenement to the defenders Son, his Oye, which disposition, albeit it attained not Infeftment; yet it was a sufficient Title for Mails and Duties, and to continue Possession, and to purge the vicious Title of behaving as Heir. Which the Lords found also Relevant. Barbara Chapman contra john White. Ianu. 18. 1667. BArbara Chapman pursues a Reduction ex capite inhibitionis, viz. That Calandre being Charged to enter Heir to his Father, who was the Pursuers Debtor, and upon the Charge Inhibition was used against him, after which he Disponed to the Defenders Father. It was alleged by the Defender, that he is minor & non tenetur placitare de haereditate paterna. It was answered, that Calandre, his Father's Author, was never Infeft. Secondly, That the Defenders Father did Dispone the Land to his second Son, by both which, it could not be called haereditas paterna. The Lords Sustained the Defense, notwithstanding of the Reply, and found no Process, till the Defenders majority, and that he was not obliged to Dispute whether his Father's Authors were Infeft: or whether his Father had disponed, or not until his Majority, that he might seek out his Evidences, and defend himself. Reid contra Ianu. 19 1667. IN a Process betwixt Reid and whereof the Title was a Service of the Pursuer, as Heir deduced before the Bailzie of Regality, of Spenzie. It was alleged by the Defender, that this Title was not sufficient, seeing the Service was not retoured. It was answered, that the Service being within the Regality, and of a Person dwelling there, neither needed, nor used to be Retoured, in respect the Service itself was in Record in the Bailzies Books. It was answered, that albeit a special Service of Lands within the Regality, needed not be Retoured in the King's Chancellary, because there was no Precept thence to issue, but the Service within the Regality was sufficient, that thereupon the Precepts of the Lord of the Regality might proceed against the Superior within the Regality, who was Infeft: but in a general Service, which may be before any Judge, whether the Heir Reside in his Jurisdiction or not; there is no difference betwixt a Regality and any other Court, but all must be Retoured in the Chancellary. It was answered, that the Regality having their own Chapel and Chancellary, were not obliged to Retour it in the King's Chancellary. Which the Lords found Relevant and sustained the Service. Isobel Findlason contra Lord Cowper. Ianu. 22. 1667. ELphingstoun of Selmes having given a Precept to Isobel Findlason, and direct to the Lord Cowper, that he should pay to the said Isobel, a Sum owing by Selmes to her, and receive Selmes Bond from her; upon the foot of which Precept, the Lord Cowper directs another Precept to james Gilmore, to pay the said sum: the Woman not being paid, pursues both the Lord Cowper and james Gilmore, for payment. It was alleged for james Gilmore absolvitor, because he had not accepted the Precept, neither was there any ground alleged for which he was obliged to accept, or pay the Lord Cowpers Precept. Which the Lords found Relevant. It was alleged for the Lord Cowper, that the giving of the Precept should not oblige him, seeing it mentioned not value received, or any other Cause; and therefore resolved into a mere desire. It was answered, that the giving of the Precept was an acceptance of Selmes Precept, and behoved at least to import a Donation, to be made effectual by the Drawer of the Precept: or otherwise, an Intercession, or Expromission for Selmes. The Lords sustained the Process, and found the Lord Cowper liable by the Precept, to pay in case of none acceptance, especially seeing it was consequent to Selmes Precept direct to Cowper. Mr. john Mair contra Stevart of Shambelly. Eodem die. MR. john Mair Minister of Traquair, having obtained Decreet against Shambellie, and the Parochioners, to pay him 545. marks, Expended for Reparation of the Manse, and to meet and Stint themselves for that Effect: upon which Decreet, he took Shambellie with Caption, whereupon he gave him a Bond of fourscore pounds for his part. Shambellie now Suspends the Bond on this Reason; that albeit it bear, borrowed Money, he offers to prove by the Chargers Oath, that it was granted for his part of that Stint, and that his proportion thereof, casting the Sum according to the Valuation of the Paroch would not exceed forty marks; and that he granted this Bond for fear of Imprisonment. It was answered, the Reason was not Relevant to take away the Suspenders Bond, being major sciens & prudens; and there was here no justus metus, because the Caption was a lawful Diligence, so that the giving of the Bond was a Transaction of the Parties, which is a strong Obligation. It was answered, that the Suspender when he was taken at his House, was sick and unable to travel; yet the Messenger would carry him away, and being at the Tolbooth, gave the Bond rather, than in that Case to go to Prison, which was an irregular force, and a just cause of fear; but this addition was not proponed peremptory. The Lords Repelled the Reason of suspension, unless the said addition were also instructed instanter, otherways it could only be reserved by Reduction, ex metus causa. Sir Henry Hoom. contra Tenants of Kello and Sir Alexander Hoom. Janu. 24. 1667. SIR Henry Hoom having apprised the Lands of Kello from Henry and john Hooms, and being Infeft, pursues the Tenants for Mails and Duties. Compearance is made for Sir Alexander Hoom, Donatar to the Forefaultor of the said john Hoom of Kello, who alleged that the Forefault Person, the time of the Doom of Forefaultor, was in Possession of the Lands in question, in whose place the Donatar now succeeds, and by the Act of Parliament 1584. It is Statuted, that where the forefault Person was in Possession the time of the Forefaulture, albeit not by the space of five years, which would Constitute a Right to him, that the Donatar must be put in Possession, and continue five years in Possession, that in the mean time he may search and seek after the Rebel's Rights. It was answered; First, That this part of the Statute is only in case the Rebel had Tacks, or Temporary Rights, which neither is, nor can be alleged in this Case. Secondly, The five years' Possession must be reckoned from the Doom of Forefaulture, after which the King's Officers or Donatar, might have attained Possession, and if they did not, their neglect cannot prejudge others. Ita est, there are five years since the Forefaulture, and the Rents are Extant, being sequestered. It was answered that the Act Expresses, not only in Case of Tacks, but also in Possession, and that the five years must be after the Possession began, and not the Forefaulture. The Lords found the alleadgance Relevant, that the Rebel was in Possession, and preferred the Donatar to the five years' Rent, after the date of the Forefaulture. It was further alleged, that the Pursuers Right being but an apprizing, the Donatar would instantly satisfy the same at the Bar. It was answered non Relevat, to retain by way of Exception, but the Donatar behoved to use an Order, and pursue a Declarator. It was answered, that in Appryzing, an Order upon 24 hours' Requisition, was sufficient, there being no further Solemnity required, then that the Appryzer might come to receive his Money. The Lords found that the apprizing might be summarily satisfied hoc ordine. Earl of Argile contra George Campbel. Eodem die. THE Earl of Argile pursues George Campbel, to remove from certrin Lands, who alleged absolvitor, because the Warning was null, not being used at the right Paroch Kirk, where Divine Service at that time was accustomed. It was answered non Relevat, unless it were alleged that the other Kirk were Erected by Parliament or Commission thereof, and that thereby the Old Paroch was suppressed and divided. 2ly, Though that were alleged, it ought to be Repelled, because it is offered to be proven, that all Warnings and Inhibitions have been used at the Old Paroch Kirk, and particularly by the Defender himself. The Lords Repelled the Defense simply, unless the Erection were alleged as aforesaid, and found in that Case, the Reply Relevant to elide the same. Earl of Argile contra George Campbel. janu: 25: 1667: THE Earl of Argile insisting in the Removing against George Campbel. It was alleged no Removing, because the Warning was null, not bearing, to have been Read at the Kirk Door, either at the time Divine Service uses to be, or at least before Noon. It was answered, that the Wairning bore, that the same was affixed on the Kirk Door, and lawfully Intimat there; which does import the lawful time of the Day. 2ly, The Pursuer offered to mend the Executions at the Bar, and abide by it as so done. It was answered, that the Defender accepted the Executions, as produced, after which they could not be amended, and that lawfully could not supply that Speciality; otherwise if the Warning had only born, that the Officer had Warned the Party lawfully, it would have been enough. The Lords admitted the Pursuer to amend the Execution, he biding thereby, and Ordained the Defender to see the same. Hercules Scot contra Gibb. january 29: 1667. Hercules' Scot having given his Horse to John Gib, Stabler in Brunt-Island, to be kept: pursues Gibb for the price of his Horse. The Defender alleged Absolvitor, because he having put out the Horse to the Grass, it being in the Month of July, the Horse fell over a Rock and broke his neck, and the Defender is not liable pro casu fortuito. It was answered, that the Accident was by the Defenders fault, because he put the Horse to Grassing above the craig's of Brunt-Island, and caused tie his Head and Foot together. 2ly, It is offered to be proved by Witnesses, that the Pursuer directed him to keep the Horse in the Stable at hard Meat, and not to put him out to Grass. The Defender answered, that he was not in culpa, because he had put out the Horse in a place, where ordinarily other Horses were put out, and had tied him no other way then the rest of the Horses. 2ly, The Command to keep, is only relevant to be proven, scripto vel ju●amento, and the emission of words without any Fact, is not otherwise probable. The Lords found the Defense and Duply Relevant to elid the Summons, but found the Reply and Triply Relevant to elide the same; and found it Probable by Witnesses, in respect it was a part of the Bargain betwixt the Pursuer and the Stabler. Henderson contra Henderson. Ianu. 31. 1667. UMquhil Henderson grants a Writ in favours of Allan Henderson, whereby he appoints the said Allan to be his Heir, and Donatar to all his Lands and Estate, and assigns him to the Rights and Evidences thereof; with power to Enter by the Superior: But in the Narrative, it bears the ordinar Narrative of a Testament, and has a Clause subjoined to all, in case of his Return, he may alter and annul the same, there having nothing followed in his Life. The said Allan pursues Henderson his appearand Heir, to fulfil the former Writ, and to Enter Heir, and Resign in his favours, conform to the meaning thereof. The Defender alleged Absolvitor; First, Because this Writ is no Disposition, but a Testament, or a Donation, mortis causa, in which no Disposition of Land can be valid. 2ly, Albeit this could be a Disposition, yet it is not done habili modo, there being no Disposition of the Right of the Land, or any Obligement to Infeft, neither can a Person be Constitute Heir, but either by Law or Investiture; or at least, by an Obligement to grant Investiture. 3ly, This being dona●io mortis causa, expressly Revocable by the Defunct at his return, it is ambulatory and conditional: Ita est, he returned and granted Commissions, and Factories, whereby his mind appeared to be changed. The Lords Repelled all these Alleadgances, and sustained the Summons, because though the Writ was unformal, yet they found the Defuncts meaning was to alienat his Right from his Heirs to this Pursuer, to take effect after his death; and albeit he returned, seeing he did no Deed to annul, or recall this Writ, this was effectual against his Heir to complete the same. Creditors of Sir James Murray contra james Murray. Feb. 1. 1667. THere being a Wodset of the Lands of Stirling granted by Sir james Murray to james Livingstoun of the Bedchamber, containing a Clause of Requisition, and Reversion, on payment at London, the Lands being apprised by Sir Iame's Creditors, they having the Right of Reversion, did use an Order at Edinburgh, against james Murray, as now having a Right to the Wodset, and pursue a Declarator. The Defender alleged Absolvitor, because the Order is not conform to the Reversion, which is strictissimi juris, and behoved to be done at London. It was answered, the place being adjected in favour of james Livingstoun, who resided at London: The Pursuers have done more, having consigned at the present Wodsetters Domicile, London being only appointed, as it was the former Wodsetters Domicile, wherein he hath benefit, and can have no detriment. It was answered, he was not obliged to Debate his detriment, for if his Money were in London, he would get six of the hundreth of Exchange to Scotland. The Lords sustained the Order, the Pursuers making up what should be modified by the Lords, for the Interest of the Wodsetters. Earl Tullibardine contra Murray of Ochtertyre. Eodem die. THe Earl of Tullibardine having Wodset the Lands of Logie-Almond, to Murray of Ochtertyre, he did thereafter Discharge the Reversion, and at that same time, got a Back-bond, bearing, That for payment of 56000. marks, with all other sums that should happen to be due to him by Tullibardine, and all Expenses, that he should Dispone the Lands back to Tullibardine, or the Heirs or Assigneys of his own Body; but with this provision, that if he were not paid before Martinmass 1662. the Bond should be null, without Declartor. Tullibardine premonishes, and after Premonition, Dispones the Lands to Sir john Drummond, and they both jointly Consign, and now pursue Declarator. It was alleged for the Defender Ochtertyre. First, No Declarator upon this Order, because the Back-bond is Personal to my Lord, and to the Heirs or Assigneys, being of his Body; so that Sir John Drummond, nor no Stranger can have Right thereby to Redeem. 2ly, The Back-bond is extinct, and null by committing of the Clause Irritant, in so far as payment has not been made before 1662. The Purswer answered to the first, that albeit the Reversion had been Personal to my Lord, only excluding his Heirs and Assigneys; yet my Lord in his own Life-time might Redeem, and being Redeemed, the Right would belong to any to whom my Lord had, or should Dispone. 2ly, This Clause Irritant is pactum legis commissoriae in pignoribus, which by the Civil Law and our Custom is void, at least may be still purged before Declarator obtained, as being rigorous and penal, and so abiding the Lords Modification, as well as Penalties in Bonds Modified of consent of Parties, especially in this case, where the performance is not of a single liquid sum, but comprehends a general Clause of all Debts that were, or should be after due. The Defender answered, that Clauses Irritant in Wodsets, are not rejected by our Law, but are valide, only, where Declarators are requisite, The Lords may Reduce them to the just Interest of Parties before Declarator: But here there needs no Declarator, because the Defender is in Possession, and may except upon the Clause Irritant committed, and the Clause bears, to be Effectual without Declarator, and albeit this Clause could now be Reduced to the just Interest, it is only this, that seeing Tullibardine hath sold the Land, the Defender should give as great a price as it is sold for to Sir john Drummond, which the Defender is willing to do. The Lords sustained the Order, in so far as it is at the Instance of Tullibardine, but not as to Sir John Drummond, but prejudice to Sir John drummond's Disposition; They found also that this Clause Irritant might be purged now at the Bar, or any time before Declarator, which is always necessary, though Renunced, that medio tempore, Parties may purge; And the Lords inclined, that Ochtertyre should have the Lands for the Price Sir John Drummond gave, which is eighty eight thousand marks; but upon Examining him and my Lord, it appeared that my Lord had offered the Land to him, re integra, and that he had never been special, as to so great a Price as this; but only general, that he would give as great a price as any other would give, which they thought not sufficient, seeing any other thereby would be scared from Bargaining. Executors of Lady Pilton contra Hay of Balhousy. Feb. 2. 1667. MR. Francis Hay granted a Bond to his Wife's Sister, the Lady Piltoun, bearing, That for good Considerations, he obliged him to pay her a 1000 marks yearly, during her Life, with this Provision, that it should be Leisum to her to Employ the same, for the Abuliaments and Ornaments of her Body, or any other use she pleased; and but any Right and Interest in her Husband thereto, jure mariti; her Executors do now pursue Balhousie as Heir, for payment, who alleadged-Absolvitor, because he had paid to Piltoun her Husband; and albeit it was provided, that it might be leisum to his Wife to Dispose upon the sum, yet she had not done it, but the Husband had provided her with all Abuiliaments necessary. It was answered, that the Husbands jus mariti, was excluded by Mr. Francis himself: And whatever might be alleged of what belongs to a Wife, proprio jure, that nothing more can remain with her, but her necessary Aliment, and all the rest being in the Person of the Wife, doth return to the Husband jure mariti; albeit the jus mariti were renunced in her favours; yet the Right here is freely given by a third Party, excluding the Husband, which third Party might gift with what Provisions he pleased, and his gift returns to himself, unless these Provisions be observed, and this must be thought to be a gift, seeing it bears no Cause onerous. It was answered, that it bears good Considerations and Expresses not to be a Gift, or done for love and favour. 2ly, If the Gifter were opposing the Husband, or his Creditors Right, and making use of that Provision, that his Gift might return, seeing the Provision was not keeped, it might have weight; but here the Donators Heir makes not use of the Provision, but concurreth with the Husband and payeth him. The Lords found the payment made by the Donator, or his Heir to the Husband Relevant, to exclude the Executors of the Wife. Pourie contra Dykes. Eodem die. UMquhil Dykes having subscribed a Bond to Pourie, of this Tenor, That he acknowledged himself to be resting to Pourie 56 pounds yearly, as the annualrent of a 1400 hundred marks; which sum of 56 pounds, he obliged himself to pay yearly. This was the Tenor of the Bond, whereupon Pourie pursued Dykes his Successors, not only for the payment of the annualrent, but for payment of the principal sum of 1400 marks, alleging that she being but a simple Woman, had entrusted Dykes with the drawing of the Bond, and he had deceived her, and not mentioned the payment of the principal, but that the acknowledgement that the Annualrent was due, as the Annualrent of 1400 marks, behoved to infer that the 1400 marks was also due; this Ticket being holograph, without Witness, there was no clearing of the meaning by the Witnesses insert. Therefore the Lords allowed the Pursuer to adduce such adminicles and witnesses, as she would use for clearing of the same. She adduced an Instrument, bearing, Umquhil Dykes upon his Deathbed, to have acknowledged that he thought the principal sum had been contained in the Obligatory Clause, and that it was through his neglect, or unskilfulness, all the Witnesses in the Instrument being now dead, the Nottar, and he who is mentioned as Procurator, to have taken Instruments in the Pursuers Name, were Examined, both acknowledged that Dykes had expressed his mind in the matter before them; but they were contrary in the particular; the Nottar Deponed conform to the Instrument; but the Procurator Deponed contrary, that the woman had quite the principal sum, and had taken her to the Annualrent. The Lords having considered the whole matter: And first, Whether the Ticket could import that the principal sum was due? They found neither by the Ticket nor by the Instrument, that that could be Instructed: They considered next, Whether the Annualrent was due, during the woman's Life-time only, or as a perpetual Annualrent, to her, her Heirs or Assigneys? The difficulty was, that the Obligement bore, that Dykes should pay the Annualrent yearly, but did not express, neither to her, her Heirs nor Assigneys, but simply in these Terms, To pay the 56 pounds yearly; Which the Lords found to carry a perpetual Annualrent, though Heirs and Assigneys were not expressed. Lady Traquair contra Marion Hovatson. Feb. 5. 1667. THe Lady Traquair pursues Marion Hovatson for the Mails and Duties of a part of the Liferent-Lands; who alleged Absolvitor, because her umquhil Husband, who was immediate Tennent to the umquhil Earl, had, bona fide, made payment to him. Likeas the Defender being only Subtennent to her Son, had, bona fide, made payment to her Son of her Duty. The Pursuer answered. that neither of the Alleadgances were Relevant; because any payment that was made by the Defender, or her umquhil Husband, was before the Term of payment, and so could neither be said to be bona fide nam ex nimia diligentia suspecta est fides, neither could it prejudge the Pursuer. The Lords were all clear that the payment made by the principal Tacks-man, before the Term, was not Relevant; but as to the payment made by the Subtennent to the principal Tennent. The Lords Debate the same amongst themselves, some being of opinion, that the Sub-tennents payment bona fide, before the Term was sufficient, because he was only obliged to the principal Tennent, and he might have a Tack for a less Duty than he, or for an elusory Duty, which if he paid, and were Discharged, he was not conveenable: and oft times the Sub-tennents Term was before the principal Tenants Yet the Lords found that payment made bona fide, by the Subtennent to the principal Tennent, was not Relevant, and that because the Master of the Ground has Action, not only against the Tennent, but also against the Subtennent, or any who enjoyed the Fruits of his Ground, and may conveen them personally for his Rent, as well as really, he has an Hypothick in the Fruits; neither can the Subtennent prejudge the Master of the Ground of that Obligation and Action, by paying before the Term; otherways he might pay the whole Terms of the Tack, at the very entry thereof, and so Evacuat the Heretors' Interest, as to the Subtennent; yea● though the Sub-tennents Tack-duty were less than the principal Tenants, it would not Exclude the Heretor, pursuing him as Possessor for the whole, but only give him Regress for Warrandice against the principal Tacks-man; but the Term being come, if the Heretor Arrested, nor pursued not the Sub-tacksman, he might impute it to himself, and the Sub-tacks-man might justly presume that the principal Tacks-man had paid, and so might pay him bona fide. Countess of Hume contra Tenants of Alcambus and Mr. Rodger Hodge. Eodem die. THe Countess of Hume being provided by her Contract of Marriage, to the Lands of Alcambus; Pyperlaw, and Windilaw, extended to 24 Husband-Lands, she gets a Charter upon her Contract, bearing, For Implement thereof, to Dispone to her the Lands and Barony of Alcambus, etc. with a Seasine taken at Alcambus; She thereupon pursues the Tenants. Compearance is made for Mr. Roger Hog, and other Creditors, who bought these Lands from Wauchtoun, who had bought them from the Earl of Hume, and alleged Absolvitor from the Mails and Duties of the Miln of Alcambus, because my Lady by her Contract of Marriage was not provided to the Miln; neither was she Infeft therein, per expressum; and Milns do not pass as Pertinents, without a special Infeftment. 2ly, Absolvitor for the Rents of Pyperlaw and Windilaw, because my Ladies Seasine● bears, Only Infeftment in the Lands of Alcambus, and mentions not these Lands which are particularly in the Contract. The Pursuer answered to the first, That by her Charter, she was Infeft in the Lands of Alcambus, with the Milns; with other Lands mentioned therein, etc. 2ly, That Alcambus bore, by her Charter, to be a Barony, which is nomen universitatis, and carries Milns, albeit not expressed. To the second, It is offered to be proven, that Alcambus is the common known Designation, and is commonly known to comprehend Pyperlaw and Windilaw, as Parts and Pertinents thereof, and that they are all holden of one Superior, and lies contigue; so that they are naturally unite, and without any further union in a Barony or Tenement; and a Seasine upon any place of them serves for all. It was answered for the Defender, to the first Point, That Alcambus was not a Barony, neither doth the Designation thereof by the Earl of Hume, make it a Barony, unless it were instructed. 2ly, The adding of Milns in the Charter, if the Lady had not Right thereto by the Contract, is a Donation by a Husband, and is revoked by his Disposition of the Lands of Alcambus, and Miln thereof, to the Laird of Wauchtoun, the Defenders Author. The Pursuer answered, that the Charter was but an Explication of the meaning of the Parties, that by the Contract, the intention was to Dispone the Miln, especially, seeing the Miln hath no Sucken but these Husband-Lands of Alcambus, which are Disponed without any Restriction of the Multure; so that the Miln would be of little consequence without the Thirse. The Lords having compared the Contract and Charter, found that by the Contract, the Lady could not have Right to the Miln, 〈◊〉 she would be free of the Multures; and found that the Charter did not only bear for Implement of the Contract, but also for love and favour, and so found the Adjection of the Miln, to be a donation Revocked; Nor had they respect to the Designation of the Lands as a Barony, but they found it Relevant, if the Lady should ●rove that it was a Barony, to carry the Right of the Mi●n, or that in my Lords Infeftments, there was no express men●●●n of the Miln, but that my Lady had them in the same Terms my Lord had them: They found also, that Reply Relevant, that Alcambus was the Name of the whole Lands, to extend the Sea sine to the Lands of Pyp●rlaw and Windilaw, though not named, and that they might be yet Parts and Pertinents of the Tenement, under one Common Name. Andrew Smeatoun contra Tabbert. Feb. 7. 1667. ANdrew Smeatoun being Infeft in an Annulrent out of a Tenement in the Canongate, pursues a Poinding of the Ground, and produces his own Infeftment and his Authors, but not the original Infeftment of the Annualrent. It was alleged no Process, until the original Infeftment were produced, constituting the Annualrent, especially seeing the Pursuit is for all bygones, since the date of the Author's Infeftment; so that neither the Pursuer, nor his immediate Author hath been in Possession. 2ly. If need beiss, it was offered to be proven, that before the Rights produced, the Authors were denuded. It was answered, that the Pursuer hath produced sufficiently, and that his Right was clad with Possession, in the Person of his mediate Author, before the years in question. To the second, this Pursuer hath the benefit of a possessory judgement by his Infeftment, clad with Possession, and is not obliged to Dispute, whether his Author were denuded or not, unless it were in a Reduction. The Lords sustained the Pursuers Title, unless the Defender produced a Right anterior thereto; in whi●h case they ordained the Parties to be heard thereupon, and so inclined not to exclude the Pursuer, upon the alleadgeance of a possessory judgement; but that Point came not fully to be debated: It is certain that a possessory judgement is not relevant in favours of a Proprietar, against an Annualrenter, to put him to Reduce, because an Annualrent is debitum fundi; but whether an Annualrenter possessing seven years, could ex●●ude a Proprietar, until he Reduce, had not been decided, but in this case the Lords inclined to the Negative. Mr. Alexander Foulis and Lord Collingtoun contra Tenants of Innertyle and La. Collingtoun. Feb. 9 1667. SIr james Foulis of Collingtoun, being in treaty of Marriage with Dam Margaret Erskin, Lady Tarbet, She did dispone 36 Chalders of Victual, of her Jointure in the North, to a confident Person, that she might make use thereof, for the benefit of her Children; and Disponed 36 Chalders of her Liferent of the Lands of Innertyle, to Cuninghame of Woodhal, who transferred the same to Mr. Alexander F●ulis of Ratho, who granted a Back-bond, bearing, That his Name was made use of for the use and behoove of Collingtoun and his Lady, and that to this effect, that the profit of the Liferent should be applied to the Aliment of their Families jointly; and therefore obliged himself to Dispone in their favours, and de presenti did Dispone. The next day after this Disposition, there is a Contract of Marriage betwixt Collingtoun and the Lady, wherein there is this Clause, that Col●ingtoun Renunces his jus mariti, to the Lady's Liferent, or any other Right he might have thereto by the subsequent Marriage, and takes his hazard for what he may have any other way. Mr. Alexander pursues the Tenants upon his Disposition. Compearance is made for the Lady, who alleadges he hath no interests because he is denuded by the Back-bond. Compearance is made for Collingtoun, who declared he concurred with Ratho, and consented he should have the Mails and Duties, to the effect contained in the Back-bond, and that he would not make further use of the Re-disposition contained therein. It was answered for the Lady, that Collingtouns concourse could not sustain this Process, because Ratho was already the presenit, denuded in favours of Collingtoun and her; Likeas Collingtoun was denuded by his Contract of Marriage whereby he renunces his jus ma●iti, and all other Right he can have to the Liferent La●ds, in favours of the Lady, and so renunces the Clause of the Back-bond, in so far as it is in his favours. It was answered, that the Contract of Marriage could not deerogate to the Back-bond, unless the Back-bond had been per expressum, Discharged or Renunced therein, because albeit the Contract of Marriage be a day posterior to the Back-bond, yet both are parts of one Treaty of Marriage, and so in the same condition, as if they were in one Writ, so that a posterior Clause in general Terms, cannot take away a prior special Clause of this moment; yea though it were in a Contract le●s favourable than a Contract of Marriage, which is ube●●mae fidei, general Clauses are not extended above what is specially expressed, and the jus mariti being expressed, and the Back-bond not expressed, it cannot be presumed, that they changed their minds in one night, to Renunce the benefit of the Back-bond; but this Conveyance was made of purpose, because Collingtoun being in Debt, if the Right were Constitute in a third Party, and only to their behoof as an aliment, the Creditors could not reach the same, but it were the greatest Cheat imaginable, to conceive that the general Clause subsequent, should evacuat the whole design, and take away the provision of the Back-bond: Neither doth the general Clause renunce all Right that Collingtoun had, or might have to the Liferent-lands, any manner of way; but only all Right he could have by the subsequent Marriage, any manner of way. Ita est, that he doth not claim Right jure mariti, nor by the subsequent Marriage; but by the Paction contained in the Back-bond; and it is most certain that the jus Mariti, which is most peculiar to this Nation, doth not comprehend all Rights a Husband hath, in relation to the Person, or Means of his Wife, but only the Right of movable Goods, or Sums, which without any Paction, whatsoever way they come in her Person, belong ipso facto to him, not by Paction, but by Law; and that jure mariti, or by virtue of the Marriage: so tha● albeit he could not have Right, even by the Paction, except that he were Husband, or that Marriage had followed, yet his Paction is his Title, and not the Marriage, which is but tacita conditio, or causa sine qua non, so that Discharging, or Renuncing of the jus mariti, or the benefit by the Marriage, if it were posterior to the Contract of Marriage, would not take away the Contract, and being in the Contract, cannot take away the prior ●action, and Disposition granted by the Wife, in favours of a Husband, or a third Party to his behoof. It was answered for the Lady, that she adheres to the clear express Terms of the Contract of Marriage, which Renunces not only the jus mariti, but all other Right to the Liferent-lands, by the subsequent Marriage, which being a several Writ, and a Day posterior, most necessarily take away the Back-bond, without considering the meaning of Parties, quia in claris non est lo●us conjecturis; at least the meaning can be no otherways cleared but by Writ, or the Lady's Oath; otherwise the most clear and solemn Contract shall be arbitrary, and may be taken away by presumptions or conjectures, and no man shall be secure of any Right. 2ly, Verba sumendasunt cum effe●●u; i● this did not take away the Back-bond, it had no effect for the L●dy, before the Contract was denuded, of her whole Liferent, both of Inne●tyle and in the North, so that there was no need to Renunce the jus mariti, or Right by the Marriage to the Liferent-lands. It was further alleged by the Lady, that albeit the Renunciation could not reach the Back-bond, in so far as it is a Paction, so that it yet stood effectal for application of the Liferent right, for the aliment of the Lady and Collingtouns Family jointly, yet thereby they both had a Communion and Society equally, and the Husband could pretend no Right in the administration or manadgement, but only jure mariti, in so far as he is Husband, and therefore he acknowledging that he has renunced his jus mariti, cannot pretend to the administration of this aliment, but it must remain entirely to the Lady. The Lords found that the Claus● in the Contract of Marriage, did not deerogate to the Back-bond; and as to the Point of administration, they considered it to consist in two things, in uplifting the Rent, and manadging the Liferent-lands, and in the application thereof to the use of the Family, and manadging the Affairs of the Family, As to the first, they found th●● both Parties having entrusted Ratho, the Trust of manadgement of the Rent, could not be taken from him without Collingtouns consent; and as for the manadgement of the Family itself, they found, that it neither was, nor could be re●un●ed by the Husband, in favours of the Wife, and that any such Paction, though it had been clear and express, taking the Power and Government of the Family from the Husband, and ●●ating it in the Wife, is contra bonos mores● and void, a●d that the jus maritime as it is properly taken in our Law, for the Husband's interest to the Wife's Movables, being Renunced, cannot be understood to re●●h to the Renunciation of the Husband's power, to Rule his Wife and Family, and to administrat the aliment thereof. Elizabeth Ramsay contra Ker of Westnisbet. Eodem die. ELizabeth Ramsay having pursued an adjudication of certain-Lands upon the Renunciation of Barbara Nisbet, insists upon that Member of the Summons against the Superior john Ker, that he should receive and Infeft her; who alleged no Process, unless the Pursuer show the Right of the former Vassal, whose Heir had Renunced, for the Pursuer can be in no better case than the appearand Heir, who if she were craving to be Entered, behoved to Instruct her Predecessors Right. The Pursuer answered, that her adjudication against the Defender as Superior, is in common form, which hath been ever sustained upon good ground, because a Creditor has no Interest to have his Debtors Rights, when he is seeking adjudication, which must be his Title, to demand the Rights, but the Superior is obliged by Law to reserve the Adjudger, without Instructing any Right further than the adjudication, which hath been frequently so found in the case of Appryzers. The Lords having considered the case and parallel, with that of Appryzers, found this difference, that Superiors got a years Rend for receiving Appryzers, but not of Adjudgers; yet in respect of the common custom of these Summons, they repelled the defence, and Discerned the Superior, to receive the Pursuer, salvo jure ●ujuslibet & suo. Damn Geibs Moncreiff contra Tenants of Neutoun and William Yeoman Eodem die. Damn Geils Moncrief being Served to a Terce of the Lands of Newtoun pursues the Tenants for a third part of the Duties, who having Deponed that they paid so much for Stock and Teind jointly for Yeards, Parks, and the whole Lands possessed by them. Compeared William Yeoman, as now having Right to the Fee, who alleged no Terce of the Teinds, because they fell not under Terce. 2ly, No Terce of the yards, because as the Mannor-place belonged to the Fire without division, so behoved the closely Gairdens, Orchards, yards, etc. The Lords found the Pursuer to have no Right to the Teind by her Terce, unless there had been an Infeftment of the Teinds by Erection, and therefore laid by the fourth part for the Teind; and found that the years in question being possessed by the Tenants, and there being nothing alleged nor instructed, that there was a Tower, Fortalice, or Mannor-place, having a Garden, or Orchard for pleasure, rather than profit, they found no necessity to decide, what Interest a Tercer would have in such, but these being set by appearance, as Grass Yeards, they Repelled the alleadgeance. Earl Tullibardine contra Murray of Oc●tertyre. Feb. 12. 1667. IN the Declarator at the Instance of Tullibardine, against Murray of Ochtertyre, Dispute the first of february last, It was now further alleged for Ochertyre, that Clauses Irritant in Wodsets, not being illegal, or null by our Law, albeit the Lords do sometimes Restrict the Effect thereof, ad bonum & aequum, to the just Interest of the Parties, against whom the same is conceived, they do never proceed any further; But here Ochertyre is content to make up to the Earl his just Interest, by paying a greater price for the Land then Sir john Drummond: and whereas it was alleged, that this was not receivable now, after the Earl had made bargain with Sir john Drummond, Ochetyre now offered to prove, that before any Bargain was agreed, in Word or Writ, he did make offer to the Earl of fourscore ten thousand marks, which he offered to prove by Witnesses, above all exception, who communed betwixt them, viz. the Lord ●tormount and the Laird of Kylar. It was answered, that the Pursuers adhered to the Lords former Interlocutor, whereby they have restored the Earl against the Clause irritant, he satisfying Ochtertyre his whole Interest, cum omni causae, the same Point being then alleged and Dispute, a●d both Parties being judicially called, and having declared their minds concerning any such offer, whereby the Earl upon his ho●our, declared that before the agreement with Sir john Drummond: Ochtertyre offered not so much by 4000 marks. 2ly, Any such alleadgence albeit it were competent, it were only probable s●ripto vel juramento; the Earl now having Disponed to Sir john Drummond, so that the Effect would be, to draw him into double Dispositions, which is of great consequence, both as to his Honour and Interest, especially seeing that Ochtertyre did not take an Instrument upon the Offer. It was answered for Ochtertyre, that the former Interlocutor cannot exclude him, especially seeing he did only then allege, that he made a general offer of as much for the Land as Sir john Drummond would give therefore, but now he offers to prove, that he offered 90000 marks, which is 2000 marks more than Sir John's price. The Lords found that they would only restrict the Clause irritant, to the Effect that the granter of the Wodset might suffer no detriment, which they found to be Effectual, if the Wodsetter offered as great, or a greater sum than the other buyer, before any Bargain agreed between them, either in Word or Writ; ●ut found it not probable by Witnesses, but by Writ, or the Earls Oath; and found that a general offer was not sufficient, unless it had Expressed a particular sum. Lord justice Clerk contra Rentoun of Lambertoun. Feb. 13. 1667. THe Lord Rentoun, Justice Clerk, putsues Rentoun of Lambertoun, as heir to his Father for Compt and Payment of his Rents, Woods and Planting, intrometted with by Lambertoun, in the beginning of the troubles. It was alleged for the Defender, absolvitor, because by the Act of Indemnity, the lieges are secured, as to all things done by any pretended Authority for the time. Ita est, The pursuer being sequestered, the Defenders Father meddled by Warrant from the Committee of Estates, and made Compt to them, as appears by his Compt produced● which is balanced by the Committee. 2ly, The said account bears, That Lambertoun made Faith that it was a true account, nothing omitted in prejudice of the public; after which he could not be questioned, either for any thing in the account, or for any thing omitted and not charged. The Pursuer answered, that the Act of Indemnity contains an express exception of all Persons, that meddled with any public Moneys, and had not made Compt therefore, that they should yet be comptable. 2ly, The account produced contains two accounts, one in anno 1641: another in anno 1643. The first is not approven by the Committee, but adjusted by three persons, who were no members of the Committee, and whose Warrant is not Instructed: and the second count is only approven, wherein the Charge is a Rest in the Tenants hands of the former account, and the Oath is only adjected to the second account, which cannot Import that Lambertoun ommitted nothing in the first account, but only that he ommitted nothing in the second, and his Oath is only to the best of his knowledge, and can import no more, than the Oath of an Executor upon the Inventar, which excludes not the Probation of super Intromission. It was answered for the Defender, that the second account being the rest of the first account, the approbation of the second must approve both, and the approbation is sufficient Warrant for him to intromet, and the Auditors to count with him. The Lords Repelled the Defense upon the Act of Indemnity, in respect of the foresaid Exception contained therein; and likewise found, that the Oath subjoined to the second account, could not exclude the Pursuer from insisting, for the Defenders Fathers intromissions ommitted out of the first account, and wherewith he Charged not himself, but found that the Defender was secure by the Act of Indemni●y, so far as he had charged himself with, and counted; and found that he was not obliged, after so long a time to instruct his Commission, or the Warrant of the Auditors, that fitted his accounts; but that the approbation was sufficient to astruct the same. Lady Diana Maxwel contra Lord Burley and others. Feb. 15. 1667. LAdy Diana Maxwel, Lady Cranburn and other Executors confirmed to the Countess of Dirletoun; pursued the Lord Burley, as Representing his Father, for payment of a Bond granted by his Father and others; to the umquhil Earl of Dirletoun, for the price of a great quantity of Victual, and that upon these Grounds, that the Pursuers are Executors surrogate to the Countess, and have licence to pursue; which Countess had an assignation from the Earl to his Householdstuff, which bore this general Clause, And to his Chattel, and other Moveable-goods and Gear whatsomever; under which generality, this Bond is Comprehended, being movable, and for Victual, and so is a Chattel, as the word is understood by the Law of England; whereby all that is not by Infeftment of Fee, is comprehended by the word Chattels, and belong to the Executors, as Laisses, etc. 2ly, The Countess was nominat universal Legatrix in the Earls Testament, and thereby has Right to this Moveable-bond: 3ly, As Relict she has Right to the half. It was alleged for the Defender, no Process upon any of these Titles. First, Because the assignation cannot be extended to this Bond; neither is the word Chattels to be Interpret according to the Law of England, the assignation being made by a Stots-man, and made in Scotland, after the Scottish manner. 2ly, The Pursuers as Executors to the Countess, cannot pursue upon the universal Legacy, the Debtors of the Defunct, but only the Defuncts Executors● because this Bond is yet in bonis primi defuncti, and must be Confirmed. 3ly, The Relict cannot pursue the Debtors for her half, but at least, she must call the Executors. The Lords found both the last Alleadgences Relevant, but as to the first, before answer they ordained the Pursuer to adduce what Evidences they had to instruct the signification of the word Chattels, by the Law of Engl●nd, in respect it was notour to them, that the Lord Dirletoun beìng a Servant of the Kings, lived the most part of his time in England, and in Scotland there is no use of the word Chattels. Isobel Glen contra john Hume. Feb. 19 1667. ISobel Glen as assigney by Mr. Edward Jameson, having obtained Decreet against the umquhil Earl of Hume, for certain byrun Stipends, and thereupon having arrested in my Lord Whitekirks' hands, certain Sums due by him, to the Earl of Hume: She now pursues to make forthcoming. Compearance is made for john Hume▪ who produces an assignation by the Earl of Hume, to the sums due by Whitekirk, and also produces a Gift of the Earls Liferent-Escheat; and alleadges, first, No Process at the Arresters' Instance, because the Earl of Hume being dead, the Debt must be first Established by a Decreet, against one Representing him, who must be called principaliter, before the Person in whose hands the arrestment is made, can be discerned to pay that which was the Defuncts. 2ly, john Hume must be preferred as Donatar, because the arrestment was laid on after the Earl of Humes Rebellion, by which his Goods belonged to the King, and no Sums can be made forthcoming, as belonging to him after the Rebellion, because they belonged to the King. It was answered to the first; That if the Earl of Hume had not died at the Horn, the Pursuer would have either Confirmed as Executor Creditor, or called the Earls Executors, but that is not necessary, seeing the Earl died at the Horn, and could not have one to Represent him in mobilibus; and that now the Donatar who succeeds, compears. To the 2. the Pursuer as Arrester, aught to be preferred▪ because albeit the arrestment be after the Rebellion, yet it is before the Gift or Declarator; and it is for a Debt due by the Earl, before the Rebellion, and so doth exclude the Donatar, for which they produced a Decision marked by Dury, Pilmour contra Gaigie. In which case the Gift was granted by a Lord of a Regality, having the benefit of the Escheat, whereanent the Lord Advocate Represented, that this could not be drawn in consequence, to prejudge the King or his Donatar, because the Lord of Regality being a Subject, debuit invigilare sibi, by declaring the Rebellion without delay, but the King cannot so soon know, nor is he prejudged by the neglect of his Officers. Yet the ●ords u●animouslie preferred the Arrester, the Advocate forbearing to Vote, for they t●●ught the c●se of Creditors for Debts before Rebellion were not to be prejudged, ●●●ng Diligence before Declarator, or if they should Poind, Arrest, Adjudge, etc. Cranstoun contra Wilki●on Feb. 20. 1667. BY Contract of Marriage betwixt Wilkison and his Spouse, he is obliged to Infeft her in a Tenement, expressed therein, and in all the Conquest during the Marriage; which Infeftments were to be taken to them, the longest liver of them two, in Conjunct-Fee, and their Heirs betwixt them: Which failzing, to the Heirs of the Mars Body: Which failzing, to the Wife's Heirs whatsomever; after which the Husband purchased a piece of Land, but took the Infeftment thereof● to him and his ●ife, and the heirs betwixt them: Which ●ailzing, to his own heirs whatsomever, omitting the wife's heirs. This Cranstoun obtains hi● self Infeft in this Conquest Tenement, as Heir to the Wife, and thereupon obtained Decreet for Mails and Duties. Wi●●ison as Heir to the Husband, pursues Reduction of the Decreet on these grounds: first, That Cranstouns Infeftment, as Heir to the Wives was null, because the Wife was not Fire, but Liferenter. 2ly, The Wife having accepted of an Infeftment, posterior to the Contract, without mention of her Heirs, that innovat the Provision of the Contract, and excludes her Heirs. It was answered; first That the Man and Wife being Conjunct fiars, the Wife was Fiars and the Man but Life ●enter, because the last Termination of Heirs whatsomever, Terminat upon her. 2ly, Albeit Cranstoun had taken his Infeftment wrong, Wi●kison cannot quarrel the same, because he, as Heir to Wilkison, was obliged to Infeft him, as Heir to the Wife; and to the posterior Infeftment, it is contrair to the provision of the Contract of Marriage, and there does appear no accepting thereof by the Wife. 3ly, Cranstoun is not obliged to disput the validity of this Right, because he hath been Infeft qua●●ter qunque, and by virtue of his Infeftment, hath been seven years in Possession, whereby he hath the benefit of a possessory Judgement, ●ay and while his Infeftment be Reduced. The Lords found, that even by the Contract of Marriage, the Husband was Fire, and not the Wife: But that the Wife's Heirs of line, were Heirs of Provision to the Husband, and that if there had been an heir of the Marriage, or an ●●ir of the Man's Body, they could never have been served ●eirs to the Wife: and that by the deficiency thereof, the condition of the Fee cannot change: and therefore they found that Cranstoun was wrong infeft; yet they found the alleadgence of his seven years' Possession Relevant, to give him the benefit of a possessory judgement, without Disputing, whether the Provision of the Contract of Marriage, in favours of the wife, was derogat, by the posterior Infeftment, omitting her heirs. Andrew Litlejohn contra Duchess of Monmouth. Eodem die. ANdrew Litlejohn pursues the Duchess of Monmouth, and her Curators, for payment of a Tailor account, taken off by the Duchess for her Marriage Sow; to the fit whereof, she adjoins these words, I acknowledge the Account above-written, and subscrives the same. It was alleged by the Curators, that the Countess Subscription, being after her Marriage, can neither oblige herself, nor her Husband, because Wives Obligations are ipso jure, null. It was answered that the Duchess being persona illustris, and the account for Furniture to her Body at her Marriage; her account fell not under the Nullity of Ordinary Obligations by Wives, whose Bonds are null, not so much because their Subscriptions prove not the Receipt of the Money, as because, being in potestate viri, they cannot employ it profitably for their own use, which ceases here, the account being for necessary Furnishing, which both obliges the Wife, and her Husband, who is obliged to Entertain his Wife. The Lords Discerned, the Pursuer always making Faith, that it was a just, and true account, truly Resting, and owing; and would not put the Pursuer to instruct the delivery by witnesses, who are at London: considering especially, that the Duchess, being such an illustrious Person, her Subscription could not be questioned upon so small a Matter, as obtained without delivery. Helen johnstoun contra Robert Johnstoun. Eodem die. HElen johnstoun alleging that there was a Blank-bond in her Brother Robert's hand, to her use, and that he promised to apply the benefit thereof to her, doth pursue the brother, either to deliver the Bond, or otherwise the sums therein, and offers her to prove by the Debtors Oath, that the Bond was blank in the Creditors Name, when it was Subscribed by him, and by Witnesses above Exception, that it was blank when she delivered it to the Defender; and craved the Defenders Oath of Calumny concerning the promise. The Defender alleged, that he was not obliged to give his Oath of Calumny upon one Point of the Lybel, but upon the whole. The Lords found, that he was obliged to give his Oath upon one point of the Lybel; But they found that Witnesses were not Receiveable to prove the Bond to have been Blank, to infer Redelivery of the Bond, or Sums; And found likewise, that s●ing the whole Lybel was only probable by his Oath, he was not obliged to give his Oath of Calumny, but only his Oath of Verity, seeing he might be ensnared by denying upon his Oath of Calumny, which was lubric, and of dubious interpretation, what it imported, and so might be prompted to wrong himself in his Oath of verity, lest it should clash with his Oath of Calumny. vid. 21. Feb. 1667. inter eosdem. Lord Thesaurer, and Lord Advocate, contra Lord Colvil, Eodem die. THe Lord Thesaurer, and Lord Advocate pursue the Lord Colvil for the single avail of his Marriage, in so far as he was Married when his Predecessor was on Deathbed, and was moribundus, and was Married without proclamation, within seven, or eight days before his Predecessors Death, which precipitation of his Marriage did manifestly presume that it was of fraud, to seclude the King from the benefit of the Marriage, and so it was in the same case as if he had been Married after his Predecessors death; and repeated the opinion of Sir john Skeen in his Explicati●ns upon Quoniam Atachiamenta se Maritagio, bearing that it was praxis fori, that if the Vassal g●ve his Heir in Marriage upon Deathbed, it was esteemed a fraudulent precipitation, in prejudice of the Superior, and gave the Superior the single avail of the Marriage; and sets down three Decisions, whereby it was so found. It was answered for the Defender Absolvitor, because there is neither Law, nor Custom gives the Superior the avail of the Vassals Marriage, if he be Married before his Predecessors Death, but Craig, and other Lawyers do define this casualty to be, the avail of the appearand Heir of the Vassals Marriage, Marrying after his Predecessors Death: and as to the ground insinuat of fraud, by precipitation it is no ways relevant. First, Because, albeit it did appear that the Defunct Vassal had Married his Heir, of design to prevent the Marriage, yet here is no fraud, but a warrantable Providence, which is not dolus malus sed do●us bonus; for fraud is never understood, but when it is contra jus delatum, and not of the prevening of jus deferendum, for thereby only the Right, and Interest of another is taken away: as for example, any Heretor may damn, or divert the water upon his ground, as he pleases, and cannot be hindered, upon pretence that his Neighbour might thereafter make use of that water for a Miln to be built, and yet if the Miln were built, he could not thereafter alter the course of the water; so here the Superior having no present Right, but in spe, the Vassal endeavouring to prevent the casualty, commits neither fraud, nor fault; otherwise upon pretence of fraud, a Marriage might be claimed, when the Predecessors resign in favours of his appearand Heir, or suffers his Land to be apprised, in name, or to the behoof of the appearand Heir, which yet was never challenged, neither hath a Marriage been obtained, or demanded upon this ground by the space of these threescore years. 2ly, Albeit prevention could be fraud, yet here is nothing alleged to infer fraud, which is never presumed, unless it be evidently proven, and when any other 'Cause is possible, the Effect is never attribute to a fraudulent Cause: But here there is a most probable Cause. viz. That the Defunct desired to see his Successor Married to his satisfaction, it being very ordinar that the ruin of Families arises either through the not Marrying, or Marrying unfitly of the Heir. And as for the presumptions of fraud; here they are neither evident, nor pregnant: As to the Decisions, no respect to them; first, Because they are three●core years in desuetude; 2ly, There is here nothing but the very instancing of the Practics, without deducing the Case dispute, and Reason of Decision, neither can Sk●ens conclusion take place, in all the largeness he sets it down, or else there shall need no more to infer a Marriage, but that the Vassal was in lecto egritudinis, albeit he had so continued of a Lent Disease, above a year, nothing should Capacitat him to Marry his Heir, although he used all the Solemnities of Treaty, Contract, and Proclamation: so that the Law de lecto ●gritudinis, which is only introduced in favours of Heirs, that their Predecessors shall not prejudge them, shall now be made use of against the Heir, that his Predecessor can do nothing to his benefit, on Deathbed. The Pursuer answered, that the feudal Contract being of its own Nature Gratuitous and most favourable on the Part of the Superior, that which he hath for his Fee, being ordinarily the Service of the Vassal, and the profit of the Fee when the Vassal is unserviceable, through Minority (reserving the Vassals own Aliment) and the profit of the Vassals Tocher; the Vassal ought not to defraud, or prejudge him therein. And albeit custom hath introduced an exception, that the Tocher is not due to the Superior, which was gotten during the Predecessors Life, it being ordinarily consumed, and applied to the Predecessors use; yet that by precipitation the appearand Heir should enjoy the same, and not the Superior, is against the Gratitude, Amity, and Obligement of the Vassal: neither is there any Parity in the Case of a Resignation, to which the Superior consents, or in the Case of an apprizing, wherein the Superior must Receive, by the force of Law; nor can the forbearance of sixty years infer a contrary Custom, because this is a Case rarely contingent, and oft times not known to the King's Officers; and though it were, their negligence prejudges not the King, by an express Act of Parliament; neither is that a Custom which People use to do, but Customs here are only such as are Judicial, by the King's Ministers of Justice, whereanent Skeen expressly saith, that this is praxis, forensis; and albeit the Decisions Adduced by him be not at large, yet the circumstances of fraud here, are so pregnant, that they cannot be thought to have been more pregnant in any other Case, where there was no Proclamation, and where the Defunct was not only in lecto, but was moribundus, Physicians having so declared, the common Reputation being, that he would not Live, and D●ing de facto, within a few days after, and there being no singularity in the Match, nor any pressing necessity of the Marriage, for any other Effect. The Lords found the Lybel, and Reply relevant; viz. That the Marriage was done, when the Predecessors Father was moribundus, and done wîthout Proclamation, and that he Died within eight days after, there being nothing alleged to take off the Presumption of fraud upon these Circumstances. Robert Miln contra Clarkson, February 21. 1667. RObert Miln as Donatar to a Liferent Escheat, having obtained a general Declarator, insists now in a special Declarator for Mails and Duties. It is alleged for Clarkson, that the Pursuer has no right to the Mails and Duties, because he stands Infeft before the Rebellion. It was answered, any Infefetment Clarkson has, is but a base Infeftment, never clede with Possession till the Rebellion, and year and day was run, and so is null, as to the Superior, or his Donatar. It was answered, that the base Infeftment is valide in itself, and albeit by the Act of Parliament, 1540 A Posterior public Infeftment, for Causes Onerous be preferable, yet that cannot be extended to the Right of a Liferent Escheat, or to a Donatar. It was answered, that by the course of Rebellion, year and day the Superiors Infeftment Revives, as to the Property, during the Rebels Liferent, and cannot but be in as good condition as any Posterior public Infeftment; and it was so decided, March 19 1633. Lady Rentoun contra Blackader. The Lords found that the base Infeftment, though Prior to the Denunciation, not having attained Possession within year and day, could not exclude the Liferent Escheat. Helen johnstoun contra Robert johnstoun, Eodem die. IN the Cause betwixt Helen johnstoun and Robert johnstoun her Brother, It was further alleged for her, that the Pursuit, being a matter of breach of Trust, and Fraud, betwixt Parties so nigh as Brother and Sister; the same aught to be Probable by Witnesses above exception, and ought not to be referred to the Defenders Oath; because it's offered to be proven that he did Depone before the Justices of Peace in Fife, that he had never had the Bond in question, and yet in this Process it is Judicially acknowledged in the Dispute that he hath the Bond, and that he received it blank from the Pursuers Husband; and it's now offered to be proven by his own Brother, and other Witnesses, above exception, that the Pursuer delivered the Bond to him blank after her Husband's death, which being a matter of Fact, and Probable by Witnesses, necessarily infers that the Bond was not redelivered to her Umquhil Husband. The Lords before answer ordained the Witnesses ex officio to be examined, upon the Pursuers delivery of the Bond after her Husband's Death. Earl of Errol contra Hay of Crimunmogat. February 23. 1667. THe Earl of Errol Pursues a Declarator of Redemption, against Hay of Crimunmogot: It was alleged Absolvitor, because the Defender stands Infeft upon a Charter granted by Barcklay, with the consent of the Earl of Errol, proomni suo jure, long after the reversion, granted be Barcklay, whereupon this Redemption proceeds. It was answered for the Pursuer. 1. That the Earl only consents, and the Charter bears that the Sums were paid to Barcklay, whose Right produced is a Wodset, granted by the Earl of Errol, and Hay of Vrie, bearing an Express Reversion to any lawful Eldest Son of Hay of Vrie, which failzieing to the Earl of Errol. Ita est that the time the Earl Subscrived this Charter, Hay of Vrie was alive, and had Sons, at least in spe; so that the Earl of Errol had not thereby the Right of the Reversion, and therefore his consent, without any Sums received, or any absolute Warrandice, cannot extend to any superveening Right, which he then had not actually, but in spe et in apparentia. 2ly, The Earls consent to Barcklayes Disposition, who had only the Right of Wodset, not bearing irredeemable, or absque reversione, cannot take away the express Reversion of Barcklayes Right: for albeit an Heritable Right be presumed Irredeemable, presumptio cedit veritati, and it cannot take away a Reversion where it is. The Lords found that the Reversion granted in Barcklayes Right was not taken away by this Posterior Right, and Charter; but that the Earls consent imported only his Favour, and Goodwill to transmit the Right to the Defender; in respect of the alledgeances aforesaid. Laird of May contra John Rosse. Eodem Die. UMquhil Dumbaith having Disponed several Lands to his Oy, john Rosse Brother to Kilraick, the Laird of May, Dumbaiths' Heir-male pursues Improbation and Reduction of the Disposition: and insisted upon this ground that the Disposition was false in the Date; and that the Defunct was ali●it the time it appears to have been subscrived, and therefore is false in all. It was answered that there was only an Error in the Date, in respect, the same Right having been conceived formerly in formerly in favours of another, Dumbaith gave order to draw it over in favours of the Defender verbatim, and the Writer ignorantly Wrote over the Date as it was in that first Disposition, which can no ways annul the Writ, especially seeing it was offered to be proven by the Witnesses insert that the Writ was truly subscribed by Dumbaith, and them as Witnesses, when he was in his Liege-poustie, against which no alledgeance of alibi by other Witnesses not insert can be respected. This having been Dispute in the English time▪ the Witnesses were Examined before answer, by three of the Judges, and now the Cause was Advised. The Lords found the Defense relevant to elide the Improbation, that the Writ was truly subscribed before the Defunct was on deathbed, and found the samen proven by the Witnesses adduced, and thereafter assoilzied. Laird of Rentoun justice Clerk, contra Lady Lamberton, Eodem Die. THe Lord Rentoun insisted in the Cause against Lambertoun mentioned the 13. February 1667. He now insists on this member, offering to prove that Umquhil Lambertoun by his Commission or Bond was obliged to the Estates for exact diligence; and the Pursuer being now Restored, he is liable to Count to him in the same manner as to the Estates, not only for his Intromission, but for his Negligence, whereby he suffered other Persons publicly, and avowedly to cut the Pursuers Woods of a great value, and did no ways stop nor hinder the same, nor call them to an Account. 2ly, He himself Intrometred with the said Wood, at least others by his Warrant; which Warrant must be presumed in so far as he having a Commission, and obliged for diligence, did not only suffer the Wood openly to be cutted, but applied a part thereof to his own use, and was oftimes present when it was in cutting by others● The Defender answered, First, That he could never be liable to the Pursuer for his Omission, because his only Tittle was his Right of Property, whereby the Defender was liable to Restore to him what he had Intrometted with, and not Counted for, but for his oblidgement to do Diligence, it was only personal granted to the Estates; and albeit they Restored the Pursuer to the Estate, they never Assigned him to that Obligation. 2ly, The Defender is secured by the Act of Indemnity, except in so far as he Intrometted, and did not duly Count, as was found by the former Interloquitor in this Cause: and as to the second member, It was answered that the Defender being only Countable for his Father's Intromission not Counted for, albeit he had given warrant to others, except he had received satisfaction from them, it is not his own Intromission. 2ly, Warrant or Command, is only Probable by Writ or Oath, and no way by Presumption, upon such Circumstances, which Presumptions are also taken off by others more pregnant, viz. That these Woods were cutted by People in Power and Interest in the Country, who had no Relation or Interest in the Defenders Father, whom he was not able to stop or hinder, and most part thereof was Clandestinly cut and stolen away by meaner Persons. It was answered for the Pursuer, that he being Restored, Succeeds in place of the Estates, and as what is done by a negotiorum gestor without Warrant, is profitable for these for whom he negotiates, so must this be which was done by the Estates. As to the Act of Indemnity, the meaning thereof can be no more than that Parties who Acted shall be in no worse case than they would have been with that Party whom they followed, As to the second member, the Pursuer answered, that what was done by others, by the Defenders Fathers Commission must be his Intromission, seeing it is all one to do by himself, or by another; and seeing it cannot be called Omission, it must be Intromission. 2ly, Though Command or Warrant is ordinarily Probable by Writ, or Oath. Yet there are casus excepti, as whatsoever is done for any Party in his presence, is by all Lawyers said to be ex mandato & inde oritur actio mandati, & non negotiorum gestorum, so that the presence, or tolerance of a person not only having Power, but being obliged for Diligence, must much more infer his Power or Warrant: And albeit he was not always present, yet the Deeds being public, and near the place of his abode, it is equivalent: The Lords inclined not to sustain the first member, both in respect of the Act of Indemnity which bears in itself to be most amply extended, and in respect that the Pursuer had no Right to the Personal Obligation, or Diligence: but as to the second member, the Lords were more clear as to what was done in the Defenders Fathers presence, but in respect it was more amply proponed. The Lords, before answer, ordained Witnesses to be Examined by the Pursuer, whether or not the Woods were publicly cutted, and whether or not Lambertoun was at any time there present, and applied any thereof to his own use; and Witnesses also for the Defender to be Examined, whether a part was cut Clandestinly, and other parts by persons having no relation to Lambertoun, and to whom he used any Interruption. Eodem die. THis day there being a Query formerly given by the Lord Thesaurer, whether or not there should be a Process of Forfeiture intented against these who rose in the late Rebellion, before the Justice General, so that the Justice might proceed against them, though absent, by putting the Dittay to the Trial of an Assyze, and taking Witnesses thereupon; and upon Probation to proceed to the Sentence of Forfeiture, or whether Probation in absence could not be admitted but before the Parliament. There were Reasons given with the Query for the affirmative, viz. That there was a special Statute for Forfeiture of Persons after their death, in which case they were absent, multo magis when they were living and contumacious. 2ly, Because by the Civil Law, albeit Probation, especially in Criminals, cannot proceed unless the Defender be present. Yet the chief Criminal Doctors, except the case of less majesty, as Clarus Farenatius and Bartolus. 3ly, That the Parliament proceeds to the Forfeiture in absence, not by their Legislative Authority, but as a Judicature, and what is just by them, it is just also by the Justice. The Lords demured long to give their Answer upon their Const ●erations, that by Act of Parliament it is Statuted that Probation shall be only led in presence of the Party, and that there had never been such a Practice for the Justices to Forefault Absents, but only to declare them Fugitives; whereupon, being denunced, their Escheat fell, and after their Liferent, and that it was not proper to the Lords, especially in cases Criminal, to give advice in that which might predetermine the Justice General, and the Justice Clerk, and Advocate who had been desired to peruse the Books of Adjournal, and they reported that they had not found a Forfeiture by the Justices in absence, but that they had found that a Party accused for Treason in holding out a house against the King, was declared Fugitive, but they did not find that it was proponed to the Justices to put an Absent to an Inquest for Treason, and that it was repelled. The matter being resumed, this day, the plurality resolved for the affirmative, especially considering that of old Parliaments were frequent in Scotland, and now are but rare; and that the Lords of Council and Session, were the King's Council to give his Majesty their advice in general Cases, what might Legally be done, whether Civilly or Criminally Andrew Ker, contra Children of Wolmet. Eodem Die. UMquhil Wolmet having set a Tack of his Coal to his Children for their Provision, and Named Andrew Ker of Moristoun and Tarsonce, Overseers; the said Andrew Intrometted with the Coal for some years, the Children pursued him before the late Judges for Payment of the Profit of the Coal. In which pursuit he did allege that he could not Count, nor Pay to the Children the whole Profit of the Coal, but so much thereof as was free over and above the Back-tack Duty, due both out of Land and Coal, by virtue of the Wodset granted to james Loch, who stood thereupon publicly Infeft, and to which Wodset Mr. Mark Ker his own Son had Right, to whom he had paid the Back-tack Duty, and obtained his Discharge; this being found relevant by the Judges, he produced Holograph Discharges granted by his Son; the Judges found that these Holograph Discharges did not prove Payment made debito tempore, and therefore discerned without allowance of the Back-tack Duty: Andrew Ker pursues a Reduction of this Decreet as unjust, in so far as the Back-tack Duty was not allowed, as not paid debito tempore, whereas the Back-tack being a real Burden upon the whole Profits jure hypothecae; all Intrometters with the Profits were liable to the Wodsetter; and so Andrew Ker as Intrometter was liable to the Wodsetter, and was not obliged to employ that part of the Profit for Anualrent to the Children, although he were obliged to employ their own means, and so might lawfully have paid the Wodsetter, or keeped it in his own hand for his own relief, and the Wodsetters Discharge at any time was sufficient to free the Children. It was answered that there was no iniquity committed, because Andrew Ker could only be liable for the Back-tack Duty as Tutor and Overseer to the Children, and even in that case he ought not to have paid without a distress, otherwise he prejudged the Children of their relief against the Heir, who is obliged to relieve them of the Back-tack Duty, and when ever he were distressed, he would not he obliged to pay any Anualrent to the Wodsetter for the Back-tack Duties which was the Wodsetters own Annualrent, so that till the time of the distress the whole Annualrent should have been put out to the use of the Children upon Annualrent, so that the Back-tack Duties can only be allowed from this time, but not yearly as they were due, otherwise the Bairns lose the benefit of the Anualrent the mean time, but there being no distress Andrew Ker could never be liable to the Wodsetter. It was answered for the Pursuer, that the Wodsetter being his own Son, there was no reason to put him to any Action, especially seeing the Defenders cannot allege that in any such Action they had a competent Defense, or that the Heir has any Defense whereupon to exclude their relief: Neither is there any reason that the Children should have Anualrent for the Back-tack Duty till it was paid, because it was not theirs, nor might he safely put it out of his hands, albeit the Wodsetter had been a stranger, and albeit he be now functus officio as Overseer, the Title that made him liable to the Wodsetter, was as Intrometter which is a perpetual obligation, the Wodsetter, as all Masters of the ground, having jus hypothecae upon the Profit; for payment of Tack Duty for which all Intrometters are liable. The Lords reduced that part of the judges Decreet, and found that Moristoun as Intrometter was liable to the Wodsetter, and might retain so much of the Profits in his hands as would pay the Back-tack Duty, and was not obliged to give out for the Children upon Annualrent: But if de facto he had given it out in his own name for Annualrent found that the Children should have the benefit thereof. Lady Milntoun contra Laird of Milntoun. Feb. 25. 1667. THe Lady Milntoun having obtained Divorce against john Maxwel younger of Calderwood her Husband, before the Commissars of Edinburgh, Sir John Whitefoord of Milntoun, who had gotten a Disposition of her Liferent-right from her Husband, pursues Reduction of the Decreet of Divorce, on these Reasons that the Decreet was in absence, and that he compeared before the Commissars, and craved to be admitted for his interest, and was refused, and if he had been admitted he would have objected against Paterson and Clerk the only two proving Witnesses, that they were not habile Witnesses, being neither men of Fame nor Estate, and Paterson by common Reputation of very evil Fame, and that they were not purged of partial counsel, but suborned by the Lady, and had both received money to bear Testimony, and promise of more, and were prompted by the Pursuer how to Depone. 2ly, As they were not habile, so neither did they prove the Commission of Adultery. The Lords caused produce the Process, and Testimonies before the Commissars, and finding that the Witnesses were not purged of partial counsel, they ordained them to be reexamined upon such Interrogators as were not contrair to their former Depositions, whereupon they were twice reexamined. Paterson in his first examination before the Commissars, Depones that he knew John Maxwel and his Lady, and that he saw John Maxwel in naked Bed with Margaret Davidson lying above her, and that he upbraided john Maxwel for it, who answered he carried not alwise his Wife about with him. Clerk Deponed that in another Month, at Edinburgh he saw John Maxwel in naked Bed with Margaret Davidson, and that the said john was very displeased at his coming in to the Room. The Goodman of that House being another Witness, deponed that John Maxwel and another Man, and two Women lay altogether at one time in one Bed in his House, and that he saw John Maxwel very familiar with one of the Women, Embracing and Kissing her, and keeping her upon his knee, whereupon he put them out of his House. Another Witness Deponed, that seeing Margaret Davidson with Child, she acknowledged to him that it was to John Maxwel, and that it was commonly reported that she called the Child Maxwel after John Maxwel. Paterson and Clerk being reexamined by the Lords, did purge themselves of partial counsel, but at the close of their Deposition, Paterson acknowledged that the Lady threw down a Dollar and a half upon the Table, which he took up before his first Testimony; and in his second Re-examination acknowledgeth that she offered him five hundreth Marks, and to be a Bairn of the House. And both acknowledged that she gave them Tokens, to make appear they knew Margaret Davidson by her Countenance and clothes, but both adhere to the truth of the former Deposition, and being asked how they knew that Woman was Margaret Davidson Deponed that they knew her not, nor saw her ever before nor after, but that John Maxwels Servant, called Dougal Campbel being in the utter Room told them several times that that Woman's name was Margaret Davidson. The Lords having considered the Depositions first and last, ordained the Parties to Debate, whether Corruption or Subornation of the Witnesses being acknowledged by themselves in their Re-examination did invalidat their Testimony, and whether their Testimonies not agreeing as in the same individual Act, but as to divers Facts, and divers Times, and Places, were sufficient to prove. IT was alleged for the Lady, that whoever adduced Witnesses was obliged to entertain them, and also denied that ever she gave Money, or promise; and that it could not be instructed by the Re-examination of the Witnesses, whose Posterior Testimony could never invalidat the first, or else there were an open door for prevarication and bribing of Witnesses to alter their Testimonies, but the opinion of all Lawyers is, that a Witness may correct himself before his Testimony be perfected, and subscrived, not after. But the only way was to protest for Reprobators and by other Witnesses to prove the Corruption of the witnesses, in which Case it behoved to be Proven, that there was an undertaking, or at least endeavour, that they should bear witness to that which they knew not to be true. As to the second point, it was alleged, that albeit the common rule be that in matters Criminal, the witnesses must be Contests, both being witnesses at once to the same indevidual Act, yet it had these limitations. 1. That though this hold in Criminals specifico, yet not in crimine generico, which may be perpetrat by reiterable Acts when the pursuit is not Capital, but either for Torture, Canonical Purgations, or to any Civil Effect, as in Adultery it is crimen genericum, by reiterable Acts, and therefore being pursued civiliter to separat the Marriage, or to restore the Jointure, it might be proven by two witnesses, though not concurring in the same individual time and place, and therefore singular, albeit not single witnesses. And the Lawyers do generally give the instance in Adultery, which is a secret and transient Fact. And if such proof were not sufficient it would be impossible to prove it; but if Adultery were pursued Criminally in these Cases where it is Capital, Probation were required more exact, and agreeing in time and place. Or if the Case were in Murder, which is not reiterable, witnesss not agreeing in time and place could not prove, but in Adultery, heresy simony, and such reiterable Crimes, witnesses to divers Facts being in the same Crime are sufficient; for which Clarus, Farnatius and Covaruvias were cited. It was answered, to the first point that Subornation of Corruption of witnesses is inferred by attempts, or endeavours to prompt the witnesses to Depone that they know not, albeit they did it not, nor yet undertook it; and that taking of any Money, not only inhabilitats the Witnesses, but makes the Takers and Givers falseers, is the opinion of all Lawyers, neither may the Witnesses take the Expenses of their Travel and Attendance, till it be Discerned by a Judge; and as to the matter of Corruption the Witnesses own Oath is sufficient, even by Re-examination, because the Adducer can never quarrel the Oath of the Witnesses adduced by himself, by which he carries the Cause, but much more where the Witnesses acknowledge, that at the first Examination they were not Interrogate if they were free of partial Counsel, and if that be omitted, or not understood be them, they may be Interrogat specially thereupon again, as was done in this Case. To the second point, albeit more Witnesses being singular, but not agreeing to the same Fact, or some times one Witness may be receiveable to infer Torture, or that the several Witnesses agree not as to all the same points, and circumstances, as if the Witnesses look through a rift or hole, albeit they cannot see all at the same instant, yet all of them see the same individual Fact, or if one Witness Depone in the case of Murder, that he saw the Party accused with a bended Pistol, or drawn Sword go in to a Room, but going out saw no further, and another hear the Shot and the Strokes, and saw the accused coming out alone, or with a bloody Sword, and a third saw the slain lying Dead in a Room, and no more than these, although they agree not as to the same points and minutes of Time, yet all agree in one Fact, but the Witnesses not agreeing to one Fact, are all single Witnesses, and are not Contests, and so cannot be Confronted, Confirmed, or Redargued each by other, which is the great ground of Faithfulness, and Trust of Testimonies; but if one person alone can bear Witness where he knows none can gainsay him, it would prompt him to Perjury, or Mischief, and here the two Witnesses are only ex auditu, seeing neither of them knew Margaret Davidson but only by the Report of Dougal, so that both did not positively know that the Person with whom they found john Maxwel was not his Lady, seeing Clerk neither knew the Lady nor Margaret Davidson. It was answered for the Lady, that whatever may infer Subornation or Corruption, it cannot be proven by the Testimonies, to derogate their former Depositions, unless it were proven by others upon Reprobators, and as to the other point in facto reiterabili, to a Civil effect, Witnesses though not agreeing in the same Fact, yet agreeing in divers Facts of the same Crime were sufficient. The Lords found that Subornation or Corruption of the Witnesses could be instructed by their own Posterior Testimony, and found the Adultery sufficiently proven by the Testimony of the Witnesses, and Assoilzied from the Reduction, and found the Letters orderly proceeded, used against Milntoun for Removing. But Milntoun gave in a new Bill, offering him to prove by other Witnesses, the Subornation and Corruption of the Witnesses in the Divorce, being in effect a Reason of Reprobator, which is very competent in his Reduction, and yet the Lords refused the same in hoc statu Processus, not being Libelled or Insisted in before, but superseded Execution in the Removing, & as to the House and Mains Possessed be Milntoun till Martimass, that in the mean time he might Insist in his Reprobators, as he would be Served. Countess of Carnwath contra Earl of Carnwath, February 22. 1667. THe Countess of Carnwath Insists in her Action of Poinding the ground. It was alleged for the Defender, that the Countess Seizing was null, not being Registrate conform to the Act of Parliament; It was answered, that nullity cannot be proponed, either be the Granter of the Infeftment, or any Representing him, or by any person who is obliged to acknowledge the Infeftments; but the Earl is such a Person, that albeit he Brooks by a Disposition from his Father, yet his Infeftment contains this Express Provision, that his Father at any time during his Life may Dispone the Lands, or any Part thereof, and grant Infeftments, Tacks, or Annualrents thereof; so that this being unquestionably an Infeftment, he cannot quarrel the same upon the not Registration, but if his Father had granted an Obliegment to Infeft, the Defender could not have opposed the same, much more the Infeftment being Expede. It was answered, that the Provision did not contain an Obligation upon the Defender to Dispone, Ratify, or do any Deed, but left only a Power to his Father to Burden the Lands, which can only be understood, being done legitimo modo, and therefore the Infeftment wanting the solemnity of Registration is in the same Case, as if there were no Infeftment, and so is null. The Lords Repelled the Defense, and found the Seasine valide, as to the Defender, in respect of the foresaid Provision in his Infeftment. Earl of Southesk contra Lady Earls-hall, Eodem die. THe Earl of Southesk being Infeft in certain Lands upon the Water of Eden, and the Salmond Fishing, peruse Declarator that Earls-hall hath no Right thereto. The Pursuer produces an Infeftment, in Anno 1558. in which after the Land is Disponed, there follows a Clause, una cum Salmonum in piscationibus in aquâ de Eden, with a novo damus; it was alleged for the Defender, that he hath the ●like Declarator against the Pursuer, which he repeats by way of Defense, and produces an infeftment of the same year of God, bearing in the dispositive Clause, una cum Privilegio piscandi in aqua de Eden solito & consuet, and alleadges that by virtue thereof, he hath good Right to Fish in the Water, and that he had been in Immemorial Possession by virtue thereof. It was answered, First, That this Clause cannot carry Salmond Fishing, which is inter Regalia, and must be specially Disponed. 2ly. The Defenders Right, though in the same year of God, is yet some Month's Posterior to the Pursuers, and as to the Defenders Immemorial Possession, it cannot consist nor give Prescription, without a sufficient Title by Infeftment, and it hath been frequently Interrupted by the Pursuer. It was answered by the Defender, that he and the Pursuer, and the Laird of Reiris having three Thirds of one Barony, all lying Rin-ridge, the Kings granting the Pursuer his Third cum Salmonum piscationibus, added to the Lands as a Pendicle thereof, it cannot be understood exclusive, of the other two Third Parts of the same Barony; likeas Reiris hath the same Clause in his Infeftment: and albeit Earls-halls Clause be not so express, yet it not being the common Clause in the Tenendas cum piscationibus, but in the Dispositive Clause of this special Tenor, it must needs comprehend Salmond Fishing, or otherwise it would have no Effect, verba autem interpretanda sunt cum effectu, and albeit the Clause were dubious, yet it hath been in long possession, Immemorial, which sufficiently Instructs the Accustomed Fishing to have been before the same. 2ly, As to the Anteriority of the Pursuers Infeftment, the Defenders offers to prove that his Predecessor was Infeft before him, with this Clause that is in his own Infeftment produced. 3ly, Albeit the Defenders Right were Posterior, yet it is sufficient to give him a Joint Right to the Salmond Fishing, with the Pursuer, because he offers him to prove that he hath forty years peaceably Possessed the Salmond Fishing as the Pursuer hath, when ever they were in the River. The Lords found that the Clause in the Defenders Infeftment, albeit it had been prior to the Pursuers, could not give Right to the Salmond Fishing in prejudice of the Pursuers express Infeftment of Salmond Fishing, unless the Defenders Infeftment had been clede with Immemorial, and forty years peaceable Possession, which being so alleged by the Defender, the Pursuer offered to prove Interruption, and therefore a Term was granted to either Party to prove. Mr. john Elies contra Wishart and Keith, Eodem die. MAster john Elies having Inhibit Elizabeth Keith his Debtor, she did thereafter acquire a Wodset of certain Lands within the Shire, where the Inhibition was published, and thereafter upon payment of part of the Sums, the Wodset Right was Renunced pro tanto, and the rest being Consigned, there is now a Process of Declarator of Redemption, wherein Mr. john Elies Compears, and produces a Declarator at his Instance for declaring the Sums of the Wodset to belong to him, and alleadges no Declarator of Redemption till the whole Sums contained in the Wodset Consigned be given up to him, without respect of the payment or Renunciation of a part, because it being done after his Inhibition, it was null, and so is craved to be declared by his Declarator; It was answered; First, That Inhibitions can reach no further then to the Lands the Person Inhibit had the time of the Inhibition, but not unto Lands he should happen to acquire after the Inhibition, because the Inhibition bearing, that the person Inhibit should not Sell or Alienat to the prejudice of the User of the Inhibition, albeit she should Sell what thereafter he acquired, the User of the Inhibition were in no other case, then when the same was published, the Land being both gotten and gone thereafter; and if that were the effect of Inhibitions, every provident person would Publish and Registrat them in all the shires of the Kingdom, because they can only reach Lands lying in the shire where they are Registrated, which was never done, neither was it ever Decided, that Inhibitions reached Lands acquired thereafter. 2ly, Inhibitions can never hinder persons, having Right of Reversion, to pay the Sums, and the Wodsetter to Renunce, because Inhibitions only Restrain, Debar, and Inhibit to Sell, etc. But doth not hinder him to pay his Debt; or upon payment of the Wodset Sums, to Discharge the Sums, and Renunce the Lands, these being Deeds necessary, to which he might be compelled, and if this hold, no man might safely pay an heritable Band, having Infeftment of Annualrent, without searching the Registes, which the most cautious man never did, and for this alleged the express Opinion of Craig, that Inhibitions hinder not Discharges of heritable Sums, or Renunciations of Wodsets. It was answered, that Inhibitions are personal Prohibitions, Restraining the Person Inhibit, and the Liege's to Alienat, Buy, or Sell any Lands in prejudice of the User of the Inhibition, and until he be satisfied of the Ground thereof. Which Prohibition respecteth the Person Inhibit directly, and the Lands; but indirectly as they belong to him, so that there is no difference whether they belonged to him before or after; for hoc ipso that they are his, they fall under the restraint: and the alienation thereof, is to the prejudice of the User of the Inhibition, because if they were not Sold, they might Appryze the same, so that, albeit he be not in worse case than he was the time of the Inhibition, yet he is in worse case than he would be, if the Land had not been sold: And albeit upon uncertainty men will not Registrat Inhibitions through all the Kingdom, that infers not but they might, and that they would be effectual to Lands thereafter acquired in these shires, neither is there any ground to except the Renuncing of Wodsets, which are Alienations of the Wodset Lands, but the Redeemer, before he declare, or deliver the Money, and take Renunciation, he ought to search the Registers, and to call these persons who have used Inhibitions for their Interests. The Lords found that Inhibitions reached to Lands acquired after the Inhibition, but were not clear that Inhibition hindered Renunciations of Wodsets, but superseded to give answer to that Point till the first of June. Laird of Dury contra Anna Gibson, Feb. 28. 1667. UMquhil Sir Alexander Gibson of Dury having given Bond to his three Daughters, for twenty thousand Marks of portion a Piece, and in case of Decease of any of them, her Portion to belong to his Heir-male; but upon the Margin there is added, that the Portion of the Deceasing should accresce to the Survivers. This Dury, Brother and Heir-male, pursues Reduction, and Improbation of this Bond, in so far as concerns the Marginal addition, upon these grounds, that the 'samine was not Subscribed before the Witnesses insert in the Bond, nor insert at that time: And that it is written by another Hand, than his that wrote the body of the Bond. And that it is contrair to the substitution of the body of the Bond. And that albeit the writer of the body be insert in the Bond, and that the Bond bears, that the Date and Witnesses are insert by Dury himself, yet it does not bear that he insert the Marginal addition, which is of greater importance. It was answered, that Bonds being Subscribed before Witness their Testimony reaches not only to the Subscription on the foot, but to the Subscription of joining the Sheets, and whole Marginal additions, which are as valide as any part of the body, unless it were positively proven by the Witnesses that they remember that there was no addition on the Margin when they Subscribed; and albeit the Marginal addition be of another Hand, it is offered to be proven that it is the Handwriting of Dury himself, who insert the Date and Witnesses, which is more Solemn than any other writer, especially seeing the writer was not present, or witness, but only drew the draught of the Bond; and albeit he mentions not the inserting of the Marginal addition, but only the inserting of Date and Witnesses that has been, because of the ordinar Style of Bonds, whereof the Date and Witnesses are filled in by another Hand, not being ordinar for these to write Marginal additions; and as for the importance, or contrariety of the Margin to the Body, that is most ordinar, especially where the body is but a draught drawn by another Hand, who has erred in his intention in the Substitution; it was answered for the Pursuer, that albeit the Marginal addition should be proven to be Holograph, yet unless it were proven to have been truly written, and subscribed at the Date of the Bond. It cannot prove that it is of the same Date, or of any Date before the Defunct was on Deathbed, and so it is null, and cannot prejudge the Pursuer as Heir, especially seeing the Defunct having then no Sons, might probably adject this in favours of his Daughters, contrair his former Intention, which if it should take effect, would ruin the Heir-male. The Lords having taken the Deposition of the Witnesses insert, and both Deponing that they did not remember whether the Marginal addition was upon the Bond when it was Subscribed or no, and that it did appear by inspection, that the Marginal addition was by another Hand then that that wrote the body, and that it was not mentioned at the conclusion, where the Defunct expressed, that he himself was Filler up of the Date and Witnesses, and nothing was adduced to astruct that it was of a true Date before his taking Bed. Upon all these considerations jointly, the Lords found that the Marginal addition was not of the Date of the Bond, and that having no Date of itself, it was not instructed to have been done before the Defunct was on Deathbed, and so was null as to the Heir: but the Lords did not find that these alleadgeances severally could have derogat to the Marginal addition, but only that all jointly was sufficient, the matter being also accorded amongst the Parties. Antrobus contra William Anderson Provost of Glasgow, june, 13. 1667. WIlliam Antrobus having Caption against john Herbertson in Glasgow, the Messenger having therewith taken Herbertson in his own House, and having required William Anderson present Provost to Concur and put him in Prison, and he refusing, pursues now the Provost for payment of the Debt. The Defender alleged, first, that the Lybel was not relevant, because it did not subsume that the Rebel was shown to the Defender; 2ly, The Defender was required at an unlawful time, being betwixt eleven and twelve at night; 3ly, The Defender offered the concourse of the Town Officers; 4ly, The Army being come to Glasgow that night, the Provost was taken up at the time he was required, with the ordering of their Quarters, which being a public Service of greater Importance: he offering of the Officers was sufficient; 5ly, This subsidiary Action being but for the Pursuers damnage, he can pretend none, because the Rebel was Bankrupt, and insolvent long before, and he was Incarcerat within some few days, where he remained a long time, during which, the Pursuer might have Arrested him; and the Defender yet offers to put him in Prison in as good case as he then was. The Pursuer answered that his Lybel was most Relevant, because the Letters being directed to Provost and Bailies of burgh's; and if they be required, albeit the Rebel be not in their sight, they must go with the User thereof, to any place within their Jurisdiction, which they must do in their own persons, and it will not be sufficient to send their Officers, and as to the time of requiring, any time that men do use to go about their Affairs is sufficient, and the Defender was required between seven and eight at night, and albeit it had been later, that the Defender might be excusable not to come out of his own House to search, yet here he was in the same house with the Rebel, and in the next Room to him, and heard the noise of these that deforced the Messenger, which was done by the Towns Officers; neither can any pretence of Ordering of Quarters, stop the Execution of the King's Letters, which might have been done with so little diversion, and the Quarters might have been Ordered by the Bailies. The Lords found the Libel Relevant, but found the Defences jointly also Relevant, viz. The Ordering of the Quarters of the Army, the Ordering of the Officers, and the offer now to put the Rebel in Prison, in as good case, and the time of night. Harner contra Haitly, Eodem die. HArner pursues Haitly as representing her Husband, for proving the Tenor of her Contract of Marriage, who alleged no Process because there was no Adminicle produced in write, which was most necessary in any Case, but especially in this Case, where the Tenor of the Contract was extraordinar, Constituting the one half of the Fee of the Husband's Estate to the Wife's Heirs, failzing the Heirs of the Marriage. The Pursuer answered, that albeit Adminicles in Writ were ordinarily required, especially in Writs that use to be taken away by Redelivery, or Cancelling; as Bonds, etc. Yet the intent of Adminicles, is to render it probable that such a Writ was, and thereby to give ground to admit Witnesses to prove, rei gestae veritatem: But here there was as strong grounds of probability, there being a Marriage of a Landed Man, and the Copy of the Contract taken of the Writer thereof, john Nicol, his Style Book, he and his Servants being Witnesses, who are yet alive, and the Tenor offered to be proven by them; whereas other Tenors use to be proven by Witnesses that saw the Writ though they were not the Witnesses insert. Likeas the Husband having taken the Right of an Infeftment, for a sum, payable to him and his Wife, and the Heirs betwixt them; which failzing, to his Heirs, he took a Ratification thereof, from the Pursuer which could have no intent, if in case of failzie of Heirs of the Marriage, the half had not been appointed to return to her Heirs. Likeas, it is offered to be proven by Witnesses, that the Husband acknowledged that he had the Contract in custody from his Wife. The Defender answered, that our Law had rejected Probation by Witnesses, in matters of Importance, and therefore Tenors are only Sustained, when their Probation is partly by Writ, and partly by Witnesses, neither is any other probability sufficient: and it is offered to be proven, that the Husband Infeft his Wife in his Houses, of a considerable value, without any mention of a Contract of Marriage. The Lords refused to sustain the Libel without Adminicles in Writ, and assoilz●ed, albeit it was also offered to be proven, that the Husband's whole means came by the Wife. Patrick Wat contra William Halyburton. june 14. 1667. PAtrick Wat as assignee by Adam Wat his Father, to a Disposition granted by umquhil Halyburton to him, pursues William Halyburton, as Representing him, to fulfil that part of the Disposition, obliging him to procure the Pursuers Father Infeft; and for that effect, that the Defender should Infeft himself, and grant Procuratory of Resignation, for Infefting the pursuer. It was alleged for the Defender, that he was not obliged to Infeft the Pursuer, because it was his Father's fault he was not Infeft, seeing he had received Procuratory of Resignation, and Precept of Seasine, with which he might have Infeft himself; and though the Granter, and he the Receiver, lived for twelve or fifteen years thereafter, he was negligent. 2ly, Though the Defender were obliged to Enter, and Denude himself; yet it must be the Pursuer finding Caution to warrant and relieve him of the hazard of the Ward and Marriage, because the Lands in question being Ward through the Pursuers Authors fault, the Defenders Marriage will fall. 3ly, The Defenders Father's Name was only borrowed by Hallyburton of Egles-cairn, who acquired the Rights blank; and filled up the Defenders Fathers Name therein, and moved him to Dispone. The Lords Repelled these Defences, but Reserved to the Defender to pursue Damnage and interest, for any hazard occurred by Adam Wat's fault, as being more proper against his Heir, than against the Pursuer his second Son. Mr. Heugh Grace contra Forbes Minister of Innerkeithing, and Tenants of Nether-Horseburgh. june 15. 1667. THe Tenants of Nether-horseburgh having Suspended these two Ministers upon double poinding, they alleged they had made payment, bona fide, of their Rents conform to their Tacks. It was answered, that they were called to Mr. Heugh Gray's Decreet in anno 1656. and Charged thereupon thereafter the same year, which did put them in mala fide. It was answered, that there having nothing followed upon the Charge, but the Charger being silent for fifteen years, the Tenants favore rusticitatis, cannot be thought to continue in mala fide all that time, to infer double payment, else it might continue for forty years. It was answered once in mala fide, ay in mala fide, and that their Tenants did still remember and suspect the Pursuers Right appears because they took Discharges, bearing warrandice of the same. The Lords ordained the Defenders to produce their Discharges, that the warrandice might appear, being loath to decern the Tenants in double payment, if the Charge could have access to the other Minister, or his Representatives. It was alleged for the present Incumbent of Innerkeithing, that in a former double poinding, raised by the Tenants, he was preferred to the Cropped 1665. and in time coming. It was answered, that the said Decreet was in absence of Mr. Heugh Grace; and that it was null without Probation, for there was nothing produced for the Minister of Innerkeithing, but his Presentation and Collation, which were but merely general, and nothing produced to Instruct, that their Teinds were of his Paroch, or within his Benefice. It was answered, that he was secured by the Act of Parliament anent Decreets of double poinding. The Lords found that what the Minister of Innerkeithing, had uplifted, by virtue of that preference, the Act of Parliament would secure him thereanent, but found he had no Right as to the future. johnstoun contra Cuninghame. june 19 1667. JAmes johnstoun as assignee by William johnstoun, to a Bond granted by james Cuninghame, Charges him thereon: he Suspends upon this Reason, that the Bond bears the sum borrowed from William johnstoun and his Spouse, and payable to them, the longest liver of them two, and their Heirs, there being no Children betwixt them, the one half must belong to the Heirs of the Wife, to whom the Suspender is Curator, and which he ought to retain for their use: and albeit in such Clauses in Rights of Land, or heritage, potior est conditio masculi: yet it is not so in Rights Movable, and this Bond is movable, being after the Act of Parliament 1641. which was so found in a Practic produced, observed by Dury, where the Wife by her Contract of Marriage, Disponing her Goods and Debts to her Husband, herself; and their Heirs, the same was found to divide betwixt the Husbands and the Wife's Heirs. It was answered, that here the Bond bore Annualrent, and so was heritable, quod fiscum & relictam and there being nothing to evidence that the sum was the Wife's own Means, the same is presumed to be the Husbands: and the taking of a Bond of this Tenor, if it did import to give her the half, is a Donation by a Husband to his Wife Revockable, and now revoked. The Lords found that the Wife's Heirs had no interest in the Sum. john Watson contra Fevers of Dunkennan june 21. 1667. JOhn Watson being Superior of a number of Tenements and Roads about the Town of Kirkaldie, pursues a Declarator against the Vailals, to hear and see it found and declared, that he might Rive and Plough the Muire of Dunkennan, leaving as much of the Muire as would be sufficient, and convenient for the use of the Vassals● their Roads and Tenements, for Fail and Devot, Day and Stone, to the use foresaid. It was alleged for the Fevars, that they had raised a Declarator of the Right of their Servitude, through the bounds of the Muire, which they repeated by way of Defense, and alleged that wherever a Servitude was Constitute it affected the praedium serviens wholly, and every part thereof, capable of the Servitude, and could not be restricted without the consent of the Parties, having Right of the Servitude, as if any person had Right of Pasturage, albeit limited to so many Goods, or to the Goods of such Land, which is the praedium dominans, beyond which it could not be reached; a Declarator of this Nature would never be sustained, to astrict him to a portion of the Muire, that would be sufficient for the Goods of that Town, or of that number; or if he were Infeft with the liberty of Fevel, though there were two M●●sses, that could not be exhausted within the bounds he could not be restricted to the one, so here the Vassals being Infeft with the privilege of Fail; in this Muire, they may take it out of any place of the Muire they please, and can be restricted to no particular place. It was answered that this Servitude being limited to the use of the Roads, and Houses, could not be thought to be so Constitute, as to make useless the whole Property of the Muire, the Pasturage whereof is worth nothing, and the only use is, Lyming and Labouring, that it was hurtful to the common utility, and improvement of Land, so to extend such a Servitude, and that if there were a Servitude of a way through the Constituents Ground, it would not import a Liberty to make as many ways as could be made through the Ground: or to change the way at the Dominants' pleasure. It was answered, that the nature of the Servitude of a way or passage, is ordinarily limited by Bounds, and is always understood to be one way, as is most convenient for the Dominant, which having chosen, he cannot thereafter change; but it is not so in the Servitudes of Fevel, Fail, or Devot; neither can the consideration of public Utility, or that the Defenders have no detriment warrant, the Lords to take from him his Right, or to limit it without his Consent, which were only proper for a Parliament, having not only the Judicative, but also the Legislative Authority, and the Rights and Securities of Parties, should not be liable to conjecture, or arbitrament upon the supposition of conveniency, but should be fully enjoyed according to Law. The Lords found that this Servitude might be astricted to a part of the Muire, which might be beyond all question sufficient for the use, and with this quality, in case it failzied, they might return to that which was Laboured, which behoved to be l●ft lie, as far as would be sufficient. Hay of Strowy contra Fevers. june 22. 1667. HAy of Strowy being Infeft in the Miln of Strowy, and having lately built a Walk-miln, and made a new Damhead therefore, over that Burn, which is the March betwixt him and the Fevers, thereupon the Fevers demolished the Miln and the Dam. He now pursues the Fevers to hear and see it found and declared, that he has Right to enjoy the Walk-miln and Dam, and that they did wrong at their own ha●d, to demolish the same. It was alleged for the Fevers, and the Laird or Ketr, their Superior, Absolvitor, because the building of this Miln, being novum ●pus, they might lawfully stop the same, and might demolish the Dam, the end thereof being fixed upon their Ground, without their consent. The Pursuer answered; First Albeit the Defenders might have impeded while the work was doing, yet they● could not after the Walk-miln was a going Miln, demolish the Miln, or Damn thereof, via facti, albeit they might have used civil Interruption, and stopped it, via jur●, because its a known and common custom, that a going Miln cannot be stopped summarily, being an Instrument of Service for common good. 2ly, The Defenders could have no detriment by putting over the Dam, because it was a Precipice at their side, to which the Dam was journed, so that they had no detriment, either as to the Inundation of their Ground, or Watering. The Defenders answered, that cui libet licet uti re●uâ ad libitum and they were not obliged to Dispute, whether they had Damnage or not, but might cast down the Dam built on their Ground, unless their consent had been obtained; and that there is no Law nor Decision for such a privilege of Milns, neither was it ever extended to Walk-milns. The Lords found the Defenders might hinder the Building of a Dam● upon their Ground, without necessity, to allege detriment; but they found if the Walk-miln was a going Miln forty eight hours that the Defenders could not brevi manu, without the Authority of a judge demolish the Dam or Miln. Mr. David Devar contra Paterson. june 26. 1667. MR. David Devar pursues a Transference of a Compt and Reckoning which formerly was depending betwixt him and umquhil Henry Paterson, and craves it may be Transferred against Henry the Heir, and proceed where it left. It was alleged for the Defender, absolvitor, because the Citation was given before year and day, after the Defuncts death, contrary to the Defenders privilege of his annus delibera●di, by which he hath inducias legales, and cannot be forced to own or repudiat the heritage. The Pursuer answered; First, That annus deliberandi is only competent, where the appearand Heir is Charged to enter Heir, and so must either Enter or Renunce● and so has no place in Reductions, or Actions Declaratory, or real Actions, which may proceed against the appearand Heir, without a Charge. The Defender answered, that albeit the annus deliberandi, be most ordinary in such Cases, yet it is not limited thereto, but must take place also in all Cases, where the reason of the Law holds, viz. where the Defender must be either absent, and suffer Sentence; or if he compear, must found himself upon the Defuncts Right, and so behave himself as Heir, as in this case, the Defender cannot allege Articles of Deduction or Discharge, but upon the Defuncts Right; for finding out of which Right, the Law giveth him a year to inquire, and use Exhibitions, ad deliberandum ne incidat in damnosam haereditatem; and therefore during that year, he cannot be pressed contestare litem. The Lords sustained the Defense. It was further alleged by the Pursuer, that now the annus deliberandi was passed. It was duplied for the Defender, that albeit it was now past, the Citation was used within the year, so that that Citation cannot be sustained. The Lords refused to sustain the Citation, and found no Process till a new Citation; but here the day of compearance filled in the S●mmons, was also within the year, which if it had been after the year, us like the Summons would have been sustained, especially, seeing the Decision of this case extending the year of Deliberation, to declaratory Actions in Custom had not occurred, nor been decided. Minister of Dalrymple contra Earl of Cassils'. june 27. 1667. THe Minister of Dalrymple having Charged the Earl of Cassils' for his Stipend, he Suspends on this Reason, that he offered payment of the Bolls in the Ministers Decreet, conform to Linlithgow Measure, which was the common Measure of Scotland, by the Act of Parliament, and is by Act of Parliament, the measure of Ministers Stipends. It was answered, that the Ministers Decreet of Locality, was indefinite, and mentioned no measure, the meaning thereof was sufficiently cleared, because it was offered to be proven by the Earls Oath, that he paid ever since the Decreet of Locality, being 15 years, conform to the measure of Air, and that he knew it was the common Custom of that Country, to pay all Ministers with that measure. The Suspender answered, that his use of payment, either by mistake; or benevolence of more than what he was due, could not oblige him to the future, especially where the Minister did not found upon his decennalis & triennalis possessio; but upon a Decreet of Locality, wherein, though the measure be indefinite, it cannot be understood to be any other measure, than the common measure of Scotland, seeing the Act of Parliament anent Ministers Provisions, bears expressly, that they shall have eight Chalders of Victual, Linlithgow measure. The Lords having considered the Decreet of Locality, and that it did not extend to eight Chalders of Victual, but to three Chalders of Victual, and 400 pounds, which is the rate of four Chalders of Victual, at 100 pounds the Chalder, as is ordinarily Rated by the Commission in that place of the Country, they found the use of payment and common Custom of the Country, sufficient to declare it to be the measure of Air, seeing by that measure, it would not come up to eight Chalders of Victual. Mr. james Dowglas contra William Leisk, june 28. 1667. MR. james Dowglas, as Donatar to the Liferent Escheat of William Leisk, pursues a special Declarator, against the Tenants, for Mails and Duties. It was alleged for William Leisk, that the Lands in question were apprised from William Leisk the Rebel, and the Superior granter of this Gift, Charged to Infeft the Appryzer long before the Rebellion; to which apprizing William Leisk has Right, during his Life, so that the Charge being equivalent to an Infeftment as to the time, and to the anteriority of the Infeftment, and by drawing it back to the Charge, doth prefer the Appryzer from the time of the Charge: It was alleged for the Donatar, that albeit a Charge against the Superior, be equivalent to an Infeftment in some cases: Yet in other things it is not equivalent, as it is not a Right sufficient for the Appryzer to Remove Tenants; and therefore the Vassal is not denuded thereby, otherwise the Superior could have no Casuality after such a Charge, because the Appryzer not being Infeft, his Liferent could not fall. It was answered for the Defender, that albeit this consequence should follow, it is the Superiors own fault, that did not receive the Appryzer. It was answered, non constat, it was his fault, for he might have just reason to Suspend; and albeit it were his fault, the Law hath not determined this to be his Penalty, to lose his Casualties. The Lords Repelled the Defense, and found the charge on the apprizing did not denude the former Vassal, but his Liferent fell, and affected the Ground. Sir Alexander Hume contra Creditors of Kello. Eodem die. SIr Alexander Hume being Donator to the Forefaulture of john Hume of Kello, did obtain a Warrant for Retouring the said john five years in Possession of certain Lands, before the Forefaulture, but the Inquest served Negative● and now he pursues a Reduction of the Retour, on this Reason, that it is contrary the Testimonies of the Witnesses adduced. It was alleged no Process, because the Reduction of Retours is only competent by a Summons of Error, in Latin, under the quarter Seal. It was answered, that is only in the Case where the Assizers are insisted against for their Error, and the constant Custom of the Lords has been to sustain a Summons of Reduction before themselves of this method. The Lords sustained the Defense, and refused Process, albeit it was known to them, that the Custom has been contrary of a long time before. Sir john St. clair contra john Cowper. july 2. 1667. UMquhil Mr. john Rae having two sisters, and Heirs portioners, the one married to Robert St clair, and the other to umquhil Alexander Cowper, the said Alexander and his Spouse, as Heir portioner, assigns to Robert St. clair, a number of her Brother's Bands: And likewise, as Heir, assigns him to the mails and Duties of a Tenement of Mr. John's for such Terms, and in time coming. Sir john St. clair, having apprised Robert St. clairs Right, pursues john Cowper as Representing his Father, to hear it declared, that this perpetual assignation to the Mails and Duties, did import an absolute Disposition of the Lands, and did carry in consequence an obligment, and all things to make the Disposition effectual, and so to renew it into a legal Form, containing a Procuratory and Precept. The Defender alleged absolvitor, because his Father had granted no Disposition, but only an Assignation, and so the Defender could be obliged to do no further. The Pursuer answered, that this assignation behoved to be understood, cum effectu, and to be done to denude the Granter, and to settle the Right of the Duties in the Purchaser, and therefore, whosoever gives the Right gives all necessaries in his power to accomplish it, and the Informality of a Clerk, ought not to Evacuat the Pursuers Right. The Lords sustained the Process, and found this Right to import a perpetual Disposition. George Allan contra Fairy. Eodem die. GEorge Allan pursues Reduction of a Disposition, granted by him to Fairy, upon the Reason of Circumvention, in so far as the Disposition, though it was conceived absolute; Yet it was expressly Communed, that it should contain a Reversion, and was Read as containing a Reversion at the Subscribing thereof, which was offered to be proven by the Writer and Witnesses insert. The Defender answered, that the Reason was only probable Scripto vel juramento, and so solemn a Writ, could not be taken away by Witnesses. The Pursuer answered, that the Writer and Witnesses insert, were most competent to prove a Point in facto, viz. the fraudulent Reading of that which was not contained; and there is here also produced an antecedent Adminicle in Writ, to grant a Right Redeemable. The Lords before answer, ordained the Writer and Witnesses insert, to be examined anent the Terms of the Treaty, and whether the Disposition was Read at the Subscrybing, as an absolute or redeemable Disposition. William Litster contra Aitoun and Sleich● Eodem die. WIlliam Litster having Arrested his Debtors Rend on the fifth of april 1665 he thereupon obtained Decreet for making forthcoming in july 1666. which being Suspended; conpearance is made for Sleich, who had Right to several Appryzing of the Lands, which were deduced before the Terms of payment of the Rent, and craved preference to the Arrester● because his Arrestment was before the Term, and the time of the Arrestment, there was nothing due, and also before the Term the Debtor was denuded by an apprizing, whereupon Infeftment followed, in Decemb. thereafter, and must be drawn back, ad suam ●ausam, to the apprizing. The Arrester answered, that his Arrestment was valid, being laid on corrente termino, for the next ensuing Term, at least as hath been oft times decided by the Lords, and is now their constant practice: And as for the apprizing before Infeftment, albeit it will carry the Mails and Duties, yet it is an incomplete Right, and hath only the effect of a Judicial Assignation or Disposition, so that the Competition being betwixt an assignee, viz. an Appryzer and the Arrester, the Arrestment being prior, is preferable to any Assignation: Neither can the Infeftment on the apprizing, after the Term, give any Right to the Rent, prior to the Infeftment, but the Right thereto is by the apprizing, which is but an naked Assignation. The Lords preferred the Arrester. Lord Blantyre contra Wakinshaw. Eodem die. THe Lord Blantire pursues a Reduction of a Bond, as being granted in his Minority. It was alleged for Wakinshaw, assigney to the Bond, absolvitor, because there was no Process intented against him intra annos utiles, till the Pursuer was passed twenty five years. It was answered, that the Defenders Cedent was Cited, to whom the Bond was granted, and this Defenders Right will fall in consequence, and there was no necessity to Cite him in the same way, that the Service of an heir may be reduced, without Calling of his Creditors, or these that are Infeft by him. The Defender answered that his Assignation was Intimat before the Citation against his Cedent, which cannot be miskenned by the Pursuer, to whom the Intimation was made, after which the Cedent had no Right, and any Citation against him was of no moment, neither is the Case alike to the Reduction of a Retour, wherein the Reducer doth neither know nor is obliged to know the Creditors Rights. The Lords found that the assignee, after the Intimation, behoved to be Cited intra annos utiles; but they sustained Improvation against the Citation, made against the assignee by way of Defense. In this case it was not urged, whether the Intimation was personal to the Pursuer, or only at his dwelling House? Or whether it was Recent before the Citation; for if it were not Personal, or Recent, it were hard to oblige the Pursuer to remember so transcient an Act, as an Intimation. It was further alleged by the Defender, that there was no Lesion; because he offered him to prove, that the sum was delivered to the Minors Curators, at least to the Minor and his Curators jointly, who being persons abundantly solvendo, and very provident, the Minor could have no Lesion, seeing they were comptable. It was answered non Relevat, unless it were alleged positive, that the sum were utiliser impensum, for the Minors profit; for the Minor has his option, either to pursue the Curators, as intrometting, or to Reduce hi● Obligation, and the Curators not being in this Process, no Probation of the delivery of Money to them will bind them, but there were necessity, that they were both Cited, and it instructed by Writ. The Lords Repelled this Defense, but severals inclined not to sustain Process, till the Cura●ors were first Discussed: And whether the Minor was laesed or not. Mr. Roger Hogg, and other Creditors of Wauchtoun contra Countess of Hume. july 3. 1667. IN an Incident pursued by the Creditors of Wauchtoun, against the Countess of Hume. It was alleged for the Countess, that the Incident as to several of the Creditors, could not be sustained; and likewise could not be sustained against several of the haver's; because as to these, the Incident was without Warrant, their Names not being contained in the Bill at the Signet. It was answered, the Bill contained several Names and a blank for others, which is a sufficient Warrant for the Raiser's of the Incident, to insert whom they please. It was answered, that Incidents being odious, strict form should be observed, in relation to them, so that a new Pursuer cannot be supplied by the blank, who did not supplicat by the Bill, and alleged a Decision the last Session, where it was so found in an Incident, at the Instance of the Fevers of Coldinghame against the Lord Justice Clerk. The Lords sustained not the Incident as to any of the Pursuers thereof, whose Names were not in the Bill, but sustained the same against any of the haver's, albeit their Names was not contained in the Bill, it being ordinar to get Summons upon Bills, upon such persons named, and others wherein the persons Names insert, are always sustained; but it is not so in the Pursuers: and yet this would hardly been sustained in another Case then an Incident, which is unfavourable: Cumming of Alter contra Lumsden. july 4. 1667. CVmming of Altar having set a Salmond Fishing to Alexander Lumsden, for payment of 60 pounds Scots of Tack-duty; he pursues Matthew Lumsden, as intrometter with the Fish, taken for the Tack duty, as having an Hypotheck upon the Profits for the Rent. It was alleged for the Defender, Absolvitor, because he intrometted with these Fish, as Donatar to Alexander Lumsden's Escheat, at least having now the Right of the Escheat, he was not liable for that privilege, preferring Masters of the Ground, for the Rent cannot take place against the King and his Donatar, who is more privileged. The Lords Repelled the Defense, and found the Donatar liable for the Rent, in so far as ilk years intromission would extend to the Rent of that year. George Schine contra james Christie. Eodem die. GEorge Schine having Adjudged an Annualrent, and having Charged james Christie his Superior, to receive him; He Suspends and alleadges he had apprised the same Lands before, and that his Author was only Infeft base, never clad with Possession. The Lords Repelled the Defense, hoc loco, and ordained him to Infeft, Reserving his own Right as accords. Schaw contra Tenants. Eodem die. SChaw pursues certain Tenants for their Duties, who produced several Discharges, against which it was alleged, that the Discharges were null, wanting Witnesses, and were not Written with the Dischargers own hand, and so were null by the Act of Parliament. It was answered, that Custom had introduced several exceptions from that Act, as Bills of Exchange, of the greatest importance, which are valid, being Subscribed without Witnesses, albeit not holograph: And in like manner the Discharges granted to Tenants, which by long Custom, through all the Kingdom, use only to be subscribed by the Landlords, without Witnesses, and written with another hand. The Lords sustained the Discharges, and would not put the Tenants to prove, that they were truly subscribed, unless they were offered to be improven; in which case, though the indirect manner was wanting, they might be improven, by comparison of Subscriptions, and other Adminicles, wherein less would serve, then in other Improbations. Sir Henry Hume and other the Creditors of Kello contra Sir. Alexander Hume. july 6. 1667. SIr Henry Hume and others, being both Creditors to Alexander Hume of Kello: And john Hume his Son apprised the Lands of Kello in anno 1649. And in anno 1653. Charged the Superior in anno 1661. john Hume is Forefault upon the Treasonable Crimes committed in anno 1651. Sir Alexander Hume is Donatar to the Foresaulture; the case of Alexander Humes Right before the apprizing was, that by Contract of Marriage, Alexander Hume had Disponed several Husband Lands to john, reserving his own Liferent of certain Husband Lands. The Father continued to possess the Lands Reserved; and the Son of the rest. The Question is now concerning the Lands Reserved, whereanent the Competition is betwixt the Creditors Appryzers and the Donatar. It was alleged for the Donatar, that he ought to be preferred; because any Right the Creditors had, is but an apprizing, and a Charge without Infeftment; which Charge, albeit it be equivalent to an Infeftment, in the Competition betwixt Con-compryzers: yet it is no way equivalent, as to the King; for after the Charge, all Casualties of the Superiority, would fall to the Superior, and so must the Casuality of Forefaulture, fall to the King. 2ly, Though the Appryzers had been Infeft, when they Charged their Infeftment, would have been long after the committing of the Crime; and there was nothing before the Crime, but the naked apprizing, which was no real Right; so that the Forefaulture, devolving the Fee to the King, with the burden only of such real Rights, as the Superior had consented to before the Crime, which cannot extend to this apprizing, which is no real Right, or to the Charge and Infeftment thereon; because after the Crime. 3ly, Albeit the Infeftment of the Son, who was Forefault, was base, holden of the Father; yet it coming in the Person of the King, or his Donatar, can no more be a base Right, but becomes public, so soon as it is devolved to the King, which was at the committing of the Crime, before the Appryzers' Infeftment, or Charge. It was answered for the Creditors, that they ought to be preferred upon their legal Diligence, for satisfaction of the lawful Debt, contracted before the Crime; because they had apprised before the Crime, and had Charged the Superior before the Sentence of Forefaulture: Which Charge is equivalent to an Infeftment, and the King succeeding in the place of the Forefault Person uti●ur jure privato; and albeit no● voluntar Deed, after the Committing of the Crime, would be effectual against the King, or his Donatar: Yet an apprizing before the Crime, and a Charge before the Sentence, or Process of Forefaulture, is sufficient in favours of the Creditors; especially seeing the Superiority being unquestionably in their Father, they might Charge him when they pleased, and having Charged him, they become in his place, and cannot Charge themselves as Superiors of the Forefault Person. The Lords preferred the Appryzers in respect of their apprizing before the Crime, and the Charge after, before the Forefaulture. It was further alleged for the Appryzers, that the forefault Persons Right being only base, never clad with Possession, their apprizing against the Father, who was not forefault, was preferable. It was answered for the Donatar, that the Forefault Persons Right was clad with Possession, in so far as the Forefault Person possessed a great part of the Lands Disponed▪ lying all together, and of the rest, the Father's liferent being reserved the Father's Possession was the Son's Possession. It was answered, that Possession of a part, cannot be sufficient for the whole, where there is an express Reservation, hindering the Natural Possession of the rest; and where the rest are actually possessed by another Party, neither can the Father's Possession be the Sons; because it is ordinarily found, that Dispositions by a Father to his eldest Son, and Infeftments thereon, reserving the Father's Liferent, are not thereby clad with Possession. And albeit in Reservations in favours of Wives, the Husband's Possession be the Wife's Possession; yet that is a special privilege, favore matrimonij & dotis, and is not competent to any other. It was answered for the Donatar, that a Reservation in favours of a Father, in any gratuitous, and clandestine Infeftment granted to the Son, does not validate the same: yet the Infeftment being for a Cause onerous, viz. a Marriage, which is a solemn and public Act, the Infeftment following thereupon, is void of all suspicion of Simulation; and as an Infeftment to a Stranger, reserving the Disponers Liferent; would be valid by the Disponers' Possession: So must a Sons upon a Contract of Marriage; otherwise great prejudice will follow, Sons being frequently Infeft in their Father's whole Estate, reserving their Liferent of a part, and ordinarily, but basely Infeft, to secure the Property, being more desirous to Enter themselves as Heirs to their Fathers, after their death, if no posterior prejudicial deeds be done, which is more honourable for the Family, all the Infeftments would be overthrown, being upon Debts contracted after the Infeftment. The Lords being of different judgements in this Point, were loath to decide them, because the Case was decided by the former Vote. Stevin contra john Boid. july 9 1667. IN a Tutor Compt at the Instance of Stevin, against john Boid, these Queries were Reported by the Auditor, and determined by the Lords: 1. How soon a Tutor was obliged for Annualrent of the Defuncts Bonds, that bore no Annualrent. The Lords found that the Tutor behoved to have a competent time to uplift and Re-imploy these Sums, for which they allowed him a year, and that he was liable for Annualrent after that year. 2ly, How soon a Tutor was obliged to do Diligence to uplift his Pupils Means, so that if the Debtor became Irresponsable, the Tutor was liable. The Lords found that if the Pupils Sums were in the hands of Debtors, unquestionably Solvendo, the Tutor was not obliged to lift the same, unless the condition of some of the Debtors, or Cautioners, became worse, at which time he was obliged to do all Diligence for uplifting the sums, unless the Debtors became to be known, to be altogether broken upon a sudden, which he could not foresee. 3ly, What Diligence a Tutor was obliged to do, whether Horning was sufficient, or if Caption● poinding and apprizing, were necessary. The Lords found that in different Cases, different Executions were requisite, viz. If the Debtor were known to have Lands appryzable, or Goods poyndable, or Sums arrestable, that the Tutor was obliged to do Diligence accordingly, and if not to use personal Execution. 4ly, Whether the Tutor should have allowance of such Sums as he paid without Sentence. The Lords found such sums allowable, unless a competent Defense could now be proponed, which was known and probable to the Tutor, at the time of payment. john Watson contra james Law. july 12. 1667. JAmes Law having Disponed certain Lands to john Watson, with absolute warrandice, and after the Disposition, there being a Designation of a part of the Land for Horse, and Kines Grass, to the Minister, conform to the Act of Parliament 1661. Watson pursues for Warrandice upon that distress. The Defender alleged absolvitor, because the distress is by a subsequent Law, falling after the Disposition. It was answered: first, That absolute Warrandice does even take place in the case of a subsequent Law, at least in so far as the Pursuer suffers detriment; because if the Lands had continued, the Defenders had been so burdened; and therefore is liable in quantum lucratus est. 2ldy, This is no supervenient Law, because the Act of Parliament 1661. Is a Reviving of the Parliament 1649. which being Rescinded in the said Parliament 1661. By a posterior Act thereof, concerning Manses and Gleibs, is declared to be valid, as if it had been made in the year 1649. It was answered to the first, that nothing can infer Eviction, or Recourse, but that which had a Cause anterior to the Warrandice, unless it had been otherwise expressed: Nor is it any ground, that if the Disponer remained Heretor, he had been liable, otherwise all other supervenient Burdens would Return, not only upon the Immediate, but upon all the Disponers; but all such accidental Superveniencies, are upon the Purchasers hazard, as well as the Advantages are to his benefit. To the second, the time of this Disposition, the Parliament 1649 was Rescinded, and the new Act was not Enacted; Neither by the new Act, is it declared to be effectual from the year 1649. As to the Horse and Kines Grass, but only as to the Manse. It was answered, that was but a mistake of the Draught of the Act of Parliament, there being no Reason wherefore it should be drawn back as to Manses, more than to the rest; but it was the meaning of the Act of Parliament, to Revive the former Act in all points. It was answered that the meaning of Acts of Parliament, may not be extended contrair to the words, neither can any thing be supplied that is omitted in a Statutory Act. The Lords found no Recourse upon the Distress arising from the Act of Parliament 1661. and that the drawing back thereof being expressly, as to Manses, which is adjected as a limitation, could not be extended to the Ministers Grass, which is statute in a different way in this, then in the Act of Parliament 1649. From this the Heretors are only to pay twenty pounds of Money: and in the former, Lands were only to be designed; therefore found, the Distress that being by a supervenient Law, that the Warrandice did not reach thereto. Margaret Scot contra Sir Laurence Scot july 14. 1667. SIr William Scot of Clerkingtoun, having granted Assignation to his Daughter Margaret Scot, of a Sum due by Wauchtoun: Pursues Sir Laurence his Son, as Haver, to deliver the same. It was alleged for the Defender, that there was a Clause in the Assignation, reserving a power to Sir William, to alter and Dispone, during his Life, and that he did Assign this Bond to john Scot It was answered, that he took a Back-bond from john Scot, bearing, that the Assignation was granted in Trust, to this effect only, that john Scot should do diligence thereupon. It was answered, that the Back-bond bears john Scot to be obliged to denude in favours of Sir William Scot, his Heirs and Assigneys, whereby the Assignation is altered. The Pursuer answered, that there appears nothing of the alteration of the Defuncts mind, more than if he had apprised in his own name, whereby the Bond would have been adjudged to him, his Heirs and Assigneys, which is no more, then if an assignee should use the name of the Cedent, which would no ways infer, that by adjudging Land to the Cedent and his Heirs, they pass from the Assignation. The Lords found no alteration in the Pursuers Assignation by the Right made to John Scot in his Back-bond, which also bore the Right to John Scot, was made to do Diligence, and for no other end. Mr. John Eleis contra Elizabeth Keith Mary Stevart and Keith. july 16. 1667. THis Cause at the Instance of Mr. john Eleis against Keiths, being Dispute the twenty seventh of February last. The Lords found Inhibitions to reach Lands Acquired after the Inhibition, but superseded to give answer to that Point, whether the Inhibitions were to be extended to take away Renunciations of Wodset Lands, which being now Debated. It was alleged that an Inhibition could not hinder the Granter of a Wodset to pay his Debt, and accept of a Renunciation from the Person Inhibit, because a Renunciation is but a Discharge, and Inhibitions were never found to take away Discharges of heritable Bonds, nor to hinder any Party to pay their Debt; but on the contrair, It was an universal Custom over all the Kingdom, that Debtors should pay their Debts, and did accept Discharges, and Renunciations, without looking into the Registers, which hath been most frequent, not only in Wodsets, but mainly in Infeftments of Annualrent upon heritable Bonds, which no man ever doubted to pay, till he searched the Registers of Inhibitions, et communis consuetudo pro lege habetur; It was answered, first, That the Inhibition bears, expressly a Prohibition to grant Renunciations, but no Prohibition to grant Discharges, and as to the Custom, it cannot be shown that persons did pay Wodsets, and take Renunciations from these that were Inhibit, much less that the Lords by their Decisions did approve the same, which Decisions can only make a Custom equivalent to Law; 2dly, Albeit where Wodsets were before the Inhibition, the Debtor might accept Renunciation, because by the Reversion, the Wodsetter is obliged to grant Renunciation upon payment, so that the granting of the Renunciation being upon an obligment Anterior to the Inhibition, could not be prejudged by the Inhibition, as is found in all cases, but here the Wodset was contracted after the Inhibition. 3dly, The Renunciation here granted, was voluntarly accepted, and payment was voluntarly made, because there was a Clause of Premonition and Requisition in the Wodset, which was not used. It was answered that the Style of Inhibitions is no Rule, seeing it prohibits the Selling of Goods and Geir, to which no Inhibition is extended, and there being no Law, nor any Dicision that an Inhibition should be extended against a Renunciation of a Wodset, the common Opinion, and common Custom of the Nation to the contrair is sufficient; neither is there any difference in the Custom, whether the Wodset be contracted after the Inhibition, or before; and if there were, there is much more reason that Wodsets contracted before, should rather be subject to the Inhibition, then Wodsets contracted after, by which the Creditor Inhibiter is in no worse condition when they are Renunced, than he was the time of his Inhibition, neither was the payment here made voluntar, albeit Requisition was not used, because there being an obligement to pay the delay upon the Requisition, being only for a few days, no prudent Man would suffer himself to be charged upon the Requisition, and it is no more voluntar, then if a Creditor should pay before the Registration of his Bond, because he could not be compelled before it were Registrat, and he charged; but seeing Law and Custom obliged not Debtors to inquire for Inhibitions, they may pay what way they please, and albeit there had been a Requisition, yea, and a Consignation, unless the Debtor after Inhibition, had been obliged to call the Inhibiter, it could operat nothing as to the Inhibiter. It was answered that there would be a great Detriment to Creditors, if they cannot affect Wodse●s by Inhibition, seeing these cannot be Arrested. It was answered they might be apprised. It was answered they might be Renunced before the Term of payment of the Creditors Debt, so that apprizing could not proceed, and that a Debtors whole Estate may consist in a Wodset. It was answered that that case could seldom occur, and that there was neither Law nor Custom introduced upon that account. The Lords found that the Inhibition could not operat against the Renunciation of the Woose, and decided that general point by itself, for clearing the I ieges, and ordained the Parties to be heard upon some other Points in this particular Case, as that payment of this Wodset was made after the parties was in mala fide, after process intented against him, by Mr. John Eleis. Hamiltoun contra Symintoun, Eodem die. DAvid Hamiltoun as assignee by Robert Steel to a Bond granted by Andrew Symintoun, pursues Griselda Symintoun as representing him, for payment, who alleged absolvitor, because the alleged Bond is manifestly null, in so far as on that side where the Subscriptions is, there is only the Clause of Registration, and all the rest is filled on the other side with another Hand, and there is not one word on the Subscribed side of the Matter of the Bond, that might have Connexion with the backside, which is unsubscribed, so that this has been the last Sheet of a Writ taken off, and filled upon the back, upon which anything might have been filled up, that the Pursuer pleased. The pursuer answered that he oponed his Bond subscribed by Witnesses, which he bids by as a true Deed, and is valide unless it were improven. The Lords found this Writ null, and yet declared, that if the pursuer could adduce Writs, or Adminicles to astruct the same, they would Examine the same ex officio, as the Writer and Witnesses if they were alive. The said pursuer did also insist against the Defender for her own Aliment, as having Right thereto from his own Son, who had Married her Mother. It was alleged for the Defender that her Mother Liferented her whole Estate, and so by Act of parliament was obliged to Aliment the appearand Heir. It was answered the Defender had Renunced to be Heir to the same Pursuer, and so could not crave that Benefit. It was answered, that as Appearand Heir, She had Right to the Aliment, and her offering to Renunce, was but to save her from personal Execution, and it could not prejudge her of her Aliment, which she had received before she Renunced. Which the Lords found Relevant. Lady Burgy contra Her Tenants, and Sir John Strachan, july 18. 1667. THe Lady Burgy pursues the Tenants of her Liferent-lands to Remove. Compearance is made for Sir john Strachan, who alleadges that he stands publicly Infeft in this Land, and in Possession, and will not suffer his Tenants to Remove. It was replied that the Pursuers Infeftment in Liferent is long before Sir john's, and could take no effect till now that her Husband is dead. It is answered that the Lady's Infeftment is base, and therefore though it be prior to Sir john's public Infeftment, it cannot be preferred thereto, unless it were alleged it was clad with Possession before the public Infeftment, either by the Ladies own possession, or at least by her Husband's possession, but she cannot allege either, because these parties were in possession from the Date of her Infeftment, till the Date of this public Infeftment. It was answered for the Lady, that she offered her to prove, her Husband was in possession after her Infeftment and before the Defenderes Infeftment by himself, or at least by these who derived Temporary, or Redeemable Rights from him, or his Authors as Liferents, Wodsets, and unexpired comprisings. It was answered, that albeit favore Matrimonij the Husbands possession, though common author be counted the Wife's possession, yet the possession of a Wodsetter, or Appryzer are neither said to be the Wife's possession, nor the Husbands, because they possess prop●io jure, and the Husband had only a Reversion. The Lords found the alleadgeance Relevant for the Lady, that her Husband possessed after her Infeftment, and before the public Infeftment, either by himself, or by any deriving a Temporary Right from him, or his Authors. Executors of the Earl of Dirletoun, contra Duke Hamiltoun, Earl of Crawford, and others. Eodem die. IN August 1645. the Earls of Crawford, Lanerk and several other Noblemen, and Gentlemen granted Bond to the Earl of Dirletoun, bearing an Obligement therein, Conjunctly, and Severally to pay ten Marks for ilk Boll of 6000 Bolls of Victual, that should be Delivered by Dirletoun to james Riddel, or his Deputes, the said Earl always obtaining james Riddles Receipt thereupon; which Delivery, and Receipt were to be betwixt and a blank day, and the Receipt to be Delivered before payment, the Term of payment of the price was Candlemas 1646. Whereupon Dirletouns Executors pursues the Subscribers of the Bond, who alleged that this Bond was clearly Conditional, that the Victual should be Delivered betwixt and such a Time, which though it be blank, yet must be understood to be before Candlemas, which was before the Term of payment of the price, and upon obtaining james Riddles, Receipt thereof, Ita est, there is nothing to instruct the Delivery to james Riddel, or the obtaining his Receipt, Debito tempore. It was answered that the Condition bears Delivery to james Riddel, or his Deputes, which Terms signifies only persons under him in Office, and therefore it must relate to James Riddel as he was then a public person, one of the Commissars of the Army under Humby, Ita est there is produced Humbies Discharge, and Receipt of the Victual, which is better than Riddles who was his Depute; and there is also a Declaration by Riddel, that the Victual was truly Delivered. It was answered for the Defenders, that their Obligation being Conditional, must be performed in forma specifica, so that it being in Dirletouns option to Deliver or n●t, if he Delivered on other Terms than the Bond bears, it was on his own peril, neither is there anything to show that this Victual was destinat for pulick use; and albeit it had been the purpose of the Defenders so to have employed the Victual, yet they might choice their own way of putting it in the hands of a Person whom they did Trust, who without their Warrant could have given it out to none, and whose trust they only followed thus qualified, that a Receipt were then obtained from him, so that they are not obliged to trust Humbies. Receipt, nor can that prove against them for his Oath, much less his acknowledgement could not bind upon them his Debt, neither is Humbies' Receipt Debito tempore; and likewise Humbies' Receipt relates not to this Bond, but bears to be conform to a Contract betwixt Dirletoun and the Committee of Estates; neither can Riddles Declaration ex post facto prove against the Defenders, or burden them, because they have qualified Riddles Trust, not to his Write at any time, yea not to his Oath, but to his Receipt within the time limited, and there is no reason to enforce the Defenders Contract, to the Tenor of their Bond, to trust the Declaration of james Riddel Emitted at any time, for his Condition mighht change, both as to his Estate, and to his Trustiness; and they were not obliged, though they were to Trust his Receipt within such a time, therefore to trust his Declaration for ever; and albeit the Victual had been appointed for public use; yet the Delivery, and Receipt should have been made forthcoming to the Defenders, that they might have obtained Relief of the public, but never having been delivered to this day, the Defenders cannot be burdened therewith. It was answered, that Dirletoun was known to be an Illiterate Person, and albeit he takes Humbi●es Discharge relative to a Contract of the Committee of Estates, yet this same Bond is understood for the name of Contract, may well comprehend a Bond, and the Subscrivers of this Bond, albeit they be not so Designed in the Bond, yet all of them were Members of the Committee of Estates, and a Quorum thereof, and the quantity of Victual was the same, and the Date of that Contract is, the day of August 1645. which shows it was not then present, and this Bond is in August 1645. and it cannot be imagined that Dirletoun would have engaged in the same Month, for 6000. Bolls of Victual twice, and as to the time of the Receipt and Declaration, there is no Clause irritant upon nor obtaining it at such a time, and that is no Detriment to the Defenders, neither can it be presumed that they would have obtained Relief, seeing they attained no Relief of many public Bonds, they were engaged into at that same time. The Lords found the Defense founded upon the Conditional Clause relevant, and the Condition was not fulfilled, chiefly upon this consideration, that james Riddles Receipts were not obtained in the time limited, after which the Defenders were not obliged to trust any Declaration of Riddles, or Humbies. john Ker contra jean Ker, Eodem die. john Ker being Executor dative ad omissa et male appreciata, pursues jean Ker as principal Executrix for payment, and referred the particulars to her Oath, she alleged that she had made Faith at the time of the Confirmation, that nothing was Omitted, or wrong Prized, she could not be obliged to Depone again. It was answered that this was the ordinar Custom, and was no more than a Re-examination, and that it would not infer Perjury, though it were different, because if she had any thing Omitted that had come to her Possession, and Knowledge after the Inventar, or if she had then possessed it, but did not know, or remember that it was in her Possession, or in bonis defuncti, and ordinarily the Prices are made be the Commissar, and but upon Conjecture, and may by much better known thereafter. The Lords Repelled the Defense, and ordained the Executrix to Depone. Mr. james Daes contra Kyle, July 10. 1667. MAster James Daes being Infeft by the Earl of Hadingtoun in certain Husband Lands, and Aikers in Earlstoun, with a general Clause, of all Lands within such bounds, pursues Robert Kyle to remove from certain Aikers within that bounds, who alleged Absolvitor, because he has Tacks standing from the Earl of Hadingtoun of all the Lands possessed by him, and produces the Tack, bearing, the Earl to have Set him fourteen Aikers of Land presently possessed by himself, and declares he has no other than what he possessed before the Tack, and during the time of the Tack, now by the space of thirty years. The Pursuer answered that his Tack gave him only Right to fourteen Aikers, so that the Pursuer, by the general Clause, must have all the rest: It was answered that the Defender was not obliged now to Dispute the extent or quantity of his Aikers, nor to restrict to the present extent of Aikers, especially seeing that which he did possess the time of the Tack, was Set to him by his Tack simply without Reservation; and albeit designed fourteen Aikers, and were more, it is nothing, for an Erroneous Designation vitiats not, unless it did appear to be Restrictive, or Taxative; likeas the Pursuers Aikers in his Infeftment, will be as large proportionally as the Defenders. The Pursuer answered, that whatever the extent of his Aikers were, the general Clause gave him all that was not reserved to the Defender, and he offered him to prove; that there were six aikers beside the fourteen aikers, severally kend and known, and possessed by different Possessors before this Tack. The Defender answered, that he opponed his Tack, bearing the Lands to be then in his own Possession, at the granting of the Tack, and he having possessed thirty years accordingly hoc judicio, he was not obliged to Dispute any anterior Possession. Which the Lords found Relevant. Hans jurgan contra Captain Logan, July 23. 1667. CAptain Logan a Privateer having taken Hans Jurgan Citizen of Lubeck obtained his Ship and Goods, adjudged Prize by the Admiral, upon this ground that he had carried in Prohibit, or Counterband Goods to the Danes, being then the King's Enemies, viz. Hemp and Victual, and that he was taken in the return of that Voyage, which was instructed by the Oaths of the said Hans and Sailors, Hans raises a Reduction of the Admiral's Decreet on these Reasons; First, That the Victual was no Counterband Goods, but such Goods as the King allowed his own Subjects to Export out of England, and declared that there should be no question thereupon, nor upon any Goods, not enumerat in an Act of Council produced all which are bellicus Instruments and Furniture, and hath nothing of Victual; and albeit Hemp be Prohibit by that Act, and commonly counted Counterband Goods, yet the quantity Deponed was only sixteen Stones, which is an unconsiderable quantity, and necessary for Calfing the Ship, and Sowing the Sails, 2ly, The Pursuer produced the Duke of York his Pass, Warranting this Ship to come from Bergen, and therefore she could not have been taken in her return by any Privateer. 3ly, Whatever might have been alleged, if the Ship had been taken, having unfree Goods in her, there is neither Law nor Custom to seize upon the Ship in her return, when these Goods are not in her, for the Sh●p might have been sold to another, than he that did the wrong; and it cannot appear whether the return was made out of the price of the former Fraught, and though it were, it might be of a hundreth times more value. And albeit such seasures in return were allowable, yet they could only be sustained when it is evident, at the time of the Seizure at Sea, that the Counterband Goods had been in the Ship that Voyage, either by Bills of Loading, Charter parties, or other Writs taken in the Ship, or by the Oaths, or acknowledgements of the Company, otherwise upon that pretence Freedom of Commerce would be altogether stopped, seeing every Ship might be brought in● that they may be tried by the Admiral, whether or not, they had in Counterband Goods that Voyage. 4ly, These Strangers could not be in culpa before the Indiction of the War could come to their Ears, but the Indiction of the War, was by the King's manifesto of the Date the ninteen of September, 1666. and this Ship Loosed from Lubeck the 24 of September, within five days after, and so could not possibly know the Indiction, and they Trading, bona fide, as they were formerly accustomed, cannot be seized as injuring the King, in assisting his Enemies, and they did, nor could not know they were such. It was answered for the Defender, that he had walked exactly according to his Commission, bearing expressly all kind of Grain to be Counterband Goods, and being impowered to seize upon any Ship in return, that had carried in Counterband Goods, and that it was in the King's power leges imponere bello, and that Victual is Counterband Goods it is evident, not only because it is the first necessary in War, especially for Victualling of Ships, Norway being a barren Country that hath little Grain of its own, and produced a Treaty betwixt the King, and the Crown of Sweden, wherein the Swede hath a liberty to carry Counterband Goods; bearing expressly in the Latin Ann●na, in the Dutch Proviant, which shows, what Goods are accounted Counterband Goods, not only by the King, but other Nations: and for this Seizure in the return, it is not only warranted by the Commission, but upon evident Reason, because the King's Allies have free Trade, both with Him, and his Enemies, so that they partake not with his Enemies against Him, by furnishing them Instruments, or Furniture of War; and any private Party transgressing the same, might, de rigore juris, be seized upon as an Enemy's and it is favour and benignity, that the seizure is allowed only in that very Voyage, in which the wrong is done. As to the Duke of Yorks Pass, Scotland being a free Kingdom, and the Duke not Admiral of Scotland, his Pass, or passing from any Delinquents, can only be Operative in England; and that which is produced, is only an Extract out of the Admiralty Court, bearing that such a Ship was Cognoseed to be a Lubeck Ship, and so that she might freely pass, which cannot import the Duke's knowledge, much less his passing fraes her carrying of Counterband Goods, as to the pretence of Trading, bona fide, and the ignorance of the War, no respect ought to be had to the alleadgeance, because the War was begun, and flagrant long before the Losing of the Ship, and there is no necessity of Manifesto's to indict War, but Acts of Hostility and public fame of a War, are sufficient to hinder Allies of either Parties, or Neuters to assist against their friends: and here it's offered to be proven, that six Months before this Ship Loused, many Commissions were granted against the Danes, Prizes taken, and the King's Subjects taken by the Danes, and declared Prize at Bergen, upon the account of the War, which must be presumed to be known by the Pursuer: and the City of Lubeck being a Hanse Town of Trade, which keeps Intercourse with London, and other Towns of Trade: and as to the Act of Council, permitting the King's Subjects to Trade, even in Corn with his Enemies, it is a special Indulgence in Favours of England only, and could not be effectual as to Scotland, and much less to Strangers. The Pursuer answered, that there Was nothing alleged to show by Law or custom, that Victual is Counterband Goods, unless it were carried in to an Enemy for Relieving a Besieged place, but not when it is but in common Commerce, and if the Lubeckers be hindered to Trade in Corn, or the like, being the only Growth of their Country, their Trade is altogether marred, contrary to the King's Interest and Intention, who has written to the Emperor most favourably in behalf of the Hanse Towns, for the freedom of their Trade, and acknowledges them his good Allies, and not merely Neuters, which Letter is produced, neither is the palpable inconvenience answered, if Privatteers may bring in all the Ships, whether they carried Counterband Goods in that Voyage, though they find none in them, neither is there any thing alleged sufficient to instruct, that the Pursuers knew, or were obliged to know of the War betwixt the King and Denmark, before they Loused from Lubeck for any Acts of Hostility, before the solemn Indiction produced, were such Deeds as the Pursuers were not obliged to notice, for the taking and declaring of Prizes doth not include Enimity● or War, but may be for reparation of private injuries without intention to make an open War, although a Prize of the King of Britain's Subjects, had been declared at Buirran, it does not infer, that Lubeck being a free State, at so far distance, behoved to know the same; much less, that thereby there was a War betwixt the King and Denmark. The Lords having considered the whole Debate, were of different opinions, whether the Victual could be called Counterband Goods simply, or only when imported for relieving of Sieges, or for the like Warlike use, and whethe● Ships could be seized in their return not having actually Counterband Goods in, but especially whether they could be seized without evidence at the time of the seizure at Sea, that in that Voyage they had in Counterband Goods, but they did only Determine the first Reason, and found it relevant, to infer that the Lubeckers was in bona fide to continue the Commerce, having Loused within to few days of the Kings Manifesto; and that no other Act of Hostility before, were to be presumed to have come to the knowledge of Lubeck, or that thereby they were obliged to know, that there was an actual War, unless these Strangers: knowledge were instructed by their own Oaths, or that it was the common Fame notour at Lubeck before they Loused, that there was War betwixt the King and Denmark, and the Defenders offering to prove the same. The Lords granted Commission to the Kings Resident at Hamburgh to receive Witnesses above exception, and in the mean time, ordains the Stranger's Ship and Goods to be Inventared, and Estimate, and delivered again to the Strangers▪ upon Caution to make the same or price forthcoming, in case the Defender proved, and prevailed, and with the burden of the Stranger's damnage and expenses, if they betook themselves to this manner of Probation, and not to the Oaths of the Strangers who were present, reserving to the Lords the remanent Points to be Decided, if the Stranger's knowledge of the War were known. In this Process the Lords found also that competent, and emitted before the Admiral, could not operat against their Strangers, qui utuntur communi jure gentium. Sir Harry Hume contra Tenants of Kello, and Sir Alexander Hume. july 23. 1667. SIr Harry Hume having Comprised the Lands of Kello, compearance is made for some Annualrenters, who craved preference, because their Infeftments of Annualrent was before the Apprizing: It was answered that the Infeftment of Annualrent was base, never clad with Possession: It was answered for the Annualrenter, that he produced an Antaphocha, bearing the Receipt of a Discharge granted by the Debtor of the Annualrent, which did instruct the Annualrenter was in Possession before the Apprizing, by uplifting the Annualrent from the Debtor: It was answered that the Sum was of fourscore Marks, which was far within an Terms Annualrent, and that it related only to the personal Bond, and not to the Infeftment, and that there was more than this Sum due of Annualrent by the personal Bond, before the Date of the Infeftment, to which only it behoved to be imputed: It was answered that the Receipt being general in part of payment of the Annualrent, he that paid the Sum might impute it to what Term he pleased, and so would impute it to a Term after his Infeftment: It was answered that before that Discharge, the Pursuers Apprizing was led, though no Infeftment thereon, after which so small a part of the Annualrent could not be impute to any, but the first Annualrent due, and could not validat the base Infeftment. The Lords found it sufficient to validat the base Infeftment, notwithstanding of what was alleged on the contrair. Sir George Mckenzie contra john Fairholm, july 25. 1667. SIr George Mckenzie Advocate having formerly pursued Reduction of a Bond, granted to Umquhil john Fairholm, wherein he was Cautioner for his Father, and Pluscardy, upon this Reason, that he then being Minor▪ entertained by his Father, as in his Family; his Father was his Administrator, and in place of a Curator, so that Deeds done without his Fathers authorising as Curator, was null; neither could his Father authorise him to his Fathers own behoof, as Cautioner for his Father, which the Lords found relevant to annul Sir George's Subscription; and now Sir George desiring the Extract of the Interloquitor. It was further alleged, that Sir George was not only Cautioner for his Father, but also for Pluscardy, and that his Father might authorise him to Subscrive Cautioner for Pluscardy, and therefore the Bond behoved to stand against him as Cautioner for Pluscardy; It was answered that albeit his Father might authorise him as Cautioner for Pluscardy, in a Bond apart, wherein his Father was not concerned; yet if his being Cautioner to Pluscardy were to the behoof of his Father, he could not authorise him therein, but this Bond is of that nature, for Pluscardy and the pursuers Father being bound Conjunctly, and Severally, Caution adjected for any of the correi debendi, could not but be to the behoof of both, because in so far the Obligation was strengthened, and the payment made by the Cautioner would liberat both, and if Sir George should be Discerned Cautioner for Pluscardy, it would Liberat his Father, and so is clearly to his behoof. In respect whereof, the Lords repelled also this new Defense, and adhered to their former Interlocutor, and found Sir George's Subscription for his Father, and for Pluscardy, to be to his Father's behoof, and that he could not authorise him therein, neither did he at all directly authorise him, but in so far as they both Subscrived as Principal and Cautioner in one Bond. Mr. john Philip contra Mr. john Cheap, july 26. 1667. MAster john Philip pursues his Tenants upon a Disposition granted by Michael Philip, Compearance is made for Mr. james Cheap who Apprized from Michael Philip's Heir, who alleged that the Disposition is null, neither being Subscribed by the Disponer, nor by two Notars for him for albeit it mention the Subscription of three Notars, yet two of them Subscribed not at the same time with the third, and neither of these two bear, that they did Subscribe at command, but that they Subscribed only for Michael Philip, because that he could not Subscribe himself: and albeit the Body of the Writ mention such Witnesses to the Command given to these Notars, yet it is written with another Ink, and does not appear to be Written at the time of the Subscriptions, being the Hand-writ of him that Wrote the Body, which mentions to be Written by him at Edinburgh, and the Subscription is at Newburgh, and because the Notars Subscription must give Faith to the Body of the Writ, and not the Body to it. It was answered, that they offer to prove by the Witnesses insert, that the Command was given: It was answered that the Command being the most substantial point of the Subscription, could not be proven, or supplied by Witnesses, for the Subscription of the Notar, because the party could not Subscribe signifies nothing without the Command of the party, for whom they subscribe, and Warrant or Command in most ordinary Matters is not at all probable by Witnesses. The Lords found the Disposition null, and that the subscription of these two Notars not bearing, that it was by Command, could not be supplied by the Witnesses, insert, unless it had been the subscription of an Connotar Subscribing at the same time with a Notar, whose Subscription bore Command. Here it was Debated whether the Subscriptions of Notars at divers times were sufficient, or if the Subscription of a Notar who was not authorized by the English, and did forbear to Act at that time were sufficient, but the former Vot made these to be undecided, as not necessary, seeing the Writ was annulled by the former Vot. Sir George Prestoun contra Sir john Scot, july 1667. SIr john Scot having pursued for payment of an Annualrent of 500 Marks, out of Sir john Prestouns Lands, he alleged payment, thereupon Li●●scontislation being made, he produces three Receipts, each 500 pounds, bearing to an Account; and alleged that the odd fifty Marks was for public Burden, which completing three years, must Assoilzie from bygones. It was answered the Discharges bore to be but granted by a Factor, which was not probative, and that they wanted Witnesses, and that being given by a Factor, they could not infer payment of all proceeding: It was answered that Discharges of Annualrents, or Rents, are sufficient without Witnesses. The Lords found that Discharges to Tenants were sufficient without Witnesses, but not being granted by an Annualrenter to an Heretor, and found that the Factors Discharge could not in●er payment of bygones. The Owners of the Ship called the Castle of Riga, contra Captain Seatoun Eodem die. CAptain Seatoun a Privateer having taken a Ship at Sea, she was declared Prize at Cromarty; the Owners pursue Reduction of that Decreet before the Admiral at Leith, who Ass●●●zied from the Reduction, and adhered to the Decreeth the Owners now pursue a Reduction of both these Decreets upo● this Ground, that by the Treaty betwixt the King, and the King of Sweden; it is expressly declared, that if any Swedish Ships, having a Pass from the King's Council, or College of Trade, or Governor of the Province where fraes she looseth, she shall not be questioned, nor any Inquiry anent the Goods, or Men, and that because, by the said Treaty it is Agreed that the said Passes, shall expressly contain that the Ship and whole Goods, belonging to the Subjects of Sweden, contained no Counterband Goods, and that upon Oath taken at the obtaining of the Pass, na est, the Governor of Livinia, wherein Riga lies, hath given a Pass, bearing that the Owners of the Ship called the Castle of Riga, being Citizens of Riga, did make Faith that Ship, being then at Amsterdam, did truly belong to them, and was Loaded with their Goods only, and was direct to France for a Loading of Salt, to be returned to Riga, and that there is produced an Extract out of the Admiralty of ●rance, bearing Faith to have been made, that the Ship, nor Goods, nor any part thereof did not belong to the French nor Hollanders, and a Certificate from the Swedish Resident in Holland, Registrat in the Office of Admiralty in England, bearing this Ship to be a ship belonging to the Swedes, and yet she was declared Prize, upon this ground only, that the Seamen did acknowledge they were Inhabitants in, and about Amsterdam, and that some of them Deponed, that the ship was a Dutch bottom; and one of them Deponed, that they were paved by the Skipper, who received the Money from a Water Bailzie in Amsterdam, without proving that the ship or goods belonged to Hollanders, which could not have been ground, seeing the Pass, and Treaty did Exeem them from giving an Account, or Inquiry anent their Mariners. It was answered for the Defenders, that all these Passes and Papers were a mere Contrivance, and ●alls not in the Case of the Treaty, because the ship Loused not from Riga, but from Amsterdam, and the Pass did not contain the particular Goods, and Quantities, according to the Conditions of the Treaty, and that the Testimonies proved that the ship had on a Dutch Flag, that she came hot by the Channel, but about the Back side of England, and that the Company was afraid to meet with Scotish and English Privateers; and having met with a ship in their Course, asked for the Dutch Fleet, calling it their own Fleet, all which were strong Evidences that the ship belonged to Holland. It was answered that albeit the Pass mentioned not the particular Goods, which it could not do, the ship being but to be Loaden, the Certificate did abundantly supply that, expressing the Loading, as for the presumptions they are of no force, because the Skipper, though a Dutchman, yet was sworn a Citizen of Riga, and might justly be more afraid of the English and Scots, then of the Dutch, and they might call the Dutch Fleet, their own Fleet, as being of their Nation; at last they produced a Letter of the Kings, bearing that His Majesty knew by sufficient Information, that this was a ship belonging to Sweden; and both by it, and by a former Letter, did peremptorly Command the Delivery thereof, and the Goods. It was answered the King's Letter was impetrat upon false Information; and if His Majesty had known the true state of the Case as it now stands in the Evidence, He would not have so Written; nor doth His Majesty's Letter, granted inaudita parte, prejudge the private Rights of his Subjects. The Lords found that the Testimonies of the Witnesses did not prove, that the ship and goods belonged to any of His Majesty's Enemies, and therefore, in respect of the Pass, Certificate, Treaty, and His Majesty's Letter, they Reduced both the Decreets. july 31. 1667. THis Cause being again Debated, it was alleged that the former Interlocutor having proceeded mainly upon His Majesty's Letter, there was no ground to proceed thereupon, because it was granted inaudita parte, and Acts of Parliament being done by His Majesty, without consent of of Estates, prejudge no party as to their private Right, but such as are called, much less Letters thus impetrat upon importunity, and groundless Representation, and this Letter is Derogat by a posterior general Letter to the Lords, Recorded in the Sederunt, warranding the Lords to proceed. And as to the Swedish Treaty, it can never be understood further, then as to Counterband Goods, which are the Native Commodity of the Swedish Dominions, for albeit some of these be dispensed to the Swedes, because most of the Growth of their Country is such, yet it cannot be extended to this Case, where the Swedes Loadned Counterband Goods in Norway, and carry them to France, both being His Majesty's Enemies, neither can the Pass be sufficient, except as to such ships as are within Sweden, and where the particular Goods, upon Oath are Attested, and expressed in the Pass, neither of which is in this Case. It was answered that they opponed the former Interlocutor, and that a solemn Treaty, with so considerable an Ally as the King of Sweden, is not to be Retrenched, nor Limited, but by the exceptions contained in itself, and in it there is no such exception, but generally the Pass, as is there qualified, excludes all search or question of Men or Goods, which is also the King's meaning, which appears expressly by the foresaid Letter, which albeit it could not deerogate from a private Right, yet may well clear the dubious interpretation of a Treaty, and is sufficient in this Case, where the King alone that leges bello. The Lords upon consideration of the last Dispute, did ordain the Precedent to state the Case, and represent it by the Secretary to the King, both as to the meaning of the Treaty and the Letters, and specially whether Counterband Goods, not being the Growth of, nor Loaden in Sweden, were privileged to the Swedes thereby. November 6. 1667. THe said Cause being again called, the Precedent presented the Lord Secretary's Letter, bearing the King's Answer, that the Treaty, or Letter did not warrant the Swedes to carry Counterband Goods to the Country of his Enemies, except their own Country Commodities, Loaden within their own Dominions. Whereupon The Lords sustained the Admiral's Decreet, as to that Reason of Reduction, but gave the Parties a time to be further heard before Ex●ract. Hend●●son contra Henderson, November 14. 1667. HEnderson insisted in the Cause mentioned, january 31. 1667. which was again fully Debated above; and it was alleged that the Writ in question was a Testament, or at lest donatio mortis causa, or at least a Conditional Donation, to take effect only in case the Disponer died before he returned, so that his simple returning, without any further, purified the Condition, and made it null. The Lords having considered the Writ, found that albeit it was not formal, yet it had the Essentials of a Disposition, and Donation, interviros, and that it was not null by the Disponers return, unless he had revoked it; for they found that the words being, that he Nominat, and Constitute Henderson his Heir, and Successor, and Donatar irrevockably to certain Tenements in particular, with power to him (in case the Disponer returned not) to enter by the Superior, and Enter to Possession, and transferring all Right he had in that case, which words Constituting him Dona●ar, they found were Dispositive words, and Effectual, and the adding of Heir, and Successor, could not Evocuat the same; and found the Condition of his not returning, was not annexed to the Dispositive words, but to the Executive Clause of Entering by the Superior, and taking Possession, which was cleared by the Posterior Reservation, to recall it after his return. It was further offered to be proven, that the Disponer not only returned, but recalled the Disposition, in so far as he had it in his own hands, and power after his return. It was answered that it was no way relevant, unless the Delivery of it hoc intuitu were proven, for he might have had it in his hands upon many other accounts. It was answered that the very having of the Writ, did presume that it was Delivered, unless the other Party would offer them to prove that it came in his hands alio nomine. Which the Lords found Relevant. Thereafter it was alleged, that as the Disponers having of it, presumed Revocation, so the Acquirers having of it hereafter, presumed a passing from that Revocation, and a Reviving of the Right, and now it is in the Acquirers hands; as to this point the Parties did not Debate, but it occurred to the Lords that the Disponers having, might be sufficient to infer Delivery, but would not infer that the Acquirers having thereafter, would presume passing from the Revocation, because the Clause reserving to the Disponer a power to Recall, made the naked Recovery of the Writ sufficient to him, and did annul it, but it was more dubious, what was requisite to revive it, whether naked Having, or express Delivery, hoc intuitu, or if something were not requisite in Writ, and therefore before answer to that point. The Lords ordained the Pursuers who now had the Writ to condescend, and prove how they got it. james Maxwel contra Adam Maxwel, November 15. 1667. JAmes Maxwel, and the Umquhil Lady Hiltoun his Spouse, having Disponed their Land to Adam Maxwel, james now pursues a Declarator of Trust, whereupon the Lords formerly ordained Compt and Reckoning, that it might appear what Adam had Expended upon the account of the Trust. In which Account Adam gives up certain Bonds by james, whereunto he had taken Assignation, against which, he could allege no more than what he truly paid out, in respect the time of the Assignation he was entrusted by the Pursuer. The Defender alleged none relevant, unless it were alleged he was entrusted to Compone for the Pursuers Debts; but if it was only a Trust of his Land, and not a general Trust of all his Affairs, it could not reach their Bonds, and albeit upon the account of Friendship, or Charity, the Defender might be desired to take no more than he gave, there lies no Obligation in Law, or Equity upon him so to do; but he may demand what the Creditors, his Cedents, or any other assignee might demand. The Pursuer answered that the intent of his Trust in his Lands, being to preserve him from the rigour of his Creditors, it was against that Trust, to the Trusty to use the same rigour himself. Which the Lords found relevant, and ordained Adam only to get allowance of what he paid out. Laird of Culteraes contra Silvester Chapman, November 16. 1667. CVlteraes having pursued Silvester Chapman for payment of a Bond of two hundreth Marks, subscribed by the initial Letters of the Defenders Name. The Lords sustained the pursuit, the Defender being in use thus to subscribe, and that he did subscribe this Bond, the Notar and three Witnesses insert being Examined, they proved the Defenders custom so to subscribe, but as to the Actual subscribing of this Bond, two were affirmative, and two were negative, denying their subscription, Deponing that they remembered not they saw the Defender subscribe. The Pursuers own Oath was also taken ex officio, who affirmed the truth of the subscription, and that the Witnesses insert were present, the question arose whether the verity of the subscription were proven. The Lords found that it was sufficiently proven, the Pursuer being a man above all suspicion, and no improbation proponed. Chalmers and Gardner contra Colvils, Eodem die. CHalmers and her Children pursues Hugh Colvil and others, for Ejecting them out of their House and Lands of Lady kirk, and spuilzy of their Goods therein; the Lybel being admitted to Probation, not only a Witness Deponed, that he saw the Defender open the Pursuers Doors, they, being absent in Edinburgh, and the Keys with them, and cast out their Goods and enter in Possession, who was admitted, cum nota, as being Interessed as Tenant, and concurring with these Pursuers, in a pursuit with the same Defenders before the Council, upon the same Ground, the rest of the Witnesses proved, that the Pursuers were in possession at, or about the time libeled, and that they went to Edinburgh, and Locked their Doors, and took away the Keys; and some of them Deponed, that the night before the Defenders Entry, they saw the Doors Locked, and that the next day after they saw Hugh Colvil, and several others in the House, and several Goods that were in the House cast out of the Door, and that Hugh continued in Possession, and took in the Goods again. Which the Lords found sufficient to prove the Ejection and Spuilzie, seeing the Defender did not instruct that he entered by Authority of Law. The Defender alleged at Advising the Cause, that the Pursuer had a Husband, who within this Month, was seen at Air, and offered to prove by his Oath, that he had Ceded the Possession, being Warned, and gave Warrant to the Defender to Enter, and therefore, he being Dominus bonorum, his Wife and Bairns had no Interest to pursue, and though they had, his Oath was sufficient to instruct the Lawfulness of the Defenders Possession, and that the Wife's Oath in litem could not be taken, to Esteem her Husband's Goods. It was answered, that it was notourly known, that the Husband had been two years out of the Country, and having gone to Sea, was commonly repute dead, and therefore the Wife being in Natural Possession, might lawfully pursue this Action, neither was it relevant that the Husband promised to quite the Possession, which being but an obligation, could not warrant the Defender, brevi manu, to cast them out, unless he had been present, or consented to the Entry, or had given a Renunciation of his Possession, with a Warrant to Enter brevi manu. The Lords, in respect both Parties acknowledged, that the Husband had been a great while absent, found the Action competent to the Wife: and found that the Husbands Ceding the Possession, as was alleged was not relevant, and ordained the Wife's Oath, as to the quantity and value of the Goods Spuilzied, to be taken, and granted diligence to the Defender to Cite the Husband, if they could find him, to the same Diet to give his Oath, reserving to the Lords what the Wife's Oath could work, as to the estimation of the Goods, without the Husband's Oath. White-head of Park contra john Stratoun, Eodem die. WHite-head of Park pursues john Stratoun for restitution of an Horse, which he delivered to his servant, to be put in the Park of Holy-roadhouse to the Grass, and which now cannot be found. The Defender alleged that he was liable for no Loss or Hazard, because at that time, and long before, there was a placad fixed upon the Port of the Park, that he would be answerable for no Hazard or Loss of any Horse put in there, by Stealling or otherwise, which was commonly known at, and long before that time. It was answered, that this Action being founded upon the common ground of Law, nautae caupones stabularij, ut quae receperint restituunt, the same cannot be taken away but by paction; and the putting up of a placad is no ways sufficient, nor was it ever shown to the pursuer. The Defender answered, that the Pursuer having only delivered his Horse to his Servant to be put in the Park, without any express communing or conditions, it behoved to be understood on such Terms as was usual with others, which were the Terms expressed in the placad. Which the Lords found relevant, unless there had been a special agreement, in which case they found the Defender, or his Servant, should have shown what was in the placad. Executors of Isobel Trotter contra Trotter, November 20. 1667. GEorge Trotter and james Lundy his Cautioner, having granted a Bond of 636. pounds to john Trotter, and the same being Assigned to Isobel Trotter, and Confirmed by her Executors, they pursue Lundy, who alleged Absovitor, because he offered him to prove, that the Bond was granted blank in the Creditors Name to james Trotter, Father to the said Isobel, who filled up the Name of john Trotter (his Brother) therein, and took an Assignation thereto, in Favours of Isobel, who was then in his Family, having no Means of her own, and therefore it is in the same case, as if it were a Bond of provision, granted by the Father to the Daughter, or taken in her Name, which may always be discharged by the Father, or altered by the Father at his pleasure; and true it is that the Father Submitted the same, and was Discerned to Discharge the same, which is equivalent to a Discharge. It was replied, albeit Bonds of provision to Children be alterable by their Fathers before any thing follow, yet if they be delivered to the Children, or which is more, if they be Registrate, they become the children's proper Right, and cannot be recalled, Ita est, this Bond though it had been blank, ab origine, it was filled up in john Trotters Name, and filled up before the Submission; yea Isobel was dead, and the Sum confirmed in her Testament, so that her Father could not Discharge it proprio nomine, or as his Administrator. It occurred further to the Lords, that albeit the Bond was Registrat, the Assignation granted to the Daughter was not Registrat, so that if that Assignation remained still in the Father's power, the case would be alike, as if it were a Bond of provision, taken originally in the Daughter's Name, yet this not being pleaded by the Parties; And that the Asignation was Intimat that it was not constant, that the Assignation remained in the Father's hands. The Lords repelled the Defense, in respect of the reply. Colonel Seatoun contra the Laird of Balwhilly, November 22. 1667. THe Laird of Balwhilly having seized upon a Ship belonging to the Dutch, during the War, Colonel Seatoun, Governor of the Fort at Brassy sound, meddled with the Ship and Loadning, brevi manu, for the use of the Garrison; Balwhilly pursues a Spuilzie before the Admiral: Colonel Seatoun gives in a Bill of Advocation on this Reason, that Balwhilly having no Commission, albeit he did seize upon the Ship, yet it belongs to the King, and the Colonel had a Warrant from the Lord Commissioner to Intromet therewith, for the Garrisons use, and therefore in the Cause concerning the King, His Majesty's Advocate and Officers were not obliged to answer before the Admiral, nor could they attend there, and therefore the Advocation ought to be past. It was answered, that the Reason was in causa, and not relevant, for the Advocate ought to have a Depute before the Admiral, which is a Supreme Court, and Process maritime in the first instance ought not to be Sustained before the Lords, and that whatever they pretended in the point of right, Spoliatus est ante omnia restituendus. The Lords having heard the Parties upon the Bill in presentia, ordained the same to be passed. It was then desired, that as before the Admiral, the Colonel behoved to find caution, not only judicio sisti, but also judicatum solvi, that he may be ordained to do the same before the Lords. Which the Lords refused, but granted the Advocation in common form. Sir Robert Montgomery contra Alexander Rankein, November 23. 1667. SIr Robert Montgomery having obtained Decreet against Antonia Brown, as representing Sir john Brown her Father for two thousand Marks, Arrests the price of a chain due to Antonia, in the hands of the Lord Melvil, and pursues to make forthcoming; Compears Alexander Rankein and produces a Decreet obtained against Antonia, and thereupon an Arrestment by the Sheriff of Fifes Precept, and a Decreet of the Sheriff thereupon, in July last, the Arrestment being in the same Month, and craves preference, because he had the first complete Diligence. It was answered, that Sir Robert having first Arrested in March last, and first intented Process thereupon before the Lords, and having insisted therein the last Session, was kept off by the compearance of the Lady Cullerny, who also pretended Right to the Chain and has failed in no Diligence, and therefore aught to be preferred to a posterior Arrestment, albeit it have the first Decreet of an inferior Court, both Arrestment and Citation being after his, for he having affected the Sum by an Arrestment, the matter became litigious, and no posterior Diligence, nor Sentence of an inferior Court could exclude him, he using all Diligence before the Supreme Court, and not living within the Sheriff's Jurisdiction, and the Sheriffs Decreet being only in absence, otherwise no Process upon, any Arrestment before the Lords can be secure, but others may anticipat them, by obtaining Decreets before inferior Courts, which are far sooner obtained. It was answered, that it was not the Arrestment, but the Sentence to make forthcoming, that transmitted the Right, as being a Judicial Assignation, and therefore the first Decreet is preferable, for as Poinding might have been used upon the Sheriff's Precept, notwithstanding of a prior Arrestment, and Dependence before the Lords, so must the Sheriffs Decreet which is equivalent, have the same effect, and Sir Robert ought to impute it to himself, that took not the shortest way in pursuing before the Sheriff. The Lords found the first Arrestment, pursued before themselves sine mora, and the first Citation preferable to a posterior Citation, and Arrestment, though obtaining the first Decreet, and therefore preferred Sir Robert Montgomery, and would not bring in the Parties pari passu, the first Arrestment and Citation being several Months before the other. Lord justice Clerk contra the Laird of Lambertoun, Eodem die. THe Lord Rentoun Justice Clerk having pursued Lambertoun for the Spoiling of his Woods, and Planting in the beginning of the Troubles, the Parties did agree, that what Detriment of the Wood should be proven by Witnesses to be Adduced hinc inde, the one half thereof should be paid by Lambertoun. The Lords granted Commission to five of their Number, who Examined Witnesses upon the place: three of the Pursuers Witnesses proved the half of the Damnage, to be eleven thousand Marks, and gave clear Reasons of their knowledge, two of them were used by the Defender also, and two or three of the Defenders, other Witnesses Deponed that the whole Damnage was about two thousand Marks, and a third ex auditu agreed in some points. At the Advising of the Cause, the question arose whether the Lords might modify betwixt the two Extremes, or if they ought to Judge according to any two of the highest Testimonies, or according to the most pregnant Testimonies, giving the clearest ground of their Knowledge. The Lords found the most pregnant Testimonies to be the Rule and Discerned, according to the least, that the Pursuers Witnesses did prove, as being that wherein all did agree, and not according to the most quantities that some proved. Mr. john Hay of Haystoun contra Mr. john Drummond, and Patrick Hepburn, November 26. 1667. MAster john Hay having pursued a Reduction of the Rights of some Lands against Mr. john Drummond, and called for the Rights made to him by Umquhil Patrick Hepburn, Mr. john Drummond got three Terms to produce, reserving his Defences, and at the last Term, alleged no Certification against the Rights granted by Patrick Hepburn, because none to Represent Patrick Hepburn were called, a Diligence was granted Incidenter to the Pursuer to call the Representatives of Patrick Hepburn, whereupon he Cited Patrick Hepburn his eldest Son, and appearand Heir, who having gotten one very short Term, and that circumduced against him. It was now alleged, that all the Terms ought to be granted to Patrick Hepburn, seeing he was a Party necessary, to be called, and his Rights were to be Reduced. The Pursuer answered, that this being a single Reduction de jure, there was no more due but one Term. 2dly, Albeit more were due, yet Mr. john Drummond having run three Terms already, he can crave no more but one, upon the account of Patrick Hepburn his Author. The Lords in respect, the Term Assigned to Patrick Hepburn, was but on six days, allowed him a second Term, and ordained it to be Intimat by the Ordinar to the Advocats, that in single Reductions of Rights of Lands, they would grant two Terms for production, and in Reductions, and Improbations three only. Captain Bood contra George Strachan, November 28. 1667. CAptain Bood, Captain of one of His Majesty's Friggats, pursues George Strachan, who had Commanded that Friggat for a time, and was sent a Voyage therewith, from Brassie-found to London, to restore a part of the Out-reick of the Ship, which he had not Delivered, but had excepted in his Discharge as being worn, stolen or lost; and now it was offered to be proven, that he Sold and Disponed upon the same particulars he so reserved. The Defender alleged Absolvitor from such particulars as he condescended upon, because he did waire out a considerable Sum of Money, for Repairing the Out-rige, and necessars to the Ship during the Voyage, for which, in case of necessity, he might have Sold a part of the Out-rige. 2dly, Albeit he might not have Sold the same, yet he may retain, or compence the price thereof, with what he waired out necessarily, and profitably for the Out-rige of the Ship. 3dly He offered him to prove, that such parts of the Out-rige in question● as he should condescend upon, were worn and stolen, which being his Defense, he ought to be preferred in the Probation, unto the Pursuer, who ought to have no other Probation against him, being a Person Entrusted but his own Oath, much less a contrair probation by Witnesses, that they were not Lost, but Disposed upon by the Defender. The Lords Repelled the first and second Defences, and found that albeit the Captain might have Hypothecat his Ship, or Out-rige for the necessary Expenses waired upon her, yet that he could not Sell the same, and that de facto he did not Sell the same, because the Pursuer offered to prove he Sold them at Lieth after his Return, and found the same probable by Witnesses, and preferred the Pursuer in probation thereof, and in respect of so unwarrantable a way of Disposing, they would neither allow Retention, nor Compensation, but left the Defender to make his Application to the Exchequher for his payment. Margaret Pringle and her Spouse, contra Robert Pringle of Stichel, November 29. 1667. MArgaret Pringle pursues an Exhibition of all Writs granted by, or to her Umquhil Brother, ad deliberandum. It was alleged no Process, for Writs granted by him to Strangers, except such as were in his Family conform to the late Decision, Schaw of Sornbeg contra Tailzifare, which they declared they would follow as a Rule. The Pursuer answered, that he Insisted for Exhibition of such Writs as were granted by the Defunct to any person which were in his possession, or Charter Chest the time of his Death. Which the Lords Sustained. Duke Hamiltoun contra the Laird of Allardine, December 6. 1667. THe Duke of Hamiltoun having Charged the Laird of Allardine for the six Terms Taxation, Imposed anno 1633. He Suspends on this Reason, that four Terms were paid by the Earl of Marishal Sheriff, which must Exoner him, and all other persons of the Shire, and is instructed by the Books of the Clerk to the Taxations. It was answered, that the Reason is not relevant, because the Sheriffs did ordinarily Lift a part of all the six Terms, and albeit the Sheriff completed the first four, yet he might have done it out of his own Money, or out of the other two; and so when the King Charges for the other two, the Sheriffs Discharges will Exclude him, so that he shall not want the first four, but so much of the other two, and therefore unless the Suspender can produce a Discharge of the first four, the general Discharge granted to the Sheriff cannot Liberat him. It was answered, that when the King or his Collector Charges, the Collectors general Discharges cannot but meet himself, and whether the Suspender had paid or not, the general Collector cannot seek these Terms twice. It is true, ●f the Sheriff were Charged, the Suspender behoved to show to him his Discharge, but the Earl of Marishal Sheriff, could not Charge the Suspender for the Taxation of these Lands, because the Earl of Marishal was both Sheriff, and Heretor at that time, and Sold the Lands to the Suspender with Warrandice. The Lords found the general Discharge sufficient to the Suspender, against the general Collector, or any authorised by him. Earl of Lauderdale and john Wachop contra Major Biggar, December 7. 1661. THe Earl of Lauderdale, and john Wachop Macer, pursue a Reduction and Improbation of the Rights of the Lands of Hill, against Major Biggar, and craved Certification, contra non producta. The Defender alleged no Certification, because he had produced sufficient Rights to exclude the Pursuers Title, viz. Infeftments long prior to the Pursuers Right. It was answered, that this could not stop the Certification, unless the Defender would declare he would make use of no other Rights in this Instance, otherwise the Pursuers behoved to Dispute with him upon every single Writ he produced, and behoved to Dispute the Reasons of Reduction with him before the Production were closed. The Pursuer answered that his alleadgeance, as it is proponed, was alwise Sustained without declaring that he wo●ld make use of no more. The Lords found the Defences (as proponed) relevant, and ordained the ordinar to hear the Parties Debate upon the Rights produced, and if these should not prove sufficient, the Lords thought that the Defender might be forced at the next time to produce all he would make use of in this Cause, that so the Pursuers were not delayed upon Disputing upon every single Writ. Earl of Cassils' contra Sheriff of Galloway, December 10. 1667. THe Earl of Cassils' pursues, the Sheriff of Galloway, and the Tenants of Achnotor●ch for abstracted Multures, and Insists on this ground against the Sheriff, that he being Heretor of the Lands, and Vassal to the Pursuer, did command them to leave the Pursuers Miln, and come to his own Miln, and so was Liable. The Defender alleged, that this Member of the Summons is not relevant, because any man may desire any persons he pleases, to come to his Miln, and there was never a pursuit Sustained against any others than the Abstracters and not against these to whose Miln they came. 2dly, It is not Libelled that the Defender got a greater Duty upon the Tenants coming to his Miln, and although he had, it were not relevant. 3dly, By the Defenders Rights he is Liberat of all Multures, except Knauship and Bannock, which is only the Hire due to the Millers for their Service, and there is no obligement upon him to cause his Tenants come to the Miln. It was answered, the Pursuer offered to prove the Defender had gotten a greater Duty upon the Tenants coming to his miln; and albeit the Astriction be only of Knauship and Bannock, that is not alone due for the Miller's service, but there is a profit thence arising to the Master, that the Sheriff being Heretor and Vassal, albeit he be not personally obliged to cause the Tenants come to his Miln, yet the Lands being Astricted by his Infeftment, it was his fault to remove them. The Lords Assoilzied from that Member of the Lybel, and found it not relevant against the Heretor, but only against the Tenants. Mr. Rodger Hog contra the Countess of Home, Eodem die. MAster Rodger Hog having apprised certain Lands from the Laird of Wauchtoun in Alcambus, which were Sold to Wauchtoun by the Earl of Home, with absolute Warrandice: Upon which Warrandice there was Inhibition used, whereupon Mr. Rodger pursues Reduction, of an Infeftment of Warrandice of these Lands, granted by the Earl of Home to my Lady, in Warrandice of the Lands of Hirsil, and that because the said Infeftment of Warrandice is posterior to the Inhibition. The Defender alleged, that there could be no Reduction upon the Inhibition, because therewas yet no Distress, which with a Decreet of the Liquidation of the Distress, behoved to preceded any Reduction; and albeit there might be a Declarator, that my Lady's Infeftment should not be prejudicial to the Clause of Warrandice, or any Distress following thereupon, yet there could be no Reduction till the Distress were Existent and Liquidat. The Pursuer answered, that a Reduction upon an Inhibition, was in effect a Declarator, that the posterior Rights should not prejudge the Ground of the Inhibition, for no Reduction is absolute, but only in so far as the Rights Reduced, may be prejudicial to the Rights, whereupon the Reduction proceeds. The Lords Sustained the Reduction to take effect, so soon as any Distress should occur. Mr. james Straiton contra the Countess of Home, Eodem die. MAster james Straiton Minister of Gordoun, having obtained Decreet conform, upon an old Locality, Charges my Lady Home for payment, who Suspends, and alleadges that she must be liberat of a Chalder of Victual contained in the Decreet of Locality, because after the said Decreet, a part of the Paroch of Gordoun was dismembered, and Erected in a new Paroch, and the Earl of Home burdened with a new Stipend, and the Minister of Gordoun Liberat of a great part of his Charge; in consideration whereof, the Minister than incumbent quite a Chalder of his Decreet of Locality, and aquiesced in the rest without ever Demanding any more, and so did his Successors, now by the space of sixteen or twenty years. The Charger answered, that his Predecessors forbearance to Lift that Chalder, cannot instruct his Consent, and though he had expressly Consented, he could not prejudge his Successor, unless that Chalder had been applied to the new Kirk by Sentence of a Judge. The Lords found the foresaid Reason relevant against the Pursuer in possessorio● ay and while he declare his Right, here it was represented, that the Minister had a sufficient Stipend beside the Chalder in question. Mr. Rodger Hog contra the Countess of Home, December▪ 11. 1667. MAster Rodger Hog Insisting in his Reduction mentioned yesterday, upon his Inhibition the Countess of Home alleged, that she had Right from Appryzers, who would exclude the Pursuers Right and Inhibition, and would Defend herself thereupon, and not suffer her Right to be Reduced ex capite Inhibitionis, and might thereby exclude the Pursuer from any Interest. It was answered, that the Reduction being only upon an Inhibition, there are no Rights called for, but Rights posterior thereto, and it cannot prejudge any prior Right, which the Pursuer is content shall be reserved. Yet the Lords Admitted the Defender to Defend upon any prior Right, that might exclude the Pursuers Right. Hunter contra wilson's, December 13. 1667. HVnter having Charged Wi●sons for payment of 500 Marks, contained in their Bond, they Suspended on this Reason, the Bonds bears expressly, that the same should not be paid, till the Suspender be put in Possession of a Tenement of Land in Glasgow, for a part of the price whereof the Bond was granted, Ita est, they neither were, nor can be put in Possession, because the House was burnt in the Conflagration in Glasgow. It was answered non relevat, because after perfecting the vendition peculium est emptoris, and therefore this being an accidental Fire, wherein the Seller was no ways in culpa, nor in mora, in respect, that at that time there was a Liferenter living, whose Liferent was reserved in the Disposition. It was answered, that albeit in some cases the peril be the Buyers, yet where there is an express obligement, that no payment shall be until Possession, by that express Paction, payment cannot be sought. It was answered, that the Buyers had taken Possession after the burning, and had built the House. It was answered, that the Possession of the Ground, cannot be said the Possession of the House, Terra non est Domus, and therefore this being but a small part of the price, in such a calamitous Case, the Suspenders ought to be Liberat thereof. Notwithstanding of all these Alleadgeances, the Lords found the Letters orderly proceeded; here the Buyer was Infeft before the burning, and did voluntarly take Possession after the burning. Robert Hamiltoun Clerk, contra Lord Balhaven, December 14. 1667. THe Lord Balhaven having Disponed the Barony of Beill to john Hamiltoun, Son to Robert Hamiltoun Clerk, reserving Robert's Liferent, with power to dispose of fou●ty Chalders of Victual at his pleasure, and to set Tacks, for what time and Duty he pleases, and containing an express Provision, that it shall be leisum to Robert to do any Deed in Favour of my Lord Balhaven, and that the Fee shall be burdened therewith, and it is Provided, that all Rights Robert shall Acquire, shall accresce to his Son, who is to Marry Balhavens Oye, and failzying of the Sons Heirs, mentioned in the Disposition, Robert and his Heirs are in the last Termination. Thereafter, Robert enters in a Minute with my Lord Balhaven, by which he is obliged to Accept an hundreth twenty nine thousand Marks, and therefore obliges himself, and as taking burden for his Son, and as Tutor, and Administrator to him, validly, and sufficiently to Denude himself and his Son of their Rights, to any that he should Nominat: but here is a Clause irritant, that if Money, or sufficient Persons to grant Bond to Robert, be not delivered to Robert at Lambmass last, and Payment made of the Money at Martinmass last, that the Right by the Minute should expire ipso facto, without Declarator. The Minute was put in the Duke of Hamiltouns Hand, that if these Terms were not performed, he should Cancel it. Robert Hamiltoun Pursues now a Declarator against Balhaven, concluding that he hath an absolute and irredeemable Right to the Land, by his first Disposition, and Infeftment granted to him and his Son, and that the Clause irritant is Committed, and that thereby the Minute is null, and concludes against the Duke, that the Minute was put in his Hands upon the Terms foresaid, and that he ought to Cancel, or Deliver the same; the Duke's Advocats suffered him to be holden as Confessed, but did not produce the Minute. It was alleged for Balhaven, no Process till the Minute were produced, for it could not be declared null till it were seen. It was answered, that the Copy of it was produced, and verbatim insert in the Lybel, and the Pursuer craved the Minute in the Terms libeled to be declared null, without prejudice to any other Minute, if they could pretend it. The Lords ordained Process, but ordained the Pursuer before Extract, to produce the principal Minute. It was further alleged for Balhaven Absolvitor, because the Minute being mutual, there could be no failzie in the Defender, because the Pursuer neither was, nor is able to perform his part of the Minute, in respect the Fee of the Estate is in the Person of the Son, who cannot be Denuded by any Deed of the Father, for as Legal Administrator, he hath no power, neither can any Father, or Tutor Denude a Pupil of their Fee, but there must be interposed the Authority of the Lords in a special Process, instructing a necessary Cause for the Minors Utility, which cannot be in this Case; and though the Father could Denude the Son, as he cannot, yet he is Minor, and may Revock, and yet it was offered to fulfil the Minute, if the Pursuer would Secure the Defender against the Minors, by real Security, or good Caution. The Pursuer answered, that the Defense ought to be Repelled, because the Defender, the time of the Minute, knew his Right and his Sons, and cannot pretend an impossibility to have made any such Minute upon a ground then palpable and known, and yet contend to keep the Minute above the Pursuers head, but he must either take it as it stands, or suffer it to be declared void. 2dly, The Pursuer is in sufficient Capacity to Denude his Son, by the foresaids' Reservations contained in the first Disposition, whereby he has full power to Dispose of forty Chalders of Victual, and also power to do any Deed he pleased in favours of Balhaven, and there could be no Deed more rational, then to give a Reversion of his own Estate upon payment, of all that the Pursuer had paid to him, or for him. The Defender answered, that this general Clause cannot be understood to be prejudicial to the substance of the Disposition, and special Clauses in favours of his Son, and the Defenders Oye and their Successors. The Lords Repelled the Defense, and declared, but of consent of the Pursuer, superseded to Extract for a time, and appointed two of their Number, by whose sight the ●ursuer and his Son should be Denuded, and the Defender Secured, so that it came to no Debate, whether such a Clause irritant, as this in a Reversion of that which was truly Bought and Sold irredeemably before, and no Wodset could be purged. john Campbel contra Constantine Dougal, Eodem die. COnstantine Dougal having granted a Bond to john Houstoun, bearing that john for himself, and as Administrator for his Son, Constantine Campbel had Lent the sum, and that the same should be payable to the Father, he being on Life, and failzieing him by Decease, to be payable to Constantine his Son, as being his own proper Moneys, and to his Heirs or Assigneys. Constantine Assigns this Bond to john Campbel, who having pursued Exhibition thereof, and it being produced, insists for Delivery. It was alleged for the Producer, that it ought to be Delivered back to him, because he had right thereto by Assignation from john Houstoun, who in effect was Feear of the Sum, it being Lent to him, and payable to him during his Life, and Constantine his Son was only Heir substitute, as is ordinarily interpret by the Lords, in such Bonds or Sums Lent by Fathers to be payable to themselves, and after their Decease to such Bairns. 2dly, The Father a● lawful Administrator to his Son, might have Lifted the Sum in his Son's Minority, and therefore he might Assign the same. The pursuer answered to the first, that albeit Bonds for Money Lent by Parents, payable to themselves, and such Children after their Death, be so interpret, that the Fathers are Feears, yet that is only where the Sums are the Parents own, but this Sum is acknowledged to be the Sons own Money b● the Bond itself. 2dly, Albeit the Father as lawful Administrator might have Lifted the Sum, yet cannot Assign, because that is no proper Act of Administration com●●tent to Tutors, or Administrators, and Executors may uplift Sums, and yet cannot Assign. The Defender answered to the first, that the Money is Lent by the Father, not only as Administrator, but bears expressly for himself, and that these words as being his own Money did not sufficiently prove that it came not from the Father, but that after the ●athers Decease, it would be the Son's Money. To the second, that the conception of the Bond being, expressly to pay to the Father, warranted him to Assign, and the Assign●y being his Procurator, might Lift as well as he, the same way as Assigneys can Lift during the Executors Life. The Lords found the conception of the Bond to constitute the Son to be Feear, and that at le●st the words as being the Sons own Moneys, presumed the same to have been so ab initio, unless it were positively proven, that the Money when Lent was the Fathers, and found that the Father's Assignation as lawful Administrator, could not exclude the Son, but that point whether the Debtors paying to the Father's assignee, during the Son's Pupillarity or Minority, was neither positively alleged by the Parties, nor considered by the Lords. james Paterson contra Homes, December 17. 1667. JAmes Paterson having Charged the Earl of Home, in anno 1662. for payment of a Sum due by his Bond. The Earl suspended, and found one Bruntfield Cautioner, and at the foot of the Bond of Caution, Home of White-●ig Attested the Cautioner, in these Terms viz, I Attest the Cautioner to be sufficient, and subscribes the same, which is Registrat with the Bond itself, and the Extract produced bearing the same, The Suspension being Discussed against the Earl of Home, and the Cautioner Charged with Horning; Paterson pursues the Attester subsidiary for payment of the Debt. It was alleged for the Defender Absolvitor, because he having but Attested the Sufficiency of the Cautioner; can be holden no further than a Witness, and so can only be found liable if his Testimony were found false, or that ex dolo, he had Attested a person to be sufficient, not according to his Judgement, but either contrair to his knowledge, or without knowledge of his Condition, at least his Attesting can only oblige him to prove that the Cautioner (when he Attested him) was holden, and repute a person sufficient for the Sum, and that he had a visible E●●a●e in Land, Bond, or Movables. The Pursuer answered, that the Attester behoved to be liable to him, because ejus facto by the Attestation, the Suspension was obtained, and the Principal being dead without any to represent him, and the Cautioner insolvendo, the Attester is obliged, de jure, to make up the Damnage falling out by his Deed. The Lords found the Alleadgeance for the Attester relevant, viz. that the Cautioner was holden, and repute sufficient for such a 〈◊〉, at the time of the Attest to be proven, prout de jure. Lord Abercromby contra Lord Newwark, Eodem die. THe Lord Abercromby having Sold to the Lord Newwark, the Barony of St. Ninians; there was a fitted Account subscribed by them both, in anno 1647. Containing the Sums paid by Newwark, and at the foot thereof, concluding thirty seven thousand Marks to be Due; but there is no mention made of the Instructions in the Account; the second Article whereof, bears paid to Abercrombies' Creditor 30. thousand Marks, where● upon Abercromby alleadges, that seeing the Account bears not the Delivery of the Instructions, that Newwark at least must produce the Instructions of this Article which is general, for the Bonds of these Creditors are yet above Abercrombies' Head, and Newwark makes use of some of them to exhaust the thirty seven thousand Marks Bond at the foot of the Accomp●●● It was answered for Newwark, that after 18. years' time, that he was not obliged to Compt again; but the foot of the Account being subscribed by the Pursuer, bea●ing 37. thousand Marks to be only Resting, was sufficient to Exoner him, and the not mentioning of Instructions Delivered, cannot presume, or prove against him, that they are in his hand, else the Account signifies nothing, and he must not only Instruct this Article, but all the rest; neither did he make use of any Bonds to exhaust the foot of the Account, but such only, for which Precepts were direct to him, after the Account. The Lords found the Defender not liable to Compt, or produce the Instructions of any of the Articles, unless it were proven by his Oath, or Writ, that the Instructions were retained in his hand. john Auchinleck contra Mary Williamson and Patrick Gillespy, December 18. 1667. Marry Williamson, Lady Cumlidge, having taken Assignation to several Debts of her Husbands, apprised the Estate from her Son; and in September, 1662. Dispones the Estate to her Eldest Son, reserving her own Liferent of the Manes, and Miln, and with the burden of five thousand Marks, for john Auchinleck her second Son; at the same time her eldest Son grants a Tack to Patrick Gillespy, bearing expressly, that because he was to Marry his Mother, and to possess the Mains at the next Term, therefore he Sets the Land for an inconsiderable Duty, for a year after his Mother's Death: there was no Contract of Marriage betwixt the said Mary, and the said Patrick, but they were Married in December thereafter, and he possessed it till this time, and now john Auchinleck pursues for Mails and Duties bygone, and in time coming, as having Assignation, to the Reservation granted by his Mother. It was alleged for Patrick, that as for bygones' Absolvitor, because he was bonae fidei Possessor, by virtue of the Reservation in favours of his Wife, belonging to him jure mariti. 2dly, The Assignation made to the Pursuer was most fraudulent, being granted at the time of the Agreement of Marriage, betwixt the said Patrick and his Wife, and there being a Provision granted to the Pursuer of five thousand Marks, the said Mary did most fraudfully at that same time Assign the Reservation, and so left nothing to her Husband, but a woman past sixty years. It was answered, that where there is a solemn Contract of Marriage, and Proclamation, Deeds done thereafter cannot prejudge the Husband, but here there is neither Contract, nor Proclamation alleged: and albeit there had been fraud in the Mother, the Son (being a Boy, and absent) was no way partaker thereof, and cannot be prejudged thereby. It was answered for the Defender, that he hath a Reduction depending of this ex capite fraudis, and if the Wife could do no fraudful Deed after the Agreement of Marriage, it will thereby be null, whether the Son was partaker or not, unless he had been an Acquirer for an Onerous Cause, and albeit there was no Contract of Marriage in Writ, yet the foresaid Tack evidences an Agreement of Marriage. At Advising of the Cause, the Lords thought this conveyance a very Cheat, and it occurred to them that the Marriage, and jus Mariti is a legal Assignation, and there having been nothing done by the Son to intimat this Assignation, or to attain Possession thereby before the Marriage, the Husband by the Marriage had the first complete Right, and was therefore preferable, and likewise they found the Husband free of bygones, as bonae fidei Possessor, any found that the Reason of Reduction upon fraud, after the Agreement of the Marriage evidenced by the Tack, bearing the Narrative of the intended Marriage of the same date, with the Pursuers Right, and the Disposition to the eldest Son relevant to Reduce the Pursuers Assignation, in so far as might be prejudicial to the Husband. Sir Thomas Nicolson contra the Laird of Philorth, Eodem die. UMquhil Sir Thomas Nicolson having pursued the Laird of Philorth before the late Judges, as representing his Grandfather, who was Cautioner in a Bond for the Earl Marishal, there being an Interlocutor in the Process, Sir Thomas dying, his Son transfers the Process and insists. The Defender alleged, that the Bond was prescribed, as to his Grandfather, by the Act of Parliament King james the sixth, anent prescription of Obligations, bearing that if no pursuit were moved, nor document taken within 40 years, that these Bonds should prescribe; Ita est, there was no pursuit, nor document against the Defenders Grandfather by the space of 40. years, and therefore as to him it was prescribed. The Pursuer answered, that he opponed the Act of Parliament, and Interlocutor of the Judges in his favours, and offered him to prove that the Annualrent was paid by the Principal Debtor, within these 40. years, and his Discharge granted thereupon, which was sufficient document, and the Pursuer not having been negligent, nor at all bound to pursue, or seek the Cautioners, when he got Annualrent from the Principal, the Obligation of both stands entire. The Defender answered, that the Principal and Cautioners being bound conjunctly and severally, albeit in one Writ, yet the Obligations of each of them was a distinct Obligation, and as the Cautioner might be Discharged, and yet the principal Obligation stand, so the prescription is a legal Discharge, presuming the Creditor passed from the Cautioner, seeing he never owned him for 40. years, which is most favourable on the part of Cautioners, who otherwise may remain under unknown Obligations for an hundreth years. The Pursuer answered, that albeit there might have been some appearance of reason, if the Persons obliged had been all Co-principals, or bound by distinct Writs, yet whether Writ and Obligation is one, and the Cautioners Obligation thereby but accessary, and the Creditor no way negligent, there is no ground of such a presumption, that the Creditor passed from any Party obliged, and the Obligations mentioned in the Act of Parliament, is not to be meaned according to the subtlety of distinction of different notions of Obligations, but according to the common Style, and meaning of Obligations, whereby one Writ obliging Principal, and Cautioners, is always accounted an Obligation, which is sufficiently preserved, by payment obtained from the Principal. The Lords adhered to the former Interlocutor, and repelled the Defense of prescription, in respect of the Reply, of payment made of the Annualrents, made by the Principal. Robert D●by contra the Lady of Stonyhil, Eodem die. THe Lady Stonyhil being Provided in Liferent, to an Annualrent of 2800. Marks, her Son pursues her for an Aliment, both upon the Act of Parliament, in respect that the Defuncts Debt was equivalent to all the rest of the Estate, beside her Liferent, and also super jure naturae, as being obliged to Aliment her Son, he having no Mea●●, and she having a plentiful Provision. The Lords in consideration of the newness of the Case, and that the Debts that might exhaust the Estate, were most part personal, and no Infeftment thereon, before or after the Defuncts death, recommended to one of their Number to endeavour to agree the Parties. Adam Gairns contra Elizabeth Arthur, December 19 1667. ADam Gairns as assignee, Constitute by Patrick Hepburn, pursues Elizabeth Arthur for the Drogs furnished to her, and her Children at her desire; It was alleged Absolvitor, because she was, and is clad with a Husband, and the Furniture could only oblige him, but not her. It was Replied, that she had a peculiar Estate left by her Father, wherefrom her Husband was secluded, and which was appointed for her Entertainment, that her Husband was at that time, and yet out of the Country, and hath no Means. The Lords found the Reply Relevant Arc●ibald Wils●n contra the Magistrates of Queens-ferry, january 2. 1668. ARchibald Wilson being Elected on of the Bailies of the South Queens-ferry, and being Charged to Accept, and Exerce the Office, Suspends on this Reason, that by the 29. Act, Parliament 5. King james the 3. No Magistrate of Burgh is to be continued in Office longer than one year, and by a particular Act of that Burgh, no Magistrate is to continue above two years; and true it is that the Suspender hath served as bailie two years already. It was answered, that the Act of Parliament is long since in desuetude; and as to the Act of the Burgh, the Election of the Suspender being done by them, who have power to make that Act, is in effect an alterationt hereof, and this Burgh being poor, and penury of persons to Serve, it will dissolve the same, and discourage all others to Serve, if the Suspender be Liberat. The Lords found the Reasons of Suspension relevantly and found that the Suspender could not be compelled to serve longer than one year at once in the same Office. Dow of Arnho contra● Campbel of Calder, january 4. 1668. DOw of Aricho having pursued Campbel of Calder, as Heir to his Father, for payment of a Bond, wherein his Father was Cautioner, for the Marquis of Argyl, the Bond bore but one Witness to Calders subscription; and George Campbel one of the Witnesses being Examined if he saw him subscribe, Deponed negative, but that it was Calders hand Writ to the best of his knowledge; there was also other writs produced, subscribed by Calder, to compare the subscriptions. The Lords would not sustain the Bond, having but one Witness insert to Calders subscrsption, upon the foresaid Testimony, and Adminicles. Mr. john Forbes contra Innis, january 1. 1668: MAster John Forbes as assignee to Margaret Allerdes, having obtained Decreet of Removing against Margaret Innis, for Removing from the Lands of Savet, wherein the said Margaret Allardes is Infeft in Liferent, which being suspended. It was alleged, first, That this pursu●e is to the behoof of Margaret Allerdes, who could not obtain a Removing against the Defender, because the Defenders Husband being Infeft, by the said Margaret Allardes' Husband, and Author of the Lands of Savet principally, and of the Lands of Govan, and others in Warrandice. The said Margaret Allardes did consent to the Disposition of the Warrandice-lands, by which she obliged herself to do no Deed in the contrair of that Right, and is also bound in Warrandice with her Husband, ita est her pursuing this Action is a Deed in prejudice of the Right of Warrandice-lands, in so far as thereby the Person having Right to the principal Lands, upon Eviction recurrs upon the Warrandice-lands, and so the Consenters own Deed prejudges the same. It was answered, that by Deeds contrair to Warrandice, were only understood, some Right granted by the Disponer, or Consenter, in prejudice of the Right consented to, but no ways a pursuit upon any other Right of the Consenter, for it were against Reason and Justice, that a Purchaser, to make himself secure, requiring a Wife's consent to Lands to which she had no Right, either Principal, or in Warrandice of other Lands, that her Consent should prejudge her, as to her Liferent lands, of which there was no mention; and as to her Personal Obligement to Warrant the Lands wherein she was never Infeft, it is null, and can never oblige her, being a Wife. The Lords found that this Warrandice did not oblige the Wife, and that her Consent did not hinder her to pursue upon her own Liferent, albeit ex consequent, her pursuit excluded one having a posterior Right to her Liferent-lands, who thereupon had recourse to the Warrandice-lands, to which she Consented, seeing she had granted no Right prejudicial to the Right Consented to. It was further alleged, that the said Margaret Allardes agreed with the Person having Right to her Liferent-lands, principally that she should accept the Warrandice-lands, in stead of her Liferent-lands, which excambion putting the Right of the Warrandice-lands now in her Person, she who consented to the Right thereof, can never come in the contrair of her own Consent to prejudge the same. It was answered, that a Consent cannot exclude any supervenient Right of the Consenter, but only such Rights as the Consenter had the time of the Consent, it is true, that a Disponer with absolute Warrandice, if he acquire a Right, it accresces to his Successor, but it is not so in a Consenter, whose warrandice is not found to be Obligator, further than as to the Rights in the Consenters Person at that time. Which the Lords Sustained. It was further alleged, that the Pursuit as to the behoof of the Heir of the Disponer, of the Lands in question, whose Predecessor being bound in absolute Warrandice, he can make no use of no Right prejudicial to his Warrandice. 2dly, Albeit he be not Heir, yet he hath behaved himself as Heir, and thereby is liable to fulfil the Defuncts Warrandice, and so cannot come against it. It was answered, that behaving as Heir, being a vicious passive Title, is not sustainable by way of exception in this case. The Lords Sustained the same, and found both members of the alleadgeance relevant. Margaret Forbes contra 〈…〉 Eodem die. MArgaret Forbes having granted a Tack of her Liferent-lands to 〈…〉 bearing expressly for payment of such a Sum of Money, and bearing to endure for 19 years; she did receive a Back-bond of that same Date, bearing, that so soon as the Sum was paid, the Tack should become void; the Tack coming to a singular Successor, she pursues him for Compt and Reckoning, and Removing, and insists upon the Tenor of the Tack, and Back-bond. It was alleged for the Defender, that the Back-bond did not militat against him, being a singular Successor, neither being Registrat, nor Intimat to him before his Right, in respect the Tack is a real Right, and no Obligement or Provision of the Tacks-man can prejudge a singular Successor. The Lords Repelled the Defense, and Sustained Process against the Defender, in respect of the Tack, and Back-bond. The old Lady Clerkingtoun contra Clerkingtoun, and the young Lady, january 9 1668. THe old Lady Clerkingtoun being Infeft in an Annualrent of seven Chalders of Victual, out of the Mains of Clerkingtoun, for thirty six years bygone; she pursues a Poinding of the ground. It was answered for the Laird and his Mother, that the Pursuer having been so long out of Possession, cannot make use of a Possessory Judgement, but must first declare her Right. 2dly, The young Lady is also Infeft in an Annualrent, and hath been (by virtue thereof) more than seven years in Possession, and so hath the benefit of a Possessory Judgement, till her Right be reduced, and cannot be Dispossessed by the old Lady's posterior Infeftment. The Lords Repelled both the Defences, and found that an Annualrent is debitum fundi, and is not excluded by Possession of a posterior Right, and needs no Declarator, and that an Annualrent hath not the benefit of a possessory Judgement, against a prior Annualrent. The Laird of Glencorsse younger, contra his Brethren and Sisters, january 10. 1668. THe Laird of Glencorsse having Married his eldest Son, and having Disponed to him his whole Estate, with Warrandice after the Disposition, he did Deliver certain Bonds of Provision in favours of his other Children, unto these Children, whereupon they Appryze the Lands Disponed to his Son: in this Contract there was a Liferent reserved to the Father, and nine thousand Marks of Tocher paid to the Father. The Son pursues a Reduction of the Bairns Infeftment, and Bonds, in so far as might be prejudicial to the Disposition granted to him, upon this Reason, that the Bonds were no delivered Evidents before his Disposition. It was answered, that they were valide, though not Delivered, because the Father's Custody was the children's Custody, especially they being in his Family, both at the time of the Subscribing of the Bonds, and of the making of this Disposition; and it was ●ever controverted, but that Bonds granted by a Father to his Children, though never Delivered during his Life, but found amongst his Writs after his Death, were valide both to affect his Heirs, and Executors. The Pursuer answered, that his Reason of Reduction stands yet relevant, notwithstanding the answer, because, albeit it be true, that Bonds, Dispositions, and Provisions in favours of Children are valide when they are Delivered by the Parents in their Life, or if they have remained uncancelled in their Hands till their Death, yet till Delivery, or Death, they are still pendent Ambulatory Rights, and may always be recalled at the pleasure of the Granter, and any Deed done by him, expressly recalling them, or clearly inferring his mind to recall them, doth annul them before Delivery, ita est, the Pursuers Disposition bearing express Warrandice against all Deeds done, or to be done by the Father, granter of these Bonds, doth evidently declare his mind, that his purpose was not, that these Bonds should affect these Lands, otherwise he would either reserve the Bonds, or a power to burden the Lands, and if this were Sustained, no Contract of Marriage, Disponing the Fee to a Son, could be secure, it being easy to grant such Bonds, and to keep them up above the Son's Head, and therewith to affect the Fee; yea, it would be sufficient against any Stranger, unless it were for an Onerous Cause. 2kly, There is not only a Revocation, but these Provisions were no Debt of the Fathers, prior to the Sons Disposition, or Delivery, for albeit the date be prior, yet the time of their becoming a Debt, is only Death, or Delivery, and therefore, all Debt contracted, or Deeds done by the Father before his Death, or Delivery of the Bonds, are prior as to the Obligation thereof, to the Bonds, so that the Sons Disposition is truly prior as to its Obligations, to these Bonds. The Defender answered to the first, that albeit such Bonds be Revocable before Delivery, yet here there is no express Revocation, but only presumption inserred, from the Father's giving a posterior Disposition, which is no sufficient ground, either ●rom the Disposition, or the Warrandice, for the Father's mind might have been, that he would endeavour (out of his Liferent, or Movables) to Portion his Children, and so would not absolutely Burden the Fee; but yet in case he should Die, or not be able to do it, he would not Revock the Bonds, even as to that Right, which is much rather to be presumed, as being much more rational, and probable, seeing there is not any Provision, or power of Provision reserved in the Contract, neither is there any competent way alleged for providing of three Children, but if this Sole presumption be sufficient, though a Father should Dispone his whole Estate, without any Reservation of Children, or to be so inconsiderate, as not to except his Aliment, all prior Provisions for his Life-rent (undelivered) should cease, and become ineffectual, contrair to that Natural obligation of Parents to provide their Children, against which, no presumption can be prevalent. As to the other ground, Provisions, though not Delivered, can be in no worse case than Bonds delivered with a Condition, that the Father might recall the same, which would be valid from their Date, if they were never actually recalled, and so must Bonds of Provision be, at least as to gratuitous Deeds after their Date, though before Delivery, as if a Father should grant Bonds of Provision to many Children at once, and should Deliver some of them before the rest, if he had not Means sufficient to pay all, the Bonds first Delivered, could not be thought to exhaust his whole Means, and exclude the other Bonds of Provision, but all would come in pari passu, according to their Dates, except their Diligence alter the Case. The Lords (notwithstanding of what was alleged) found the Reason of Reduction relevant, and that the undelivered Bonds of Provision, though prior in Date, yet posterior in Delivery, could not affect the Fee interveening. Here there was much alleged upon the Onerosity of the Pursuers Disposition, which came not to be considered in the Decision. Grant contra Grant, january 11. 1668. WIlliam Grant of Markinsh pursues a Tutor Compt, against john Grant of Ballandallock his Tutor, in which these points being reported to the Lords, whether the Tutor were liable for the value of Services of the Pupils Tenants, by Harrowing, Ploughing, and Shearing, etc. And for which the Tutor received no Money, but the Services in kind. The Lords found the Tutor not Comptable therefore, because he could not force the Tenants to pay any price for the same. And as to that point, the Tutor being super-expended, the Pupil might be Discerned upon the Pupils own Process, against the Tutor, without a distinct Process at the Tutor instance. The Lords found he might. Parkman contra Captain Allan, january 14. 1668. CAptain Allan having obtained a Decreet against Parkman a Swede, Adjudging his Ship Prize upon these Grounds, that she was Sailed with three persons of her Company being Hollanders, and Danes, being then the King's Enemies, and because she had carried of the Enemy's Goods from Bergen in Norway, to Amsterdam, from whence, having gone to France with Ballast, and being Loaden there with Salt, she did also carry in to France six Barrels of Tar, which was sold in France, as appears by an Account betwixt the skipper and his Factor in France, bearing so much to be paid of the Kings and Towns Custom of the Tar, which necessarily Imports that it was sold there; likewise she carried in Stockfish, being Commeatus, and Counterband Goods, so that having sold several Lasts of Tar in Holland, and these Barrals, and Stockfish in France, which are clearly Counterband Goods, and being taken in her return from France, having in her the product of these Counterband Goods, whereupon she was justly declared Prize, conform to the Lord Admiral's Commission, ordaining Ships of Allies to be taken, having in Enemy's Goods, or Counterband Goods, or the return of Counterband Goods. Parkman raised a Reduction of this Decreet, on these Reasons; first, That the Crown of Sweden, not only being an Ally to the King, but having a Solemn Treaty with him; in the second Article whereof it is specially agreed, that the Subjects of Sweden having Passes from the Governor of the City, or Province where they Louse, or from the College of Trade, bearing that Faith had been made, that the Ship, men and Goods did belong to the Swede, and none other; and that they had therein no prohibit Goods, that such a Pass being shown in any Ship, there should be no further search, or inquiry in the Men or Goods, the like whereof is granted to the King's Subjects, either King trusting the Governors of the other in that matter; by which Treaty also, Counterband Goods are determined, amongst which, Tar or Stockfish are no particulars, ita est, Parkman had a Pass when he Loused from Sweden, conform to the Treaty, likeas there is a second Pass sent over-land to him, when he Loused from Amsterdam to France, which being shown to Captain Allan at the seizure, he ought not to have taken him, or enquired any further, nor can he now make it appear that Parkman hath transgressed the Treaty, and as to the three Men of his Company, one was hired in Denmark, and two in Holland upon necessity, so many being wanting of his necessary Company by Death, or Absence there, so that what he did of necessity, and not to advance the Interest of the King's Enemies, can be no Delinquence. 3dly, Whatever might have been alleged against him, if he had been taken with Enemy's Goods Aboard, or with Counterband Goods, which are such by the Swedish Treaty, yet he was seized, having none of the Goods Aboard, nor the product thereof, but of his Fraught, and upon the account of his Owners in Sweden he could not be Prize, because there is nothing in the Treaty, bearing that Ships should be Prize, not having actually in them Enemies Goods, nor Counterband Goods, but the product, or return thereof; neither doth it appear that he sold any Tar in France, for the Entering of the Tar, or paying Custom, will not necessarily Import it was sold, but his Factor might have unwarrantably put up that Article, which being wholly inconsiderable he did not contravert, and by the same papers taken Aboard, it did appear, that at his Losing from France, he had the same quantity of Tar, which was inconsiderable, and necessary for the use of his Ship, being an old Ship, and two Barrels was found Aboard when she was taken, and some part behoved to be allowed for the use of the Ship, so that at most there could be but one or two small Barrals of Tar sold, which is inconsiderable, and could be no ground for declaring an Ally Prize, nam de minimis non curat lex, and as to the Stockfish, or any Commeatus, or Provision, quae habent promiscuum usum in bello & pace, they are only Counterband, when they are carried in to relieve a besieged place, or to these that could not subsist without them, according to the Reason and Opinion of Grot●us de jure belli, lib. 2. cap. de his quae in bello licent. It was answered for Captain Allan, that the Reasons of Reduction ought to be Repelled, because albeit Parkman got a Pass from Sweder, conform to the Treaty, and according thereto came from Sweden to Denmark, in which Passage he was not challenged, but having engaged in Denmark to serve the Danes, than the King's Enemies, he did unquestionably carry merces hostium, from Denmark to Holland, and eight or nine Last of Tar, which is Counterband, beside the six Barrels of Tar carried from Holland to France, and Entered, and sold there, and the Stockfish, and albeit Tar be not enumerat as Counterband in the Swedish Treaty, yet it is comprehended in the general Clause of alia instrumenta bellica, for there is no more eminent Instrument of War, not only for shipping, but for all Engines of War, and suppose that (by the Swedish Treaty) Tar were not Counterband, yet that Treaty can be only extended to the Subjects of Sweden; Trading to and from Sweden, but not to Warrant them to carry these things (which the jure communi, are Counterband) from any other Country than their own, to the King's Enemies, so to partake with the King's Enemies to his Detriment. And as to the second Pass send to Holland, it is no ways conform to the Treaty, but is most gross and inconsistent, bearing not only the Ship to belong to the Swedes, but also all the Goods input, or to be input in her to belong to them, and to be free Goods, without expressing any particular: as to the return of Enemy's Goods, or Counterband Goods, that it is a ground of seizure, being the immediate return, and the Captain's Commission granted by the Admiral, bearing so much expressly, and the Instructions given by the Council in a former War, anno 1624. which were sufficient Warrant for the Captain to seize, and are founded upon evident Reason, viz. That the King's Allies are Neuters, having assist his Enemies with Counterband Goods, it is a Delinquence deserving that the Delinquent should be seized as an Enemy at any time, and yet the King's Commission hath mitigat it, only to be in the return of that same Voyage, wherein the Counterband Goods were carried, for if an Allies Ship having Counterband Aboard, were taken in her Voyage to an Enemy's Port, she might more reasonably pretend that intention was alterable, and no Crime until actually she had Disloaded in the Enemy's Port, but could have no pretence if she were waited till immediately after she came out of the Port, although then the Enemy's Goods, or Counterband Goods were not Aboard. The Lords upon a part of this Debate, having formerly written to my Lord Secretary, to know the King's mind whether the Swedes, by their Treaty, might carry from other Countries, that which was the jure communi Counterband, albeit not Counterband by their Treaty, his Majesty's answer was negative, whereupon the Lords proceeded to consider whether Tar was Counterband, de jure communi, they found it was, but did not find the Stockfish Counterband, except in the case of a siege, to which point Secretary Morish Letter was produced, in relation to the Custom of England, and having also considered the Proclmation of War, in which there is no mention of returns, but only a Warrant to seize Ships belonging to Enemies, having in them Enemies Goods, or Counterband Goods, and having also considered the Admiral's Commission, which extends only to the return of Counterband Goods, and not to the return of Enemy's Goods; and it being offered to be proven positive, that by the Custom of England, no seizure is sustained upon returns, but only when Enemies Goods or Counterband are actually taken Aboard; they were unclear whether seizure should be sustained in any other case upon returns, and therefore ordered an other Letter to be written to the Secretary, to know the King's Mind, and the Custom of England in that point before answer, and ordained the opinion of some Merchants to be taken, whether Parkmans Ship Fraught in Norway to Holland, and Disloaden there, and thence going to France with Ballast, not upon the account of the former Fraught, but the Owners, if it should be accounted one Voyage, or two, so that the return from France, might be accounted the immediate return of the Voyage to Holland. In this Process the Lords, by a former Interlocutor, had found the taking on of the Men, as they were qualified and proven, to be no ground of seizure. Dowgal Mcferson contra Alexander Wedderburn, Eodem die. DOwgal Mcferson having Charged Alexander Wedderburn of Kingennie, Provost of Dundee, for payment of a Sum of Money, he Suspends on this Reason, that the Sum was payable to Dowgal and his Wise in Liferent, and contained a Clause of premonition, and Requisition, and the Sum to be Consigned in the Hands of the Dean of Gilled of Dundee, which was Consigned accordingly. The Charger answered, that he offered to prove by the Suspenders Oath, that he took up the Money from the Dean of Gilled, and therefore he must re-produce the same, with the Annualrents thereof since the Consignation. It was answered, that it being the Chargers fault, that the Suspender was put to Consign, because he had not a Discharge granted by his Wife judicially, that therefore he could not be liable for Annualrent, in that he uplifted the Soum, unless it were proven he had made Profit thereof, but he offered to Depone, that he had all the Money still lying by him, and got no Profit of the same, and that he ought to have uplifted, in regard he was liable for the hazard of the Consignation. The Lords found the Suspender liable to produce the Money Consigned, with the Annualrent since, seeing he uplifted the same without difference, whether he made Profit or not. The bailie of the Regality of Killimure contra Burgh of Killimure, Eodem die. THe heritable bailie of the Regality of Killimure having convened, and Amerciat a Person in the Burgh, they Suspend on this Reason, that the Burgh being a Burgh of Regality, having its own Magistrates Inhabitants, are only liable to the Jurisdiction. It was answered, that the burgh's Jurisdiction being granted by the Lord of Regality, is only cumulative, and not exclusive of the Lord of Regality, or his bailie, in the same way, as the Jurisdiction of all Vassals is not exclusive of their Superiors Jurisdiction, for the Burgh are Vassals Holding of him, and therefore est locus preventioni, and the first Citation, without negligence, is preferable. Which the Lords found Relevant. Earl of Argyle contra George Campbel, january 15. 1668. THe Earl of Argyle pursues George Campbel, to Remove from a Tenement of Land in Inerera, who alleged no Process, because the Pursuer produces no Infeftment of this Burgh, or Tenement therein. The Pursuer answered, that he produced his Infeftment of the Barony of Lochow, and offered him to prove, that this is part and pertinent of the Barony. The Defender answered, that this Burgh cannot be carried as part and pertinent, but requires a special Infeftment. first, Because by the late Marquis of Argyls Infeftment, in anno 1610. produced, this Burgh is expressed, and not in the Pursuers Infeftment. 2dly, Because in the Pursuers Infeftment, there is expressed particulars of far less moment. 3dly, Because a Burgh of Barony is of that nature, that cannot be convoyed without special Infeftment. The Pursuer opponed his Infeftment of the Barony of Lochow, which is nomen universitatis, and comprehends all parts of the Barony, although there were none expressed, and therefore the expressing of this particular in a former Charter, or less particulars in this Charter deerogate nothing, it being in the Pursuers option to express none, or any he pleases; and albeit in an Infeftment of an ordinary Holding, without Erection in a Barony, Milns, Fortalices, Salmond Fishings, and burgh's of Barony cannot be conveyed under the name of part and pertinent, yet they are all carried in baronia, without being expressed. The Lords Repelled the Defence in respect of the Reply, and found that this being a Barony, might carry a Burgh of Barony, as part and pertinent, though not expressed, albeit it was expressed in a former Infeftment, and lesser Rights expressed in this Infeftment. The Defender further alleged no Process, because the Pursuers Infeftment is qualified, and restricted to so much of the Estate, as was worth, and paid yearly fifteen thousand Pounds, and the superplus belongs to the Creditors, conform to the King's Gift, likeas the King granted a Commission to clear the Rental, and Set out the Lands to the Pursuer, and to the Creditors, who accordingly did Establish a Rental, wherein there is no mention of the Lands of Innerera, and therefore they cannot belong to the Pursuer. It was answered for the Pursuer, that he oppones his Infeftment, which is of the whole Estate, and whatever Reservation be in Favours of the Creditors, it is jus tertij to the Defender. It was answered, that the Defenders Advocats concurred for a number of the Creditors, whom they named, and alleged that they would not suffer the Defender to be Removed, seeing they only can have Interest to these Lands in question. The Pursuer answered, that the Creditors Concourse or Interest was not Relevant, because they have no Real Right or Infeftment, but only a personal Provision, that this Pursuer shall dispone, and Resign the superplus of the Estate in their Favours, or otherwise pay them eighteen years' purchase therefore at his option, whensoever they shall insist Via actionis, the Earl shall declare his option, but they having no Infeftment cannot hinder the Donatar to Remove, Parties having no Right, which is the Creditors advantage, and cannot be stopped by a Few of them, likeas the whole Barony of Lochow is Set out by the said Commission, to the Pursuer himself, conform to their Sentence produced. The Lords did also Repel this Defence, and found that the Provision in Favours of the Creditors, could not stop this Removing. Earl of Kinghorn contra the Laird of Vdney, Eodem die. THe Earl of Kinghorn pursues the Laird of Vdney, as representing his Father, to Denude himself of a Wodset Right, granted by the late Earl to the Defenders Father, conform to the Defuncts Missive Letter, acknowledging the Receipt of the Sums of the Wodset, and obliging himself all written with his own Hand, and craved that the Defender might Enter, and Infeft● himself in the Wodset, and Resign in Favours of the Pursuer, that the Lands might be purged thereof, and insisted against the Defender▪ first, As lawfully Charged to enter Heir, who offered to Renunce to be Heir. The Pursuer answered, he would not suffer him to Renunce, because he offered him● to prove that he was lucrative Successor by the Disposition of the Lands of Vdney, whereunto their is an express Reservation in Favours of his Father, to Dispone, Wodset, and grant Tacks, and therefore any Deed done by his Father, behoved to affect him, at least the Fee of the Estate; so that albeit this Letter be posterior to the Disposition of the Estate, it must Burden the same, and the Defender quoad valorem. 2dly, The Letter produced, acknowledges a Wodset, and payment made, and it is offered to be proven, that the Letter was anterior to the Disposition of Vdney, so that by the Receipt of the Wodset Sums, the Defunct was (by the Nature, and Tenor of the Rights of Wodset) obliged to Resign in Favour of the Pursuer, and therefore the Defender Succeeding to him by this Disposition, after that obligement, to Denude himself▪ upon payment is obliged as Successor, titulo lucrativo post contractum debitum, to Denude himself, and that the Wodset was prior to the Disposition of Vdney, was offered to be proven. The Defender answered, that the provisions in his Infeftment could never affect him, nor the Estate, because there was nothing in the provision, that the Estate should be liable to the Debts contracted by the Defunct thereafter, but only that he might Dispone, or Wodset, or Redeem for an Angel, and it cannot be subsumed, that the Letter produced doth import any of these, but at most a personal obligement. 2dly, Albeit it were notour, that there had been such a Wodset before the Defenders Disposition of his proper Estate, yet it behoved to be also instructed, that it was paid before that Disposition, but his Father's Missive after his Disposition, could never instruct that it was paid, or paid before, and yet the Defender offered to Renunce all Right he had to the Wodset Lands, or to suffer an Certification, and Improbation to pass against the same, seeing they are not extant or produced, or to consent that the Lords would declare upon the Letter, that the Wodset thereby was Redeemed, and Extinct, which last the Pursuer would have accepted, providing the Defender would give a Bond of Warrandice for his Father's Deed, and his own, which the Defender refused. The Lords proceeded to determine the Point in jure; and as to that Point anent the provision, in the Defenders Infeftment, some were of opinion, that any Debt contracted by the Father, would affect the Estate, others thought not, there being no provision to contract Debt, but to Wodset or Dispone, which was not done, and all agreed, that the Case being new, and now very frequent, required a more accurate Debate; but the Lords found that the Defenders Father, having by his Letter acknowledged the Wodset, and the payment thereof, to which Wodset the Defender had no Right, that any grant of Redemption by the Father (after his Disposition to his Son) was probative against the Son, and that the Letter being proven Holograph, did instruct the Wodset to be paid, and therefore sound it relevant to the Pursuer, to prove that the Wodset was before the Defenders Disposition, and that it did import a conditional obligement, that the Father should Resign upon payment, and that the Sons Disposition being after the Wodset, he was lucrative Successor, after that obligation contracted by the Wodset. Captain Strachan contra George Morison, january 17. 1668. CAptain Strachan having obtained Decreet before the Admiral, against George Morison for wrongous' Intromission of a Loadning of Wine, belonging to the Pursuer, in anno 1638. which was brought home by him, in the Ship called Stulla, whereof he had an eight part, and the Defenders the rest; and the Pursuer being Skipper, did upon his own Credit buy the Wine, and having brought it home, the Ship was broken at Newburgh, and Loadning was meddled with by the Defenders, whereupon they are Discerned to pay conjunctly and severally. George Morison raises Reduction on two grounds. first, That the Decreet was unjust, in so far as the Defenders were Discerned in solidum, each for the whole. 2dly, That there was no probation of any of their Intromissions, but upon the Testimony of one Witness, and Captain Strachans own Oath taken in Supplement. It was answered to the first Reason, that the whole Intrometters were justly Discerned in solidum. first, Because this was in itself a Spuilzie; and albeit the Defender did not insist within three years, yet he ought not to be excluded, because he was in the King's Service all the time of the trouble, and fled the Country at the time of this Intromission. 2dly, Because the prescription of the privilege of Spuilzie is only in relation to violent profits, and the Oath in litem, and these are only lost, if pursuit be not within three years, but the Parties being all liable in solidum is not lost, for the Intromission remains still a wrongous' Intromission, and is not in the same case as a Vindication, and Restitution of Goods in the Defenders hands, without Violence or Vice, and in many cases correi, are liable in solidum, as Tutors, or where the Intromission is joint, or promiscuous, for it were against reason, if there were many vicious Intrometters, that the particular Intromission of each of them behoved to be proven, which oft times is impossible, as in the same case, and likewise socij are liable in solidum, and here was a co-partnery betwixt these Parties. It was answered for Morison, that there was three years elapsed since the King's Restauration before any pursuit, and though that had not been, there is nothing that can stop that short prescription, and therefore infancy or minority hinders not the course thereof, and in this case the Decreet in question restricts to wrongous Intromission. As to the second, all the privileges of Spuilzie are lost by the prescription; and it was never found at any time, that in wrongous' Intromission, the Parties were all liable in solidum, especially where the thing Intrometted with was divisible, as Wines; and as to the alleged copartinery there was nothing libeled thereon. The Lords did not consider the point of copartinery, but found that in wrongous' Intromission, each Intromettor was not liable in solidum, but a joint Intromission proven against many, did in●er against each of them, an equal share, unless the Pursuer proved that they Intrometted with a greater share, and found not a necessity to prove against each of them the particular quantity of their Intromission. Walter Stuart contra Robert Acheson. eodem die. WAlter Stuart as being infeft in the Barony of North-Barwick, and being charged for the whole Taxation thereof, Charges Robert Acheson for his Proportion, according to the Stint Roll, who Suspends on this Reason▪ that his Interest is only Teinds, which is only applied to the Ki●k, whereof he produces the Bishops Testificat, and therefore by the exception of the Act of Convention he is free. The Charger answered non relevat, because the Suspender ought to have convened at the Diet appointed, by the Act of Convention, for making of the Stint Roll, and there have instructed that his Teinds were exhausted, wherein having failzied, and being taxed, no other could pay for him, neither could the King lose that proportion. It was answered, that he had no interest to conveen, the Minister having the only Right to his Teinds. The Lords Repelled the Reason, and adhered to the Stint Roll, but prejudice to the Suspender, to seek his relief of any Party he pleaseth, as accords. Mr. Andrew Brown contra David Henderson, and Thomas George, january 18. 1668. MAster Andrew Brown granted a Bond of 700. Marks, blank in the Creditors Name to George Short, wherein the Name of David Henderson is now filled up. Thereon George having Arrested all Sums due to Alexander Short in the hands of Mr. Andrew Brown, he raises a double poinding, wherein the Competition arises betwixt the Arrester, and the the Person whose Name is filled up in the blank Bond. It was alleged for the Arrester, that he ought to be preferred, because he Arrested Shorts Money, and at the time of the Arrestment, this Bond having been Delivered to Short blank in the Creditors Name, Short was Creditor ay and while, not only another Name were filled up, but also an Instrument of Intimation were taken thereupon, for Shorts filling up of the Name of Henderson, is no more than an Assignation, which requires Intimation, and is excluded by an Arrestment before the Intimation, albeit after the Assignation. It was answered for Henderson, that there needed no Intimation to the filling up of a Creditors Name in a blank Bond, which was never required by Law nor Custom, and his Bond being now in his own Name, nothing could prove that it was blank ab initio, or that it did belong to Short, but henderson's own Oath, in which case it would be sufficient for him to Depone qualificat●, that the Bond indeed was blank ab initio; and delivered by the Debtor to Short, and by Short to him, and his Name filled up therein before the Arrestment, or at least that before the Arrestment, he had shown the Bond filled up to the Debtor, which is equivalent, as if he had given back the first Bond, and gotten a new Bond from the Debtor, after which, no Arrestment (upon account of the prior Creditor) could be prejudicial to him, ita est, he hath done more, for he hath proven that before the Arrestment, the Bond was produced● and shown to Birny the Debtor. It was answered, that in a former case, in a Competition of the Creditors of Alexander Vetch, the Lords found that the Arrestment laid on, before Intimation of the filling up of a blank Bond, preferred the Arrester, and that otherwise Collusion could not be evited with these blank Bonds, to exclude and to save Creditors Arresting. The Lords preferred Henderson, whose Name was filled up, and presented to the Debtor before the Arrestment; for in Vetches Case there was nothing to instruct that the Bond was truly filled up, and presented to the Debtor before the Arrestment; and they found the filling up, and presenting thereof sufficiently proven by the Witnesses, taken ex officio. Pollock contra Pollock and Rutherfoord, Eodem die. UMquhil john Pollock in the Cannongate, having given a Bond to james Pollock his Son of 5000. Marks, he pursues Robert Pollock the Heir of Line, and Pollock, Heir of the second Marriage, for payment. The Heir of Line Compearing, Renunced: whereupon the Pursuer insisted against the Heir of Provision, who alleged no Process, till the heritage be falling to the Heir of Line were first discussed, and condescended upon the Heirship Movable. The Pursuer answered, there could be no Heirship in this Case, because the Heir of Line had Renunced all he might Succeed to by his Father, Heretable, or Movable, in Favours of his Father, his Heirs and Executors bearing expressly, that his Wife, and his Bairns of the second Marriage should have the whole Right: Ita est, Rutherfoord; the Wife had Confirmed the whole Movables promis●ue, without exception of Heirship, and therefore the Heir of Line himself (if he were Entered) could claim none. It was answered, that the Renunciation of the Heir apparent of Line, being in Favours of his Father, after his Father's death, it returned back to him from his Father as Heir of Line again, and could go to no other Person, neither thereby could the heritable Movables belong to the Executor. The Lords found the Renunciation sufficient to exclude the Heir of Line from the Heirship Movable, and that they did thereby belong to the Father's Executor, therefore found no further necessity to discuss the Heir of Line, and Discerned against the Heir of Provision. Griselda Stuart contra the Laird of Rosyth her Brother, january 21. 1668. UMquhil Rosyth gave a Bond of Provision to his Daughter Griselda Stuart of 10000 pounds, payable at her age of 17. years, with an Obligement to Entertain her in the mean time, but no Obligement of Annualrent; she pursues her Brother (as representing her Father) for Implement, and having Lived with her Uncle a part of her Father's time, and alleging that she was hardly used by her Stepmother, she craves Aliment for that time of her Father's Life-time, and for six, or seven years since his Death, or craved Annualrent for her Sum. The Defender alleged Absolvitor, as to the Annualrent before her Father's Death, because she ought to have continued in her Father's Family, and there neither is, nor can be alleged any just Cause wherefore she should have deserted the same. 2dly. Absolvitor from Annualrent, or Entertainment since her age of 17. years, because the Bond bears Entertainment till that age, and no Entertainment, or Annualrent thereafter. 3dly, She does not, nor cannot allege that she paid out any thing for Entertainment, but was Entertained gratis by her Uncle. The Lords found this no ground to exclude her from Aliment, and found Aliment due after the Term of her Bond, as well as before, but not Annualrent, and modified six hundreth Merkes per annum, without allowing any thing for the year her Father Lived, but modified the more largely, it being unfit to Dispute the necessities of her Removal. janet Schaw contra Margaret Calderwood, Eodem die. JAnet Schaw pursues a Reduction of a Liferent Infeftment, granted to Margaret Calderwood by the Pursuers Father, as being in lecto. The Defender alleged no Process, because the Pursuer was not Heir the time of the Disposition, but another Heir appearand, who never Entered. The Lords Repelled the Defence. The Defender alleged that this being an Liferent Infeftment to her by her Husband, and but of a small value, it was valide, and the Husband might Discharge that natural Debt of providing his Wife on Deathbed, she having no Contract of provision before, The Pursuer answered, that the Defender might take the benefit of her Terce, which is her legal Provision, beyond which, a Deed on Deathbed (in prejudice of the Heir) is null, and this Liferent is of the Husband's whole Estate, and yet the Pursuer is willing it should stand, it being restricted to a third of the Rents of the Lands. The Lords Sustained the Infeftment only for a third. Marry Douglas Lady of Wamphray, contra the Laird of Wamphray, january 22. 1668. UMquhil Wamphray having Infeft his Lady in two thousand Marks of Liferent yearly, by her Contract of Marriage, out of certain Lands therein mentioned; and being obliged to pay her, as well Infeft, as not Infeft, and to warrant the Lands to be worth two thousand Marks of Free Rent. She pursues this Wamphray for payment, who alleged Deductions of public Burdens. It was answered, that an Annualrent was not liable to public Burdens; for the Act of Parliament, 1647. made thereanent was Rescinded, and not Revived, and this Provision is payable, not only really, but personally, though there had been no Infeftment, and that the obligement to make the Land worth two thousand Marks of free Rent, could be to no other End but to make the Annualrent free, especially the Contract being in anno 1647. after Maintenance was imposed, which was the heaviest Burden. It was answered, that an obligement for payment of an Annualrent, relating to no particular Land, could not be burdened with the Land, or if it did relate to a stock of Money, the ordinar Annualrent of the Money behoved to be free, but this Annualrent relates to no stock, and its first Constitution is out of the Lands mentioned in the Contract; so that albeit there had been no Infeftment, it must bear proportionably with the Land, and albeit the Act of Parliament be Rescinded, yet the common ground of Law and Equity, and the Custom thereupon remains, neither doth the provision (to make the Land worth so much of free Rent) infer, that therefore the Annualrent must be free, which would have been so expressed at the Constitution of the Annualrent, if it had been so meaned. The Lords found this Annualrent liable for the Assessment, notwithstanding the Act of Parliament was Rescinded, and all that was alleged against the same, was repelled. john justice contra Mary Stirling his Mother, january 23. 1668. THere was a Bond granted by Stirling of Coldoch, whereby he granted him to have received from Umquhil john justice, and Mary Stirling his Spouse, the Sum of 1300. Marks, and obliged him to pay to the said Husband and his Spouse, and longest liver of them two, and the Heirs gotten between them, or their Assigneys, which failzying to the Heirs of the last liver: the said Mary having survived, did uplift the Sum, and now john justice (as Heir of the Marriage to his Father) pursues his Mother to make forthcoming the Sum, and employ the same to her in Liferent, and to him in Fee. It was alleged for the Defender Absolvitor, because by the conception of the Bond she is Feear, and so may dispose of the Money at her pleasure. The Pursuer answered, that the conception of the Bond did no ways make the Wife Feear, but the Husband, according to the ordinar Interpretation of Law in Conjunct-fees betwixt Husband and Wife; and as to the Clause, in relation to the longest liver, their Heirs and Assigneys, the Fee could not be Constitute thereby, otherwise the Fee behoved to be pendent and uncertain, and in effect be in no Person so long as they live together, but after the Death of either, the Fee should then begin to be Constitute in the Survivor, which is inconsistent, and therefore the Fee behoved to be Constitute by the first words, obliging to pay the Sum to the Husband and Wife, the longest liver of them two, whereby the Husband was Feear and might have disposed thereupon during his Life, but without prejudice of his Wife's Liferent; there is no doubt but this Sum might have been Arrested for his Debt, and it could not be then pretended that ex even●u, the Wife by surviving might become the Feear. It was answered for the Wife, that albeit Conjunct-fees between Man and Wife do ordinarily Constitute the Husband Feear, yet there are many Cases in which such Conjunct fees the Wife may be Feear, and here the termination being upon the Survivor, makes her the Survivor sole Feear, although both were Conjunct Feears before, and neither of them properly a Liferenter, till by the event it did appear who should Survive, neither can any such subtlety of the dependence, or uncertainty of the Fee, render the intention of the Parties ineffectual. The Lords found, that by the foresaid Clause, the Husband was Feear, and the Heirs of the Marriage, were Heirs of Provision to him, and that failzying the Heirs of the Marriage, the Wife's Heirs were substitute as Heirs of Tailzie, and therefore ordained the Sum to be so employed, and secured, that if the Pursuer being the only Heir of the Marriage should Die before he dispose thereupon, it should return to the Heirs and Assigneys of the Mother. The Lady Wolmet and Dankeith her Spouse, contra Major Biggar, and james Todrig, january 24. 1668. THe Lady Wolmet and Dankeith her Spouse, pursues Major Biggar, and the Tenants of Wolmet for Mails and Duties. Compearance is made for james Todrig, who being Assigned to an Annualrent, due out of the Lands of Wolmet, to the old Lady Wolmet by an Infeftment, long prior to this Lady's Infeftment; upon which Right there was also raised an Inhibition, whereupon Todrig (as assignee) pursues Reduction of the Pursuers Right, and several others, and obtained Decreet thereupon, and now alleadges that the Lady can have no Mails and Duties, because her Right stands Reduced at the Instance of the said james Todrig, who hath also apprised upon his anterior Annualrent. The Pursuer answered, that the alleadgeance ought to be repelled, because the Right of his Annualrent, apprizing, and Reduction has been several years in the Person of Major Biggar, who has been all that time in Possession of the Lands, and therefore by his Intromission, Todrigs apprizing is satisfied within the legal. It was answered for Major Biggar, albeit the Right was, and had been his, and he in Possession, yet the apprizing cannot be satisfied thereby, unless he had Possessed by virtue of the apprizing, which cannot be alleged, because he offers him to prove that he Entered, and continued in Possession many years before he got this Right, by virtue of other Infeftments. The Pursuer answered, that by the Reduction at Todrigs Instance, all Major Biggars Rights stands reduced, so that albeit by them he entered in Possession, yet he cannot ascribe his Possession to them after they were Reduced. It was answered, that albeit his Rights were Reduced, there was no Removing, or Action of Mails and Duties intented against him upon the prevailing Right, and therefore his Possession behoved to be ascribed to his prior Possession, though Reduced. 2dly, He having now divers Rights in his Person, may ascribe his Possession to any of them he pleases against this Pursuer, from whom he derived not his Possession, nor the Cause thereof. 3dly, It was answered, that the Pursuer might acquire this Right, ad hunc effectum to purge it, and the Inhibition, and Reduction thereon, in so far as it might be prejudicial to his prior Rights, and not to bruik by it. The Pursuer answered, that albeit Biggar might have acquired this Right, to evacuat and purge the same, if that had been declared in his acquisition thereof, or otherwise legally, yet not having done it, he must be understood to bruik only by that Right that was standing. 2dly, If he should declare that he did acquire it to purge it, then, as his own Right, revives which was Reduced, so must this Pursuers Right, which was also Reduced in that same Reduction revive, especially in casu tam favorabili, that the Pursuer may not be excluded from her Liferent, which is her Aliment, and seeing the Decreet of Reduction was obtained by mere Collusion, and is offered to be disclaimed upon Oath, by the Advocats marked, Compearing therein. The Lords found that Major Biggar behoved to ascribe his Possession to Todrigs Right, and to none of the Reduced Rights, all being jointly in his Person, and not having declared quo titulo possidebat, and that he cannot now declare that he makes no use of Todrigs Right, in so far as may be prejudicial to his own prior Rights, and makes use of it as it is prejudicial to the Pursuers Rights, which were reduced together, seeing the Pursuers Rights would have excluded the Majors other Rights, to which he would now ascribe his Pessession. Magistrates of contra the Earl of Findlator, Eodem die. THere was a Bond granted by one jackson Principal, and a Cautioner which is also alleged to have been Subscribed by Umquhil Inch-Martin as an other Cautioner; which Bond being Registrat at the Creditors Instance, he did thereupon Incarcerat the principal Debtor, whom the Magistrates having suffered unwarrantably to escape; the Creditor obtained Decreet against the Magistrates for payment of the Debt. The Magistrates pays the Debt, but takes Assignation from the Creditor, and now as assignee pursues the Earl of Findlator, as Representing Inchmartin one of the Cautioners for payment, who alleged Absolvitor. first, Because the Bond is null as to Inchmartin, wanting both Date and Witnesses; for it bears to have been Subscribed by the Principal, and the other Cautioner, at such a place, such a day, before these Witnesses, who are subjoined, and designed, and after the Names of these Witnesses says, and subscribed by Inchmartin, at after which there nothing follows in the Bond, but the Subscriptions of Parties, none of which subscribe as Witness to Inchmartin, yet his Subscription is amongst the Subscriptions of the other Parties, but as to him it hath neither place, day, nor Witnesses. The Pursuer offered to condescend, that the day and place of the Subscription of the Witnesses, were the same to Inchmartin, as to the Principal and other Cautioner, which they alleged to be sufficient to make up this nullity, as is ordinar where the Writer and Witnesses are not Designed, for thereupon the Defender may improve the Bond by the Witnesses insert. The Defender answered, that albeit the Lords supply the want of Designation of Writer or Witnesses, by condescending on their Designation, that means of Improbation may be afforded, which is not the question here; yet the Lords did never suffer Parties to fill up Witnesses, where no Witnesses were insert, nor no Date, either as to Year or Month. The Lords would not Sustain the Bond upon this condescendence, but ex officio ordained the Witnesses (if they were alive) to be Examined, whether they were Witnesses to Inchmartins' Subscription, that same day, and place with the rest, reserving to themselves what their Testimonies should ●perat. The Defender further alleged Absolvitor, because he offers him to prove, that the●e was a Decreet against the Magistrates now pursuing, at the Instance of the Creditor, for payment of the Debt, because they suffered the Principal Creditor Incarcerat to escape, so that the Debt being paid by the Magistrates, coming in the place of the Principal Debtor ex delicto, it is in the same case, as if the Principal Debtor himself had paid; which necessarily liberats his Cautioners. It was answered, that the Magistrates are only liable to the User of the Diligence, pro damno & interest, and to no other, for the Creditor (User of the Diligence) might have consented to the escape of the Rebel, or might discharged the subsidiary Obligation, or Action competent, against the Magistrates for suffering him to escape, whether the Cautioners would or not, and therefore the Magistrates might as well take an Assignation from the Creditor for payment of the Debt, which implies the Creditor his passing from them as bound ex delicto, in which case he would only have given them a Discharge, but here the Magistrates Contracts with the Creditor, and acquires the Assignation, ut quilibet upon an equivalent Cause. It was answered for the Defender, that this Assignation is evidently simulat in place of a Discharge, there having preceded a Decreet against the Magistrates, ita est, that Assignations granted to persons obliged for a Debt, doth operat alwise as to the Matter only as a Discharge, though more summarily, as when Cautioners pay, and are Assigned, they must allow their own part, but much more these who are liable ex delicto, having paid upon a Decreet, cannot seek relief, whether they have Assingation or Discharge, especially against Cautioners, and if this were Sustained, all Rebels who had Cautioners might be suffered to escape, where there is any Cautioners, for Messengers might be Deforced, taking Assignation to the Debt, and proceeding against the Cautioners, and albeit the user of the Diligence might consent to the Liberation, yet he could not pass from the Obligation, ex delicto, which accresceth to all Parties having Interest; and if the Cautioners had been distressed by the Creditor, they might pursue the Magistrates, suffering the Principal to escape, ex delicto & damno, for if he had not been suffered to escape, they would have been paid. The Lords found this Defence relevant, that the Magistrates pursuers, having suffered the Rebel to escape, and Decreet against them, and having satisfied the Debt to the Creditor, that they could not have recourse against the Cautioners, either by virtue of a Discharge; or Assignation. Here it was not Debated, whether or not they might have recourse against the principal Debtor escaping, who was principaliter in delicto, and the Magistrates but accessary. Mr. William Mushate Minister of Hassenden, contra the Duke and Duchess of Buccleugh, january 28. 1668. THe Minister of Hassenden having obtained Designation of a Gleib, out of the Duke of Buccleughs' Lands, pursues Removing. The Duke Suspends on this Reason that the Designation is null, not bearing Citation, nor ●numation to the Parochiners, neither is the Duke Cited to the Designation upon 60. days, as being out of the Country. It was answered, that by the constant Custom in such Cases, there is only Intimation given at the Kirk Door, or out of the Pulpit of the day of Designation, which the Defender offers to prove, uses to be done in the like case. Which the Lords found relevant, albeit the Intimation was not mentioned in the Designation. Robert Dobby contra the Lady Stanyhil his mother, Eodem die. RObert Dobby pursues the Lady Stanyhil his Mother, for an Aliment, upon this ground, that she being provided to an plentiful Liferent, being an Annualrent of 2800. Marks yearly, there remains nothing to Aliment him the Heir, of free Rent, being all exhausted by the Liferent, and Annualrent of the Debt. The Defender alleged Absolvitor, because there is no ground in Law nor Custom for an Aliment to the Heir, except the Rents were exhausted by real burdens by Infeftment; but here at the Defuncts Death, there was only this Liferent, which was not the half of the Rent, and there was no Infeftment more. 2dly, Aliments is only competent to Minors, the Pursuer is Major, and may do for himself. The Pursuer answered, that it was alike whether the Debts were personal, or real, for if apprisings had been used, they would all have been real, but the Pursuer did prevent the same, by Selling a part of the Land at a great Rate, which was all applied to the Creditors, and yet the Liferent, and Annualrent of the Debt is▪ more than the Rent; neither is there any distinction in the Law as to Majors and Minors, who were not bred with a Calling; and therefore Carberry (who was a man of age) got an Aliment, and Anthonia Brown got an Aliment from her Mother, who had an Annualrent in Liferent, and the Debts were all personal at her Father's Death, albeit some of them were apprised for, before she got her Aliment. The Defender answered, that there was a sufficient Superplus, because she offered to take the Lands, or find sufficient Tenants therefore, for 4300. Marks yearly, which was a 1000 Pounds above her Liferent, and would exceed the Annualrents of all the Debts. The Lords found this last Defence relevant, but did not proceed to determine, whether an Aliment would be due, where the burden was but by personal Debt. Alexander Binny contra Margaret Binny, Eodem die. MArgaret Binny granted a Bond, obliging herself to Enter Heir of Line to her Father, and to Resign the Lands in Favours of herself, and the Heirs to be Procreate of her own Body; which failzying, to the Heirs of Alexander Binny her Father, and obliged herself to do nothing contrair to that Succession; and having Married William Brotherstanes, by her Contract of Marriage, nomine dotis, she Dispones the Lands to him. This Margaret was the only Child of Alexander Binnies first Marriage, and there was an Inhibition used upon the Bond, before her Contract of Marriage: Alexander Binny being Son of the second Marriage, and Heir of Line to his Father, pursues the said Margaret to fulfil the Bond, and to Enter, and Resign the Land conform thereto, and thereupon did obtain Decreet, which being now Suspended. It was alleged, that this being but an obligement to Constitute a Tailzy, could have no effect to hinder her to Dispone to her Husband in name of Tocher, which is the most favourable Debt, or to Contract any other Debt, which the Pursuer (who behoved to be her Heir) could never quarrel. 2dly, It was alleged for the Husband, that he could not be Discerned as Husband, to consent to this Resignation, contrair to his own Contract. It was answered, that this was not only a Bond of Tailzy, but an obligement to do nothing that might change the Succession, and so she could not voluntarly Dispone, but the Husband's Provision might be Competent enough, seeing both she has the Liferent, and the Children of the Marriage will succeed in the Fee● and albeit the Pursuer must be Heir of Tailzy, yet obligements in favours of Heirs of Tailzy, are always effectual against Heirs of Line, in relation to whom the Heir of Tailzy is but as an stranger. The Lords repelled the Reason, and found the Letters orderly proceeded, till the Wife Entered, and Resigned with Consent of her Husband, conform to the Bond, seeing there was Inhibition used before the Contract; but they did not Decide, whether this Clause would have excluded the Debts, to be Contracted by the said Margaret, or her Heirs, upon a just ground without Collusion, but found that she could not make a voluntare Disposition, to exclude that Succession, in respect of the obligement to do nothing in the contrair. E●phan Brown contra Thomas Happiland, january 29. 1668. MArjory Brown being first Married to Happiland, and thereafter to Robert Brown; she Acquired Right to a Tenement of Land to herself in Liferent, and Euphan Happiland her Daughter of the first Marriage in Fee; which Infeftment is given by the said Thomas Brown her Husband, being then baily for the time. Agnes Happiland Dispones this Tenement to Thomas Brown, Heir of the Marriage, betwixt the said Umquhil Thomas Brown, and Marjory Bruce, and for the price thereof, gets a Bond relative thereto. Thomas Brown being Charged upon this Bond, raises Reduction upon Minority and Lesion. To the which it was answered, there was no Lesion, because the Disposition of the Land was an equivalent Onerous Cause. It was answered, that the Disposition was no Onerous Cause, because the Lands Disponed, belonged not to the Disponer, but to the Suspender himself, in so far as they were Conquest by Marjory Bruce, while she was Spouse to his Father, so that the Money (wherewith she Acquired the same) belonging to the Husband jure Mariti, the Land must also be his, unless it were condescended and instructed, that she had heritable Sums, not falling within the jus Mariti, wherewith this Right was Acquired. It was duplied, that this was but a ●aked Conjecture and Presumption, which is sufficiently taken off, by the Husbands giving Seizing as baily. It was answered, that this was actus officij, which he could not refuse, but he knew that the Infeftment in favours of his Wife, would accresce to himself. The Lords repelled the Reasons of Suspension and Reply, in respect of the Answer and Duply, and found that the Fee of the Land belonged to the Wife and her Daughter, and that there was no Lesion in giving Bond therefore. Laird Aitoun contra james Fairy, Eodem die. THe Laird of Aitoun having bought a Horse from james Fairy; pursues for repetition of the price, and for entertainment of the Horse since, upon this ground, that he offered to prove by the Witnesses, at the buying of the Horse, that james Fairy promised to uphold him but six years old, and that he was truly twelve years old: The question was, whether this was only probable by Oath, or Witnesses. But the Lords perceiving an anterior question, how soon the Horse was offered back by the Pursuer, they ordained him to condescend, that very shortly thereafter he offered the Horse back, otherwise they would not sustain the Process. John Papla contra the Magistrates of Edinburgh, january 31. 1668. JOhn Papla pursues the present Magistrates of Edinburgh, for payment of a Debt due to him, by a Person Incarcerat in their Tolbooth, who escaped. The Defenders alleged no Process, till the Magistrates who then were, especially baily Boyd (by whose Warrant the Rebel came out) be called. 2dly, The present Magistrates cannot be liable Personally, having done no Fault; neither can they be liable, as representing the Burgh, at least but subsidiary after the Magistrates who then were in culpa, were Discussed now after six or seven years' time. The Pursuer answered, that the Prison being the Prison of the Burgh, the Burgh was liable principaliter, and if only the Magistrate doing the Fault were liable, the Creditor might oftimes lose his Debt, these being oftimes of no Fortune, or sit to Govern, and the Town who Choiseth them, is answerable for them; neither is the Pursuer obliged to know who were Bailies at that time, or who did the fault, and so is not bound to Cite them. The Lords Repelled the Defences, and found the present Magistrates (as representing the Town) liable, but prejudice to them, to Cite them who did the Fault. Robert Ker contra Henry Ker, February 5. 1668. RObert Ker of Graden having granted Bond to Robert Ker his Son, for 3000. Marks of borrowed Money, and 3000. Marks of Portion; for which Sum he did Infeft him in an Annualrent of 240. Pound yearly, Suspending the Payment of the one half of the Annualrent till his Death; whereupon Robert pursues a Poinding of the Ground. It was alleged for Henry Ker (the eldest Son, who stands now Infeft in the Lands) Absolvitor, because he stands Infeft in the Lands before this Infeftment of Annualrent being but base, took effect by Possession. The Pursuer answered, first, That the Defenders Infeftment, being posterior, and granted to the appearand Heir, without a Cause Onerous, it is perceptio Haereditatis, and if the Father were Dead, it would make the Defender liable as Heir, and therefore now he cannot make use thereof, in prejudice of the Pursuer. 2dly. The Pursuer offered to prove, that his Annualrent was clad with Possession before the Defenders Infeftment, in so far as he Received the half of the Annual●ent, which is sufficient to validat the Infeftment for the whole, seeing there are not two Annualrents, but one for the whole Sum, and seeing the 〈◊〉 could do no more, the one half of the Annualrent being Suspended till his Father's Death. The Lords found this second Reply relevant, and found the Possession of the half was sufficient to validat the Possession for the whole, but superseded to give answer to the former Reply, till the conclusion of the Cause, not being clear, that the Defense upon the Defenders Inseftment could be taken away summarily, though he was appearand Heir without Reduction, upon the Act of Parliament, 1621. Mr. George johnstoun contra Sir Charles Erskin, February 6. 1668. THe Lands of Knock●●●, being part of the Lands of Houdon, did belong to Umquhil Richard Irwing, Umquhile Mr. john Alexander Minister, having Charged Robert Irwing to enter Heir in special to the said Richard his Grandsire in these Lands, he did Appryze the same from Robert as specially Charged to enter Heir, but Robert died before he was Infeft, or Charged; the Superior, Sir Charles Erskine, hath apprised from Mr. john Alexander all Right competent to him in these Lands, and thereby having Right to Mr. john alexander's apprizing, he is Infeft thereupon. After Robert Irwings Decease, his Sisters served themselves Heir to Richard their Grandsire, and are Infeft, do Dispone to Mr. George johnstoun, who is also Inseft. Mr. George pursues for Mails and Duties, in the Name of Irwings his Authors; Compearance is made for Sir Charles Erskine, who alleged Absolvitor. First, Because he hath been seven years in Possession of the Lands in question, by virtue of Mr. john alexander's apprizing, and his own, and so is tulus exceptione in judicio possess●rio, and cannot be quarrelled till his Right be Reduced. 2dly, He is potior jure, and his Right must exclude the Pursuers, because he having Right to Mr. john alexander's apprizing, which was Deduced against Robert Irwing, as specially Charged to enter Heir; so Richard, as to him, is in as good case, as Robert had been actually Entered, and Infeft by the Act of Parliament, declaring that when Parties are Charged to enter Heir, and lies out, sicklike Process, and Execution shall be against them, as they were actually Entered; likeas the Tenor of the special Charge introduced by Custom, to perfect the foresaid Act of Parliament, bears expressly, that the Person Charged shall enter specially, and obtain himself Infeft, with Certification, that the user of the Charge shall have the like Execution against him, as if he were Entered, and Infeft; and therefore Mr. john alexander's apprizing against Robert I●wing, so Charged, was as effectual to him, as if Robert had been actually Infeft, in which case there is no question, but the Appryzer might obtain himself Infeft upon the apprizing, after the Death of him against whom he apprised, and that summarily, without new Process, and there is no difference whether the Superior were Charged during the Life of the Debtor, or not. The Pursuer answered to the first, that no Party can claim the benefit of a Possessory judgement, unless he have a real Right by Infeftment, at least by Tack; but a naked apprizing, thoug it may carry Mails and Duties, as a naked Assigation, and is valide against the Debtor or his Heir, ●et in itself it is an incomplete Right, and not become real. It was answered, that the apprizing alone was sufficient, as was lately found in the Case of Mr. Rodger Hog, against the Tennent of Wauchtoun. The Lords repelled the first Defense, and found there was no ground for a Possessory judgement; here there was neither Infeftment, nor Charge upon the apprizing. The Pursuer answered to the second Defense, that it was not relevant to exclude him, because Richard Irving having Died last, vest and seized in the Lands, and Robert Irving never having been Infeft, the Pursuers, Robert's Sisters, who were Heirs appearand, buth to Richard their Grandsire, and Robert their Brother, could not possibly obtain themselves Infeft as Heirs to their Brother, becuse the Inquest could not find that Robert Died last, vest and seized as of Fee, but Richard and any apprizing against Robert (who was never Infeft) evanished, seeing no Infeftment was obtained upon the apprizing, nor no Charge used against the Supperior, during Robert's Life, so that the Appryzer ought to have Charged de novo these Pursuers to Enter Heir to Richard, and aught to have apprised from them, as lawfully Chaged, and to have obtained Infeftment upon the apprizing in their Life, and as the Sisters would exclude the imperfect Diligence against the Brother, so much more may Mr. George johnstoun, who is their singular Successor. It was duplied by the Defender, that Mr. George johnstoun, albeit he be singular Successor, yet he is Infeft after Sir Charles Erskin; and therefore the question now is only betwixt the Appryzer, having Charged the Brother in special, to Enter to these Lands to his Grandsire, and these Sisters being Infeft as Heirs to the same Grandsire, and albeit they could only Infeft themselves as Heirs to the Grandsire, the Brother never having been Infeft, to the effect, that they might either Reduce, or Redeem the apprizing led against their Brother, because the Charge to Enter Heir, did state their Brother Charged, as if he had been actually Infeft, only in relation to, and in favours of the Appryzer, who Charged him, yet as to that Appryzer, he is in the same condition, as if Robert had been actually Infeft, and there is no Law requiring him to obtain Infeftment, or to Charge the Superior during the Life of Robert, who is specially Charged; but as in other Appryzing, so in this, he may Charge the Superior, or obtain Infeftment when ever he pleases. It is true, that if a singular Successor had obtained Infeftment upon the Resignation of Richard's Heirs, Entered and Infeft before the Appryzer had obtained Infeftment, the Appryzers' delay might have prejudged him, and preferred the first complete Right, but the Heirs themselves could never exclude him, though their Infeftment were prior. The Lordi found the second Defence and Duply relevant, and found the Infeftment upon the apprizing (against the appearand Heir) specially Clanged, and the Appriyzing itself to be as valide, as if the appearand Heir had been actually Infeft, and that the Compryzing became not void through want of Infeftment, or Charge against the Superior, during that appearand Heirs Life. Alexander Chisholm contra Renies, Eodem die. ALexander Chisholm as Executor to john Graham of Orchel, pursues William and Archibald Renies for a Bond, granted by them to the Defunct, in anno 1635. who alleged that the true cause of the Bond was by Transaction of a Blood-wit, made by the Laird of Gloret, and Mr. james Row, in whose Hands this Bond (then being blank) was put, and which unwarrantably came in the Hands of Orchel the Party, who in stead of 400. Marks, filled up 2000 Marks, which is offered to be proven by the Arbiters Oaths, yet on Life. The Pursuer answered, that his Bond could not be taken away by Witnesses, especially extrinsic Witnesses, there being no Writ relative to this Bond, or of the same Date, or Witnesses that might give any presumption of the Cause thereof. The Defender answered, that there were here far stronger presumptions, viz. That this Bond hath been Dormant 33. years, albeit it bore no Annualrent, and Orchel was known to be in great necessity, and by ocular inspection, it appears to be filled up with another Hand, and blotted, which presumptions, being so singular, give ground enough to the Lords to Examine Witnesses, ex nobili officio. The Lords ordained the Witnesses and Arbiters to be Examined ex officio, reserving to themselves what these Testimonies should operat, in respect of the antiquity and singularity of the Case. Captain Coningsby contra Captain Mastertoun, Feb. 7. 1668. CAptain Coningsby, Captain of a Privateer, pursues Captain Mastertoun for his share of two Prizes, taken upon the 5th. of August 1666. upon two grounds, first, upon concourse, because both these Privateers being in view of the first Prize, did both make up to her; Coningsby being nearest, and that when they came to near distance, within half a Mile, Coningsby fired the first Gun, Mastertoun the second, and Coningsby the third; at the firing of which the Prize streekt Sail, which signified her surrender without more resistance; and albeit Mastertoun being to the Windward, came first Aboard, yet it was without resistance, the Prize having rendered before, by streiking Sail; Coningsby being within a small distance, came presently up, and Demanded his share, according to the proportion of the Men and Guns of both Friggats, being the ordinar Rule of division of Prizes, betwixt concurring Friggars. 2dly, Upon the ground of consortship, or society made up betwixt the two Captains, after taking of the first Prize, and by the same consortship, craved the share of a second Prize, taken that same day, it having been agreed, that both should be sharers in all Prizes that should be taken by either, till their Victuals were spent. The Defender, Mastertoun and his Owners, alleged Absolvitor, from both these grounds, for as to the concourse, it is not relevant, unless the Pursuer had alleged that he had a real influence upon the Capture, for as to any Guns he shot, they were without a Miles distance, and Mastertouns Friggat being much lighter and swifter, did Oversail Coningsby, and when the Prize streikt Sail, Coningsby was a Mile behind, and at the same distance when she was taken, and therefore was neither concurrent in the force, nor in the fear, and as to the consortship, it was answered, first, that albeit there was a communing of consortship, yet there was no concluded agreement, for Coningsby claimed a share according to Men and Guns, which Mastertoun denied, having far fewer Men and Guns, whereby he that took the Prize would have had the smallest share, so that it evanished. 2dly, Albeit there had been a consortship made by the Captain, yet that could not be effectual, until it had been concluded in Writ. 3dly, It could not be effectual in prejudice of the Owners; the Captain having no power to make any such consortship, either by his office, or special Commission. The Pursuer answered, that his alleadgeance upon concurrence was most relevant, he being nearer when the Chase began, and within a small distance when the Prize streiked Sail, and was taken; and it cannot be doubted but the Prize had terror of both, to the second, Masters of Ships by their Office, may in many cases impignorat, or Sell the Ship, or Outreik, and Captains of Privateers having Commission to make Prize, have eo ipso, the power to use the most conducible means, and so to make consortship for that end: and albeit the first Prize was taken before the consortship, yet the Pursuer having upon his concourse demanded a proportion, conform to his Men and Guns, and being far stronger nor Mastertoun, and able to master him, and his Prize both, he might in such a case transact, and make this Copartinary, which was useful to his Owners, making them to have the half of the first Prize, whereof they would not have fallen above a third or fourth Part, so that it was utiliter gestum, et transactum in re dubia, and whereas it is alleged to have been but a communing, the contrair is evident, by the putting in of Coningsbies' Men both in Mastertouns Ship, and in the Prize; neither is there any necessity of Writ in such Transactions made in procinctu belli, et in alto mari. The Lords having before answers Examined Mastertoun and Witnesses hinc inde, for clearing the matter of Fact, Mastertoun himself did acknowledge the consortship to have been agreed upon, but affirmed that when they came to Subscribe the Writ, Coningsby craved a proportion, by Men and Guns, which he refused without an equal division, and several of the Witnesses having Deponed, that that difference was referred to the Owners without dissolving the consortship; Mastertoun himself having also Deponed, that in contemplation of the consortship, Coningsbies' Men wa● put Aboard of him and the Prize, and the Witnesses having variously Deponed anent the distance, when the first Prize streiked Sail, and was taken. The Lords found a consortship sufficiently proven, and that there was a concourse as to the first Prize, and therefore found Coningsby to have a Right to a share, which they found to be the equal share, seeing Mastertoun was most instrumental, and did actually seize upon both Prizes. The Minister of Cockburns-path contra his Parochiners. Eodem die. THe Minister of Cockburns-path having obtained a Designation of a Horse, and two Kines Grasse, conform to the Act of Parliament 1661. pursues a Declarator of his Right thereby. It was alleged Absolvitor, because the Designation was null, in respect it was by the Bishops Warrant direct to three Ministers Nominatim, and it was performed only by two, the third not having come, and a Commission to the three must be understood jointly, and not to empower any two of them, unless it had been expressed, likeas the Act of Parliament anent the Grass, requires the Designation of three Ministers. The Pursuer answered, that by the Act of Parliament, 1661. the Designation of Grass is appointed to be according to the old standing Acts, anent Manses and Gleibs, which do not require three Ministers, that number being only required by the Act of Parliament 1649. which is Rescinded, and not revived as to that point, and seeing three Ministers are not necessary, but that two are sufficient, the Designation done by two is sufficient. The Lords Sustained the Designation, unless the Defender show weighty Reasons of prejudice upon the matter. Sir John Weyms contra the Laird of Touchon, February 8. 1668. SIr john Weyms having a Commission from the Parliament to lift the Maintenance, when he was General Commissar, Charges the Laird of Touchon for his Lands, who Suspended on this Reason, that by that Act and Commission, singular Successors are excepted. The Pursuer answered, that the Act excepteth singular Successors, who Bought the Lands, but the Suspender is appearand Heir, and Bought in Appryzing for small Sums; and as Wodsetters are not freed as singular Successors, nor Appryzers within the legal, so neither can the Suspender; for albeit the legal, as to the Appryzer be expired, yet the Act of Parliament between Debtor and Creditor, makes all Apprizing Bought in by appearand Heirs Redeemable from them, on payment of the Sums they Bought them in for, within ten years after they Bought them, and therefore as to Touchon, who is apperand Heir, he is in the same case with an Appryzer, within the legal. Which the Lords found relevant, and Discerned against Touchon. Andrew Greirson contra Patrick Mcilroy, Messenger, February 13. 1668. ANdrew Greirson having employed Patrick Mcilroy Messenger, to use Inhibition, and Arrestment against Sir james Mcdougal of Garthland, and having failed to make use thereof in time before he Disponed, did pursue him, and Houstoun of Cutreoch his Cautioner, before the Lord Lion, whereupon the said Patrick and his Cautioner were Discerned to make payment of 500 Marks of Penalty, and of the Damnage and Interest sustained by the Pursuer, to the value of the Sums, whereupon the Inhibition and Arrestment should have been used. The Messenger and his Cautioner raises Suspension and Reduction, and insists upon this Reason, that the Decreet is null, as a non suo judice, because albeit the Lion be Authorized by Act of Parliament 1587. cap. 46. to take Caution for Messengers Discharge of their Office, and upon default, may Summoned Messengers and their Cautioners, and may Deprive the Messengers, and Decern them, and their Cautioners, in the pains and penalty for which they became Cautioners, yet the Lion is not warranted thereby to Determine the Damnage of Parties, through Default of Messengers, which may be of the greatest Moment and Intricacy; and would be of dangerous consequence to give the Lion such Jurisdiction over all the Kingdom. The Charger answered, that the Messenger was unquestionably liable to the Lion's Juridiction, and that both he and the Cautioner had made themselves liable thereto, by Enacting themselves in the Lion's Books, ●nd granting Bond Registerable therein and it would be great inconvenience to pursue Messengers before the Lion only for Deprivation and Penalty, and have need of another Process for Damnage, and Interest, and that the Lion has been accustomed to Decern Cautioners so before. The Lords found the Reason of Reduction relevant, and turned the Decreet into a Lybel, but Sustained the Decreet as to the Penalty of 500 Marks, in which the Messenger was Enacted, but n●t for the Damnage and Interest, ne●●her against the Messenger nor Cautioner. William Borthwick contra Lord Borthwick, February 14. 1668. WIlliam Borthwick having Charged the Lord Borthwick for payment of a Sum of Money, he Suspends, and alleadges that William is Debtor to him in an equivalent Sum, for the price of the Lands of Hal●eriot, Sold by my Lord to the Charger, conform to a Minute produced. The Charger answered, that the Reason was not relevant, unl●sse the Suspender would extend and perfect the Minute, which my Lord refuses especially, and particularly, to Subscribe a Disposition of the Lands, with common Pasturage in Borthwick Moor. The Suspender answered, that he was most willing to extend the Minute, but would not insert that Clause, because the Minute could not carry, nor import the same, bearing only a Disposition of the Lands, with Parts, Pendicles, and Pertinents thereof, which he was content should be insert in the extended Disposition, and it was only proper after the Infeftment was perfected, that the Charger should make use of it, so far as it could reach, which he was content should be reserved as accords. 2dly, If he were obliged to Dispute the effect of it, it could not extend to Pasturage in the Moor of Borthwick● first, Because a special servitude of a Pasturage in such a Moor, requires an express Infeftment, and cannot be carried under the name of Pendicles, Parts, or Pertinents, albeit the Moor were contiguous, and the common Moor of a Barony: but, 2dly, This Moor lies discontiguous from the Lands of Halheriot, and my Lords Lands lies betwixt, and does not belong to the whole Barony, but to some of the Tenants of it only. The Charger answered, that this being a Minute, beh●ved to be extended in ample form, expressing all Rights, particularly that the Right de jure, could carry, and there was no Reason to make him accept of Lands with a Plea, and de jure Pendicles, and Pertinents, do well extend to common Pasturage, when the said Pasturage is so Possessed, and it cannot be controverted, but the Heretors and Possessors of Halheriot, have been in undoubted Possession of common Pasturage in this Moor, and that the Rend payable therefore is upon consideration of the Pasturage, without which, it could neither give the Rent it pays, nor the Price, so that when my Lord Dispones the Lands, with the Pertinents, and at the time of the Disposition; this Pasturage is unquestionably Possessed as a Pertinent of the Land; the extended Charter, and Disposition ought in all Reason to comprehend it expressly: neither is there any difference whether the Pasturage be of a Moor contiguous, or belonging to the whole Barony, seeing it cannot be Controverted, but it was Possessed as Pertinent of this Room the time of the Bargain; and to clear that it was so Possessed, the Charger produced a Wodset, granted by the Lord Borthwick to himself of the same Room, bearing expressly Pasturage in the common Moor of Borthwick. The Suspender answered, that the Wodset made against the Charger, in respect this Clause being express in the Wodset, he had not put it in the Minute, which as jus nobilius absorbed the Wodset, and cannot be looked upon as a Discharge of the Reversion only, because my Lord was Superior by the Wodset, and by the Minute he is to Resign, likeas in the minute there is a Disposition of the Teinds, which is not in the Wodset. The Lords found that the Minute ought to be extended, bearing expressly the common Pasturage in the Moor of Borthwick, in respect the same was a Pertinent of the Lands, Sold the time of the Bargain, and was not excepted. Sir George Mckenzy contra john Fairholm, Eodem die. SIr George Mckenzie insisted in the Reduction of the Bond Subscribed by him, as Cautioner for his Father in his Minority. It was alleged for john Fairholm, that he could not Reduce upon Minority, because he had Homologat the Bonds after his Majority, in so far as he had accepted Discharges of the Annualrent, bearing Deduction of the Bond by his Father as Principal, and him as Cautioner, and Discharging them both, which Discharges Sir George himself did Receive from john Fairholm, and paid the Money. Sir George answered, that the Discharges do not bear that he paid the Money, but bears that the same was paid by the Principal Debtor, and his Receiving of a Discharge, not having paid, cannot import his Homologation, or acknowledgement of the Bond, for to prevent question and trouble, one may take Discharge of what he denies to be Due, and the Bond being then standing Unreduced, he may well accept a Discharge, not knowing the event of the relevancy, or probation of his Minority. The Lords Repelled the Defense, and found that the Discharges imported no Homologation, unless it were instructed that Sir George, out of his own Money, paid the Annualrent. The Laird of Haining contra the Town of Selkirk, February 15. 1668. THere being mutual Pursuits betwixt the Town of Selkirk, and the Laird of Haining, the Town pursuing a Declarator of the Right of Property of the Commonty of Selkirk, and Haining pursuing a Declarator of his Right of Pasturage in the said Commonty, by virtue of his Infeftments of the Lands of Haining, which Lands are a part of the King's Property of the Barony of Selkirk, and that this Common is the Commonty of the said Barony, Possessed by all the adjacent Fewars of the Barony, and whereof they have been in immemorial Possession. The Lords did, before answer, ordain both Parties to produce all Rights, Writs, or Evidents they would make use of in the Cause, and also to adduce Witnesses, hinc inde, of both their Possessions, and interrupting others. Haining produced a Charter by the King, in anno 1505. of the Lands of Haining, being a part of the King's Property, bearing cum partibus et pertinentibus, cum pascuis et pasturis, but not bearing in communi pastura, or cum communiis, generally or particularly in the Common of Selkirk; he did also produce posterior Charters of the same Land, bearing cum communi pastura, and did adduce several Witnesses, proving 40. years continual Possession, but some of his Witnesses proved Interruptions, by the Town of Selkirk's, cutting of Divots, cast by him and his Predecessors upon the Moor. The Town of Selkirk produced their Charter of the Burgh, posterior to Haining first Charter, bearing that their Ancient Evidents were burnt by the English, and therefore the King gives them the Privilege of the Burgh of Selkirk, with the Burgages Lands thereof, cum communiis ad dictum Burgum spectantibus, which the King confirms by a posterior Charter, giving the Town warrant to Ryve out 1000 Aikers of Land of the Common; they did also produce several Instruments of interruption, not only by cutting of the Fail and Divots, cast by Haining or his Tenants, but by turning their cattle off the Moor, as proper to themselves, and turning off all the Heretors' cattle they found thereupon, and by yearly Riding about the whole Marches of the Moor. They did also produce a Decreet at the Towns Instance against the Tenants of Haining, Decerning them to Defist and Cease from the Moor; in which Decreet, Haining Predecessor was Provost of Selkirk, and is Pursuer of the Cause; they also produced two Missives, Written by Umquhil Haining, acknowledging that the Town had cut his Divots, Casten upon the Head Room, and making apology for Casting of the same, denying it to be by his Warrant or Knowledge; they did also produce two Acts of the Town Court, bearing Haining to have desired liberty to draw Stones off the Common to Build a Park Dike, and to Cast some Divots for his Tenants Houses; they did also adduce several Witnesses, proving their continual, and uninterrupted Possession of the Moor this forty years and more, which proved also frequent interruptions against Haining, especially by cutting of Divots, and also by turning off his cattle, upon which probation it was alleged for the Town that they had instructed sufficient Right to the Property of this Moor, and that they had debarred the Laird of Haining and his Tenants therefrom, whenever they heard they came upon the same. It was answered for Haining, that he did not deny the Town of Selkirks Right of Pasturage in the Moor, but did deny they had Right of Property therein, but that the property did yet remain in the King, as a part of the Barony of Selkirk, being of the Kings annexed Property, but that the said Property (as to the Moor) was now burdened with a Common Pasturage, belonging to the Town of Selkirk, and also belonging to the Laird of Haining, and the other Fevars of the Barony of Selkirk, and therefore alleged that his Charter in the year of God 1507. being long before any Charter, granted by the King to the Town, did Feu to his Predecessors, the Lands of Haining, cum pertinentibus, cum pascuis & pasturis, and this Common being the Commonty of the Barony of Selkirk, the King Feving a part of the Barony, cum pertinentibus, et pascuis, did certainly thereby grant all that belonged to these Lands, as Pertinent thereof; as it was the time of the Feu, being then Possessed by the King's Farmorers, but that they had Common Pasturage in the Moor of Selkirk, is not only presumed (because it is the Common of the whole Barony, and Possessed by all the adjacent Fevars thereof) but also by their continual Possession since; for Possession 40. years is sufficient to prove all bygone Possession, since the Right capable of that Possession, it being impossible to adduce Witnesses to prove Possession eight score years since otherways, and therefore as in the Case of the Lord Borthwick, and William Borthwick, Decided the 14th of this Instant. The Lord Borthwicks Minute, Disponing the Lands cum pertinentibus, without any word of Pasturage, was found to carry Common Pasturage in the Moor of Borthwick, as being a Pertinent of the Lands Disponed the time of the Minute, and not Reserved, much more the King Disponing the Lands of Haining, not only cum pertnen●tibus, but cum pascuis, et pasturis did carry to Haining the Right of Common Pasturage in the Common of Selkirk, being then the Commonty of the Barony, so that any Interruptions done since, cannot take away the Right of Common Pasturage once constitute by the King: and albeit the King had unquestionably granted the Right of Property to the Town thereafter, yet that could not prejudge the Common Pasturage of another Constitute before. For if Haining claimed this Common Pasturage only by Possession, and Prescription, Interruptions might be Sustained to exclude the famine, but he claims it chiefly by virtue of his Infeftment, as having Right thereto the first day he was Infeft, so that his Possession since, albeit troubled by this Commonalty, yet preserves his Right, that the Town cannot allege a total and complete Possession, excluding him, and thereby taking away his Right by Prescription in their Favour; and as to the Towns Charter, cum communiis, it contains nothing per expressum of this Moor, or Pasturage therein, nor gives any thing de novo, but bears cum communiis ad●urgum spectantibus, which the King might have given, though there had not been a Commonty within 40. Miles, in the same manner, as the common Clauses in all Charters, bearing Coal, and Chalk, Cuningars, or Ducats, whether there be any or not, and the most the Town can pretend by their Charter, is, that they being a Burgh, Erected within the Barony of Selkirk, cum communiis, may therefore claim Pasturage with the rest of the Fevars of the Barony, but cannot exclude them as to the Liberty granted by the King, to Ryve out a 1000 Aikers, it clearly evinceth that they had not the Property before, neither did that take any effect, nor could it, because the common Pasturage (constitute to the Fevars before) would have hindered any posterior power of Tillage: As to the Decreet against the Tenants of Haining, it is in absence, the Heretor for the time not being call●d, and albeit it bears Haining Predecessor, as Provost to be present, that will neither import his Consent, nor Knowledge, Country Gentlemen being then ordinarily Provosts of Towns, who lived not with them, their Affairs at Law were Managed by their Town Clerk and Bailies, though the Provosts Name behoved to be insert; neither did this Decreet take effect, for Haining Tenants never ceased to pasture: as to the Letters they do only acknowledge the towns Head Rooms, because in great Commonties, it is ordinar for several proprietars, to have peculiar Places, most convenient for them where they law their cattle, and casts Fail and Divot, and which doth sufficiently consist with the Commonty; as for the Acts of Court, they can prove nothing against Haining. The Lords found that the Town of Selkirk had undoubted Right of Pasturage, Fuel, Fail and Divot in this Commonty, and that they had immemorial Possession thereof, without any interruption, and found that Haining had no Right by virtue of Possession, and Prescription, but found that by virtue of his Charter, anterior to the Towns Right, he had Right to common Pasturage in this Moor, it being the Common Moor of the Barony; but seeing he did not sufficiently prove Possession of Fail and Divot, but was therein continually interrupted, much more than in the Pasturage, and that nothing appeared, that in the time of his Original Right, the Fevars had privilege of Fail and Divot. Therefore the Lords found that he had no Right thereto, albeit common Pasturage doth ordinarily carry therewith Fail and Divot, yet they found that it was a several Servitude, separable therefrom, either by Consent, or Custom, and found that the Town should enjoy their Head Rooms, excluding Haining therefrom. james Colquhoun contra Watson, Eodem die. JAmes Colquhoun Pipe-maker in Glasgow, having gotten a tolerance from George Blair (Heretor of Lunloch) to dig Clay for Pipes there for certain years, excluding all others; there being an anterior Tack of the Lands, the Tenants grants licence to one Watson, for digging Clay there for Pipes: the Heretor also concurs with Watson. Colquhoun pursues Watson for Intrusion, and to desist from meddling with any Clay there, and for paying the value of what he had meddled with. Watson alleged Absolvitor; First, Because the licence granted to the Pursuer, being exclusive of all others, was contra bonum publicum. 2dly, The licence was posterior to the Tenants Tack, who thereby had Right to the whole profits of the Ground, and accordingly gave tolerance to the Defender. 3dly, The Heretor having granted the Tack, could not in prejudice thereof, give power to the Pursuer to break the arable Ground, and there being much more Clay nor the Pursuer could make use of, aught to give power to the Defender to make use thereof for that effect. The Pursuer answered, that a total and negative licence was legal, as well as any other total and sole Right, and it was free to the Heretor to grant the same, but could do no posterior Deed contrair thereto, because he had bound up his own hands thereby ● and as to the Tack, whether posterior or anterior to the licence, it can only give Right to the Tennent, uli fruiut colonus, to Manure the Ground, and reap the profits thereof, but cannot give him Right to any Mineral under the superfice, whether Coal, Limestone, Clay, etc. which is reserved to the Heretor, and he may make use thereof, which necessarily imports that he may break up the Ground to come at it, or else the Right were not reserved to him, and he is most willing to satisfy the Tenants damnage by opening the Ground; neither needs any reservation thereof be expressed, because it's employed in the nature of the Tack, which gives only power of the Superfice, Tillage, Pasturage, and Profits thereof, but the Tennent has no power to take away part of the Ground, or to give licence to any other so to do. The Lords Repelled the Defences, and found the Pursuer had the only Right by the Heretors' exclusive licence, and that the Tennent by his Tack had no Right to this Clay; and that albeit his Tack was prior to the Pursuers licence, he could give licence to no other. Mr. john Forbes contra Inns, February 20. 1668. MAster john Forbes insisted in the Cause against Margaret Inns, mentioned in the 8th, of january last, for Mails and Duties, as assignee by Margaret Allardice, who being Infeft in Liferent in principal Lands, and Warrandice Lands, and the principal Lands being evicted, she and the Pursuer (her assignee) returns upon the Warrandice Lands, wherein Margaret Innes is Infeft in Liferent by her Husband, who stood publicly Infeft therein, upon the Resignation of Margaret Allerdices Husband, and who alleged Absolvitor, because the Defender, and her Husband being Infeft, and in Possession these 20. years past, have the benefit of a Possessory judgement, and so cannot be put from her Possession, till her Right be Reduced. The Pursuer answered, that the benefit of a Possessory judgement can take no place against a pursuit, upon an Infeftment in Warrandice, unless the Possession had been seven, or more years after the Eviction; for before the Eviction, there could be no Pursuit upon the Infeftment of Warrandice in the same case, as an Infeftment of Liferent is not excluded by a Possession during the Husband's Life-time, when the Wife could not pursue. The Defender answered, that the Pursuer ought in a petitory judgement to have declared the Distress, before he could put the Defender from her Possession. The Pursuer answered, there was no Declarator required, but only the Eviction, which gives immediate recourse upon the Warrandice Lands. The Lords repelled the Defense, and found no need of a Declarator, or Reduction to attain recourse, and that a Possessory judgement was not compent upon any Possession, anterior to the Eviction. The Defender further alleged Absolvitor, because this pursuit is founded upon Margaret Allardice her Infeftment in Warrandice, which is base holden of her Husband; and the Defender and her Husband's Infeftment are public, holden of the Superior, and albeit posterior to the Infeftment of Warrandice, yet is preferable, the Infeftment of Warrandice being base, never clad with Possession. The Pursuer answered, that Infeftments in the Warrandice are sufficiently validat by Possession of the principal Lands, especially now when all Seising must be Registrat, as was lately found in the Case of john Scot: and the said Margaret Allardice has not only been in Possession of the principal Lands since her Husband's Death, but her Husband was in full Possession of both, which is more than sufficient. The Pursuer answered, that in Scots Case this was singular, that in john Scots Case, both the Principal and Warrandice Lands were granted in an Infeftment, and so the Person Infeft being in Possession of the principal Lands, his Infeftment could not be partly public, and partly private, but this Infeftment in Warrandice is ex intervallo. The Lords repelled also the Defence, and found the Infeftment in Warrandice (though base) sufficient, the Person Infeft being in Possession of the principal Lands, albeit the Infeftment in the Warrandice Lands was ex intervallo. Farquhar of Tonley contra Gordoun, Eodem die. FArquhar of Tonley pursues Reduction of a Bond granted by him upon Minority and Lesion. It was alleged Absolvitor, because he had Homologat the Bond, in so far as he being Cautioner in the Bond, he had pursued relief, and obtained Decreet for relief, which did necessarily import, that he acknowledged himself bound, else he could not have craved relief. The Pursuer answered, that seeing the Bond stood unreduced at that time he might lawfully pursue the principal Debtor to relieve him, against which he could have no objection, for the benefit of Reduction upon Minority, is peculiar to the Minor himself, and no other can make use of it; and in his pursuit of relief he might very well have declared that, in case he obtained not relief against the principal Debtor, he might free himself by Reduction against the Creditor, so that Homologation being a tacit consent, can never be presumed where the Deed done might have another intent, and his pursuit for relief was not to bind himself, but to louse himself; he did also allege that the pursuit of relief was at his Father's instance, and his own promiscuously, and after the Decreet was thereupon extracted, he gave it in again, and took a new Extract, which bears not a relief for him of this Debt. The Lords found the Pursuit, and Decreet of relief, to be no Homologation to exclude this Reduction. The Defender than offered him to prove that the Pursuer was Major when he Subscribed, so that the Lybel and Defence being contrary, and great advantage arising to him, who had the benefit of Probation by Highland Witnesses. The Lords resolved to prefer neither to probation, but before answer, ordained to adduce such Evidents, and Adminicles, as they would use to prove the Pursuers age, that they might prefer the strongest and clearest Probation. Sir Laurence Scot of Clerkingtoun contra the Lady Clerkingtoun, February 21. 1668. SIr Laurence Scot of Clerkingtoun having obtained himself to be Executor surrogat ad omissa et male appreciata of his Father's Testament, and having obtained licence to pursue, pursues the Lady Clerkingtoun as principal Executrix, who alleged no Process upon the licence, because licences are only competent to Executors principal, before there be any Confirmation, after which the Commissars neither use, nor may give licence ad omissa, as was found the 14. of December, 1621. Halliday contra observed by Dury. The Pursuer answered, that there was more reason to sustain licences after the principal Confirmation, when the best of the Inventar was given up, and what remained was uncertain, and for the practic the Lords had since allowed licences after Confirmation. The Lords repelled the Defense, and Sustained the Process upon the licence. Bartholomew Parkman contra Captain Allan, Eodem die. CAptain Allan a Privateer, having taken Bartholomew Parkman an Swede, he obtained him to be Declared Prize by the Admiral, upon this ground mainly, that he had carried Tar, being Counterband Goods, from Norway to Holland, then in Enmity with the King, and from thence carried ballast to France, and returning with a Loadning of Salt, was taken, because by the Captain's Commission from the Admiral, he was warranted to to take Ships carrying Counterband Goods, or to take the said's Ships in their immediate return, after they have carried Counterband Goods to the King's Enemies, which hath always been the Custom of Scotland, as appears by Commissions granted by the Admiral, Anno 1627. of the same Tenor, and by a Decreet of the Admiral at that time, finding the Lybel relevant, bearing that a Ship was taken in her return, having taken in Counterband to the Enemy in that Voyage, which is founded upon evident reason, because that while Ships are going towards the Enemy, it is but an intention of Delinquence against the King, and assisting his Enemies, but when they have actually gone in, and sold the Counterband, it is delictum Commissum, and though it might infer a quarrel against the Delinquent, when ever he could be found, yet the Law of Nations, hath for the freedom of Trade, abridged it to the immediate return of the same Voyage, because quarrels would be multiplied, upon pretence of any former Voyage. Parkman having raised Reduction of the Admiral's Decreet, insists on these grounds. First, That by the King's proclamation Denuncing the War, it is evident that the King gives only Command to seize upon Ships having in them Enemies Goods, or Counterband Goods, without any mention of seizing them in their return, which would destroy the freedom of all Trade, for upon that pretence, every Ship that were met with at Sea might be brought up, and therefore the King's Proclamation did justly and humanly Warrant the seizure of Ships, only when the Enemy's Goods, or Counterband Goods is found Aboard, in which case, for most part, the cause of seizure is sensible to the Eye, wherewith there was also produced a Testificat from Judge jenkin's, Judge of the Admiralty Court of England, by the Kings Warrant upon the Petition of the Kings Resident of Sweden, wherein he having advised with the King's Advocate general, who daily attended that Court, declareth that none of them remembers that in this War any Neuter were made Prize in their return, with the product of Enemy's Goods, and that he knew no Law nor Custom for the same. 2dly, There was produced the Treaties betwixt the King and the Crown of Sweden, bearing that the Swedes should be made Prize, carrying Enemy's Goods, or Counterband Goods, si deprehendantur. It was also answered to the Reasons of Adjudication, that the Style of a Commission, not granted by the King immediately, but by the Admiral, could be no ground of Adjudication of Friends and Allies, who were not obliged to know the same, or what was the Tenor of the Admiral of Scotland's Commissions, but were only obliged to take notice of the Law and Custom of Nations, and of the King's Proclamations of War: and as to the Admiral's Commission, and Decreet thereupon, in Anno 1627. It could not evidence the Custom of Scotland, being but a Decreet in absence, and upon a Lybel, bearing not only the carrying of Counterband, before in that Voyage, but having actually Aboard Enemy's Goods the time of the seizure, which Lybel is found relevant by the Admiral, but it appears not that he would have found it relevant alone, upon the product of Counterband, much less that that was proven, and in Decreets in absence, the Lords themselves suffers Decreets to pass with far less consideration, and ofttimes of course, so that it were strange to fortify the Admiral's Decreets that are now quarrelled after full hearing, upon an Decreet of the Admirals in absence. It was answered for Captain Allan, that the Pursuer could not enjoy the benefit of the Swedish Treaty, because he had transgressed the Treaty, and served the King's Enemies: and as to the Testificat of Judge jenkin's, or Custom of England, this being a distinct Kingdom, is not Ruled by the Custom of England, and Judge jenkin's Testificat was impetrat by the Pursuer, and not upon any Commission, or proposal made by the Lords, and the case therein mentioned is only anent the seizures in the return, with the product of Enemy's Goods, and says only that they do not remember that ever the Case was decided there, but says not that the Courts of Admiralty had found, that upon any Plea or Dispute, that Ships could not be taken, unless they had Aboard Counterband, or Enemies Goods. The Lords having formerly in this Cause desired to know the King's Pleasure, whether by the Swedish Treaty, which maketh far fewer things Counterband, then what are such by the Law of Nations, and by which Tar is not Counterband, the Swedes might Loaden Tar in Norway, not being their own Growth, and carry it to the King's Enemies. The King returned answer negative, in which the Lords acquiesced; and as to the present Dispute, The Lords did not find the grounds alleged for the Privat●er relevant, or sufficient to instruct the Custom of Scotland, or the Rule of the War, and had little respect to Judge jenkin's Testimony, and therefore were not clear to approve the Adjudication, but before answer, did declare that the Lords by their own Commission, would inquire in the Custom of Nations, concerning the return of Counterband, or Enemies Goods, both by Commissions direct to England, and other places. Captain Strachan contra Morison, February 22. 1668. CAptain Srachan pursues the Heirs of Umquhile George Morison before the Admiral, for a Ship and Goods m●d●ed with wrongously, by George and others, in Anno 1638. They raise Reduction on this Reason, that there was no Probation but one Witness, and Captain Strachans Oath taken in supplement. The Lords having considered the Probation, in relation to the Ship, found it sufficiently proven, that Captain Strachan was an Owner of an eight part of the S●●p, but found that the value thereof was not proven, and seeing Morison, and the other partners sold the Ship, after they had long made use of her, without Strachans' consent, they found that Strachans' Oath in litem ought to be taken as to the value, and would not put him to prove the same after so long time, and for the profits thereof, ordained him Annualrent since he was dispossessed. This question arose to the Lords, whether there being three Partners beside Captain Strachan, who all meddled whether Morison should be liable in solidum, or only for his third part, in which the Lords found the Ship being corpus indivisibile, and all the Partners in a Society, and that Captain Strachan being absent in the King's Service, from the time of their meddling to the King's return, and the other Parties in the mean time becoming insolvent. The Lords found George Morison liable in solidum for the eight part of the Ship; but as to the Wines and others that were in the Ship, whereanent there was no copartinery proven, and but one Witness of George Morisons Intromission, and Captain Srachans own Oath in supplement. The Lords found the same not sufficient, and yet allowed Captain Strachan in fortification of the Decreet, to adduce further probation. Gavin Cochran contra 〈…〉 Eodem die. GAvin Cochran as Donator to the Recognition of certain Land, holden Waird of my Lord Cochran, pursues the Vassal, as having Alienat the Major part, and also the Subvassal to hear and see it found and declared, that the Lands had Recognosced by the Alienation, made by the Vassal so the Subvassal. It was alleged for the Subvassal that he was Minor, and therefore During his Minority, non tenetur placitari super haereditate paterna. It was answered, that that holds only in Disputing the Minors Rights, but is not sufficient against the Obligation, or the Delinquence of the Defunct. 2dly, The Party principally called in this Process, is the Vassal who is Major, and whose Fee falls to the Superior by his Alieanation, and the Subvassals Right falls only in consequence, so that no privilege of the Subvassal, can hinder the Superior to declare the Recognition of his immediate Vassal. The Lords Repelled the Defence, and Sustained Process. Captain Mastertoun contro the strangers of Ostend, February 24. 1668. CAptain Mastertoun having taken a Ship of Ostend Prize, obtained her Adjudged before Ludquharn, Admiral Deput of Peterhead. The Strangers pursued Reduction before the High Admiral at Leith, and obtained Sentence, because the Decreet at Peterhead, and Warrants thereof were not produced, by which Sentence there was Discerned 16000 Dollars for the Ship and Loadning, which was Fish, taken in Island Mastertoun raises Reduction of the High Admiral's Decreet on this ground, that it was merely in absence, and proceeded without valuing the Ship or Goods, and offered to restore the Ship, or value, and what he got for the Fish, which was but a Dollar the Barrel, in regard they spoilled the time of the dependence of the Plea, and craved allowance of what he paid to the King, being the fifteenth part, and the tenth part to the Admiral, and alleged he could be liable for no more nor quantum lucratus est, seeing he did bona fide bring up this Ship, finding Aboard a Pass from the Magistrates of Ostend, which was defective, not conform to the Articles of Treaty with the King of Spain, in so far as it bore no mention of the Sailors, that they were the King of Spain's Subjects, and the Sailors did Depone that they did belong to Zurickzea, under the States of Holland; and albeit now ex post facto, he is informed that they did reside sometime in Ostend, yet he being in bona fide, can be liable in no more nor what he got. It was answered for the Strangers, that it being acknowledged, that the Goods or Persons were free, it cannot be denied in Justice to restore them to their Ship, and true value of their Goods, that they might have made thereof in Ostend, and not the price thereof that the Captain made, for seeing he acknowledges that they were corrupted for want of Salt, it was his own Fault, for he should have caused raise the Fish in the Barrels, and Salted them again; and as for the King, and Admiral's part, there is no reason to allow the 'samine, and put the Strangers to a Process against the King, and Admiral; but if it be just he have restitution of his Goods, he must have it of his whole Goods, at the same availls as he could have sold them, with his Damnage and Interest, and any pretence of bona fide's can operat no more, but to free him from a spuilzy, and the Pursuers Oath in litem, for the value and profits, and to restrict the Process to wrongous' Intromission, to the true prices, and true Damnages. It was answered for the Captain, that seeing he was in bona fide to seize upon the Ship, and seeing he did obtain Decreet from the Judge Ordinar, he was also in bona fide to sell and roup the Goods, as they gave at Peterhead; and it does not appear that there was Salt there for Salting them again, nor Men that had skill, nor could they meddle with them till Decreet was pronounced, which was a long time; they were also in bona fide to pay the King and Admiral, neither are the King's Officer nor Admiral Cited, but only the Admiral Deput. The Lords found, that seeing the Pass did not bear the Sailors to be the King of Spain's Subjects, conform to the Articles, that the Captain was in bona fide to bring her up, and found him free of any Damnages, and found him liable for the price of the Ship, and Fish, as they might have been sold at Peterhead by rouping, as use is, if they had been preserved; and found him obliged to have preserved them; and repelled the alleadgeance as to the tenth and fifteenth, but prejudice to the Captain and Owners to seek repetition thereof, and found no necessity to Cite the Admiral, his Deput being Cited. Merchants of Hamburgh contra Captain Dishingtoun, February 25. 1668. CAptain Dishingtoun having taken a Merchant Ship of Hamburgh, and obtained her to be declared Prize: the Hamburgers raises Reduction on this Reason, that the only ground of declaring her Prize, was, because she carried Counterband Goods towards the King of Denmark's Domissions, being then in Enmity with the King, which was no relevant ground, because it is evident the Ship was seized a Month before the proclamation of War against the Danes. It was answered for the Captain, that it is not the proclamation of War that makes the War for the King's Declaration, is only to give an account to the World, upon what account the King had made War with the Danes; and it is notour that there were frequent Acts of Hostility, both by the Danes, and against the Danes before this Capture. It was answered for the Strangers, that public denunciation makes only a public and lawful War; but whatever might have been done against the Danes, the Hamburgers (being the King's Allies and Friends) were not obliged to know the same, until such time that the proclamation of War might come to their Ears, so that they have done no Fault, being in bona fide to continue their Trade, until the War was made public to the World. It was answered for the Captain, that he was in optima fide to execute the King's Commission, bearing expressly to make Prize of all carrying Counterband Goods to the Danes, and therefore he could not be Discerned as praedo, but the most can be Discerned against him (though the Pursuer should be found to have been in bona fide, to Trade with the Danes) is to restore in quantum lucratus est; but so it is that he made no profit, for after the Capture, he being pursued at Sea by the Enemy, was forced to leave the Ship in question, being Loadned by him, whereby she was driven a shore, and suffered Shipwreck. The Lords found that the Hamburgers were in bona fide to continue their Trade with Denmark, and to carry to them Counterband Goods at the time of the seizure, and therefore Reduced the Admiral's Decreet, as to the Restitution of the Ship and Goods, or what profit the Defender made of them, but for no higher value nor damnages, in respect the Captain was in bona fide to execute the King's Commission, unless it were alleged, the Captain was in culpa in the loss of the Ship, or misprising the Goods. Lord Almond contra Thomas Dalmahoy, Eodem die. THe Lord Almond pursues a Declarator of the Escsheet of Thomas Dalmahoy, who alleged Absolvitor, because he was Denunced upon a Bond granted by the Duchess of Hamiltoun, wherein he being only Charged as Husband for his interest, and Denunced at the Mercat Cross of Edinburgh, and Peir and Shore of Lieth, being then Residenter in England; and now the Marriage being dissolved by the Duchess Death, his Interest ●e●seth as to all effects, and so as to this Horning. 2dly, The Denunciation being upon a Bond due to the Duchess own Mother, done by Mr. john El●is Commissioner for her, it was without Warrant, and so null. The Lords repelled both Defences, and found that the Contumacy incurred by not paying, or suspending Deb●to tempore, which is the cause of the Denunciation, was not taken away by the dissolution of the Marriage. Patrick Dun contra Isobel and Elizabeth Dunes, his Sisters, Eodem die. UMquhile Doctor Dun having provided 4000 Marks to one of his Daughters, and 10000 Marks to another, and Entertainment during their Minority, that their Portion might go to the Fore, bearing Annualrent; did thereafter grant to Isobel another Bond of 2000 Marks, whereof Patrick his Heir raises Reduction, as being done on Deathbed, after the Defunct had broken his Leg, and the same was cut off, whereof he took a Fever and Died, and never went out to Kirk or Mercat. The Defenders answered, that they offered them to prove, that albeit the Defunct happened not to come out, yet he was in his liege Pousty, and perfect health, and did all his Affairs, which did much more evidence his health, than the stepping out to the Mercat, 2dly, The Bond in question being a Provision to a Daughter, it was a Natural Obligation, which the Father might do on Death-bed● The Pursuer answered, that the Law allowed no other evidence to give Capacity to Dispone in liege pousty, but going out to Kirk and Mercat, and if any equivalent were accepted, it would render the most Ancient Law Doubious, and Elusory. As to the second, the Defender having been Portioned before, any Addition on Deathbed had not so much as the favour of a Portion Natural. The Lords repelled the Defences, and sustained the Summons. The Owners of the Ship called the Castle of Riga, contra Captain Seatoun, Eodem die. THis Cause being Debated the 27th. of july last, in which Debate Captain Seat un did chiefly insist to maintain the Decreets of Adjudication upon the presumptions, and evidences, that the Ship or Loadning did truly belong to the Hollanders; and that their Passes and Bills were but Contrivances, which the Lords found not sufficiently proven to make her Prize. Now the Captain insists upon another ground, contained in the Decreets of Adjudication, viz. That she was Navigat by Hollanders, the King's Enemies, and therefore by the King's Declaration of the War, the Ship and Goods are lawful Prize, because the last Article of the Declaration bears expressly to take all Ships Pryzes, that are Sailed by the Subjects of the United Provinces; and by the Testimony of the Witnesses taken at Cromarty. It was evident that the whole Company was Hollanders, taken on at Amsterdame, and Residenters there. It was answered for the Strangers, that there was a solemn Treaty perfected betwixt their King, and the King of Sweden their Sovereign, that Treaty behoved to be the only Rule, as to the Subjects of Sweden; by which there was nothing provided, that a Ship should be Prize, being Sailed with Hollanders; but on the contrair, the Pass agreed upon by the Treaty, and expressed v●rba●im therein bears, that Oath is to be made, that the Vessel and Loadning belongs to Swedes, but makes no mention of what Country the Sailors should be; and bears that the Master of the Ship may be of any Nation, and therefore mul●o magis, the Sailors. It was answered for the Captain, that the Treaty with the Swedes cannot be the adequat Rule, in relation to all Swedish Pryzes, there being multitudes of Cases not touched therein; and it cannot be thought the intent of the King, in so short a Treaty, to comprehend all the Laws of Nations at Sea, and all the Cases de jure belli betwixt their Subjects, but the Treaty doth only clear some most important Cases, and grants special Privileges to either Party, as that such a Pass should be sufficient, and that there should be no search at Sea, where such a Pass is found, nisi gravis suspicio subsit, so that these Cases must still be Regulat by the Law and Custom of Nations, and especially by the King's Declaration of the War; so that these making the Rule, the Treaty can make but the exception, and therefore the King, by the Declaration of the War against the Hollanders, gave an express Command to make Prize all Ships belonging to the Hollanders, or having in them Goods belonging to the Hollanders, or Counterband Goods going to the Hollanders, or Navigat by any number of the Hollanders, this must stand as the Rule, seeing there is nothing in the Treaty to alter the same, neither doth the Tenor of the Pass (not mentioning the Sailors) infer any thing, because the Sailors can be known of what Nation they are, by their Language, and it were unnecessar to cause the Swedes Depone upon Oath that they are Swedes, but cannot be so well known to whom the Ship and Goods belong, and therefore Oath is to be made thereupon; and albeit a Pass be found Aboard, conform to the Treaty, whereby it is provided, ne quid ulterius inquiratur in navigium, hon●● aut homines nulla t●nus inquiratur, it immediately follows, Quod si gravis aliqua susp●cio subsit, that there may be seizure even where there is a Pass, or if the Pass were old or vitiat, or appear not to agree with the Hand, and Seal of the places whence it is directed, seizure might be made, and therefore in this Case, the whole Company being Hollanders, as is evident by their Language, although there had been no suspicion of the truth of the Pass, they might justly have been seized and confiscate, conform to the King's Declaration; neither is it a good Argument, that because the Treaty gives leave to have the Master of any Nation, that therefore all the Sailors may be of any Nation, and therefore if the Company might have been of any Nation, there needed no such expression for the Master, exceptio firmat regulam in non exceptis, which is the more clear, that by the Treaty betwixt the King, and the King of Spain: there is a special privilege to the ●l●ndrians, that they shall not be questioned, as being Navigat by Hollanders, in respect of the Identity of their Language, which would never have been Demanded, if by the Law of Nations, Hollanders the King's Enemies, might have been made use of by any in Amity with him. The Lords found that this Swedish Ship being Navigat by the Sailors, all or the most part being Hollanders, Residenters in, or about Amsterdam, when they entered this Voyage, that the same was a sufficient ground of Confiscation, in respect of the King's Declaration of War, and that by the Swedish Treaty, there was no privilege granted to the Swedes as to this matter, and therefore Assoilzied from the Reduction, having found it sufficiently proven by the Testimonies at Cromarty; and whereas it was alleged that these Testimonies were extorted, by holding Swords and Pistols to the Companies Breasts, both at Sea, and after Landing, to make them confess that they and Goods belonged to Hollanders. The Lords found the alleadgeance relevant▪ that at Land, and about the time of their Testimony, the Witnesses were so threatened, but would not sustain that they were so threatened at Sea, when they were taken, unless it were alleged, that at Sea they were forced to Swear, or Depo●e upon Oath, whereupon it might have been presumed, that by Reason thereof they would adhere to it when they came to Land. George Graham contra Griselda Tours, and the Laird of Kilhead her Husband, February 26. 1668. GEorge Graham having obtained a Decreet before the bailie, against Griselda Tours and her Husband, for Furnishing to her first Husband's Funerals; her Husband Suspends, and raises Reduction on these Reasons, that albeit he stayed sometimes in a Chamber in Edinburgh, he was not in this Jurisdiction, and that his Wife's Oath could infer no burden upon him, and that the Bailies did unwarrantably hold him as Confessed, for not giving his Oath of Calumny, whether he had reason to distrust his Wife's Oath. The Lords found this unwarrantable, and therefore Reduced the Decreet as to the Husband, but Discerned against the Wife, ad hunc effectum, to affect her if she survive, or her Executors after her Death, or otherwise to affect any other Goods she had excepted from her Husbands jus mariti. The Laird of Milntoun contra the Lady of Milntoun, Eodem die. THe Lady Milntoun having obtained Decreet of Divorce against john Maxwel her Husband, the Laird of Milntoun having Right from her Husband to her Liferent, which Right fell by the Divorce; pursued a Reduction of the Decreet of Divorce, wherein the Witnesses being Examined, and Reexamined. The Lords adheres to the Decreet of Divorce, and Assoilzies from the Reduction; at which time the Lords having allowed him to insist as in Reprobators: he now pursues the same for Convelling the Testimonies of the Witnesses, because they were corrupted and suborned, both by promises, and getting of good Deed, and being prompted how to swear, as their Oath on Re-examination bears. And because their Oath is not only suspicious, but impossible; because it is offered to be proven, that the Parties were alibi, at a great distance from the place, where the Witnesses Deponed that they committed Adultery, and that for several days and nights thereafter, and before. The Defender alleged that the Lybel was no ways relevant. First, In so far as it would Convel the Testimonies, as to the principal points referred to Probation, against which no contrair Testimonies (either of the same, or other Witnesses) can be admitted by the Law of all Nations, otherwise Plea's should be infinite: for if the second Witnesses might improve the Testimonies of the first, third Witnesses might improve theirs, and so without end: and the alleadgeances that the Parties were alibi, are most irrelevant, and is ordinarily rejected, as being a contrair and incompatible Probation, for this being a Crime unlawful at all times, and places, albeit the Witnesses should have forgotten, or mistaken the time, if they be positive in the Act non obest, and so proving alibi at that time, which is not essential is of no moment. 3dly, The Reprobators in so far as they would improve, and convel the extrinsic points of the Testimonies, ad hunc effectum, to render the Witnesses infamous, and their Testimony invalide as to the whole, which is the proper and only subject of Reprobators, the famine is not now competent, unless first at the time of the taking of the Testimonies, the Pursuer had protested for Reprobators, and had not referred his objections against the hability of the Witnesses, to their own Oaths, but had only interrogat them of their Age, Marriage, Residence, freedom of partial Counsel, or Corruption, etc. And upon the reason of their Knowledge, in that case Reprobators might have been competent to prove the contrair of these extrinsic points, and so infirm the Testimony, but here the Witnesses being Examined, especially as to the Interrogators of partial Counsel, and as to the reason of their Knowledge, and no protestation taken at that time for Reprobators, he cannot now make use thereof, and albeit that Reprobators were reserved by the Lords, yet that was not at the taking, but at the advising of the Testimonies, when all that is now alleged (as to their corruption, arising from the Re-examination) did appear to the Lords, and yet the Lords adhered to the Decreet of Divorce, and first Testimonies. The Pursuer answered, that he did not intend to Convel principally the intrinsic points of the Testmonies, but mainly to prove their partiality and corruption, and therewith also to prove their Testimonies were false, and impossible; neither is it essential to protest at the taking of the Testimonies, nor is there any necessity that the Witnesses Oaths should not be taken on the extrinsic points, but on the contrair, the intent of Reprobators being, that their Oaths, as to these extrinsicks being false, they should be found perjured and infamous, and the whole Testimonies to fall. There was no Interloqutor at this time, upon this Debate. Reoch contra Cowan, Eodem die. REoch pursues Cowan as representing a Defunct to pay a Debt, due by the Defunct to the Pursuer, who alleged Absolvitor, because Reo●h was vicious Intrometter with the Defuncts Goods, in so far as he lifted 50. Pound, belonging to the Defunct, and gave his Discharge, produced and albeit thereafter he Confirmed himself Executor Dative, yet he wilfully omited that Sum out of the Confirmation, and so as vicious Intrometter, is both Debtor and Creditor, and cannot pursue the Heir. It was answered, that this was res modica, and could not infer the passive Title. The Lords found that this Sum inferred not a general passive Title, but only that is made him comptab●e for the Sum. Maitland contra Lesly, February 27. 1668. IN a concluded Cause of abstracted Multers betwixt Maitland and Lesly, The Pursuer being infeft in the Miln, with the Multers and Sequels, and having proven the astriction of Intown Multers, and Witnesses being adduced concerning the Services, for upholding the Miln and Dam, and bringing home Milnstones, who proved that some of the Lands were not in use of these Services, but by two or three several Acts, as once laying in the Dam, at which the Heretor was offended, and broke the Tenants' Head, and twice going to help home the Milnstones, whether these Lands were liable to the Services. Whereupon the Lords considered whether the constitution of a Thirlage, with Multers and Sequels, did by the nature of the Right, give the ordinary Miln service without relation to Possession, so that immediately after the constitution, thes might be demanded. Which the Lords decided affirmative, and then found that these Lands were liable to the service, unless they had either by Paction, or Prescription, attained freedom from the service, and found that the Testimonies did not prove freedom for forty years, and that these Acts were enough to interrupt, and so Discerned for the ordinary services. David Henderson contra Mr. Andrew Birny, Eodem die. MAster Andrew Birny having granted a Bond to Alexander Short, blank in the Creditors Name, he for an equivalent Cause, delivered the same to David Henderson, who filled up his Name therein, and Charges Mr. Andrew therefore; he Suspends on a Reason of Compensation, upon a Debt owing to him by Short, to whom he delivered the blank Bond, for whom he became Cautioner before he granted the Bond, and paid the Debt, partly before, and partly after this Bond, so that Henderson by filling up his Name, being assignee, and Short Cedent, payment or compensation against the Cedent, before the Assignation, is relevant against the assignee. It was answered, that in this Case compensation is not relevant, because the very Delivery of a Bond, in a blank Creditors Name, imports that the Receiver thereof, may put in any Man's Name he will, and he may never make use of Compensation against him whose Name is filled up, otherwise why should the Creditors Name have been left blank, which if it had been filled up, it behoved to have had an Assignation, which is but a Procuratory in rem suaem, so that the Procurator can be in no better state nor the Constituent, but the blank makes the Person filled up Creditor principally. The Lords found Compensation not relevant, against a Person whose Name was filled up in the blank, being a singular Successor to him, who first received the Bond. Mr. William Chalmers contra Wood of Balbegno, Eodem die. MAster William Chalmers, Parson of Feltercarn, pursues Reduction of a Tack of the Teinds of the Paroch, granted by his Predecessors, on this ground, that it is null by Act of Parliament, as wanting Consent of the Patron. The Defender alleged Absolvitor, because the Pursuer had Homologat his Tack, in so far as he had received payment of the Duty, conform to the Tack, which was a clear acknowledgement thereof. It was answered, that this could only be an Homologation for the years received, and could not Homologat the Tack itself, because the Tack was a standing Right, valid till it were Reduced, and the Pursuer could get no more than the Tack-Duty, till he should Reduce the same. The Lords found this no Homologation, to validat the Tack. Lord Justice Clerk contra Home of Linthel, the Procurator-Fiscal and Officers, February 28. 1668. THe Lord justice Clerk being Fined in 50. Pound for his absence from the Lord Homes Head Court of his Barony. The Officers Poinded an Ox, in October after the Ploughing was begun. The Lord justice Clerk pursues a Spuilzy, as being Poinded in Labouring time, and insisted against Linthel as Depute, who gave the Decreet, and Precept to Poind, and as he who knew of the Poinding of the Ox by the Officer, before he was Delivered, and commanded to Deliver him, and against the Officer who Poinded, and the Procurator Fiscal, who by the Executions of the Poinding, produced; Received the Ox from the Officer: at the advising of the Cause, Linthel having Deponed by his Oath, that the Officer had told him an Ox was Poinded, and he commanded the Officer to Deliver him, and that he knew not he was a Labouring Ox, so that that member not being proven, the question was, whether Linthel as Deput, giving a Precept to the Officer to Poind in common form, was liable for the Spuilzy, if the Officer did illegally Poind, and so was answerable for the Fault of the Officer. The Lords found him not liable, and therefore Assoilzied Linthel, and found that the Execution of the Poinding was sufficient Probation of the Delivery of the Ox to the Procurator-Fiscal, especially seeing the Defenders defended themselves with the Poinding, and themselves produced the Execution; and for the violent profits, the Lords Discerned 5. Shilling for every day, from October to May inclusive, being Labouring time, and that yearly since the Spuilzy till the Sentence. Duke Hamiltoun contra Maxwel of Moreith, February 29. 1668. THe Duke of Hamiltoun, as Collector-General of the Taxations, having Charged Maxwel of Moreith, he Suspends upon this Reason, and alleadges that he had Imparked, and Enclosed a ten Mark Land, since the Act of Parliament, 1661. anent the Enclosing of Grounds, by which, all Lands to be Enclosed thereafter, are to be free of all public Burdens. It was answered, that the Act of Convention was posterior, and had no such exception, but on the contrair, took away all former exceptions. It was answered, that an Act of Parliament cannot be Derogat, or Abrogat, by an Act of Convention. The Lords found the Reason relevant, notwithstanding of the Act of Convention. joanna M●alexander contra Charles Dalrymple, june 9 1668. IOanna M●alexander, a Sister Daughter, and one of the nearest of kin of Umquhile Elizabeth Dalrymple, pursues a Reduction of the said Elizabeth her Testament, whereby she nominat Charles Dalrymple her Brother's Son, her Executor, and universal Legator, upon this Reason, that in the time of the making that Testament she was not compos mentis, but fatuous and insensible. The Lords having appointed the Witnesses of the Testament, and other Witnesses to be Examined thereanent, the Witnesses in the Testament, and Writer thereof being Examined, Deponed that she was in her right Mi●●, and gave order for drawing of the Testament, and gave order to Subscribe it; the other Witnesses Deponed that about that time, for several weeks before, and some time after, the Defunct was fatuous, and not in a right Mind, and to every question proposed to her, she answered alwise yea, yea, and some words of Ravery, which she frequently spoke. The Lords having also caused Re-examine the Testamentar Witnesses, that it might appear whether she did only answer to Interrogators, as when it was answered, whether she would have Charles Dalrymple her Executor, and universal Legator, and whether she said yea● yea; and whether she gave Direction without a foregoing question by words that might signify her Sensibility. And having considered the whole Testimonies, they found that Probation most pregnant, that she was Fatuous, and insensible at the time of the making the Testament, and therefore Reduced, albeit the Witnesses were Extraneous that proved, and were not present at making the Testament, at which time a lucide interval of a Person Distempered by Disease, not constantly Fatuous, might have been sufficient. This was stopped till it were further heard. Sir john Gibson contra james Oswald, june 13. 1668. SIr john Gibson and james Oswald having mutual Declarators of Property, of a piece of controverted Ground, lying on the M●rch between two Gairs, or Bentish Stripes of Ground, through a Moor; equal number of Witnesses being Examined for either Party, one Witness for either side proved 40. years constant Possession of the Party Adducer, and that they did interrupt the other Party and turned away their cattle when they came over: some of the witnesses did prove either Party to have had Possession above 40. years since, but did not prove that they knew the same constantly so Bruiked, neither did they know any thing to the contrary, and many Witnesses on either side proved not only that the ●eithes Lybeled by the Party who Adduced them, were holden and repute the true Marches for a very long time, but did not express how long; but some of them Deponed, that Stones in the meithes were commonly holden and repute to be March Stones, and so the Testimonies were contrary, and if there had not been mutual Probation, either Party would have proven sufficiently; and neither Party having bounding Charters, the question arose whether the ●preg●antest Probation should be preferred, to give the property to that Party, and exclude the other, or if both Parties, proving so long Possession, and mutual interruptions, the Probation should infer a promiscuous Possession, and Right of the controverted piece of Land, and so resolve into a Commonty, albeit neither Party Claimed nor Lybeled Commonty. The Lords found the Testimonies of the Witnesses to infer a Commonty to either Party of the Ground in controversy, albeit they found that Sir john gibson's Witnesses were more pregnant, yet not so far as to exclude the others, but declared that if either Party desired that piece to the divided, they would grant Commission for dividing the same, and setting down of March-Stones Burnet contra Nasmith, june 19 1668. ALexa● de● Burnet of Carl●ps, being Creditor to Sir Michael Nasmith of ●osso, pursues a Declarator against james Nasmith his eldest Son, to hear and see it found and declared, that an expired apprizing of the Estate of P●sso, now standing in the Person of the said james, is Redeemable by the Pursuer as a Creditor, from the said james, as appearing Heir of the Party, against whom it was deduced within ten years after the appearand Heirs Right, upon payment of the Sums, that the appearand Heir truly gave out, conform to the Act of Parliament betwixt Debtor and Creditor. The Defender alleged Absolvitor, because the Act of Parliament could not extend as to his Case, because the Act bears, [where appearand Heirs takes Right to Appyzing of their Predecessors Lands] but the Defenders Father being living, cannot be said to be his Predecessor, or that the Defender is his appearand Heir, and Statutes are stricti juris not to be extended to like Cases. It was answered, that Reason of the Law, given in that part of the Statute, being the same, and rather more in this Case, where there may be Collusion betwixt the Father and the Son, there is no ground to except the same from the Act of Parliament, the words whereof do bear this Case, for in the ordinar Style it uses to be thus express, such a person to be eldest Son, and appearand Heir to his Father, and albeit his Father be not dead, he may well be said to be his Predecessor, not only in regard of his age, but as being his Predecessor in the Right of these Lands, whereunto the Son is a Successor, albeit he be a singular Successor. The Lords found the Clause of the Act of Parliament to comprehend Rights acquired by appearand Heirs, in their Predecessors Life, and therefore declared. Agnes Hadden and Mary Lawder contra Shorswood. Eodem die. THomas Shorswood having granted an Assignation to a Bond of 500 marks in favours of Agnes Hadden and Mary L●wder, they pursue Magdalen Shorswood, his nearest of kin, to deliver the same: who alleged Absolvitor● because the Assignation was never delivered, but being made a year before the Defunctsdeath, remained by him till his death, and was never delivered: and it is not the Subscribing of a Writ, but the Delivery thereof, that makes it that Parties, in whose favours it is conceived, unless the Party were in Family, as a Father's Custody is the Child's Custody, and equivalent to Delivery, and unless the Writ had contained a Clause to be valide without Delivery, which this doth not. The Pursuer answered, that this Assignation reserveth expressly the Defuncts Liferent, and a power to dispose thereof, during his Life, which showeth his mind, not to deliver the Assignation, even when he made it; otherwise the Reservation in his own favour, would not have been in his own hand, which sufficiently shows his mind, that the Writ should be valide, though not delivered in his life. 2. This being a movable sum, this Assignation is in effect d●natio mortis causa, and so must be valide, without Delivery, for a Testament or Legacy is valide without Delivery. It was answered to the first Alleadgance, that the Defunct might have Delivered the Assignation, and keeped the Bond; so that the keeping of the Assignation was not necessary, and so did not import his meaning to be, that the Assignation should be valide without Delivery. To the second, this Assignation is in the Terms and Nature of a proper Assignation, and is a Right inter vivos, and not donatio mor● is c●usa; because donatio mortis causa, is but as a Legacy, affecting only the Deads' part: but if this Assignation had been Delivered, it would have affected all, and so could be no donatio mortis causa, and albeit it was not Delivered, it remains the same kind of Right. The Lords Repelled the Defences, and discerned Delivery in regard of the Tenor of the Assignation, and that it was a movable sum, it being also informed that the Defunct had no Children, and the said Agnes Hadden, who was to have 400. marks of the sum, was Cousin-german to the Defunct. Relict of Galrigs contra Wallace of Galrigs. Eodem die. THe Relict of Galrigs pursues for Mails and Duties upon her Seasine, given propriis manibus. It was alleged for Galrigs no Process, because the Seasine is but assertio notarij, without a Warrant, there being neither a Contract nor Obligation to give such a Seasine. It was answered, that Instruments of Seasine given to a Wife, p●opr●is manibus, have a sufficient Adminicle, and presumption by the Marriage, and the duty of the Husband to provide the Wife, especially where there is no Contract, nor other Provision; but most of all where the Wife Renunced her Jointure she had with a former Husband in favours of the Granter of the Seasine, and his Creditors, which is a strong presumption, he would give her something in lieu thereof. Which the Lords sustained. Stevart of Torrence contra Fevars of Ernock. june 24. 1668. JAmes Stevart, as Donator to the Ward of the Laird of Ernock, by the Lord Semple of whom Ernock held the Lands Ward: pursues the Possessors for Removing, who alleged absolvitor, because they brooked their Lands by Feves, granted by the Laird of Ernock. The pursuer answered, non relevat, unless the Feves were consented to, or Confirmed by the Superior; for by the Feudal Law, no deed of the Vassal can prejudge the Superior, when the Lands are Ward. The Defenders alleged, their Feves needed no Confirmation, because they are warranted by Law, by the 72d. Act K. jam. 2. which stood valide until the Act of Parliament 1606. Prohibiting Feves granted but by immediate Vassals of the King, Ita est, The first Act cannot extend to the King's Sub-vassals, because it bears only Freeholders', and bears that the King shall accept of the Feu Duty, during the Ward: but the Ward of his Sub-vassals would never fall in the King's hand: and this meaning of the Act of Parliament is evident by the Act of Parliament 1606. bearing expressly, that there was no warrant by the first Act for any Feves, but such as were granted by the King's immediate Vassals. It was answered for the Defenders, that they oppone the first Act of Parliament, bearing expressly a general Reason of granting Feves, for the policy of the Kingdom, and that the King would give Example to the rest; and that the Act no ways restricteth to Freeholders' of the King, but others who hold of Subject's Ward, are called Freeholders', in opposition to Feves; which is also cleared by the 91. Act Parliament 1503. The Title whereof bears, (a power to all persons Spiritual and Temporal, to set their Ward Lands Feu,) which clears the meaning of the Parliament, and the common custom till the year 1606. which is acknowledged in the Narrative of the Act 1606. which doth only annul Feves set to Sub-vassals, in time thereafter: and as to the Narrative thereof, the Statutory part, and not the Narratives of the Acts of Parliament, which the Parliament doth not much notice, are our Rules; and this Narrative is contradicted by the Narrative of the Act of Parliament 1633. bearing that there is no reason why the King's immediate Vassals should grant Feves more than Sub-vassals. The Lords sustained the Feves, being granted before the Act of Parliament 1606. Andrew Grace contra Howison and Grace. Eodem die. ANdrew Grace being Infe●t as Heir to his Grandsire, in certain Lands of the Barony of Foules, holden blensh of the House of Grace: pursues a Reduction of a late Infeftment in Anno 1655. granted to Walter Watson, as long Posterior to his Right. Compearance is made for William Grace of Haystoun, as being Infeft by the Lord Grace, and Sir George Kinnard, who was Donator to the Recognition of the Estate of Grace, by the alienation of this Lord's Father; which Recognition hath been declared by the Lords, and alleged that he hath the only Right; because by the Recognition, the old Rights of the House of Grace being void, the Pursuers Subaltern Right fell in consequence therewith. The Pursuer answered, that before the Defenders Right, he had obtained a Precept of clarè constat, acknowledging his old Right, whereupon he was Infeft. It was answered, that the Precept doth bear expreslly, to be in obedience of Precepts out of the Chancellary upon the Pursuers Retour, and so being a necessary Act, and not voluntar, it could be no acknowledgement, or Ratification of the Pursuers Right. The Lords having considered the Precept, that albeit it mentioned the Retour in obedience to the Precept: yet it bore also, & quoniam mihi clare constat, etc. in the common strain of a Precept of clarè constat, acknowledging the Pursuers Predecessors Right and his Own. They found that it did exclude the Donator, and all having Right from him thereafter, and after the Seasine past thereon. George Heriot contra Town of Edinburgh. june 25. 1668. GEorge Heriots Father being Infeft in an Annualrent, out of certain Tenements in the Canongate, obtained himself to be Served Heir in special therein, before the Bailies of the Canongate, and because the 'samine is within a Regality, having a proper Chapel, and was not to be Retoured to the King's Chancellary; So that Precepts were not to be had out of the Chancellary, against the Town of Edinburgh, Superiors, to Charge them to Infeft him; therefore George upon Supplication, obtained Letters from the Lords to Charge them; and they being now Charged, he pursues a Poinding of the Ground. It was alleged for the Town, no Process for poinding of the Ground, till the Pursuer were Infeft in the Annualrent. It was answered, that he having done Diligence against the Town, it was equivalent, and did exclude them from proponing that alleadgance. It was answered, that no personal objection against the Town, could be a sufficient Title against this Action without a real Right. The Lords found no Process till Infeftment, but declared that so soon as the Magistrates should be Denunced, they would grant Warrant to the Director of the Chancellary to issue a Precept for Infefting the Pursuer, for supplying the place of the Magistrates, and their Contumacy. Black contra Scot Eodem die. ALexander Black having obtained a Decreet before the Commissar of St. Andrews, against james Scot, for 126. pounds; pursues a Transference thereof, against the Representatives of james Scot, who alleged absolvitor, because the Decreet is ipso jure, null, being given by a Commissar, in a matter not Consistorial far above the quantity allowed by the Injunctions, and there being nothing to instruct but the Defenders being holden as confessed, the Decreet at least must be turned to a Libel, and yet proven. 2. If the Defunct had been obliged to have compeared, he would not only have denied the Receipt of the Vinegar and Grapes Libelled, but he would have offered to prove, and the Defender offers yet to prove, that they were refused, and lay publicly upon the Shore where they were disloaded. 3. It was offered to be proven, the Defunct was lying on Deathbed, the time he was Cited to Depone, and was holden as confessed. The Pursuer answered, that albeit these Reasons were relevant to Repone a Party holden as confessed to their Oath, yet were not sufficient to annual the Decreet, seeing the Pursuer lost his Probation, the Receipt of the Goods having been two years ago; and albeit this sum exceeded the Commissars Injunctions; yet the violation thereof does not annual his Sentence, or take away his power, unless the 'samine had been objected upon Compearance. The Lords found not the Defences Relevant to annul the Decreet, or to hazard the loss of the Pursuers Probation: but seeing the Defender burdened himself with a contrair Probation, The Lords inclined to admit the same, if it were sufficiently pregnant; and therefore ordained the Pursuer before answer, to adduce Witnesses, that the Goods were never taken off the Shore, but Boated there. Inglis contra Laird Balfour. Eodem die. THere being an Un-printed Act of Parliament, for uplifting the Taxed and Loan of the Shire of Fife, for Relief of some Noblemen engaged for the Shire in Anno 1661. The Council did thereafter give Commission to certain persons in the Shire, to conveen the persons resting, and accordingly Cited the Laird of Balfour, and he not compearing, ordered quartering against him: he Suspends on this Reason, that this being a private and particular Act of Parliament, to which he was not called, is salvo jure, and could not burden his Lands of Creik, because he is singular Successor therein to the Laird of Creik. It was answered, that there is no exception of singular Successors in the Act of Parliament▪ so that this Act being a Reviving of the old Rescinded Act, pro tan●o, it must be in the same case as Taxation and Maintenance, which is ever accounted debitum fundi. It was answered, that these burdens Imposed by the Rescinded Parliaments, are not in the same case with other public Burdens, especially where it is but a particular Act, relating to particular persons and Shires, without Citation of them, for if they had known of this Act, they would have petitioned the Parliament, that singular Successors might have been excepted, as they were in other Acts of this nature. The Lords Suspended the Decreet, and found that as they were singular Successors they were not liable. David Dick contra Ker. june 26. 1668. DAvid Dick as Donator to the Escheat of Ker, insists in a special Declarator, for payment of a sum due to the Rebel. The Defender alleged Absolvitor, because it being a Bond, bearing Annualrent, it fell not under the single Escheat. It was Replied, that Bonds bearing Annualrent, are still holden movable, until the first Term of payment of Annualrent, and is Disposeable by Testament, if the Defunct die before that Term: but here the Rebellion was before the date of the Bond, and so the sum fell to the Fisk, the day it was Subscribed. It was answered, that the 32. Act, Parliament 1661. declares Bonds bearing Annualrent, to exclude the Fisk, without any exception or limitation. The Lords having considered the Act, found that it left Bonds bearing Annualrent, in the same case that they were formerly; and found that before the Term of payment of Annualrent, they were movable. Peterson contra Captain Anderson. june 30. 1668. CAptain Anderson having taken a Ship, whereof Peter Peterson was Master, and obtained the same declared Prize by the Admiral, upon two grounds; one that the Ship was sailed, a great part of the company being Hollanders, than the King's enemies: The other, that albeit it was pretended that the Ship belonged to Swedes, yet by several presumptions and evidences, it appeared, that is was but a conveyance, and that the Ship truly belonged to Hollanders: There is now a Reduction raised of the Decreet, and the first ground thereupon Debated and Decided. It was alleged for the Strangers, that they being Swedes, their case was only to be ruled by the Treaty betwixt the King and the Crown of Sweden, by which it is expressly provided, that the Subjects of Sweden having such Passes, as are expressed in the Articles, shall not be Seized, or brought up, and particularly in bona & homines nullo modo inquir●tur, viz. Where such a Pass is found aboard, and the said Pass being here found aboard, the Ship was unwarrantably Seized, and unwarrantably declared Prize, upon pretence of being sailed with Hollanders; because that Article takes away all question about the men, and so gives liberty to the Swedes, to make use of any Mariners they please. It was answered, that the Reason of Adjudication was most just; and this Reason of Reduction ought to be repelled, because the King's Proclamation, denuncing the War, gives express warrant to seize all such Ships as had any number of Hollanders therein, which must stand as the Rule, unless the Swedes had by their Treaty, a particular exception, derogating from that Rule, which they have not: but on the contrary, the Treaty contains an express provision, that they may make use of a Holland's Master, and not unless he became a Citizen of some City of Sweden, and be sworn Burgess thereof: but upon the former ground, there needed no such Article for Masters, and all might thereby be Hollanders. And as to the Article of the Treaty, concerning no further inquiry, there is subjoined, quod si gravis aliqua suspitio subsit; in which case, notwithstanding of the Pass, Seizure might be made; but here there was gravis suspitio, that the Ship or Goods belonged to the Hollanders, the Master, and major part of the Company being Hollanders, and the Pass mentioning a Ship of an hundred Tuns, whereas this Ship was two hundreth Tuns. It was answered for the Strangers, that the King's Proclamation could be no Rule to the Subjects of any other free Prince; but the Law of Nations, or their own Treaties, behoved to be the Rule: and by the Law of Nations, the King could not hinder his Allies of any Commerce, or Trade with His Enemies, which they were accustomed, or free to do before the War, except such Acts only, wherein they partaked with his Enemies, by furnishing provisions of War, or Counterband Goods; and so the King by no Proclamation, could hinder the Swedes to hire and make use of Hollanders, which rather weakened, then strengthened his Enemies: and in this case, the making use of Hollanders was necessary, because other Sailors could not be had, when the Ship was bought; and that Article of the Proclamation ought to be benignly interpret, that when any Ship carries Hollenders as Passengers, the same should be Seized, but not when these were Servants and Mariners to other Nations. It was answered for the Captain, that the King's Proclamation of the War, behoved to be a Rule to the King's Judges, and that it was most consonant to the Law of Nations, and it was impossible without the same, to know what Ships did truly belong to Allies; and that in the Spanish Treaty with the King, that privilege was specially indulged to the Flandrians, not to be quarrelled upon the account of Hollanders, because of the Identity of their Language, which would have been unnecessar, if by the Law of Nations, all might have so done. The Lords Repelled the Reason of the Reduction, and found that ground of the Adjudication, that the Ship was Sailed, with a great part of the Company being Hollanders, Relevant alone, and that the same was sufficiently proven by the Testimony of the Steirsman, and another Witness of the Company, and therefore Assoilzied from the Reduction. The Minister of Elgin contra his Parochioners. Eodem die. THE Minister of Elgin pursues his Parochioners for the Viccarage of some Yeards in Elgin, which belonged of old to the Canons of the Cathedral Kirk of Elgin, and were by them Feved to the Defenders, who alleged Absolvitor; because the Yeards being a part of the Canon's Portions, and in effect their Gleibs had in no time past, ever paid Viccarage, which is consuetudinar, and local, both as to the payment, and the kinds; for in some places, Teind Lint, and Hens are paid, and in others not: but the ordinar Viccarage being Stirks, Wool, Milk and Lamb, there is none of these to be had in these Yeards. It was answered, that no Prescription could take away Teinds, upon the forbearance of demanding it by Beneficed Persons, who are but Administrators, and cannot Delapidat; otherwise all Benefices might be destroyed. 2ly, Lands that have been always Ploughed, and so paid Parsonage, and becoming Grass, are liable to Viccarage, albeit it cannot be proven, that ever they paid any before. The Lords found the Defense Relevant, unless the Pursuer could prove that Viccarage has been paid out of these, or out of any other the Canon's Portions of this Kirk. George Shein contra james Christie. Eodem die. G Christison of Bassallie, gave an Infeftment to his eldest Son, of the Lands of Bassallie, and to his second Son, of an Annualrent of 86. marks forth thereof, both of one date, and both reserving the Father's Liferent. james Christie hath Right by apprizing, led against the eldest Son, in his Father's life, to the Lands. George Shein hath Right by Adjudication, against the second Son, to the Annualrent, and pursues a poinding of the Ground. It was alleged for james Christie, that Sheins Authors Right was base, never clad with Possession, and so null; whereas his Right was public by an apprizing, and had attained to Possession. It was answered, that the Father's Liferent being reserved, the Father's Possession was both the Sons Possession, and did validat both their Rights. It was answered, that a Disposition by a Father to his own Children, reserving his own Liferent, though Infeftment follow, is always accounted simulat, and never accounted clad with Possession, by the Father's Possession, as hath been frequently decided. It was answered● that albeit in Competition betwixt base Infe●tments, granted to Children, and Infeftments granted to Strangers upon onerous Causes; the children's Infeftment, though prior, and though reserving the Father's Liferent, uses to be preferred; yet here that holds not, for both Infeftments are granted to Children, both of one date, and neither of them to Strangers, or upon onerous Causes; and therefore the Reservation here is without suspicion of Simulation, and the Father's Possession must both validat the second Sons Annualrent● and the eldest Sons property. Which the Lords found Relevant, and that the Father's Possession by this Reservation, did sufficiently validat both the Sons Infeftments; and that the Possession of one after his Death, or of any succeeding in his Right, did not exclude the other, or his singular Successor. Mr. Robert Burnet contra Swain. Eodem die. MR. Robert Burnet Tutor of L●yes pursues for Mails and Duties of a Tenement in Aberdene. It was alleged for Swain the Defender, Absolvitor, because he stands Infeft in the Lands; and by virtue of his Infeftment, in Possession; and albeit the Pursuers Infeftment be prior, it is null, neither being Registrat in the Register of Seasins, nor in the Town Clerks Books of Aberdene, according to the custom of all burgh's, but hath been latent many years, and no vestige of it in the Town Books; so that the Defender was in bona fide, to Contract with the common Author, and Apprise thereafter. It was answered, that the Act of Parliament excepted Seasins within Burgh; and the Pursuer having the Town Clerks Subscription was not answerable for his keeping a Prothecal, or Record. Which the Lords found Relevant, and sustained the Seasine. Colquhoun and Mcquair contra Stuart of Barscub. july 1. 1668. THe Laird of Barscub having seued certain Lands to Colquhoun and Mcquair, to be holden of himself, in the Contract of Alienation, there is a special Clause, that because the Lands are holden Ward of the Duke of Lenox; therefore Barscub is obliged to relieve these Feves of any Ward that shall fall in time coming: Thereafter Barscub Dispones the Superiority of these Lands, and by the Death of his singular Successor, his Heir falls in Ward, whereupon Sentence was obtained against the Fevars for the Ward Duties, and the avail of the Marriage, and they now pursue relief against Barscubs' Heir, upon the Clause of Warrandice above-written. The Defender alleged, that the Libel was no ways Relevant, to infer warrandice against him, upon the said Clause; because the meaning thereof can only be, that he as Superior, and so long as he remained Superior, shall relieve the Fevars, which ceases, he being now Denuded of the Superiority; otherwise it behoved to have imported, that he should never sell the Superiority, without the Vassals consent, which no Law doth require: or if the Lands had been apprised from him, he could not be liable for the Ward of the Appryzers' Heir, which is cleared by the ordinary Custom, there being nothing more frequent in Charters, than Clauses of absolute warrandice; and yet none was ever overtaken thereby, after they ceased to be Superiors. The Pursuer answered, that his Libel was most Relevant; because this being an Obligement, conceived in their favours by Barscub, not qualified as Superior, no Deed of Barscubs, without their consent, can take it from them, unless Barscub, when he sold the Superiority, had taken the new Superior obliged, to receive the Vassals with the same warrandice; but now the new Superior, not being obliged by this personal Clause, Barscub the old Superior, must remain obliged, especially in a Clause of this nature, which is express for all Wards to come. The Lords Repelled the Defense, and Sustained the Libel, and found the Superior (albeit Denuded) liable for Warrandice. Thomas Rue-contra Andrew Houstoun. july 3. 1668. ANdrew Houstoun and Adam Mushet, being Tacksmen of the Excize, did Employ Thomas Rue to be their Collector, and gave him a Salary of 30. pound Sterling for a year, thereafter he pursued Andrew Houstoun upon his promise, to give him the like Salary for the next year, and in absence obtained him to be holden as confessed and Discerned: Which being Suspended, he obtained Protestation, and therefore raised Caption, and apprehended Andrew Houstoun at Wigtoun, who gave him a Bond of 500 Marks, and got a Discharge, and being Charged upon the Bond of 500 Marks, he Suspends on these Reasons, that Thomas Rue had granted a general Discharge to Adam Mush●t, who was his Conjunct, and co●reus de●endi, af●er the alleged Service which Discharged Mush●t, and consequently Houstoun his Partner. 2dly, The Decreet was for Salary, and it was offered to be proven, that Rue (for his Malversation) was by warrant from Ceneral Monk, excluded from Collection that year, and by the Discharge of the Decreet, and this Bond, both of the same Date and Witnesses, it did appear that this Bond was granted for the Decreet, and if the Decreet were Reduced, by the Reduction thereof depending, the Bond would fall in consequence, as granted for the same Cause. The Charger answered, that he was now not obliged to Dispute, in relation to the Decreet. First, Because the Suspender had Homologat the same, by taking a Discharge thereof, and giving a Bond therefore. 2dly, There was not only a Homologation, but a Transaction upon a Reference, made by the Parties to ●aldone, conform to his Attestation produced; so that that Transaction cannot be recalled upon any pretence, but is the most firm, and Obligatory Contract of any. The Suspender answered, that his payment making and taking Discharge, was no Approbation, nor Homologation, but that he might reduce the Decreet, and repeat if he had paid, or been poinded, and so may retain; especially seeing it was done metu Carce●is, he being taken with Caption: and as to the Transaction, he denies the same; neither can it be instructed by Baldones' Attestation, but by the Suspenders O●th or Writ. The Lords f●und that the granting of the Bond was no Homologation of the Decreet, but that ●e might quarrel the same; and that the giving of the Bond was no Transaction, if he paid or gave Bond for the whole Sums contained in the Decreet: but found that ●f in consideration of the Grounds upon which he might quarrel the same, he had g●●●en an abatement by Arbitration, or otherwise that he could not quarrel the same, and found it only probable by his Oath, or ●●rit. james Donaldson contra Harrower. Eodem die. JAmes Donaldson pursues john Harrower as representing his Father, for whom the Pursuer became Cautioner to the Lord Rollo for 100 pound, for relief of the Defuncts Goods that were then a poinding; for which the Defunct promised payment, and did pay the Lord Rollo, and produces a Testificat of the Lord Rollo's thereof, and craves payment, and offers to prove the Libel by Witnesses, the Libel not being above an hundred pound. It was alleged for the Defender, that this being a Cautionry, and a Promise it was not probable by Witnesses, especially after so long a time, the Promiser being dead, who might either qualify the Promise, or instruct payment, there being nothing more ordinar, then to Transact such Affairs without any Writ. The Lords found the Libel not probable by Witnesses. Frazer contra Frazer. Eodem die. JOhn Frazer having obtained a Decreet against William Frazer his Brother, to deliver a Tack of the Lands of Boghead, granted to their Father and his Heirs, to whom the said john is Heir. William Suspends on this Reason, that he is Heir to his Father of the second Marriage, and produces his Retour, and produces the Contract of Marriage, including a Clause, that all Tacks Conquest during the Marriage, should belong to the Heirs of the Marriage; and this Tack being Acquired during the Marriage, the same belongs to him: and albeit it he conceived to the Heirs generally; yet by the Contract, the Pursuer as Heir general, will be obliged to Assign. It was answered, that this Tack was no new Conquest, but had been the old Possession of the Father, and the Tack bare the Lands to be presently possessed by him. The Lords found this Tack to fall under the Clause of Conquest, unless the Pursuer prove that there was an old Tack standing, which expired not till the second Marriage was Dissolved, in lieu whereof, this new Tack was taken. Hamiltoun contra Callender. july 7. 1668. JAmes Hamiltoun having taken his Debtor with Caption, offered him to james Callender bailie of Falkirk, to be Incarcerat in the Tolbooth of Falkirk, and he refusing, he now pursues a subsidiary Action against the bailie, for payment of the Debt; who alleged Absolvitor, because he is no Magistrate of a Burgh Royal, but of a Burgh of Regality, the Bailies whereof were never in custom to be Charged with Rebels. The Pursuer opponed the Act of Parliament 1597. cap. 279. bearing expressly▪ Bailies of Stewartries and Regalities, according to which, the Tenor of all Captions, bears the Letters to be direct against all Bailies of Regalities. The Defender answered, that for the Letters, it is but stylus curiae; and for the Act of Parliament, the Narrative and Reason thereof relates only to burgh's having Provest, Bailies and Common Good. The Lords having considered the Act of Parliament, Repelled the Defense and Discerned here the Rebel was Residenter within the Burgh of Regality, where there was known to be a convenient Prison. Relict of William Pattoun contra Relict of Archibald Pattoun. Eodem die. THE Relict and Executors of William Pattoun, pursues the Relict and Executors of Archibald Pattoun, for Compt and Reckoning of Sums and Goods belonging to the said umquhil William Pattoun by Archibald, and craves the Defender to produce Archi●alds Compt Books, who alleadgen nemo tenetur edere instrumenta sua contra se ad fundandam ●item; so that the desire was no ways reasonable, unless the Pursuer had given in a particular Charge, and Litiscontestation had been made thereon; in which case, the Defender might have been compelled, ad modum probationis, to have produced the Books. It was answered, the contrair was found in the Compt and Reckoning betwixt the Children of George Sui●ty against the Representatives of William Suitty their Tutor, and that there was as great reason here, the two Defuncts having been Brothers, and being in Copartnery together, and the one Factor for the other. It was answered, that the case of a Tutor and his Pupil was no way alike, because the Tutors Compt Book was in effect the Pupils, and the Copartinery, and Factory was denied. The Lords ordained the Book to be put in the hands of the Auditor, and if he found by inspection thereof, any Accounts appeared as betwixt Partners and Factors, he should produce the same to the other Party, even ad fundandam litem, otherwise that the same should be given back, and not shown to the Pursuer. Margaret Alexander contra Laird of Clackmannan. july 9 1668. MArgaret Alexander being Infeft in an annualrent out of the Lands of Sauchie, by a posterior Infeftment, in Corroboration of the former Right, she was Infeft in that same Annualrent, out of other Lands, whereof she was in Possession; but this posterior Infeftment being Reduced upon an Inhibition prior thereto; she pursues poinding of the Ground, of the Lands of Sauchie, upon the first Infeftment. It was alleged for Clackmannan Absolvitor, because the Pursuers Right of Annualrent is base, never clad with Possession, and now he is Infeft in the Lands, either publicly, or by another Infeftment clad with Possession. The Pursuer answered, that the Infeftment in the Lands of Sauchie was sufficiently clad with Possession, in so far as the posterior Infeftment of Annualrent in Corroboration thereof was clad with Possession, and as payment made by the Heretor, by himself for his Tenants, or by Assignation to Mails and Duties of other Lands in satisfaction of the Annualrent infers Possession; so payment made by his Tenants, by the posterior Infeftment in Corroboration, can be no worse than an Assignation to the Mails and Duties of these Lands; which as it pays some Terms Annualrent of the first Infeftment, so it must clothe it sufficiently with Possession. It was answered, that here being two distinct Infeftments at several times, albeit for the Annualrent of the same sum, yet the Possession of the last cannot relate to the first. The Lord Repelled the Defense in respect of the Reply, and found that Possession by the last Infeftment, did from that time sufficiently validat the first. Heugh Boog contra Robert Davidson. Eodem die. HEugh Boog having arrested Robert Davidsons' Fee, as Keeper of Herlots' Hospital, Pursues the Town of Edinburgh to make it forthcoming. It was alleged for Robert Davidson Absolvitor, because Robert Davidson had made cessionem bonorum, in favours of this Pursuer and his other Creditors, and thereupon was Assoilzied. The Pursuer answered, that a Honorum did no ways secure contra acquirenda, unless the Assignation or Disposition had been equivalent to the Debt, and satisfied it. The Defender answered, that that which was here Acquired, was only a Fee for Service, which is Alimentar, and the Fee will not be due, unless the Defender Serve in suitable condition, effeirand to his place; and therefore it cannot be made forth coming to any other use. The Lords found that a Fee in so far as was necessary for the Servants Aliment conform to his condition of Service, could not be reached by his Creditors to whom he had made cessionem bonorum, except as to the superplus, more than what was necessary, and they found no superplus in this case. Captain Allan contra Parkman. Eodem die. CAptain Allan having taken Bartholomew Parkman, and obtained him to be declared Prize. Parkman raises Reduction, and for fortification of the Admiral's Decreet of Adjudication, these Grounds were alleged: First, That by the Testimonies of the Steirsman and Company, it was proven that three of the Company were the King's Enemies; and so conform to the King's Declaration of War, Ordaining all Ships to be seized wherein there were any number of men belonging to the King's Enemies: this Ship was Prize, as was lately found in the case of the Ship called, The Castle of Riga. And albeit by a former Interloquitor, the Lords had not found three men to be a number sufficient for Confiscation: Yet it was not then considered; that the whole Company consisted but of eight; so that near the third of the Sailors were the King's Enemies, and one of them the Steirsman, which is a considerable proportion. 2dly, This Ship though pretended to belong to the Swedes, yet she had served the King's Enemies, the Danes and Hollanders, two years▪ and by the Swedish Treaty it is provided, quoth naves nullo modo accommodentur utriusque foederati inimicis. 3dly. It is also proven, that this Ship carried Counterband-goods, viz. Tar, which was not the product of Sweden, but carried from Denmark to Holland, and that she was taken in her return, having in a loadning of Salt from France; so that albeit the Ship had been empty, she might have been taken Prize in that same Voyage, in which she did partake with the King's Enemies: or being taken in the same Voyage, in which she had carried bona hostium. And lastly, it was also instructed, that the Cargo with which she was taken, was the product of the Counterband-goods, and so in the same case as if the Counterband-goods had been actually in her, the product being surrogatum quod sapit naturam surrogati. It was answered for Parkman, to the first Ground, that he opponed the Lords Interlocutor, finding three Sailors no sufficient number for Confiscation. And in the case of The Castle of Riga, the major part, at least the half were the King's Enemies. To the second Ground it was answered, that the King's Allies making use of their Ships for Fraught, was no way a lending of them to the King's Enemies; and as for the remnant Goods, by the King's Declaration of War, there is only given Warrant to seize Ships, having in them Counterband-goods, or Enemies Goods; and the Swedish ●rety bears expressly si deprehenduntur; so that this Ship having in her when she was taken, no Counterband nor Enemies Goods, is free. It was answered, that the King's Declaration, although it mention some cases of Seizure, is not full or exclusive, but the Law of Nations must take place, or the Custom of Scotland, in cases not expressed in the King's Declaration. And as for the Swedish Treaty, it cannot be pleaded, unless Parkman had a Pass from Sweden, in all points conform to the Treaty: but their Passes were in several things disconform, as being granted when the Ship was in Holland, and sent over Land. And as for the Custom of Scotland, to take Ships in the return of that Voyage, in which they carried Counterband, or prohibited Goods; it appeareth by the Captain's Commission, and former Commissions in Anno 1628. and by a Decreet declaring a Prize, wherein the same ground was Libelled, that she was taken in the return of that same Voyage, in which she had carried Counterband. And the Lords having Written to my Lord Secretary, his Letter in return, bears, That the Lords should decide according to the Law of Scotland. It was answered for the Stranger, that the particular Custom of Scotland can be no Rule for the Swedes; but only the Law and Custom of Nations ● and that England, nor no other Nation hath that Custom, to make Seizure, but in delicto, otherwise all Trade and Commerce would be destroyed, unless Seizure were only upon what were visibly Aboard, and not upon the pretence of what had been Aboard: and albeit a Delinquence once committed by partaking with the King's Enemies, might endure for a longer time: Yet the Custom of Nations, for the utility of Trade, hath Abridged it to actual Seizure, in delicto, and accordingly Judge jenkin's, Judge of the Admiralty in England, hath Attested, that during this War, after search of the Records, and Conference with other Judges, he knows not of any Prize declared, but when the Counterband goods, or Enemies Goods were taken actually in them. And for the Decreet alleged on, albeit that Ground be in the Libel; yet other Grounds are also therein, and there is no Debate as to that particular Point; neither doth the Probation mentioned in the Decreet clear, that that Point was proven. And as to the Tenor of the Commissions, albeit they might excuse the Captain from Fine, or Damnages; yet Strangers did not, nor were not obliged to know the same: but the Law and Custom of Nations, and the King's public Declaration of the War, and their Treaties. The Lords having considered the Debate, and that the several Points were of Importance and Preparatives, they resolved to take the Grounds jointly, and so found the Ship Prize, as having so considerable a proportion of her Company the King's Enemies. Some also were of the opinion, that she having been taken in the return was sufficient, especially not having a sufficient Swedish Pass● but the plurality wa●ed these Points, whether the returns of Enemy's Goods, or Counterband, or whether the Product, or not Product thereof were sufficient Grounds of Seizure, seeing it did not so appear by the Custom of Nations, or the King's Declaration of War: but by the former Debate it appeared, that she had Aboard when taken, a small parcel of Tar. Mr. David Falconer contra Sir james Keith. july 14. 1668. MR. David Falconer gave in a Complaint against Sir james Keith of Caddam, that he being in the exercise of his Office, informing the Precedent to stop a Bill of Suspension, given in by Sir james Keith: Sir james did revile and threaten him, calling him a Liar and a Knave, and saying if he found him in another place, he would make him repent what he said. The Lords having received Witnesses in their own presence, and finding it proven, sent Sir James to the Tolbooth, there to remain during their pleasure, and Fined him in 500 Marks. Earl of Wintoun contra Gordoun of Letterfary. july 15. 1668. THe Earl of Wintoun having apprised certain Lands in the North pursues for Mails and Duties. It was alleged for Gordoun of Letterfary, that he stands Infeft in these Lands; and by virtue of that Infeftment, is seven years in Possession, and thereby has the benefit of a possessory Judgement, and must enjoy the Mails and Duties till his Right be Reduced. The Pursuer answered, that he had Intented Process upon his Right for Mails and Duties, Anno 1658. whereby the matter became litigious, and which stops the course of any possessory Judgement, till that Citation expyre, by the course of 40. years, in the same way as it is in Remove or Ejections: where Summons once Intented, does not Prescribe by three years thereafter, but lasts for 40. years. The Defender answered, that the case is not alike; for the benefit of a possessory Judgement is introduced for the Security of Persons Infeft, that they be not summarily put to Dispute their Author's Rights which are oftimes not in their hands, but in the hands of their Authors, or Superiors; and there was never any Reply Sustained against the same, unless it were Vicious or Violent, or Interrupted: but here the last seven years' Possession, after that Citation, is neither Interrupted, nor Vicious; and these being no stop to take away the Effect of that Citation: it were of bad consequence, if Persons Infeft 39 years after a Citation, behoved Summarily to Dispute their Rights. The Lords Sustained the Defense of the Possessory Judgement, upon seven years peaceable Possession, before the Citation, and Repelled the Reply. The Pursuer further Replied, that in the seven years after the Citation, there were some years wherein there was a surcease of Justice, and no Courts in Scotland. 2dly, The Citation was by his Tutors and Curators, and he was minor during the seven years. It was answered, that a possessory Judgement was competent against minors, and there was no respect of minority therein, which is only excepted in the great Prescription, extinguishing the Right; but in the possessory Judgement in Relation to the way of Process, and the Fruits in the mean time, as in all Prescriptions, tempus contin●um, and not tempus utile, is respected. The Lords also Repelled both these Replies, and notwithstanding thereof Sustained the Exception on the possessory judgement. Sir William Stevart contra Murrays. july 17. 1668. SIr james Murray, his Estate being apprised by many of his Creditors; Sir William Stevart, one of the Appryzers, pursues the rest for Compt and Reckoning of a proportionable part of the Rents, in respect that his apprizing is within a year of the first effectual apprizing, and comes in therewith pari passu, by the late Act of Parliament, betwixt Debtor and Creditor. It was alleged Absolvitor: First, Because the Pursuers apprizing is incomplete, nothing having followed thereupon now these 16. or 18. years; and by the Act of the late Parliament, anent the Registration of the allowance of Appryzing, that is declared to be a necessary Solemnity for all Appryzing led since june 1652. and this apprizing is not yet allowed. It was answered, that by the late Act of Parliament, the Certification of the want of allowance is not, that the apprizing shall be null; but that posterior Appryzing first allowed, shall be preferred: but the Act betwixt Debtor and Creditor, brings in Appryzing together, deduced within a year, according to their Dates, without mention of allowance, and is posterior to the said other Act, and cannot be Derogat from thereby; nor does the Act require Infeftment, or any thing else, but takes away the preference of Appryzing by the former Act, as to such as are led within a year. The Lords Repelled this Defense, and Ordained the Pursuer now to allow his apprizing, which they found sufficient. The Defenders further alleged Absolvitor, because the Pursuer had accepted a Disposition from Sir james Murray, the common Debtor of a Tenement in Edinburgh, bearing expressly, in satisfaction of his Debt, which is now produced by himself. The Pursuer answered; First, That he was excluded from the benefit of that Disposition by Eviction, by the Earl of Panmure, who apprised before he was Infeft. 2dly. That whatever it bear, it was but truly granted for Security; for there is produced an Assignation by Sir james, of certain sums to the Pursuer, for the same Debt, which could never have been, if the first had been made in satisfaction. The Defenders opponed the Disposition, bearing expressly in Satisfaction, the benefit whereof accrescing to them, upon the Pursuers Receiving the Disposition, cannot be taken from them by any posterior Writ of the Common Debtor; nor are they obliged to Dispute, whether it was valid or effectual, seeing it was accepted, and the Eviction doth not annul the Acceptance, but giveth place to the Clause of Warrandice, contained in the Disposition, which is Personal, and reacheth only the Common Debtor, and not the Defenders: 2dly, It was the Pursuers own fault that he was excluded, in not Infefting himself upon his Disposition, which he received before Panmuire's apprizing. It was answered, that he could not compel the Superior to receive him, and that the Bailies of Edinburgh required bygone Sess, and Feu-duties to be paid before he were Infeft, which he was not obliged to pay, seeing by the Disposition he was to be free of all Incumberances. It was answered, that the Bailies of Edinburgh refuse no body, as is known, and these Incumberances were but to be purged by a personal obligement of the common Debtors, neither did the Pursuer ever give back the Disposition. The Lords Sustained this Defense, and found the receiving, and retaining the Disposition in Satisfaction, sufficient to exclude the Pursuer. It was further alleged for Patrick Murray of Deuchar, that he has Right to the Lands of Deuchar not only by apprizing, but by a voluntar Disposition, whereupon he was Infeft before the Pursuers apprizing, and hath been by virtue thereof in peaceable Possession these 16. years, and so hath the benefit of a possessory Judgement, and a prior more valide Right. It was answered that this voluntar Disposition was granted after the Denunciation of the Pursuers apprizing; after which, the common Debtor could not prefer any other Creditor by his voluntar Deed; and so the Denunciation making the matter litigious, any posterior Possession is Vicious, and cannot give the benefit of a possessory Judgement; neither is the Disposition being after the Denunciation a valide Right; but especially it being considered, that the Act of Parliament brings in this Pursuer with the other prior Appryzers, as if they had been in one apprizing, and several of the other Appryzing are led, and Infeftment thereon before the Disposition. The Lords Sustained this Defense, and found that the Denunciation did not take away the benefit of a posterior possessory judgement. Lord Dumfreis contra Smart. july. 18. 1668. THe Laird of Wamphray, being due a yearly Annuity to his Good-mother, the Lady Wamphray, which now belongs to the Laird of Castlemaines' her Husband, jure mariti, there is a competition thereanent, betwixt. Factor to the Earl of Dumfress, whose Name was used in the Gift to Dumfreis behoove, as Donator to the Escheat of Castlemaines', and Smart as having apprised from Castlemaines' the Right to this Liferent, jure mariti, who alleged that he ought to be preferred to the Donator; because albeit his apprizing was after the Rebellion, yet it was upon a Debt anterior to the Rebellion, and was long before the Donators Gift; and therefore according to the known Custom, Diligences of Creditors being before the Gift, or Declarator, are always preferred to the Donators of single Escheat. It was answered for the Donator, that that Custom was never further extended then to Movables, or Movable Sums poinded, or made forthcoming upon Arrestments, but never to Rights having tractum futuri temporis, which cannot be carried by poinding or Arrestment, but by apprizing or Adjudication, as Tacks or Liferents, when Assigned, so that the jus mariti being a Legal Assignation, and thereby falling under the Husband's single Escheat, falls to the King and Donator by the Rebellion, and cannot be taken away by an apprizing, pesterior to the Rebellion. Which the Lords found Relevant, and preferred the Donator. Mr. George johnstoun contra Parichloners of Hodony. Eodom die. MR. George johnstoun having Right to a Tack set by the Parson of Hodony▪ for his Life-time and three years thereafter, and having used Inhibition, pursues the Possessors of the Lands, who alleged Absolvitor, because the Tack is null, being set for more nor three years, without consent of the Patron, by the Act of Parliament 1621. It was answered that the Pursuer restricts his Tack to three years. The Defender opponed the Act of Parliament, declaring such Tacks simply null, as were set for more than three year. The Lords Sustained the Tack for three years, as allowed by the Act of Parliament. R●bert Thomson contra Earl of Glencairn. july 21. 1668. RObert Thomson having pursued the Earl of Glencairn for a Compt of Wright Work, wherein he was Employed by the late Earl for his Lodging and Yeards, when he dwelled in my Lord Oxfoords House. It was alleged for the Earl, that the Employment being a Direction, was only probable scripto vel juramento. The Lords before answer, having ordained Witnesses to be Examined, and their Testimonies being clear and pregnant, that the late Earl did employ the Pursuer in this Work, and called for him frequently, and ordered the Work from time to time; they Sustained the Witnesses in the Probation, and found it prove●. It did not appear that this Pursuer was within three years of the Work, but the Defender did not insist in any Defense thereupon. petoun contra petoun. Eodem die. PAtoun in his Son● Contract of Marriage, Dispones to him his Estate, and the Tocher was payable to the Father; after the Contract, and before the Marriage the Father takes a Bond of 2800. Marks from his Son, the Wife and her Brother pursues a Reduction of this Bond as fraudulent, & contra bonos mores & contra pacta dotalia. It was alleged for the Father, that he might very lawfully take a Bond from his Son, for provision of his Children after the Contract, and before the Marriage, having Infeft his Son in his whole Estate, which was worth 1000 Marks yearly, and getting but 2500. Marks of Tocher, and having some Debt and many Children. It was answered, that the Estate was not worth 600. Marks of Rent, and the Father's Liferent of 400. Marks reserved, so that the Annualrent of this Bond would exhaust the remainder, and they would have nothing to live upon. The Lords having considered the Contract and Alleadgances, thought that it was not sufficient to annul the Bond, that it was after the Contract, and before the Marriage, if there was any reasonable cause. Therefore, and before answer ordained the Commwers at the Marriage to be Examined, whether it was communed and agreed, that the Tocher should be accepted for f●tisfaction of the Debt and Bairns Portions, and they having Deponed Affirmative. The Lords Reduced the Bond as contrair to the Communing at the Contract of Marriage, the Estate being very mean. Sir john Weems contra Campbel of Ednample. Eodem die. SIr john Weems having Charged Ednample for Maintenance due in Anno 1648. He Suspends on this Reason, that upon consideration of the burning of his House in the time of the Troubles, he got an Exemption and Discharge from the King and Parliament, Anno 1651. It was answered that that Parliament was Rescinded, and the Charger had a Commission to uplift all Maintenance in Anno 1648. from the Heretors, notwithstanding of any exemptions granted by these pretended Parliaments, and their Committees. The Suspender answered, that the Act Rescissory has an express Reservation of all private Rights, acquired by Authority of these Parliaments for the time; and so this Exoneration of his becoming his private Right, falls not by the Act Rescissory: and as to the Act of Parliament, and Commission to the Charger, it must be understood salvo jure, and cannot take away the Suspenders anterior Right acquired. Which the Lords found Relevant, and Suspended the Letters, and found that the Suspenders Exoneration was not taken away, either by the Act Rescissory, or by the Act and Commission in favours of Bogie. Lord Rentoun contra Laird Lamertoun. Eodem die. THe Lord Rentoun, Justice Clerk, having pursued Lamertoun, as Representing his Father, for the Pursuers Rents and Goods intrometted with by the Defenders Father in Anno 1641. The Defender excepted upon the Act of Pacification in Anno 1641. and upon the Act of Indemnity in Anno 1661. and produced his Father's Commission, by which he meddled; so that having done by public Authority for the time, in relation to the War, and differences of the time, he was secured by both these Acts. The Pursuer answered, that the Act of Pacification, and that whole Parliament was Rescinded, and the Act of Indemnity had an express exception of all that meddled with public moneys of Fines, Forefaultors, or Sequestrate Estates, and had applied the same to their own use, and had not duly counted therefore: and the Pursuer insisted for what the Defenders Father had applied to his own use, or had not duly counted for. The Defender Duplyed, that his Father had duly counted for his whole Intromission, and had made Faith to the Committee of Estates particularly, that he had truly given up his Charge without omission, and thereupon was Discharged. The Pursuer answered, that he had instructed much more Intromission, and was content to allow the particulars in the Compt produced, and craved the superplus, which he had now proven by Witnesses adduced before answer: and as for the Oath, it could only be understood as an Oath of Credulity, like that of Executors Confirming Testaments, which doth not exclude probation of Superintromission: and there being two Counts produced, the Charge of the last Compt is the rest of the former Compt, and the Oath relates only to the last Compt. The Lords Repelled the Defense upon the Act of Pacification, which they found was only unrescinded, in so far as it is contained in the late Act of Indemnity; and Repelled the Defense upon the Act of Indemnity, in respect of the Exception; and found that the Father had not Counted duly for his whole Intromission; and that his Oath extended only to the last Compt: and having considered the Testimonies of the Witnesses, they made a difference betwixt what umquhil Lamertoun applied to his own use, and what Corns and cattle were carried away by Soldiers, by his direction to the Army, that he might be free of the latter, and liable for the former. johnstoun of Sheins contra Isobel Arnold, july 22. 1668. IAmes Arnold having granted a Bond of Provision to his Daughter Isobel, became afterwards Debtor to johnstoun of Sheins, who apprised Arnold's Estate, in Anno 1638. upon a Debt of his own, and as assignee to another Debt. Thereafter Isobel Arnold on her Bond of Provision Appryzes the same Lands; Sheins coneys in Possession of the most part, and Isobel in a small part, till they both acquire the benefit of a Possessory Judgement, whereupon there are mutual Reductions; Sheins Reason was, that his Father's apprizing was long prior to the Defenders, and that the ground of the Defenders apprizing, was only a Bond of Provision by a Father to his Daughter, which could never exclude the Father's Creditors, especially if that Debt was contracted before the Bond of Provision was granted, and while it remained in the Father's Custody, and so in his power to be Reduced at his pleasure. Isobels Reason of Reduction was, that albeit Shein's apprizing was prior, yet there was no Infeftment thereon in Shein's person, bearing to be on an Assignation to the apprizing by Shein's to Collingtoun, but any Infeftment produced is in Collingtouns Person, bearing to be on an Assignation to the apprizing by Sheins to Collingtoun, which Assignation is not produced, and so Shein's Infeftment, flowing from Collingtoun is null, because Collingtouns Right, from Umquhile Shein's is wanting, which is the mid-cuppling. 2dly, Shein's apprizing being on two Sums, the one whereof was to the behoof of a Cautioner, who had paid the Debt, and taken the Assignation in Shein's Name to his own behoof; which Cautioner being conjunct Cautioner with james Arnold, the common Author, and having a Clause of relief, neither he, nor Shein's entrusted by him, could justly or validly Appryze Arnold the Cautioners Lands for the whole Sum, but behoved to deduce the other Cautioners part, and so the apprizing is upon invalide grounds, and thereby is null, and albeit prior to Isobel Arnold's apprizing, yet she has the only valide apprizing. It was answered for Shein's that the first Reason was not competent to the Pursuer, for it was jus tertij to her what progress Collingtoun had from Umquhile Shein's, seeing she Derives no Right from him. 2dly, This Collingtoun by his Right granted to this Shein's, acknowledges that aborigine the Infeftment, in Collingtoun his Father's person, was to Shein's behoof, which is a sufficient Adminicle in place of the Assignation; and to the second Reason, albeit it were instructed it could not annul the apprizing in totum, but restrict it to the Sum truly Due, especially seeing that Shein's was content to declare his apprizing Redeemable by payment of the Sums truly Resting, within such times as the Lords would appoint; and albeit the Lords are strict in the Formalities of Appryzing when they are expired, and carry the whole Estate, though improportional, yet during the legal, they allow them in so far as they are due. The Lords found Isobel arnold's first Reason Competent, and Relevant to her, unless Collingtouns Assignation were produced, or the Tenor of it proven; and found the second Reason Relevant, to restrict the apprizing to the Sum truly due, in respect that Shein's did of Consent declare it, yet Redeemable for the true Sums. But they found Shein's alleadgeance, that the ground of Isobel arnold's apprizing was a Bond of Provision, posterior in Date or Delivery to Shein's Debt, Relevant to prefer him as a Conjunct Creditor for his true Debt, though the Assignation should not be produced, a new one from Collingtoun being sufficient. john Boswel contra the Town of Kirkaldy, Eodem die. IOhn Boswel having some Aikers in the Towns Lands of Kirkaldy, and some Houses in the Town, but not dwelling within the Town, or Paroch, nor using any Trade therein: pursues the Town as having unwarrantably Stented him for his Stock and Trade, he not dwelling in their Burgh. 2dly, For unequal Stenting him as to his Lands. 3dly, For Stenting him for the Towns Debts, as for the Sums paid for their Erecting Harbours, and some Teinds they Bought. 4thly, For Stenting him for the second Minister's Stipend, whereas he paid the whole Teind to the first Minister, nor dwelled he in the Paroch, nor consented to a second Minister, or to his Stipend, and for unwarrantable Quartering on him, and his Tenants, and this since the year 1644. It was answered for the Defenders, that they denied Stenting of the Pursuer, for any Stock or Trade, seeing he was no Inhabitant; or that they Quartered on him unwarrantably, but alleged there was now no ground after so long a time, to quarrel the inequality of their Stint Rolls, which were made by fifteen sworn Men, especially after so long a time, for this preparative would be the foundation of a Debate, at the instance of every Burgess, against every Town in Scotland: neither could there be a clear Rule, as in Valuations, but behoved to proceed by the Stenters' Conjecture, according to the common esteem of the Means, and Trade of every Burgess; so that unless the Complaint were against the inability of the Stenters, in due time made, there could be no Debate thereafter: And further alleged, that for the Towns Debts, that such as were contracted for the common benefit of the Town, for getting their Erection, and Harbour; and for the second Minister's Stipend, the half of which had been paid by the whole Heretors, since the year 1613. and the other half since the year 1649. that their new Kirk was Erected, should burden the Pursuer proportionally, according to his Land Rent. The Pursuer answered, that he not being an Inhabitant, was not concerned in the Erection or Harbour, nor in the second Minister's Stipend, seeing he paid his whole Teind to the first Minister. The Lords found the Pursuer liable for the half of the Stipend, in regard of the immemorial use of payment, but found him free for what he had not paid of the other, unless it had been imposed by Authority, or his own Consent; and also found him free of the Personal Debt, and would not Sustain Process against the inequality of the Stint Roll, after so long a time. Duncan Campbel contra the Laird of Glenorchy, july 25. 1668. DVncan Campbel pursues the Laird of Glenorchy, for Ejecting him from certain Lands, and especially, that his Brother, by his Direction, did violently cast out the Pursuers Children, and Servants out of a part of the Land, Laboured by himself; and persuaded, and enticed his Tenants, to receive Tacks from, and pay the Mails and Duties to him, and therefore craves Re-possession, and Double Mail, as the violent Profits of the whole Lands, during the Defenders Possession. The Defender alleged Absolvitor, because he had obtained Improbation against the Pursuer, of all his Rights of these Lands, and others; and likewise Decreet of Removing. The Pursuer answered, that the Defense ought to be Repelled, because the Improbation was only by a Certification, when he was Prisoner in Irland, and the Defender by Articles of Agreement produced, had acknowledged the Pursuers Right, and obliged himself to Infest him in the Lands in question. 2dly, Though the Pursuer had but Possession without any Right, he might not be Ejected, but by a Precept of Ejection from a Judge, which is not alleged. The Defender answered, that these Articles of Agreement were never perfected, nor extended, and could only import a Personal Action against the Defender, for extension, or implement, wherein, when the Pursuer insists he will get this answer, that he can have no benefit of the Articles, being mutual until he perform his part thereof, which is not done. The Lords Repelled the Defence, and Duply, and Sustained the Ejection. The Defender alleged, further, that that Member of the Libel, craving violent profits for that part of the Land Possessed by Tenants, because by the Defenders persuasion, they became his Tenants, is not Relevant, because Ejection is only competent to the natural Possess or upon violence, and persuasion is no violence. The Pursuer answered, that the prevailing with the Tenants, was consequent to the casting out of the Defender, out of his own House, and natural Possession, and was as great a fault as Intrusion, and equivalent thereto. The Defender answered, that the Law has allowed violent▪ profits only in Ejection or Intrusion, which can be drawn to no other Case, though it were as great, or an greater fault. The Lords sustained the Defence, and found violent profits only competent for that part, that the Pursuer Possessed naturally; but if the whole Lands had been an united Tenement, or Labouring, that the Pursuer had been Ejected out of the principal message of the Barony, and the Ejecter had thereby gotten Possession of the whole, it is like the Lords would have sustained Ejection for the whole, but this was not Pleaded. Lord Rentoun contra Lambertoun, july 28. 1668. THis day the Lord Rentouns Process against Lambertoun, mentioned the 21. Instant, was Advised; by the Probation it appeared that the Corns in the Girnels of Haymouth, and the cattle in the Mains of Rentoun, and Horses were taken away by Lambertoun, with a Troop, or Troopers; and that the Corns were carried to Dunss, the Army being thereabout at that time: whereupon the question arose, whether or not Lambertoun were liable for these, which by the Probation did not appear to be applied to his use, but to the use of the Army. The Lords Assoilzied him therefrom, as they had done in several cases formerly, upon the Act of Indemnity, whereby whatsoever was acted in the Troubles, by Warrant of any Authority in Being, was totally discharged; and the Lords did thereupon find, that the Actors were not obliged to produce, or show a Warrant, but that it was enough the Deeds were done, man● militari, unless the contrair were proven by the Actors own Oath, that what was meddled with, was not employed to entertainment of Soldiers, or any other public use, but to their own private use. Laird of Milntoun contra Lady Milntoun, july 30. 1668. THe Laird of Milntoun infifted in his Action of Reprobator, wherein this point of the Dispute was only Discussed, whether Reprobators were competent, unless they were protested for at the taking of the Witnesses Testimonies, or whether it were sufficient to Protest at any time before Sentence, or if there were no necessity at all, and especially as to this Case. It was alleged there was no necessity of a Protestation, and if it were, there was a Protestation at the Re-examination of the Witnesses, and also before Sentence. It was answered, that a Protestation was most necessary, because the want of it was an acquiescence in the hability, and honesty of the Witnesses; and if it should not be necessary, all Process this five years might come in question upon Reprobation, which were of dangerous consequence; and therefore, as Incidents are not competent, but when Protested for no more Reprobations; as to the alleged Protestation, at the Examining of the Witnesses, it is but subjoined to the Interrogators, only Subscribed by one of the four Examinators, who Subscribed the Testimonies, and who does not remember of his Subscription, so that it has been surreptitiously obtained from him; as to the other Protestation, the same was not when the Witnesses were taken, but at the conclusion of the Cause. It was answered, that it was in competent time, even at the conclusion, and that Reprobators were not only not rejected, but expressly allowed by the Pursuer, by way of Action. The Lords found this Reprobator competent in this Case, but did not resolve the point generally, whether they were competent, when not at all Protested for; as to which the Lords were of different Judgements, but most seemed to require a Protestation, ante rem judicatam, yet so that if it were omitted, the Lords might repone the Party to Reprobators, if any emergent made the Testimonies suspect through inability, or corruption in the same manner, as the Lords will repone Parties against Certifications, Circumductions of the Term, and being holden as Confessed. Sir George Mckenzie contra the Laird of Newhal, Eodem die. SIr George Mckenzie Advocate, having Married a Daughter of john Dickson of Hartrie, they pursue a Proving of the Tenor of an Inventar of Har●ries Lands, wherein he altered the former Substitution of his Children in several Bonds, and paricularly of a Bond of 5000. Marks, granted by Whitehead of Park, payable to himself, and after his Decease to Helen Dickson his youngest Daughter, who was Married to Ballenden of Newhal; and by the Inventar the Substitution was altered, and the one half of the Bond appointed to pertain to Elizabeth (now Spouse to Sir George Mckenzie) and the other to Helen and Michael: to prove that the 'samine was Holograph, because it wanted Witnesses; there was produced for Adminicles, the Copy of it, written by john Kelloes' Hand, Hartries' Nephew, and an judicial Instrument, containing the Tenor of it by way of Transumpt; but there was some words of difference between the Instrument and the Copy, which was Subscribed by john Ramsay, Hartries' Good-brother, and Mr. john Pringle, Hariries Good-son; who, and several others, being adduced as Witnesses, Deponed that the principal Inventar was produced by Hartrie on his Deathbed, and shown to his Friends, and by them Read, and that the Subscribed Copy was Collationed with the principal by them that Subscribed the same, and held in all points; and that the principal Inventar was all written with Hartries own Hand, except an alteration, made upon a Bond of Tarbets, which was written by john Ramsay's Hand, by direction of Hartrie, some hours before he Died, and was not able to Subscribe it, with some other alterations in relation to Bonds, wherein the Children Substitute, were Dead; but that this Article in relation to Whiteheads Bond, was all written with Hartries own Hand. The Lords found the Tenor proven, conform to the Subscribed Copy, and found the said Inventar Holograph, except in relation to Tarbets Bond, and these other particulars written by john Ramsay's Hand, so that Holograph was proven, without production of the principal Writ, jointly with the Tenor, albeit some part of the Writ was not Hartries' Hand, but written by john Ramsay's Hand; but these not being Subscribed by Hartrie, were in the same case as if they had been omitted forth of the Inventar, and the remainder of the Inventar, which only was Probative was all Holograph. Patrick Park contra Nicol Sommervel, November 12: 1668. PAtrick Park pursues a Reduction of a Bond of 1200. Marks Scots, upon these Reasons, First, Because albeit the Bond bears borrowed Money, and be in the Name of Nicol Sommervel; yet he offers to prove by Nicols Oath, that when he received the Bond, it was blank in the Creditors Name, and offers to prove by Witnesses, that the true Cause thereof was, that Sommervel, Nicols Brother, having win all the Pursuers Money he had at the Cards, he being then distempered with Drink, caused him Subscribe a blank Bond, for filling up what Sum he should win from him, and that this Sum was filled up in this Bond, which he offers to prove by the Oath of Nicols Brother that won the Money, and the other Witnesses insert, so that the Clause of the Bond being played Money, by the Act of Parliament 1621. the Winner can have no more but 100 Marks thereof. 2dly, Before Nicols Name was filled up, or any Diligence or Intimation thereof: there was a Decreet Arbitral betwixt the Winner and the Pursuer, wherein all Sums were Discharged● which Discharge being by the C●dent, to whom the Bond was Delivered, before the filling up of Nicols Name, or Intimation thereof, which is in effect an Assignation, excludes the assignee. It was answered for the Defender, that he opponed the Bond, bearing borrowed Money, grantled in his own Name; and though he should acknowledge that the Bond was blank in the Name, and that thereby his Name being filled up, he is in effect and assignee: yet the Bond being his Writ the Bond cannot be taken away, but by Writ or Oath of Party, and not by his Cedents Oath, or Witnesses insert, unless it were to the Cedents behoove, or without a Cause Onerous, as the Lords have found by their Interlocutor already. 3dly, Albeit it were acknowledged to be played Money, the Act of Parliament is in Desuetude, and it is now frequent by Persons of all quality to play, and to pay a greater Sum than 100 Marks. 4thly. The Pursuer who loseth the Money, hath no Interest by the Act of Parliament, because thereby he is appointed to pay the Money, but the superplus Money, more than 100 Marks, is appointed to belong to the poor, and the Defender shall answer the poor, whenever they shall pursue, but it is jus tertij to the loser, who cannot detain the Money thereupon; but whatever was the cause, the Defender having received the Bond for a Cause Onerous, and being ignorant that it was for any other Cause but true borrowed Money, he must be in t●to; otherwise upon this pretence, any Bond may be suspected, and the Cedent after he is Denuded by Witnesses, may take the same away. The Lord Advocate did also appear for the Poor, and claimed the superplus of the Money, more than 100 Marks, and alleged that the Act of Parliament did induce a vitium real. which follows the Sum to all singular Successors; and that though ordinarily the Cedents Oath, or Witnesses be not taken against Writ, yet where there is Fraud, Force, or Fault, Witnesses are always Receiveable, ex officio at least, and aught to be in this Case, where there is such Evidence of Fraud, that it is acknowledged the Bond was blank in the Creditors Name, when Nicol Received it, and the filling up was betwixt two Brethren, and the Debtor dwelling in Town, did not ask him what was the Cause of the Bond, and that an Act of Parliament cannot fall in desuetude, by a contrait voluntar Custom never allowed by the Lords, but being vicious against so good and so public a Law. The Lords found the Act of Parliament to stand in vigour, and that the Loser was liable upon the same grounds, and therefore ordained the Sum to be Consigned in the Clerks Hands, and before answer, to whom the Sum should be given up, ordained Nicols Oath to be taken when his Name was filled up, and for what Cause. Margaret Calderwood contra janet Schaw, November, 14. 1668. MArgaret Calderwood pursues janet Schaw to pay a Bond▪ as Heir to john Schaw, granted by him, who alleged Absolvitor, because the Bond is null, wanting Witnesses; the Pursuer offered him to prove Holograph. The Defender answered, that Holograph could not prove its own Date, so that it is presumed the Bond was granted on Deathbed, unless 〈◊〉 be proven that the Date is true as it stands, or at least that it was Subscribed before the Defuncts Sickness. The Pursuer answered, that Holograph proves its Date, except contra tertium, but it is good against the granter or his Heir, who cannot be heard to say that his Predecessors● Deed is false in the Date. The Defender answered, that an Heir might very well deny the Date of a Holograph Writ, otherwise the whole benefit of the Law (in favours of Heirs not to be prejudged by Deeds on Deathbed) may be evacuat by Antedated Holograph Writson Deathbed. The Pursuer answered, that he was willing to sustain the Reason founded on Deathbed, which was only competent by Reduction, and not by exception or reply. The Defender answered, that where Deathbed is instantly verified by presumption of Law, and that the Pursuer must make up a Write, in rigore juris null for want of Witnesses, he ought without multiplication of Processes, both to prove the Bond Holograph, and of a Date anterior to the Defuncts Sickness. Which the Lords found Relevant. William Duncan contra the Town of Arbroth, November 17. 1668. WIlliam Duncan Skipper in Dundee having lent the Town of Arbroth three Cannon, in june 1651. to be made use of for the Defence of their Town against the English, got from the Magistrates of Arbroth a Bond of this Tenor (that they did acknowledge them to have Received in borrowing three Guns, and obliged them to Restore the same within 24▪ hours after they were Required, without hurt, skaith, or damnage; and in case of hurt, skaith, or damnage to be done to them, obliged them to make payment of the Sum of 500 pounds, as the price agreed upon for them) upon this Bond William Duncan pursues for the price. It was alleged for the Town of Arbroth Absolvitor, because the Cannon were lost, casu fortuito & vi majo●i in so far as the English, after they had overcome the whole Country, and taken Dundee, did seize upon their Cannon after the Defenders had carried them the length of Bar●i-sands, before they were taken, and chaste back again by the English Ships, and thereupon buried the Cannons in the Sand within the Sea Mark, and hid the Carriages in a laigh Cellar, wherein they were covered, and it being clear by the Tenor and Nature of the Bond, that the Guns were Received in borrowing, and that it was contractus commodate, or Loan; which by the consent of all Lawyers, does not put the peril of vis major, or casus fortuitus upon the Borrower, but upon the Lender, who is dominus & res peri●●●● Domino. The Pursuer answered, First, That albeit by the nature of commodatum, the Borrower hath not the peril, yet the Law makes this exception, si commodatum sit estimatum, in which case the peril is the Borrowers, and it is no proper Loan, but rather Sale, which is clear, l. 5 〈◊〉. commodati; but by this Bond it is evident that it is commodatum estimatum, and here not only a value agreed upon, but a Sum expressly declared to be the price. 2dly, There is no question but Loan may consist with that, that the Borrower will undertake all peril: Ita est by this Bond the Defenders are obliged to Restore, without hurt, skaith, or damnage, which must import all perils, especially such perils as was then imminent, viz. The taking of the Cannons by the Enemy, otherwise this Clause should operat nothing, seeing without it the naked naming of a Contract would oblige to Restitution. 3dly, Albeit the Borrower were free of casus fortuitus, yet that is defined, and understood to be qui a nemine potest praevideri, but no body could have been ignorant of this Chance, to have been taken by that Enemy who were then imminent, and against whom particularly the Cannons were borrowed. 4thly, By all consents, commodatarius ten●●ur ●ro levissima culpa & summa diligentia, whereinto the Defender failed; for they alleged only an attempt, for carrying back the Cannons to the Pursuer, but they should have used other attempts, other days, and otherways; and likewise they were negligent, that they buried the Cannon to the knowledge of their whole Town, whereas they should have entrusted some few to have done it in the night; likeas they failed in this, that they made no application as others did who got back their Cannon by a public Proclamation by the Usurper, that all Cannons taken off Ships should be Restored, to enable the Shipping against the Spainard and Dutch. The Defender answered to the first alleadgeance, that he did not deny but in commod●●● estimato, the whole peril was upon the Borrower, but denied that this was commodatum estimatum, for all Lawyers do define commodatum estimatum, in the same way as does estimata, to be where the obligation is alternative, either to Restore the thing borrowed, or the price, at the option of the Borrower, so that the Lender is no more dominus, nor can demand the thing borrowed, which becomes the ●●●rowers, unless he please to give it back, & res perit s●o d●mino, but where the value is only liquidat in case of deterioration, or in case of failzie, the Borrower cannot free himself by offering the price, but the Lender may call for the thing, although it were deteriorat, but here the liquidation of the price is only in case of deterioration, and the dominion is unquestionably in the Lender. To the second, it was denied that the Borrower had here undertaken the peril, for the words of the Contract being (hurt, skaith, and damnage) in the proper and vulgar use, do not signify peril or hazard, but only deterioration, and have this equipollent positive to Restore the Guns in as good case as they Receive them, which would never import force or accident, and for the expressing of that Clause, nothing is more ordinar then to express Clauses, quae natura contractus insunt, and the adjection of this Clause may have these uses, First, It liquidats the value, in case the Borrower tailzie, without putting the Lender to prove the same. 2dly, Whereas a simple Loan might only have obliged the Borrower to diligence, so that if without his fault in making the use, for which the thing was borrowed, it had been deteriorat and lost, the Borrower would not have been liable, as he that Lends clothes to be worn, must not demand the deterioration by that ordinar wearing without fault, or ●he who Lends a Horse to a Battle must not require Reparation if he be wounded or killed in the Battle, unless he have a special obligement, to have him Restored without hurt, so in this case, the Parties having foreseen the ordinary case of the Cannons, being hurt in defending the Town, by much shooting, or by the shot of the Enemies, hath provided that even the damnage in that use should be repaired, which can never be extended to an accidental loss of the Cannon, not in defence of the Town, but after the Enemy had overrun the Nation, and taken Dundee, and Arbr●th was Dismantled, the Cannons were taken out of the Sand. To the third, casus fortuitus is not that which cannot be foreseen to be possible, but that which cannot be foreseen to have a sufficient, at least a very probable Cause, otherwise there should be no casus fortuitus, but this case which happened had been most ominous, for any Scots-man to have supposed, as most probable, that before breaking of the Army, or the English coming over Forth, the Kingdom should have been lost. To the fourth, the Defenders were no ways in culpa, or mora, but did more than they were obliged, for they were obliged to Restore but upon demand, and before demand they endeavoured to have Restored, and then they buried the Cannon within the Sea Mark in the night, and though there was a Proclamation to give up all Arms under the pain of Death, they did not discover their Cannon, albeit upon their discovery otherwise, one of their Magistrates run the hazard of his Life▪ and as for the Proclamation alleged, it meets not this case, their Cannon not having been taken off Ships, and if it was public the Pursuer behoved equally to know it, and should have made his address for his own Cannon, neither would the Defenders have refused their concourse, if it had been useful, or desired. The Pursuer opponed his former Answers, and added, that the Law cited spoke expressly of commoda●um estimatum, to Transfer the peril on the borrower; and there is no Law adduced to restrict it, not to take place in that which is estimat, only in the case of Deterioration, & ubi lex non distinguit nec nos: and as to the meaning of the Clause, in dutiis interpretatio facienda est contra proferentem qui potuit legem sibi opertius dixisse. So this Bond being the Defenders words, blame himself if he made not that clear. The Defender answered, that albeit that be one Rule of Interpretation, yet there are others stronger making for him, viz. In dubiis respondendum pro reo, in dubiis pars mitior & aequior sequenda: Now it cannot be thought, that Parties would have been so unreasonable, as to have demanded Restitution, if the Kingdom were lost, and the Cannon taken after all Diligence done to keep them: but this is the most special Rule, In dubiis respondendum secundum naturam actus ant contractus. The Lords found that by the Nature and Tenor of this Contract; the Defenders were not liable for this Accident that happened, and that they were not in mora, nor culpa; but had done all Diligence, and therefore found the Cannon lost to the Pursuer and Lender, and Suspended the Letters simpliciter. Thereafter upon pronuncing of the Interlocutor. The Pursuer offered to prove by the writer and Witnesses insert in the Bond, that it was expressly Treated and Agreed, and that the meaning of the Clause was, that the Defender should be liable to all hazard, and desired the Witnesses at least to be Examined ex officio. The Defender alleged that the Pursuer having gotten a Term already to Examine Witnesses, ex officio; and the Parties being Examined, he could not now demand a new Term, neither could a clear Clause in a Bond be altered by Witnesses. The Pursuer answered, that the Clause was at best but dubious; and so the meaning was not to prove against the Writ, but to clear the same, which is ordinar. The Lords would not give any further Term for leading Witnesses, but found that alleadgance only probable by the Oath of the Party. Patrick Andrew contra Robert Carse. November 25. 1668. PAtrick Andrew having sold twelve piece of Wine to Margaret Henderson, who keeped a Tavern after she was Proclaimed to be Married to Robert Carse Flesher, a part of which Wines was vented before the Marriage, and a part thereof vented after the Marriage, but the Marriage Dissolving within three or four Months by the Wife's Death; the most part of the Wine remained unsold at her Death; the Merchand pursued the Wife for the Price, and the Husband for his Interest, some days before she died; after her Death, her Husband vented no more of the Wine, but caused the Magistrates Inventar the same, and delivered the Keys to them. Patrick Andrew who sold the Wine, doth now pursue Robert Carse the Husband for the price of the Wines, who alleged Absolvitor, because there was no ground in Law to make him liable for his umquhil Wife her Contract and Obligement ex Emp●o, he being only liable jure mariti; which being Dissolved by her Death, he is free, for he is neither Heir nor Executor to her. The Pursuer answered, that the Husband having allowed the Wife to continue the Venting of the Wine, she was thereby preposita negoliis mariti, and thereby her meddling must be the Husbands meddling, who must be liable for the whole price, especially seeing he never made offer of the remaining Wine to the Pursuer, though he knew his Interest, and had pursued him for the price; so that the Wines having perished, it must be attribute to his fault; and the Merchant who knew not the condition thereof, cannot lose the same. 2dly, The Pursuer offered to prove that the Defender put in his own Nephew to be Taverner, after he Married the Woman. 3dly, The ground in Law that the Pursuer insists on against the Husband is, in quantum lucratus est, by his Intromission with the Wine, and price thereof, and any thing that has been lost through his fault, is alike as he had been Profiter in the whole. The Defender answered, that he declined not to be liable, in so far as he was Profited, viz. for the price of the Wine Vented during the Marriage, which he was content to refer to the Pursuers Probation, how much was Vented then, but he could not be liable for what was Vented before the Marriage, though after the Proclamation, much less for what remained unsold after the Wife's Death; neither was he in any fault by not offering the Wine to the Pursuer, nor might he lawfully do the same, because the Marriage Dissolving within year and day, the property of the whole Wines returned to the Wife's Executors, and nearest of Kin; and the Husband had no interest therein, as he would have had if the Marriage had continued year and day; neither had the Merchant any right to the Wines, (the property whereof was in the Wife and her Executors) but had only a personal Obligation for the price; and therefore he could not deliver the Wine, nor meddle therewith, without vicious Intromission, so that he did the most exact Diligence by Inventaring, and Delivering the Keys to the Magistrates; so that there being ten piece of Wine then in the Cellar, the Defender could only be liable for so much of two Piece as the Pursuer should prove sold during the Marriage. The Pursuer answered, that the Defender having once intrometted and meddled with this parcel of Wine, he is in so far lucratus, and he can no more sever some Punsheons unspent from the rest, nor one part of a Punsheon Vented from the remainder: so that he can offer nothing back of the parcel, re non int●gra, nor can he allege that the whole ten Piece was of the Pursuers Wine, because the Pursuer offered to prove, that this Deceased Wife bought other Wine from other persons at that time; and it were against Law and Reason, to put the Merchand (who is a stranger) to prove what was Vented during the Marriage, and how much of the Pursuers Wine remained after the Marriage, for that was the Defenders part to inquire, and not the Pursuers part who is a stranger. The Lords found the Defender not liable for that part of the Wine Vented before the Marriage, nor yet for what remained unspent after the Wife's death, seeing he Inventared, and abstained: but they found the Husband obliged to prove both what was spent before the Marriage, and what of this Wine remained after the Marriage: If the Pursuer proved there was other Wines in the Cellar, and so found the Defender liable fo● the whole, except in so far as he proved was sold before the Marriage, and remained after the Wife's Death. The Daughters of Mr. James Mortoun Supplicant. November 26. 1668. THe Daughters and Heirs of Mr. james Mortoun, gave in a Supplication to the Lords, making mention that the Father being Infeft in an Annualrent, effeirand to the principal sum, due to him by the Lord Balcombie, they did thereafter obtain Decreet for the principal sum, and thereupon apprised the Property, wherein they stand Infeft, holden of the King: in which apprizing there is a Reservation expressed, but prejudice of the Infeftment of Annualrent, and now being desirous to be Infeft in the Annualrent, as Heirs to their Father, and that themselves were Superiors by the Infeftment on the apprizing, and conceived it not proper for them to Infeft themselves, did therefore desire the Lords to grant Warrant to direct Precepts forth of the Chancellary, for the King to Infeft them. The Lords having considered the case, and argued the matter amongst themselves, whether it were more secure and legal, that they should be Infeft by the King upon their Supplication; or that they as having Right to the Property by their Infeftment on the apprizing, should grant Precepts for Infefting themselves in the Annualrent, as Heirs to the Annualrenter: or whether their Infeftment in the Superiority would consolidat the Annualrent without Infeftment: The difficulty against the Kings Infefting of them was, that the King Infefts none but these that holds immediately of Him, or upon the disobedience of the immediate Superior, supplendo vices. To which it was answered, that the King may supply the place of the immediate Superior, either when he will not, or cannot Infeft his Vassal, and the Petitioners conceive that in this case they cannot: and both being extraordinary Remeeds, the Lords may do the same, and have done it in former Cases. The difficulty as to Infefting themselves was, that the Right of Property, and jus nobilius, did extinguish the Right of Annualrent; and yet the Right of Property may be Reduced, and then they would be necessitat to Defend themselves by the Annualrent; and therefore it is not an absolute Extinction, but in tali casu; and therefore they have reserved the same in the apprizing. The difficulty as to the third way was, that if the Right of Superiority should be Reduced, they should be without Infeftment at all. The Lords found that they might either Infeft themselves by their own Precept, or might get Precepts from the King, as was desired, periculo petentium, or they might make use of both together. Mr. Alexander Seaton contra George Seaton of Menzies. December 2. 1668. MR. Alexander Seaton, Heir and Executor to james Seaton his Brother, pursues George Seaton as Heir to his Father james Seaton, for making his Father's Tutor Accounts, as being Tutor to the Pursuers Brother, and for instructing that he was Tutor, produced several Writs Subscribed by him, as Tutor Testamentar. The Defender alleged: First, That the condescendence was not relevant to Instruct the Defenders Father Tutor, unless the Testament whereby he was nominat were produced; otherways his acknowledgement can only make him but Protutor, and so not liable for all omissions, and no sooner liable, then after the date of these Writs. 2dly, Albeit the Defenders Father had been Tutor, yet by the Writs produced, it is evident that he was but one of more Tutors; and therefore no Process against him, till they be all called. The Pursuer answered, that the acknowledgement to have been Tutor was sufficient against him, who Subscribed the same: and that there was no necessity to call all the rest, seeing the whole Tutors were liable in solidum, and as ordinarily parties bound conjunctly and severally, may be convened conjunctly or severally, so may Tutors, who as others may except upon the performance of other Tutors as well as their own; neither is the case of Tutors alike with Cautioners, who are not liable in solidum; for Tutors as they are liable conjunctly and severally for the whole Office, so are they conveenable conjunctly and severally for the same. The Lords Repelled the first alleadgance, and found the Writs produced instructed the Defenders Father Tutor, and not only Protutor; for if the Testament had been produced, showing other Tutors, so that the Acknowledger could not have been tutor testamentar, it would have made him but Protutor, but that not being, it instructed him Tutor. As to the other point, in respect the Tutor was dead, and his Heir only but convened, who could not know the Administration, the Lords would not sustain Process, till they were also called. Agnes Goodlat contra George Nairn. December 8. 1668. AGnes Goodlat as representing the umquhil Wife of George Nairn, pursues for the third of the Movables belonging to him the time of his Wife's Decease. It was alleged for the Husband, that before Division, the Heirship movable behoved to be drawn. It was answered, that there could be no Heirship of a man that was living, It was answered, that albeit there was no actual Heirship, yet the best of every kind was Heirship Movable, wherein the Wife had no Interest. Which the Lords sustained; and Ordained the Heirship to be first drawn. Earl of Argile contra George Stirling. December 9 1668. THe Earl of Argile having pursued George Stirling to Remove, he alleged Absolvitor, because he stood Infeft on an apprizing. It was Replied, that the apprizing and Infeftment could not defend him, because the Person from whom he apprised, being a Vassal of the Earl of Argiles, and his Right not being Confirmed by the King, the same could not exclude the Pursuer, the King's Donator, and the Appryzer could be in no better case than his Author. The Defender Duplyed, that he was in better case, because he being Infeft by the King before the Pursuers Gift, when the King had both Superiority and Property, it is equivalent to him, as if the King had Confirmed his Authors Right. It was answered, that Infeftments upon Appryzing that pass in Course, and are not noticed in Exchequer, cannot prejudge the King, and take away the benefit of the Gift, which must pass by a several Signature. Which the Lords found Relevant, and Repelled the Defense and Duply, and Discerned. Scot contra Aitoun. December 11. 1668. MR. james Aitoun having Disponed the Lands of grange, with the burden of 12000. Marks, to be paid to his Daughters. john Scot having Married one of the Daughters, in their Contract of Marriage, the Daughter Anna Aitoun Assigns her part of the 12000. Marks to her future Spouse, and in the same Contract he acknowledgeth the Receipt of the Money from Mr. Robert Aitoun the Debtor; and therefore, with consent of the said Anna, Discharges the said Mr. Robert by a Contract of the same Date, betwixt john Scot and Mr. Robert, relating the Contract of Marriage, but acknowledges there was no Sums paid for the Discharge contained in the said Contract, but that the Security contained in this Contract was granted therefore; and therefore he gives a new heritable Security to john Scot, the Marriage Dissolves within year and day, by the Death of the said Anna, without Children; she in her Testament names the said john Scot her Husband, her Executor and universal Legator. George Scot as Representing his Father, pursues Aitoun of Inchderne, as Representing his Father, for the Sum contained in the Contract, who alleged Absolvitor, because the Pursuers, and his Fathers Right flowing from the Marriage, and it Dissolving within year and day, his Right ceaseth, and farther alleged that all things were now in the same condition as before the Marriage, so that the Contract of Marriage was void, and the Discharge granted in the first Security was void; and the first Security being heritable, belongs to Anna's Executors, from whom the Defender has Right by Assignation. The Pursuer answered, that the Defense is no ways Relevant; because though the Marriage Dissolved within year and day, and that thereby the Tocher and Jointure became void; yet what was Acted in Relation to Mr. Robert Aitoun, who was a third Party, viz. the Discharge and Renunciation of the first Security stands valid as to him: for if the Lands burdened had been sold to any other, that burden being once Discharged and Renunced, could never affect them, so that whatever is in a Contract Matrimonial, Extrinsic and relating to third Parties is valid, and the acknowledgement of the Money contained in the Contract, is at lest acceptilatio, which extinguisheth the first Security in the same way, as if real payment had been made: in place of which payment standeth the new Security granted to the Husband, so that now there is neither Debitum nor Creditum betwixt Anna Aitoun and umquhil Mr. Robert Aitoun, or their Representatives: but by the Dissolution of the Marriage, the Husband and his Heirs becomes liable to pay the Tocher, but not to the Wife's Heirs, but to her Executors, for the Tocher being paid or satisfied, and the old Security taken away, the Husband's obligement to pay, is clearly movable, and so belongs to the Pursuer as Executor, and universal Legator to his Wife, and not to the Wife's Heirs, or the Defender who has Right from them. The Defender answered, that the Tocher never having been uplifted, but remaining in the same Debtors hands as before the Marriage, omnia redeunt in pristinum statum, and the Discharge granted to the Debtor in Contemplation of the Marriage, is also void; so that if the Husband had Died and the Wife Survived, if she had pursued Mr. Robert Aitoun upon the first Security, and if he had Defended upon the Discharge contained in the Contract of Marriage, he would have been Excluded by this Reply, that that Discharge being granted in Contemplation of the Marriage, is now void by the Dissolution thereof within year and day; especially seeing the Debt yet remains in the Debtors hand. 2dly. The Defender alleged that the Discharge, though it were valide, was not habilis modus, to extinguish the first Security, being a real Right. 3dly, That the new Security granted to the Husband being heritable, and the Husbands therein ceasing, it accresceth to the Wife, as if it had been granted to her, and so can only belong to the Defender, as having Right from her Heirs, and not to the Pursuer, as being her Executor. The Pursuer answered that the first Security was totally extinct by Acceptilation, and by the Discharge thereof granted to the Debtor in the Contract of Marriage; and though the Wife had Survived and pursued the Debtor, and he had excepted upon the Discharge, her Reply upon the Dissolution of the Marriage would not have been Sustained to annul the Discharge; because whatever might have been done, if the Debtor could pretend no Damnage or Interest▪ Yet where the Debtor had granted a new Security to the Husband, which could never be taken away without the Discharge, and Renunciation of the Husband's Heirs, the Debtor could never be Discerned to pay the Wife, so long as the Security to the Husband stood: which Security could never accresce to the Wife, at least could never so accresce, as to make it an heritable Security to the Wife, but she could only have Right of Repetition against the Husband: And the question being here concerning the changing of the condition of a Sum from heritable to Movable, as a Requisition or Charge during the Marriage would have made the Sum Movable, multo magis, an Innovation and Acceptilation by a Discharge and new Security: And whereas it was alleged that the Discharge was not habilis modus. It was answered that this Sum not being secured by an Infeftment of Annualrent or Wodset, but only by a Provision, burdening another Infeftment of Property with the Sum, there needed no Resignation but the Discharge and Renunciation is sufficient. The Lords found the first Security to be wholly taken away by the Discharge contained in the Contract of Marriage, which they found valid as being granted to a third Party, notwithstanding of the Dissolution of the Marriage; and therefore found it to belong to the Husband, as having Right to the new Security, and as Executor to his Wife, and not to the Defender as having Right from the Heirs. Marry Winrham contra Mr. james Eleis. December 15. 1668. JAmes Murray of Deuchar having Married his Daughter to james Eleis of Stenopmil●, leaves to the seven Sons of the Marriage beside the Heir, 7000. Marks, and the Portion of the Deceasing to accresce to the Surviving; which Sum was uplifted by james Eleis who in his Testament nominats his eldest Son and Heir, his Executor and universal Legator, and ordains him to pay all his Debts out of the first end of his Movables, and then leaves 9000. Marks to Patrick his second Son, in satisfaction of all that he might succeed to by the Decease of the Testator his Father: Margaret Winrham, Relict and Executrix Creditrix to her Husband, obtained a Decreet before the Commissars, against Mr. james Eleis, who Suspends on this Reason, that Patrick's Legacy of 9000. Marks, being in full satisfaction of all he could demand by his Father's Death, must be understood in Satisfaction of the said Legacy, left by james Murray, which being lifted by james Eleis the Testator, and so becomes his Debt, debtor non praesumitur donare. 2dly, The Commissars Decreet is most unjust, in Decerning Annualrent where there was none due by Paction, the Sum being but a Legacy which never bears Annualrent. The Charger answered to the first, that the Brokard debtor non praesumitur donare, holds not in many cases, especially in Provisions of Children by their Fathers, who are obliged jure naturae & ex pletate pate●na, to provide them. And in this Testament, the Executor is appointed to pay all the Debts without any exception of this or any other, and the Testator had a plentiful Estate, it can no ways be thought that both the Legacy and this Sum in question, was too great a Portion to his second Son; as for the Annualrent, the Father being Tutor, and lawful Administrator to his Son, aught to have employed it profitably, and no doubt did, being a most provident man. It was answered, that the Son never having insisted for this Sum, nor having ever demanded Annualrent during his Father's Life. It is an evidence he acquiesced to his Father's Provision, and cannot seek Annualrent against his Father's Executors, his Father having Alimented him, neither is he liable for that rigour that other Tutors are. The Lords Repelled the Reasons as to the principal Sum, and found that the Father's Legacy was not in satisfaction of the Grandfather's Legacy; but found no Annualrent due, but Suspended the Letters simpliciter as to Annualrent. Sir Alexander Frazer contra Alexander Keith. December 16. 1668. SIr Alexander Frazer Doctor of medicine having purchased the Lands of M●ekelty from Andrew Frazer, who had apprised the same from Alexander Keith, pursues a Declarator of the expiring of the apprizing, and of his Right of the Lands thereby. It was alleged for Alexander Keith, that he had Depending Actions of Reduction against the Grounds of the apprizing, and thereupon alleged, that the said's Sums were satisfied before the apprizing, at least by the Pursuer or his Author's Intromissions with the Rents of the apprised Lands within ten years after the Deducing thereof: During which time the Legal was unexpired by the late Act betwixt Debtor and Creditor, whereby the Legal of Appryzing, led since 1652. are prorogat for three years. And as to the first point, he alleged that the ground of the apprizing being a minute of Alienation betwixt the said Alexander Keith and Andrew Frazer, whereby Andrew Dispones the Lands of Miekeltie and Stranduff to the Defender, the Tenor of which minute is, that the said Andrew obliges himself to Infeft and Secure the said Alexander in the said Lands, and to purge all Incumberances thereupon; and that the price shall not be payable till the said Alexander be put in Possession. There is also a Commission therein granted to the Defender, to purchase two expired Appryzing, and to satisfy any other Incumberances, and to Serve the said Andrew Heir to Thomas Frazer his Father, and to obtain the said Andrew Infeft as Heir to his Father, and likewise the Defender himself in the Lands; so that the Right the Disponer had, being only a back Bond granted by Frazer to Staniwood, thereafter Lord Frazer, by which he obliged himself, to Denude himself of the Lands of Mickeltie, in favours of the said Andrew Disponer: Which back Bond was apprised by the two expired Appryzing, but could not reach the Lands of Stranduff, because Staniwood was not Infeft therein, nor did the back Bond bear the same, and therefore the Defender was necessitat to purchase the Right of a third apprizing, led at the Instance of Craigivar against Andrew Frazer the Disponer, as lawfully Charged to Enter Heir to Thomas Frazer his Father, who died last Infeft in the Lands of Stranduff, and which would have excluded any Right that the Defender had from Andrew Frazer, especially seeing the Sum on which Craigivars apprizing proceeded, was a Debt due by the said Thomas Frazer to William Frazer, which William Frazer raised a Pursuit thereupon, against the said Andrew Frazer, as Representing Thomas his Father, and raised Inhibition upon a Dependence; which Inhibition is Execute and Registrate against Andrew Frazer, before he Disponed the Lands: after which Dependence, the matter being referred to Arbiters, they Discerned Andrew Frazer to pay to the said William Frazer two thousand marks out of the first and readiest of the price of Miekeltie, due by the Defender Alexander Keith, or out of any other Goods or Sums belonging to the said Andrew: so that the Decreet Arbitral upon the Submission being in the same Terms, was equivalent to an Assignation or a Precept; and the Defender Alexander Keith satisfying that Sum, it is in effect payment of so much of the price, and Craigivars apprizing proceeding on that same Sum, it was most necessary for the Defender to Acquire that apprizing, as proceeding upon a Right, whereupon Inhibition was used before the Minute, and upon a Decreet Arbitral, in effect Assigning William Frazer to so much of the Sum, due by Alexander Keith. The Pursuer answered, that the Defenders alleadgence ought to be Repelled; because the Acquiring of Craigivars apprizing was altogether needless, and no way warranted by the Minute, and so cannot exhaust the price, because that apprizing was led 10. years after the Minute, and the Defender having accepted a Commission to do all things necessary for Establishing of his own Right, he ought to have Served the Disponer Heir to his Father, and to have Infeft him in Stranduff▪ and to have Infeft himself upon the Disponers' Resignation: Or if he had found that the Lands were Disponed to Frazer of Staniwood upon Trust, he ought to have procured the same, to have been Established in his Person, as coming in the place of Andrew Frazer, to whose behoof the Trust was, which would for ever have Excluded Craigivars apprizing, being long posterior to the Defenders Commission contained in the Minute; so that it was his own fault, that he suffered another to Appryze: neither could the Inhibition have prejudged him, though prior to the Minute, in respect it was upon a Dependence, upon which, no Decreet in favours of the Inhibiter, could ever follow, the Cause being Extinct by Transaction and Decreet Arbitral; neither is there any Process Extant, neither is the Decreet Arbitral equivalent to an Assignation and Precept, because it doth not Decern Andrew Frazer to Assign the Sum due by the Defender, nor doth it declare that that Sum shall belong to him, but only Decerns Andrew Frazer to pay out of Keiths' Sum, or any other; so that thereupon no Action could have been effectual against Keith, to pay the Sum, but only against Frazer himself. The Defender answered, that albeit no Sentence of a Judge proceeded upon the Dependence, the Sentence of the Arbiters being in eadem causa, was equivalent: and whereas it is alleged, that the Defender had a Commission to perfect his own Security by the price left in his hand. It was answered, that the Commission being for his own behoof, and for his own Security, he might make use of it, or not make use of it as he pleased: especially seeing the Disponer was obliged to perfect the Defenders Security. 2dly, In the Minute there was no Procuratory of Resignation, neither were the old Evidents Delivered to the Defender; so that he could neither obtain Frazer to be Infeft, much less himself upon Frazers' Resignation, wanting a Procuratory. The Pursuer answered, that the Commission being a Mandate accepted by the Defender, did ex natura mandati, bind the Accepter to do Diligence; neither is it to his own behoof, but was also to the Disponers behoove, that his obligements might be fulfilled, and his price not stopped: and although the Minute want a Procuratory of Resignation, that is no way Relevant: for if the Defender had required a Procuratory of Resignation from the Disponer, or had required the Writs to instruct the Service, being in the Disponers' hand, and had been refused of either, he had been in no fault: but without any Diligence, to suffer another apprizing to be led ten years after his Commission, and now having taken Right to the apprizing himself, he cannot therewith Exhaust the price, especially against this singular Successor, having acquired bona fide, after a Decreet of Suspension in foro contradictorio, when the Defender had Right to the said third apprizing, and alleged nothing thereupon. The Defender answered, that he cannot be Excluded from his Defense by the Decreet of Suspension, as being competent and omitted the time of that Decreet, because (Competent) is only Relevant against Decreets in ordinary Actions: but neither in Reason nor Custom is the same Relevant against Decreets of Suspension, there being this evident difference, that in Decreets of Suspension the Reasons must be instantly verified: but in ordinary Actions, there are Terms assigned for proving Defences, and so it hath ever been practised by the Lords. The Pursuer answered, albeit it was anciently the Custom to admit Competent, and omitted only against Decreets upon ordinary Actions: Yet by an Act of Sederunt in Anno 1648. or 1649. the same was extended to Decreets of Suspension; and albeit through neglect of the Clerks, the Act hath not been Booked: The Session being interrupted by the War shortly thereafter ensuing, yet it is notorly known, and was in practice Anno 1653. when the Decreet was obtained against this Defender, whereupon the apprizing proceeds, and that practice was both just and necessary; for if Decreets might be Suspended as oft as the Suspender can produce another Writ, the most solemn Sentences should be made Insignificant; for the ground of Excluding things Competent, and omitted, is not only that public Sentences upon compearance, are as valid as Transactions, which upon no pretence can be Rescinded, that Pleas be not perpetual: but also because they are omitted, dolo & animo protrahendi litem, which is ever presumed, unless another Cause be assigned, wherefore they were omitted as, noviter veniens ad notitiam, which is Sustained, even as to Decreets in ordinar Actions: and if in no case competent and omitted be allowed in Suspensions, we shall have no more Decreets in ordinar Actions; but the Defenders will still be absent, and will Suspend as oft as they can find different Grounds, as if of one Sum, one have twenty or thirty several Receipts, he will raise as many subsequent Suspensions, which will at least serve for as many Sessions; and though it should be alleged quod dolo omisit, it would not be Relevant: so that if the Suspender can purge his Fraud▪ either as not knowing of the Writ, whereon he hath again Suspended, or as not then having it presently in his power to instruct it, would be sufficient, which clears the difference betwixt Decreets of Suspension, and other Decreets, to operat no further than that in Suspensions, the Fraud is purged, by showing that the Writ was not ad manum, which is not so in ordinar Actions, where Terms would have been assigned to get the Writ: and albeit the Lords might by modifying great Expenses bar the multitudes of Suspensions, they could hardly do it justly, if of the Law it were no fault; and it is known, the Lords are neither in use of, nor have time for such modifications. The Lords superseded to give answer as to this Point, till the Compt proceeded as to the Particulars, but the Lords had no respect to the alleadgance upon the Inhibition, seeing no Decreet followed, nor upon the Decreet Arbitral, which they found not Equivalent to an Assignation or Precept: but the Lords found the Commission contained in the minute, not to oblige the Defender, as to any Diligence; and therefore found, that as to that Point, he might acquire the third apprizing, which would have excluded him, albeit he might have prevented it by Diligence. Mr. Robert Swintoun contra john Brown. December 18. 1668. MArgaret Adinstoun being Infeft in Liferent, in certain Roods of Land near Hadingtoun, she and her second Husband grants a Tack to john Brown thereof, for certain years, and thereafter till he were paid of 400. marks, owing to him by the Husband, after that Husband's Death, she being Married to a third Husband, there is a Decreet of Removing purchased at her and that Husband's Instance, against john Brown, but the Husband did not proceed to obtain Possession by virtue thereof, but brevi manu Ejected Brown; whereupon Brown obtained a Decreet of Re-possession: now the said Margaret Adinstoun having assigned the Decreet of Removing to Mr. Robert Swintown, he Charges john Brown to Remove, who Suspends on this Reason, that he having obtained Decreet of Re-possession, after the Decreet of Removing, upon the Husband's violence, cannot now be Removed, without a new Warning. The Charger answered, that the Decreet of Re-possession, bearing to be ay and while this Suspender was legally Removed, and that in respect he had been put out Summarily▪ and not by the preceding Decreet of Removing; which having now taken effect, he being in Possession, the Charger may very well Insist, that he may now legally Remove, by virtue of the Decreet of Removing. The Lords Repelled this Reason, in respect of the answer, and found no need of a new Warning. The Suspender further alleged that he cannot Remove, because he bruiks by virtue of a Tack granted by Margaret Adinstoun and her second Husband. The Charger answered: First, That the Tack being only for four years specially, and an obligement not to Remove the Tennent while the four hundred Marks were paid, which is not a Tack, but a personal obligement, which cannot defend the Suspender against Mr. Robert Swintoun, the singular Successor. 2dly, The Tack is null, being Subscribed but by one Nottar. The Suspender answered, that a Right of Liferent not being Transmissible by Infeftment, but only by Assignation, the assignee is in no better case nor the Cedent, except as to the Probation by the Cedents Oath. 3dly, The Tack is Ratified judicially by the Wife, in the Court of Northberwick, which is more nor the concourse of any Nottar. 4ly, If need beiss, it's offered to be proven by the Wife's Oath, that the Subscription was truly done by the Nottar, at her command. The Charger answered, that the judicial Ratification cannot supply the other Nottar; because the same Nottar, who is Nottar in the Tack, as also Nottar in the judicial Ratification, which is but done in a Baron Court: So it is but assertio ejusdem notarij, no stronger nor it was, neither can it be supplied by Margaret Ad●●stouns Oath, de veritate facti; because her Oath cannot be received in prejudice of her assignee: and though herself were Charger, the Law requiring two Not●ars, till both Subscribe, the Writ is an unsubscribed Writ; and in all matters of this nature, parties may resile before Subscription. The Lords found the Tack valid against the Wife, Subscriber thereof, and her assigney, ay and while the sum thereof were paid: but found the Tack was thursdays, as being but by one Nottar, notwithstanding of the judicial Ratification being by the same Nottar; and found that the Cedents Oath could not be taken in prejudice of the assignee, to astruct the verity of the Subscription, unless the Assignation had been gratuitous, or the matter had been litigious before the same: In which case they found that there was no place to Resile after the Subscription of the first Nottar, the verity and warrant of the Subscription being proven by the said Margaret's Oath. The Suspender further alleged, that he could not Remove, because the Liferenter being year and day at the Horn, he had a Gift of her Liferent Escheat, and thereby had right to possess her Liferent-Land. The Charger answered non relevat, because the Gift was not declared: 2dly, It could not be declared, because it proceeded upon a Horning, against a Wife clad with a Husband, who being sub potestate viri, cannot be Contumacious, or Denunced Rebel thereupon. The Suspender answered, that he needed no Declarator himself, being in possession of the only Right, to which the Declarator could reach. 3dly, The Horning, albeit against a Wife, was valid unless it had been upon a Debt contracted during the Marriage; but this Horning proceeding upon a Decreet against a Wife as Executrix and vicious Intromissatrix with her Husband's Goods, a Horning upon her own Fact or Fault was always effectual. The Lords would not sustain the Gift without a Declarator, and superseded any Extract at the Chargers Instance, till a day, betwixt and which he might insist in his Declarator, and superseded till that time to give answer, in relation to the Horning, because the King's Officers behoved to be called. Mr. Alexander Seaton contra Menzies. December 19 1668. MR. Alexander Seaton as Executor to his Brother. Pitmedden pursues Seaton of Menzies as Representing his Father, who was one of the Pursuers Brothers Tutors, for his Father's Intromission with the Pupils Means, who alleged Absolvitor, because the Pupil after his Pupillarity, had granted a Discharge to one of the Co-tutors, which did extinguish the whole Debt of that Co-tutor, and consequently of all the rest, they being all correi delendi▪ liable by one individual Obligation, which cannot be Discharged as to one, and stand as to all the rest; for albeit pactum de non petendo, may be granted to one, and not be profitable to the rest, a simple Discharge, which dissolveth the Obligation of the Bond, must be profitable to all. The Lords Repelled this Defense, unless the Discharge had born payment, or satisfaction given, and in tantum, they found it would be Relevant, but not a simple Discharge, which could only be Relevant in so far as they by this Tutor would be excluded from the Co-tutors bearing a share with this Tutor, in omissis & male administratis; there being nothing here but this Tutors own proper Intromission, now insisted for. The Lords Repelled the Defense simply. Margaret Mckenzie contra robertson's. December 23. 1668. MArgaret Mckenzie pursues the Executors of her Husband, to pay her share of the Movables, who alleged Absolvitor, because there was as much Debt as would exhaust the whole Movables. It was answered, non relevat, unless it were alleged that the Executors had paid the Debt; for the Debts being yet due, it is j●s tertij, for them to allege thereupon: neither can this Pursuer propone alleadgances of payment, Compensation, or any other, or the Defenders Reply upon the Debts belonging to third Parties, unless they were pursuing themselves; but the Pursuer is content to find Caution to repeat her share, in case they were Distressed. The Lords Repelled the Defense, but prejudice to the Executor, to Suspend upon double Poinding, calling the Creditors. It was further alleged for the Defenders, that they must have allowance of Sums, bearing Annualrent since 1641. It was answered, that no such Sums can burden the Relict, her part, because by the Act of Parliament, the Relict has no share of such Sums, if they were due to the Defunct; and therefore a pari, she cannot be burdened with such Sums, being due by the Defunct. The Defenders answered, that the Act of Parliament excludes Relics from such Sums as bear Annualrent, being due to their Husbands, but doth not bear, that they shall be free of such Sums due by their Husbands: and Statutes being stricti juris, the Lords cannot extend them beyond their Sense to like cases. The Pursuer answered, that the Lords always did, and might Explain, and Extend Acts of Parliament to Cases employed, and consequent, albeit not verbatim expressed: and as to this Act of Parliament, it bears expressly, that all such Bonds shall remain in their condition as they were before the Act of Parliament 1641. quoad fiscum & relictam; before which, the Bonds bearing Annualrent, could not have burdened the Relict: for the word such Bonds, may not only be extended to Bonds due to Defuncts, but to Bonds due by Defuncts. The Lords Repelled also this Defense, and found the Relics part not to be burdened with any Bonds due by her Husband, bearing Annualrent, unless they had become Movable by a Charge, or that the Term of payment of the Annualrent was not come at the Defuncts death. Smith contra Muire. Eodem die. JEan Smith having pursued Margaret Muire as vicious Intromissatrix with the Goods of George Smith her Husband, to pay the sum of 110. pounds due by Bond, by the said George to this Pursuer; his Sister obtained Decreet thereupon, and apprised the Liferent of the said Margaret Muire, who Suspended, and raised Reduction on this Ground, that she could not be liable as vicious Intromissatrix, because she possessed her Husband's Movables by a Title, in so far as by her Contract of Marriage she was provided to all the Goods and Gear acquired during the Marriage, for her Liferent use, and so she could only be liable for making forthcoming the true value after her Death. The Charger answered: First, That there could be no Liferent of Movables, quae usu consumuntur, and all Liferents of usus fructus must be saluâ rei substantiâ. 2dly, Though a Liferent could consist in Movables; yet the meaning of such a Clause, of all Movables acquired during the Marriage, must be understood the free Movables, deducing Movable Debt; and cannot be understood to exclude lawful Creditors. The Lords found the Clause to be understood only of free Gear, and not to exclude the Pursuers Debt; but found it a sufficient ground to free the Suspender from vicious Intromission, and to Retrench the Decreet to the true value. Sir john Weems contra Forbes of Toch●n. january 2. 1669. SIr john Weems having Charged Tochon for Maintenance, due in Anno 1648. or 1650. conform to Act of Parliament, and Commission granted to him, and Decreet of the Lords. Tochon Suspends on this Reason, that singular Successors are free by the Act, and he is a singular Successor by apprizing. It was answered, that the exception of the Act was only in favours of singular Successors, who had bought the Lands, which cannot be extended to Appryzers, who oftimes have the Lands for far less than the true price▪ The Lords found the Act not to extend to Appryzers, unless the sums were a competent price for the Land apprised; and therefore found the Letters orderly proceeded. Isobel and Margaret Simes contra Marrion Brown. january 5. 1669. BY Contract of Marriage betwixt umquhil Thomas Sim and Marion Brown, john Flowan Marions Master, is obliged to pay 300. Marks of Tocher, and Thomas Sim is obliged to employ the said 300. Marks, and 200. Marks further for the said Marion, her Liferent use: the said Thomas having two Daughters, Isobel and Margaret Sims, he lends a sum of 400. Marks to Thomas Brown, and takes the Bond on these Terms, to be paid to him and the said Marion Brown, the longest liver of them two in Liferent, and after their Decease, to Margaret and Isobel Sims: The said Isobel and Margaret having pursued the said Marion before the Commissars, for Delivery of this Bond, as belonging to them after their Father's Death. The Commissars Assoilzied the said Marion from Delivery of the Bond, and found it did belong to the said Marion herself, not only as to the Annualrent, but as to the Stock, because her Husband having no other Means but this Bond, and not having fulfilled her Contract, she had Confirmed herself Executrix Creditrix in this sum, and behoved to Exclude her Husbands two Daughters of a former Marriage, who were provided, and Forisfamiliat before. Of this absolvitor the Daughters raised Reduction on this Reason, that this Sum could not be Confirmed, not being in bonis defuncti, the Father being but Liferenter, and the Daughter's Feears, and though they were but as heirs substitute, they exclude Executors, and need no Confirmation. 2dly, The Husband being but obliged to Employ this Tocher, and 200. marks more, the Pursuer must instruct that the Tocher was paid. 3dly, The Wife intrometted with as much of her Husband's Goods as would satisfy her Provision. It was answered, that the Wife not being obliged for her Tocher▪ but another Party who was solvendo, and neither being obliged, nor in capacity to pursue, therefore could not now after so long a time, be put to prove that the Tocher was paid; and for her Intromission she had Confirmed and made Faith, and the Pursuers might take a dative ad omissa, if they pleased, but could not, hoc ordine, Reduce or stop her Decreet upon compearance. The Lords found that albeit in Form the Bond should have been Reduced, as being done in fraudem of the Wife, as being a Creditor, and thereafter▪ Confirmed; yet now the matter being before the Lords, and the Parties poor, they found the Husband's Substitution of two provided Daughters by a former Marriage null, as to the Wife's provision by the Act of Parliament 1621. without necessity of Reduction, the matter being but a personal Right, and found the Wife not obliged to instruct the Tocher paid, and therefore assoilzied from the Reduction, but prejudice to the Pursuers to Confirm, a dative ad omissa. William Zeoman contra Mr. Patrick Oliphant and Dam Giels Moncrief. Eodem die. IN a Compt and Reckoning betwixt these Parties, anent the satisfaction of an apprizing, the Auditor, in respect that Mr. Patrick Oliphant and Dam Giels, Moncrief, were Contumacious and compeared not, did Decern conform to William Zeomans Summons, finding the Sum satisfied, and ordained them to Remove; whereupon William Zeoman obtained Possession, and having been several years in Possession, Mr. Patrick Oliphant obtained himself and the said Dam Giels to be Reponed against the said Decreet for his Contumacy, and a Writer to the Signet past Letters of Possession in his favours, against William Zeoman, but without a Warrant from the Lords, which were found null, and this Writer Deposed, but Mr. Patrick having attained Possession by these Letters, William Zeoman insists against him as an Intruder to quite the Possession. It was alleged for Mr. Patrick, that William having obtained Possession unwarrantably by Decreet, upon his pretended Contumacy, and he being now restored there against, he is in statu quo prius, before that Decreet, at which time he was in lawful peaceable Possession, which only should stand, and neither of the unwarrantable Possessions be regarded. It was answered that William Zeomans' Possession was by virtue of a Decreet then standing, autore pretore, and so was not vicious, but Mr Patrick's was without Warrant of the Lords, and so was most vicious. It was answered that Mr. Patrick was instantly content to Debate his Right, & frustra petitur quod mox est restituendum. It was answered that spoliatus ante omnia est restit●endus, and is not obliged to Dispute any Right, till first he be Restored. Which the Lords Sustained, and ordained William Zeoman instantly to be Restored to the Possession. My Lord Balmerino Supplicant. january 7. 1669. MY Lord gave in a Bill to the Lords, Representing that his Uncle was Dead, and that he is nearest Heir-male to him, in whose favours his Estate is provided; and therefore desired that Commission might be granted to certain Persons in the Country, to Inventar, Seal, and Secure his Charter Chest, and to make patent Doors in his Houses, Coffers, and Cabins, for that effect, and to take my Lady, his Relics Oath, where the Evidents were, to the effect foresaid: Compearance being made for my Lady, desiring a sight of the Bill till the next day, and alleging that it was notour to the Lords, that my Lady had a Disposition to the whole Estate▪ whereupon Resignation had passed in Exchequer, and that the Evidents ought to be left open, to the effect my Lady may instruct her Charter, conform to the Disposition. The Lords refused to give up the Bill, it being their ordinar Course to grant such Commissions, without calling or hearing Parties, and that a short delay might prevent the effect of the Commission: and therefore granted Commission to certain Noblemen and Gentlemen, or any one of them to Inventar, Seal, and Secure the Evidents, and to open Doors, Coffers, and Cabinets for that effect; but refused to give Warrant to take my Lady's Oath. Captain Newman contra Tenants of Whitehil, and Mr. john Prestoun. january 8. 1669. CAptain Newman having apprised the Lands of Whitehil from Prestoun of Craigmiller his Debtor, and being thereupon Infeft, pursues the Tenants for Mails and Duties. Compearance is made for Mr. john Prestoun, who produces a Disposition from Craigmiller his Brother, of the Baronies of Craigmiller, Prestoun and Whitehil: Which Disposition, relates this Debt of Captain newman's, and many other Debts, and for satisfaction thereof Dispones these Lands to Mr. john, Reserving the Disponers and his Ladies Liferent, containing a Reversion upon ten marks, and containing a provision, that it should be leisom to Craigmiller, during his Life, and after his Decease to Mr. john to pay any of the Creditors contained in the Disposition they pleased, without contributing the price proportionally to the rest of the Creditors: and also produces a Renunciation by Craigmiller, whereby he Renunces the Reversion and the Liferents in favours of Mr. john, and also his own power of preference of the Creditors, and Mr. john his Infeftment upon the Disposition, whereupon he alleged that he ought to be preferred to the Mails and Duties, because he stands publicly Infeft, by virtue of the said Disposition, before any Infeftment in the Person of the Pursuer. It was answered for the Pursuer, that the Infeftment produced cannot Exclude him, because it is expressly granted for satisfying of the Sum, whereupon his Infeftment proceeds. It was answered for Mr. john Prestoun that he having a power to prefer any Creditor he pleased, he paid other Creditors to the value of the Estate, whereby Newman is excluded. It was answered for Newman, that this Disposition was fraudulent and fimulat, in prejudice of lawful Creditors, whereof he has Reduction upon the Act of Parliament 1621. as being granted by a Brother to another, with a power of preference of Creditors at the Purchasers option: which Clause is altogether null; especially as to the preferences done, since lawful Diligence was used by this Pursuer, by Horning, Inhibition, Arrestment, and apprizing: and as no Debtor can so prefer himself, so neither can he give such a power to any other: and therefore the Pursuer ought to be preferred to all the Creditors, conform to his Diligence. It was answered for Mr. john Prestoun, that there being no Diligences done before the Disposition by any Creditor, Craigmiller might Dispone, being for an onerous Cause, as he pleased, and might prefer one Creditor to another. 2dly, Albeit this power of preference were not simply to be allowed after Diligence done by Creditors to prefer others to them: Yet it ought to be Sustained, in so far as Craigmiller might lawfully have done, viz. to prefer Mr. john for the Sums due to himself, and for his relief of such Sums as he was Cautioner in. The Pursuer answered, that such a Disposition was not made, nor doth this Disposition any way relate to Mr. john's Sum, and his Relief, but generally and equally to all, and there is no difference but the unwarrantable power of preference, which can have no effect after Diligence done. The Lords found the power of preference not to be Sustained as to any other Debts, then to such as were due to Mr. john himself, and for which he was Cautioner before the Disposition; and found as to these, that the power of preference was lawful and valide, and was equivalent to this Clause, with power to Mr. john to satisfy himself, and those to whom he was Cautioner, primo loco. Wallace of Galrigs contra Mckernel. january 9 1669. UMquhil Wallac● of Galrigs being alleged to have given a Seasine propriis manibus, to his second Wife of two Chalders of Victual. The Lords Sustained the Seasine without any other Adminicle. But that the Wife had quite her former Liferent by a former Husband, in favours of Galrigs, whereupon Galrigs offered to improve the Seasine by the Witnesses insert, which being four, two Deponed positively that they were never Witnesses to a Seasine given by Galrigs to his Wife: and the third Deponed, that he remembered not that he was Witness: the fourth Deponed, that he was Witness, but said that this Seasine was in Summer, whereas it bore to be in Winter: the Nottar abode by the Seasine, but was not Examined. The Lords found the Seasine improven, but would not Examine the Nottar, nor any other Person, mainly in consideration that the Seasine was pr●priis manibus, without any other Adminicle; otherways the Nottar and one Witness affirming, the Lords would have Examined the Nottar or any other persons or Evidences for astructing the verity of the Seasine. George Hume contra Seaton of Menzies. january 13. 1669. GEorge Hume as assignee by the Earl of Wintoun to a Bond granted to the Earls Factor, for his behoof, having Charged thereupon. The Creditor Suspends, in Discussing whereof, it was alleged for George Hu●●, that he ought to have Annualrent, because the Suspender by a missive Letter produced written to the Umquhil Earl of Wintoun, obliged him to pay Annualrent for the time by gone: and therefore aught to continue the same till payment. The Suspender answered, it contained nothing as to the Annualrents in time coming. The Lords found Annualrents due from the beginning, both before and after the Letter, though they exceeded the Principal Sum, seeing once Annualrent was promised for some Terms. Alexander Mckenzie of Pitglasse contra Ross of Auchinleck, january 14. 1669. ALexander Mckenzie having Right to two Compryzing of the Lands of Auchinleck, one in Anno 1644. and another in Anno 1647. which being alleged to have been satisfied within the Legals, and the matter referred to an Auditor who reported these Points to the Lords. First, Whether the Appryzer should Compt for the Mails and Duties, so as to impute the same to both Appryzing, as to years after the second apprizing, or to impute them wholly to the first apprizing during its Legal, and then to the second apprizing during its Legal. It was alleged for the Appryzer, that he having two Titles in his Person, it was free for him to impute his Possession to either of them, and yet he was so favourable, as not to crave his option, but to impute proportionally to both, albeit in Law, when Receipts are not specially as to one Cause, electio est Debitoris. 2dly, When any payment is made by a Debtor to his Creditor indefinitely, it is still imputed to the Annualrents in the first place, before it can satisfy any Stock, so that any satisfaction gotten by him, must first be imputed to the Annualrent of both the Sums, and then to the Stock of the first. It was alleged for Auchinleck, that the Intromission could only be attribute to the first apprizing. First, Because by that Right the Appryzer entered in Possession, and cannot invert his Possession to a third Parties prejudice. 2dly, The first apprizing est potior jure; for if the two Appryzing were in different Persons, he that had the second, could never attain Possession against the first. 3dly, In dubio solutio est imputanda in duriorem sortem, and therefore to the first apprizing, for if imputation be made to both, the first apprizing will not be satisfied within the Legal, and the Debtors Right will be taken away, which is most infavourable. 4thly, The Appryzer as he did not Possess by the second apprizing, so he could not, because the first apprizing carries the Right of Property, and the second carries only the Right of Reversion. The Lords found the Possession was only to be attribute to the first apprizing, and not to the second, while the first were satisfied. The next point was, that it was alleged the Appryzer had sold a part of the Lands within the Legal, and therefore the worth of these Lands ought to be allowed in satisfaction of the Sums. It was answered, that the Appryzer could not Dispone the Lands simply, but only his Right of apprizing, which would still be Redeemable from his assignee, as well as from himself. The Lords found that he was not Comptable for the whole value of the Lands Disponed, but for what Sums he actually Received for the Lands Disponed, to be proven scripto vel juramento. The next point was, as to the prices of the Victual, whether the Feres, or greatest prices were due. The Lords allowed the Debtor to prove the greatest Prices, and also to produce the Feres, reserving to themselves the modification; Next as to the Rental, the Appryzer desired a joint Probation, especially it being in the Highlands, where the Witnesses are suspect. The Lords would not grant a joint Probation, but ordained the Probation to be by Witnesses above exception. Hamiltoun contra Bain, january 15. 1669. UMquhile Agnes Anderson having Disponed all her Goods and Movables, to Bains Bairns of the first Marriage, and made Delivery thereof, conform to an Instrument produced; and having thereafter Married john Hamiltoun, he Ratified the former Deed done by his Wife in favours of her Bairns: she being now Dead, both Parties give in Supplications, desiring Possession of these Goods Disponed to the Bairns, they alleged upon the Mother's Disposition, Ratified by her second Husband. And the Husband alleging that it being but a fictitious Possession by an Instrument, he as Husband being Dominus bon●rum, is in the natural Possession, seeing his Wife's Liferent use was reserved, and cannot summarily be put therefrom, hoc ordine, upon a Supplication without Process. 2dly, If he were in a Process, he would exclude the Bairns, because the Disposition being made after his Contract of Marriage and Proclamation, no Deed of his Wives could then prejudge him; and as for his Ratification, he did it to satisfy his Wife's importunity, but being granted to a Wife during the Marriage, he may and does recall it. It was answered, that it was not a Donation to his Wife, but to his Wife's Children, which no Law makes Revockable. Which the Lords Sustained, and found the Husband could not recall his Ratification, not being in Favours of his Wife, but in Favours of her Children, at her desire. Earl of Athol contra Robertson of strowan, january 19 1669. MAster Walter Stuart as Parson of the Kirk of Blair in Attol, whereof Tillibairn was Patron, gave a Tack to Tillibairn's Brother of the whole Teinds of the Paroch; which Tack he (within a few days) Assigned to Tillibairn, the Patron himself. Tillibairn's Escheet and Liferent having fallen, the Viscount of Stormont obtained the Gift thereof, and as Donator, Assigned the Right of this Tack to the Earl of Attol, who now pursues Robertson of Strowan for the Teinds of his Lands, for many more nor 40. years, from the Date of the Tack. The Defender alleged, First, that the Tack is null, being Set for more nor three years, without consent of the Patron, contrair to the Act of Parliament, 1594. The Pursuer answered, that the alleadgeance was justertij to the Defender, and was only competent to the Pursuer, or some deriving Right from him, for the Defender being liable for his whole Teind, had no Interest to quarrel the Pursuers Tack. 2dly, Albeit the consent of the Patron be necessary, yet it is not necessary to be in the very Tack itself, but a subsequent consent is sufficient, and here the Patron has given a subsequent consent, in so far as within a few days after the granting of the Tack, he accepted an Assignation thereof himself, and did obtain a Decreet of prorogation of the same. The Defender answered, that the Patron's consent being a solemnity requisite in Law, behoved to be in the Tack itself, and not being then adhibit, the Tack of itself was null ab initi●, and a subsequent consent, not by subscription, but by acceptance, or homologation, was not sufficient, and the Defender had good interest to propone the nullity, not being founded super jure tertij, but simply exclusive juris agentis, as wanting the essential solemnities, and also because the Defender has paid the Minister the accustomed Teind-duty for all years bygone, and having his Discharge of the whole Teind-duty due by him eatenus he is in the Minister's place. The Lords found the Defender to have sufficient interest to allege the nullity upon the Discharges, but found the Patron's acceptance of a Right to the ●ack, a sufficient consent to validat the same, and that it required no consent expressly by subscription of the Tack. The Defender further alleged Absolvitor, because this Tack never having attained Possession, nor no action following thereupon, for more than 40. years it is prescribed and void, and so likewise is the Decreet of prorogation, being more than 40. years since. The Pursuer answered, that the Defender having no Right to his Teinds, had no interest to quarrel his Right. 2dly, That a Tack being but a Right to an annual Prestation, it is all one, as if a Right had been granted to every year a part, in which case 39 years would be entire, and the Pursuer insists for no further. The Defender answered, that prescription being a total extinction of the Right, and not a transmission thereof, by virtue of an other Right; It is not jus tertij to the Defender to allege the same, and to exclude any from troubling him, upon a null and prescribed Right, and he is liable only to the Minister, to whom he has made payment, and obtained his Discharge for bygones, and for time coming; likeas it is better to be in the hand of an Ecclesiastical Person, th●n in the hand of a powerful secular Person. To the second, that there is not here granted distinct Tacks, of several years, but one individual Tack for many years, all which years are expired; but it subsists only by the prorogation: and albeit it be true, that if the Tack had been once clad with Possession, and so become a real Right, the Defender would only have been fred of the Duties before forty years, but the very Tack itself being never clad with Possession, is singly expired and void. The Lords found the Defense Relevant, and competent to the Defender, to Liberat him of all bygones paid to the Minister, but not to exclude the Pursuer for time coming, in respect, that by the Decreet of Provision, and prorogation of the Tack, the benefice is no more a Parsonage, but the Minister is a Stipendiary, and is in Possession by virtue of a Modified Stipend, the Right of the Teinds remaining by the Tack, and prorogation forsaid in the Tacksman, and in his Successors. But because the Pursuer alleged Minority and Lesion, the Defender proponed a third Defense, viz. That he had made payment bona fide to the Minister, and had received a Discharge for his whole Teind duty, and could be liable for no further, for bygones, till his use of payment was interrupted by Citation, or Inhibition. The Pursuer answered, that any payment the Defender made, was but an inconsiderable Duty allocat out of his Teinds, by virtue of the 'samine Decreet of modification, and locality; and albeit the Minister had Discharged his whole Teind, yet as to the superplus, which is the Tacksmans' part, the Discharge was merely gratuitous, and was not upon payment made, and the Pursuer was willing to allow what he truly paid; the Defender answered, that in all Benefices and Tacks, use of payment importing a verbal Tack, is sufficient per tacitam relocationem, till it be interrupted, so that if the Minister had granted a Tack in Writ but for one year, and the Defender had continued in Possession per tacitam relocationem, he was bona fide Possessor, & f●cit fructus consumptos suos, even albeit the Minister had no Right, so his use of payment for so long a time must work the same effect, neither can it be made appear, that the Defender or his Predecessors paid more, than what they now pay. The Lords Sustained the Defense, and found the Defender only liable for use of payment, until Citation or Inhibition. Mr. George Johnstoun contra Sir Charles Erskin Lord Lion, Eodem die. UMquhile Richard Irwing having Died Infeft in the ten Mark Land of Knok-hill, his Son, had a Son, and four Daughters, his Son being his appearand Heir, and being Addebted a Sum to Mr. james Alexander, he Charged him to enter Heir in special to Richard his Grandfather, and Apprized the Lands from him, whereunto Sir Charles Erskin has now Right; the said Son being now Dead, and never Infeft, Mr. George johnstoun takes Right from the four Female grandchildren, and Serves them Heirs to their Grandfather, but before they were Infeft, there was an Infeftment, or Charge upon the Apprizing, at the instance of Mr. james Alexander, and in a former competition, Sir Charles was preferred upon Mr. james Alexander's Right, as denuding the Male Grandchild, appearand Heir for the time, in the same manner as if he had been Infeft; now Mr. George johnstoun upon the Females Right, raises a Declarator, to hear and see it found and declared, that Mr. james Alexander's Apprizing was satisfied, and extinct by Intromission, before the legal was expired. It was alleged that the Pursuers, as Heirs Served, and entered to Richard their Grandfather, had no interest to Redeem the Apprizing, led against Robert their Brother, unless they were also entered Heirs to their Brother, which Robert, if he were alive, might Redeem the Apprizing against himself, so that the legal Reversion being in his Person, cannot belong to his Grandfather's Heirs, but to his own Heirs, and as he, or his Heirs could only Redeem, so can they only declare the Apprizing to be satisfied by Intromission, neither can the Reversion belong to two, both to the Heirs of Robert, who was Charged to enter Heir, and to the Heirs of the Grandfather, who Died last Infeft. It was answered, that Robert never having in his Person any real Right, as never being Infeft, albeit fictione juris, the Act of Parliament gives the Creditors like Right upon his disobedience to enter, being Charged, as if he had entered, yet that is a mere passive Title, and could give no active Title to Robert, or any representing him, either to Redeem, or to call the Apprizer to an account, till they were entered Heirs to the person last Infeft; for albeit the Creditor Apprizer has a real Right, yet the disobedient appearand Heir has none; and albeit the Lords might suffer the disobedient appearand Heir, or his Heirs to Redeem the Apprizing, because the Apprizer had no interest to oppose the same, being satisfied, much less can the Apprizer now oppose the Pursuers, who being Infeft as Heirs to Richard, have the real Right of Fee in their Person, and consequently the Right of the Reversion of the Apprizing led against Richard's appearand Heir, which being a minor Right, is employed, and included in the Property. Which the Lords Sustained, and found that the Heirs of the person last Infeft, being Infeft, might Redeem, or declare against an Apprizer, who Apprized from an appearand Heir, lawfully Charged, albeit they were not of that appearand Heir. The Creditors of James Masson contra Lord Tarphichan, Eodem die. SEveral Englishmen Creditors to james Masson, who lately broke, being Infeft in several Annualrents, out of Lands of his, pursue Poinding of the Ground; compearance is made for the Lord Tarphichan Superior, and his Donator, to the Liferent Escheet of James Masson, who alleged that James Masson being Ribel year and day before these Infeftments of Annualrent, the Ground could not be Adjudged, but the profits behoved to belong to the Superior, and his Donator. It was answered, that the Superior, or Donator had no Interest by the Rebellion of James Masson, because before the Rebellion, James Masson was Denuded in favours of his Son, and he Received as Vassal, so that the Vassal for the time, not having fallen in Rebellion, the Superior can have no Liferent Escheat. The Superior answered, that the Creditors of Masson having been once Vassal, and as Vassal constituting their Annualrents, they could not object upon the Right of his Son, unless they had derived Right from his Son. 2dly, The Superior is also Creditor, and hath Reduced the Sons Right as fraudulent, in prejudice of him, a lawful Creditor. It was answered, that the Superiors Right, as a Creditor upon the Reduction, doth not simply annul the Son's Fee, neither doth it at all restore the Father again, because it being but a Reduction to a special effect, viz. that the Creditor may affect the Lands, by Apprizing upon his Debt, anterior to the Sons Infeftment, notwithstanding of his Infeftment, the Sons Fee stands, but burdened with that Apprizing, so that upon neither ground, the Superior can have the Right of a Liferent Escheat, of him who once was his Vassal, but was Denuded before Rebellion▪ and which is most competent to the Pursuers, as well as if the Superior had been Denuded, and another Superior Infeft, if he or his Donator had been pursuing for a Liferent, any person Infeft in the Land might well allege, that he had no Interest as Superior, being Denuded. The Lords found, that in neither case the Superior, or Donator, could have interest in the Liferent Escheat. Mr. John Hay contra the Town of Peebles, January 20. 1669. MAster John Hay the Clerk having pursued a Reduction, and Improbation, against the Town of Peebles, of all Right of Ascheils belonging to him in Property, containing also a Declarator of Property of the said's Lands of Ascheils, and that certain Hills lying towards the Town-lands of Peebles, are proper Part, and Pertinent of Ascheils: He insists in his Reduction and Improbation, for Certification, or at least, that the Defenders would take Terms to produce. The Defenders alleged no Certification, because they stand Infeft in these Hills in question, per expressum, and the Pursuer is not Infeft therein. The Pursuer answered, that he offered to prove, that they were proper Part, and Pertinent of the Lands of Ascheils, whereof he produces his Infeftment. The Defenders answered, that till the 'samine were proven, they were not obliged to take Terms to produce, or otherwise, upon this pretence of Part, and Pertinent, before the 'samine were instructed, any party might necessitate all his Neighbours, to make patent to him their Charter Chists. The Pursuer answered, that the Defenders ought to take a Term to produce, and that before Certification, at that Term he would prove Part, and Pertinent, and alleged the Practic in the Case of the Town of Sterling, observed by Dury, the 24. of june 1625. The Lords Sustained the Defense, and would not put the Defenders to take Terms, till the Lands in question were first proven to be Part, and Pertinent, and allowed the Pursuer to insist primo loco in this Declarator for that effect; and as to the Practic alleged, they found in that Case, the Defenders alleged upon no Right, whereas the Defenders propone here upon an express Infeftment. Laird Kilburny contra the Heirs of Tailzie of Kilburny, and Schaw of Greinock, Eodem die. UMquhile Sir john Crawford of Kilburny, having only two Daughters, the eldest Married to Blackhal, Dispones his Estate to Margaret the younger, and to the Heirs-male of her Body; which failing, to the eldest Heir Female, without division, throughout all the Succession; and failing the Issue of this Daughter, his eldest Daughter, and her Issue; and failing of these, jordanhil and Kilburny, their Issue, all which failing his own Heirs, and Assigneys whatsomever. In which Disposition there is a Clause, that the said Margaret, and the Heirs of Tailzie, should not alter the Tailzie, nor Dispone, or burden the Lands ' or contract Debts, whereby they might be Apprized, and carried from the Heirs of Tailzie; otherwise the Contraveeners should lose their Right ipso facto, and there should be place to the next Heir of Tailzie: but there is a Clause subjoined, that the said Margaret, and the Heirs of Tailzie might Sell, Dispone, and Wodset the Lands of Easter Greinock, and Carsburn, and might burden the same with Sums of Money, for paying, and satisfying of the Defuncts Debts. The said Margaret Crawford having Married the Earl of crawford's Son Patrick; they did Sell the Lands of Easter Crawford, and Carsburn, to Sir john Schaw of Greinock, at a Rate far above the ordinar Price, having expected a Bargain with the Town of Glasgow, for a Harbour there; but the Town having made another Bargain with Newwark: Greinock pursued Kilburny, either to annul the Minute, or fulfil the same, and to secure him, in relation to the Clause de non alienando; and to that effect, Kilburny raises a Declarator against the Heirs of Tailzie, to hear and see it found and Declared, that by the Right granted to the Lady by her Father, she might lawfully Sell the Lands of Easter Greinock, and Carsburn. The Heirs of Tailzie compeared not, but Greinock compeared, and was admitted for his Interest, which was, that the Process being for his security, he might propone all the Defences, which he thought competent to the Heirs of Tailzie, and alleged that the Libel was no ways Relevant, bearing a power to Sell simply, but that it ought to have been conform to the Clause in the Disposition, viz. to Sell, Wodset, or Burden, for payment of the Defuncts Debts, which did necessarily import, that no further could be Sold, than what was sufficient to pay the Debt, and therefore no Process, till the Libel were so ordered, and the Debts produced. The Pursuer answered, that he opponed the Clause, having two Members, one bearing with full power to Dispone the Lands of Easter Grienock, and Carsburn, and the other bearing to affect the same with Sums, for paying of the Defuncts Debts; which payment of the Defuncts Debts, was but the end, motive, and consideration for which the power was granted, but was no restriction, quality, or limitation of the power. 2dly, It did only relate to the second Member of the Clause, and not to the first Member, which bore with full power to Sell, and Wodset, etc. which full power, is directly opposite to a limited power. 3dly, Albeit the Pursuer were obliged to instruct the Debt, and apply the price for satisfying thereof, yet the Clause doth not limit him to Sell only so much as will be equivalent to the Debt, but he satisfying the Debt, more or less, hath acted conform to the Clause, which uses to be so expressed in Clauses of this nature, as that the Heirs of Tailzie may Dispone so much as will be sufficient for payment of the Debt, which not being expressed, these restrictive Clauses being against common Law, are strictissimi juris, and not to be extended beyond what the words expressly bears. 4thly, Albeit the Pursuer were obliged to instruct that there were Debt, which might be a price, yet he were not obliged to instruct that they would be equivalent to this price, but to such a price as were not a third part within the ordinar Rate, in which latitude, every Seller hath power, and the alienation cannot be quarrelled; and albeit that price would be more than the Debt, yet these Lands being two entire Tenements, which none would Buy by Parcels, the Pursuer could only be comptable to the Heirs of Tailzie for the superplus. The Defender answered, that he opponed the Clause, being one and copulative; and that these Lands being put per expressum in the Clause, de non alienando, It could not be thought that the immediate following Clause, would give the Lady as much power, as to these Lands, as if they had not been in the former Clause, but the intent to satisfy the Defuncts Debt, being the last words in the Clause, is relative to the whole Clause, and natively resolves into an Restriction, or Quality, not bearing that they night be the more able to pay the Debts, but for payment and satisfaction of the Debts. The Lords considering that Heirs of Tailzie were absent, and that as to them, the Interlocutor would be in absence, found it most just, and safe for both Parties to declare conform to the Clause, that the Alienation was valide for satisfying the Defuncts Debts, and found not that the Debts behoved to be equivalent to this price. The Creditors of John Pollock contra James Pollock his Son, January 21. 1669. THe Creditors of John Pollock having Adjudged his Tenement for their Debt, and James Pollock having gotten a Bond of 5000. Marks from his Father, payable after his Father's death, which was granted after he was Married, he did also Apprise thereupon within year and day of the Adjudication. The Adjudgers raise a Reduction of this Bond, and the Apprizing following thereupon, upon these Reasons; First, Because the Bond was granted for Love and Favour, and albeit it bear borrowed Money, yet the said james has acknowledged by his Oath, that it was for Love and Favour, and so being granted betwixt most conjunct Persons, after the contracting of their Debts, it is null by the Act of Parliament, 1621. The Defender alleged that the Reason was not Relevant as to such Debts as were not constitute by Writ, anterior to the Defenders Bond; and as to any constitute by Probation of Witnesses, for proving Bargains, Merchant Counts, and Furnishing, wherein the Probation, and Decreet are both after the Bond, they cannot be said to be anterior Debts, because they are not constitute till Sentence; and albeit the Sentence bear the Debt to have been contracted before this Bond, yet that cannot make them anterior Debts, because Writ cannot be taken away by Witnesses, proving an anterior Debt, which would be as effectual against the Writ, as if the payment thereof had been proven by Witnesses, and the time of Bargaining, or Furnishing, being a point in the Memory, and not falling under the Sense, no body would be secure who had Writ, but that Bargains, and Furniture might be proven anterior thereto. The Pursuer answered, that his Reason was most Relevant, and the constitution of the Debt is not by the Decreet, or Probation, but by the Bargain, and Receipt of the Goods, or Furniture, after which no posterior Deed of the Debtor, can prejudge the Creditors Furnishers; and albeit in many cases Witnesses prove not, and Witnesses are not admitted to prove, where Writ may, and uses to be interposed, yet where the Probation is competent, the Debt is as well proven thereby, for the time of contracting as it is by Writ, neither doth that ground, that Writ cannot be taken away by Witnesses, any way hinder, for the meaning hereof, is only that the Payment, or Discharge of that Writ, must be proven by Writ, and it were a far greater inconvenience, if after Bargain, and Furniture, any Writ granted by the Debtor, though without an Onerous Cause, should prejudge these Creditors. The Lords Sustained the Reason, and Repelled the Defense, and found Debts constitute by Witnesses to be effectual, from the time of contracting, and not from the time of Probation, or Sentence, to take away any posterior Deed of the Debtor, done without a Cause Onerous. The Pursuer insisted in a second Reason of Reduction, that albeit these Debts were posterior to this Bond, yet the 'samine aught to be Reduced, as being a fraudulent conveyance betwixt the Father and the Son, kept up, and latent in some of their Hands, without any thing following thereupon, to make it known and public, so that the Creditors having bona fide contracted with the Father, having a visible Estate, were deceived and defrauded by this latent Bond, if it were preferred to them. 2dly, This Bond bears only to be payable after the Father's Death, and so is but donatio mortis causa, and but a Legacy; or if it be inter vivos, it is much more fraudulent and latent. 3dly, Bonds of Provision, for Love and Favour granted to children, are accounted but as their legitime, still Revockable by the Father, and all Debts contracted by him are preferable to them. The Defender answered, that there was neither Law, Reason, nor Custom to evacuat, or exclude Bonds of Provision, granted by Parents ex pietate paterna, to their Children, upon account of their Father's posterior Debt, especially if the Bonds were Delivered, for there is no ground for any such thing by the Act of Parliament, 1621. which relates only to Deeds done after the Debt contracted, neither is there any sufficient ground of fraud, that the Bonds were not made public or known, there being no obligement upon Parties to publish the same, and Creditors have less means to know the Debts of other anterior Creditors, then of Children, having a just ground to suspect that they may be provided, and to inquire after the same, neither doth the delay of the Term of payment import, either fraud, or that the Bonds were donationes mortis causa. The Lords would not Sustatin the Reasons of Reduction upon the Act of Parliament, 1621. or upon the general ground, that posterior Debts were preferable to all Bonds of Provision, but ordained the Pursuer to condescend upon the particular ground of fraud in the Case in question. The Collector-general of the Taxation contra the Director of the Chancellery, january 22. 1669. THe Director of the Chancellery being Charged for the present Taxation, imposed in Anno 1665. by the Convention of Estates, Suspend on this Reason, that he is a Member of the College of Justice, which by the Act of Convention are exempted. It was answered, that the Members of the College of Justice were never further extended then to the Lords, Advocates, Clerks of Session, and the Writters to the Signet. It was answered, that as the Signet depends immediately, and chiefly upon the Lords of Session, and Writters thereto, are of the College of Justice, so the Chancellery depends in the same way upon the Lords, who issue Orders thereto from time to time, to give out Precepts direct to Superiors, or to bailiffs, Sheriffs for Infefting of Supplicants; and therefore the Director of the Chancellary, being Writer in that Office, must enjoy that Privilege, as well as the Writers to the Signet; for albeit the Director gives out Precepts and Brieves of Course, without the Lords Warrant, so do the Writers to the Signet, give out many Summons of course without Warrant. The Lords found the Director of the Chancellary to be a Member of the College of Justice, and therefore Suspended the Letters. The Collector general of the Taxations contra The Master and Servants of the Mint-house. Eodem die. THe Master of the Mint did also Suspend for him and his Servants on this Reason, that it was their ancient Privilege to be free of Taxations, for which they produced certain Gifts, by former Kings of Scotland, and Decreets of the Lords. It was answered, that the Act of Convention gives only Exemption to the Members of the College of Justice, and Discharges all former Privileges and Exemptions. It was answered that Acts of the Convention must be understood salvo jure, which takes place even in Acts of Parliament. 2dly, They produced a late Gift, granted by the King in Anno 1668. Exeeming the Master and Servants of the Mint from all Taxation, Imposed or to be Imposed, which is past the Exchequer and Privy Seal, so that the King who hath Right to the Taxation, might Discharge the same to whomsoever he pleased. The Lords in respect of the new Gift, did Exeem the Officers of the Mint, and Suspended the Letters. The Daughters of umquhil Chrichtoun of Crawfoordstoun contra Brown of Inglistoun. Eodem die. THe Daughters of umquhil Crichtoun of Crawfoordstoun, as Heirs appearand to him immediately after his Death, gave in a Supplication to the Lords, desiring his Charter-Chist to be Inventared and Sequestrate. Which the Lords granted. But before the Commission came to the House, William Lowry the Ladies Nevoy, upon notice of the Order, Road Night and Day, and prevented the same: so that all the Writs were carried from Crawfoordstoun to Inglisstoun. Thereafter the appearand Heirs raised Exhibition, ad deliberandum, against the Lady and others, who produced three Dispositions by Crawfordstoun, in favours of Brown of Inglistoun, who had Married one of his Daughters, and the Heirs of that Marriage, whereby he Disponed his Estate of Crawfoordstoun to them, with a Bond of 20000. pounds, the intent whereof seems to have been, that they might have apprised, to make the Disposition effectual, and she and William Lowrie having Deponed, acknowledged that the Writs and Charter-Chist were carried out of Crawfoordstoun to Englistoun, but Deponed that they knew not whether their Writs were amongst them or not, or whether they were formerly delivered to Inglistoun himself, who is now dead: There was in the Exhibition Libelled a Declarator, that the Writs were null, as not delivered, and that being unwarrantably taken out of the Defuncts Charter-Chist, after the Lord's Order to the contrair, they ought to be put back and Sequestrate, till the Rights of Parties were Discussed. The Pursuers did now insist in this last member, to the which it was answered, that the Writs being Exhibit to the appearand Heirs ad deliberandum, and they having seen them, they could have no further interest, but the Lady Crawfoordstoun Tutor to her Oy Inglistoun, aught to have them up again, who produced them; neither is it, nor can it be instructed, that these Writs were unwarrantably taken out of the Charter-Chist, after the Lords Warrant, seeing their Oaths bore, that they knew not whether these were in the Charter-chist or not; and therefore, being a Pupils Writs, in his favours produced by his Tutrix, they cannot be taken from him or Sequestrate, unless the unwarrantable meddling therewith were proven. 2dly. By a Disposition of the Movables to the Lady produced, granted by the Defunct, it bears a Delivery of the Keys of the Charter-Chist to her, to be Delivered to Inglistoun with the Charter-Chist, which is equivalent as if they had been Delivered to Inglistoun himself, and she was content to be Enacted to produce them when ever the Lords found cause. It was answered, that the Lords Warrant being anticipat, and the bulk of the Writs in the Charter-Chist carried away, it must be presumed, that these Dispositions, and that Bond was amongst the rest, and so must be returned in statu quo. The Lords found this alleadgance Relevant, unless the Defenders would instruct that these Writs were not in the Charter-chist the time of the Order, but out thereof in Inglistouns hands: and yet they allowed the Parties presently to Dispute whether, albeit these Writs were in the Charter-Chist, Inglistoun or his Tutrix should have them up, or if they should remain Sequestrate. Mr. james Drummond contra Stirling of Ardoch. january 23. 1669. MR. james Drummond being Donator to the Escheat of the Laird of Glenegies, pursues Exhibition and Delivery of a Bond granted by George Mushet to james Henderson, containing 2000 marks principal, and by him Assigned to umquhil Glenegies, and thereby falling under his Escheat, and the Bond being produced by Ardoch, the Donator craves the same to be Delivered to Ardoch. It was answered by Ardoch, that the Bond ought not to be Delivered to the Donator, because it cannot belong to him, in respect that Mushet, who by the Assignation became Debtor to Glenegies, had two Bonds granted by him to Glenegies, containing 3000. marks, wherein Ardoch is Cautioner, whereby this Bond of 2000 marks, due to Glenegies, was compensed long before Glenegies Rebellion. It was answered for the Pursuer. that Compensation is not Relevant, unless it had been actually proponed in Judgement, or Extrajudiciallie stated, by the Parties offering and accepting the Compensation. 2dly, That the alleadgance is no ways Relevant against the Donator, who has Right to the Debts due by the Rebel. 3dly, Ardoch had no Interest to allege the Compensation, which could only be proponed by Mushet the Creditor, and not by Ardoch who is Cautioner to him. The Defender answered, that Compensation is Competent ipso jure, from the time that the sums be mutually due by the Debtor and Creditor, in the same way as if they had granted mutual Discharges each to other; and therefore when an assignee Pursueth or Chargeth, Compensation is always Sustained against him upon Debts due by the Cedent before the Assignation, albeit the Compensation was not actually stated before the same; neither is the Donator here in better case than an assignee, so that when he pursues Mushet Debtor to the Rebel, Mushet may allege Compensation upon the like Debt due to him by the Rebel before the Rebellion, and the Defender hath good Interest to propone the Compensation, because he is Cautioner to Glenegies for Mushet, and if Mushet be forced to pay the Donator, without allowing Compensation, Ardoch will be necessitat to pay Mushet, to whom he is Cautioner, and therefore hath good Interest to propone that by the concourse of the two Debts, they are both extinct, and he is not obliged to Deliver up to the Donator the Bond Constituting Mushets' Debt. The Lords found the Alleadgance proponed for Ardoch Relevant and Competent, and that Compensation was Relevant against the Donator upon Debts due by the Rebel before Rebellion. Sir john Weims contra Farquhar of Towley. Eodem die. SIr john Weims having Charged Farquhar of Towley for the maintenance of his Lands dew in Anno 1648. He Suspends on this Reason, that by the Act of Parliament 1661. appointing this maintenance to be uplifted by Sir john Weims, singular Successors are exemed ita est, in one part of the Lands he is singular Successor to Sir Robert Farquhar, of another part, he has a Disposition from his Father, for Sums of Money particularly expressed in the Disposition. It was answered to the first, That the Exemption is only in favours of singular Successors, who had bought Lands the time of the Act, ita est, Sir Robert Farquhars Disposition is after the Act: neither doth it appear that a competent price was paid therefore, and as for his Father's Disposition, though prior to the Act, yet the Narrative thereof, betwixt Father and Son, will not instruct the Debts, unless it be otherways instructed, nor can it be made appear to be a just price. The Lords found that the Exemption could not extend to singular Successessors, acquiring after the Act, for if at that time the Lands were in the hands of him who was Heretor in Anno 1640, or his Heirs, nothing ex post facto done by them, can prejudge the Right Constitute by the Act, which doth not bear an exemption to singular Successors who should acquire, but only to these who had acquired. They did also Ordain the Defender to instruct the Cause onerous of his Father's Disposition, but would not put the Suspender to Disput the Equivalence of the price, unless it were instructed that the Dispositions were Simulat, there being a great latitude in prices, according to the pleasure of Parties. Alexander Chisholme contra Lady Brae. january 26. 1669. ALexander Chisholme having apprized certain Lands from the Heirs of Sir Alexander Frazer of Brae, and thereupon insisting for Mails and Duties. Compearance is made for the Lady Brae, Sir james his Relict, who being provided by her Contract of Marriage to certain Lands, with an Obligement that they should be worth 2400. marks yearly, here Husband did thereafter, during the Marriage, grant her a Tack of the whole remanent Lands he had then, with a general Assignation and Disposition omnium bonorum, the Tack bears to be for Love and Favour, and that the Lady may be in the better capacity to aliment his Children, and bears 20. pound of Tack Duty, in case there be Children, and a Duty equivalent to the Rent of the Land if there be none, the entry to the Tack is at the next Term after the granting thereof, and not at the Husband's Death. Upon this it was alleged for the Lady, that she ought to be preferred to the Mails and Duties of the Lands in question, by her Tack clad with Possession by her Husband's Possession before contracting of their Creditors Debt, which must be understood her Possession stante matrimonio, and by her own Possession, after her Husband's Death, before Chisholms Apprizing or Infeftment. It was alleged for Chisholme, that the alleadgance founded upon the Tack, aught to be Repelled. First, Because it is a Donation betwixt Man and Wife, null of itself, nisi morte confirmetur, and so is still ambulatory, and in the Husband's power, during his Life, and is in the same case as Bonds of Provision granted to Children, and keeped by their Father, which being still in his power, any Debt Contracted after would be preferable thereto: So here this Tack being in the Husband's power, the Contracting of a Debt thereafter is preferable thereto, and is an Implicit Revocation thereof. 2dly. This Tack being a most fraudulent, latent and clandestine Deed betwixt Man and Wife, whereupon nothing followed in her Husband's Life, the Creditors having no way to know any such thing, and having Contracted bona fide, are Ensnared and Defrauded thereby; and the Lords having Declared, that in regard they had Reponed the Lady against a former Decreet: She should now Dispute her Right of the Tack, as in a Reduction, against which, this would be an unquestionable Reason, that it is a latent, fraudulent Contrivance, containing a Disposition omnium bonorum. It was answered for the Lady to the first, That Donations betwixt Man and Wife, are not by Our Law and Custom null, but are valid, a principio, unless they be actually revoked: and albeit Implicit Revocations has been Sustained by Dispositions, or Infeftments of the same Lands to others, yet never by a Personal Bond or Contracting of a Debt, posterior. To the second, The Ladies Right can never be Interpret in fraudem creditorum, there being no Creditors the time of the granting thereof, and the Husband being free, and Incapacitat by no Law, an Infeftment of the remainder of his Estate to her, so Cautioned as this is, is both legal and favourable: and albeit in the same, there be a Disposition omnium bonorum, which cannot reach to Goods acquired after the Debts, yet the Tack is valid & utile per inutile non vitiatur. 3dly, Albeit this Tack bear to be a Donation, and for Love and Favour; yet it is neither Fraudulent nor Revockable, because it is donatio remuneratoria, granted by the Husband, who was obliged to make up the Jointure Lands, contained in the Contract of Marriage, to 2400. marks, of which they came short of four at the beginning, and other four have been Evicted. It was answered for Chisholme the Creditor, that this alleadgance was no ways Competent against him, who is a Creditor, contracting bona fide; but the Lady ought to pursue her Son, as Representing his Father, for fulfilling her Contract, or at least till that be declared against the Heir, who is the only competent Party, the Creditor must Possess conform to his Right. 2dly, Whatever was the Husband's Obligement, the Husband hath not granted this Tack in Remuneration or Satisfaction thereof, but expressly for Love and Favour, without mention of any other Cause. It was answered, that the expressing of Love and Favour, which may relate to the general Disposition, cannot exclude other Causes; and albeit it make the Tack a Donation, yet it is well consistent to be a Remuneratory Donation, which is not Revockable. The Lords found the Alleadgance Relevant, that this was a Remuneratory Donation, and that there was also much wanting of the Contract of Marriage, and found it competent against this Apprizer, and superseded to give answer to the other Points, that if it were not proven Remuneratory, whether it could be Reduced as latent and fraudulent, at the Instance of posterior Creditors, or as being in the Husband's power, was indirectly revoked, by Contracting of the posterior Debt, having no more Estate to burden with his Debt. Boil of Kelburn contra Mr. john Wilkie. Eodem die. BOil of Kelburn having gotten a Commission from the Presbytery of Irving, to uplift some vaccand Stipends, he gave Bond to pay to them 850. pounds therefore, and being thereafter Charged by Mr. john Wilkie, Collector of the vaccand Stipends, Kelburn paid him 600. marks, whereupon Mr. john gave Kelburn his Discharge of these vaccand Stipends, and of his Bond to t●e Presbytery, with absolute Warrandice of the Discharge, especially bearing to relieve and free him of the Bond to the Presbytery, thereafter Kelburn was Discerned to make payment of that Bond, after a long Debate Mr. john Wilkie compeared, whereupon Kelburn Charged Mr. john to pay him the 850. pounds, with Annualrent and Expences● upon the Clause of Warrandice, Mr. john Suspends on these Reasons. First, That he was Circumveened, never having read the Discharge. 2dly, That Clauses of Warrandice (however conceived) are never extended further by the Lords, then to the Skaith and Damnage of the Party Warranted, which if it be Componed for never so little, the Warrandice reacheth no further than the Composition, and it can never be extended ad captandum lucrum ex alterius damno, so Kelburn having gotten Stipend worth 850. pounds, he cannot seek the same back again, but only the 400. pound he paid out. It was answered, that albeit general Clauses of Warrandice be so Interpret, yet this is an express and special ●action, to relieve Kelburn of this Bond, which, if it had been per se, would have been valide, although without an onerous Cause, and cannot be less valide, having so much of an onerous Cause. The Lords did take no notice of the Reason of Circumvention, Mr. john being known to be a provident Person, but Restricted the Warrandice to the 400. pounds received by the Suspender, and Annualrents thereof, and the Expenses of Plea against the Presbytery, and found it no ways alike, as if it had been a Paction apart, but being a speciality in a Clause of Warrandice, it was to be Interpret accordingly, pro damno & interest only. Lady Braid contra Earl of Kinghorne. Eodem die. THere is a Bond 10000 pounds granted to the Earl of Buchan Principal, and the Earl of Kinghorne Cautioner to umquhil Mo●ison of Darsie, and Dam Nicolas Bruce, now Lady Braid, than his Spouse, bearing Annualrent, and a Clause stating the Principal Sum after ilk Term, as a Stock to bear Annualrent, and Termly Penalties in case of failzie. This being called in praesentia, It was alleged for Kinghorne, that Annual of Annual was a most Usurary Paction, rejected by all Law, and our Custom, and cannot subsist in whatever Terms it be conceived, otherwise by the like Paction, the Annual of that Annual might bear Annual, and so perpetually multiply; and if this were Sustained, there would never be a Bond hereafter in other Terms. It was answered, that Bonds of Corroboration, stating Annualrents into Principals by Accumulation, have ever been allowed, and though that be done after the Annualrent is become due, making it then to bear Annualrent, there is no material difference to make it bear Annualrent by a paction ab ante, but not to take Effect till the Annualrent be effectually due. It was answered, that Custom had allowed the stating of Annualrents after they were due, into a Principal, because then being presently due, they might instantly be Exacted; but Law and Custom hath rejected the other Case. The Pursuer further alleged, that she being a Widow, and this her Liveliehood, Annualrent at least should be due for the Annualrents, seeing she is ready to Depone, that she borrowed money to live upon, and paid Annualrent therefore, or otherwise the Termly Failzies ought to be Sustained. The Lords Sustained the Defense, and found no Annualrent due of the Annual, nor Termly Failzies, seeing there was no Charge at the Pursuers Instance against this Defender, and that he was a Cautioner, but modified for all 100 pound of Expenses. Bell of Belfoord contra L. Rutherfoord. january 27. 1669. BEll of Belfoord being Infeft in an Annualrent by the Deceased Lord Rutherfoord, out of certain Lands, pursues a poinding of the ground. Compearance is made for my Lady Rutherfoord, who alleged she ought to be preferred, as being Infeft in an Annualrent of 2000 marks yearly, upon her Contract of Marriage, before this Pursuer. 2dly, That she ought to be preferred, for an Annualrent of 2000 marks yearly of additional Jointure, wherein she stands also Infeft publicly; and albeit her Infeftment be posterior to the Pursuers, yet his Infeftment being base, not clad with Possession, before her public Infeftment, she is preferable. The Pursuer answered, that before the Lady's Infeftment on her additional Jointure, he had used a Citation for poinding of the Ground, and is now Insisting for a Decreet thereupon, which must be drawn back to the Citation, and is sufficient to validat the base Infeftment, that it be no more from that time forth repute Clandestine. Which alleadgance the Lords found Relevant, and preferred the Pursuer to the Ladies additional Jointure. It was further alleged for the Lady, that she was Served, and kenned to a Terce of the Lands in question, and must be preferred, as to a third part of the profits of the Lands, conform to her Infeftment upon her Terce. The Pursuer answered, that her Service, Kenning and Infeftment of Terce, are posteriour to his Infeftment of Annualrent, and posterior to his Citation foresaid thereupon. It was answered for the Lady, that her Terce being a Right Constitute by Law, by the Death of her Husband, albeit it be Served and Kenned after, these Acts are but Declaratory of her Right, by her Husband's Death, and do Constitute her Right▪ not from the date of the Service, but from her Husband's Death, which is before the Pursuers Citation, so that his Infeftment, granted by her Husband, before his Death, not having been clad with Possession in the Husband's Life, it remained at his Death as an incomplete Right, which cannot exclude her from her Terce. It was answered, that a base Infeftment is of itself a valid Right, although by a special Act of Parliament posterior, public Infeftments are preferred thereto, unless the base Infeftment hath been clad with Possession, which cannot be extended beyond the Terms of the Act of Parliament, and so cannot be extended to a Terce, but as the base Infeftment would have been a sufficient Right, against the Husband and his Heirs, so it must be esteemed as debitum real, affecting the Ground, and his Lady can have no more by her Terce then the third of what was free unaffected before his Death. The Lords found the base Infeftment sufficient to exclude the Terce pro tanto, and that as to the Husband's Heir or Relict, it was a sufficient Right. Stirling contra Heriot. Eodem die. Stirling Son to Commissar Stirling, pursues for a modification of an Aliment out of the Liferent of Helen Heriot, his Father's Wife, as having the Liferent of the whole Estate. The Lords Sustained not the Aliment, in respect the Defenders Liferent was very mean, and the Pursuer was major, and keeped a Brewary, and she kept one of his Children, and that he was not frugi aut bonae famae. Robert Brown contra johnstoun of Clacherie. February 1. 1669. RObert Brown pursues johnstoun of Clacherie, for payment of 1200. pounds contained in a Bill of Exchange, subscribed before two subscribing Witnesses, and marked with Clacheries hand, there was several other Bills for greater Sums produced, marked with the like mark, and none compearing for Clacherie. The Lords caused Examine the Witnesses insert, who Deponed that Clacherie was accustomed so to Subscribe, and one of them Deponed, that he saw him put to this mark to the Bill in question▪ several others Deponed, that they had accepted such Bills in regard of his Custom, and had obtained payment from him, without any Debate thereupon. The question arose to the Lords, whether a Sum above an hundred pound could be proven by such a Writ, that had only a mark, and having demured upon it before, till they should try if any such case had been Sustained formerly, and none having been found Sustaining any Writ not being Subscribed with the whole Name, or at least the Initial Letters of the Debtors whole Name. It was offered by some, that Clacheries Oath might be taken ex officio, or the calumny, not simply to refer the Debt to his Oath, but whether that truly he set to this mark, before these Witnesses, but Robert Brown being a dying, the Lords would not defer, but decided the Case, and found that this Writ being a Bill of Exchange among Merchants, and Clacheries custom so to grant Bills of greater importance than this, being clearly proven, and none appearing for him, they discerned against him upon the Bill and Testimonies, many of the Lords being of different Judgement, and that it was of dangerous preparative to encourage Forgery, but it was Sustained only in all the particular Circumstances aforesaid, and not to be a general Rule. john Boswel contra Town of Kirkaldie. Eodem die. THe Town of Kirkaldie having given a in Bill to stop the Interlocutor of the 22. of july 1668. of the Process against them, and having objected against that Article of the Libel, whereby john Bosewel craved Repetition of what he was stented for, for Charges of Commissions to the Convention of Burrows, upon this Ground, that the Convention of Burrows was authorized by Acts of Parliament, and Commissioners is ordained to meet yearly thereat, which being a burden arising from the Authority of Parliament, these who have Tenements in the Town, or Lands in the burgh's Lands are liable pro rata, and did again resume the Debate anent the second Minister's Stipend, and being heard thereupon in presentia. The Lords adhered to their former Interlocutor anent the Teinds, and found nothing could make john Bosewel liable for any part of the second Minister's Stipend, except what was due by Law out of his Teinds, or what was due by his own consent, or by custom of 40. years, and found him not liable for Charges of Commissioners of Burrows, which though authorized by Parliament, yet the intent thereof was Trading; and though the Convention might equalise the proportion of Taxations amongst burgh's, which did concern all having Land therein: Yet that being a case merely contingent, they would not upon consideration thereof, put any part of the burden upon these who had no Trade. john Boswel contra Lindsay of Wormistoun. February 3. 1669. John Bosewel being appointed Commissar of St. Andrews by the King, and before the Restitution of Bishops, after their Restitution, the Archbishop named Lindsay of Wormistoun Commissar, and agreed him and john Bosewel, on these Terms, that john should have the half of the profit of the place, whereupon Wormistoun grants a Bond to john Bosewel, to Compt and Reckon for the Profits of the half, and to pay the same to john Bosewel termly, and quarterly, and if any question should arise betwixt them in the Account, that he should submit himself to the Archbishops determination, and acquiesce therein. john Bosewel Charges upon his Bond. Wormistoun Suspends. It was alleged for Wormistoun, that his Bond did contain a Submission to the Archbishop, who is thereby the only Judge Constitute in these Accounts. It was answered, that this Bond was only Subscribed by Wormistoun himself, and a Submission must be Subscribed by both Parties, and that it behoved to be understood to last but for a year, and not to import a Liferent Submission, neither could it be exclusive of the Lords to decline their Authority. The Suspender answered, that this Submission being a provision in the Bond Charged on: Which Bond being accepted by the Charger, his acceptance makes his consent to the Submission, in the same way as if he had Subscribed the same: And there is no Law to exclude a Submission for two years, or a Life-time, more than for one; and it is not a declining of the Lords Jurisdiction, it being most ordinarily sustained, no Process, because there is a Submission standing. The Lords found that there is here a Submission, not ending by a year, and accepted by the Charger, and that thereby the Archbishop in the first place, aught to give his Sentence, which if he refused, or if it was iniquous, the Lords would cognosce thereupon, as in the case of other Arbiters, and Assigned therefore to the Archbishop, the first of june to determine thereupon. Kilburnie contra Heirs of Tailzie of Kilburnie. Eodem die. THe Laird and Lady Kiburny did insist in the Declarator against the Heirs of Tailzie, Dispute the 20. of january, and according to the Interlocutor then given, gave in a condescendence of Kilburnies' Debt, amounting to fifty one thousand pound, and that the Rent of the Land did not exceed thirty six hundred marks. It was alleged, that the Annualrents were here accumulate for five years after Kilburnies' Death, which ought not to be, the Lady having Possession of the Lands, and aught to have paid the Annualrent, and the Clause impowering her to Sell, is only for satisfying Kilburnies' Debt, due the time of his Death, which cannot extend to Annualrents, due after his Death, and that these Annualrents were truly paid by the Lady, and so could not come in as a Debt upon the Estate. 2dly. The Movable Debts ought to be satisfied by the Executory, which must first be Exhausted, the Lady herself being Executrix, and so cannot burden the Heirs of Tailzie, or the Estate; for if they, had been Distressed, they could have craved payment from her, quoad vires inventarij, so that the principal Sums not extending to 40000. Pounds, and the Lands being Bought by Greinock, at the Rental of 4000 Marks, and 20000. Marks being gotten more for the Lands than the Debt, the power of Selling granted to the Lady in the Disposition, can never extend to so vast a difference, albeit a small difference of the price would not be noticed: and lastly it was offered to find a Party, who would take a Wodset of the Lands, in satisfaction of all the Defuncts Debts, so that the Lady cannot, in prejudice of the Heirs of Tailzie Sell, where Wodsetting may do the turn, and the Wodset should contain a Reversion, and no Requisition; and whereas it might be pretended that the matter was not entire, because the Lands were actually Sold to Greinock, he offered to Consent, and Renunce his Bargain. It was answered, that this Clause de non alienando, being against the nature of Property, was odious, and not to be extended, and the faculty of Selling, or affecting, being suitable to the nature of Property was favourable, and not to be restricted further than the Defuncts own Words, and Terms, who having given full power to his Daughter to Sell, or affect the Lands named, for payment of his Debts, and not having said (to Sell, or burden so much of the Land as were equivalent to the Debt; neither having said so much of the Debt, as exceeded his Movables, or his Movables being first exhausted) it is most rational, and to be presumed to be his meaning, that as to his Movables he did not burden her at all; and that this part of his Lands he set apart for his Debt, for he understood his Debt to be about the value of it, otherwise he could have set apart less Land, or could have more limited the Faculty 〈◊〉 Disposing; but the principal Sums of this Debt being 40000. Pounds, and the Rental not being pretended to have been above 4000 Marks, the principal would amount to the value of the Land at 15. years' Purchase, and there being unquestionably a latitude to the Feear to Sell at such a Price, as in discretion he thought fit, though he had sold at twelve years' purchase, or not under the lowest Rate of Land; neither could the Buyer be quarrelled, nor the Seller, as incurring the Clause irritant, and therefore the Lady having Sold at a far greater Rate than the ordinar, Greinock and the Town of Glasgow being both dealing for the Land, they to make a Harbour there, and he not to suffer them, in prejudice of his Town, and Harbour in Greinock, there is no reason to exclude the Lady from the benefit of her Bargain, or to necessitat her to quite the same, and give only a Wodset, seeing the Clause gives her power both to Sell, and Affect, and does not limit her to either of them. The Lords Repelled the Defences, a●d declared that the Lady had warrantably Sold these Lands, and that the principal Sums being so considerable, although the Rental had been more, they were sufficient▪ and found that the Clause laid no necessity upon her to exhaust the Movables, and that she might thereby Wodset, or Sell at her pleasure, james Deans contra Alexander Bothwel, February 5. 1669. ALexander Bothwel of Glencorsse being convened before the Commissars of Edinburgh, for Slandering james Deans Procurator before the Commissars, in calling him a false knave, publicly in the Parliament House, and at the Cross; the 'samine being proven by Witnesses, he was Discerned to stand at the Kirk Door of Glencorsse where both Parties dwelled, and acknowledge his Fault, and to pay 100 pound to the Poor, and 100 pound to the Party. Bothwel Suspends on these Reasons, first, That the Commissars could not ordain him to stand at an Congregation, which is an Ecclesiastical Censure. 2dly, That they could not also Fine him to the Poor, nor Decern any thing to the Party, but the Expenses of Plae, seeing there was no other Damnage libeled nor proven. 3dly, That the Witnesses were not habile, being the Pursuers own Servants. The Charger opponed the Decreet wherein the Suspender was compearing, and objected nothing against the hability of the Witnesses then, and therefore cannot now quarrel their Testimonies, and that it was most proper for the Commissars to cognosce upon Slander or Defamation, neither was his standing in order to Repentance but in order to restoring the party to his Fame. The Lords Repelled the Reasons, and Sustained the Decreet in all Points. Cleiland contra Stevinson. Eodem die. William Cleiland Charges john Stevinson upon a Bond of 400. Marks, bearing Annualrent, he Suspends on this Reason, that the Charger was owing him more for Victual, being his Tennent, which was now liquidat before this time, but after the Date of this Bond, and craved compensation thereupon, not only from the Date of the liquidation, but from the time the Victualrent was due. Which the Lords Sustained. Rule contra Rule, February 6. 1669. MArgaret Rule having made a Consignation of certain Bonds, and in general of all other Rights, with a Disposition of all her Goods to Umquhile Robert Rule her Brother, who having named Mr. David Rule his Executor, and universal Legator, did upon his Deathbed acknowledge, that his Sister's Disposition was in trust to her own behoof, granted upon that consideration, that she being a Bastard, unless she Disponed in her liege poustie, her Means would be Confiscate by her Bastardy, she thereupon pursues the said Mr. David Rule to deliver back her Assignation, with her own Writs. The Defender alleged the Lybel was no way Relevant▪ there being nothing Libelled but the Defuncts acknowledgement of a Trust upon Deathbed, and that offered to be proven by Witnesses only, but First, The Trust behoved to be declared by a Declarator, and not thus by an Exhibition. 2dly, Trust is only probabable scripto vel juramento, being a matter of so great importance. 3dly, Some of the Rights Assigned, and Disponed, are heritable, and nothing done upon Deathbed can prejudge the Defuncts Heir thereof. 4thly, An extrajudicial Confession without Writ, albeit it were acknowledged, hath no effect, for it cannot be known quo animo, such words might have been expressed. The Pursuer answered, that the Trust might be very well libeled, with the Exhibition, and albeit the Defuncts Confession would not alone be sufficient to prejudge his Heir, yet it may very well stand as an evidence of Trust, which cannot be astricted to probation by Witnesses, but hath ever been found probable by other evidences, especially where the Person trusted is Dead, and the Pursuer condescends upon these evidences and adminicles of Trust. First, Communis fama. 2dly, The Assignation and Disposition bears no Reservation of the Disponers Liferent, and yet she continued still in Possession, and her Brother (whom she Entrusted) never meddled, which he would not have done, if the Disposition had been for a Cause Onerous, or to his own behoof. 3dly, He did solemnly, in presence of Witnesses above exception, acknowledge the Trust on his Deathbed. The Lords Sustained the Summons, and would not astrict the Pursuer to prove by Write, or Oath of Party, but ordained Witnesses to be Examined ex officio, anent the evidences and adminicles condescended on by the Pursuer. Black contra Dawid French▪ February 9 1669. THe Lands of Milnburn being holden Waird of the Duchess of Hamiltoun, after Miln burns Death the Duke and Duchess grants a Gift of the Waird to Mr. ●o●ert Black, who pursued for Mails and Duties; and likewise David French having apprised from Miln burn, and having Charged the Duchess before Miln-burns Death to Receive him, he pursues the Tenants for Mails and Duties, who Suspend upon double poinding. In the Competition it was alleged for the Appryzer, First, That his apprizing being a Judicial Sentence, did Denude Milnburn the Vassal, in the same way as if Milnburn had Resigned in the Duke's Hands, in favours of David French, after which Miln burn was totally Divested, and no Casualty could befall to the Superior by his Death, Ita est that Law hath stated a Decreet of apprizing in the same Case as an Resignation accepted, for though the Vassal, against whom the apprizing was led should Die, the Appryzer will summarily upon a Charge obtain himself Infeft, so that the former Vassal was totally Denuded. 2dly, Here not only there is apprizing, but a Charge against the Superior, which fictione juris is in all points, as if the Appryzer were actually Infeft, and therefore the Appryzer, who first Charges, albeit he in●i●t not to use any further Diligence, is ever preferred to all other Appryzers Infeft after. It was answered for Black the Donator, that he ought to be preferred, because the Superior, who gave his Gi●t, could not want a Vassal, nor loss the Casualty of his Superiority without his own fault, but the Appryzer did not become Vassal, neither by the apprizing, nor by the Charge, nor was it ever found that the Liferent, or Waird of an Appryzer fell, unless he had been actually Infeft, and it would be of very great disadvantage to Creditors, if the naked Charge should make their Waird to fall, which they may pass from at their pleasure, therefore seeing the Appryzer could not be Vassal, the former Vassal behoved to remain Vassal; and seeing the Superior could not have a Waird by the Appryzers' Death, he behoved to have it by the former Vassals Death; and albeit the Charge be ●qulparat to an Infeftment, as to the Competition of Appryzers, whom the Superior may not prefer, but according to their Diligences, yet it is not holden as an Infeftment to any other Case, for thereupon the Appryzer cannot remove the Tenants, neither is the apprizing equivalent to an Resignation accepted, albeit it being an incomplete legal Diligence, it may be completed against the Superior after the Vassals Death, yet not so as if the Superior had Received a Resignation from the Appryzer, which is the Superiors voluntar Deed, but there is nothing upon the apprizing to force him to give Infeftment to the Appryzer, until conform to the Act of Parliament, a years Rend of the apprised Lands be offered to him, and therewith a Charter offered to Subscrive, which being done, upon his Delay, Fault, or Contumacy, he may be excluded from the subsequent Casualties, and cannot thereby be gainer, in prejudice of the Appryzer, but otherwise without his Fault, he cannot loss the Casualties. It was answered for the Appryzer, that the apprizing, and Charge did state the Appryzer as Vassal, and there was no inconvenience thereupon to Creditors, more than if they had been actually Infeft. 2dly, Our Statute hath provided contrair to the Common Feudal Customs, that Superiors must Receive Strangers, being Creditors apprizing, for payment of a years Rent, so that the Superior can have no more but the years Rend, and not the subsequent Waird also, and there being mutual Obligations between the Superior and the Appryzer, introduced by the Statute, viz. that the Superior should Receive the Appryzer, and that the Appryzer should pay to the Superior a years Rent, as in all mutual Obligations, so in these, the Delay of the one Party in performance of his Obligation, doth stop the Execution, and Effect of the other Obligation to him, ay and while he perform, but quando mora purgatur, by performance of the one Party, both Obligations are effectual as a principio, and therefore, albeit the Appryzer had been obliged to pay a years Rend when he were Infeft and did it not the time of the Charge, yet now he offers to do it at the Bar, unde purgatur mora, and the Superior must Receive him in obedience to the Charge, which must be drawn back to the Charge, and the Lords cannot but find the Le●●ers, that is to say the Charge orderly proceeded, neither can there be any fault in the Appryzer, that he did not then offer a years Duty when he Charged▪ because it was not liquid nor constant what the years Duty was, and therefore he was only obliged to do it after the liquidation, and modification of the Lords; and lastly he having proceeded as all other Appyzers have done by perpetual Custom, he was in bona fide to acquiesce. It was answered for the Donator, that this former ground holds still good, that the Casualties of his Superiority cannot be lost to him, without his Delay or Fault; and the Case is no way here as in mutual Obligations, but as in a Conditional Obligation, for the Statute obliges the Superior to Receive the Appryzer, he paying a years Rent, which being per ablativum absolute positum, is ever interpret as Condition, as if it had said, the Superior shall Receive him if he pay a years Rend; but by the Statue there is no obligation put upon the Appryzer to pay the years Rend, for the payment is in Condition and not in Obligation, and the Appryzer may ever forbear to seek the Infeftment, and yet will obtain mals and Duties, and so will Possess, and exclude the Superior, both from the Casualties of his Superiority, and his years Rend, therefore by the Statute there is only a Conditional Obligation upon the Superior, to Receive the Appryzer upon payment of a years Rend; now the nature of all Conditional Obligations is, that pendente conditione & ante purificationem nulla obligatio, so that till that time whatever occurs is freely the Superiors: And albeit the Lords will now, upon offer of a Charter, and the years Duty, give a Sentence, the ordinar Style whereof, is finding the Letters orderly proceeded, without putting the Appryzer to a new Charge, yet they do not thereby find, that at the beginning the Charge was orderly without the offer, but that now it becomes orderly by the offer, and therefore hath only effect from the offer▪ and not from the Charge, and prejudges not the Superior of the Waird falling before the offer. 2dly▪ The Superior at the time of the Charge offered obedience, upon production of a Charter, and a years Duty to the Messenger who Charged him, conform to an Instrument produced, the Appryzer himself not having Appeared. The Appryzer answered, that the Superior aught to have drawn up a Charter, and Suspended, Consigning the Charter in the Clerks Hands in obedience, to b● given up to the Appryzer after payment of the years Rend, conform to the Lords modification; and it was not enough to offer obedience to a Messenger, or to require a years Rent, which is not liquid but by the Lord's Sentence; and further alleged that it was lately found, that a Liferent Escheat falling after a Charge, did not exclude the Appryzer, and there can be no Reason, but the same should be in a Waird. It was answered, that no such Practic was produced, nor acknowledged, and that in a Liferent Escheat, the Vassal (against whom the apprizing was led) might collude, and might let himself go year and day at the Horn, of purpose to prejudge the Appryzer, but the Waird falling by his De●th, there is no suspicion of collusion, and the Waird is due by the reddendo of the Charter, but the Liferent is only due by an extrinsic Law, and Custom. The Lords found that the Charge did no● st●●e the Appryzer as Vassal, so that the Waird would have fallen by his Death; neither did they consider the inconveniency of the Superior, as wanting the Superiorities by both Parties, if he were Contumacious, aut in culpa: But they found that the Superior was not in culpa, or in mora, until the Appryzer presented to him a Charter upon obedience, and offered some Money for his Entry, and Caution for what further the Lords should Decern, and did not find the Superior obliged to require the Vassal so to do, and therefore found the Superior here, not in mora aut: culpa, and found the Waird to belong to him, and preferred the Donator, and declared they would follow it as a Rule in all time coming. Thomas Cowan contra Young and Reid, Eodem die. ADam Young having Married his Daughter by the first Marriage, to Thomas Cowan▪ and given him two thousand Marks of Tocher, in satisfaction of all she could claim; did by a second Contract of Marriage, provide a thousand Marks to the Heirs of that Marriage, and all his Conquest during the Marriage, after which Contract, he gave a Bond of 400. Pound to his Daughter of the first Marriage, bearing to be paid in parcels as he was able, and after the Bond, he Disponed his Goods and Gear to his Daughter of the second Marriage: Now the Daughter of the first Marriage, pursues the Daughter of the second Marriage to pay the Bond, as she who Intrometted with the Defuncts Goods. The Defender alleged Absolvitor, because this Bond being granted without an Onerous Cause, after the Provision of the second Contract of Marriage, Providing all the Goods Conquest to the Heirs of the second Marriage, who were thereby their Father's Creditors, for fulfilling of that Provision, no voluntar D●ed done without a Cause Onerous by their Father, in Favours of his Daughter, of a former Marriage could prejudge them, or burden the Movables acquired in that Marriage. It was answered, First, That the Provision being to the Heirs of the second Marriage, they being Heirs, could not quarrel, but were obliged to fulfil their Father's Obligation, whether for a Cause Onerous or not. 2dly, Such Clauses of Conquest are ever understood, as the Conquest is at the Acquirers Death, but does not hinder him any time of his Life to Dispose, or Gift at his pleasure, which if he might do to any Stranger, there is neither Law or Reason to exclude him to do it to his Daughter: And albeit it might be interpret Fraud, if nothing were left to the Daughters of the second Marriage, yet where they have a special Provision, and something also of the Conquest, with this burden, their Father could not be found thereby to Defraud them, or to hinder him to use his Liberty. Which the Lords found Relevant, and Sustained the Bond. Buohan contra Taits. February. 11. 1669. IN Anno 1623. George Tait of Pirn gave a seisine propriis m●nibus to George Tait his eldest Son, and a Bond of that same Date, bearing that he had given Seisine, and obliging him to Warrant the same, Reserving his own Liferent: Thereafter in Anno 1640. he Contracts in Marriage with janet Buchan, and for two thousand and five hundreth Marks of Tocher, obliges him to Infeft her in the same Lands of Pi●n, wherein his Son was Infeft, whereupon she now pursues Reduction of George Tait youngers Infeftment against his Daughters, upon these Reasons. First, That the Seisine propriis m●nibus, was only the assertion of a Nottar without a Warrant. 2dly, That the Seisine had not four Witnesses. 3dly, That this was a clandestine latent Right, most fraudulent betwixt a Father and his appearand Heir, never having been published, or taken effect by any Possession, and cannot prejudge this Pursuer, who is a most privileged Creditor, and brought a competent Tocher with her. 4thly, That this being an Infeftment by a Father to his appearand Heir, then in his Family, it was but as the legittime of Children, which is still ambulatory at their Parent's Disposal, and so must be affected with this posterior burden of the Father's Marriage. It was answered to the first, that the Bond of the same Date with the Seisine, acknowledging the same is a sufficient adminicle, and is equivalent, as if the Father had Subscribed the Seisine. To the second, there is no Law requiring ●our Witnesses to a Seisine, for that Act of Parliament is only where a Party Subscribes by a Nottar, but relates not to Nottars Instruments Subscribed by themselves, upon warrants, or adminicles, without which they are not valid with 40. Witnesses, and without which two Witnesses are sufficient. To the third, this Infeftment is no ways Fraudulent, or Latent, seeing it is Registrat in the Register of Seisines, and Reserves the Father's Liferent, whose Possession is the Sons Possession, and cannot be pejudged by a Deed so long posterior thereto. To the last, Infeftments taken to Children by Parents being Registrat by Parents, can never be Recalled. The Lords Assoilzi●d from all the Reasons of Reduction, and Sustained the Defenders Seisine. Pot contra Pollock, February 12. 1669. UMquhile john Pollock having granted a Bond of 5000. Marks to james Pollock his second Son of the first Marriage, and he having Adjudged thereupon; Pot as assignee by his Wife to her Provision, and the Creditors Debts, having also apprised, raises Reduction of james. Pollocks' Bond, and Adjudication on this Reason, that the said Bond was without a Cause Onerous, given by a Father to a Son, as is clear by the Son's Oath, taken thereupon, and therefore a posterior Debt Lent by Creditors, bona fide to the Father, is in Law preferable thereto. 2dly, This Bond to a Son can be but de natura legittimae having no Cause Onerous, as if it had born for his Portion Natural, and Bairns part: In which Case it is Revockable by the Father, and the Father's Creditors (though posterior) are preferable thereto. 3dly, This Bond is Reduceable, super capite doli, as being a contrivance betwixt a Father and a Son, to ensnare Creditors to Lend to the Father, who then drove a great Trade, which must be inferred from these circumstances. First, The Son was fori● familiat and sufficiently provided before. 2dly, The Bond bears no Annualrent, and the Term of payment is after the Father's Death, and remained ever latent betwixt the Parties, without any thing following thereupon, and these Debts were all Contracted within a very little after this Bond, which was only a year before the Defuncts Death. The Defender answered, that the Reasons are no ways Relevant, for there is neither Law nor Reason to hinder any person to give Bonds or Gifts freely, there being no Impediment the time of the granting, neither hath the Law any regard to posterior Creditors, but in personal Debts, whether for Causes Onerous or not, the first Diligence was ever preferable; nor was it ever heard that a posterior Onerous Obligation did Reduce, or was preferred to a prior gratuitous obligation, upon that ground that the prior was gratuitous. And to the second, Albeit this Bond were in satisfaction of a Portion Natural, as it is not yet, being Delivered to the Son, who i● forisfamili●t, he can be in no other case then any other person to whom a bond were granted, without an Onerous Cause. As to the third, Dolus non presum●tur, and all machinations being only animi, are only probable scripto vel juramento, and can be inferred by no circumstances. The Pursuer answered, that albeit in dubio dolus aut c●lpa non pre●umitur, yet it is doubtless probable otherwise then by the Oaths of the Parties, whereunto Tru●● is never to be given, in relation to their own shame, contrivance, or fraud, and therefore mat●ers of fact do necessarily infer, and presume fraud in many cases, and in none more than this, where the Deed was clandestine, and latent betwixt Father and Son, and where the Father's Estate was thereby rendered insufficient to pay both his Debt, and the others contracted shortly thereafter▪ and if it were sustained that such latent Rights betwixt conjunct persons were valide in prejudice of posterior Creditors, contracting bona fide, and not knowing the same, all Commerce behoved to cease, for every man might give such Bonds to his Children, and continue to Trade, and to borrow Money, and upon the children's anterior Bonds be totally excluded. The Defender answered, that our Law by a special Statute, in Anno 1621. having determined the cases of presumptive fraud, and extended the same only to anterior Creditors, without mention of posterior Creditors, the same might be thought to be of purpose omitted, and cannot be extended by the Lords. The Lords found the matter of fact, and circumstances, alleged Relevant to infer a presumptive fraud, and contrivance betwixt the Father and the Son, which did ensnare the Creditors who continued to Trade, and therefore Reduced the same as to the Creditors, and preferred them, and the Relict in so far as she was a Creditor, but not for any posterior or gratuitous Provision to her, or to her Children, but they did not find the two first grounds Relevant to prefer a posterior onerous obligation to a prior gratuitous, or that this Bond was as a ●egit●ime Revockable; and the Lords were chiefly moved because of the inconvenience to Creditors, acting bona fide with a person Trading, and repute in a good Condition: And where in eventu his Estate is not sufficient, both to pay his Creditors, and this Bond, for if it had been sufficient for both, they would have come in pa●● passu, having both done Diligence within the year. john Brown contra Robert Sibbald, Eodem die. IOhn Brown having taken a Feu of some Aikers of Land, at a great Rent in Victual and Money, pursue Robert Sibbald (now his Superior) to hear and see it found and declared, that he might Renunce, and be free of the Feu Duty. The Defender alleged Absolvitor, because this Feu was by a mutual Con●ract, by which the Vassal had bound him and his Heirs to pay the Feu Duty yearly, and which obligation he could not louse at his pleasure; for albeit Feves which are proper and gratuirously given without any obligement on the Vassals part, but given by a Charter, or Disposition, as being presumed to be in favorem of the Vassal, he might Renunce the same, nam cuivis licet favori pro se introducto renunciare, but here the Vassal being expressly obliged for the Feu Duty, cannot take off his own obligation, this case being like unto that of a Tack, which being by mutual Contract, cannot be Renunced, though by a Tack only granted and Subscribed by the Setter it may. The Pursuer answered, that he opponed the common opinion of all Feudists, de feudo refutando, wherein there is no exception, whether the Feudal Contract be Subscrived by both Parties, for every Contract must necessarily import the Consent of both Parties, and the acceptance of a Vassal to a Feu by way of Disposition is all one with his express obligation in a mutual Contract. 2dly, Though such a Contract could not be Renunced, yet this Pursuer may Renunce, because by a Back-bond by the Superior, who granted the Feu under his Hand, he has liberty to Renunce when he pleads. The Defender answered, that this Back-bond not being in corpore juris, nor any part of the Investiture, it was only personal against that Superior who granted the same, but not against the Defender, who is a singular Successor. It was answered, that the mutual Contract not being the natura feudi, but at most importing an obligement not to Renunce the Feu, any personal Deed before this Superiors Right, under the Hand of his Author, is Relevant against him, as well as his Author. The Lords found the alleadgeances upon the Back-bond Relevant against the Superior, though singular Successor, it being granted of the same Date with the Feudal Contract, and relating to a matter extrinsic to the nature of the Feu, and so suffered the Pursuer to Renunce the same. Gilbert Mcclellan contra Lady Kirkcudbright, February 13. 1669. GIlbert Mcclellan being Infeft by the Lord Kirkcudbright in an Annualrent, effeirand to four thousand Marks, out of the Lands of Auchin●lour, thereafter my Lady was Infeft in Property, or an Annualrent out of the Lands, at her pleasure, for her Liferent use; and after my Lady's Infeftment, my Lord gave a Corroborative Security of the Property of Auchinflour, and stated the four thousand Marks of principal, and the two thousand and five hundreth Marks of Annualrent in one principal, and Infeft him thereupon in Property wherein Gilbert was many years in Possession before my Lord's Death: In the Competition betwixt my Lady and him, he craved preference, because he was seven years in Possession. secondly, Because his first Right of Annualrent still stands, and was Corroborat; and therefore, as he would undoubtedly have been preferred to my Lady, for all his Annualrents, for the sum of four thousand marks by his first Infeftment, which is prior to my Ladies, and as an apprizing by poinding of the Ground for these annualrents, though posterior to my Lady's Infeftment, would be drawn back ad suam causam to his Infeftment of annualrent, and be preferred, so my Lord having voluntarly granted-this Corroborative Security to prevent an apprizing, it should work the same effect, as if an apprizing had been then led, and an Infeftment thereupon, which would have accumulat the annualrents then past, and made them bear annualrent in the same manner as this Corroborative security does. The Lords preferred Gilbert for the whole annualrents of his four thousand Marks, conform to his first Infeftment: but would not Sustain the Corroborative Security, being posterior to my Lady's Infeftment, as if it had been upon an apprizing, to give him annualrent for 2500. marks, then accumulate: but found no moment in his alleadgance of the Possessory Judgement, unless it had been seven years after my Lord's death, when my Lady might have preferred her Right, and not contra non valentem agere. The Creditors of Balmerino and Couper contra my Lady Couper. February 16. 1669. THe Deceased Lord Cowper having Disponed his Estate to his Lady, some of his Creditors, and some of Balmerino's Creditors, who was his Heir appearand, did raise Reduction of the said Disposition, as done on Deathbed, and before the day of Compearance they give in a Supplication, desiring Witnesses to be Examined, and to remain in retentis, that Cowper had Contracted his Disease, whereof he died before the Subscribing of this Disposition, and that he never went out thereafter, but once to the Kirk and Mercat of Cowper, which times he was supported and fell down Dead, a Swoon, before he was gotten home. It was answered for the Lady Cowper: First. That Witnesses ought not to be Examined until the Relevancy of the Libel were Discussed, unless they were old or Valetudinary, or penury of Witnesses, whereas there are here forty Witnesses ctaved to be Examined, and the coming to Kirk and Mercat being public Deeds, there would be no hazard of wanting Witnesses. 2dly, The Creditors, or appearand Heir have no interest, unless the Heir were Entered, or they had apprised, or had a real Right; neither can the Creditors be prejudged by the Disposition, as being on Deathbed, because they may Reduce the same, as being posterior to their Debts, upon the Act of Parliament 1621. and the reason of Deathbed is only competent to Heirs, and to these having real Rights from the Heir, and not to their personal Creditors. The Lords ordained the Witnesses to be Examined, to remain in retentis, concerning my Lord Cowpers condition, the time of Subscribing the Disposition, and of his coming abroad; and allowed my Lady also Witnesses if she pleased, for proving what his condition was at these times, reserving all the Defences and Alleadgances of either Party in the Cause, for they found that the Creditors of Balmerino, as appearand Heir had interest to Declare that their Debts might by legal Diligences affect the Estate of Cowper, unprejudged by this Disposition, as being made by Cowper on Deathbed, and that the Reduction in so far as might contain such a Declarator, would be Sustained, for no Party can be hindered to Declare any point of Right competent to them, and it was also thought, that though there were many Witnesses called to find out who truly knew the Defuncts condition, yet there might be few, who truly knew the same, and these might be removed out of the way, either by Death, or by Collusion. Alexander Hamiltoun contra Harper. Eodem die. UMquhil john Hamiltoun Apothecary, having purchased a Tenement in Edinburgh, to himself in Liferent, and his Son Alexander in Fee, thereafter he borrowed 1000 marks from Thomas Harper, and gave him a Tack of a Shop in the Tenement, for the Annualrent of the Money. After his Death Alexander his Son used a Warning by Chalking of the Doors by an Officer in the ordinary Form, and he being Removed, Alexander pursues now for the Mails and Duties of the Shop from his Father's Death, till the Defenders Removal, who alleged Absolviture, because he bruiked the Tenement by virtue of his Tack, & bona fide possessor facit fructus perceptos suos. It was answered, that the Tack being but granted by a Liferenter, could not Defend after the Liferenters' Death, and could not be so much as a colourable Title of his Possession. 2dly, That he could not pretend bona fides● because he was Interrupted by the Warning. It was answered by the Defender, that the Tack was not set to him by john Hamiltoun as Liferenter, nor did he know but he was Feear, being commonly so repute, neither could the Warning put him in mala fide● because there was no Intimation made thereof to him, either Personally, or at his Dwellinghouse, but only a Chalking of the Shop-door. The Lords Sustained the Defense and Duply, and found him free of any Mails or Duties, till Intimation or Citation upon the Pursuers Right: here the Pursuer did not allege that the Warning by Chalking of the Shop-door came to the Defenders knowledge, as done by the Pursue. Sarah Cockburn and Mr. Patrick Gillespie contra john Stewart and the Tenants of Lintone. February 18. 1669. SArah Cockb●rn being Infeft in Liferent in an Annualrent of 1200. marks yearly, out of the Barony of Lintone, She and Mr. Patrick Gillespie her Husband, insisting for her Annualrent, in Anno 1657. obtained payment from john Stewart, and gave him a power to uplift the same from the Tenants, and delivered to him the Letters of Poinding, to be put in Execution. Thereafter Mr. Patrick obtained a second Decreet against some Wodsetters, whose Rights were posterior to the Annualrent, for the years 1658, 1659., and 1660. and upon payment of these three years, did acknowledge payment made of the said's three years Annualrent, and all bygones whereunto he had Right. Mr. Patrick having granted john Stewart a Bond to warrant him anent the year 1657. and that he had given no Discharges that might exclude him. The Tenants of Lintoun Suspends the Charge for the year 1657. upon that Reason, that Mr. Patrick had Discharged the Annualrent for the years 1658, 1659., 1660. and all preceding whereunto he had right: Whereupon john Stewart Charged M. Patrick upon his Bond of Warrandice, who Suspended upon this Reason, that the Discharge could not exclude John Stewart, albeit it bore all precedings to which he had Right, because when he granted the Discharge, he had no right to the year 1657. which he had received from John Stewart, and given him Warrant, and his Letters to Poind for Mr. john's Stewarts own use. It was answered, that unless that Order had been intimat, the Right remained with Mr. Patrick, and so his general Discharge extended thereto. It was answered, that albeit Intimation was necessary, as to establish the Right in the Assigneys' Person: yet Mr. Patrick's Warrant was sufficient to exclude him, at least, the matter of his Right being thereby dubious, the general Discharge cannot be effectual against him, if by the Oaths of the Wodsetters that got the Discharge, it appeared that they paid him not the year 1657. and some of their Oaths being taken, he who paid the Money for himself, and the rest Deponed, that the year 1657. was not paid, and that there was no Decreet against the Wodsetters for 1657. but only against the Movable Tenants, to whom the Discharge, containing the said general Clause, was not granted. The Lords found that in respect of the Oath, the general Discharge extended not to the year 1657. and therefore Suspended the Letters against the said Mr. Patrick upon his Bond of Warrandice, and found the Letters orderly proceeded at john Stewarts Instance, against the movable Tenants of Lintoun, for the year 1657. The Tenants further alleged, that since the year 1660. they did produce three Consecutive Discharges from Mr. Patrick, which imports a Liberation of all years preceding, specially seeing Mr. Patrick was never denuded of the year 1657. nor no Intimation made. It was answered, that such a Liberation is but presumptive, presumptione juris, and admits contrary Probation, and is sufficiently taken away by the Oath of the Party, acknowledging that year unpaid● and the Warrant given to john Stewart, to lift it for his own use, before these Discharges. The Lords Repelled also this Defense upon the three Discharges, in respect of the Reply. Trinch contra Watson. Eodem die. John Watson being Curator to Margaret Trinch, and having Contracted her in Marriage with his own Sister Son, there is a Disposition granted by her to the said john Watson, of all her Means, and in the Contract, he Contracts with her 1000 pounds, whereunto the Heirs of the Marriage are to succeed, and failing these, to return to the said john himself, she died before the Marriage, and David Trinch Stationer being Served Heir to her, raises Reduction of the Disposition, and Substitution in the Contract of Marriage, upon two Reasons. First, That albeit the Disposition contain Sums of Money, yet being of the same date with the Contract of Marriage, in which john Watson Contracts 1000 pound with the said Margaret Trinch, which unquestionably has been all that has been gotten for the Disposition, the said Disposition is a part of the Agreement, in relation to the Marriage, and must be understood, as granted in Contemplation of the Marriage, as if it had been Contracted in the Contract of Marriage; so that the Marriage not having followed, the Disposition is void, as being causa data causanon secuta. 2dly, Both the Disposition and Provision in the Contract, that failing Heirs of the Marriage, the 1000 pound should return to john Watson, were obtained by Fraud and Circumvention, being granted to a Curator, ante reddi●as rationes, by a Person who lately was his Minor, and who was of a weak capacity, Stupid and half Deaf, and upon such unequal Terms, her Means being worth 3000. pounds, as appears by a Decreet obtained at her Instance, and all she got being but 1000 pounds, to return to Watson, in case there were no Children, and nothing secured on the Husband's part. The Defender answered to the first, that albeit the Disposition was of the same date with the Contract of Marriage, it did not conclude, that it was in Contemplation of the Marriage, and might be, and truly was an absolute Bargain. As to the Reason of Circumvention, it is not Relevant, although the Terms had been as unequal as they are alleged, for the said Margaret Trench, might freely Dispose of her own, at her pleasure, and leave it to john Watson, who was her Mother's Brother, if she had no Children, especially seeing David Trinch, the nearest on the Father's side, is but her Goodsires' Brothers Oy, and never took notice of her, whereas john Watson Alimented her from her Infancy, and obtained Decreets for her Means, and never received a Groat thereof; neither was there any inequality betwixt the 1000 pound, and her means, for which, albeit there be a Decreet in absence of a greater sum; yet there are unquestionable Defalcations, which being Deduced with her Aliment, there will not be 1000 pounds free. The Lords conceiving the Matter to be very unwarrantable on the Curators' part, in taking this Disposition and Substitution, before his Accounts with his Minor were given up, did reduce both the Disposition and Substitution, not only as done in Contemplation of Marriage, but as being presumed fraudulent and unwarrantable. Mr. john Hay contra the Town of Peebles. February 19 1669. MR. john Hay Insisting in his Declarator, that certain Hills Libeled were proper Part and Pertinent of his Lands Libelled, wherein he stands Infeft in Property. It was alleged for the Town of Peebles, that they do not acknowledge his Right of Property, but they allege that they are Infeft by King james the second, in their Burgages Lands with the Commonty of Priest-shiels, and likewise by King james the fourth, and that Queen Mary having directed a Commission for Perambulation to the Sheriff of Edinburgh, he Perambulate their Commonty, and hath set down Meithes and Marches thereof, which are expressed in their Decreet of Perambulation, within which their Meithes lie, and that in Anno 1621. they have a Charter from King james the sixth, of their Burgages and Commonty of Priest-shiels, comprehending expressly their Hills; by virtue whereof, they have been in peaceable Possession thereof, as their proper Commonty by Pasturage, Fevel, Fail and Divot, and by debarting all others therefrom. The Pursuer answered, that their Charters was but periculo petentis, the King having formerly granted the Right of their Lands to his Authors, and the Decreet of Perambulation by the Sheriff of Edinburgh, was a non suo judice, the Lands not being within the Shire, and for any Possession they had, it was not constantly over all the year, but only a while about Lambas of late, and was still interrupted by him and his Authors, and offered him to prove that they have been in immemorial Possession, by Teiling, Sowing and all other Deeds of Property, and that their Hills cannot be part of their Commonty, there being other Heretors' Lands interjected between the same and the Commonty of Priest-shiels, so that the Pursuer ought to be preferred, being in libello, and far more Pregnant and specially alleging Acts of Property by Tillage, and the Defenders having Declarator depending of their Commonty, and alleged a Practic at the Instance of Sir George Kinnaird, where he alleging upon Property more pregnantly, was preferred to an other in Probation, alleging Pasturage. The Lords preferred neither Party to Probation, but before answer Ordained a Perambulation to be, and Witnesses adduced, hinc inde, anent the Situation of the Bounds, and either Parties Possession and Interruption. Lord Elphingstoun contra Lady Quarrel. Eodem die. THe Lord Elphingstoun pursuing Quarrel in a Tutor Compt anent the Profits of the Coal of Elphingstoun, this Quere came in from the Auditors, how the small Articles of uncost should be proven. It was alleged for Quarrel, that such Articles could be proven no other way but by his Oath, seeing it was impossible either to use Witnesses, or for them to remember such small particulars, occurring every day, especially seeing it was known to all Coal-masters, that such particulars were ordinarily incident. It was answered for the Lord Elphingstoun, though these Particulars were small, yet they amounted in whole to 2000 marks, and that the Tutors ought to have keeped the Coal-Grieves weekly Books, wherein every particular was set down daily as they were expeded▪ which if they were produced, and both the Tutors and Coal-Grieves Oaths were taken thereupon, that they were truly so paid, as they were recently set down, they might be allowed: but no such Book being produced, the Tutor could not give a Compt thereof at random, nor could his Oath in Astruction thereof be received; because it were impossible for him to remember these small particulars without the Books. It was answered for the Tutor, that during the Dependence of this Process, the Books were lost which were made up by the Coal Grieves weekly: but that he produced a Book made up of these Books, and was willing to give his Oath that the first Books were lost, and that their Books, albeit they be not direct Copies of the former Books, yet that they were made up of the former, and did agree in the matter with them, and contained no more than they did. The Lords refused to Sustain this manner of Probation, but ordained Quarrel to condescend de casu ommissionis, of the first Books, and adduce such Proofs and Evidence thereof as he could, and also to condescend who was the Writer of the latter Books, that he might be Examined how he made up the one from of the other. King's Advocate contra Craw. Eodem die. THe King's Advocate pursues a Declarator of the Bastardy of one Craw. It was Alleged for the Defenders, that the Libel was not Relevant, unless it had been condescended who was the Bastard's Mother, and offered to be proven, that she was never married to his Father. It was answered, that not being married was a Negative, and proved itself, unless the Defenders condescended upon the Father, and offered to prove married. The Defender answered, if that was Relevant● the most of all Scotland might be declared Bastards, it being impossible after a considerable time to instruct the Solemnising of a Marriage, but Law and Custom doth require, that at least it must be condescended on and instructed, that the Defunct was holden and reputed Bastard at the time of his Death. Which the Lords found Relevant. And it being further alleged, that there was produced a Legittimation taken by the Bastard from the King, which did import his acknowledgement of being Bastard, and was stronger than being holden and repute Bastard. It was answered, non constat, that the Defunct took this Legittimation, but some other might have done it in his Name, without his warrant. The Lords found the Legitimation sufficient to Instruct the Bastardy. It was then alleged, that the Legitimation Denuded and Excluded, the King not only giving power to the Bastard to make Testament, but to Dispone of his heritable Rights, even on Deathbed. It was answered, that whatever the Style of such Gifts be, they are never extended to heritable Rights, but only to a Faculty, to make Testament, which Bastards want by the Law: but if the Bastard made no Testament, and did Exhaust his Movables by universal or particular Legacies, the Executor nominat could only have the third, which follows the Office, and the King would have the rest of the Inventar, not Exhausted. secondly, All general Declarators being summar, these Debates are only competent in the special Declarator. The Lords Repelled the Defense hoc loco, and reserved the same to the special Declarator. Relict of Skink contra Earl of Roxburgh. Eodem die. UMquhil Cornelius Skink pursues the Earl of Roxburgh upon a Bond, and the Earl having alleged that the Bond was partly paid by Skinks Intromission with the Earls Pay in Holland, and partly made up of exorbitant Usurary, of 16. per cent Monthly, as appears by a Compt of the same date, with the Bond subscribed by Skink, and whereunto the Bond relates, there was an Act of Litiscontestation in Anno 1659. sustaining the alleadgance as to the Intromission and Usury after the Bond, but repelling the same, as to what preceded the Bond, and appointed a Compt and Reckoning. Skink being dead, his Relict as Executrix having Transferred the Act, craves now the Compt to proceed conform thereto. The Defender answered, that he ought to be Reponed against the Act, in so far as it Repelled the Alleadgance, upon the Usury preceding the Bond, as being unjust. The Pursuer answered, that the opponed the Act of Parliament, Confirming the Judicial precedings in the time of the Usurpation, and specially Ratifying Acts and Interlocutors of the Judges. The Defender answered, that this Act was unwarrantably Extracted, there being a posterior Interlocutor, which is now produced under the hand of the Precedent, at that time, ordaining the Compt to be not only upon the exorbitant Usurary after the Bond, butalso before the same. The Lords ordained a new Act of Compt and Reckoning to be Extracted, allowing the Defender to be heard upon the exorbitant Usury before the Bond, also before the Auditor, in respect of the said posterior Interlocutor. Andrew Bruce contra Laird and Lady Stenhope. February 20. 1669. ANdrew Bruce Merchant in Edinburgh, pursues the Laird of Stenhope for payment of a continued Tract of Merchant Counts, insert at several times in his Compt Book, as being taken off by Margaret Sinclar, in the name and for the behoof of the Laird of Stenhope, upon these Grounds. First, That the Ware was worn and made use of by the Laird of Stenhope and his Lady, and so was converted to their use. secondly, That Margaret Sinclar was entrusted by the Laird of Stenhope and his Lady, to take off Ware for them from time to time, as appears by several Missive Letters of theirs to the said Margaret: so that Margaret having taken off the Ware, and being entrusted so to do, they must pay the same. 3dlie, Not only was Margaret Sinclar trusted to take off Merchant Ware in general, but particularly to take off the same from Andrew Bruce, upon these Grounds: First, Because there is produced an Compt in the Pursuers Books, before the Accounts in question, which is not controverted; so that Andrew Bruce was Stenhops Merchant, when Margaret Sinclar began to be Employed. secondly, By one of the Lady Stenhops Letters, it appears that a Satin Petticot and Lace was taken off from Andrew Bruce, by Margaret upon Trust of Stenhope, and the Lady desires that Margaret may endeavour to get the Lace taken back, and their Names put out of the Compt Book. 3dlie, The Laird and Ladies Oaths being taken, ex offi●●o, the Lady acknowledges that she was several times in Andrew Bruces Shop with Margaret Sinclar, and that she was present with Margaret Sinclar, when the last part of the Account of 114. pounds was taken off, all which are sufficient Evidences of a Warrant or Commission to Margaret, to take off the Ware in question from the Pursuer. The Defender answered, that none of these Grounds were Relevant to oblige him; for albeit he acknowledge the Goods to be Converted to his use, there is nothing to make it appear that he had any meddling with the Pursuer, but by the Letters written by him and his Lady to Margaret Sinclar, made use of by the Pursuer, it is evident that he only employed Margaret Sinclar to furnish him upon her Credit, and did prohibit to put him in any Merchant's Account, saying that he would be only her Debtor and no others, so that it were of most dangerous consequence, if the making use of Good should infer an obligement to pay the Merchant, whose they were at first, though payment were made to the Person entrusted, as in this case the Letters to Margaret Sinclar bears, that she was paid of what was taken off formerly by her, and there are severals also subscribed by her Hand for a part of the Particulars contained in these Accounts; neither can any Trust put upon Margaret Sinclar, to take off Ware in general, Oblige the Defender, unless it had born To take off the same upon his Faith and Credit, and not to take off the same upon Margaret Sinclars own Credit: Neither doth the Circumstances adduced, infer a special Commission, to take off from Andrew Bruce, or prove that he was ordinary Merchant, or so much as that Stenhope knew that the Particulars in the Account were taken off upon his Credit, and were put in his Name in the Book, except that which concerns the Petticoat and th● last articles of the 114. pounds, especially seeing his Letters prohibits her to put his Name in a Merchant's Account: and seeing Andrew Bruce for several years▪ never so much as intimate the Account to Stenhope, till Margaret Sinclar was dead. The Pursuer answered, that in rem versam, is an unquestionable Obligation in Law, albeit nothing of a Commission were instructed, unless the Defender can allege that he made payment to Margaret Sinclar, and proved by her Hand Writ, and not by his own Letters. secondly, There is nothing more ordinar, then to take off Ware from Merchants by Tailors and Servants, who cannot be thought to have the Ware of their own, but that they must take them off from some Merchant, and therefore payment should not be made to such Persons, till they produce the Merchant's Account, and his Discharge, or if it be, and if these Persons interposed pay not the Merchant, as in this case, the loss must not be to the Merchant, but to these who paid to the interposed Persons, upon their hazard, and if this were not, all Merchants would be ruined, for no Persons of quality do immediately take off from the Merchants themselves. The Lords found that these Articles in the Account, in relation to the Petticoat and the 114. pounds, which were known by the Defender or his Lady, to be taken off in their Name, and put in Andrew Bruce, his Book, were due by them, and that though the same had been paid to Margaret Sinclar, it was upon the Defenders peril, if she paid not the Merchant: They did also find that the Goods being acknowledged to be converted to the Defenders use, they were liable to the Pursuer, in so far as they proved not they paid Margaret Sinclar, and found the same probable by Margaret's Writ, or by Witnesses: but found not that Ground Relevant, that Margaret Sinclar was entrusted generally to take off Ware; or that the Grounds alleged did instruct a particular Warrant to take off from the Pursuer; and therefore did not find the payment made to Margaret Sinclar, which she failed to pay the Merchant, to be upon the Defenders peril, except as to the two parcels of Account aforesaid, which the Defenders knew to be in their Name in the Pursuers Book. Countess of Dundee contra Strait●un. February 24. 1669. THe Countess of Dundee as Donatrix to her Husband's Escheat, pursues Straitoun for a Sum due to her Husband. The Defender alleged absolvitor, because that same day this Bond was granted by him to the Earl, a Creditor of the Earls arrested, to whom the Defender had made payment, and obtained his Assignation; and therefore as assignee craves compensation and preference as Arrester. It was answered that this Debt being contracted by the late Earl, after he was Rebel, it cannot burden his Escheat, in prejudice of the King and his Donator; for though Creditors, whose Debts were due before Rebellion, arresting after Rebellion, may be preferred: yet no Debt contracted by the Rebel after Rebellion, can burden his Escheat, neither by arrestment nor compensation. Which the Lords found Relevant, and preferred the Donatrix, except as to what was due to the Defender by herself, or for Drogs to her Husband, which she was content to allow. The Earl of Kincardin contra The Laird of Rosyth. Eodem die. THe Earl of Kincardin pursues the Laird of Rosyth for the Teinds of his Lands, to which the Pursuer has Right. The Defender alleged, that he had obtained a Decreet of the high Commission for Plantations against the Earl, whereby they Discerned the Earl to Sell and Dispone these Teinds for a price mentioned in the Decreet, being about nine years Purchase thereof, and therefore the Pursuer cannot have Right to the Teinds themselves, but only to the Annualrent of that Sum, which was the price. The Pursuer answered that he opponed the Decreet produced, which did not, de presenti, adjudge the Teinds to the Defender, but Discerned the Pursuer to sell them to him, upon payment of the said price, which can give no Right to the Teinds till the price be paid, or at least offered, which was never done. The Lords Repelled the Defense in respect of the Reply. The Earl of Annandail contra Young and other Creditors of Hume● Eodem die. THe Earl of Annandail having obtained Assignation from john joussie to a Sum of Money due by the Earl of Hume, whereupon Inhibition was used Anno. 1634. and shortly thereafter an apprizing upon which Aunandail was lately infeft. whereupon he now pursues Reduction of the Infeftment granted by the Earl of Hume to Young, as being after his Inhibition, which Inhibition being auterior to the most part of the Debs, Wodsets, and Apprizing of the Estate of Hume, and being supposed to be the leading Case, that the Decision thereon might rule all the rest, many of the Creditors did concur with Young, and produced their Interests, and craved to see the Process. It was answered, that they had no Interest in young's Right, and so could not crave a sight of the Process. It was replied that albeit the Sentence against Young could not directly operate against them, yet indirectly it would, as being a Dicision, and Practic in the like case. The Lords found this no Interest to stop Process, but allowed any Creditors that pleased to concur in the Dispute. It was then alleged Absolvitor, because this Assignation, Inhibition, and Apprizing, albeit standing in the Person of the Earl of Annandail, yet it was truly on Trust to the behoof of the Earl of Hume, and if to his behoof, it did accresce to the Defenders, as having Right from him, and for evidence of the Trust they condescended upon these grounds. First, That the Debt was contracted 35. years since, and no Diligence ever used thereupon till now, except an Apprizing, whereupon no Infeftment was taken till of late, albeit Infeftments were taken of the Estate of Hume, upon many posterior Apprizing, which are now expired, and will exclude this Apprizing. 2dly, The Assignation granted by jousie to Annandails Father, was immediately after the Lands of Dunglasse was Sold by the Earl of Hume, to the Laird of Dunglass, by whom joussie was paid, as a part of the price, by Sir William Grace, who was then Debtor to Dunglasse, likeas joussies Oath being taken ex officio upon his Deathbed, Depones that Sir William Grace paid him the Money, albeit he knew not by whose Means, or to whose use, yet he knew nothing of any payment made by the Earl of Annandails Father's 3dly, This Inhibition and Apprizing was never in Annandails, or his Father's Possession, but still in the Possession of the Earl of Hume, and his Agents, and still in his Charter Chest. 4dly, The Earl of Annandail took a Security from the Earl of Hume for all Sums due to him, or for which he was Cautioner, wherein there is neither mention nor reservation of this Sum, or Apprizing. 5thly, The Earl of Annandail has consented to many of the Creditors Rights, which he would never have done, if this Apprizing had been to his own behoof, thereby preferring others to himself, the Creditors therefore craved Witnesses to be Examined ex officio, upon all these points for clearing of the Trust, which being an obscure contrivance, can be no otherwise probable, all the Actors being now Dead, and is most favourable in the behalf of Creditors, who if this pursuit take effect, will be utterly excluded, for if the Inhibition Reduce their Rights, the Pursuers Apprizing supervenient upon that same Sum, is now expired, and irredeemable. The Pursuer answered; he did declare he would make only use of this Right, for satisfaction of the Debts due to him, and for which he was Cautioner for the Earl of Hume, and was content that Witnesses should be Examined anent the Inhibition, and Apprizing being still in the Possession of the Earl of Hume in his Charter Chest, but not upon any other ground to take away his Assignation and solemn Right, which cannot be taken away by Witnesses, but scripto vel juramento, and most of these presumptions are but weak conjectures, no ways inferring that joussie was paid by the Earl of Humes Means, and the great friendship that was betwixt Annandail and Hume alleviats the same, it being the cause for which Annandail forbore to take Infeftment, or do Diligence, thereby to alarm Humes Creditors, that his Inhibition would always work his preference, and on that same ground did consent to several Creditors Rights, there being enough remaining for him, and which was an evidence that this Right was generally known, and that without it Hume could not give Security. The Lords ordained Witness sex● officio to be Examined upon all the points alleged for ●learing of the Trust. The King's Advocate contra the Earl of Mortoun and Viscount of Grandison, February 29. 1669. THe King's Advocate pursues a Reduction of the Rights of the Earldom of Orkney and Zetland, granted by the Deceased King Charles the first, or by this King himself to the Earl of Mortoun, or Viscount of Grandison, and produces a Contract betwixt the King▪ and the Earl of Mortoun, in Anno 1643. and a Charter following thereupon, whereby the Lands are granted, and Disponed blench, with several extraordinary Privileges, as having right to the Bullion, and other Customs of Goods Imported there▪ and also a Charter, in Anno 1646. by the King to the said Earl, relating to a Dissolution in the Parliament 1644. containing nova da●tus, and bearing also blench; there is also produced an Infeftment, granted to the Viscount of Grandison, and after the said Infeftment, a Ratification by the Parliament 1661. In the which Ratification, there is contained a Dissolution of the Earldom of Orkney and Zetland, in favours of Grandison, wherein also the Dissolution, formerly made in favours of Mortoun, in Anno 1644. is particularly Rescinded upon this consideration, that neither the King, nor his Commissioner were present in the Parliament 1644. and that his annexed Property could not be Disponed, nor Dilapidat, without an express a●t of his own Ratified by Parliament. After this Dissolution in favours of Grandison, the King granted no new Infeftment to Grandison; The Advocate having holden the production satisfied with the Writs produced▪ M●●toun and Grandison compeared not at all, and some others having public Rights from them being called, did also pass from their compearance, and submitted to the King's favour, and compearance being made for some of the Vassals holding of Mortoun, they were not admitted, because they produced no Waits to instruct there Interest, so the Lords proceeded to Advise the Reasons of Reduction, which were upon these points. First, That by the Law, and several particular Acts of Parliament, the Patrimony of the Crown being the Lands, and Customs annexed to the Crown, might not be Disponed by the King, unless the 'samine (upon weighty Motives, and Considerations) had been Dissolved by his Majesty, and the Parliament, and Dissolutions● made after Infeftments are not valide, Parliament 1597. cap. 236. and by the 234. Act of that same Parliament, the annexed Property can not be Se● otherwise, but in Feu Ferm, so that the Earldom of Orkney, being annexed to the Crown, by the annexation produced in Process, and the Contract and Charter, 1643. being before any Dissolution, is absolutely null; and the Infeftment in Anno 1646. albeit relating to a Dissolution in Anno 1644. yet no such Dissolution is found in the Records; and though it were, it is Rescinded in the Ratification in favours of Grandison, in the Parliament 1661. upon so weighty a Reason, as the King, or his Commissioner not being present: And because the Parliament 1644. is Rescinded by the Parliament 1661. wherein albeit there be a salvo of private Rights, yet that cannot reach to the Patrimony of the Crown, especially seeing in that same Parliaments 1661. His Majesty having revoked all Deeds done by Him or his Father since 1637. which by the Laws of the Nation, he might not do to the Derogation of his Honour, or Crown, the Parliament has Ratified the same Revocation, as to all Rights granted since. 1637. Contrair to the Laws, and Acts of Parliament preceding 1637. and likewise by an express Act of Parliament, it is provided, that no Ratification in Parliament shall prejudge the Crown● or supply a Dissolution, and that none of the King's Customs (which are also annexed) can be effectually Gifted. The Lords found these Reasons Relevant, and proven, and Reduced all the Rights produced before the Dissolution in Anno 1661. since which there is no Infeftment granted. Pargilleis contra Pargilleis, February 26. 1669. UMquhile Abraham Pargilleis having no Children but one Bastard Daughter, Dispones some Lands acquired by him to Abraham Pargilleis, eldest lawful Son of that Daughter. john Pargilleis his Brother Son, and nearest Heir, pursues a Reduction of that Disposition, as being done in lecto, and the Defender alleged that the Defunct went abroad to Kirk and Mercat thereafter unsupported, and the Pursuer replying that he was supported, and either Party contending for Preference, the one that he walked free of himself, and the other that he was supported. The Lords considering the advantage to the Party that had the sole Probation, would prefer neither, but before answer ordained Witnesses to be adduced for either Party, concerning the Condition the Defunct was in, as to Sickness or Health when he Subscribed the Disposition, and the manner of his going abroad, whether free, or supported: and now the Lords having Advised the Testimonies, by which it was proven that the Defunct was Sick the time of the Subscribing of the Disposition, and that he continued Sick till his Death. It was also proven that he went unsupported a quarter of a Mile when the Seisine was taken, six days after the Disposition, and that after the same he went three times to Calder, and about three quarters of a Mile off, and that he was helped to his Horse, and from his Horse, and that he was helped up Stairs, and down Stairs, but that he walked a foot unsupported in the Mercat of Calder, and up and down from my Lord's House; being three pair of Butts of rising Ground. It occurred to the Lords to consider whether the Sickness proven would have been sufficient, not being ●●orbus sonticus, or in extremis, or whether the presumption of Health sufficient to liege poustie was enough that he came out to Kirk and Mercat, albeit the Sickness remained, and whether the probation of the Sickness remaining could take away that presumption; and whether his being helped to his Horse, and from his Horse, or up and down Stairs, and his Man holding his Bridle as he Road to, and returned from Calder, did infer that supportation, which eleids the presumption of Health by going abroad, or whether the going freely on foot (having only a Staff in his hand the rest of the way) was sufficient to prove that he went abroad in liege poustie. The Lords found that the Defuncts going abroad after the Disposition, as is before expressed, was Relevant to eleid the Reasons of Reduction on Deathbed, notwithstanding of the Defuncts being helped up and down Stairs, and to, and from his Horse, and by leading his Bridle, and that notwithstanding that he continued Sickly to his Death. William Street contra Hume and Bruntfield, june 9 1669. William Street Merchant at London, having sent down a parcel of Skins to Arthure Lyel his Factor at Edinburgh, Lyel Sells the Skins to Hume and Bruntfield, and takes the Bond for the price thereof, in his own Name, payable to himself, without mention of Street, Lyel being Dead Bankrupt, and Street finding that if he should Confirm the value of the Skins as Executor Creditor to Lyel, the rest of Lyels Creditors would come in with him, and share in this Sum which was the price of his Skins, therefore he raised a Declarator against the nearest of kin of Lyel, that the sum due by Bruntfield and Hume, albeit the Bond was taken in the Name of Lyel, yet the same was for streets Goods, and to Streets behoove, and none compearing, he obtains Decreet of Declarator to that effect; and now he pursues Bruntfield and Hume for payment of the Sum, who alleged they cannot be in tuto to pay to any but these who represent Lyel, to whom they were Debtors, and therefore the Pursuer must first Confirm as Executor to Lyel; and as for the Declarator obtained, it was in absence, and they not called, and whenever the Executors Confirms, they cannot exclude them. The Pursuer answered, that he needed not Confirm as Executor to Lyel, because this Debt, albeit in the name of Lyel, yet was not in bonis of Lyel in so far, as it was the price of the Pursuers Skins, which were in the Custody● and Management of Lyel, but never in his Property, but specially, by Lyels Missive produced, he acknowledges the Receipt of the Skins, and that he had Sold them to these Defenders, that he was to take Bond for them; which is the same Bond, and in his Compt-book produced, he states himself only Debtor to Street for ten pound Sterling, that he had reserved of his Bond, and not for the whole Sum, which therefore must import that the remainder remainded Streets; and yet for the further assurance of the Defenders, he offered Caution to warrant them. The Defenders answered, that the Pursuer having entrusted Lyel with the Skins, he had followed Lyels faith, and could not quarrel what Lyel had done with any third Party, so that Lyel taking the Bond in his own Name did alter the Condition of the Affair, and stated himself Debtor to Street, and the Merchant's Debtors to him, and as he might have Received payment from the Merchants, and applied the Sum to his own use, so he might Discharge them, and this sum might have been Arrested, and affected for Lyels Debt, and therefore was in bonis of Lyel, and behoved to be Confirmed, and seeing the Defenders cannot be secure, they were not obliged to accept of Caution to put themselves to two Actions. The Pursuer answered, that albeit payment made to Lyel would have been sufficient, as being made bona fide, yet if Lyel had Discharged without payment, his Discharge would not have excluded Street the Pursuer, neither would Arrestments for Lyels Debt have excluded him, especially the same having been posterior to the Missive produced. The Lords Repelled the Defences, and found the same not to be in bonis of Lyel, nor to be Confirmable as his Goods, but to belong to the Pursuer street; and seeing Street offered Caution to warrant the Defenders, they ordained him to grant the same accordingly. Countess of Dundee contra Mr. james Birsbin, Eodem die. THe Countess of Dundee being possessed in an Annualrent out of the Manes of Dudhop, Anno 1650. and having consented to the Infeftments of other Creditors in the said Mains, in Anno 1659. she is provided to ten Chalder of Victual out of the said Mains, and to certain other Lands, and the provision bears expressly in satisfaction of the Contract of Marriage, and any prior Infeftments, whereupon she pursues a poinding of the Ground. Compearance is made for Mr. james Birsbin, who produces an Infeftment of an Annualrent, in Anno 1648. and offers to prove Possession conform, prior to the Lady's Infeftment in Anno 1659., whereupon she how pursues, and which Infeftment she has accepted in satisfaction of all that can befall to her by her Husband's Death. The Pursuer answered, that she was infest in an Annualrent out of the Mains in Anno 1650. which doth exclude Birsbin, unless he had attained Possession before that time; and albeit this Infeftment in Anno 1659. being in satisfaction etc. yet that Right whereby she accepts the same, is not in favours of Birsbin, but of other Rights to whom the Lady consented, and not to Birsbins to which she never consented, and therefore it must be limited to be only in so far as concerns these Rights related therein. Birsbin answered, that be the Motive or Narrative what it would, my Lady having simply and absolutely accepted this Infeftment in satisfaction of her former Infeftments, the former Infeftments were thereby extinct in the same way, as if she had Renunced them simply to my Lord, whence there is jus acquisitum to Birsbin, deriving Right from my Lord. The Lords having considered the last provision, found that albe●t the Narrative related to Rights consented to by my Lady, yet the Dispositive words were absolute, and so did extend to Birsbin. It was also alleged, that this last security in so far as it bears to be in satisfaction of all others, the acceptance thereof was a Donation betwixt Man and Wife Revockable, and my Lady did now recall it. It was answered, my Lady had Homologat the same after my Lord's Death, by pursuing now thereupon, in which it occurred to the Lords, whether my Lady might recall any part of this last provision, and make use of it in so far as it quadrat with the former Infeftments, or whether she might recall it after she had made use of it after her Husband's Death, which not being Debated fully, the Lords did not decide therein. Evart Loyson contra Laird of Ludquharn and Captain Wilson, june 15. 1669. CAptain Wilson a Privateer, whereof Ludquharn was Owner, having taken Evart Loyson and his ship, obtained the same to be adjudged Prize by the Admiral, as carrying Flax and Hards, which were Counterband; which Decreet the Strangers Suspend, and raised Reduction upon these Reasons, that this Ship and Goods belonged to one Clepan in Bruges, the King of Spain's Subject, and was declared Prize upon no other ground, but because she carried Tow and Hards, which are not Counterband, but are necessary in some quantity in every Ship for Calsing; and by the Treaty betwixt the King, and the King of Spain, there is an express Article, that though Counterband be deprehended in Spanish Ships, only the Counterband shall be Prize, and not the Ship and Goods. It was answered, that this alleadgeance was competent, and Omitted before the Admiral. It was answered, that these cases with Strangers are to be Ruled by the Law of Nations, and not by peculiar Statutes and Customs. The Lords reponed the Strangers to their Defences, as in the first instance, and also allowed the Privateer to insist on any grounds for making of the Ship Prize, which he did not formerly insist on, whereupon the Privateer insisted upon two grounds. First, Because by the Law of Nations, and the King's Proclamation of War, Allies and Neuters must not make use of the King's Enemies to sail their Ships, and therefore the Proclamation of War bears expressly, that all Ships shall be seized, bearing any number of Men of the King's Enemies, and this Ship had the major part of her Company of Hollanders, than the King's Enemies, as is evident by their own Depositions taken before the Admiral. 2dly, This Ship was not only sailed by Hollanders, but the Ship, or major part thereof, and the Loadning belonged to Hollanders, and any pretext that the same belonged to the King of Spain's Subjects is a mere Contrivance, it being most ordinar the time of the War for the Hollanders to Trade under the name and covert of the Flemish, the King of Spain's Subjects, which appears in this Case by many evidences. First, Both the Merchant and major part of the sailors, by their own confession are Hollanders, and they have adduced nothing to be a sufficient probation that the whole ship and Goods belonged to Clepan in Bruges; but on the contrair the Skippers first Testimony at Linlithgow bears, that this Ship and Goods belongs to Clepan and Revier, which Revier being taken Aboard, acknowledges that he was born in Holland, but says that two or three years before the seizure he dwelled in Gent, and Brussels, under the King of Spain; and having a Diligence granted to prove his Domicil the time of the War, and Capture, all that he proves, is that in March 1667. he hired a House in Brussels, and began to set up there, and that sometime before he had lived with his Mother in Gent, but proves not how long, or that it was his constant Domicil, for that was an ordinar contrivance for Hollanders to hire Houses in the Spanish Netherlands, and to pretend to be Subjects there, but they being Hollanders at the beginning of the War, concurring, and contributing to the War, albeit they had truly removed tempore belli, they continued to be the King's Enemies; much less can their taking a House else where, sufficiently prove that they totally deserted the Hollanders, and concurred not with them in the War, it being easy to have Domicils in divers places. 2dly, The contrivance is yet more evident, in that the Goods were Shipped by Rivier at Fleck in Holland, and sailing from thence to Copperwil in Norway, and was taken, having no Pass from the King of Spain for this Voyage, but had a pretended Pass from the Duke of York, which albeit it bears relation to the same Ship called Charles the second, yet by the Testimonies of the Witnesses, it is evident to have been granted two years before this Ship was Built, which is an evident cheat; and for the Pass from the Governor of the Netherlands, it bears but to last for a year, and was expired before this Voyage; and as for the Pass from the Chamber of Commerce, it was granted for a former Voyage, from Ostend to France, which is clear by the Testimonies, which bear also that there could be no Pass gotten for this Voyage, because this Ship was lying in Fleck, and not in the King of Spain's Ports, and so the Loading could not be their lying, and wanted Oath taken thereupon that it belonged not to the King's Enemies, as is requisite in such Cases. It was answered for the Strangers, to the first ground of Adjudication▪ that it was no way sufficient. First, Because the King of Spain being an Ally by a perpetual League, his Subjects were not to be regulat by the King's Proclamations, but by the solemn Treaties betwixt both Kings, which setting down the causes of Seizure, must necessarily import that seizure should be for no other cause than is therein expressed. 2dly, The Articles bear expressly, that any of the Spanish Subjects having a Pass conform to the formula set down in the Articles, should be no further troubled, which formula requires nothing as to what Country the Sailors are of, and therefore there can be no seizure upon the account of the Sailors; for albeit by the Swedish Treaty, the Swedes are allowed to have a Dutch skipper ● 〈◊〉 becoming a sworn Burgess of some Town in Sweden, and he residing there, from whence the Lords have inferred that the Swedes may not sail with Hollanders, and have declared some of them Prize upon that account, yet this cannot be exended to the Spanish Subjects, in whose Treaty there is 〈◊〉 such thing. 3dly, By an Act of the Council of England produced, it appears that his Majesty gave Order that all Flandrian Ships that were taken should be dismissed, if there were no other ground of seizure, but that they were sailed by Hollanders, until his Majesty review the Flandrian Concessions, and give further Order, and there is a particular Concession to the Flandrians beside this Treaty, in regard their Language and the Hollanders is one● they should not be seized upon the account of being sailed with Hollanders; and 〈◊〉 to the other ground, the Passes and Testimonies prove sufficiently that the Goods belong to Clepan in Bruges, and there is but one Testimony of the Skipper, that Revier is Owner, which Testimony was taken at Linlithgow, the Clerk or Interpreter having Interest in the Caper, and the Skippers Testimony being again taken by the Admiral at Leith, says nothing of Revier, and albeit it did he is but one Witness, and any Hollander deserting Holland the time of the War, ceases to be an Enemy, because the King invited such as would desert his Enemies, to come live in England● so that it is both his Majesty's Interest and Intention in any way to weake● his Enemies, by causing their Subject's desert them. It was answered for the Privateer, that the Strangers could not pretend Right to the Spanish Treaty, seeing they wanted a Pass conform thereto, and that it could not be inferred negative from the Spanish Treaty, that seizures should only be for the Causes therein expressed, there being no such Article in the Treaty, and the Law of Nations, and the King's Proclamation being the Rule of War the Treaties with Allies do only explain or restrain the same, and giveth exceptions from the Rules▪ for instance the Spanish Treaty makes Counterband not to in●er seizure of the Ship and Goods, which is valide, though a Privilege derogator to the Law of Nations, but speaks nothing whether the carrying of Enemy's Goods shall make the Ship Prize, so that that Privilege, not being granted by the Articles, the Law of Nations takes place, and the Ship may be declared Prize; likeas in the case of Overvails Ship Decided in the last Session, all that is there alieadged, being here alleged, Overvail not instructing any Flandrian Concession to sail with Hollanders, his Ship was Declared Prize upon that same very ground, and the Testimony of the Skipper at Linlithgow is most unsuspect, it being taken before the Skipper was otherwise prompted to Depone, neither had the Clerk any interest, but the most that can be pretended is that he had relation to some of the Owners, which signifies nothing, and the Skipper by his Office, being the person Commissionat by the Owners, who by his Office, may Sell or Burden the Ship, without a special Commission, his Oath makes a full probation against the Owners who Entrusted him, especially here where the Merchant, and most part of the Company by their own confession are Hollanders, which proves sufficiently for the Privateer, unless they instruct that the Ship and Goods belonged to free men, and them only, which they have not done evidently and surely, by all that they have produced, but the Skipper (who is the main Man to be trusted) is contrary, therefore it may be, and is presumed to be a Contrivance, to carry on the Trade of de Rivier a Hollander, under the name of Clepa● in Bruges his Brother in Law. The Lords upon the whole matter declared the Ship and Goods Prize, but● found not that the want of a Pass alone was sufficient, neither did they put it to the Vote by itself, whether the sailing by Hollanders alone would have been sufficient, notwithstanding of the Treaty, and the King's Order, Extracted out of the Council of England, which though it related not to Scotland, some of the Lords thought it was sufficient, unless it did appear that the King had given contrair Order, others thought not, unless that Concession could be otherwise shown. Thereafter the Srangers offered to prove positively that there was a Concession, which the Lords would not Sustain, in regard that the last Session, the first of june, was given (before answer) to prove the Concession, and the Term was now circumduced for not proving thereof. Scot contra Langtoun, june 19 1669. IOhn Graham of Gillesby having Wodset certain Lands to james Langtoun, he did thereafter (with consent of Earl of Annandail Superior) Eike twelve hundreth Marks to the Reversion, and the Earl Ratified the former Wodset, and Graham with his Consent of new Disponed again the Lands for the Sums in the first Wodset and Eike, and Added some other Clauses, the first Wodset was before the Act between Debtor and Creditor, and by virtue thereof the Wodsetter was in Possession; the second Wodset was after the said Act, the Superior Consented only to the second wodset, and of the same Date gave a Gift of graham's Liferent to Robert Scot, whereupon Robert having obtained general Declarator, pursues now special Declarator for the Mails and Duties of the Wodset Lands, as falling under the Liferent of Graham, the Granter of the Wodset. It was alleged for Langtoun the Wodsetter, that he ought to be preferred to the Donator, not only for the first Wodset, which was constitute before the Rebellion, but for the second Wodset, comprehending the Bike, because the Superior by his Consent to the second Wodset, without any Reservation, had Communicate all Right in his Person; and consequently the Liferent Escheat of Graham; the granter of the Wodset, in the same manner as if he had given the Wodsetter a Gift thereof, and so no Gift, no being anterior to the other could prejudge the Wodsetter. It was answered for Scot the Donator, that the alleadgeance is no way Relevant to exclude his Gift, unless the Wodsetter could allege a Deed Denuding the Superior, anterior to the Pursuers Gift; but here the Superiors Consent is not anterior, but of the same days Date, and may be posterior, and therefore the Gift which is the habilis modus, must be preferred unto the Superiors Consent to the Wodset, which is but indirect, and consequential to infer the Right, as Liferent, at least both must be conjoined, and have equal Right, as done simul & semel. It was answered for the Wodsetter, that the Superiors Gift must not be preferred to the Consent, though of the same Date, because he was then in Possession of the Wodset Lands, and needed no Declarator, and the Gift is but imperfect, until a general Declarator, which is the Intimation thereof, no Declarator being requisite to the consent of the Superior to the Wodsetter, and so is preferable. The Lords preferred the Wodsetter. It was further alleged for the Donator, that the Wodsetter must restrict himself to his Annualrent, and be countable to him for the superplus, seeing now he makes an offer to find the Wodsetter Caution, and so he must either quite his Possession, or restrict conform to the Act betwixt Debtor and Creditor. The Wodsetter answered, that his second Wodset bearing, not only a Ratification of the first Wodset in all points, but a Disposition of the same Lands, falls not within that Clause of the said Act of Parliament, which Regulates only Wodsets prior to that Act; and the new Disposition makes the old Wodset as extinct and innovat. The Donator answered, that there being a jus quaesitum, conform to the Act, as to the former Wodset, the posterior Ratification cannot derogat therefrom, or take it away, unless it had been expressed, and in meritis causa, it was alleged that the Wodsetter had near the double of his Annualrent. The Lords preferred the Donator as to the Superplus, more nor the Annualrent of the first Wodset, and ordained the Wodsetter to Restrict. The Wodsetter further alleged, that the Gift was Antedated and Simulate to the Rebels behoove, and so accresced to the Wodsetter. Which the Lords Sustained, and found the Simulation probable by the Oath of the Superior, and the Witnesses insert in the Gift. Hamiltoun of Corse contra Hamiltoun and Viscount of Frendraught. june 22. 1669. WIshart of Cowbardie having Wodset his Lands of Bogheads and others, to George Hamiltoun, from whom the Viscount of Frendraught has now Right, he did thereafter sell the same Lands to john Hamiltoun of Corpse, who took the Gift of Wisharts' Fischeat, and having thereupon obtained general Declarator, pursues now in a special Declarator for the Mails and Duties of the Wodset Lands. Compears George Hamiltoun and the Viscount of Frendraught, and produced the Wodset Right, and alleged that the Liferent Right cannot reach the Wodset Lands, because the Gift is Simulate to the behoof of Wishart the Rebel and common Author, and so is jus supervenient author's, accrescens successori, to defend this Wodset Right, and condescends that it is Simulate, in so far as it is offered to be proven, that Wishart the common Author did allow to the Donator in the price of the Lands, not only the sum whereupon the Horning proceeded, but also the Expenses of the Gift; so that it is purchased by the Rebels Means, whence the Law presumes it to be to his behoof. It was answered, that this Condescendence cannot infer Simulation to the Rebels behoove, because it was lawful to Hamiltoun of Corpse, finding that his Right was not secure to fortify the same by this Gift, and in his account of the price of the Land upon the Warrandice, he might require Retention, not only of the sum in the Horning; but of his Expenses in necessarily purchasing the Gift, and might apply the same for the Security of the Lands bought from the Rebel only, which is to his own behoof: but if he were extending the Gift to other Lands of the Rebels, that might be presumed to the Rebels behoove, because the Donator had no anterior interest of his own to these Lands. It was answered, that if the Rebel had given the Money to purchase the Right, before it was purchased, it would infer unquestionable Simulation; and it is wholly equivalent, that having then the Rebel's Money in his Hand, the Rebel ex post fact, allowed the Expenses of the Gift. 2dly, Albeit such an allowance ex post facto, would not be sufficient, where the Donator acquired the Right to the Lands bona fide, and then ex necessitate, behoved to purchase the Gift to maintain his Right: but here the Donator was in pessima fide, and most unfavourable, because if need beiss, it is offered to be proven by his Oath or Writ, that he knew of George Hamiltouns Right, and that the same was complete before he bought from the common Author, and so is particeps frandi● with his Author, in granting double Rights contrary to Law: and therefore the presumption of Simulation and Fraud, aught to proceed against him upon the more light Evidence. The Lords found the Ground of Simulation not Relevant, upon taking allowance from the Rebel of the price, if it was done for the maintaining of a Right bona fide acquired: but found that it was sufficient to infer Simulation, if the Right was mala fide acquired; and that the Donator, at, or before he bought the Land, knew of the other Parties Right. Pearson of Balmadies contra The Town of Montross. june 23. 1669. PEarson of Balmadies being Collector of two of ten, and the sixteen penny imposed by Parliament anno 1633. and the Magistrates of the Town of Montross, having Written a Letter to him, promising Compt and Payment in anno 1637. Some few days after the Letter, he made Compt with Orbistoun, general Collector, and Charged himself with the whole Taxation of Montross, as received. And in anno 1654. obtains a Decreet against the then Magistrates, holding them as confessed upon the quantities of Taxation of their Burgh. They now Suspend on this Reason, that the Decreet was in absence, and the Magistrates only holden as confessed, and they are now content to Depone, that they never had any Stint Roll of the said Taxation; and by the Chargers Compt produced, he acknowledges the proportion of Montross received. And further alleadges, that there being neither Warrant from King nor Parliament, there should be no Charge or Pursuit Sustained for these old Taxations, especially of Money, where the most part of the Moneyed Persons liable then, are now insolvent; and the Town cannot get their Relief. But as for the Land Taxation, the King has given Warrant to lift it, and it is still secure, being debitum fundi. The Charger answered, that he being neighbour to the Town, did upon their desire, delay to distress them, and held Compt for them, as appears by their Letters produced: and therefore it will not infer that Charges may be used upon the Act of Parliament only, unless Parties had given Writ therefore, and the Magistrates were obliged by the Act of Parliament, to have uplifted the Taxation debito tempore, and paid it to the Collectors; and it must be presumed they did so, or if they did not, it was their fault, in the Discussing of this Cause. It occurred to the Lords, that this Taxation not being imposed upon the Towns Common-good, but upon the Inhabitants severally, for their Money, and that the Magistrates were not countable to the Town for the Taxation of Money, nor were they liable for their Magistrates, who had not this power of Collection by their Office, but by the Commission of Parliament therefore. The Lords found the Town and present Magistrates not liable, but prejudice to the Pursuer to insist against the then Magistrates, their Heirs and Executors. Robert Fairy contra james Inglis. Eodem die. RObert Fairy having Charged james Inglis younger of Mordistoun for 1000 marks due by Bond, he did Suspend and raised Reduction upon Minority, Lesion and Circumvention, Litiscontestation was made upon the Reason of Minority, and the Term was Circumduced; and he Discerned. He Suspends again, and insists upon the second Reason of Reduction, upon Circumvention, and qualified it thus, That albeit the Bond bear, borrowed Money, yet he offers to prove by Fairy's Oath, that the true Cause was the Boot between a Horse and a Mare interchanged betwixt the Parties: and albeit the Suspender gave as good as he got, yet he was induced to give this Bond of 1000 marks to Boot, so that he is lesed ultra dimidium justi pretij, which in Law is a sufficient Ground alone to dissolve the Bargain, and restore either Party, actione redibitoria & quanti minoris: and next in so gross inequality, ex re praesumitur dolus. The Charger answered, that the Reason is no way Relevant, because our Law and Custom acknowledges not that Ground of the Civil Law, of annulling Bargains, made without Cheat or Fraud upon the inequality of the Price; neither can there be any Fraud inferred, upon the account of the Price of an Horse, which is not quantitas but corpus, and has not a common Rate, but is regulat secundum praetium affectionis, and now the Horse and the Mare not being to be shown in the condition they were in; the Suspender cannot recall the Bargain. 2dly, The Reason ought to be Repelled, because by a Ticket apart with the same Date of the Bond, the Suspender declares upon his Soul and Conscience, that he should never Impugn the Bond; and thereafter by his second Bond produced, he Ratifies the same, and passes from any Revocation thereof, or quarrel against the same. The Suspender answered, that he was content to refer to the Chargers own Oath, whether in the Chargers own esteem of the Rate, the Suspender was not lesed above the half: and as for the two Tickets, the first was obtained when he was Minor, and both laborant eodem vitio, the inequality still remaining without satisfaction. The Lords in respect of the Tickets, and Ratification after Majority, and that there was no Fraud or Deceit qualified, they repelled the Reasons and Discerned. Fairy contra Inglis. june 24. 1669. AT the Reporting of the former Interlocutor yesterday, Fairy against Inglis. It was further alleged for Inglis, that he offered him to prove by Fairy's Oath, that he was Circumveened, in granting of the Ratification, because Fairy upon that same Design drank him drunk. Which Alleadgance the Lords Repelled in respect of the Bond and first Ticket, wherein he Declared upon his Soul and Conscience never to come in the contrary. Stevart of Gairntilly contra Sir William Stevart Eodem die. SIr William Stevart having granted a Bond upon their Terms, that whereas he had obtained Disposition of the Lands of Innernytie, partly by his Father's Means, and partly by his own, and partly for granting the Bond underwritten; and therefore he obliges himself to Infeft jean Stevart his Sister and the Heirs of her Body, which failzying, ocertain Persons Substitute, his Brethren and Nephews, and a part of it t● return to himself, and obliges himself to pay the Annualrent yearly to the said jean, and the Heirs of her Body, and other Heirs of Tailzie foresaid, during the not Redemption of the said Annualrent, then there is insert a Reversion of the Annualrent, from the said Jean and her foresaids, by the said Sir William upon the payment of 20000. Marks, and then a Clause of Requisition, that if Jean after her Marriage desire the Money, she or her foresaids might require the same to be paid after her Father's Death, and then a Clause that the said sum of 20000. should not be payable till five years after her Father's Death, and after her own Marriage. The said Jean Assigns this Bond to her Brother Sir Thomas, and he Charges Sir William, who, and some of the other Substitutes Suspends on these Reasons: First, That by the Conception of the Bond, it was clear the principal Sum was not payable till jean's Marriage, and she being Dead unmarried, is not now payable at all, whereupon the Charger insisted for the bygone Annualrents, and for granting an Infeftment of annualrent to him as assignee, conform to the Bond: The Suspenders Reasons against the annualrent, were first, That this being an annualrent accessary to a principal Sum, ablato principali tollitur accessorium, so that the principal Sum being now not due to any by jeans Death, Dying unmarried, the annualrent also must cease from her Death. 2dly, The annualrent is conceived payable to jean and her Heirs▪ but no mention of Assigneys. 3dly, Albeit ordinarily in such Obligations or Infeftments following thereon, the first Person is Feear, and the Substitutes are but Heirs, who cannot come against the Feears Deed by Assignation, or otherways; yet where the Obligation is gratuitous, and proceeds not upon sums of Money belonging to the Creditor: but upon the free Gift of a Parent bestowing the Sum, there the Substitution implys a Substitution and Obligation upon the first Person, and the Heirs of their Body, to do no voluntar Deed to evacuat the Substitution; so that albeit a Creditor or Successor, for a Cause onerous, might exclude the Substitutes; yet another Heir appointed by the first person or a Donator, or gratuitous assignee cannot evacuat the Tailzie, and exclude the Substitutes, because in such Contracts, uberrima fidei, the mind of the Party who Gifted, and freely granted the sum, is chiefly to be considered: so that it cannot be thought to be old Gairntillies mind, that his Daughter might Change the Substitution, and elude the Conditions of the Bond, for the Suspending of the Requisition of the principal Sum, till jean were married, must import that his meaning was, to give her the Annualrent only till that time, and the principal Sum to be a Tocher if she married, which was to no purpose, if the Annualrent remained perpetual; for then the Heretor would certainly Redeem to purge his Land, as he had done, and the Sums Consigned would belong to the assignee, and the Clause Suspending the payment thereof, if jean married not, signified nothing, sed verba sumenda sunt cum effectu; and the meaning of the Parties, and conception of the Condition Suspensive must be preserved. The Charger answered, that he opponed the Bond, wherein, without all question Jean was Feear, and the Substitutes being the Heirs of Tailzie, cannot quarrel her Deed, but are bound as Representing her to fulfil the same; and albeit jeans Assigneys be not expressed, yet they are ever included, where they are not expressly excluded; neither is this Annualrent stated as a mere accessary, because the Requisition of the principal Sum may be Discharged, or may become by the Suspensive Clause ineffectual, as now it does; and yet the Obligement or Infeftment of Annualrent remains a perpetual Right, though Redeemable at the Debtors option; neither is there by Law or Custom any difference or exception, whether the Annualrent be gratuitous, or for a Cause onerous: and for the meaning of the Father, procurer of the Bond, it must be understood as it is expressed, only to exclude the lifting of the principal Sum by jean, upon the Clause of Requisition, if she were not married: and if his mind had been otherways, it had been easy to have adjected a restrictive Clause, or in stead of the Substitution, to have set down a Provision, that if jean died unmarried, the annualrent should belong to her Brothers and Sisters nominat: but this being an ordinar single Substitution, hath neither expressly nor implicitly any Condition or Obligation upon the Feear, not to Dispone. The Lords Repelled the Reasons of Suspension, and found jean to be Feear of the Annualrent, and that she might assign the same, and that the Substitutes could not quarrel the same. Kennedy and Muir contra jaffray. Eodem die. MR. john jaffray being presented to the Parsonage and Viccarage, Teinds of Maybol, and having obtained Decreet conform, there is a double Poinding raised by the Heretors and Possessors of Fishartoun: Mr. john jaffray craves preference as Parson, and so having Right to the whole Benefice: the other party called is Grange Kennedy, and Muire of Mank-wood, who craved preference on this Ground, that the Teinds of Maybol was of old, a part of the Patrimony of the Nunnery of North-Berwick, and the Prioress for the time, with the consent of one Nune, who was then only alive, set a Tack thereof, to Thomas Kennedy of Bargany, and Gilbert Kennedy his Son, and to Gilberts first Heir, and after all their Deaths for three nineteen years: The Prioress having thereafter, at the King's Desire, Resigned the Teinds of Maybol to be a Parsonage, did in her Resignation, except the Tack set to Barganie, which was always clad with Possession, and was assigned to David Kennedy of Ballimore, and Transferred to Mr. john Hutcheson, and by him to Kennedy and Muir, as to the Teinds of Fishartoun, whereupon they crave preference. It was answered for jaffray, that by their Right produced, there is related another Tack granted by Mr. James Bonar, Parson of Maybol for the time, to the Lord Ochiltrie, which came by progress in the Person of Ballimore, having then in his Person, Barganies Tack, so that Ballimores taking that Right, acknowledges the Parson's Right, and passes from his former Tack, unless in his Right he had expressly reserved his former Tack; so that neither Ballimore nor these Assigneys can now make use of Barganies Tack, it being a certain Ground, that the taking of a posterior Tack, having a greater Tack Duty, or a shorter Term evacuats a prior Tack in that same Person. It was answered, that the alleadgance is no ways Relevant, Ballimore not having immediately taken a second Tack, but only finding another Tack by progress in the Person of the Lord Binnie, to remove that impediment, and shun his trouble, he purchased Right thereto, but never brooked thereby. The Lords found that the taking Right to another Tack, did not infer a passing from the former Tack, unless it were proven, that the posterior Tack had a greater Duty, or shorter durance, and that Ballimore had paid the said greater Duty to Bonar, or bruiked expressly by the later Tack. June 29. 1669. CAptain having taken at Sea, obtained him to be declared Prize, upon this ground, that he carried Clapboard, which is expressly mentioned as Counterband in the Commission of the Admiral of Scotland, given to the Caper, and was the same Style with the Commission Recorded in the Books of Admiralty, given in the time of War, in the year 1628. The Strangers raised Reduction of the Admiral's Decreet, on this Reason, that Clapboard being a general Name, comprehending many kinds of Board's, that Clapboard could be only understood Counterband, which had not a promiscuous use in Peace and War, but was instrumentum bellicum, carried by the King's Allies to his Enemies, to be Sold to them for assisting of the War, which this Loading could not be, because it consisted all of Knappel, cutted all at three Foot and an half length, the proper use whereof is for Barrelis, and is no ways instrumentum bellicum. The Lords having given Commission to some of their number to visit the Knappel, and to Examine Sea-wrights, whereupon they did Examine a number, whether this Timber in question was useful for War or Shipping, and most Deponed, that it was not, and some Deponed, that it might be made use of to be Pins or Tubs; but that it was not ordinarily made use of for Shipping, but common Oak, which was far cheaper. The Lords did also before answer, ordain either Party to adduce such Testificats and Evidences, as they could from the Admiralties of Neighbouring Nations, what was the Custom of Nations, whether upon such Timber as this, the Ships of Neuters or Allies were made Prize. The strangers produced several Testificats▪ one from the Customhouse of Amsterdame, bearing, that such Timber was not accounted Counterband in Holland, and one from the Spanish Admiralty at Ostend, bearing, that they knew not that by their Custom, and the Custom of other Admiralties such Timber was Counterband, one from a Deputy, who served in the French Admiralty at Dunkirk, declaring that in that Admiralty, such Timber was not accounted Counterband; one from the King's Auctorney, and another Lawer, who served in the Court of Admiralty of England, bearing, that during the War, none had been declared Prize upon that account. The Privateer produced no Testificats, but alleged that there ought no respect to be had to the Testificats produced, it being easy to impetrat such, and there should a Commission been direct by the Lords, to the several Chief Admiralties of the Neighbouring Nations, to express what was their Custom in this Point. Notwithstanding the Lords found the Ship Prize, as carrying this Clapboard, being contained in the Admiral's Commission, a great part of the most able of the Lords being of the contrary Judgement. Earl of Argile contra His Vassals. june 30. 1669. THe Earl of Argile being Donator to the Forefaulture of the late Marquis of Argile, his Father, Pursues an Improbation of the Vassals Rights, and craved Certification. The Vassals alleged no Certification against their Rights, because any Right the Earl had was qualified by the King's Gift, that he should only have Lands paying 15000. pounds, and that the rest should be conveyed to the Creditors, and the Creditors thereupon claiming the Property of the Vassals, as falling within the Forefaulture, His Majesty Wrote a Letter, Declaring that it was not His meaning by the Gift, that the Creditors should have any more Lands conveyed to them then the remainder of the Property belonging to the late Marquis, over and above this Earls part, and that the Superiority should entirely belong to the Earl and his Successors, by which His Majesty's Mind and Pleasure is evident, that the Earl should only have the Superiority, and not the Property of the Vassals. 2dly, The Vassals offered to produce what Rights they had flowing from the House of Argile, but there could be no Certification, as to what they had not, in respect of the Troubles, especially no Certification, for want of Confirmation of the Vassals Rights by the King, because several of the Vassals continued Loyal to His Majesty, during all the Troubles, and some of them loosed their lives in His Service, opposing the said late Marquis himself: So that it can never be thought to be His Majesty's purpose or pleasure, so to restore this Earl the Marquis Heir appearand, as thereby to Forefault the Vassals, who adhered to His Majesty, and who durst not in time of these Troubles have fought Confirmations, His Majesty's Exchequer being then in the manadgement of these who were in opposition to Him. It was answered for the Pursuer to the first, that neither by the Pursuers Gift from His Majesty, nor by the foresaid Letter, there is nothing granted to the Vassals in opposition to the Earls Right, but in opposition to the Creditors, that they should have no hand in the Vassals Estates. Likeas, His Majesty by His last Ratification and Charter under the Great Seal produced, hath most distinctly and clearly expressed His meaning and pleasure, that by the foresaid Gift or Letter, His Majesty did only Exclude the Creditors from the Estates of the Vassals, but thereby Declares, that not only the Superiority and Casualties thereof should belong to the Earl, but the Property of all these who had not sufficient Rights from the House of Argile, and Confirmations from the King, and that the Earl might Intent all Actions competent of Law, for that effect. It was answered for the Vassals, that if their true condition and adherence to His Majesty, had been understood His Majesty would not so have Declared, and that post jus quaesitum to them by the King's Gift and Letter, no posterior▪ Declaration impetrat from His Majesty, should prejudge them, at the least, they humbly craved that the Lords according to their former Interlocutor, would Represent the Case to His Majesty, that His Pleasure might be known, and that His Majesty might interpose with my Lord Argile, not to insist against the Vassals, who had been Loyal. It was answered for the Earl, that he had given no just grounds to his Vassals to expect, that though they were in his power, that he would destroy them, and annul their Rights: and seeing His Majesty had fully and absolutely entrusted them to him, they ought to have rested upon His Kindness and Generosity, and not to have made all this Clamour, where they have no Legal Defense, it being no strange nor new thing, for the King to give Gifts of Forefaulture without any Reservation of Vassals, who had no Confirmation from the King, yea many times without any Reservation of the Forefault Persons Debt, and His Majesty has lately so done to the Marquis of Huntly, to whom he gave the Estate of Huntly, without Reservation, either to Vassals or Creditors, and that upon the Forfeiture of the Marquis of Argile, who had Right to, and was in Possession of the Estate of Huntly for vast sums of Money, and the Earl of Argile has the Gift of the remainder of his Father's Estate, with the burden of more Debt, than the proper Debt of the House of Argile would have been, over and above the Debts undertaken for the House of Huntly. 2dly, Whatever the Vassals might plead in Point of Favour: yet they do not pretend to a Defense in Law. And the Lords being Judges of the Law, ought not to stop the Course thereof, upon the Insinuations of any Party; otherways they may deny the Course of Law to any of the lieges, when they please, upon the account that they think the Law hard, or rigorous, or the King's grants made conform thereto; and whatsoever the Lords might do in the dubious Interpretation of a Treaty of Peace, to know the King's meaning; yet in claris ●on est locus conjecturis, nothing can be clearer than the King's meaning, under His Great Seal, and all the Defenders can pretend, is Favour, which is no Point of Right, nor legal Defense. The Lords granted Certification e●n●ra non producta, conditionally, that what the Vassals should produce betwixt and the tenth of November, should be received; and left it to the Vassals in the mean time, if they thought fit to make Address to the King, that he might interpose with the Earl in their Favours, or to Debate any thing they thought fit, when the Earl insisted for Reduction of their Rights, for want of Confirmations, or for Mails and Duties. Agnew contra Tenants of Dronlaw. Eodem die. AGnem having apprised the Lands of Dronlaw from Mr. Robert Hay Advocate, as Cautioner for the Earl of Buchan, to the behoof of the Earl of Kinghorn, pursues the Tenants for Removing, who alleged Absolviture, because the Tenants were Tenants by payment of Mail and Duty to the Liferenter, Mr. Robert Hayes Mother, and she is not warned nor called. The Pursuer answered, that the Liferenter died before the Term, and that he was content, that the Tenants should be Discerned to Remove but at the next Term of Whitsonday. Yet the Lords Sustained the Defense, seeing the Liferenter was living the time of the Warning. Farquhar contra Magistr●tes of Elgin. july 2. 1669. FArquhar having caused a Messenger Charge the Magistrates of Elgin to take my Lord Lovat, and the Bailies being together upon the Street, about eight or nine a Clock in the Morning, the Messenger, with several other Persons present, Charged them to go into an House near by, which they designed to them, and to take Lovat, being then in Bed, and the Messenger offered to go with them, and enter first, yet the Bailies did not obey, but said they would go at their conveniency, when they had convened their Neighbours to assist; there is an Execution, and Instrument upon the back of the Caption, to the effect foresaid produced; whereupon Farquhar pursues the Magistrates for Payment of the Debt contained in the Caption. The Defenders alleged Absolviture: First, Because they were no further obliged but to conveen the Neighbours of the Town, and send them with the Messenger to assist, which they offered to do. 2dly, Albeit themselves were obliged to take the Rebel if he were shown to them within their Jurisdiction, yet they were not obliged to search every House of the Town for him, or to enter within closle Doors. 3dly, The Lord Lovat being known to be a fierce young Man, who ordinarily had a Minzie attending him, they were not obliged to adventure upon him, without calling the assistance of their Neighbours, which they did within an hour or two thereafter, and he was gone. The Lords Repelled all these Defences, in respect of the Execution and instrument produced, and found the Magistrates, being Charged, obliged to take the Rebel, and without delay to search any House within the Town that was particularly shown to them, unless they had been Repulsed by Force, or the Doors by Violence keeped close against them by the Master of the House, and ordained the Pursuers to adduce the Witnesses in the Instrument, and others to prove the particulars foresaid, to have been so done as is therein expressed. Bow contra Campbel, Eodem die. BOw Stabler in Edinburgh as assignee to a Sum of Money due by Glenurchy, and also as Donotar to the Escheat of his Cedent, being called in a double Poinding, and competing; the Donator alleged he ought to be preferred to the Arrefter, because the Debt in question falling in his Cedents Escheat, he had taken the Gift of the Escheat, bearing expressly all Goods the Rebel had, or should acquire, and this Debt. being acquired, after the Gift did accresce to him, the Rebel not being yet Relaxed. It was answered, that though the stile of the Gift bear all Goods to be acquired, yet that is always interpret such as happen to be acquired within year and day after the Horning. It was answered for the Donatar, that he oppones the Tenor of his Gift, and if any limitation could be thereof, it could only be of Sums to be acquired within a year after the Gift, and not within a year after the Horning, because sometimes Gifts are not taken within a year of the Horning. The Lords found the Gift to extend to the Sum in question, being acquired by the Rebel within a year after the Gift, and that the general Clause of Goods to be acquired, did extend no further then to Goods acquired within a year after the Gift. Laird of Grubbet contra More, Eodem die. THe Barony of Lintoun belonging to Sir john Ker of Litledean, the Lands of Morbatle and Otterburn are parts thereof; there is a piece of Land called Greenlaw, lying in the borders of Morbatle and Otterburn, and there is an heritable Right of the Lands of Otterburn granted by Sir john Ker to one Young, and by that Young a subaltern Right to another Young, bearing the Lands of Greenlaw per expressum, both these Young's jointly Dispone to Grubbet the Lands of Otterburn, with the Pertinents, comprehending the Lands of Raschbogs; in the end of which Disposition there is a Clause, bearing that because the Young's were kindly Tenants in the Lands of Greenlaw, therefore they Dispone their Right thereof, and kindlynesse thereto, to Grubbet, More having acquired the Rights of the Lands of Morbatle from Sir john Ker; and the Earl of Louthian having Apprized Sir John's Right of the Barony of Lintoun, in Anno 1636. gives a particular Right of Greenlaw alone, which is now also in the Person of More, whereupon arises a Competition of Right between Grubbet and More, Grubbet alleged that he has Right to Greenlaw, as a Part and Pertinent of Otterburn, which he and the Young's his Authors have Possessed far beyond 40. years, as Part and Pertinent of Otterburn, and offers to prove that there is standing Marches between Morbatle and Otterburn, within which Marches, Greenlaw lies on Otterburn side, and that his Infeftment produced granted by Young to Young, bears expressly Greenlaw. It was alleged for More, First, that Grubbet cannot pretend Greenlaw to be Part and Pertinent of Otterburn, because by his own Infeftments produced, granted by the Young's, and accepted by him, Greenlaw is not expressed as Part and Pertinent of Otterburn, albeit Raschbog tho less considerable than it, be expressed, and on the contrair, it is declared that the Young's were kindly Tenants of Greenlaw, and Disponed their kindness thereof; and offers to prove that the Young's were in constant custom of Service to Sir john Ker in Arms and otherways whenever they were required, and that most of the Lands on the border were Set only for Service, which Service could not be attribute to Otterburn, because it was holden blench of Sir john, and if need be's, offered to prove by Witnesses, that when the said Young's came not to the said Service they were poinded therefore. 2dly, More offered to prove that Greenlaw is a distinct Tenement, both from Otterburn and Morbatle, and hath past as a distinct Tenement since the year 1636. and hath a known March between it and Otterburn, viz. a Know-worth 3dly, For Grubbets pretence of bruiking Greenlaw as Part and Pertinent of Otterburn for 40. years, so that he might claim it by Prescription, the alleadgeance ought to be Repelled, first because Prescription cannot proceed without an Infeftmen, and it cannot be ascribed to the Young's Infeftment, wherein they acknowledge that they were kindly Tenants of Greenlaw, after which no course of time can ever prescribe a Right to Greenlaw, as part and Pertinent of Otterburn by that Charter, and therefore any Possession that is thereof is without Infeftment. 2dly, There is not forty years' Possession, abating Moor's Minority. 3dly, There are interruptions, and therefore if Greenlaw be either a distinct Tenement, or part of Morbatle, it belongs to More. It was answered for Grubbet, that he and his Authors Possessing Greenlaw these 40 years past, as part of Otterburn gives him sufficient Right thereunto, notwithstanding of any acknowledgement in the Charter, or without the Charter before that time, for Prescription may change Part and Pertinents, so that which was once not acknowledged to be a part by Possession, 40 years thereafter may become a part, and that acknowledgement never being made use of Prescribes and the Charter in which it is, is a sufficient Title, both for what was parts the time of the Charter, and what becomes thereafter parts by Prescription. 2dly, The acknowledgement of a Party having Right is of no effect, when by demonstration of the Right itself the contrair appears, as here, therebeing an anterior Right of Property of the Young's produced before that acknowledgement. 3dly, The ackowledgement is not, that they were only kindly Tenants, otherwise it is very well consistent with the Property, that they being first kindly Tenants, and that kindliness being thought more favourable to maintain Possession in these places, than any heritable Right, they might very well Dispone Otterburn, whereof Greenlaw is a part, and might also Dispone their kindness of Greenlaw they had before the Right of Property; neither doth it infer, because Raschbog is expressed as Pertinent of Otterburn, which hath been upon account that Raschbog was then unclear, that therefore Greenlaw is no Part thereof, or else it could have no more parts but Raschhog, there being no more expressed; and as for the alleged Services done by the Young's to Sir john Ker, they cannot infer that the Young's were then Tenants of Greenlaw, because such Services being only general, and no particular Services accustomed by Tenants, they might have been performed to Sir john as Superior, or as out of kindness to a great Man in the Country, and it's offered to be proven (if need be's) that hundreds granted such Services, who were not Tenants, so that unless there were a Tack, Inrolments of Court, or Executions of Poinding produced to instruct Services as a Tack-duty on Greenlaw, it is Irrelevant. The Lords by a former Interlocutor had found that by the acknowledgement in Young's Charter, or any thing therein was not sufficient to exclude Greenlaw from being Part and Pertinent of Otterburn, but they found that is More would allege a Tack, or Inrolment of Court, to the Young's of Services for Greenlaw, it were sufficient, or otherwise if he would allege constant Service of the Young's, by Riding &c. with Sir john, and there being Poinded by him, when they were absent, they found the same with the acknowledgement in Grubbets Right to exclude Grubbet from Greenlaw, and if these were not alleged, they ordained Witnesses to be Examined upon the ground hinc inde before answer, upon these points, whether Greenlaw was known to be a distinct Tennement, both from Otterburn and Marbotle, or whether it was known to be Part and Pertinent of either, and what were the Marches and Meithes thereof, and what Services were done by the Young's to Sir john Ker, and if such Services were done by others, not being movable Tenants. Barclay contra Barclay, july 6. 1669. BArclay of Towy having but one Daughter, and his Estate Tailzied to Heirs-male, his nearest Heir-male being the old Tutor of Towy, above 80. years of Age, and having also but one Daughter, and neither Father nor Daughter being Persons of much discretion, Captain Barclay his next Heir-male having also but Daughters, he Dispones his Estate in favours of his own Daughter; and it being rumoured that Captain Barclay pretended a Bond of an hundreth and three thousand Pounds, granted by Towy to him, that thereby he might prefer him to the Tutor, and that the Tutor as Heir-male, had also granted several Dispositions to Captain Barclay of that Estate: Towies Daughter being an Infant, her friends did also procure a Disposition from the Tutor to her, and she pursues a Reduction and Improbation against Captain Barclay of the foresaid Bond, and Dispositions made to him, he Compears, and produces a late Disposition made by the Tutor, and alleadges that he had the Bond foresaid, and two Dispositions from the Tutor, anterior to this produced, but that a Person to whom he had entrusted them, had carried them away, but there being produced in the Process attested doubles of the former Dispositions, under the hands of Nottars. The Pursuer craved, that seeing the Witnesses alleged insert might die, and the Captain of purpose keeped up the Principals, that the Witnesses might be Examined upon what they know of the Truth, or Forgery of the said's Dispositions. Which the Lords granted, the Fame, and suspicion of the Forgery being so great, though ordinarily they do not Examine Witnesses upon the Forgery of a Writ, till the principal be produced, that the Witnesses may see their Subscriptions, whereupon Steel one of the Witnesses compeared, and Deponed, acknowledging the Forgery, and the way of contrivance of it, in which the Captain made use of him, whereupon the Lords proceeded to Examine the Tutor, who stiffly stood to the verity of the Dispositions, as being truly Subscribed by him, but differed in the Date, and in the persons who were Witnesses to the Subscription: The Captain's Son in law being also Examined, whether or not the Captain had employed him to corrupt the Witnesses, and if he had written any Letter to him, to that purpose produced a Letter, mentioning some things by word which he should diligently go about, and being asked who the Bearer was, Deponed that he was Robert Ogilvy the Tutor's Servant, who being in the House, and presently called to the Bar, upon Oath being interrogat, whether he had brought North any Letter from the Captain to his Good-son, Deponed that he had brought no Letter from him to his Good-son, or any other, and thereafter the Letter being shown him, and confronted with the Captain's Good-son, he Deponed that he did bring that Paper, and delivered it to the Captain's Wife, but he thought it was an order, not being Sealed, and being interrogat whether he had any Message in word from the Captain to his Good-son, Deponed he had none, and upon reading of the Letter, bearing the contrair, and confronting with the Captain's Good-son, he acknowledged that he had order to cause his Good-son bring over the Witnesses to Edinburgh; and the Captain's Good-son further acknowledged that Ogilvy had desired him to deal with the Witnesses, to stand to the Truth of the Writs, he stiffly denied that point. The Lords having considered his gross Prevarication, and contradictory Oath, ordained him to be put in the Irons, and the next day to stand in the Pillory betwixt ten and twelve, and a Paper on his Brow to declare the Cause, and did declare him infamous, and appointed him to continue in Prison till further Order. Mr. William Kintor contra the Heirs and Successors of Logan of Coatfield. july 9 1669. LOgan of Coatfield having become Cautioner for the Tutor of Burncastle, an Inhibition used upon the act of Caution, Mr. William Kintor having Right by Progress from Burncastle, obtained Decreet against the Representatives of the Tutor, and of Coatfield the Cautioner, for payment of the Annualrent of 10000, pounds, due to the Pupil by the Marquis of Hamiltoun, and the like Sum due by the Earl of Bucclengh, in respect that the Tutor was obliged to have uplifted these Annualrents, and to have employed them for Annualrent, and thereupon pursues a Reduction of the Rights granted by the Tutor's Cautioner, as being granted after the Cautioner was Inhibited, these Acquirers raise a Reduction of Mr. William's Decreet, and repeat the Reasons by way of Defense, alleging that the Tutor nor his Cautioner were not obliged for the Annualrents due by the Marquis of Hamiltoun and Earl of Buccleugh, because they were in responsal Hands, and the Pupil had no Damnage, for it was free for the Tutor to uplift the Annualrents of Pupils Money, when secure, at any time during the Pupillarity, but here they offer to prove the Tutor Died durante tutela, and so was not liable when he Died, to uplift these secure Annualrents, or to have employed them. The Pursuer answered▪ that the Lords had already found at the same Pursuers Instance against john Boyd, that the Tutor was liable for Annualrent, not only pro intromissis, but pro omissis, and for the Annualrent of the Pupils Annuals a finita tutela, which is finished, either by ending the Pupillarity, or the Death or Removal of the Tutor. It was answered, that the Lords Interlocutor was only in the case that the Tutory had been finished in the ordinar way by the Age of the Pupil, for that way of ending thereof, could only been foreknown by the Tutor, that within the same he might lift the Pupils Annuals, and give them out on Annualrent, but he could not foresee his own Death, but might justly think he had time before the expiring of his Tutory, to lift and employ, and so the Tutor not having failed in his Duty, his Cautioner is free. It was answered, First, That by the Lords daily Practic Tutors are liable for the Annualrents of Rents, of and within a year after the Rents are due, and there being so much parity of Reason in Annualrents, it cannot be thought just that the Tutor was not obliged to lift them till the end of his Tutory, for albeit he might have keeped them in his Hands unemployed, and only to leave them employed at the is of his Tutory, yet he was obliged to uplift them, and if by any accident, as being prevened by Death, he did not employ them, that accident should be on his peril, not the innocent Pupils. 2dly, If need beiss, the Pursuer offers to prove the Annualrents were uplifted by the Tutor, and so these that Represent him, and his Cautioners, are liable for Annualrent therefore, at least from the Death of the Tutor. The Lords found that the Tutor was neither obliged to lift, nor give out on Annual the Annualrents of his Pupil, if the Debtors were Responsal, but only once betwixt and the end of the Pupillarity; and if he Died betwixt and the end of the Tutory, he was free both of the Annual and Annualrents thereof, but if he did actually uplift the Annalrents, they found that it was sufficient to employ them any time before the Tutory ended, and found that his Heir was liable for Annualrent, not from the Tutor's Death, but from the end of the Pupillarity, and that he could be no further liable than the Tutor, if he had lived, in respect that subsequent Tutors were obliged to lift these Annualrents from the former Tutors Heirs, and employ them. This was stopped to be further heard. Garner contra Colvin, july 10. 1669. JAmes Colvin having Apprized the Lands of Lady-kirk, and some Tenements in Air, and being Infeft therein; Garners Wife and Bairns raise a Reduction, and allege that the Apprizers Right is null, as to the Tenements in Air, because john Garner had never Right thereto, but the Right was Originally granted to young john Garner the Pursuer, by his Mother Brother. The Defender answered. that the said Right must be affected with his Apprizing, as if it had been in the Father's Person, because young Garner was then an Infant in his Father's Family; and albeit the Right be granted by his Uncle, yet it is necessarily inferred to be Acquired by the Father's Means, because it bears not for Love and Favour, but for Sums of Money, and the Uncle had Bairns of his own. It was answered, that albeit the Right had been Acquired by the Father's Means, yet its anterior to the Apprizing, and Sums on which it proceeds, whereupon nothing can be taken away but what is posterior thereto, albeit there were a Declarator and Reduction intented for that purpose, as there is none. The Lords Sustained the alleadgeance, and Reduced the Apprizing as to these Tenements. 2dly, The Pursuer alleadges the Apprizing (as to Lady-kirk) must be Reduced, because the Pursuers produce a prior Infeftment granted by john Garner to his Wife in Liferent, and his Bairns in Fee. it was answered, that the said Infeftment was base, never clad with Possession. The Pursuers Replied, that the Father's Liferent not being Reserved, the continuation of Possession was as lawful Administrator to the Pursuers Bairns, and if need be's its offered to be proven he had a Factory from them. The Defender answered, that a Father's Possession being continued, was never found to validate a base Infeftment granted to his Children, albeit his Liferent were expressly Reserved, but it's ever accounted a latent fraudulent Deed, and a Factory can be of no more force than a Reservation, otherwise it were impossible to obviate fraudulent conveyances betwixt Fathers and Children. The Pursuer answered, that albeit such Reservations are not valide in Rights freely granted by Fathers, yet it meets not this case, especially where there was an anterior Onerous Cause, john Garner being obliged by his Contract of Marriage, that what Lands he should Acquire, should be to his Wife in Liferent, and to the Bairns of the Marriage. The Lords found that the Bairns Infeftment granted by their Father, albeit he had Possessed by a Factory from them, was not clad with Possession, or sufficient to exclude a posterior public Infeftment, and that the Clause in the Contract was but to substitute the Children Heirs to their Father in the Conquest. Here it was not alleged that the Factory was made public by Process founded at the Father's Instance, or otherwise in this Process. The Defender to satisfy the Production of an Assignation, upon which the Apprizing proceeded, which the Pursuers offered to improve as false in the Date, and the Defender now produced another Assignation of the same Date, and declared he abade by the same as of that Date, and that it being a missing, he had caused the Cedent to Subscribe another of the same Date with the first, which did expressly bear Reservation of another Assignation formerly Subscribed, which he did also bide be as truly Subscribed, but not of the Date it bears, but of the Date of the true Assignation insert therein. The Lords Sustained the Assignation now last produced, and did not quarrel the other Assignation, though another Date was insert, then when it was Subscribed, for the 'Cause foresaid. Alexander Glass contra john Haddin; Eodem die. ALexander Glass and William Reid having a proper Wodset of the Lands of Alairtnenie, and john Haddin being also Infeft in an Annualrent forth thereof some days prior, compet for the mails and Duties; Haddin alleged that both infeftments being base from the same Author, his Infeftment of Annualrent is preferable, because prior and first clad with Possession. It was answered, any Possession he had was by a Factory from Glass. It was replied, that he offered to prove Possession before that Factory. It was duplied that by Haddins back Bond produced, bearing expressly that Glass had had a valide Right to the mails and Duties of the Lands, and that he was in Possession thereof, and that Haddin had accepted a Factory from him, and was obliged to count to him for the mails and Duties without any Reservation of his own Right, this was an unquestionable Homologation, and acknowledgement of the Right, and equivalent to a Ratification thereof. The Lords found by the back Bond produced of the Tenor foresaid, that Haddin had so far acknowledged Reid and Glasses Right, that he could not quarrel it upon his own Right, but he proponing that there was a Reservation of his own Right related to in the back Bond, the Lords found the same Relevant he proving Possession before the other Party, and before the Factory. The Old College of Aberdeen contra the Town of Aberdeen, july 13. 1669. THe Principal and the remanent Members of the old College of Aberdeen, having Set a Tack to Doctor Dun of his Teinds during the Principals Life, and five years thereafter, and bearing an Obligement to renew the like Tack from time to time for ever. The Doctor Mortified the same to the Town for ploughs uses, after the Death of that Principal many years. The College now pursues the Possessors of the Lands upon an Inhibition for the full value of the Teinds; and the Town Defends upon the foresaid Tack. It was answered for the College, that the Tack is only for the Principals Life, and five years after, which is expired; and as for the new Obligement to renew such Tacks for ever. It was answered First, Albeita Tack were conceived in these Terms it would be null, as wanting an is. 2dly, Obligements of the present Incumbents in Universities are not obligator, but where there is an equivalent Cause Onerous Received for the good of the University. It was replied for the Town, that an Obligement to grant a Tack by them who can grant it, is equiparat to the Tack itself, which requires no other solemnity, as an obligement to grant an Assignation, is equivalent to an Assignation, and that there is here a Cause Onerous of the Universities Obligement, because the Tack bears expressly 300. Marks of grassum, and that the former Tack-duty was only ten Marks, which by this Tack is made 50. Marks, and albeit it want a desinit is, yet it must be valide for a Renovation during this Principals Life, and five years after, and it is Homologat by the College, who have received the same Duties several years since the first Tack expired. It was duplied for the College, that this Tack is not valide for any time after the first is, because by the Act of Parliament 1617. Tacks by beneficed Persons under Prelates, are prohibit for longer time nor their own Life, and five years after, and these Teinds are a part of the benefice Mortified to the College, and they must be accounted as beneficed Persons, and albeit the Teinds were augmented to 50. Marks, yet they are worth 200. Marks; and for the Receipt of the Duties after the first Tack, it is per tacitamrelocati●nem, and no Homologation of the Obligement to renew the Tack. The Lords found that the College was not comprehended under beneficed Persons, but found that there was no sufficient. 'Cause Onerous alleged for this Obligement of Renewing a perpetual Tack, and would not Sustain the 'samine in part, and found it totally null, and that the Receiving of the former Duties was no Homologation thereof. Captain Wood contra Boyneilson, Eodem die. CAptain Wood having taken a Ship of Norway, whereof Boyneilson was Master, called the Raphael Prize, she was Adjudged by the Admiral, and there is now Reduction intented of the Decreet of Adjudication, in fortification whereof the Privateer Insists upon two grounds. First, That this Ship belongs to the King's Enemies, with a considerable part of the Loadning, viz. 1500. Dails as is acknowledged by the Skippers Deposition. 2dly, Whereas she pretends to have been bound for London upon the King's Proclamation, giving liberty to all his Subjects to import Timber from Sweden and Denmark, by the Ships and Mariners in these Country's, though then in Enimity, yet the said Proclamation requires that all such Ships shall find Caution at the Custom-house to return strait to England, without going aside into an Enemy's Country, and requires the Lord Admiral's Pass; but this Ship at the time of the Adjudication did not pretend to the Duke of York's Pass, but only to the Duke of Richmond's Pass as Admiral of Scotland, whereas the Proclamation warrants only the Duke of York to give such Passes, neither doth he produce now any Pass from the Duke, or any extract of a Pass from him. It was answered for the Strangers, and for john Dyson Citizen of London, that they having Contracted conform to the King's Proclamation for importing Timber, and having found Caution and obtained a Pass conform to the Proclamation the Ship and Loadning cannot be made Prize, upon the Skippers Oath, that they had Aboard 1500. Dails belonging to him and the Company. First, Because the Skipper is testis singularis. 2dly, By the constant Custom Sailors have Portage Dails allowed. 3dly, The number of the Dails is insert but with Figures, and might easily have been altered after the Testimony, from 500 by adding one, and from 150. by adding a Cipher, neither of which would have been sufficient to infer Confiscation. 4thly, john Dyson Citizen of London, having bona fide Contracted with the Stranger for importing 6000. Dails, albeit the Skipper had foisted in some more, it cannot infer a Confiscation of a Loadning belonging to him the King's Subject, Contracting bona fide, whatever it may infer as to the Stranger's Ship and his own Dails. As to the second point anent the wanting the Duke of Yorks Pass, there is produced a Testificat of the Duke's Secretaries, and the Ship having been Bought from the Privateer by Captain Lie, who carried her to London, the Duke gives her a Pass to return from London to Norway, bearing that he had given her a former Pass to come into England; there is also produced His Majesty's Letter, that he is sufficiently informed that this Ship is Authorized by a sufficient Pass, and therefore ordering her to be Restored with Testificats from the Customers, that Caution was found there, and the Testimony of the Skipper and a Seaman taken at London, bearing that Captain Lie having Bought the Ship from a Privateer, desired the Skipper (then in Prison) to show him the Duke of Yorks Pass, which when he showed him, he pulled it out of his Hand to secure the Ship; against all which it was objected, that all these were impetrat after the Ship was declared Prize, and that it is the more suspicious, that at the time of the Adjudication there was not so much as mention made of the Duke of York's Pass, though the Duke of Richmond's Pass was rejected, as not sufficient without the Duke of Yorks, and that as yet there is no Extract, of the Pass out of any Record; and as for his Majesty's Letter it hath been impetrat suppressa veritate, and cannot take away a Parties private Right, but is salvo jure, as are all Acts of Parliament done by His Majesty, and three Estates incitata parte, much more such a Letter, as the Lords found in the case of the Castle of Riga, and though there had been a Pass from the Duke of York, it is likely not to have been of this Date but for a former Voyage. The Lords found the alleadgeance for the Privateer, that there was 1500. Dails Aboard belonging to the King's Enemies Relevant to Confiscate the Ship and Dails, but not to Confiscate john Dysons Dails, His Majesty's Subject, who acted bona fide if he can make out a Pass, and before answer to that point, grants Commission to Sir Robert Murray to try if there were a Record keeped of the Duke's Passes, and if therein there was a Pass for this Voyage, and to send down the duplicat thereof compared with the Principal, and Signed by Sir Robert, and to try at the Records of the Custom-house, if Caution was found there, and if there was no Records of Passes, to take the Oath of Captain Lie concerning the Pass alleged taken by him, and ordained the Members of the Court of Admiralty to be Examined upon Oath, whether the Testimonies in Figures for 1500 Dails was given in Figures as it bears, and found the Skippers Testimony alone to prove not only against himself, but the Owners, because he was entrusted by them in this Affair. Duke Hamiltoun contra the Fevars of the King's Property, july 14. 1669. THe Duke of Hamiltoun as Collector-general of the Taxations, having Charged the Fevars of the King's Property for payment of this current Taxation, several of them Suspended upon this Reason, that by the Act of Convention there is abatement given of a third part to such Shires as in the West and South, in regard their Retours are higher than the rest of the Country, and yet these of the King's Property are Charged for the whole. It was answered, that that abatement cannot extend to the Fevars of the Property, because in all former Taxations they were distinct both from the Temporality and Spirituality, and therefore though by the Act of Convention, the Temporality of these Shires be eased, it will not extend to the Property, especially seeing the Reason of the Act cannot extend to them, for the Fevars of the Property did bear no Taxation till the year 1592. and then there was a Commission granted for Retouring them, and that Complaint of the high Retours of the Shires being then known, these of the Property would doubtless endeavour to have easy Retours. It was answered, that the Act of Convention expressly Regulating the Taxation, both as to the Spirituality and Temporality, it cannot be thought but that these Members did comprehend the whole, and seeing the Property cannot be of the Spirituality, it must be of the Temporality, which hath the abatement as to these Shires without exception, and albeit the Property was lately Retoured, yet there being no Rule to estimate a Merk-land, or Pound-lands Retour by, or how many Pounds of real Rent makes a Pound of Retour, there could be no other Rule, but to make the Retour of the Property proportional to the remainant Lands lying in that Shire, so that where the other Lands are generally highly Retoured, it is evidently presumed that the Property was so Retoured, and seeing the Property did of old pay no Taxation, it were strange now to make it bear more than the other Temporal Lands about it. The Lords found that the Property of the Shires had the same abatement with the rest of the temporality in these Shires. Earl of Marishal contra Leith of Whitehaugh, Eodem die. IEan Keith having a Right to a Wodset of the Mains and Miln of Troup, and being Married to john Forbes, she Disponed the heritable Right to his Brother, which Right is now by progress in the Person of Leith of Whitehaugh, Isobebs' Brother raised a Reduction in Anno 1628. of the Right granted by her to her Husband's Brother, and now his Right and an Assignation to the said Process coming to the Earl of Marishal, and by him to Lesmore, they insist in their Reduction upon the Reason of Minority and Lesion. It was alleged for the Defender; First, No Process, because prescription is passed since the Right was granted by Isobel Keith, which cannot be interrupted by the Reduction in Anno 1628. because it is evident by inspection of the Reduction that it is but filled up of late and that the Executions there of are new, so that it signifies no more nor blank Paper, or a blank Summons till the Reasons be filled up and insisted in before which prescription was complete. 2dly. Absolvitor, because the Right granted by Isobel Keith to her Husband's Brother, was to the Husbands behoove: Likeas there was a blank Bond granted by the Brother to the Husband so declaring, and there being no other Contract of Marriage, this Disposition must be understood as granted to the Husband in contemplation of the Marriage, and being but the Right of 10000 Marks, which was but a competent Tocher, it was no Lesion to Dispone the same to the Husband, or any to his behoof, and offered to prove by the Brother's Oath that there was such a back Bond, and that yet there is a back Bond by him to whom the Brother Disponed. The Pursuer answered to the first, that interruption is sufficient by any Act whereby the Party having Right, may follow the same, so that Summons (albeit not legally Execute) would yet make an interruption, though no Sentence could follow thereupon, and a Summons being blank, must be presumed as comprehending all the Grounds and Reasons that might have been filled up therein, but here the Lybelling of the Interest, which is not with new Ink, bears expressly that the Pursuer as Heir to his Sister has good interest to Revock and Reduce Deeds done by her to her prejudice, which doth imply the Reason of Minority and Lesion. To the second, albeit the Disposition by the Wife had been to the Husband, yet it is simply Reduceable upon Minority, there being no remuneratory Obligation upon the part of the Husband providing her to a Jointure, in which case if the Provision had been suitable, there would have been no Lesion, and if not suitable, the Lords might Reduce it in part, or Rectify it if done in the Wife's Life, but here she having nothing from the Husband, and being Dead she cannot now receive a Jointure, and so the Right is Reduceable in totum, especially seeing the said john Forbes did violently carry away the said Isobel Keith, and Married her without her Friends Consents, and must be presumed by the same means to have purchased the same Disposition from her without any remuneratory Provision to her. 2dly, There is not, nor cannot be known any such back Bond, and it were absurd that the Husband's Brothers Oath alone should prove the same in favours of his Brother. The Defender answered, that albeit there was no Jointure provided, yet the Law provides a Terce, which ofttimes is better nor the Jointure. The Pursuer likewise answered, that the Law did provide the jus mariti, and the courtesy, so that either Party ought either to acquiesce in the provision of Law, or the Provision of Parties must be mutual. The Lords Repelled the first Defense, especially in respect of the manner of Libelling the Title, and found not the Executions of the first Summons to appear new, and therefore Sustained them, unless the Defender would improve the same; they found also that alleadgeance, that the Disposition was to the Husbands behoove, was not to be Sustained, especially seeing no back Bonds were produced, or offered to be proven, and that the manner of Probation offered was no way sufficient, that there was no Provision for the Wife. Duke Hamiltoun contra the Laird of Blackwood, Eodem die. THe Duke of Hamiltoun pursues the Laird of Blackwood, that it may be declared that he is his Vassal in his Lands of Blackwood, on this ground, that the late Marquis of Hamiltoun having Disponed to the King the abbacy of Arbroth, did in consideration thereof, in Anno 1636. get a Charter from the King of the Barony of Leshmahago; a part of the abbacy of Kelso, of which the Lands of Blackwood were holden Waird; which Lands having been Apprized, and the Apprizers Infeft holden of the King, the Laird of Blackwood having thereafter Disponed them to Major Ballantine, by his Contract of Marriage with Blackwoods' Daughter, and the Major having purchased a Right from the Apprizers, both upon Blackwoods' procuratory of Resignation, and the Apprizers, he Resigned the Lands in the Marquis Hand, and did take his Infeftment holding Waird of him; likeas this Blackwood who is Heir of Provision to the Major as procreate by Marion Weir Blackwoods' Daughter with William Lowry, hath no other Right but as Heir of Provision to the Major, and yet he hath taken Infeftment holding of the King; likeas the said William Lowry his Father as lawful Administrator, and taking burden for him, has obliged himself by his Bond, that so soon as the Marquis should obtain a Right to the Superiority, he should take his Infeftment from him Waird, and by the Act of Parliament 1661. Ratifying the Act of Annexation 1633. It is expressly provided, that any Right to the Superiority of Kirk Lands granted by the King, yet notwithstanding the annexation shall be valide, as to such Vassals who have, or shall consent to the Rights of the Persons obtainers of the said's Superiorities, so that Major Ballantine having consented, by taking Infeftment in manner foresaid, he and his Successors must continue the Duke's Vassals. The Defender alleged Absolvitor, because any Right the Duke has, or the marquis had to the Superiority is absolutely null by the saids Acts of Parliaments, annexing the Superiority of Kirk Lands to the Crown, so that unless there had been a Dissolution in Parliament, no Right of these Superiorities is valide, but null, and the exception of the said Act 1661. is only in the case of the Vassals consenting to a Right of Superiority, Ita est there can be no Right but legitimo modo by Dissolution. The Pursuer answered; First, That albeit the King, or his Officers might quarrel his Right as not proceeding upon Dissolution, or any other having their Right upon Dissolution, yet the Defender cannot, especially seeing he hath Homologat the Pursuers Right, his Predecessors to whom he is Heir, having taken Infeftment thereupon; likeas the Pursuer has satisfied the King's Interest, by giving Bond to the King's Advocate to hold the Lands Waird of the King in the same way as the Defender would, therefore the Advocate hath declared he will not concern himself. 2dly, the Pursuer having obtained a new Right of the King since the Act of Parliament 1661. the same must be valide to him as to these Vassals who have, or shall consent, because the exception of the Act expressly bears, that such a consent is equivalent, as if the Vassal had Resigned in the King's Hands in favour, and for new Infeftment to the interposed Superior, and had then taken a subaltern Right of him, against which there can be no pretence, so that (by a Right in the exception) it cannot be meaned a perfect Right proceeding upon Dissolution, because that would be valide without the Vassals consent, but that the Vassals consent being equivalent to a Resignation, makes the Right valide without Dissolution. Which the Lords found Relevant, the Duke proving a sufficient consent, but it was not Decided whether Major Ballantines taking Infeftment would import a sufficient consent conform to the exception of the Act, so that he might not thereafter return to the King. jack contra jack, july 15. 1669. PAtrick jack having only three Daughters, Margaret his eldest Daughter Married john Dowglas, and there is a Contract betwixt john Dowglas and the Tutors of the other two Daughters, dividing there Father's Inheritance in three parts, and mutally Disponing the same with Procuratory and Precept, and there being a Salmond Fishing holding Waird of the King, which fell to Margaret's share, john Dowglas takes Infeftment upon the Tutor's Precept, Disponing for the other two that Fishing after his Death, the said Margaret takes a Gift of Recognition of the said Salmond Fishing, as falling by the Infeftment taken by john Dowglas without consent of the Superior, and thereupon pursues Declarator, Katharin jack and Robertson her Spouse, and the other Sister, pursue a Reduction of the Contract of Division, as done by their Tutors in their Minority to their Lesion, and in answer to the Recognition alleged. First, That this Recognition occurred in the time of the English when Recognitions were excluded, and such Infeftments by the Law then in use were allowed. 2dly, The Infeftment here granted proceeded only upon the Disposition of their Tutors, whose acts except in what is proper to the Administration of their Office is void. It was answered as to the first, that they opponed the Decision in the case of Sir George Kinaired against the Vassals of the Master of Grace, by which it was found that Infeftments taken of Waird-lands without the Superiors consent, even during the Usurpation, inferred Recognition, and to the second, that the Division among the Daughters was an act of Administration, that the Daughters might have been compelled to do. It was answered, that there is no such Decision produced, and that in the case of the Vassals of Grace, they did continue in Possession several years after the King's Restitution, and did not take Confirmations; but here the said Margaret one of the Sisters who should have taken Confirmation before she had continued Possession, cannot have benefit by her own fault, and make use of a Gift of Recognition in her own Person, proceeding upon her own and her Husband's fault, neither can the Division be a lawful act of Administration of the Tutors, in so far as they granted them Precepts of Seizing to be holden of their Pupil, which no Law could have compelled them to do, but only Procuratories of Resignation, likeas it was john Dowglas fault not to make use of the Procuratory, but of the Prccept. The Lords found no Recognition incurred, but because the Parties might have been troubled if any other had taken the Gift, they ordained the other two Sisters to pay their part of the expenses of the Gift. Mr. Archibald Dennistoun contra Semple of Fulwood, july 16 1669. THe Lairds of Fulwood elder and younger, and Dennistoun being appointed Overseers by Culgrain to his Daughters, the eldest Daughter being Married to Mr. Archibald Dennistouns Son, there is a Contract betwixt Mr. Archibald and the three Overseers, taking burden for the Daughters, by which the Estate of Culgrain, and Mr. Archibalds Estate are both settled in the Person of his Son, and the Overseers are obliged to cause the Minors, and their Curators become obliged to relieve Mr. Archibald of 17000. Marks. Mr. Archibald Charges Fulwood upon the Contract, who Suspends, alleging that the Clause can only import that he is liable for his own part, but not in solidum, seeing the Clause bears not the Overseers to be bound conjunctly and severally. It was answered, that the obligement is not for payment of a Sum, which is divisible, but for doing a Fact which is indivisible, viz. the Minors being become bound to relieve, which is all one as if the Overseers had been obliged to cause the Minors Subscribe a Bond of relief, which could not divide, but would have obliged every one of them in solidum, It was answered, that the result of the obligation being relief of Sums which are divisible, the obligation at least the Damnadge and Interest succeeding in place thereof aught to be divisible, for the obligation being factum alienum imprestable to the Overseer, and the third Overseers that refuses to concur being the Chargers own Brother; there is no reason that the Overseers who had no Office or obligement, but were only Overseers which is not nomen juris, should be liable for the Chargers own Brother, his third part thereof. The Lords found them only liable pro rata. Barclay contra Barclay, july 20. 1669. THe Laird of Towy having only one Daughter Elizabeth Barclay, and his Lands being provided to Heirs Male, Dispones his Estate to his Daughter, In which Disposition there being not only a Procuratory of Resignation, but a Prcept of Seizing, the said Elizabeth was Infeft upon the Precept, and being an Infant, her Friends thinking it might infer Recognition, took a Gift of the Recognition, and now pursues Declarator thereon, against the Tutor of Towy Heir Male, and Captain Barclay as pretending Right by Disposition to the Estate. It was alleged for the Defenders Absolvitor, because the Disposition granted by umquhile Towy to the Pursuer his Daughter was granted on Deathbed, at the least it was retained by the Defunct, and never delivered till he was on Deathbed, and thereby it is null, and cannot infer Recognition, because the Law upon just consideration that Parties are presumed to be weak in their Minds, and easily wrought upon, after contracting of the Disease of which they Died, has incapacitat them then to Dispone their heritage, or to take it any way from their nearest Heirs. secondly, Albeit the Disposition had been Subscribed, and Delivered in liege poustie, yet the Seizing not being taken till the Defunct was on Deathbed, Recognition cannot be incurred, because it is not the Disposition, but the Seizing that alienats the Fee, and infers Recognition. The Pursuer answered; First, That Death bed is only introduced in favours of Heirs against other Persons getting Right but hath no effect against the Superi or, who is not to consider whether the Vassal was sick or whole, but whether he hath endeavoured to withdraw himself, and his Heirs in the investiture from their Superior. secondly, Deathbed is never competent by way of exception, but by way of Reduction. 3dlie, The Disposition being in favours of the Disponers only Daughter, reserving his Liferent, albeit it wants a Clause dispensing with the Delivery, it being Subscribed in liege poustie, it is as valide as if it had been then Delivered, and if need be's offers to prove that it was Delivered in liege poustie to the Lord Frazer for the Pursuers use, so that albeit Seizing had been taken when the Disponer was on Death bed, Recognition must be incurred, because the Vassal should not have granted a Precept of Seizing, and Delivered the same without Reservation, and the having of the Precept of Seizing being always accounted a sufficient▪ Warrant for taking of Seizing, and that the Warrant was given at the Delivery of the Precept, albeit the Seizing was taken when the Disponer was on Deathbed, yet the Warrant was granted when he was in liege poustie, by the Precept, which bears in itself to be an irrevockable Power and Warrant to take Seizing, so that the Vassal had in his liege poustie done quantum in se fuit, to alienat this Waird Fee. The Lords found that if the Disposition containing the Precept, was Delivered to the Vassal without Reservation in the Disponers' liege poustie, it would infer Recognition, though the Seizing were taken after his Sickness, and found that if the Disposition and Seizing were on Deathbed, it would exclude Recognition by way of exception, Recognition not being a Possessory, but a Petitory, or Declaratory Judgement; but seeing it was alleged that the Disposition was Delivered to the Lord Frazer, the Lords before answer ordained the Lord Frazer to Depone from whom, and when he Received the said Disposition, and whether he had any Direction to take Seizing thereupon, or any Direction to the contrair, and also that the baily, Attorney, Notar, and Witnesses in the Seizing should Depone by what Warrant they did proceed therein. Earl of Crawfoord contra Rig, julie 21. 1669. THe Earl of Crawfoord pursues Rig for payment of the half of the Expense of the Building a Park Dike, belonging to the Earl in so far as it is Built, or to be Built upon the March betwixt him and Rig, and that upon the Act of Parliament 1661. anent the Parking and Enclosing of Ground, whereby for the Encouragement of them that Inclose it, it is provided that whatever part of the Park or enclosure falls upon the March, that part shall be Built upon the equal Charges of both the Heretors. The Defender alleged Absolvitor, because the March betwixt the Earl of Crawfoord and him is not a dry March, but a Burn, and the Act cannot be understood but of dry Marches, otherwise though there were a Water intersected, the Heretor Building a Park Dike upon his own side of the Water, might require his Neighbour on the other side of the Water to pay the half of his Charges. secondly, Some parts of the Marches betwixt the Pursuer and Defender are Mossy and Bogy Ground, upon which no Dike can stand. The Pursuer answered, that he opponed the Act of Parliament, and that any Meith betwixt his Land and the Defenders is an inconsiderable Stripe of Water, which oftimes is dry, and cannot hinder a Stone Dike to be Built in the very Channel of it, and for the other if the Pursuer Build not the Dike, the Defender will not be liable. The Lords found the Reply Relevant, and ordained the Stripe of Water either to be wholly without the Dike, or if the Defender pleased that it run a space within the Dike, and a space without the Dike that either Party might have the benefit of Watering thereat. Town of Perth contra the Weavers of the Bridg-end of Perth. Eodem die. THe Town of Perth pursues the Weavers at the Bridg-end of Perth either to desist from Weaving in their Suburbs, or otherwise to pay a Duty accustomed to be paid by the Weavers there to the Town for that Liberty, conform to the several Tickets produced, and that conform to the 159. Act Parliament 1592. Entitled the Exercise of Crafts within Suburbs adjacent to burgh's forbidden. It was alleged for the Defenders, and Sir George Hay their Master Absolvitor, because the said Act of Parliament has been in continual desuetude, and was never in use. 2dly Though it were yet effectual, yet it can only be understood of such Suburbs as have no Privilege, but where the Suburbs are contained in any Burgh of Regality or Barony, or within any Barony though having no Burgh, the Privileges of these Erections warrants the exercise of all Craftsmen, so that these Websters Living within the Barony of Pitcullen; cannot be upon that pretence hindered from Exercising their Trade. The Pursuer answered, that he opponed the Act of Parliament being general, and that it was a standing Law unrepelled, and that the obligations of the Weavers Living there to pay a Duty for their Liberty of Weaving, did preserve the Act in vigour, at least as to this Burgh. The Defenders answered, that these Weavers being in no Incorporation, the Tickets granted by any of them, could prejudge none but themselves, and being without the consent of the Heretor, cannot infer a Servitude upon his Barony without his consent, more than his Tenants could infer a Thirlage without his consent. The Lords found that the said Act of Parliament did not reach to the Inhabitants of any Barony, and that the Tickets of the Weavers could not infer a Servitude upon the Barony, and therefore Discerned only against the granters of the Tickets personally, for the Duties contained therein. james Grace contra Margaret Ker, july 23. 1669. IAmes Grace having Apprized certain Lands, and having Charged the Superior, pursues for Mails and Duties, Compearance is made for Margaret Ker, who produces her Infeftment granted by her Husband the common Author, prior to the Apprizing, and craves to be preferred. The Pursuer answered, that her Infeftment being granted by her Husband to be holden of the Superior not Confirmed is null. To the which it was answered, that an Infeftment of a Liferent granted to a Wife in implement of her Contract of Marriage is valide though not Confirmed. The Lords Repelled the alleadgeance, and found the Relics Infeftment null, and not sufficient to defend her Possession. Mr. john Eleis contra Inglishtoun, Eodem die. CRichtoun of Crawfordstoun having only one Daughter, Disponed his Estate to john Brown of Inglishstoun, in contemplation of the Marriage betwixt him and Crawfordstouns Daughter, and to the Heirs-male of the Marriage, which failzying, to certain other Heirs Substitute, bearing a power to Burden the Estate with 5000. Marks to whom he pleased, and containing a Clause that the Disposition should be valide, though not Delivered in his Life-time; and after Inglistouns Marriage, Crafordstoun grants a Bond relating to his former promise of 20000. Pounds to Inglistoun, and the Heirs of the Marriage, (which failzying:) After which words there follows a blank of a Line and a half, and the Sum is payable at the first Term after Crawfordstouns Death; the intent of which Bonds seems to have been, that thereupon Apprizing might proceed to Denude the Heirs of Line, and to compel the Superior 〈◊〉 Receive Inglistoun. Thereafter Crawfordstoun made a second Tailzy, wherein Inglistouns Son, with his Daughter being then Born, is Feear, and several Members of the Tailzy altered; and after that he made a third, wherein his Daughter (Inglistouns Wife) is Feear, and the Substitutions much like the former. After his Death these Papers being Exhibit, at the Instance of two of his Daughters, Heirs of Line, Married to Mr. john Eleis, and Alexander Tran upon a Process ad deliberandum, and being craved up again from the Clerks, by the Tutor of Inglistouns Son. It was alleged for the Heirs of Line, that the said's Writs could not be Delivered up, because they not having been Delivered by the Defunct in his liege poustie, could not prejudge his Heirs of Line; and albeit his first Disposition contained a dispensation for not Delivery, which ordinarily is accounted sufficient, yet where it appears the Defunct altered his purpose, both by the posterior Dispositions of a different Tenor, and several Missive Letters showing a resolution after all to alter the same the said Clause cannot be effectual, and there is no pretence for Delivering the Bond, and the two other Dispositions, seeing they want that Clause. It was answered, that the Dispensation with Delivery is in all cases equiparat with the Delivery itself, and that the remanent Writs ought also to be Delivered, though they bear not that Clause, because the Heirs of Line being absolutely excluded by the first Disposition, they have no interest to quarrel the other Dispositions, and albeit it the posterior Dispositions were to different effects, the want of Dispensation therein might make them ineffectual▪ yet where they are but qualifications of the first Tailzy they are accessary thereto, and must be Delivered therewith, seeing the Defunct so long as he keeped the Writ in his own Hand, might still alter the same at his pleasure. It was answered, that the posterior Dispositions wanted the Clause, reserving power to the Defunct to leave to whom he pleased the 5000. Marks, and it is like he hath left it to his other Daughters, and the Bond may be made use of to overturn his whole intent, and alter the Tailzy. The Lords found, that seeing the first Disposition contained a Dispensation with Delivery, and the rest being accessary thereto, and only altering in somethings the Tailzy, but still to the first Heir of Tailzy, being the Son of Inglistouns Marriage; they ordained them all to be Delivered up, and the Bond also, but with this Declaration, that the Provision anent the 5000. Marks in the first Disposition, should be holden as repeared in the rest, that the Heirs of Line might be in no worse Case than by the first, and that the Bond should only be made use of according to the Substitutions, and Clauses of the Tailzies. Crawford contra Anderson, july 24. 1669. IOhn Fleeming having made a Disposition of his Lands to William Anderson Provost of Glasgow, sometime thereafter William grants Back-bond, Declaring the Disposition was upon Trust, to the behoof of Fleeming Creditors; Young being one of the Creditors, uses Inhibition and Apprizing against fleming, and is thereupon publicly Infeft; after which William Anderson makes payment to the other of the Creditors, the said Alexander Young and Crawford his Spouse Insists for Mails and Duties of the Apprised Lands, Anderson excepts upon his prior Infeftment from fleming, the common Author, upon the said Disposition, Crawford replies upon the Back-bond, that the said Infeftment is on Trust to the behoof of fleming: Anderson duplys that it is a qualified Trust to the behoof of Anderson himself in so far as any Debt was Due to him, and next to the behoof of Fleeming Creditors, and condescends and instructs that he has made payment to several of these Creditors, so that payment made by him bona fide must give him Right to the Trust pro tanto, and any Inhibition or Infeftment at young's Instance, was only against fleming, and not against Anderson, against whom there was never any Action. It was answered, that the Trust being for payment of Fleeming Creditors, cannot be interpret at the option of Anderson, which would be a most fraudulent conveyance to exclude the more timeous Diligence of Fleeming other Creditors, but it must be understood to pay the Creditors legitimo modo, and not to make voluntar payment to these who had done no Diligence▪ and prefer them to these who had done Diligence; and albeit the Inhibition and public Infeftment upon the Apprizing be only against fleming, yet Anderson who was Entrusted for fleming, might and ought to have known the same by searching of the Registers, appointed for publication of Rights, and if he had neglected the same Sibi imputet, for he being Trusty for fleming, could no more prefer Fleeming Creditors, then fleming himself could do. The Lords Repelled the Defense and Duply, and found that voluntary payment made by Anderson to Fleeming Creditors, after the Inhibition or public Infeftment of other Creditors, did not give him any Right by his Infeftment in Trust, to exclude the more timeous Diligence of the other Creditors. Street contra Masson and Lord Tarphichen, july 27. 1669. IAmes Masson being Debtor to the Lord Tarphichen does Infeft his Son an Infant in his Lands, publicly holden of the Superior, and being a Merchant, there was a correspondence betwixt him and Mr. Street, and other London Merchants, whereupon he gave them Bond, mentioning to be for former Accounts, and Provisions betwixt them, and thereupon followed an Infeftment of Annualrent. The Lord Tarphichen obtains Decreet of Reduction of the Infeftment granted to the Son, as being posterior to his Debt, and granted by a Father in defraud thereof: The London Merchants raise also a Declarator, that the Infeftment granted by Masson to his Son (than an Infant) ought to be affected with their Debt, in the same condition as it were yet standing in the Father's Person, or otherwise aught to be declared void as a fraudulent Deed by the Father in favours of his Son, the Father being then in tract of Correspondence and Traffic with these Merchants, who bona fide continued the same, seeing the Father continued in Possession of the Lands, and built thereupon, and gave an Infeftment of Annualrent to the Merchants, after the Infeftment granted to his Son, and likewise raised a Poinding of the Ground upon his Infeftment of Annualrent, whereupon he now insists. It was alleged for the Son and the Lord Tarphichen▪ that the Sons Right being public, and Registrat in the public Registers, prior to the Pursuers Annualrent for the Bonds whereupon the same proceeds, it doth fully exclude them from Poinding of that Ground. The Merchants repeat their Declarator by way of reply: To which it was answered, that whatsoever may be said of Latent and Clandestine Rights betwixt Fathers and Children, and other confident Persons, yet there is no Law hindering a Father to give an public Infeftment to his Son, unless it be in prejudice of the Creditors, to whom he was due Sums at that time, which being a valide pubick Right, no Deed or pretence of fraud of the Father thereafter can prejudge the Son in his Right, who being an Infant was not capable to be partaker of fraud, neither can fraud be presumed as to Creditors, who are but to Contract thereafter, nor can a public Right Registrat, and a public Seizing, which all the World may, and all Concerned aught to know, be esteemed a contrivance or fradulent Right, and as to any Commerce betwixt these Merchants and the Father, which began before the Sons Right, no respect can be had thereto, because the Pursuers Bonds are lately for a Sum of Money, and must import that the former Debts by Traffic were passed from or Discharged, and if need beiss offered to prove that they were actually Discharged. 2dly, The making up a Debt to be prior to take away the Sons Infeftment, can only be probably by Writ or Oath of Party, and not by Witnesses, who cannot prove above 100 Pounds. 3dly, Though the cause of the Bond were proven to be a Correspondence and Traffic begun before the Son's Infeftment, it is no ways relevant against any Provisions gotten after the Infeftment, for such can have effect but from their own Date, and the effect is cut off as to what is posterior to this public Infeftment, seeing the Merchants did either follow Massons Faith upon their hazards, or else they should have had a Procurator here, and taken advice how they might have been secured of Massons Estate by the Law of Scotland, who would have taken notice by the Registers, that Masson was denuded by a public Infeftment, which nothing he could do thereafter could prejudge, and would have certified the Merchants thereof, and their failing therein is on their own peril, and albeit their payment and acting bona fide is sometimes good, though made to these who had not a valide, but a colourable Right by these who knew not a better Right, and might have been compelled to pay upon the colourable Right, yet other Deeds, though bona fide done, are upon the peril of the Actor. To which it was answered, that by the common Law and Custom of this Nation all fraudulent Deeds are Reduceable, and there can be no Deed more fraudulent than this of a Father to his own Infant Son, for whom he is legal Administrator, and must accept the Right he gives himself, and so colludes with himself to make a snare to entrap Merchants and Strangers in the midst of a course of Trade with them, which is a common ground of Law, whether the Debt be prior or posterior to the Sons Infeftment, and albeit the Merchant's Bond be posterior, yet seeing it bears to be for Ware, Witnesses according to the ordinar custom, are Receiveable for astructing the Writ, to prove what the Ware was, and when Received, which will not be prejudged, though there had been a Discharge of the Ware granted the time of the Bond, unless there had been a real and true payment of the Money, for there being nothing then paid, this Bond ceases not to have a true anterior Cause, as if it had been granted on Deathbed upon a Discharge then given, it would be valide, as being upon an anterior Cause before the Sickness, neither is there any difference to be made of the Parts of the Traffic after the Son's Infeftment, but seeing the Correspondence began before, and is once continued as a constant Correspondence and Traffic, it must all be drawn back to its beginning, as if the Merchants on both sides had Contracted when they began their Correspondence, that they should faithfully pay what either of them Received from other, till the Correspondence was given up. The Lords found that this Bond, although posterior to the Sons Infeftment, not bearing borrowed Money, but Merchant Ware, that the quantity, and times of furnishing thereof might be proven by Witnesses, and albeit there had been a Discharge of the Ware, yet so much thereof as was furnished before the Son's Infeftment would affect the same, but found that the Sons Infeftment being public and Registrat, no posterior Deed of the Fathers, by continuing Traffic or Correspondence, nor no pretence of fraud of his, could annul or burden the said Infeftment, for any Debt contracted posterior thereto. Executors of Mr. Thomas Ridpeth contra john Hume, Eodem die. IN a Competition betwixt the Executors Creditors of Mr. Thomas Ridpeth, about a Sum due to Mr. Thomas by Bond, and by him Assigned to john Hume, who not having Intimat it in Mr. Thomas his Life-time, did thereafter get payment of a part of the same, and a Bond of Corroboration for the rest thereafter, Toredlie for a Debt due to him by Mr. Thomas Ridpeth, Confirms himself Executor Creditor to Mr. Thomas, and alleadges that he ought to be preferred, because the Assignation made to john Hume was an uncompleat Right, wanting Intimation, so that the Sum remained in bonis of Mr. Thomas Ridpeth, and that he had followed the only legal way to affect it, by Confirming himself Executor Creditor to Mr. Thomas, and albeit the assignee may force any other Executor to pay to him, yet not an Executor Creditor, who is Executor to his own behoof for satisfying his Debt. It was answered, that the Assignation, though not Intimat, being a special Assignation, albeit it cannot have Execution by Horning, yet it is the undoubted ground of an Action, even after the Defuncts Death, against the Debtor, and no Executor Creditor can have Right thereto. Which the Lords found Relevant, and preferred the assignee. Duke Hamiltoun contra Weir of Balckwood, july 28. 1669. THe Duke of Hamiltoun insisted in his Declarator against the Laird of Blackwood, for declaring that he had Right to his Superiority by the Act of Parliament 1661. bearing, That whosoever should get Right from the King to the Superiority of the annexed Kirk Lands, the same should be valide as to these Vassals who had Confirmed, or should Consent. And alleged that Major Ballantine, to whom Blackwood is Heir, had taken an Infeftment of the Estate of Blackwood, from the Marquis of Hamiltoun, upon Blackwoods' Resignation, and upon the Resignation of two Apprizers, in Anno 164●. The marquis then having a Right to the Superiority, granted by the King in Anno 1636. Which albeit it was not then valide, because the Lands were then annexed to the Crown, by the Act of Parliament 1633. and were not Dissolved; yet the Major having taken Infeftment as to his part, his Heirs could not quarrel the Superiority, though the King might; and now the King and Parliament by the Act 1661. having declared such Rights of Superiority valide as to these Vassals who had, or should Consent, and the Duke having gotten a new Right of the Superiority since the Act, the former Consent is valide; Likeas William Lowry Blackwoods' Father and Tutor gave a Bond, that so soon as the Duke should obtain the Superiority, the Son should become Vassal. The Defender alleged that his Father's Bond was only effectual against his Father, but not against himself, and his Father never being Feear of the Estate, his Bond could never be a Consent of the Vassal, neither can the Consent of any Tutor, or lawful Administrator be sufficient to give such a Consent, which is not an Act of Office or Administration; and as to the Infeftment taken by Major Ballantine, First, The simple taking of Infeftmen from a Lord of Erection by the Vassals of Kirk-lands, cannot import their passing from the King, and the benefit of the Act of Annexation, so that they may not return to the King thereafter, neither can it be such a Consent as it is meant in this Act of Parliament, otherwise the King and the lieges should both loss the benefit of the Annexation, seeing most part of the Vassals have continued to take Infeftment of the Lords of Erection, through ignorance or inadvertance, finding their Infeftments flowing from the Lords of Erection, and in respect that the Lords of Erection have still Right to the Feu-duties till they be Redeemed, which being a common Error that they may safely so do till the Redemption, and yet may still take Infeftment from the King when they please, it were a very evil consequence, if thereupon they should not only lose the benefit to be Vassals to the King, but by disclamation lose the Property. 2dly, As to this case it cannot be presumed, but Major Ballantine is in the same case with other Vassals of Kirk-lands, and also in this much better case, that he is in a manifest and palpable Error, in so far as the Disposition that he takes from the Apprizers, bears expressly that the Apprizers are informed that the Marquis of Hamiltoun was Superior, and their Procuratory bears warrant, either to Resign in the King's hands, or the Marquis hands, or in the hands of any other lawful Superior, and Blackwoods' Procuratory in the Contract of Marriage, bears warrant to Resign in the hands of the King, the Marquis of Hamiltoun, or the Earl of Roxburgh, who had Right of Erection before the Marquis or any other lawful Superior, so that by Resigning in the Marquis hand, it is evident that the Resigner and the Major believed that the Marquis was Superior, whereas he was not, any Right he then had being absolutely null by the Act of Annexation, 1633. and the King was the only Superior; yea, by the taking of that Infeftment he incurred disclamation, unless it were excused by his error, but the Consent requisite here must be such, as the Party knowing the King was his Superior, did choose to interject another Superior, and become his perpetual Vassal. It was answered for the Pursuer, that the acceptance of the Infeftment as it is now stated can be no Error, because it is evidenced by the Apprizers Rights now produced, that they hold of the King, and were Infeft by him, and yet the Major took the Infeftment upon their Resignation in the Duke's hands; likeas the Rights produced relate to the Right of Annexation, which being a most public Law, and recent at that time, cannot be thought but to be known to any at that time, & ignorantia juris neminem excusat. It was answered, that the Error was the greater that the Apprizers Infeftment was holden of the King, seeing in their Disposition and Procuratory they mention they were informed the Marquis was Superior, and therefore the Procuratory is to Resign in the hands of the King, the Marquess or any other lawful Superior, and the other Procuratory is in the like Terms, so that the Accepter of the Writs did not intend, nor do any new or free Deed in favours of the Marquis, but did only that Deed that they supposed was necessary, and so did not by this Infeftment make the Marquis Superior, as that his Right should be valide by their Consent, but did take the Right from the Marquis, as being Superior before they took it, which was an palpable Error, so prejudicial to them that it might infer disclamation, if it were not excusable upon Error, and if it had been intended that the Major minded to make the Marquis his Superior, where he was not, there is no doubt but it would have been expressed in the Right itself, being so great a deference to the Marquis, and would not have been passed over in common Form; neither can it be thought that this was procured by the Marquis upon account and favouring the Major, the Infeftment being granted by the Lady Marquis, as her son's Commissioner, he being then in England, and having no great influence then being the time of the Troubles of the Country. It was answered, that the other Vassals of that Barony did voluntarly Accept the Marquis as their Superior, and gave Bonds for that purpose, which are produced, and it is most like that Blackwood hath given Bond, which hath been lost or given up to him upon taking this Infeftment, which is an implement thereof. The Lords did not see that the single taking of the Infeftment from a Lord of the Erection, did import his Consent to become Vassal thereby for ever, or that he might not thereafter return to the King, neither did they find such a Consent as is meant in the Act of Parliament, but considering the whole Circumstances of this Case, and especially the Father's clear Bond, who procured and settled the Controverted Right of this Estate for his Son, than an Infant, they found there was no Error, but a choice of the Marquis to be Superior in place of the King, and therefore declared. Lesly contra Cunningham, Eodem die. LEsly having Arrested certain Sums for payment of a Tack-duty due to him. It was alleged for the Party, in whose hands Arrestment was made, that the Arrestment could not reach any further, then for the Tack-duty Arrested, which was due the time of the Arrestment, but not for any Term following the Arrestment, because Arrestment being a Legal Execution, can no more proceed upon a Debt, before the Term that the Debt be due then Apprizing; and further alleged, that they had made payment of the subsequent Terms to the Debtor, which they were in bona fide to do, knowing no Law nor Custom to the contrare. The Lords Repelled the Defense, and found the Arrestment to be valide for that Terms Duty that was then running, and found that the Arrestment was rather like to an Inhibition than an Apprizing, which gave present payment. Scot of Hartwood-mires contra November 6. 1669. SCot of Hartwood-mires gave in a Bill of Suspension of a Decreet in forow which the Ordinar reported to the Lords; the Reason of Suspension was, that he being convened as Representing his Father, to pay the Debt in question, for which his Father was Cautioner, he offered to prove payment, denying alwise the passive Titles, and having proven the most part paid, by Discharges granted to the Principal Debtor, he was Discerned for the rest, and now offers to Renunce to be Heir to his Father, conform to his Protestation in the first Act. It was answered, that the Defense of payment does never suffer the proponer to deny the passive Titles, or put the Pursuer to a necessity to prove them, by the constant custom, founded upon good Reason, because the proponing upon any positive Right of the Defuncts is a behaviour as Heir, and in the Act of ●i●is contestation, a Term is only assigned to the Defender to prove payment▪ and the Protestation in effect is rejected, because there is no Term therein assigned to the Pursuer to prove the passive Titles, in case the Defender failed to prove payment, neither could there be any by our Custom. The Lords refused the Suspension, and found that the offer to prove payment, Liberated the Pursuer from proving the passive Titles. Lady Towy contra Captain Barclay, November 9 1669. THe Lady Towy having pursued Improbation of a Bond of an bundreth thousand Pounds, alleged granted by the Umquhile Laird of Towy to Captain Barclay, and of a Disposition of the Estate of Towy, alleged made by the Tutor of Towy, the day after the Laird of Towy died, at the Barns of Towy, which Tutor fell Heir-male to the Laird, who had only one Daughter; the foresaid Bond and Disposition being produced Judicially before by Captain Barclay, though not in this Process, he refused now to produce the same, but suffered Certification to be granted against it. The question having arisen whether any further Process could be in the Improbation, in respect that the principal Writs were not produced, but Copies bearing the Tenor, Date, and Witness insert. The Lords the last Session did Examine Captain Barclay, and Steel one of the Witnesses insert, and certain others, and Steel confessing the Forgery, and Captain Barclay denying the same after he was Confronted with Steel, and denying the having of the principal Writs, the Lords sent Captain Barclay and Steel to the Tolbooth of Edinburgh, to be keeped there till the Event of the Plea, or further Order, and did thereafter permit Steel to come out upon sufficient Caution for a great Sum, and the other Witnesses inserted being Sumonned, and not Compearing. The Lords granted Caption against them, and gave Commission to certain Persons to search for them, and now john Rosse the other Witness in the Disposition, and Alexander Ferguson who filled up the Date, and Witnesses, both in the Disposition and Bond, and Subscribed Witness to the Bond, and insert himself as Witness in the Disposition, but Subscribed not as Witness in the Disposition, being brought to the Bar. It was alleged for Captain Barclay, that the said's Witnesses could not be Examined, First, Because there was now no Process depending, in respect that the Improbation which was only civilly intented, was determined by the Decreet of Certification, which now is Extracted, and albeit the Lords did before Examine Captain Barclay and Steel, yet the Process was then depending, and the Certification not Extracted. 2dly, It was alleged that Rosse and Fergusson were not habile Witnesses, having appeared most partial upon the Pursuers part, having stayed a long time with her in her House, Et prodiderunt Testimonia, in so far as not only they had declared what they would depone, but that they had set the 'samine under their hands, and that by their said Subscription they acknowledged themselves accessary to the Forgery, and so by their confession they are socij criminis, and being culpable of so great a Crime are infamous, and their Testimonies can make no Faith against any but themselves. It was answered for the Pursuer, that Improbations (even civilly intented) are not totally determined by the Certification, which is of its own nature but an Interlocutor Sentence, and if the Pursuer should notwithstanding thereof find out, and produce the Principal Writ, he might proceed to the Improving thereof, it being very well consistent, that it might be holden, and repute false by the Certification, and might also be proven to be false; and though the Pursuer could not produce the Writ, yet the Process is not wholly determined by the Certification, but it may be justly desired that all evidences of the Forgery that were possible, without production of the Writ, might be taken to remain in retentis, in case the Principal should after be found, for there might be clandestine Assignations of the Writs made by Barclay, and Intimat at the Pursuers Dwellinghouse, or Forged and Antedated Intimations made up, so that the Certification would not be effectual against the Assigney's, and though Parties should not insist, the King's Advocate who is also Pursuer of the Process might insist, that the Witnesses might be Examined, for detecting of the Forgery; and there could be no case more favourable than this, wherein Captain Barclay had Judicially produced the Writs, and now wilfully refuses to produce the same, and if Forgers shall escape, and be in no more hazard, but suffer Certification, though they have burnt, or wilfully keep up the Writs, it will be an open Door to encourage all Forgerers, neither have the Witnesses betrayed their Testimonies, albeit being Examined by the Lord Fivy, a Nobleman in the Country, one of them did Subscribe, who had just ground to think that it was no voluntar Deed, but that the Lord Fivy might have sufficient Authority for that effect; but whatever objections were against Witnesses, they are ever Received in Improbations, and the Lords at Advising of the Cause do consider what their Testimonies may work, at which time only it will be proper to object. The Lords notwithstanding these alleadgeances, Examined the Witnesses. Rosse acknowledged that he being Servant to Captain Barclay, he called him up to Subscribe Witness to a Writ, but told him not about what it was, nor did not let him hear nor see what was written therein, but rolled it up, and presented only to him the white paper, near about the end of the Writ, and desired him to Subscribe Witness, and he saying that he could not be Witness, because he saw no body Subscribe, the Captain answered, that that was nothing to him, and that he should stand betwixt him and all danger, and that he would be loath to bid him do any thing would do him harm, whereupon he did Subscribe as Witness, and saw not the Tutor Subscribe at all, nor saw not his Name put to the Writ at that time, and that this was not at the Barns of Towy, the time of the Lairds Death, as the Date of the Paper bears, but at Achready five weeks thereafter. Ferguson Deponed that Captain Barclay having been his Tutor, he induced him to Writ over the Bond of 100000. Pounds, whereof he had formerly gotten a Draught from james Midletoun Notar, wherein Debtor, Creditor, Sums and Date were blank▪ and that he filled up Umquhile Towy Debtor, and the Captain Creditor, and the Sum 100000. Pound, and put in a Date as if it had been before the Lairds Sickness, albeit it was truly after his Death, and that the Captain show him Towies Subscription in a Letter, and caused him feinz●e it to the Bond as near as he could; and likewise Depones that the Captain's Brother was the other Witness, but that he saw not what the Deponent had done, nor knew not thereof; He also Deponed that he filled up the Date, and insert the Witnesses in the Disposition of the Estate of Towy, at the Captains desire, and made the Date to be at the Barns of Towy, at the Lairds Death, albeit it was done at Achready, about a Month or twenty days thereafter, and that there was no Subscription put thereto at that time, but that the Captain told him that he would get the Tutor to put his Hand to it thereafter, and that the Deponent refused to Subscribe Witness, because the Tutor's Name was not thereat. Upon these Testimonies both these Witnesses and Steel, who was formerly out upon Bail, were put in Prison. Henderson contra Anderson, November 18. 1669. HEwat having made a general Disposition of his whole Goods and Geir to Anderson, and thereafter having Disponed to Henderson, his Creditor Henderson pursues Anderson for Reduction of his Disposition, as being fraudulent in prejudice of Creditors, without any equivalent Cause Onerous, contrare to the Act of Parliament, 1621. against fraudulent Dispositions. The Defender, alleged that the Reason was not Relevant upon the said Act, because Hewat and Anderson were not conjunct persons, and because his Disposition buir an Onerous Cause, viz. for Sums due to himself, and for 2000 Marks, and other Sums, for which he was Cautioner for Hewat, and gave in a condescendence of the particular Sums, and offered not only to Depone thereupon himself, but to astruct the same by the Oath of Hewats Creditors to whom he paid. The Pursuer answered, that albeit ordinarily Dispositions amongst persons not conjunct, bearing Causes Onerous were sufficient, yet this Disposition being manifestly fraudulent, in that it is omnium bonorum, which the Receiver thereof could not but know to be in prejudice of the Disponers other Creditors, to whom there was nothing left, and so is particeps fraudis; and likewise the Sum of 2000 Marks, which is the only Cause specially expressed, being instructed to be false by Discharges of the most part of that Sum by the Creditor to Hewat himself, the remainder of the Cause being general, aught to be instructed not by anderson's Oath, but by sufficient Probation, at least the verity of the Debt by Hewats' Oath, and the payment thereof by the Oaths of Hewats Creditors, to whom it was paid, and that it was. paid by Anderson before the Disposition, at least that he was bound for payment thereof before the Disposition. The Defender answered, that Dispositions of Movables are valide without any Writ, especially before any Diligegence done by the Pursuer, and if these who acquire Movables were obliged to instruct the Cause otherwise then by their own Oaths, all Commerce would cease, and the Defender having taken a Disposition in Writ, can be in no worse case than if he had none. The Lords having considered the Defenders condescendence, found that what wa● due to the Defender himself by Hewat before the Disposition, should be sufficiently instructed by Anderson's own Oath; but as to what was due to him, or paid by him for H●wat, after the Disposition, and before any Right or Diligence of henderson's, that the same should also be allowed, being instructed by Howats' Oath, and these who received the Sums, and that accordingly Anderson should account for the whole Goods he meddled with, and pay the superplus thereof to Henderson the Pursuer, over and above the saids Articles. The Creditors of Cowper and Balmerino contra My Lady Cowper. November 25. 1669. THe Deceased Lord Cowper having made a Disposition of his whole Estate in Fee to his Lady, and thereby having excluded the Lord Balmerino, his appearand Heir therein, Balmerino being unwillingly to Enter Heir to Cowper, before he knew whether the Disposition would stand or not, moveth some of Cowpers Creditors, and some of his own Creditors having Charged him to Enter Heir to Cowper, to insist in the Reduction of the Disposition, made to the Lady, as being done by Cowper, in lecto agritudinis. It was alleged for the Lady no Process, at the Creditors of Cowpers' Instance: First, Because they insist only upon Personal Bonds, granted by the Lord Cowper, and have no real Right to the Land, and so cannot Reduce a real Right, but upon a real Right: So till they have Apprized the Lands they have no Interest. 2dly, Albeit Cowpers Creditors might Reduce the Disposition, as betwixt conjunct Persons, without an onerous Cause, yet not upon the Reason, ex lecto, because that is a privilege particularly competent to Heirs, but not to Creditors, as they are Creditors, unless by real Diligences, they state themselves in place of the Heir, and so make use of his Right and Privilege. It was answered for the Pursuers, that in that they were Creditors, they had sufficient interest to crave it to be declared, that the Estate of Cowper should be Affected with Apprizing upon Cowpers' Debts due to them, notwithstanding this Disposition, which is all the Effect of this Reduction; and as they may, without any real Right, Reduce, or Declare as aforesaid upon the Act of Parliament 1621. against fraudulent Dispositions, so they may declare that any Disposition done on Deathbed, as it could not prejudge the Heir, so it cannot prejudge the Creditors of the Defunct, or his appearand Heir, but that they may affect the said Estate, with their Legal Diligences. It was answered for the Defender, that she repeats the former Defense. And further alleadges, that she is content to take off the interest of Cowpers own Creditors, and to Declare that the Disposition shall be burdened with their Debts: but adhered to her Defense against Balmerino's Creditors, who, though they produce an Apprizing, yet it is posterior to the Summons, and their Personal Debts can be no sufficient Title, nor is there any produced. It was answered for Cowpers Creditors, that the Declarator in their favours was no way sufficient, nor would not give them a real Right, nor prevent the Diligence of other Creditors. 2dly, If they had a good interest to Reduce, and thereupon to Apprise, no offer could take away that interest but payment. The Lords found the Creditors had sufficient Interest upon their Personal Bonds to insist upon the Reduction, ex capite lecti; but they found that a real Security given to Cowpers Creditors, equivalent to an Apprizing, and Infeftment was sufficient to exclude their Interest. Monteith of Car●ubber contra Margaret Boyd. December 2. 1669 UMquhil Mr. Robert Boyd of Kips, dying Infeft in the Lands of Kips, and Gourmyre, and in a Miln, and having left two Daughters Heirs portioners, the younger having Married Monteith of Carrubber being dead, her Son and Heir raised a Brief of Division against the eldest Sister, whereupon Division was made in this manner, viz. The Rent of the Miln being Rated at a 100 pound the Chalder, being more than the Rent of the Land, the whole Land was set on the one part, and the Miln on the other, and because the Mansionhouse belonged to the eldest Sister, the Land was Adjudged to her, and the Miln Adjudged to the other, and the superplus of the Rent of the Miln allowed, in satisfaction of the youngest Sisters Interest in the House. Carrubber raises Reduction of this Division, upon these Reasons: First, That the Lands ought to have been divided in two shares, and the House likewise, having convenient Rooms and Lodgings for both Families, in which they have Dwelled these 20. years, and not to have Adjudged the Miln only to him, stating the Victual, being only Meal, at a 100 pound the Chalder, far above the just value; and stating the Miln-Rent equivalent to the Land-Rent, which is subject to many more Contingencies▪ and Expenses in upholding the Miln, and difficulties in recovering the Rent; and in the common estimation, is not accounted equivalent to Land Rent; so that he is enormly lesed, and offered a 1000 marks to Margaret the eldest Daughter, to exchange shares, albeit the Rent of either share be but about three Chalders of Victual. The Defender answered, that the Reasons of Reduction were no way Relevant, because all Divisions ought to proceed, as is most convenient for either Party, and where lest is left undivided●▪ and the Division itself cannot have a precise Rule, but is in arbitrio of the Inquest, who were knowing Gentlemen of the Neighbourhead, and upon Oath; so that unless the Lesion were ultra dimidium justi valoris, it cannot be recalled, seeing an Inquest has the irrecoverable determination of Life and Death, which is of far greater moment than this, and this Division proceeded upon Carrubbers' own Process, and the Inquest was called by himself. And albeit it be true, that if the Division could have been made, by giving both a share of the Lands, and a share of the Milns, if there had been more Milns, it might have been more equal; but here, if the Land had been Divided, the Miln behoved to have remained for ever Common, and so the Division not be complete. Likeas, the Miln lies at a distance from the Land, and near to Carrubbers' own Land, and is not a casual Rent, arising from free Multures, but has the whole Barony of Torphichen astricted by Infeftment; and the Defender is willing to give 2500. marks for each Chalder of the Miln Rent, which is the ordinary rate of Land Rent; and the reason why there was no Cavel, or Lot, was because the eldest Sister falling the Mansion House by Law, she behoved to have the Land therewith. The Lords Sustained the Reasons, and Ordained a new Commission for a new Division; here the Lords would not consider the Points severally, whether the Mansion House ought to have been Adjudged to the eldest Sister, and a Recompense to the second: Or whether such a House, being no Tower nor Fortalice, but which would be comprehended as a Pertinent of the Land, gave no preference; so that Lots ought to have been cast upon the Division: Or whether the House could be divided, per contignaliones: Or whether the Miln, though it had been truly Rated, could have been put to answer the whole Land: Or that the Land behoved to be divided, and the Miln remain common; but only generally, the Lords gave a new Commission for a new Division. Weavers of Pearth contra Weavers at the Bridge-end of Pearth December 4. 1669. THE Weavers of Pearth having pursued the Weavers at the Bridge-end, upon the 154. Act, Par. 1592. prohibiting Tradesmen in the Suburbs of burgh's, to exercise their Trades, whereof mention is made, july 21. 1669. The Defenders were then assoilzied. Now the Pursuers further allege, whereas it was then represented, that that Act had never taken effect, but was in desuetude. They now produce a Decreet of the Lords, at the instance of the Weavers of Edinburgh, against the Weavers of the Suburbs compearing, Decerning them to desist, and cease from bringing any of their Work within the Liberties of Edinburgh, and from coming within the same to receive Work; and that upon the same Act of Parliament which clears, that the same is not in desuetude, and it is founded upon a most just, and necessary Ground, viz. That Tradesmen within Burgh pay Stint for their Trade, which were impossible for them to do, if the same Tradesmen were permitted in the Suburbs, who might work cheaper than they, not being liable to Stint. The Lords Explained their former Interlocutor, and declared, conform to the foresaid Decreet of the Town of Edinburgh, viz. That Weavers in Suburbs might serve any in the Landward, but might not come within the Liberties of the Burgh, for taking up the Work of the Burgesses, in prejudice of the Freemen, who were Freemen of the Burgh. john jaffray contra Alexander jaffray and Doctor jaffray his Son. Eodem die. JOhn jaffray, late Provost of Aberdeen, pursues a Declarator of the Escheat and Liferent of Alexander jaffray his Brother. Compearance is made for Doctor jaffray, Son to the Rebel, who produced a prior Gift, with general and special Declarator, and alleadges no Declarator at the Pursuers instance, upon this posterior Gift, because the Right is fully Established in his Person, by the prior Gift and Declarators. The Pursuer answered, First, That the Doctor's Gift is simulat to the Rebels behoove, and so accresced to the Pursuer, which appears from these Evidences; First, That the Doctor is the Rebels own Son. 2dly, That it is retenta possessione, the Doctor having suffered his Father to possess for many years. 3dly, It was offered to be proven, per membra curiae of the Exchequer, that the Gift was purchased by the Rebels Means and Moyen, and severally it was offered to be proven by the Doctors, and his Father's Oath conjunctim, that he had given a Back-bond, declaring the Gift to be to his Father's behoof. It was answered for the Doctor, to the first, that the Grounds of Simulation were no way Relevant; for albeit he was the Rebel's Son, yet he had means of his own, and was not in his Family; and albeit he were not eager, to put his Father out of Possession of his House and Lands: yet his continuance of Possession is not Relevant, unless it had been to his death, or for a longer time: but any delay that was, is because it is but of late, that the Doctor hath obtained special Declarator, till which, he was not in capacity to discontinue his Father's Possession: Neither can Members of Court be admitted to prove, that the Father warred out the Expense, and procured the Gift, because the Doctor, at the passing of the Gift, gave a Back-bond, that he being satisfied of the Debts due to him, and the Expenses thereof, there should be place for the Rebels Creditors, and did make Faith at the passing of the Gift, that it was to his own behoof, after which, no Winesses can be admitted against him, nor any other presumptive Probation, of the simulation of the Gift. Which the Lords found Relevant, and found also the Pursuers Reply upon the Back-bond alleged granted by the Doctor to his Father, Relevant to be proven by the Doctor's Oath only. Sir john Vrquhart Supplicant. December 7. 1669. SIr john Vrquhart gave in a Supplication to the Lords, bearing, that he being Cited before the Council, upon several alleged Riots, and fearing that he might be excluded from appearing in his own defence, by hornings against him; therefore desired that the Lords would grant Suspension of all Hornings against him, ad hunc effectum only to give him personam standi in judicio, but prejudice to the Creditors of all other execution. Which desire the Lords granted as to all Hornings he should condescend upon. Pittrichie contra Laird of Geight. December 15. 1669. MAitland of Pittrichie having obtained the Gift of Recognition from the King, of certain Waird-lands, held by the Laird of Geight, of His Majesty, pursues Declarator of Recognition upon Geights Alienation of the Lands, wherein compearance was made for the Purchasers thereof, who alleged Absolvitor, because the time of their Alienation by the Law, and custom in force for the time, Such Alienations without consent of the Superior were valide. The Pursuer answered, that any Law or Custom that then was, is now Annulled and Rescinded, as from the beginning▪ The Defender answered, that no Laws of whatsoever Tenor, can be drawn back by invalidat Deeds, done by the Law and Custom for the time, especially as to Matters Penal, such as Recognitions, so that Parties having acted bona fide, according to any thing they could know for a Rule, cannot fall in the Penalty and certification of Recognition, which imports a contempt of the Superior, and cannot be inferred by any Deed legal for the time. The Pursuer answered, that the contempt is the same, when the Vassal alie● nat● his Fee, without the Superiors consent; and when such Alienations being by Law become void, and the Superiors Right of Recognition revived, the Vassal did not after that time crave the Superiors Confirmation as Heir: so he Laird of Geight having never sought Confirmation from the King since His Restauration; it is no less contempt, than if since the King's Restauration he had Alienat, especially seeing the King refuses Confirmation to none who demand it. It was answered for the Purchasers, that the Vassal being Denuded in their favour, according to the Law standing for the time, his fault cannot lose their Right; for though he should collude against them, yet that ought not to prejudge them, and there being no obliegment upon the Vassal to seek a Confirmation, to the behoof of the Purchasers, they cannot be prejudged, for not obtaining the same. The Pursuer answered, that the Purchasers might have craved the King's Confirmation of their Right, both for themselves, and in name of Geight the immediate Vassal, which Geight neither would, nor could oppose. The Lords Repelled the Defences in respect of the Reply, that no Confirmation was craved, neither by the Vassal nor Purchasers, his Sub-vassals, which they might have done if they had pleased, and therefore declared the Lands to be Recognosced. Inns contra Inns. january 5. 1670. Inns having granted an Assignation of an heritable Bond of 6000. marks, 4000 marks thereof to Robert Inns his eldest Son, and 2000 marks thereof to William and janet Inness his younger Children, and in case of Robert's Decease, providing his part amongst the rest equally; janes' having died before Robert, her Heirs and Robert's Heirs compet for the sum, for Robert died without Children, and William as Heir to Robert, claimed the whole sum upon this Ground, that janet being substitute by the Father to Robert, without any mention of janets heirs, janet having died before Robert, she had never right, and her Substitution became absolutely void, and her Heirs not being expressed, this Substitution cannot extend to them, because, though ordinarily Heirs are comprehended, though not expressed, qui acquirit sibi acquirit suis, yet here is no Acquisition, but a voluntary Substitution, whereby it may be rationally conjectured, the mind of the Defunct was, that he would prefer janet to Robert's Heirs of line, not being Heirs of his Body; but not that he would prefer janets Heirs, which were a degree further from his own other Bairns. And the case of Substitutions in the Roman Law was urged, that if the Substitute died before the Institute, the Substitutes Heirs have never place. It was answered, that Institutions and Substitutions with us, do far differ from the Roman Substitutions, whereby if the Institute succeed, the Substitute has never place as Heir to the Institute, but the Institutes Heirs whatsomever, which failing, the Institute is there interpret so, that if the Institute never be Heir, than the Substitute has place, as Heir of Tailzie, and provision to the Substitute; so that here janets Heirs are Heirs to Robert, who had no Heirs of his Body, and do exclude William his Brother: and though janets Heirs be not mentioned, yet they are understood and comprehended, because in Tailzies and Provisions, there uses never to be an Institution or Substitution of a single person, without the Heirs of their Body. And though there be some singular Cases, in which Heirs not being expressed, are not comprehended, this is none of them. It was further alleged for William, that William and janet being Substitute jointly, janet deceasing before Robert, her share accresces to him, jure accrescendi ex conjuncta substitutione. It was answered, that there is here only substitutio conjuncta verbis, but disjuncta rebus, for the sum is declared to belong to William and janet equally, so that each of them has but Right to a half. The Lords preferred the Heirs of janet, and found that they had Right as Heirs of Provision to Robert, and that they ought to be served to him, and not to janet, who had never Right herself, having died before she was, or could be Heir to Robert. Elizabeth and Anna Boids. contra james Boid of Temple. january 6. 1670. JAmes Boid of Temple in his Contract of Marriage, and in a Bond of Provision relative thereto, became obliged to pay to the Bairns of the Marriage beside the Heir the sum of 20000. marks at their age of 17. years, reserving his own Liferent. Elizabeth and Anna Boids, the only Bairnes of the Marriage, now after their Mother's Death, and age of seventeen, do with concourse of their Husbands, pursue their Father to employ the said sum of 20000. marks to himself in Liferent, and them in Fee. The Defender alleged Absolvitor, because the Pursuers can have no Interest in this Provision, being expressly conceived in favours of the Bairns of the Marriage, beside the Heir: Itaest, The Pursuers are the Heirs appearand of the Marriage, there being no Sons, and will succeed to the Estate by the Contract, and so cannot demand the Provision made to the other Bairns, for if there had been a Son of the Marriage only, he could not have claimed this Clause; and the Pursuers can be in no better Case than he. It was answered, that in Contracts of Marriage, the meaning of the Parties is chiefly to be respected, which has been, that in case there were an Heir-male, or Son of the Marriage, this Sum should belong to the remanent Bairns, and therefore it is conceived under the name of Heir in the singular number, and being introduced in favours of the Daughters, it ought not to be interpret against them, but that they may renunce to be Heirs, and be satisfied with this Provision only; otherwise they may be absolutely excluded, the Father's Estate being apprized by john Boid, whose Legal is near to expire, and who makes use of the Father's Name without his Warrant. It was answered, that Law allows not in any Contract to make up new Clauses, and seeing the Provision is express in favours of the Bairns beside the Heir, it can never quadrat to their Pursuers, who are the only Heirs. The Lords found the Provision not to be extended to the Pursuers, but because it was suggested, that the Father did not propone it. They desired the Ordinar to inquire, whether the pursuit was for the Father, and by his Warrant, that then they might consider, whether john Boid the Appryzer could have interest to propone that alleadgeance. Ker of Cavers, and Scot of Golden-berrie Supplicants. Eodem die. KEr of Cavers, and Scot of Golden-berrie being Arbitrators nominat by a Submission, did by Bill crave Warrant from the Lords to authorise them, to summoned Witnesses to compear, and Depone before them in the Cause in which they were Arbiters. Which the Lords granted. jean Ker contra Downie. january 7. 1670. JEan Ker having set a House in Edinburgh to Downie for nine Pound ten Shillings Sterling; She obtains Decreet against him therefore: He Suspends on this Reason, that within 48. hours after he took the House, he did by Instrument give it over, which is the ordinar custom of burgh's, where there is no Writ, to quite the Bargain within a short space, unless some offer intervene, medio tempore, by which the Party is damnified. The Charger answered, that this House having been taken but fourteen days before the Term, there is neither Law nor Custom allowing either Party to give over or resile, there being then no competent time to set again: For albeit Houses sometimes are given over when they are taken, and quite before Warning time, when the ordinar occasion of setting to others may occur; yet that cannot be drawn to this case, and the Instrument of over-giving, was only by Downies Wife, who show no Warrant. The Suspender answered, that there was no difference, whether the House was taken before warning time, or after, seeing the Law gives locum penitentiae, or some small time, which must take place in either case. 2dly, Albeit the Charger had not been obliged to accept the over-giving, yet de facto, she has accepted it, because it is offered to be proven, that she set the House to another, and took Earnest thereupon, which did import that she quite the first Bargain, seeing at once she could not set it to two. 3dly, Albeit offer was made of the Keys at the Term, yet it is offered to be proven, that the House was not void, but that the former Tenants Goods remained therein. The Lords Repelled the first Reason of Suspension, upon the over-giving but found that Member Relevant, that the House being given over, the same was set to another, and earnest taken thereupon; but found that Point, that the Tenants' Goods, who possessed formerly, were not removed, not Relevant, in respect of the Custom in Edinburgh, not to remove peremptorly at the Term. Mr. Laurence Charters contra Parochioners of Curry. january 8. 1670. MR. Laurence Charters, as Executor Confirmed to Mr. john Charters Minister of Currie his Father pursues the Parochioners for 1000 Pound for the Melioration of the Manse of Currie, conform to the Act of Parliament, 1661. which is drawn back to the Rescinded Act of Parliament, 1649. It was alleged by the Parochioners, Absolvitor. First, Because the Meliorations of the Manse were long before any of these Acts, which do only relate to Meliorations to be made thereafter; and for any thing done before adificium solo cedit, and it must be presumed to be done by the Minister animo donandi, there being no Law when he did it, by which he could expect satisfaction. 2dly, Several of the Defenders are singular Successors, and so are not liable for Reparations done before they were Heretors. The Pursuer answered, that albeit these Reparations were done before the year 1649. yet there being subsequent Acts of Parliament, obliging the Heretors to make the Manses worth 1000 pounds, if these former Reparations had not been made, the Heretors of this Paroch would have been necessitate to make up the same, and so in quantum sunt lucrati tenentur. 2dly, The saids Acts of Parliament contained two Points, one is, that whereas the intrant Minister paid to his Predecessor 500 marks for the Manse, and his Executors were to receive the same from his Successor; the said's Acts ordained the Heretors to free the Successor, as to which the present Heretors can have no pretence, and as to the alleadgeance, that they are singular Successors, the Acts oblige Heretors, without distinction, whether they are singular Successors, or not. The Lords found the Parochioners only liable for the 500 marks paid by the Minister at his Entry▪ and found, that at the time of the Reparation, the Parochioners not being liable, were not then lucrati, and are not liable by the subsequent Acts, which extend not ad praeterita, neither did they find the singular Successors liable, but that the Heretors for the time were only obliged. Scot contra Murray. Eodem die. IN a Process betwixt Scot and Murray; a Husband having granted a Tack of his Wife's Liferent Lands, and the Wife having promised after his death, never to quarrel that Tack; yet thereafter insisting against the Tenants, who alleged upon the said promise, it was answered, that it being but a verbal Promise, not in Writ, it can be no more effectual, than if it had been a verbal Tack, which is only effectual for a year, and thereafter, the Setter may resile. It was answered, that here there is a Tack by the Husband for several years, and the Wife's promise never to quarrel it, needs no Solemnity in Writ, but is valid, as pactum de non petendo, or de non repugnando. The Lords found the Wives Promise effectual, and that she might not resile during the years of the Tack. Lady Lucia Hamiltoun contra The Lands of Dunlap and Pitcon, and the Creditors of Hay of Montcastle. january 15. 1670. LAdy Lucia Hamiltoun being assigned to a Bond of 4400. marks, granted by George Hay of Montcastle, to the Earl of Abercorn, she Inhibits the said George, and Denunces, and Apprizes his Lands of Birklands and others, and thereupon pursues Reduction against Dunlap, and Pitcon, and certain other Creditors, in favours of whom, there is a Disposition granted of the said's Lands by George Hay, and ins●sts on this Reason, that albeit the Disposition bear, to be for sums of Money, and Causes onerous; yet by a Clause therein, it is expressly declared, that it is granted to Dunlap and Pitcon, for satisfying of the Debts due to them: and to the effect they may sell the Lands for payment, and satisfaction of the said john Hay, his other Creditors under-written, for the sums after-specified: after which words, there was left a large blank, which by ocular inspection, is now filled up with another hand, than he who Wrote the Body of the Disposition: and which Article so filled up, is in the same case, as if it had been set upon the Margin and subscribed, or as if it had been in a several Writ, wanting Witnesses, and cannot be holden to be of the same date of the Disposition, but must be presumed to have been filled up after the Pursuers Inhibition, and after she had Denunced and Apprized the Lands; and therefore as to these Creditors so filled up, their Rights which are granted by Dunlap and Pit●on, the entrusted Persons, long after the Pursuers Inhibition and apprizing, the same aught to be Reduced. It was alleged for the Creditors Defenders, that the reason, as it is qualified, is no ways Relevant against them. First, Because the Disposition granted to Dunlap and Pitcon, being of the whole Lands, and they Infest accordingly, being long before the Pursuers Inhibition and apprizing; and the said Disposition and Infeftment, being to the Creditors behoove, albeit their Subaltern Rights from Dunlap and Pitcon, be posterior, nihil referi: And whereas it is alleged, that their Names and Sums are filled up in the blank, after the Inhibition and apprizing with another hand, and so must be presumed of another date. It is answered, that the Subscription at the Foot and Body of a Writ, did necessarily infer, that the whole blanks were then filled up, unless the contrary be proven, neither uses the Names of fillers up of blanks to be expressed, and it cannot be presumed, that any man in prudence would subscribe a blank Writ, till the blanks were first filled up. 2dly, Though it could be proven that the blank was filled up after the Inhibition, yet the general Terms of the Clause being insert, a principio, with the same hand, viz. for satisfaction of the said George his Creditors, it is sufficient, although the particulars were insert after. 3dly, It is offered to be proven, if need beiss by the Oaths of Dunlap. Pitcon, and the Witnesses insert, that before the subscribing of this Disposition, their Creditors filled up, were particularly comm●ned on to be filled up, and no other. The Pursuer answered, that there being here pregnant Evidences of Fraud, by interposing entrusted persons, and preferring of some Creditors to others by the Debtor, who was Insolvent, and had no more Estate, in that case the filling up of the blanks must be presumed fraudulent and posterior, unless the Creditors prove it was truly● filled up before the Inhibition, otherwise it opens a Door to all Insolvent Persons in this manner, to exclude any of their Creditors from payment, and to have such Clauses ambulatory at their pleasure: Neither doth the general part of the Clause suffice, unless it had been in favours of the Disponers Creditors generally, or indefinitely, which would have comprehended the Pursuer; but it being only of the Creditors under-written, if these were not under-written till after the Inhibition they, have no place: And as for any verbal Communing or Agreement, it cannot be effectual, until it be redacted into Write, which was not till after the Inhibition. The Lords found that the blank being filled up with another hand, and so substantial a Clause, and the Writer not being expressed at the foot, that it was to be presumed, to be posterior to the Inhibition, unless the Creditors prove by the Witnesses insert, or others above exception, that it was truly insert before the Inhibition and Apprizing, wherein they would not admit the Oaths of the Persons entrusted, and they had no respect to the alleadgeance, that it was Communed and Agreed upon before the Subscription. Doctor Balfour and his Spouse contra Mr. William Wood january 18. 1670. UMquhil Mr. james Wood having been Tutor to his Wife's Daughter, she being now Married to Doctor Balfour, they pursue Mr. William Wood, as Representing his Father for a Tutor account; in which Account, the Auditors reported these Points. 1. The Pursuer insisted for the whole sums, bearing Annualrent, whereof no part belongs to the Wife, as Relict, she being excluded by the Act of Parliament. The Defender answered, that he opponed the Testament, and Confirmation unreduced, whereby there is a Tripartite Division of the whole Sums, and the Relict has one Third, which belonged to the Defunct Tutor, her Husband, jure mariti. The Lords Repelled this alleadgeance, and found that the Error of the Confirmation was Corrigible without Reduction. 2. The Defender alleged that he was not comptable for the Annualrent of one of the Sums acclaimed, because by the Bond, it was provided in Liferent to the Relict, whereto his Father had right, jure mariti. It was answered, that the Tutor had given several Discharges of that Annualrent as Tutor, and not as Husband, and so had Homologat and acknowledged the Pupils right to the Annualrent. It was answered, that the Discharge was so granted by error and mistake, & falsa designatio non obest ubi constat deer and offered to prove by the Bond, that the Wife was Liferenter. Which the Lords found Relevant. Andrew Hadden contra Nicol Campbel. january 25. 1670. ANdrew Hadden having Charged Nicol Campbel upon a Bond Subscribed by him as Cautioner for Samuel Meikle Goldsmith. Nicol Campbel Suspends, and raises Reduction on this Ground, that he being an illiterate man, and could not subscribe, he was induced to be Cautioner for Samuel Meikle, but on these express Terms, that he should only be Cautioner for 1200. marks, and accordingly he gave order to the two Nottars, to subscribe for him as Cautioner for 1200. marks. The said Andrew Hadden the Creditor, being then present at the Warrant and Subscription, and yet a far greater Sum is filled up in the Bond, which he offers to prove by the two Nottars, the Witnesses insert, and the Communers. The Charger answered, that he oppones his Bond, being a clear liquid Bond in Writ, which cannot be taken away by Witnesses. The Suspender answered, that albeit regularly, Writ cannot be taken away by Witnesses, yet Fraud or Circumvention, or the Terms of Agreement, and Communing in Contracts, are always probable by the Oaths of the Communers, Writer, and the Witnesses insert. The Lords would not receive the Reason to be proven in the ordinar way by Witnesses, but ex officio, ordained the Communers, Nottars, and Witnesses to be Examined, that they might consider the clearness, and pregnancy of their Testimonies, whether this Writ was Read to the Suspender, when he gave Warrant to Subscribe, and what was Read for the Sum, and on what Terms he gave Warrant to Subscribe. Mr. john Mcqueen contra Marquis of Douglass, and Mr. Peter Pearson. January 26. 1670. MR. john Mcqueen having been Minister at Carmichael, and Trainsported to Edinburgh, he continued to serve the Cure at Carmichael, till March 1669 and pursues the Marquis for the half years Stipend 1669. Compearance is made for Mr. Peter Pearson his Successor, who alleged that he is presented in january to the whole Stipend 1669. and thereby has Right; and Mcqueen was Transported before january 1669. and though he continued to Preach till February or March, yet being Transported, he was no more Minister, and did not Preach till the complete Sowing, or Whitsonday, which is the legal Term for half a years Stipend of Transported Ministers. It was answered for Mr. Mcqueen, that Pearson not being Admitted Minister till August 1669. can have no right to a Term anterior, and the Patron's Presentation can give him no right, because the Patron has now no power of the vaccand Stipend. The Lords preferred Mcqueen, seeing nothing was alleged for the Collector of the Vaccand Stipends, who, it is like, might have excluded both, for at Whitsonday, neither of them was in officio, or beneficio, Relict of Mr. Patrick Shells contra Parochioners of West-Calder. Eodem die. MR. Patrick Sh●ils having been Minister of West-Calder, he was Suspended by the Synod and Bishop, for not coming to the Presbyteries and Synods, and the Act Suspended him; ab officio, and bear, that if he did not come to the next Synod, they would proceed to Depose him, yet he was not Deposed, but continued three years in the Possession of the Manse, Gleib, and Stipend, his Wife now pursues for an Ann, the next Intrant being admitted within three Months after Mr. Patrick's Death, alleadges she could have no Ann, because Mr. Patrick was Suspended ab officio & benefici●, and produces an Act of the Synod bearing so much, and the Relict produces that same Act Extracted, and Subscribed by umquhil Mr. George Hay, who was Clerk at the time, and bears only Suspension, ab officio, and the Intrants' Act is Extracted by the present subsequent Clerk, and bears ab officio & beneficio. The Relict alleged, that the Act produced by her, was the only Act intimate to Mr. Patrick, and which is Subscribed by the Clerk, who was Clerk to the principal Act itself, and accordingly Mr. Patrick was in bona fide, and did possess three years after. The Lords adhered to that Act, and found the Ann due, and ordained the other Act to be keeped in retentis, that it might be compared with the Register, that he might be Censured if he Extracted it wrong. Lady Towie contra Captain Barclay. Eodem die. THe Lady Towie insisted in the improbation of a Disposition, alleged granted by the Tutor of Towie, whose Estate was provided to Heirs-male, but he had Disponed his Estate to the Pursuer his Daughter, upon which, no Infeftment had followed in his Life: And also for improving of a Bond of a hundreth and three thousand pound, alleged granted by the Deceased Laird of Towie, both granted in favours of Captain William Barclay. In which Improbation, because the Writs were not produced, a Decreet of Certification, holding them as false and feinzied, and declaring them to make no Faith, was Pronounced and Extracted: and thereafter the Pursuer having desired, that Alexander Steil, and john Ross, Witnesses insert in the Disposition, and Alexander Ferguson Writer, and Witnesses in the Disposition, and Witness in the Bond, should be Examined, lest by their Death, the means of Improbation should fail, in case the Writs were hereafter produced. Whereupon the Lords Examined the Witnesses, Steil and R●ss by their Depositions, acknowledged, that they being Servants to Captain Barclay, he had induced them to Subscribe as Witnesses to a Writ, which he had folded up, and did not Read to them; but they saw that there was no Name, as a Subscription thereto, at that time, but the Captain told them, that he would get the Tutor of Towies Subscription thereto, and that he had thereafter dealt with them to bide by the Writ, as a true Writ; and that albeit it bear date at the Barns of Towie, the day after the Laird died, yet that it was truly Subscribed at the Captain's House of Achridie, about a Month thereafter, Ferguson did Depone, that he had Written over the said Disposition, and that it was Subscribed at Achridie about a Month after Towie died, and that he had insert himself Witness therein, but had not Subscribed as Witness; and that he was insert, and Subscribing Witness in the said Bond, to which he Forged, and set to the hand of the Deceased Laird of Tow●e, at the desire of the Captain, whose Pupil he had been. The other Witness in the Bond was Richard Barclay, who appeared not: upon the foresaid Disposition Captain Barclay had made Resignation before the Lords of Exchequer, and the same had been produced by him, and made use of in Processes before the Lords, as appeared by the Subscribed Minute, by Mr. Alexander Birnie his Advocate, acknowledging the getting up of that Disposition from the Clerk, which he had produced for Captain Barclays interest, and which he had delivered to the Captain immediately, as he had received the same from the Clerk. Captain Barclays Goodson Arnage, was also Examined, who Depo●ed that he had received a Message from the Captain, to deal with the Witnesses to come over to Edinburgh, and bide by the Writs. Captain Barclay himself was also Examined upon Oath, and Confronted with the Witnesses, but he denied all the foresaid Points in their Testimonies, and Deponed that the said William Steil being his Servant, had run away from him, and carried away the said Disposition and Bond, and had gone over to the Lady Towie, and conspired with her for his destruction. The Tutor also being Examined upon Oath, acknowledged he had subscribed several Dispositions of the Estate of Towie, in favours of Captain Barclay, and that some of them were Subscribed, no Witnesses being present, but that he had bidden the Captain put in what Witnesses he pleased; and that whereas before he had declared, that he had Subscribed no Disposition, yet he had done it, being in the power of the Lady Towies Friends, who told him that Captain Barclay being next Heir-male of Towie, had a mind to take his Life, which he found afterward not to be true, and was willing to do any Deed for conveying of the Estate to the Captain, seeing he had no Heirs-male of his own. The Clerks of Exchequer, Advocats, and several Writers and their Servants, were also Examined upon Oath, anent the having of the said Disposition and Bond; The Clerks of Exchequer Deponed that the Disposition was produced in Exchequer, and Resignation made thereon; and the r●st Deponed, that they had seen the Disposition and Bond, and were Consulted thereupon by the Captain, but had given them back to him. Upon the whole Matter, the Pursuer craved, that now, seeing there was sufficient Probation of the Forgery of the Writs, and that the Lords had produced before them a just double of the Disposition, presented to the Exchequer, that therefore the Lords would proceed to improve the same, and to declare that the same were false, and Forged by the Captain, and that they would remit him to the Justice General, according to the ordinary Custom in Improbations. It was answered for the Defender, that the Lords could not proceed to improve the Writs, because the Writs were not produced, and never any Writ in Scotland was improven, but when the principal Writ itself was produced; neither can it otherwise be, for Improbation before the Lords, being ad effectum civilem, to take away the Writ, and Right therein, the same behoved always to proceed upon a particular and individual Writ, which therefore behoved to be produced before the Lords and Witnesses; for suppose it could be prove that a Write of such a date, and such a Tenor, was Fabricat, and Forged at such a time and place, which might in●er a Crime against the Forgers; yet it could not take away all right by such a Writ, because there might be several Writs of the same Date; and the making up and improving of a false Writ of such a Date, could not take away the true Writ of the same Date, unless the principal Writ itself had been produced, that the Judges and Witnesses might know that that was the very Writ in question. And therefore our Custom hath settled and fixed upon this Remeid, by allowing a Certification, that if the Writs called for to be Improven, were not produced, they should be holden and repute as false and feinzied, and should make no Faith: but did not find them proven to be Forged and Feinzied: but only to make no Faith, as if they had been fenzied, which in this Process has been done, and the Lords have neither Law nor Custom to do any further. 2dly, Albeit the Witnesses have by their own Testimonies declared themselves to be Forgers of false Writs, their Testimonies cannot prove that Captain Barclay was either Author, or accessary to their Forgery▪ because they are socij criminis, and have by their Testimony made themselves infamous, as Falsers; and so there is no Faith to be given to their Testimonies, against any other but themselves: Besides, they have given partial Counsel to the Pursuer, and have betrayed their Testimonies, by voluntarly coming to them, and declaring what they would Depone; and therefore the Lords can neither Improve the Writs, nor Remit Captain Barclay to the Justice, as a Falser. The Pursuer answered, that albeit the ordinar Course in Improbations, be only Certification, when the Writs are not produced: yet there is nothing to hinder the Lords to use extraordinary Remeids, in extraordinary Cases; and there can be no Case more extraordinar than this, where there is an evident Tract of Forgery, for taking away a considerable Estate of sixscore Chalders of Victual Improven by the very Witnesses insert, and that the Writs have not been produced. It is the Defenders own fault, who knowing them to be false, wilfully Abstracts the same, and it will be a very great encouragement to Forgery, if the Forger knew that all his hazard will be, to suffer Certification, if his Forgery take not; Neither were ever Witnesses in Improbation of Writs, exclude in the Civil Process, as being socij criminis: But if they acknowledge the Forgery thereof, they were Improved, though they themselves were accessary to the Forgery, otherwise if Witnesses can be induced to Subscribe as Witnesses to a forged Subscription, there were no possibility of Remeid, seeing it cannot be thought, they would suffer any other to be present, or that the Forger himself would confess. The Lords refused to proceed to Improve the Writs, not being produced, or to Remit the Parties to the Justice: But they did Declare, that by the Processes, they found Steil, Ross, and Ferguson, the Witnesses to be guilty of Forgery, by their own Confession; and that they found Captain Barclay had made use of the Writs, acknowledged to have been Forged, and therefore ordained these of their number, that were upon the Privy Council, to Represent the Case to the Council, that they might cognosce what further Censure they saw just to be Inflicted: and it was the private opinion of most of the Lords, that at least the Witnesses, and Barclay himself should be banished: But they found it not proper for them to express their opinion; or prelimit the Council. But withal, the Lords found the Probation adduced, sufficient to Declare Captain Barclay and the Witnesses infamous, and did Declare them such accordingly. james Watson contra Agnes Simpson. February 1. 1670. AGnes Simpson being Infeft by umquhil Alexander Stewart her Husband in Liferent, in an Annualrent of 40. pound yearly out of the Lands of La●ellethem, she in Anno 1657. obtained a Decreet of Poinding of the Ground, and the Tenants having Suspended on multiply Poinding calling her, and James Watson and others, wherein she is preferred in Anno 1666. to her Annualrent, for all years bygone, and in time coming. In which 〈◊〉 of multiple Poinding, Watson was absent. Watson making use of the names of the Tenants, does raise a second Suspension, Anno 1668. wherein he is called on the one part, and the said Agnes Simpson on the other part, which now coming to be Discussed; it was alleged for the said james Watson, that the Decreet of multiple Poinding against him, being in absence, he ought now to be heard upon his Right, which is a public Infeftment, long before the Liferenters base Infeftment, or before it was clad with Possession. It was answered, that by the express Act of Parliament, anent double Poinding, It is Declared, that where parties are called, and compear not, but intent Reduction of the Decreet, that they shall never be heard against the Decreet, or what the obtainer thereof has uplifted, unles● they show a sufficient Cause of their absence; and that the obtainer of the Decreet shall only be obliged to answer the other Party in the second instance, according to the Right, which is then competent in his Pe●son, and the obtainer of the Decreet shall have undoubted Right to the Mails and Duties, ay and while he be warned at the instance of the other Party, and better Right shown, as is clear by the Act of Parliament, 1584. cap. 3. So that Watson having yet raised no Reduction of the Decreet of multiple Poinding, preferring Simpson, but only a second Suspension in name of the Tenants, who Suspended before, the said Agnes Simpson her Decreet standing, and her Right standing thereby, cannot be taken away, till in a Reduction Watson produce a better Right. It was answered, that Watson does not contend for the years lifted by Simpson, or for any years' prior to his second Suspension, albeit he does produce an unquestionable Right, that would exclude her from all; yet in regard of the Act of Parliament, he is satisfied she be preferred, for all years, till he in his second Suspension, produce his Rights; but alleadges that he needs not raise Reduction, because the Act of Parliament does not require the same, but any Complaint or Process is thereby sufficient; Neither does the ordinar course of Law require a Reduction of a Decreet in absence, but a Suspension alone is sufficient; and if he be put to a Reduction, his unquestionable Right will be excluded for all years bygone, and ay and while he raise his Reduction, and produce his Right. It was answered, that albeit the ordinar course requires not Reduction of Decreets in absence, yet the Act of Parliament requires the same, because in the Narrative, it expressly mentions, that the party absent in the double Poinding, uses to raise Reduction: And in the Statutory part, it mentions, that the other Parties Complaint shall be heard in the second instance, which is always understood to be Reduction or Declarator, and in a second Suspension. The Lords found that Reduction was necessary to take away a Decreet of multiple Poinding in absence, and that a second Suspension was not sufficient, and therefore preferred Simpson, and found the Letters orderly proceeded, but prejudice to Watson to raise his Reduction for the Duties in time coming. Alexander Jack contra Colonel Borthwick. February 2. 1670. ALexander Jack alleging that he Subscribed a blank to have been filled up in a Bond of Cautionry, in a Suspension, which was found among the Writs of umquhil George Jack, as a blank Paper, who lived several years thereafter; and after his Decease, his Relict finding the same, caused fill up in the blank, a Bond of ten thousand pound, as being borrowed from Thomas Boid of Pinkill, and is now in the Person of Colonel B●r●hwick, who having Charged thereupon, the said Alexander Jack Suspended, and raised Reduction on this Reason, that he had never any meddling, or borrowing with the said Thomas Boyd; but that the said Bond was a blank Paper, found among the Writs of the said Deceased George Jack, and neither he nor the said Alexander were ever worth so great a sum: and now seeing Colonel Borthwich did not insist in his Charge; Jack was necessitate to proceed to take away the Bond, and craved that the Lords would Examine Witnesses, ex officio, upon the truth of this Reason. The Lords ordained the Writer, and the Witnesses to be first Examined, ex officio, and thereafter other Witnesses, as the Lords should see Cause. Earl of Kinghorn contra The Laird of Pittarro. February 3. 1670. THe Earl of Kinghorn pursues a Declarator of the nullity of a Bond of 1000 marks granted by his Father▪ and now standing in the name of Pi●tarro, as Creditor on this Ground, that he never borrowed the sum from Pittarro, nor delivered this Bond to him; but having Trusted umquhil Alexander Keith, as his ordinar Agent and Writer, with this Bond, blank in the Sum and Date, to have borrowed Money upon the same, took never effect, but remained so blank in the hands of Alexander Keith, for many years, till his Death, and thereafter in his Relics hands, till her Death, and after her Death the blank was filled up, by John Bane her Brother, and the Date made in Anno 1647. whereas the Bond mentions Alber as Cautioner, who Died before the year 1640. whereupon Pittarro's Oath, and the Oath of Alexander Keith, Friend to the said umquhil, Alexander being taken, Pittarro acknowledged that the Bond was blank, and filled up by the said John Bane, as the Reason bears, and that he received the same by advice of this Alexander Keith, in satisfaction of 1000 marks, and 40. pound due to Pittarro, by Mr. Roger Mowat, and lifted from him by umquhil Alexander Keith, by Pittarro's Warrant, for which he obtained Decreet against Alexander Keith his Executrix before the Commissars, now produced in Process, and proceeding upon a missive Letter of umquhil Alexander Keiths, acknowledging the Debt. It was answered for Pittarro, that by the Bond produced, it was clear that his Name was in the Bond, ab initio, as Creditor, and was not filled up, ex post facto, neither was there any wrong in filling up this Sum, because he having already proven, that Alexander Keith had uplifted the like Sum of his from Mr. Roger Mowat, and that my Lord Kinghorn being Debtor to Keith in considerable Sums of Money, paid to his Creditors, conform to Discharges produced in Process, Alexander Keith might lawfully have filled up the Sum in the Bond, for Repayment of Pittarro, whose Money he had uplifted, and any Friend of his had done my Lord Kinghorn no wrong, seeing thereby he would be exonered of the like Sum to Keith, and was content yet to Compt and Reckon with Kinghorn, for Alexander Keith, and to Restrict his Sum, to what shall be found due by the umquhil Earl of Kinghorn to Keith. Likeas, this Alexander Keith by his Oath in Process Depones that he heard that umquhil Alexander Keith, on his Deathbed Declared, that Kinghorn was Debtor to him in nine thousand marks: and therefore he thought it no fault to fill up the blank in this Bond. It was answered for Kinghorn, that albeit umquhil Alexander Keith was trusted by the umquhil Earl of Kinghorn with this blank Bond, that Trust being merely personal to him. It was a most unwarrantable trinkating for any other after his Death, to fill up the Bond, especially seeing neither by Testament, nor any other Writ umquhil Alexander Keith, who only was entrusted, and who lived many years after, and was no ways surprised with Death, did signify that the Money was borrowed from Pittarro, or taken from any of his Creditors and applied to Kinghorn's use, and the hear-say of this Alexander Keith is of no moment: and if any thing be due by Kinghorn to Keith, the Pursuer Represents his Father as Heir, and shall answer Pittarro, or any Executor or Creditor of Keiths, whenever he shall be pursued: but cannot be insisted against, upon this Bond, so unwarrantably filled up. The Lords found the Declarator Relevant and Proven, and therefore Discerned the said Bond null, reserving Action against Kinghorn, upon any Debt due by Kinghorn to Keith as accords. Tutor of Colzean contra The nearest of Kin of the Pupil. February 5. 1670. THe Tutor of Colzean having cited the nearest of Kin of his Pupil, to hear and see it found and declared, that the Pupils Lands were set too high, and could not be keeped at these Rates, and that the Tenants were in Arreir before his Tutory in great Sums, which if he should exact, would cast the Land waste; and that it was for the good of the Pupil, to set the Land at lower Rates, which it might be able to pay, and to quite so much of the Arreirs, as the Tenants might pay the rest, and be able to continue and Possess. There being no compearance, the Lords gave Commission to certain Gentlemen in the Country to Examine the Rate of the Land, and the conditions of the Tenants, who have reported several of the Rooms to be too high set, and what ought to be given down, and what behoved to be quite to each Tennent, that was deep in Arreir, to enable him to pay the rest, and Labour the Ground. The Lords approved the Report, with these Qualifications, First, That the Tutor should Discharge nothing simply, but only till the Pupillarity were passed, that himself and Curators might then proceed as they saw Cause, and that the Tutor, before any Abatement of the Rooms, should cause make Intimation at the Mercat Cross of the Jurisdiction, and at the Paroch Church that such Lands were to be set, at such a place, such a day, and whoever bade most for them, being sufficient Tenants, should have them, and that at the said day, if a better Rate were not gotten, the Tutor might then, or thereafter, set at the Rates contained in the Commission. Daniel Cathcart contra Mccorquodail and Mr. james Murky. February 8. 1670. Mccorquodail having Married the Daughter of Mr. James Murky, he, and the Baron of Mccorquodail his Brother, are obliged to pay yearly 600. marks to the Wife, after the Husband's Death: and Mr. James Murky is obliged to pay to Mccorquodail 7000. marks of Tocher: Mccorquodail being Debtor to Daniel Cathcart Writer in Edinburgh in 600. marks. He arrests the Tocher in Mirks hands, and pursues to make forthcoming, and for instructing, produces the foresaid Contract of Marriage. It was alleged for Murky that he is not obliged to pay, or make furthcoming the Tocher, unless his Daughter were secured in her Jointer, for the Tocher and Jointer being the mutual causes of the Contract; neither Mccorquodail nor any deriving Right from him by Assignation, or Arrestment, can demand the Tocher till they secure the Jointer, and that exception is Relevant, both against Mccorquodail and his Assignies. It was answered for the Pursuer, that if it had been provided by the Contract, that the Tocher should have been employed for the Wife's security, the Defense had been Relevant, or there might be some pretence, if there were an obligement upon the Husband to secure the Wife in Land or Annualrent for 600. Marks. But the Contracters having agreed for no security for the future, but having agreed upon a Personal security, viz. of the Husband and his Brother, the Husband's part of the Contract is performed, and the Husband is no ways Creditor till his Death. Which the Lords found Relevant, and in respect of the conception of the Contract as aforesaid, Repelled the Defense, and Discerned. john Scot contra Alexander Cheisly and David Thomson, February 9 1670. IOhn Scot pursues a Declarator of Circumvention against Alexander Cheisly, and David Thomson, bearing that Alexander Cheisly having a Process against the Magistrates of Glasgow, for alleged hindering the Executing of a Decreet, and imprisoning him, and being in an evil Condition in his Means, he proposed to the said john Scot his Good-brother, that he must make use of his Name as assignee to that Process, lest his Creditors might affect any thing that might be obtained thereby, and that john Scot should give a Back-bond, declaring that his Name was put in the Assignation upon Trust. In stead of which Back-bond, he caused draw up a Bond, bearing that forsomuch as Alexander Cheisly had Assigned john Scot to a Process against the Town of Glasgow therefore, and for other good Causes and Considerations. john Scot obliges him to pay to a blank Person 3850. Marks, in which Bond Alex●nder Cheisly, filled up David Thomsons Name, and which Bond was obtained by Alexander Cheisly, by gross Circumvention upon the absolute Trust the said john Scot reposed upon the said Alexander, for clearing whereof he condescends on these Points, viz. that the said john Scot was Goodbrother to the said Alexander Cheisly, had been his Apprentice, and the said Alexander was his Curator, and the said john Scot is known to be a simple Person, and the said Alexander Cheisly to be a subtle Person, ready to take advantage: Likeas it is evident that he did take advantage of the said john Scot, about that same time, pretending that he was more able to act john Scots Affairs then himself, he procured Assignation from john Scot to Bonds of twenty eight thousand Marks, and put in the Assignation● Clause of absolute Warrandice, albeit by a Back-bond of the same Date, it be clear that the Assignation was only granted for Love and Favour, and for Agenting the Matter, and that the one half should belong to Cheisly for his pains, and the other to Scot, but prejudice to Scots obligements in the Assignation, which could be no other but the Warrandice, whereby albeit Cheisly knew that a part of the Debts were paid to Scots Father, and a part was insolvent, and that Scot who was assignee by his Mother as Executrix, had no more himself but Warrandice from her Deed, yet by the absolute Warrandice he intended to be sure of the one half of the Sums, although it's known that hardly the half will be recovered, whereby Cheisly should have all, and Scot who freely granted the Assignation should have nothing, but less than nothing, by being obliged to make up the half, though so much were not recovered of the whole. 2dly, All the pretence of the Plea against Glasgow could never amount to 3850. Marks, yet the Bond is conceived for absolute payment of that Sum, albeit it was a mere Plea, depending many years, and Debated without success. 3dly, Cheisly himself did ever keep the Process and Assignation, and did transact the Plea, or a great part thereof with the Magistrates of Glasgow, and got payment. In this pursuit there was no Compearance for Cheisly, but it was alleged for David Thomson, that whatever had passed betwixt Cheisly and Scot, no ground of Circumvention betwixt them could be Relevant to take away his Right, who seeing the blank Bond filled up with his Name by Cheisly, before it was brought to him, and given to him for Debt due to him by Cheisly, and he being nowayes particeps fraudis, Cheislies Fraud or Circumvention cannot prejudge him, for albeit Extortion vi majori be vitium real, that follows the Right to all singular Successors, yet fraud is not, and reaches none but participes fraudis, both by the Act of Parliament 1621. and by the civil Law. L. It was answered for Scot, that albeit it be true that an assignee for an O●erous Cause cannot be prejudged by the Oath of his Cedent, and consequently by no Circumvention probable by his Oath; yet in Personal Rights an assignee is in no better case than the Cedent, nisi quoad modum probandi, but what is relevant against the Cedent, and competent to be proven, either by Writ or Witnesses is competent against the assignee, so that the Circumvention against Cheisly being inferred by pregnant Evidences and Witnesses, and not by his Oath, it must be effectual against Thomson, whose Name being filled up by Cheisly, is in effect Cheislies assignee, for so all blank Bonds are commonly found by the Lords to have the same effect with an Assignation. 2dly, Assignies without an Onerous Cause, even as to the Oath of the Cedent, or any other consideration are in no better case nor the Cedent; but here there is no Onerous Cause appears, for which Cheisly transmits' this Right to Thomson, for the Bond ●ears not that for Sums of Money due by Cheisly to Thomson, or any other Cause Onerous on Thomsons part, that Scot should be obliged at Cheislies desire to pay Thomson, but only that because Cheisly had Assigned a Process to Scot, therefore Scot becomes obliged to pay to Thomson. 3dly, As there is no Cause Onerous instructed on Thomsons part, so his own Oath de calumnia being taken, renders the matter most suspicious, by which he acknowledges he got the Bond from Cheisly, and that Cheisly was not then his Debtor for so great a Sum as in the Bond, but that by payments made to him, and for him, thereafter he became his Debtor in an equivalent Sum, but Depones that he hath nothing to instruct the Debt, nor no Note thereof in his Compt Book, though he be an exact Merchant and Factor, so that there is no Evidence or Adminicle of an Onerous Cause instructed. And lastly, Albeit Parties getting blank Bonds bearing borrowed Money from the blank Person, whosoevers Name is filled up, the Bond than bears the Sums borrowed from him whose Name is filled up, and cannot be taken away but by his Writ or his Oath, but this Bond bears only a Process Assigned by Cheisly, and no borrowed Money, or other Cause by Thomson, and Thomson living in the same Town with Scot whom he knew, and is commonly known to be a simple Person, and Cheisly a subdolous, he ought before accepting of the Bond to have acquainted Scot of the filling up of his Name, and if he had any thing to say, and cannot now pretend that he acted bona fide, but either must be in dolo or in lata culpa, quae dolo aequiparatur. The Lords found that having considered the Tenor of the Bond, and Thomsons Oath, Thomson was in the same condition as to the relevancy and probation of the Reasons of Circumvention against Cheisly, and therefore found the Libel Relevant against them both to annul the Bond, the Apprizing, and Infeftment, and all that had followed thereupon. Naper contra Gordon of Grange, Feb. 12. 1670. IOhn Naper, as Representing his Father, did Pursue William Gordon of Grange, as Representing Hugh his Father, for payment of 2000 Marks, due by the said Umquhile Hugh his Bond, and upon the said Williams Renuncing to be Heir, obtained Adjudication of the Lands of Grange and others, in so far as might belong to the said Umquhile Hugh his Debtor, his Heirs; and thereupon did Pursue the Tenants for Mails and Duties. In which Action, it was alleged for William Gordon, now of Grange, that he stands Infeft by Disposition from the said Umquhile Hugh Gordon of Grange, his Father, for Onerous Causes, and Sums of Money undertaken, and paid for his Father, which was found Relevant; and to evite the same the said john Naper raised Reduction of Grange's Right granted by his Father, ex capite Inhibitionis, raised against his Father upon the said Bond, before the Disposition made to this Grange; which Inhibition being produced this day fortnight, it was alleged for Grange that the 'samine was thursdays, because the Executions buir not a Copy to have been lest at the Mercat Cross, at the publication of the Inhibition, which the Lords found Relevant, and now the Pursuer insisted on this Reason, that the Disposition though it buir Onerous Causes, yet being after the Contracting of his Debt, by a Father to a Son, the Narrative bearing the Cause thereof, is not Probative against a third Party, but the same must yet be instructed. Which the Lords Sustained, and ordained Grange to produce the Instructions thereof. William Lowry contra Sir john Drummond, Feb. 18. 1670. UMquhile Sir Robert Drummond of Meidup, having Disponed the Lands of Scotstoun to Sir john Drummond of Burnbank; Mr. john Drummond Writer in Edinburgh, his Grand Nevoy, intending to Reduce that Disposition as on Deathbed, grants a Bond to William Lowry of 12000. Marks, who thereupon having Charged the said Mr. john to enter Heir in special to the Lands of Scotstoun, to the said Sir Robert his Grand Uncle, Apprizes from him all the Right of the Lands, that might be competent to him, if he were entered Heir, and thereupon raises Reduction of Sir john his Right, as being granted by Sir Robert on Deathbed, in prejudice of his nearest Heirs, in whose place the Pursuer now is by the Apprizing. It was alleged for the Defender, no Process upon any Charge to enter Heir against Mr. john Drummond, because he is not the nearest appearand Heir, but has an elder Brother living. The Pursuer answered, that the said elder Brother had gone out of the Country 18. years ago, and was commonly holden and repute Dead; likeas he produced a Missive of one Crei●htoun his Commerad in the War abroad, bearing the Circumstances of his Sickness, Death and Burial, Dated july 6. 1667. It was answered, that semel vivus semper presumitur vivus nis● contrarium probetur, and what was alleged could be no probation, but some probabilities of Death. The Pursuer answered, that the brokard is but presumptio juris, and not presumptio juris & de jure, and therefore only transvert onus probandi, which Probation may be valid without Witnesses, by such adminicles as the Lords shall find sufficient, which are here sufficiently alleged, viz. long Absence, common Fame, and a Missive Letter. The Lords found that eighteen years' Absence, and being holden and repute Dead, was sufficient Probation to take off the presumption of Life, unless a stronger Probation for the Parties being on Life were shown, than the naked presumption thereof. Lauchlen Lesly contra Guthry. Feb. 19 1670. LAuchlen Lesly having Fraughted a Ship belonging to baily Guthry in Dundee, to carry a Loadning of Wheat and Oats from Athol to Leith, the Skipper did put in by the way at Dundee, and there the Ship received a Crush by another Ship, whereby the Salt-water entered amongst the Victual, and thereupon the Owners and Skipper caused Disloaden the Victual, and put it up in Lofts, and baily Guthry the next day after the Crush, gave notice to Robert Lesly in Dundee, Lauchlens Correspondent, and who made the Bargain for him, to make it known to Lauchlen what had befallen the Ship and Loadning, who within two days after came to Dundee and was required to Receive the Victual, which he refused, and by the Probation adduced in this Cause it was found that it was the Skippers Fault, that he had put in to Dundee, and so he and the Owners were found liable for the damnage and interest of the Merchants, and that the Merchants should be only obliged to take back that Part of the Victual that was unspoiled, and the Owners should be liable for the Price of the whole as it would have given at Leith, if the Skipper had keeped his Course, deducing the Price of the sufficient Victual as it now gives, and a Commission being granted to certain Persons in Dundee to visit the Victual, and to see what condition it was in, they reported that 36. Bolls of it was sufficient Mercatable Wheat▪ and that the Oats was damnisied in 20 Shilling the Boll, and as to the rest, two reported that it would yet be Brisket for Ships, or Household Servants, and two reported that it was spoiled, but spoke nothing further. The question arose to the Lords upon the Commission at the Advising thereof, whether the Owners and Skipper should be liable for the damnage that was done before the Advertisement given to the Merchant, or for the damnage that ensued thereafter, because the Victual being laid together, without separating the wet from the dry, had het and spoiled thereafter, and if it had been separate at first, the damnage would have been very little, and so the question was, whether the Owners and Skipper were obliged to have separat the wet from the dry, and so to have offered it to the Merchant, or if the offer in general to the Merchant to receive the Victual was sufficient, though he did not desire them to separat the wet from the dry, or that they did not offer satisfaction, or security for the damnage of what was wet. The Lords found that seeing the damnage had fallen after, and through the occasion of the Skippers delay, he and the Owners were obliged to separat the wet from the dry, and to have used diligence to prevent future damnage, wherein having failzied, they found them liable for the whole damnage, both before and after the offer; the next question arose was, whether the Skipper and Owners were obliged to take the spoilt Victual, and pay the Price thereof, as if it had been sufficient, or if the Merchant was obliged to take it, and the Owners to make up the damnage. The Lords found that seeing the Victual remained yet in specie, and was not wholly Corrupted, but by the report appeared to be useful for Ship Brisket, and seeing the property thereof still remained in the Merchant,, and the Owners were only liable for damnage; They ordained the Merchants to Receive the wet Victual, and gave Commission to the same Persons to report what it was worse than the Price it would have given at Leith, if the Voyage had held. The Countess of Cassills' contra The Earl of Cassills', February. 22. 1670. BY Contract of Marriage betwixt the Deceased Earl of Cassills' and his Lady, he is obliged to Infeft her in certain Lands, with absolute Warrandice, and obliges him that the Lands did pay then, and several years before 6000. Marks of yearly Rent, beside Kanes and Customs, and over and above Teinds and Feu-duties, and if it shall please the Lady within six Months after the Earls Death, rather to choice six thousand Marks of free Rent, then to retain the Possession of the Land, and to give a Tack to his Heirs and Successors of the Liferent-lands: Then and in that case he obliges his Heirs and Successors to pay her 6000. Marks yearly. Therefore the Countess has made it in her option, and offers to take, and Pursues the Earl her Son to pay yearly the said Sum of six thousand Marks of free Rent; who alleged, that albeit that Clause be mentioned to be free Rent, yet he must have allowance of Cess, Maintenance, and other public Burdens, because by free Rent can only be understood, free of Teinds and Feu-duties, in respect that this being a Tack-duty for the Liferent-lands, the Lady thereby can be no further free, then if she enjoyed the whole Lands, which the Earl is only obliged to make worth 6000. Marks of yearly Rent, over and above Teind and Feu-duty; but neither does it bear generally of free Rent, much less of public Burdens, and therefore the subsequent Clause for the Tack-duty, albeit it bear free Rent, yet it can only be understood to be free of Teind and Feu-duty, and not to be free of public Burden, which is further cleared by the Act of Parliament 1646. Ordaining all Liferenters to hear proportional Burden for any Annualrent, or Tack-duty belonging to them in Liferent, unless they were expressly freed of Maintenance. It was answered for the Countess, that she oppones the Clause of her Contract, bearing free Rent, without sanitation, and Contracts of Marriage are to be extended in favours of Women, and as to the Act 1646. the same is Repealed, and not Revived again. The Lords found that by the Contract of Marriage, the Countess was no● free of Cease and Maintenance, which were the only Points at In●●●●cutor; But if any Debate arose concerning the ordinary Taxation, or the Outrikes, or allowance to Militia Horse, the Lords would hear the Parties thereanent, and accordingly the next day found the Clause did free my Lady of the ordinar Taxation, Militia, and so much of the Cease as the Tenants of the Lands paid to my Lord. Murray of Achtertire contra Sir john Drummond, Eodem die. THe Deceased Earl of Tulli●airn having Wodset the Lands of Logy-Almond, to William Murray of ●chtertire, by a Contract of Wodset in February 1656. by which the Earl Assigns. Achtertire to the Mails and Duties of the Lands, due for the Cropped 1656. at Whitsunday or Martimess, or any other Term, and obliges him to Deliver to him the Keys of the House, and to enter him in the Possession at Whitsunday 1656. The Earl having Sold the Lands to Sir john Drummond, whose entry was to be at Whitsunday 1668. and having used an order of Redemption in the Earls Name, because the Reversion did not extend to the Earls Assignies, and having obtained Declarator, Decerning Achtertire to denude himself of the Lands, who in obedience of the Decreet grants a Renunciation, Reserving to himself the Mails and Duties for the Cropped and year 1667. Achtertire insists for the Duties of the Cropped 1667. which are payable at Martimesses 1667. The way of payment of the Rent of those Lands, and many others being, that the Tennent enters at Whitsunday, and pays his Rent at Martimess thereafter for the whole year; and if he remove at the next Whitsunday, he pays no Rent at that Term, but leaves his Corns Sown by him upon the Ground, which he Shears after his removal. Whereupon it was alleged by Sir john Drummond, that this way of payment being aforehand Duty, whereby the Tennent pays at Martimesses before he Sows the Cropped, for the Cropped of the year of God subsequent to the Martimesses, that therefore Sir john entering at Whitsunday 1668. and having Right to the Duties due for the Cropped and year 1668. he has Right to the Duties due at Martimess 1667. because that Duty albeit not payable in the year 1668. yet is payable for the Cropped 1668. seeing the Tennent if he were removing at Whitsunday 1668. would for the payment made at Martimess 1667. carry free with him without any payment, the whole Corns of the Cropped 1668. so that if Sir john should enter to the void Possession of the Land at Whitsunday 1668. he should have no benefit of the Cropped 1668. but only of the Cropped 1669. It was answered for Achtertire, that he has the only Right to the Rent payable at Martimesses 1667. and Sir john can have no Right thereto, because his entry being but at Whitsunday 1668. he can have no Interest in the Cropped then Sown, and standing on the Ground, unto which no Buyer did ever pretend, but the Seller if he be in natural Possession, takes always with him his own growing Cropped, even after the Buyers enters into Possession, and so do all outgoing Tenants, and so did Achtertire at his entry, which being at Whitsunday 1656. he lifted the Duties due at Martimesses thereafter, but lifted not the Martimess Duty of the Cropped 1655. payable before his Wodset, and therefore now he must lift the Rent due at Martimess 1657. or otherwise he wants a years Annualrent; and if Sir john Drummond should lift a years Rend due at Martimess 1667. and an other years Rend due at Martimess 1668. he should have two full years Rend of the Land within half a year of his entry, which was at Whitsunday 1668. and which can never be understood, except it had been clearly so expressed by the Parties, neither is there here any further forehand Duty, then what ordinarily Tenants paying Silver Rent, and not Inlaid or Rentalled Victual entering at Whitsunday do, for they pay the one half of there Rend at Martimess thereafter, and the next half at the Whitsunday following that Martimesses, and for his years Rend they must have a years Cropped both of Grass and Corn, and all the difference here, is that the Rend due for the Possession from Whitsunday 1667. to Whitsunday 1668. is payable together at Martimess 1667. in the middle of the year, whereas if it had been according to the ordinar course of Silver Rent, being payable half at Martimess 1667. and half at Whitsunday 1668. Sir john Drummond who entered but at the Whitsunday 1668. could have no Right to the Rent even payable at Whitsunday 1668. so neither can he claim it, when it is payable jointly at Martimess 1667. The Lords found that Achtertire had Right to the Rent payable at Martimesses 1667. and that Sir john Drummond had Right to no part thereof. jerdan of Apilgirth contra johnstoun of Lockerby, Feb. 24. 1670. APilgirth having Apprized Lockerbies' Estate, and pursuing on the Apprizing. Lockerby alleged that the Apprizing was satisfied, at least he offered presently what was defective in this Account; Lockerby alleged upon a Wodset Right, whereof an order was used, whereupon the question arose, and was reported by the Auditor, whether after order used for Redemption of a proper Wodset, the Sums Consigned, being immediately taken up by the Redeemer, and the Wodsetter remaining four, or five years in Possession thereafter, and Declarator of Redemption being obtained upon production of the Sums consigned, with the Annualrent from the Consignation, whether the Wodsetter had Right to the Mails and Duties, and might refuse his Annualrent, or if he behoved to accept of his Annualrent, and count for the Mails and Duties. It was alleged for the Wodsetter, that the Consignation was but simulat, and the Money remained not in the Consignators hand, so that he did justly retain the Possession, and so was not comptable for the Duties. The Lords found the Wodsetter comptable for the Duties, seeing he had no objection against the legality or verity of the order, so that it was his fault that he keeped not the day of Consignation, and Received his Money conform to the premonition; and that the user of the order did no wrong to take up the Money out of the Consignators hand, seeing Consignations are upon peril of he Consigner, he making the same forthcoming at the time of Declarator, with Annualrent since the Consignation. George Graham contra The Laird of Stainbires▪ Feb. 26, 1670. GEorge Graham Merchant in Edinburgh, Pursues the Laird of Stinbires for a Merchant Compt, taken off partly by his Umquhile Father before his Decease, and partly by his Factors and Servants thereafter. It was alleged as to the Defuncts Part of the Account, the 'samine was not pursued within 3. years of the off-taking, and therefore it is only probable by Writ, or Oath of Party. The Pursuer answered, that he was ordinar Merchant to the Defunct for many years, and that this was a current Account to the Defunct and his Heir, the Defuncts Funerals having been taken off at his Death, and the other subsequent Furniture to the Heir always since, so that there is not three years betwixt that part of the Account that is for the Funerals, and the last of the current Account given off to the Defunct, and therefore it remains a current Account as to both. 2dly. There is not three● year betwixt that part of the Account furnished to the Defunct, and the Summons raised against his Heir, deducing the year and day in which the ●eir could not be Pursued which is intra annum deliberandi. The Defender answered, that the currency of an Account was never extended to a Defunct and his Heir, but only to one Person to exclude the prescription of probation by Witnesses, neither in this short prescription, is Minority, or any other incapacity to be deduced, and the Pursuer ought to have raised his Summons intra annum deliberandi, though he could not have obtained Decreet, The Lords Sustained the Compt, both against the Defunct and Heir, as an current Account to be proven by Witnesses for the whole. Doctor Hay contra Marjory jameson, june 8. 16670. DOctor Hay as Heir to his Father, who was distressed as Cautioner for Con of Artrachy, pursues a Reduction and Improbation of all Rights of the Lands of Artrachy, and others proceeding from Con, in favours of john Stuart Advocate, William Neilson, Mr. john Alexander, and Marjory jameson his Relic, or Andrew Alexander Brother to Mr. john, wherein there was produced an Apprizing against Con, at the instance of George Stuart●: Likewise a Liferent-seising of Helen Kinaird, Relic of Con, with a Liferent-tack to her of the Lands contained in the Seizing, and also of other Lands, and another Tack of two nineteen years of the same Lands. There is also▪ produced a Disposition of the Apprized Lands, by George Stuart to William Neilson, and because William Neilson failzied in payment of four thousand Marks of the price, George Apprized the Lands again from William Neilson, and upon all these Rights there is public Infeftments; there is also a second Apprizing, at the instance of Andrew Alexander, long after George Stuarts Apprizing from Neilson, but no Infeftment thereon; and there is produced a Disposition by George Stuart as returning to the Right by the second Apprizing, made to Mr. john Alexander Advocate, and by him to Marjory jameson his Spouse, and public Infeftments on these▪ and there is a Decreet of Cerification Extracted contra non producta. And now the Doctor insists on this Reason of Reduction, that George Stuarts first Apprizing against Con the common Debtor was satisfied, by Intromission within the Legal, and so is extinct, and all the subsequent Rights depending thereon fall therewith in consequence. It was alleged for the Defenders, that George Stuart having in his Person the Apprizing, and finding Helen Kinaird (Cons Relic) in Possession of a great part of the Lands by Liferent infeftment, and a Liferent and two ninteen years' Tacks, which would have excluded him; he purchased Right and Assignation thereto from the Relic, and continued her Possession thereby, and did ascrive his Possession to the Liferenters Right, and not to the Apprizing, so that his intromission being by another, and more valide Title, could not be ascrived to the Apprizing to extinguish it. The Pursuer answered, that the Defense ought to be Repelled, because he had obtained Certification against the Defenders of all Rights not produced, and albeit the Liferenters Seizing be produced yet the Warrant thereof (the Charter or Precept) was not produced, so that it is now declared as false and feinzied, and the Seizing being only the Assertion of a Nottar without a Warrant, is no Title to which the Intromission can be ascrived, and therefore it must be ascrived wholly to the Apprizing. The Defenders answered, First, That albeit the Charter be now improven for not production, yet it being a true Evident, and now produced, the effect of the Certification cannot be drawn back, to make George Stuart countable, who Possessed bona fide cum titul●, which though now improven, yet the effect of the improbation can only be a sententia, lite contestata aut ●●ta▪ before all which the Liferenter was Dead, and the intromission ended unless the Charter being produced, had been by Witnesses, or otherways proven to be false. 2dly, Albeit Certification be obtained against George Stuart and Marjory jameson; yet the Certification is not against Andrew Alexander, from whom Marjory hath purchased Right after the Certification, and produced the apprizing at Andrews instance against Neilson, and alleadges, that albeit the Certification could take away George Stuarts Right, in so far as concerns Marjory jameson, or her Authors, yet that being no annulling of their Right, by being Transmitted in favours of the Pursuer, but only as being void, through want of the necessary Evidents, it cannot impede Andrew Alexander, against whom no Certification is obtained, to Defend George Stuart his Authors Right, and to ascribe George his Possession to the Liferent, Infeftment, whereof he now produces the Charter. The Pursuer answered, that he was not obliged to take notice of Andrew Alexander● Right, because it was incomplete, no Infeftment following thereon: and because it was null, being deduced against Neilson, after Neilson was Denuded by the apprizing led against him by George Stuart, and Infeftment thereon, so that the Pursuer having prevailed against George Stuarts Right, which is the only valide Right, and did exclude Andrew Alexander by the Rule vinco vincentem, etc. and if this were otherwise Sustained, no Improbation could be effectual, unless all the invalid and imperfect Rights were particularly improven, which cannot be known, and was never done. 3dly, Certification being Extracted against George Stuart himself, all Subaltern Rights flowing from him, fall in consequence, and so Andrew Alexander's Right, which is but incomplete and latent. The Defender answered, that albeit Andrew Alexander was not called, or Certification taken against him, as a party necessary, yet before Conclusion of the Cause, he has a good interest to produce his apprizing, and to allege that the Certification against George Stuart his Author, who neglected to produce the Liferenters' Charter, could not prejudge him, as deriving Right from George Stuart, as a singular Successor; much less could the neglect or Collusion of Marjorie jameson prejudge any other but herself: and therefore craved, that if the Lords would Sustain the Certification of the Liferent Charter against Marjorie jameson, that it should be without prejudice to Andrew Alexander, as to his Right of the said Liferent, or to George Stuarts Right of the Liferent in so far as the same is Derived to Andrew Alexander. The Lords adhered to the Certification in so far as concerned Marjory jameson, reserving Andrew Alexander's Right and his Authors, in so far as concerned Andrew Alexander as accords. This Cause being again Called the 9 of june, the Defenders ascribed their Possession to the Liferent, and two nineteen years' Tacks, against which there was no Certification. The Pursuer answered, First, That the Liferenter having bruiked by a Liferent Infeftment, and having ascribed her Possession to it, it being improven, she could not ascribe her Possession to the Tacks, quia ex pluribus titulis ejusdem rei nemo fit Dominus. 2dly, George Stuart the Appryzer having both the apprizing and these Liferent Rights in his Person, and not having declared his mind, by what Title he possessed, his Possession must be attribute titulo nobilioti, to the Apprizing, and his intromission imputed thereto, & duriori ●orti, as the Lords use ordinarily to do in odium of Appryzing, if the Appryzer adhere to the expyring of the Legal: but if the Defender will grant the Lands Redeemable, the Pursuer is content, that the Intromission be ascribed to the Liferent Right primo loco. The Defender answered, that though George Stuart Declared not by what Title he Possessed, yet his intromission must be ascribed potior● juri, to that Right which was preferable, and so to the Liferent, which would undoubtedly exclude his apprizing: and therefore he acquired Right from the Liferenter, being then in Possession, and it is unquestionable, that any party who hath many Titles, though they first make use of one, if that be Reduced, they may make use of the rest, and so the Defender, in respect the Liferent Infeftment is improven, makes use of the Tacks. The Pursuer further alleged, that the Tacks comprehended Lands not contained in the Contract of Marriage; and as to there, it was a voluntar Deed granted by a Husband to his Wife, stante matrimonio, and Revocked by George Stuarts apprizing, which is a legal Disposition in the same way, as if the Husband had Disponed to George: Likeas the Doctor's Debt was anterior to these Tacks, so that George Stuart in so far cannot clothe himself with these defective Rights, against which his apprizing would have prevailed. As to the superplus The Defender answered, that albeit the superplus were donatio, and that the Husband might recall it indirectly by a subsequent Disposition, it was never found that an apprizing was such a Revocation. and albeit the Doctor might Reduce the Tacks, as to the superplus, being without an onerous Cause, after his Debt, yet that Reduction cannot take effect ante litem mot●m, to make the Liferenter, or George Stuart Comptable for the bygone Fruits, or which is equivalent to impute them in the apprizing. The Lords found that the Defenders Intromission might be imputed to the Liferent Tacks, and not to the apprizing, but as to the Superplus they were not clear, even to impute that in the apprizing, upon the Considerations alleged by the Defenders, but as to that, the hour prevented the Vote. Margaret Hunter contra The Creditors of John Peter. June ●1. 1670. THere being a Competition betwixt Margaret Hunter, the Relict of umquhile John Peter and his Creditors, Appryzers or Adjudgers of his Lands in Anno 1658. The said Margaret produced an Infeftment by her Husband, of a yearly Annualrent of 700. marks, bearing to be for Implement of her Contract of Marriage; which being also produced, by her Registra●●▪ bear only to four thousand marks of Tocher, and an obligement, that upon payment of the Tocher, the Husband should Employ the same, and four thousand marks more for her in Liferent; whereupon the Creditors alleged that her Infeftment behoved to be restricted to the Annualrent of eight thousand marks: And she having alleged that her Contract was Vitiat after the Marriage, and did bear seven thousand marks of Tocher, and an Annualrent thereof, and of other seven for Jointure, the seven was made four, but that not being then instructed, the said Margaret was only preferred as to the Annualrent of eight thousand marks, but prejudice to her to prove any further, to have been in her Contract, and that the same was Vitiat. She now pursues a Declarator against the Creditors, that her Contract was altered, and Vitiat after the Marriage, and that she ought to have a Poinding of the Ground, for two hundreth and ten marks yearly, the times bygone, wherein her Infeftment of seven hundreth marks, exceeded the Annualrent of eight thousand marks, and which she yet wanted, and for the whole seven hundreth marks in time coming, whereupon Witnesses were adduced, for proving of the Vitiation, which they did prove. And it was now alleged by the Creditors, that although the Contract was altered, yet she could have no more in their prejudice, but the annualrent of eight thousand marks, because the Contract was altered before it was Registrat; and her Infeftment bears expressly for Implement of her Contract Registrat, which must import, that it was an Implement of the Contract as it was altered after the Registration, and not as it was before the Registration, seeing it does not mention the particular Sum, either of eight, or fourteen thousand marks; and the seven hundreth marks, is but fifty marks more than the Annualrent of eight thousand marks, at the time of the Infeftment. 2dly, The Contract was altered by consent of the Father and the Husband, Contracters, and if need beiss, it is offered to be proven, that it was with the Relics own consent, so that it was no Vitiation, but a warrantable alteration, 3dly, Albeit it had been unwarrantably altered, yet two Creditors having lent their Money to John Peter, bona fide; and seeing an Infeftment granted by her Husband in Implement of the Contract of Marriage Registrat; and finding only in the Register eight thousand marks, and she having produced it, and made use thereof, and so Homologat the Contract altered, they could be prejudged, but she might pursue the Heirs of John Peter. 4thly, They having bruiked by their Infeftment and a Decreet, they cannot be liable for the Repetition of bygones, nor cannot suffer their Ground to be poinded therefore▪ But this Declarator can only take effect a sententia aut lite mota. 5thly, Though the Vitiation were fully Sustained, John Peter was only obliged to Infeft her in an Annualrent, e●●e●ring to the Tocher, upon payment thereof, Ita est, the Tocher was never paid, and so she can only claim the Annualrent of seven thousand marks, which the Husband should have added to the Tocher. And albeit ordinarily such Clauses prejudge not the Wife, where the Tocher is not paid through the Husband's neglect, who is obliged to do Diligence for his Wife. Yet here it is offered to be proven, that the Relics Father was insolvent the time of the Contract, and still thereafter; so that no Diligence could have recovered it. It was answered for the Relict to the first, that albeit her Infeftment relate to the Contract which was Registrat, yet not to the Contract as it was Registrat, and the Husband having so great Trust, the Wife was not obliged to look to the Register or Extract, which was in her Fathers and Husband's Custody; and by the Testimonies of the Witnesses it appears, that they have Colluded to abate both the Tocher and Joyntour, without her Consent. To the second, The Father and Husband not being sole Contracters, but the Wife, they could not after the Contract and Marriage, without her consent, alter her Right. To the third, The Creditors lending their Money, bona fide,, cannot prejudge the Relics Right; for bona fides operats only in payment made, and other necessary Deeds, but not in voluntary Acts, as lending of Money, wherein the Lender must follow the Faith and Condition of the Borrower, whose Rights, though never so clear in any Record, yet if thereafter they be improven or Reduced, the Creditors bona fides, avails nothing, and though the Relict made use of the Contract Vitiat, yet it was with Reclamation against the Vitiation; and therefore in the Decreet, the same is reserved, which is the Ground of this Declarator. To the fourth, The Relict craves not the Repetition of the Fruits uplifted by the Creditors, but only that the Ground may be poinded for what she wants of bygones. To the last, By no Practice was ever a Wife prejudged, by not payment of the Tocher; and albeit the Father's being Insolvent, might have been a Ground to the Husband to refuse to Infeft his Wife, in any more than the Annualrent of 7000. marks, till the Tocher were paid: Yet where he has actually Infeft her in more, and even before Contracting of the Creditors Debt, her Infeftment must stand valid, seeing it was less than what was her Right. The Lords found the Vitiation of the Contract to have been after the Marriage, and Sustained the Declarator, and ordained the Ground to be poinded for what she wanted of her Infeftment of 700. marks for bygones, and for the whole in time coming, unless it were proven by the Wife's Oath, that she consented to the alteration of her Contract. Margaret Livingstoun contra Burn●. june 15. 1670. MArgaret Livingstoun as Donatrix to the Bastardy of a Mason in Falkirk, pursues a Declarator of the Bastardy, and Restitution of the Goods against Burns, who alleged no Process, because the Libel, condescending upon the Bastard's Father and Mother's Names, and that the Defunct was Bastard, the same must be proven by Witnesses, and so the Summons must be continued, it being a known Maxim, that all Summons, not instantly verified, either by Presumption, or Probation by Writ; but which must be proven by Witnesses, or Oath must be continued. The Pursuer answered, that albeit ex alundante, she had condescended on the Bastard's Father and Mother, yet whoever were Father and Mother, (that they were not Married together) is a Negative, and proves itself, and needs no further Probation, but is presumed, and puts the burden of Probation upon the Defender, that they were really Married, at least so holden and repute. 2dly, Albeit Probation were necessary, that the Defunct was either Bastard, or so commonly repute, the Probation may proceed upon the first Summons, in favorem Fisci, and is so accustomed in Declarators of Bastardy, and in Declarators of Nonentry, wherein though the Death of the Vassal be Libelled, yet the Summons is not continued. The Lords found that the Summons behoved to be proven, that the Defunct was at least holden and repute Bastard, and that Bastardy was not presumed, but they Sustained the Declarator without continuation, and that the Declarator might proceed upon the first Summons. Scot of Thirlestoun contra The Laird Drumlanrig. Eodem die. SCot of Thirlestoun having Adjudged cerrain Lands, Charges Drumlanrig Superior, to receive him, who Suspends, and alleadges he ought to have a years Rent, conform to the late Act of Parliament 1669. It was answered that this and all other Acts have Effect ad futura: But not only this Adjudication was led before the Act, but Drumlanrig was Charged before the Act, and having no just reason to Disobey the Charge when he was Charged, he cannot claim the benefit of a subsequent Law. It was answered, The Tenor of the Act was Declaratory, and bear a general Clause, that Adjudications should be in all things as Apprizing. The Lords found, that seeing the Act did not expressly relate to bygones. It could not extend to any Adjudication, whereupon a Charge was given before the Act. Lord justice Clerk and his Son Sir Alexander. contra Earl of Hume. Eodem die. THere being a Contract betwixt the Earl of Hume and john Stuart of Coldinghame, and Francis Stuart, sometime Earl of Bothwel, whereby the Lordship of Coldinghame was agreed to be possessed by the Earl of Hume, until he were paid of nineteen thousand Pounds; and also that the Earl should uplift two hundreth pound Sterling of Annualrent ●orth ●hereof to him, and the Heirs-mail of his Body; and it was Declared that the Possession for the nineteen thousand pound, should only be for the Annualrent thereof, fructibus non computandis in sortent, Sir Alexander Hume as having Right to this Contract by progress, did pursue a Declarator against the late Earl of Hume, that in regard his Predecessor, the Earl of Hume Contracter, Died without Heirs-male of his Body, and he continued to Possess, who had no right to the Annuity of two hundreth pound Sterling, that his Possession did satisfy the nineteen thousand pound, and purged the Right, the said umquhil Earl dying, there is now Summons of Transference at Sir Alexander's instance, against this Earl of Hume, as Representing his Father, and also therein a Declarator against this Earl as appearand Heir, that the Contract was satisfied and extinct by Intromission, and the Lands Liberate. Compearance is made for an Appryzer, who produced his Infeftment, and who had apprized the Lordship of Coldinghame, and all Right thereof, competent to the late Earl of Hume, who alleged no Process for the conclusion of Declarator against this Earl of Hume, because all Parties having Interest, were not called, viz himself who had Denuded the Earl of Hume, and who is not cited. The Pursuer answered, that this being a Personal Contract with the Earl of Hume, whereupon no Infeftment had followed, seeing the original Right was in no Register, he was not obliged to search the Register for the Infeftments of Appryzers, but it was sufficient for him to call the appearand Heir of the Contracter: But seeing this Alleadgeance could not be proponed for the Earl of Hume, being jus ter●tij, neither by the Appryzer, unless he had produced his Right to verify the same instantly, seeing he now compears for his Interest, he may be admitted and heard to Defend thereupon in causa, but not to delay, or exclude the Process till a new Citation, but according to the Lords ordinar custom, he may see the Process in the Clerks hands, and propone his Defense as the Lords have done in the same Process against one Park another Appryzer. The Lords Repelled the Defense, but allowed this Appryzer, as they had done the other to see in the Clerks hands, and to be heard upon his Right; and Ordained all the Advocats compearing for the Defenders, to produce any other Interest in their hands, and not be delay the Process, by dropping them in severally. Langlands contra Spence of Blair. june 17. 1670. LAnglands pursues Spence of Blair for Reduction of his Rights, of certain Lands granted by Hamiltoun of Blair his Author, because Hamiltoun was Inhibit at the Pursuers Instance, before he granted these Rights to the Defender. It was alleged for the Defender, Absolvitor, because the Inhibition was null, the question being of Lands lying within the Regality of Culross, and the Inhibition was not Execute at Culross the head Burgh of the Regality, but at Pearth the head Burgh of the Shire; and for instructing that Culross was a Regality, the Lord Colvils' Infeftment was produced, which though it bear not expressly a Regality, yet is bears a Bailirie, with power to Repledge, which importeth a Regality, and accordingly the Bailzie and not the Sheriff, makes count in Exchequer, and Briefs are direct to the Bailzie; and there is produced an Inhibition Anno 1657. and another in Anno 1666. Execute at Culross. The Pursuer answered that Culross was never denominat, holden, or repute a Regality, but a Bailliry, and though the power of Repledging, be a special privilege of Regality, yet there are many other privileges thereof, not consequent upon the Repledging. 2dly, The Pursuer having followed the ordinar course, used the time of his Inhibition, viz. by Executing at the Mercat Cross of the head Burgh of the Shire, he hath produced three Inhibitions about that same time Execute as his is; so that what was then holden repute to be the head Burgh, is sufficient for him to make his Legal Diligence subsist▪ And for the Inhibition Execute at Culross in Anno 1657. It cannot be respected, because it is known that at that time Regalities were suppressed by the English; and for the Inhibition in Anno 1666. It might have been done of purpose, pendente processu, and cannot regulate the custom the time of the Pursuers Inhibition which was in Anno 1633. The Lords Sustained the Pursuers Inhibition and Reduced, for they neither found it clear that Culross was repute a Regality, not that the custom was to Execute Inhibitions there at that time, but at Pearth the head Burgh of the Shire. Mr. james Cheap contra Magistrates of Falkland. june 18. 1670. MR. james Cheap pursues the Bailzies of Falkland to pay their Debt due to him by Provest Mains, who being taken by Caption, and delivered to the Bailzies by the Messengers, they keeped him in a private House for the space of ten days, for which they are also well liable for the Debt, as if they had brought him out of the Tolbooth, and keeped him in the Town during so much time; and also they were liable in so far as having put him thereafter in the Tolbooth, they suffered him to escape forth thereof. It was alleged for the Defenders, they were not obliged to keep Prisoners, not being a Burgh Royal, but only a Burgh within a Ste●●rtry, which no Law obliges to receive Prisoners, and the Caption is only Direct to Sheriffs, Bailies of Regality, or Royalty, Stevarts, and Magistrates of burgh's Royal, but not to burgh's within Stevartries, or within Regalities, albeit they were the head burgh's of the Stevartry or Regality, not being burgh's Royal. 2dly, The Defenders cannot be liable for keeping the Prisoner some days out of the Tolbooth, seeing he did not then escape: And albeit it be a fault for which they may be censured, to keep a Prisoner in a private House, yet the doing thereof, if the Rebel escape not, makes them not liable to the Debt, but especially where the Rebel was never in the Tolbooth, and when there was Treaty betwixt him and the Pursuer and his Servant, for an agreement and satisfaction and security for the Sum. 3dly, They offered to prove, that the Tolbooth was sufficient, and that the Prisoner escaped vi majori, by breaking the Roof of the Prison without their fault. The pursuer answered to the first, that he opponed the Act of Parliament, ordaining sufficient Prison-houses in all Burg●s, Parl. 1597. cap. 273. 2dly, Whateven this Burgh might have pretended for refusing to accept the Prisoner, yet having accepted him, and suffered him to escape, they are liable as having acknowledged themselves to be liable; and if they had refused the Prisoner, the Pursuer would have Imprisoned him in another uncontroverted Burgh. To the second Defense it was answered, that Magistrates are liable for the Debt of Rebels offered to them, if they do not put them in Prison, or if they suffer them to come out of Prison without Warrant, and the Pursuer needs not Dispute that the Prisoner went out by the Magistrate's fault, and their Contumacy is sufficient in not obeying the Letters, by putting him in their public Prison, but keeping him so long in a private House. To the third Defense the Pursuer offered him to prove, that the Prison was insufficient, and that thereby the Rebel did escape. The Lords found, that seeing the Defenders did receive the Rebel upon the Caption, they could not now Dispute, whether they were liable to receive or not, as being the head Burgh of the Stevartrie, and therefore the Lords did not Determine that Point. Likewise, the Lords found that the keeping of the Rebel ten days before he was Imprisoned, there being Treaty in the time, and they not urged to put him in the Prison, did not oblige them. As to the last Point concerning the sufficiency, or insufficiency of the Prison, the alleadgeances being contrary, the Lords would prefer neither Party in the Probation, but before answer ordained either Party to adduce Witnesses, concerning the condition of the Prison, and manner of the Rebels escape. Collen Hay contra Magistrates of Elgin▪ Eodem die. COllin Hay having pursued the Magistrates of Elgin for a Debt of a Rebel, arrested by him in their Tolbooth, upon Caption, and suffered to escape, and the Town having failed in all their Defences, did at last offer to prove, that the Execution of the Messenger bearing, that he arrested the Prisoner, and made intimation of the arrestment to the Magistrates, was false, whereupon there being three Witnesses insert, and one Dead, the Messenger, and one of the living Witnesses Deponed and acknowledged the arrestment, but differed in the manner of it, the Execution and the Messenger's Oath bear, that he came to the Rebel being in Prison, and commanded him to remain therein, by virtue of the Caption, till the Debt were paid; the affirming Witnesses Deponed, that the Messenger came with the Caption to the Tolbooth Door, but that he went not in, and does not remember that he knocked at the Door, out that he Chalked the Door, and commanded the Prisoner to remain, but the Witnesses denied, that they remembered any thing of the Intimation to the Magistrates, and the other of the ●ing Witnesses denied that he was Witness to the arrestment or intimation, whence the question arose, whether the intimation was necessary, or though it were improven, if the arrestment did stand, and were sufficient to oblige the Magistrates, who were obliged to have a Jailor, and to keep a Book of arrestments: and next, whether this arrestment was sufficient, not being made to, or in presence of the Jailor. It was alleged for the Defenders▪ that few Towns in Scotland keeped a Record of Incarcerations, and here the Magistrates and Clerk had sworn, that there was none in that Town at that time, neither did the Execution bear that the Jailor was Commanded to 〈◊〉 the Prisoner; and albeit one of the Witnesses Depones that he was Jailor at that time and the Messenger and other Witnesses depones that he was present at the arrestment, yet the Execution bears not any command to him to detain the Prisoner, but only to the Prisoner to remain in Prison, and the Jailor is a Witness in the Execution, and not a Party, and denys the same even that he was so much as Witness, by his Oath▪ neither does the Messenger and the affirming Witnesses agree in the Substantials of the arrestment; and for the Messenger he is a Party, whose Execution is quarrelled, and is infamous, and Excommunicate for great Crimes. It was answered for the Pursuer, that the arrestment stood valid, and was not improven but approven as to the Substantials requisite thereto, for the Messenger and one of the two living Witnesses do agree, that the arrestment was made by the Caption at the Tolbooth Door, in presence of the Jailor, and though it was not so formally done, by Commanding the Jailor, yet it was sufficient that the Prisoner was Commanded in the Jaylours' presence, which is sufficient, albeit not so formal, in making the Jailor Witness, neither can respect be had to the Jaylours' Oath, denying that he was Witness, because confessing he was Jailor, he is a Party liable for suffering the Rebel to escape, neither doth it import, that after so long a time, the affirming Witnesses do not remember all the Circumstances, seeing he affirms the arrestment to be made, and that by his own advice, he being also a Messenger; nor is the Pursuer obliged to Dispute the Fame of the Messenger, who lived at so great a distance from him, and was continued in that public Trust undeposed; so that there being three Witnesses insert in the Execution of the Arrestment, one of them who is an inhabile Witness, as a Party denying, another affirming, the third being Dead, doth unquestionably stand as a proving Witness: for where are many Witnesses in a Writ or Execution, if there be one living that affirms, all that are Dead affirm with him, though other living Witnesses deny: Much more here, where of three, two being alive, the one affirms, the other denys, but i● a Party concerned, and the Messenger also affirms. The Lords found that there being here no formal arrestment made to the Jailor, astructed by the Testimonies of the Witnesses, and that the intimation thereof was clearly improven, they assoiled the Magistrates, but if the arrestment had been good, they would not have ●ound the Intimation necessary, whether the Town keeped a Book or not, but that the arrestment, made to the Keeper of the Tolbooth, whom they entrusted, were sufficient. Dowglas of Lumsdean contra Dowglas. june 22. 1670. UMquhil Dowglas of Lumsdean Dispones his Estate to Archibald Dowglas his Son, reserving power to himself at any time during his Life, to burden the Estate with four thousand marks, and did thereafter grant a Bond of four thousand marks, in favours of Elizabeth Lyel his Wife, in Liferent, and of john Dowglas their Son in Fee, who thereupon pursues the said Archibald for payment. The Defender alleged Absolvitor, because the Reservation in the Disposition, being in favours of the Defunct, can only be understood of a Legal power, to burden according to Law. Ita est, This Bond of Provision was granted by the Defunct, when he was not in legiti●ua potestate, but on Deathbed, especially seeing the Reservation does not bear a power to Dispone at any time time in his Life, etiam in articulo mortis, which is the Clause ordinarily adjected, when the meaning of Parties is, that the power should extend to Deeds on Deathbed; and thereupon the Pursuer hath intented Reduction, which he repeats by way of Defense. The Pursuer answered, that the Defense is no ways Relevant, because the privilege excluding Deeds on Deathbed is introduced by Law in favours of Heirs only, that the Defunct may not prejudge his Heir on Deathbed, but if a Party Dispone, he may qualify his Disposition as he pleases, and he who hath so accepted the Disposition cannot quarrel the same; and albeit these words etiam in articulo mortis are sometimes adjected propter majorem ca●telam, yet the words (at any time during his Life) are sufficient to import either in his Health or in his Sickness. The Defender answered, that whatsoever might be alleged, if the Disposition had been to a Stranger, of that interpretation of the words, yet this Disposition being granted to the Disponers own eldest Son and appearand Heir, it must be understood only of such Deeds as might be done against an Heir, and here the Creditors do also concur, who in place of the Heir might pursue the Reduction, and against whom the Personal objection of acceptance cannot be alleged. The Pursuer answered, that the Defender was not appearand Heir, because it is notourly known that his Father begot him in Adultery, upon the Wife of Sir Alexander Hume, for which Adultery she was Divorced from her Husband, and albeit he did cohabit with her thereafter as his Wife, that cannot infer (as in other cases) that she was his Wife, because Marriage cannot consist betwixt the Adulterer and the Adulteress, and all their Issue are disabled to Succeed, so that the Pursuer of the Reduction is the eldest Son, and appearand Heir, in whose favour the Provision is made. 2dly, Albeit the Defender were, or could be appearand Heir, yet here having accepted a Disposition of the whole Estate, Burdened with this Provision, his acceptance excludes him, who is thereby bound, and cannot pretend to any privilege of an Heir; for albeit re integra he might Renunce the Disposition; and return to bruik as Heir, now he cannot, having bruiked by the Disposition; and for the Creditors concourse they are not Pursuers, and they may insist in any Action competent to them by Law, but cannot oppose this Personal obligement, whereby the Defender by the acceptance of the Disposition in these terms, is become obliged to pay the Pursuer the Sum in the Reservation. The Lords Repelled the Defense, and found that the Reservation in the terms as it stood, did extend to burdening of the Estate at any time the Disponer pleased, and was in capacity of Sense and Reason▪ though on Deathbed, and found no necessity to dive in the questions concerning the Defenders Procreation, and capacity of Succession, seeing he had accepted, and bruiked by the Disposition so qualified, and did not admit the Creditors to oppose this Conclusion, but reserved their Rights as Accords. Elizabeth Finlaw contra The Earl of Northesk, june 25. 1670. ELizabeth Finlaw and her Children as Executors to Robert Beat●●e, did Assign to the Umquhile Earl of ●athie a Bond granted by the Laird of Du● to the said Robert 〈◊〉 of 2200. Pound, and the Laird of Morphie standing infeft under Trust in Duns Estate, grants a Bond of Corroboration to Eathie, obliging him to pay all Sums due by Dun to Eathie himself, or to which he was Assigned by Duns Creditors; thereafter Morphie grants a second Bond of Corroboration to Eathie, but derogation of the 〈◊〉 Bond of Corroboration, obliging him to pay what Sums were due by Dun to Eathie for himself, or as assignee, and that out of 〈◊〉 superplus of Duns Estate, more than paid Morphie himself. The Earl of Eathie transfers the Bond of 2200. Pounds, and both these Bonds of Corroboration in favours of the said Elizabeth and her Children, and the Translation bears for Sums of Money paid by them to Eathie, and bears that the second Bond of Corroboration was Delivered, but bears not that the first was Delivered, neither bears it the obligement to Deliver the same; the Translation also bears Warrandice from Eathies own Deed. The said Elizabeth and her Children having pursued Morphie upon the said second Bond of Corroboration, he was Assoilzied, because he had no superplus in his hand. She now pursues the Earl of Northesk as Heir to his Father, to Deliver the first Bond of Corroboration transferred by his Father, whereby Morphie was bound to pay the Debt simply, without preference of his own Debt, or otherways that Northesk should pay the Damnage and Interest, which is the Debt itself. The Defender alleged Absolvitor, because by the Transaction his Father was not obliged to Deliver the first Bond of Corroboration: Likeas the Translation bears the second Bond of Corroboration Delivered, so that the Pursuer has aequiesced therein; and albeit the Style of the Translation bears for Sums of Money, yet it is clear thereby that it is but a retrocession of the Pursuers to their own Right, which they themselves had Assigned, which doth presume that Eathie was but entrusted, and seeing he has reponed them in better condition than they were by the second Bond of Corroboration, he cannot be obliged to Deliver the first Bond which Morphie freely granted as a favour to Eathie, unless it did appear such a Bond was, and that Eathie had fraudfully put it away, whereanent he is content to Depone, so that the transferring the first Bond must only import, if any such Bond was the time of the Translation, which would not oblige Eathie to Deliver it, unless he had it, much less to pay the Sum pro damno & interest. 2dly, Eathie having accepted the second Bond of Corroboration, with a limitation of preferring himself, it qualifies the first Bond of Corroboration, so that though the Pursuer had it, it could operate nothing more nor the second, and so he has no Damnage. The Pursuer answered, that Eathie having transferred the first Bond of Corroboration granted to himself, hoc ipso, he is obliged to Deliver the same, though the Translation expressly bear not an obligement to Deliver quod inest, neither can Eathie pretend that there was not such a Bond of Corroboration, seeing the Translation acknowledges that it was granted to himself, neither doth it appear that the Translation was in Trust, seeing it bears expressly that it is granted for Sums of Money; and although it had been in Trust, Eathie having acknowledged that Morphie granted a Bond of Corroboration to pay the Sum simply; it was contrare to his Trust either to give back that Bond, or to qualify it. 2dly, The second Bond of Corroboration cannot restrict the first, because it bears expressly in Corroboration thereof, and but derogation thereto. The Lords Sustained the Summons, and Repelled the Desenses, and found that the Translation in terms as aforesaid did import an obligement to Deliver the first Bond of Corroboration, or otherwise to pay the Debt, as Damnage and Interest, seeing Morphie was Assoilzied from the second Bond of Corroboration. Eleiss of Southside contra Carsse, june 28. 1670. MAster Richard Carsse of Fordel having granted a Bond of 4000 Marks to his Sister in Liferent, and after her Decease to her Daughter, she Assigns the same to james Eleis her Brother, who now pursues Charles Carsse as Heir to Doctor Carsse, who behaved himself as Heir to Mr. Richard Carsse the Debtor, in so far as he Intrometted with the Charter Chest, and gave a Receipt thereof to Arnistoun, bearing, that he as Heir to Mr. Richard Carsse had Received his Charter Chest, and all the Writs and Evidences belonging to the House of Fordel, which Charter Chest he keeped two years, and Died, it being in his Possession; likeas he raised Breeus to Serve himself Heir, and Subscribed a Revocation of all Deeds done by Mr. Richard in his Minority, which is Registrat: The Defender alleged the condescendencies are no ways Relevant, for as to the Charter Chest, as he might have pursued Arnistoun to produce it for inspection ad deliberandum, so he might Receive it from Arnistoun voluntarly for that same effect, which cannot import behaviour, unless he had made use of some of the Writs belonging to him as Heir, and this being an odious universal passive Title, any probable excuse ought to liberat, especially this Doctor, who was a Doctor of Divinity, Reciding in England, and ignorant of the Law of Scotland, and who never enjoyed the least benefit of Mr. Richard's Estate, and the Defender was content to restore the Charter Chest re integra, and to instruct by the Oaths of the Friends Consenters in his Discharge, that there was nothing wanting, but it was in the same case he Received it; as for the taking out of Breeus, albeit it signified the Doctor's purpose to have been Heir, yet behaviour must include an Act of immixtion, or meddling with the heritage, and animus adeundi, as having no other Title or intent but as Heir; and as for the Revocation it is a nats' Act, operative of nothing, but for Reduction which was not Intented, and is no meddling with the heritage. The Pursuer answered, that there could be no more palpable and unquestionable immixtion, then by the Receipt of the Defuncts whole Writs and Evidences, and that without so much as making an Inventar thereof, to have been Subscribed by the Haver of the Charter Chest and him, neither has he qualified his Receipt so as that he might Deliberate, but bears him as appearand Heir, to have Received the same simply; likeas he detained the same two years; and as to his Ignorance, Ignorantia juris n●minem excusat, and the Pursuer is in this also favourable, that this Bond is a Provision granted to Mr. Richard's Sister, and Heir of Line, and the Doctor, and this Defender were but Heirs of Tailzy of a further Degree. The Lords found the condescendence Relevant conform to the Receipt of the Tenor foresaid, and the retention of the Charter Chest without Inventar so long; and whereas it was moved amongst the Lords, that they had oftimes refused vicious Intromission against any Representing the Intrometter, unless Sentence or Pursuit had been against the Intrometters in their own Life, whether that should be extended to behaviour as Heir, where there was no Pursuit against the Behaver in his own Life, but the Behaviour being so considerable and universal, with all the Evidents without Inventar, it did not take with the Lords, neither did the Party plead it, but the Lords did not find that the taking out of Breeus, or the Revocation Imported Behaviour. Greigs contra james Weems, june 30. 1670. BY Contract of Marriage betwixt james Weems and umquhile judith Nairn: It was agreed that the Means and the Estate of either Party, contained in an Inventar of the date of the Contract, should return to either Party, failzying Bairns of the Marriage, and should not be under communion. Thereafter the Wife provides a Daughter of a former Marriage, to a part of her Means in the Inventar, with her Husband's consent. By which Contract it is provided, that in case the Marriage dissolve within year and day, or in case at any time thereafter, there being no Children, the Tocher should return to the said judith Nairn: And the said judith leaves in Legacy 1200. Dollars due by the Estates of Bremen, which was a part of her Inventar, to her Husband and her three Children of the first Marriage, there being no Children of the second Marriage; whereupon john, Charles and judith Greigs pursues the Husband for the Legacy, as having uplifted this Sum from the Estates of Bremen. The Defender alleged, First, That the Clause in the Contract of Marriage, taking away the communion of Goods, and making even the movable Estate of either Party to return, is against the Law of Scotland, inconsistent and ineffectual; for any Reservation or Provision in favours of the Wife, doth ipso facto return to the Husband jure mariti, which jus mariti neither is nor can be Discharged▪ 2dly, Albeit the first Contract of Marriage were consistent, yet the Sum in question being provided to one of the Daughters of the first Marriage by her Contract, upon condition to return to the Wife if the Marriage dissolved, the Marriage dissolving▪ it comes back to the Wife tanquam novum jus ex pacto acquisitum, and so it falls under the Husbands jus mariti, as well as any Sum acquired would. 3dly, The Husband uplifted this Sum by Commission from his Wife, and so it must be presumed to have been spent in oneribus matrimonij, at least the Husband must have Retention of his Expenses in recovery thereof. The Pursuers answered, that albeit Provisions in Contracts of Marriage, stating Rights in the Wife's Person, to be enjoyed by her during the Marriage, have not been Sustained in some cases, yet this being a Provision of a return after the dissolution of the Marriage, it is most consistent, especially in this case, where the Estate Contracted was abroad, and the Contract itself made abroad, where by the civil Law current there, the Means of either Party doth return hinc inde, and the profit thereof is only common● stante matrimonio, neither is the case altered by the Daughter's Contract, for both by the Law and that Paction, the Tocher returning to the Mother who gave it, in the same case it was, it is hers by her first Right, the second Right by the Marriage becoming void, both by Law and Provision; neither doth it import that the Husband lifted the Sum, for by the Contract he is obliged to repay it, and could only employ the Profit of it, in oneribus matrimonij. The Lords Repelled all these Defences, but allowed Expenses to the Husband laid out by him in Recovery of the Sum. Lindsay and Swintoun her Spouse contra Inglish Supplicants, july. 5. 1670. 〈…〉 Pursues his Debtor, and craved him to be holden as Confessed, who not Compearing, the Clerk was not clear to give out an Decreet, because the Messenger's Execution did not bear, that the Defender was Personally Apprehended, but that the Messeger came to his House and knew he was within, and was forcibly keeped out by his Wife, and thereupon Protested that the Defender might be holden as Personally Apprehended▪ upon the Clerks stop, the Pursuer gives in a Supplication, desiring that he might either have out his Decreet, holding the Defender as Confessed upon this Execution, or that he might have a Warrant to Cite the Defender at the Mercat Cross of the Shire or Burgh where he dwells, as being difficilis conventionis, some were of opinion that he should be holden as Confessed, the Messenger proving that he was within, or if the Execution had born that he and the Witnesses also had given a particular evidence of their Knowledge of his being within; others thought that he should be holden as Confessed, unless the Defender could instruct he was alibi in regard of the Contumacy, but the most resolved that holding as Confessed, being a solemn and important Certification, peculiar to Scotland, that this Assertion of the Messengers, and his Execution should not be sufficient, nor should put the Defender to allege alibi, but that he should have a Warrant to Cite at the Mercat Cross, with Certification to be holden as Confessed. Archbishop and Presbitry of St. Andrews contra George Pittillo, july 6. 1670. GEorge Pittillo being called before the Prisbitry of St. Andrews, for Scandalous Conversation with Agnes Mitchel, two Ministers of the Presbitry were appointed to speak with him, to whom he proponed he was Married to the said Agnes Mitchel, and produced a Testificat of some Persons, bearing that they were Witnesses to the Marriage, but neither Designing themselves nor the Minister, which being reported to the Presbitry they rejected the Testimonial, unless the Minister and Witnesses were Designed, and if they were Designed, ordained the Party to make satisfaction for private Marrying without Warrant, and the said George not Compearing before the Presbitry so to do, they for his Contumacy appoints the Process to be seen by the Archbishop, who ordained the Party to be Excommunicate, and accordingly he was Excommunicate, and now the Archbishop and Presbitry caused present a common Bill for Horning against the Excommunicate Person, for Charging him to answer, submit and obey the Censure of the Kirk, this being brought by the Ordinar to the Lords, to know whether they would pass the Horning in course, or if they would consider whether the Sentence of Excommunication was orderly proceeded. The Lords ordained two of their number to consider the Process of Excommunication, and to hear any that did compear for the Party Excommunicate, to Debate whether Horning should be direct thereon. Before whom Compearance was made for the said George Pittillo, who alleged that Horning ought not to be direct, because the Sentence was disorderly and unjust, and because there was an Appeal to the Council yet undiscust, and founded upon the late Act of Supremacy, alleging that the King and his Council were Supreme in all Causes Ecclesiastic, so that Appeals might be lawfully made (from any Churchman, or Church Judicature) to the King and his Council: And further alleged, that he being unclear to acknowledge the Bishop or his Presbitry; and the King having now granted an Indulgence to many that did not acknowledge Episcopal Authority, it could not be Contumacy in him not to Appear; but he was content that it should be now cognosced whether he was in the Fault, and if he were found Guilty, he should Submit and make satisfaction; which being Reported to the Lords and there being several other nullities in the Process of Excommunication, which behoved to be cleared by the Warrants of the Process, and having heard these of their number that are upon the Council declare that upon the Appeal, the Council Remitted the Matter to the Archbishop. The Lords ordained Letters of Horning, unless Pittillo would presently offer satisfaction, in which case they would give him a time, and superseded the out-giving of the Letters. Lady Lucy Hamiltoun contra Boid of Pitcon and others, july 8. 1670. THe Earl of Abercorn having Sold the Lands of Mountcastle to George Hay; he gave the Earl a Bond of 4000 Marks, bearing borrowed Money, but being a part of the Price, and bearing this provision, that it sholud not be payable till the Earl obtained George Infeft by his Superior. The Earl Assigns the Bond to Lady Lucy his Sister, who having raised Inhibition upon the Bond against George Hay, and having thereafter Charged him, he Suspended, alleging that the Condition was not fulfilled he not being Infeft, and the Lady offering a part of the Sum to purge that Condition, pro damno & interest, and to procure his Infeftment, George accepted of the offer, and thereupon the Letters were found orderly proceeded for 3000. Marks of the Sum, and Suspended for the rest in place of the Condition, upon this Decreet the Lady Apprizes the Lands of Mountcastle, and now Insists in a Reduction of a Disposition of the same Lands, granted to Dunlap and Pitcon for themselves, and to the use and behoove of the Disponers other Creditors underwritten, viz. Where there was a blank of several Lines, which is now filled up by another Hand; and though this Disposition was anterior to the Inhibition, and did prefer Dunlap and Titcon for any Sums due to themselves, or for which they were Cautioners the time of the Disposition; Yet the Lords found by a former Interlocutor, that as to the other Creditors filled up in the blank, it should be repute as posterior to the Inhibition, and filled up after the same, unless the Creditors prove by the Witnesses insert, or other Witnesses above exception, that they were filled up before the Executing of the Inhibition. The Cause being called this day, the Creditors repeated their former alleadgeance, and offered to prove that their Debts were anterior to the Inhibition, and also that at the Subscribing thereof, it was communed and agreed that Dunlap and Pitcon should undertake the remainder Creditors Debts, at least they promised to give Dispositions of parts of the Estate effeirand to their Debts, and accordingly they had done the same after the Inhibition, but being upon a promise before the Inhibition they were valide, having causam anteriorem, and they offered to prove the Communing and Promise by the writer and Witnesses insert. 2dly, They offered to purge and satisfy the Pursuers Interest. 3dly, They alleged that their Disposition from the common Author of the Property of the Lands in question did comprehend all Right the Disponer had, and consequently the Condition and Provision in the Bond, that before payment George Hay should be Infeft, for the Disposition would no doubt carry any obligement for Infefting the common Author. The Pursuer opponed the former Interlocutor, and alleged that she was not obliged to Assign her Right, seeing she had now Apprized, and that her Apprizing was now expired, and yet of consent she was content to Renunce her Right, but would not Assign it to exclude other Creditors, or to distress the Cautioners; and as for the Condition of the Bond, the Defenders Disposition gave them no Right thereto, because there was no obligement in the Bond to obtain the common Author Infeft, but only a suspensive Condition, that payment should not be made till he were procured to be Infeft, for hat the provision to obtain the Infeftment, being only an Condition, and not an Disposition, after the Disposition to the Defenders, the Pursuer might have paid the Bond, or transacted thereanent with George Hay, and was not obliged to know the Defenders. The Lords adhered to their former Interlocutor, and found the offer not sufficient, and that the Pursuer was not obliged to Assign her Right, though she had offered of her own accord to Renunce it, and found the Persons Entrusted their undertaking the Creditors Debts before the Inhibition Relevant, only to be proven by Writ, or by the Lady's Oath of Knowledge, and would not make up such a material Clause by the Oaths of the Witnesses insert, nor of the Persons Entrusted, and if they had made any such promise it was their own fault, that they caused not put it in Writ, knowing that their Oaths, albeit they might prove against them, yet that they would not prove for them, for the Lords thought that if such blanks and clandestine Promises were allowed, they might disappoint the Diligences of all Creditors. Thomas Kennedy contra Archibald Kennedy of Culzean, Eodem die. THe Laird of Culzean having three Sons, john Archibald and Alexander, for a Provision to Archibald the second, Dispones his Lands of Corrowa and others, with this provision, that if john should die, and Archibald Succeed to be Heir, Archibald should denude himself of the Lands in favours of Alexander, and if Archibald wanted Heirs of his Body, Alexander should be his Heir, notwithstanding of any Law or Custom to the contrare; thereafter a few Months before the Father's Death, this fourth Son called Thomas was Born, john the eldest, and Alexander the third are both dead Infants, Archibald falls to be Heir, and so the Condition exists, in which he was obliged to Dispone to Alexander. Thomas enters Heir of Line to Alexander, and pursues Archibald to Dispone the Lands to him. It was answered for Archibald, that Thomas as Heir of Line to Alexander can have no Right to this Provision. First, Because the Provision is only in favours of Alexander, without mention of his Heirs. 2dly, Though it could be extended to Alexander's Heirs, yet it being no heritage to which Alexander could Succeed; it is Conquest, and would not descend to Thomas, Alexander's Heir of Line, but would ascend to Archibald as Heir of Conquest to Alexander. It was answered for the Pursuer, that in this case the●meaning and intention of the Father must be considered by his Provision inter liberos, which is clear to have been that Archibald should not both have his Estate, and these Lands of Corrowa, but that the same should descend to Alexander, and if Thomas had been then Born, he would no doubt have provided that failzying of Alexander, Archibalds Portion should fall to Thomas▪ and if he had declared that the Lands of Corrowa should only belong to the Heirs of Line, it would undoubtedly have excluded the Heirs of Conquest: He has done the equivalent, for having provided the Lands to Archibald and his Heirs whatsomever; he does by a posterior explicatory Clause, declare that if Archibald died without Heirs of his Body, Alexander should be Archibalds Heir therein, notwithstanding of any Law or Custom to the contrare, which can have no other meaning then that, notwithstanding by the Law, john as Heir of Conquest would Succeed to Archibald, wanting Heirs of his own, yet Alexander the younger, who would be Heir of Line should succeed, which is as much as to say that this Provision should belong to Archibalds Heirs of Line, and not to his Heirs of Conquest, and consequently having made no mention of Alexander's Heirs, he did also mean Alexander's Heirs of Line, who is the Pursuer Thomas, and the case is so much the more favourable, that if this failed, Thomas hath neither Provision nor Aliment. The Lords considering that both Parties were Infants, and that if Archibald should die, Thomas would get all, superseded to give answer anent the heritable Right of Succession until both Parties were Major, and in the mean time allowed Thomas to Possess the Profits of the Lands, who had no Aliment nor Provision. Kennedy contra Cunningham and Wallace, july 12. 1670. THere being an Apprizing of the Lands of Garleith, belonging to john Kennedy, at the Instance of Edward Wallace; the said Edward by his Back-bond declared that the Apprizing was to the behoof of William Wallace of Burnbank his Brother, and obliges him to denude himself thereof in his favours: Thereafter the said Edward Assigns the Comprising, and Dispones the Lands to Adam Cunningham, who stands Infeft, and in a Debate for the Interest of this Apprizing, It was alleged that Edward Wallace the Apprizer, having by his Back-bond declared, that the Apprizing was to William his Brother's behoof, conform to his Back-bond produced, the said William was satisfied by Payment or Intromission, so that the Apprizing is extinct. It was answered for Cunningham, that the alleadgeance is not Relevant against him, who stands Infeft as a singular Successor, so that his real Right cannot be taken away by any Personal Back-bond granted by his Author, whereby he was not denuded, for though his Author had granted Assignation to the Apprizing, if it had not been Intimat, a posterior Assignation Intimat much more a Disposition and Infeftment would be preferred thereto, for albeit satisfaction of an Apprizing, by Intromission with the Mails and Duties be sufficient to extinguish, even against a singular Successor, though there was no Resignation made, which the Lords had extended to any payment made by the Debtor, yet this was never extended to any Personal Declaration of Trust, or obligement to denude, which cannot be valide against a singular Successor. It was answered for Kennedy, that Apprizing and Infeftments thereon, do differ from other Infeftments, in this, that they require no Resignation or Reseising to extinguish them, but whatever may take away a Personal Right, either by Intromission, Payment, or compensation will take them away even by exception; and what is Relevant against the Author, is Relevant against the singular Successor, except as to the manner of Probation, that it cannot be Proven by the Author's Oath, but by Writ or Witnesses; neither is there any odds as to this, whether there be Infeftment on the Apprizing or not, so than if Cunningham were but assignee to the Decreet of Apprizing, it would be Relevant against him, that before his Assignation his Cedent had declared that the Apprizing was to the behoof of another, to whom the Debtor had made payment; which Declaration being instructed by Writ anterior to the Assignation, is valide against Cunningham the assignee, and whether he be Infeft on his Assignation and Disposition of the Apprizing or not, as to this Point, Law and Custom makes no difference, neither doth the case quadrat with an Assignation unintimat, compeating with a posterior Assignation intimat, which might be preferred; but if the Debtor made payment to the assignee, though he had not intimat it, it would extinguish the Apprizing, and no posterior Assignation, though intimat, would make the Debtor pay again, and in this case there is a real Declaration of Trust, which is most ordinar, when Parties having small sums▪ assign them all to one who Compryzeth for all, and by several Backbonds, Declares that the apprizing is to the behoof of the several Creditors according to their sums, who have always rested therein, and have sought no further, and if this Back-bond were not sufficient against singular Successors, the Appryzer might at any time thereafter Dispone, and clearly exclude them. The Lords found that the Back-bond was Relevant against singular Successors, and that payment made to him, to whose behoof the apprizing was Deduced, was sufficient against a singular Successor, having right to the apprizing, or Lands from the Appryzer, after he granted his Back-bond. The Daughters of Soutray contra The Eldest Daughter. july 13. 1670. THe Laird of Soutray having granted a Writ in favours of his Eldest Daughter, beginning in the Style of a Testament, and after a blank, Disponing his Lands of Soutray, and his whole Movables to the said Eldest Daughter, with the burden of ten thousand marks to be paid to the remanent Daughters: The said's remanent Daughters pursue a Declarator of the nullity of the Writ. First, In so far as being a Testament, it contains a Disposition of the Lands. 2dly, In so far as the Eldest Daughter is nominate Executrix, and universal Legatrix, because by ocular inspection, that part of the Writ was blank, and is filled up with another hand, which is offered to be proven to have been done since the Defuncts Death, so that the Executor and Legator not being filled up by the Defunct in his own time, and these being the Essentials of the Testament wanting, the whole Falls, even as to the Disposition of the Movables. The Defender answered, that the Testament was valide, albeit the Name of the Legator and universal Executor, were filled up after the Defuncts Death; yet it is offered to be proven, that the Defunct when he subscribed the Testament, did nominat his Eldest Daughter, as Executrix and Legatrix, and gave warrant to the Nottar to fill up the Name, which though he neglected then, and has done it since, it ought not to prejudge her. It was answered, that our Law allows of no Nuncupative Testaments, or nominations of Executors of Legators, unless the Testament be perfected in Writ, and therefore if the Executor or Legator be not filled up by the Defunct, the Testament is not perfeited in Writ, albeit the Defunct has Subscribed the same, as he might have done in a blank Paper, and given warrant to the Nottar to fill up his Testament upon such Terms, which could not subsist, though the Nottar and Witnesses should astruct the same, as not being done, habili modo. The Lords found the Testament null as to the nomination of the Executor and Legator; and also as to the Lands, but they found it valide as to the Disposition of the Movables, with the burden of the ten thousand marks; and found that the want of the nomination of the Executor or universal Legator, did not hinder, but that the Defunct might in any way Dispone his Movables in Testament, or on Deathbed, which would stand valide as a Legacy, which by our Law might consist without nomination of Executors but would extend to that part of the Movables only, the Defunct might Legat. Anna Raith and john Wauchop of Edmistoun contra Wolmet and Major Bigger. Eodem die. IN Anno 1641. there was a Minute of Contract betwixt umquhil Wolmet, james and Mr. james Raiths of Edmistoun, and their Spouses, whereby a Marriage was Contracted betwixt james Edmistoun Wolmets Son, and Mr. james Raiths' Eldest Daughter, and in case of the Decease of either of these two, the next Son and next Daughter to make a perpetual Friendship: In Contemplation of which Marriage, the said james Raith and Mr. james Raith his Son, were obliged to pay 10000 pounds of portion to Wolmet himself, and to lend another Sum, for Redeeming of a Wodset upon the Estate, which being done, Wolmet was obliged to Infeft his Son, and to provide eight hundreth marks of Jointure to his Good-daughter, Raiths' Eldest Daughter Dies, and the said james Edmistoun, Wolmets Eldest Son Marries Raiths' second Daughter, but there was no Contract or consent of her Parents, and they having lived seven years together, James Died without Children, and Raiths third Daughter is Married to John Wauchop, Niddries Son, and Raiths' Estate provided to her, whereupon they to liberate Raiths Heirs and Estate of the 10000 pounds contained in the Contract, raised Declarator, that the minute was null and void, in two Grounds: First, Because there was no Marriage following by consent of the Parents, conform to the Minute. 2dly, Because Raiths' obligement to pay the Tocher, was to Wolmet himself, and for his mutual obligement, of Infefting his Son, and providing a Jointure, which neither was, nor can be done, Major Bigger now standing in the full Right of Wolmets Estate, and no Person to Represent Wolmet. The Defenders alleged absolvitor from the first Ground, because there was a Marriage conform to the Minute; and albeit Raith did not consent, yet being obliged, he had no just Ground to disassent. And to the second Ground, seeing there was no Clause irritant in the Minute, albeit the obligements therein were mutual Causes each of other, it might be Declared, that neither Party should be obliged to fulfil, till the other fulfilled their part, but could not annul the Minute. The Lords found that seeing Wolmet was in no capacity to perform his part, that the Heirs and Estate of Raith were free of their part, providing that the Pursuer who is assignee to the Liferent Right of the said james Edmonstoun, his Wife should Discharge the said Liferent, and declare that it should never burden Wolmets Heirs or Estate. Beation of Bandoch contra Ogilbie of Martoun. Eodem die. BEaiton of Bandoch having a Miln upon a Burn, running by the Lands of Greendykes and Martoun, the Tenants of these Lands did by Sheuches and Casts, divert the Water, and therewith watered their Ground, which thereafter returned to the Burn, before it came to Bandochs Dam. Bandoch pursues a Declarator, that he and his Predecessors and Authors, having been in immemorial Possession of the Miln, and having had the free use of the Burn, until of late the Tenants of Greendyke and Martoun have diverted the same to water their Ground, whereby so much thereof is drunk up by the Ground, that there remains not Water sufficient for his Miln. In this Process the Lords having before answer allowed Witnesses to be adduced on either part. It was proven that Bandoch was in Possession of the Miln, with the free use of the Burn these threescore years, and that it was commonly known, that he and his Predecessors had been in immemorial Possession thereof till the diversion. It was also proven, that the Tenants of Greendykes had been forty years in use to water their Ground, as now they do. It was also proven that the Tenants of Martoun have been in use to water their Ground this 34, or 35. years, whereupon it occurred to the Lords to consider, whether the watering of the Ground being the most natural and ordinar effect of Burns and Waters, the building of a Miln beneath, could hinder that liberty, or at least, if 34. years' Possession were not sufficient to continue the watering. The Lords did not consider what effect the building of a Miln, with a short possession of the Water free of diversion would hinder the Heretors from diverting the Water from watering their Ground; but finding that the ancient and immemorial Possession of this Miln, and full enjoyment of the Water was as much proven, as could be known to preceded the 34. years, during which, the diversions upon the Lands of Martoun was proven, they found that the Miln and her privilege being once so Constitute, no less than 40. years peaceable Possession of diverting the Water for watering, was sufficient, that being the only legal Term, and therefore allowed the Lands of Greendykes to continue the watering, but discharged the Lands of Martoun to continue the same. Sir Alexander Hume. contra The Earl of Hume. July 14. 1670. THe Right of the Erected Barony of Coldinghame being derived from John Stuart of Coldinghame, and Sir Alexander Hume younger of Rentoun, he pursues a Declarator against this Earl of Hume; and the Creditors and Appryzers of the Estate of Hume, to this effect, that there being a Contract betwixt umquhil James Earl of Hume and Stuart and others, whereby it was Declared, that the Earl being Infeft in an Annualrent of 200. pounds Sterling out of the said Barony, there was nineteen thousand pounds of bygons, of the said Annualrent, at the Date of the Contract, in Anno 1631. Therefore it was agreed, that the Earl of Hume should be put in Possession of the said Barony, for payment of the said Annualrent, for Terms subsequent, and for the nineteen thousand Pounds made up of the bygone Annualrents, fructibus non compurandis in sortem, and that the Earl of Hume, who last Deceased, having Assignation to the said Contract from the Heirs of Line, of the said umquhil James Earl of Hume, recovered a Decreet of Possession upon the said Contract, in Anno 1643. and entered in Possession accordingly, and that the said Annualrent of 200. pounds Sterling, after the Decease of the said James Earl of Hume did cease, being only provided to the Heirs-male of his Body, which failzing, etc. that therefore the 200. pounds Sterling affecting the Barony in the first place, and being free, did satisfy the nineteen thousand pounds, and freed the Barony thereof. Compearance being made for the Earl of Hume, and the Creditors who had apprised the Barony of Coldinghame. It was alleged that the Earls intromission was not to be ascribed to his Decreet of Possession in Anno 1648. because he had another anterior Title in his Person, viz. A former Contract betwixt the Deceased James Earl of Hume, and the Heretors of Coldinghame, by which he was allowed to Possess, till he were paid of 4000 pounds Sterling, payable at four Terms, for which, or any of the Terms, he was to enjoy without an account fructibus non imputandis in sortem, of which Contract there was a thousand pound Sterling unpayed▪ and upon which Contract james Earl of Hume had obtained Possession, in Anno 1630. So that the late Earl having right to both these Contracts and Decreets from the Heirs of Line, and having entered to the Possession, without any Porcess of Removing, or Mails and Duties against the Tenants, but the former Possessors leaving the Possession, the Earl entered without opposition, and might ascribe his Possession to either of these Rights he pleased, and does most rationally ascribe the same to the first, especially seeing he had both the Rights from the same Party, and was not introduced to the Possession by them, more upon the one Right than upon the other. It was answered for the Pursuer, that albeit Parties may make use of any Right they have to Defend their Possession, without interverting the same, yet that must always be where the posterior Right doth not derogat from the former, either as to Right or Possession. But here the second Contract and Decreet is inconsistent with, and derogatory to the former; for the Earl having power to enter by the first, till he were paid of one thousand pound Sterling, resting of four, fructibus non computandis in sortem, taking a posterior Right, whereby he was to enter for payment of nineteen thousand pounds, fructibus non computandis in sort●●, he deerogate so far from the first, that he must Possess primo loco by the last, seeing the first is not reserved. 2dly, The late Earl could only be understood to enter in Possession by that Right, or the former Heretors, to relinquish the Possession to him upon that Right, which then had paratam executionem, and could then instantly have forced them to quite the Possession; but that was only the last Contract, and last Decreet, whereupon the late Earl had obtained Sentence in his own Person, in Anno 1643. when he entered in Possession: But as for the first Contract and Decreet of Possession, it had not then paratam executionem, never being Established in the Persons of the Heirs of Line, much less in the Person of the late Earl, who had Right from the Heirs of Line by Assignation himself, being only Heir-male. The Lords found that the Possession was only to be ascribed to the last Decreet, which only had paratam executionem primo loco, without prejudice to the Earl. if that Right were Exhausted, to defend himself with the first Right in the next place. Major Bigger contra David Cuninghame of Dankeith. july 15. 1670. MAjor Bigger having Right to the Teinds of Wolmet from the Earl of Lauderdail, pursues David Cunninghame of Dankeith and jean Dowglas, Relict of Wolmet, his Spouse, for Spuilzie of the Teinds, restricted to wrongous' Intromission, and insists for the fifth of the Rent. The Defenders allege absolvitor, because they produce a Valuation of the Teinds of Wolmet, obtained at the instance of umquhil Patrick Edmonstonn of Wolmet, before the Commission for Valuation in Anno 1636. The Pursuer answered that the Defense ought to be Repelled: First, Because Swintoun standing then in the Right of these Teinds, had raised Reduction and Improbation of this Decreet of Valuation, against james Edmonstoun, as Heir to Wolmet, and thereupon had obtained a Decreet of Certification, which is now produced. 2ly, By Articles betwixt Dankeith and Major Bigger produced Dankeith Counts for a greater Duty than this Valuation, and so passes therefrom, and Homologats the Majors Right. 3dly, The Decreet of Valuation took never effect, there having never been payment made conform thereto, but Tacks accepted by the same Defenders, and Duties paid by them of a greater quantity. The Defender answered, that the Certification could have no effect against the Defenders, because it was only obtained against Wolmets appearand Heir, who had only the Right of Reversion, the Wodsetter who was Proprietar publicly Infeft, and the said james Dowglas Liferenter, by a public Infeftment, never being Called, who do now produce the Decreet of Valuation quarrelled: And as to the Articles. they can import no Homologation, because the Article anent the Teind bears only such a sum, without relating to the fifth of the Rent, or to the price of the valued Bolls. The Pursuer answered, that the Valuation having been obtained at the Instance of Wolmet, and not of his Wife, he might Reduce the same by Calling only Wolmets Heir, who had not only the Reversion, but a Back-tack, and he was obliged to Call no other, especially seeing they had no Right to the Teinds the Defender answered, that the Heretor has undoubtedly Interest in the Valuation, though they had no Right to the Teind, because it Liquidats the Teind, and Liberats the Stock of any further, and so hath the Liferenter for the Liferent Right, especially she being publicly Infeft: so that though the Decreet was obtained at umquhil Wolmets Instance, yet he being Denuded of the Property by a public Infeftment of Wodset with his Wife's Liferent, reserved therein, they could not be miskenned, and their Right taken away by a Process against Wolmets appearand Heir, who was Denuded of the Property, and who did now produce the Decreet of Valuation, and abode by it as a true Deed. The Lords Sustained the Defense upon the Decreet of Valuation, and found the Certification could not take away the Liferenters Interest in the Valuation, she not being Called; and found the Articles to infer no Homologation, but found the third member of the reply Relevant, that Tacks were taken by the Defenders, and Duty paid of a greater quantity since the Valuation. Lady Lucy Hamiltoun. contra Bold of Pitcon. Eodem die. LAdy Lucy Hamiltoun insists in her Reduction, before Debated on the eight of july instant, against Pitcon on this Ground, that abbeit the Disposition granted to him by George Hay, the Common Debtor be anterior to the Pursuers Inhibition; yet it must be Reduced on this Ground, that it is without any equivalent onerous Cause, and that albeit in bear an onerous Cause, yet that will not instruct the same, but it must be instucted otherwise than by Pitcons own Oath, because it is betwixt conjunct Persons, two Good-brothers; and because it bears not only to be in favours of Pitcon himself, but for the use and behave of the Creditors, whose Names were then blank, and thereupon are now excluded, as being filled up after the Pursuers Inhibition, so that the Disposition being in so far fraudulent, and not totally granted to Pitcon for himself, the proportion of his Interest cannot be known, but by instructing the Debts due to him, and for which he was engaged the time of the Disposition. It was answered for Pitcon, that he was ready to instruct the Debts scripto, and for some few to whom he had undertaken payment, at the time of the Disposition he offered to produce their Bonds, and to Depone that he undertook payment of them, as said is, which is all that is required by the Act of Parliament anent fraudulent Dispositions, whereby the defect of an onerous Cause, is to be proven by the Parties Oath, who gets the Disposition. The Lords Repelled the Allegiance, and found that Pitcon behoved to instruct the Cause of the Disposition, otherwise than by the saids Bonds, and his own Oath. It was alleged for Kelburn, another of the Creditors, that he had Right by an apprizing, proceeding upon sums anterior to the Inhibition. It was Replied, that the apprizing was thursdays. First, Because the Denunciation whereon it proceeded, was not at the Mercat Cross of the Shire, but at the Mercat Cross of the Regality; in the English time, when Regalities were suppressed. 2dly, That the apprizing was led at Glasgow; and neither within the Shire of Air, where the Lands lie, nor by Dispensation at Edinburgh: And albeit the Letters bear a Dispensation to Appryz● at Glasgow, and that the Denunciation was made accordingly, for the Parties to appear at Glasgow, yet there was neither Law nor Custom for such a Dispensation, and Parties are not obliged to attend but at the head Burgh of the Shire, or in communia patria, at Edinburgh. 3dly, The Pursuer has also an apprizing, though posterior, yet preferable, because solemn and orderly according to the Custom then being. It was answered, that albeit the Custom under the Usurper might excuse the want of Denunciations at the head burgh's of Regalities, which were then suppressed, where they were used at the head Burgh of the Shire according to the Custom then, and so validats such Appryzing; yet this Defender having according to the standing Law of the Land, Denunced at the head Burgh of the Regality, the contrair unwarrantable Custom cannot annul his apprizing, proceeding according to Law. And as to the Dispensation at Glasgow, which was nearer the Lands than Edinburgh, whatsoever might have been said to the inconveniency of granting such a Dispensation, yet being granted, it is valide, and was then frequent to grant such Dispensations. The Lords found that the Pursuers Apprizing being according to the ordinar Custom for the time, at the head Burgh of the Shire upon Denunciation, that it was more solemn and preferable, as to the manner of Denunciation, than that which was upon Denunciation at the head Burgh of the Regality, at that time. But the Lords did not determine, whether such an apprizing would have been valide, if there had not been a more formal one; Nor whether the Dispensation being granted at Glasgow, was valide. Margaret Scrimzeor contra Alexander Wedderburn of Kingennie. july 19 1670. UMquhil Major William Scrimzeor having nominat Alexander Wedderburn of Kingennie, and two others to be Tutors to his Daughter. She now pursues a Tutor Account, wherein this Question arose, and was reported to the Lords by the Auditors, viz. The Defunct having Died in September 1650. The Tutor did not accept the Nomination, or begin to Act till the end of the year 1653. In which time the Tutor alleged that a part of the Pupils Means perished, and became Insolvent, and craved to be liberate thereof, on that Ground in his Discharge. It was alleged for the Pupil, that the Tutor must be liable from the time that he knew that he was Nominat Tutor, for albeit he might have abstained absolutely, yet once accepting the Tutory by Nomination of a Testament, wherein a Legacy was left to himself, he must count as if he had accepted it at the first, for which there was adduced many Citations of Law. It was answered for the Tutor, that in the Roman Law, Tutors were obliged to accept so soon as they knew their Nomination, unless they could free themselves by the excuses allowed in that Law: But with us it is absolutely free to accept or refuse, without any excuse; and it is only the acceptance that obliges, and so can have no effect ad preterita as to that which perished before acceptance, especially in this case, the Defender being but one of three Tutors Nominate, he ought to have had a time to endeavour with the rest to accept, and his lying out was in such a time, in which Judicatures did cease by War and Troubles, the English after the Battle of Dumbar in September 1650. being possessed of Edinburgh, and the public Records, there was no Session keeped till the year 1652, or 1653. The Lords found the Tutor was not liable for any thing that perished before his acceptance. The Executors of Walter Hamiltoun contra The Executors of Andrew Reid. july 20. 1670. THe Executors of Walter Hamiltoun pursue the Executors of Andrew Reid, for payment of a Bond of 122. pounds Sterling, and of a Bond of eighteen pounds Sterling, due by the said umquhil Andrew Reid, to the said umquhil Walter Hamiltoun. The Defenders alleged, that they ought to have allowance of fifty pounds Sterling, paid to Walter by john fleming, by Andrew Reids Order, and of Sterling, paid to Mckneich, upon a Bill drawn by Walter Hamiltoun upon Andrew Reid, to be paid to Mckneich, and for proving thereof, produced missive Letters, Written by Walter Hamiltoun to Andrew Reid, the one bearing, that fleming had paid a part of the 50. pound, and he doubted not but that he would pay the rest: And the other bearing, that Mckneich had got payment. It was answered for the Pursuers, that the Missive Letters could not instruct a Discharge, or abate those clear Bonds, because they did relate to Bills and Orders, upon which payment was made, and except those Bills and Orders can be produced, the Letters relating thereto, can have no effect, for it must be presumed, that the Bills and Orders have been retired by Walter Hamiltoun, as having been allowed in other Bonds, which then have been delivered by Walter to Andrew Reid, it being the ordinar course amongst Merchants, to interchange Bills and Bonds, without any other Discharge, neither do they take notice of their Missives, relating to such Bills or Orders, nor can it be supposed they can remember the same. The Auditors in this Account, having taken the opinion of several knowing Merchan's anent their Customs in this point, they did all report in Writ, and did all agree in this, that missive Letters relating to Bills, Orders, or Discharges, had no effect, unless the Bills, Orders, or Discharges were produced, and that Merchants neither did, nor could have notice of such Missives to retire, or interchange the same; they did also visit Walter Hamiltouns Compt Book, by which there appeared several other Bonds and Accounts betwixt the Parties, beside these: And in which also, the sums contained in these Letters, were set down as payment, in part of the other Bonds and Counts, whereby it appeared, that the Bill and Order mentioned in the Letter, were interchanged with the former Bonds. The Lords found that the missive Letters relating to the Bill and Order, had no Effect, unless the Bill and Order were produced. Hugh Moncrief of Tippermalloch contra Magistrates of Pearth. july 26. 1670. HVgh Moncrief of Tippermalloch having Incarcerate Ogilbie of Channaly in the Tolbooth of Pearth, from whence he having escaped; he pursues the Magistrates of Pearth for payment of the Debt, who alleged absolvitor: First, Because their Tolbooth was sufficient, and the Rebel had escaped vi majori, having broken the Stone, in which the Bolt of the Tolbooth Door entered, and forced the Lock in the time of Sermon, and that immediately after the Rebel escaped out of the Town, and was met with Friends that were trysted there at the time of his escape. 2dly, They had laid out all ways thereafter to search for him, and had at last found him in the Tolbooth of Edinburgh for the same Debt, where he yet was in as good condition, as when he first escaped. The Pursuer answered, that the Rebel had escaped by the fault or neglect of the Jailor, for whom the Town was answerable, in so far as they had given him the liberty of all the Rooms in the Tolbooth, and that when he escaped, he was left in the outmost Room, and his Brother Son was permitted to abide within with him, and the Catband on the outside of the Tolbooth Door was not put on and Locked, which would have so secured the Door, that nothing the Prisoner could have done within, could have opened the same; and that the Tolbooth Lock had a double and single Cast, and when it was Locked only with the single Cast, the Bolt might be thrust back, but when with the double Cast, it had a strong Backsprent, and could not be thrust back: and that at the time of the escape, the Lock had but the single Cast, so that the edge of the Stone being broken off, there was access to press back the Bolt. To the second it was answered, that the Rebel having escaped through the Town or their Servants neglect, jus erat acquisitum to the Pursuer, making them liable, which could not be taken off by any Incarceration thereafter, unless the Magistrates had followed him in the very Act of escape, and recovered him; but now they have six Months after his escape put him, not in the Tolbooth of Pearth, but in the Tolbooth of Edinburgh. The Lords being unwilling to give either Party the choose of Witnesses for Probation, had before answer, appointed either Party to adduce Witnesses anent the condition of the Tolbooth, and the manner of the Rebels escape, which being now advised. The Lords found that by the most pregnent Probation, it was proven that the Catband used sometimes to be on in the day time, and sometimes not, and that Prisoners for Debt had the liberty in the Day time of all the Rooms of the Tolbooth, the Probation was very contrair, as to the breaking of the Stone wherein the Bolt entered, but it seemed access could not be had to the Bolt without some breach of the Stone. It was also proven the Catband was not then on, and that the Bolt when it got the double Cast, could not be pressed back, and could when it got the single Cast; and therefore the Lords found that the Magistrates proved not their first Exception, that the Rebel had escaped vi majori, without their fault or negligence, and found the second Exception of putting him again in Prison, not Relevant. The Lady Halliburtoun contra The Creditors of Halliburtoun, july 27. 1670. THe Lady Halliburtoun being provided by her Contract of Marriage to the M●ins of Halliburtoun, with the Miln and Pertinents, and her Precept of Seizing bearing warrant to Infeft her in the Mains and Miln, by Earth and Stone of the Land, and by the Clap of the Miln, her Seizing having the said Precept engrossed, bears her by virtue thereof to be Infeft by the Earth and Stone of the Land, but mentions nothing of any Symbol for the Miln, or of any Reason that Seizing was not taken of the Miln● because it was Demolished, the Miln being thereafter Built or Re-edified, the Creditors having Apprized, did take Infeftment of the Mains by Earth and Stone, and of the Miln by Clap and Happer, and now in a competition betwixt the Lady and them anent the Rents of the Miln. It was alleged for the Creditors, that they ought to be preferred, because they were Infeft in the Miln, and the Lady was never Infeft therein, albeit her Precept of Seizing buir an express Warrant to Infeft her therein by Clap and Happer. It was answered for the Lady, that her infeftment of the Land, with the Miln and other Pertinents, is anterior to the Creditors, and must extend to the Miln, albeit she took no special Seizing thereof, because there was no standing Miln at the time of her Seizing, so that the Miln being Builded by her Husband thereafter, solo cedit, and belongs to her as a Pertinent, for though, where a Miln is before Infeftment, it cannot pass as a Pertinent without a special Seizing, yet where it is only Built thereafter, it accresces to any Party Infeft in the Land, especially being Infeft in the Land, with the Miln thereof. The Lords preferred the Lady, she proving the Miln● the time of her Contract and Infeftment, was not at all Built, or having been Built was Demolished. Charles Charters contra Cornelius Neilson, july 29. 1670. Charles' Charters and Cornelius Neilson, both having Arrested their Debtors Money in the same hand, Cornelius Arrestment was upon the 24. of june, and Charles Arrestment upon the 28, But Cornelius Arrestment was upon a Bond, whereof the Term of payment was not come, and the Term of payment of Charles his Bond was come, both Parties having their Citation before the Bailzies of Edinburhg in one day, where Cornelius alleged preference, because his Arrestment was prior, Charles Charters answered, that albeit his Arrestment was four days posterior, yet it ought to be preferred, because the Term of payment of Cornelius Debt was not come whereas Charles his Term being past, he has paratam executionem, this being ready to be Advised by the Bailzies. Cornelius raiseth Advocation, and the Cause being Advocate, the same Debate was repeated before the Lords, and Cornelius added that now the Term of payment of his Sum was past, and alleged that albeit his Term were not come, his first Arrestment is preferable, though the Decreet thereupon could only be to pay after the Term were passed, and now his Term being also past before Sentence there needs no such limitation. It was answered, that it is not the Arrestment that constitutes the Right, but the Sentence making forthcoming, and though ordinarily the first Arrestment is preferred, yet oftimes posterior Arrestments are preferred upon more timous or more orderly Diligence, and the Diligence done, by Charters is done more orderly, because it was after the Term, for if it were Sustained, that Arrestments made before the Term of payment, should be preferred to these made after the Term, Creditors who has ready Execution should be postponed to others, whose Debts were payable after a Liferent of 20. years' time, but as the second Arrester may Poind his Debtors Goods, though Arrested formerly by another, so may he crave Sentence to make forthcoming to take present effect by Poinding, and cannot be excluded by an other Creditor, upon pretence of a prior Arrestment, which cannot receive present Execution; and albeit the prior Arresters' Term be now come, yet he ought not to be preferred, because he procured Advocation of the Cause, without any just Reason, either of Incompetency or Iniquity, only to procure delay till his Term were passed, and therefore the Cause being now Advocate of consent, the Sentence must now be of the same manner, as it would have been before the Bailzies when the Cause was Advocate, at which time Cornelius Term of payment was not come. The Lords found that the unwarrantable delay by the Advocation should not prejudge Charters, and that the case should be considered as it was the time that the Advocation was raised, and preferred Charles Charters upon his posterior Arrestment, in respect the Term of payment of his Debt was come, to the prior Arrestment laid on upon a Debt the Term of payment whereof was not come, whereupon Citation was used before the Term came. The Advocats having withdrawn from the House upon the Oath prescribed by the Regulation, nothing was Called until the middle of December. Murray of Achtertire contra Grace, December 16. 1670. MVrray of Achtertire having pursued a Contravention against Grace upon several Deeds, whereof one was, that Achtertire having procured liberty from a Neighbour Heretor to make a Cast upon that Heretors' Ground, wherein some little Burns were gathered to a Head, and thence were conveyed through Achtertires own Ground to his Miln Lade, and that Grace had broken down that Cast, whereby the Burns were diverted● Grace having compeared and proponed nothing, the Libel was found Relevant, and admitted to Achtertires Probation, who by several Witnesses proved that the Defender had broken down that Cast, of whom some Deponed simply, but two of them Deponed thus, that Grace had broken down the new Cast, but that the Burns gathered therein in the time of Floods did water Gray●s own Lands; and that by the new Cast they were keeped in, and could not water the same, whence it arose to the Lords consideration, whether that Deed of Contravention was sufficiently proven, or whether the Testimonies of the Witnesses, being qualified that the Defender had done the Deed, but in continuation of his former Possession of the watering of the Burns, whether respect ought to be had to that qualification, some thought not, because the Fact, as it was Libelled, was found Relevant, and proven, and the qualification ought to have been proponed by way of Defense, but it was found that the Testimonies being so qualified, did not sufficiently prove to infer a Contravention, for if the Contravention had been proven by Writ or Oath, such a quality either in the Writ or Oath would hinder the same to prove sufficiently the Contravention. But because the Testimonies were not to be considered by the Parties, the Lords ordained the Sentence to express the foresaid Reason of it, that the Pursuer before Extract, might allege any thing thereanent he thought fit. Nicol Langtoun contra Robert Scot, Decem. 17. 1670. JOhn Graham of Gillesby, having Set a Track of his Lands of Graystoneflat to Nicol Langtoun, and being at that time at the Horn, Robert Scot obtains a Gift of his Escheat and Liferent from Annandale his Superior, and thereupon obtains general and special Declarator, Decerning Langtoun to pay the Duties to him as Donator. Langtoun Suspends, and raises Reduction on this Reason, that the Gift was simulat to the behoof of Graham the Rebel procured by his own Means and Moyen; and it being answered by Scot, that he being a lawful Creditor of the Rebels, might lawfully accept and make use of this Gift for his own security, albeit the Rebel had procured the same, and Scot the Donator having Deponed anent the simulation of the Gift, did acknowledge that the Rebel had procured the Gift, and that he had it blank in the Donators Name, and that he did fill up Scots Name, and delivered it to him. The Lords found the Oath to prove the simulation of the Gift, and that it having been in the Rebels own hands blank in the Donators Name, it was equivalent to an Assignation from the Rebel, and that Scot accepting of it so from him, could not justly or bona fide make use of it, even for security of a just Debt in prejudice of the Tacks-man, who had before gotten his Tack from the Rebel. Alison Kello contra Kinneir, january 5. 1671. ALison Kello as Heir to her Mother Margaret Nisbet, having pursued a Reduction of an Apprizing of the Lands of Paxtoun, Led at the Instance of Mr. Samuel Hume, against the said Margaret in Anno 1622. and Assigned to Mr. Alexander Kinneir in Anno 1623. upon this Reason, that the said Mr. Alexander was satisfied by his Intromission within the Legal; this pursuit, being against Mr. Alexander Kinneirs Son, who is Minor, and being stopped upon his Minority, quid Minor non tenetur placitare de hereditate paterna. The Lords did upon the Pursuers Petition, grant Commission to Examine Witnesses upon the Intromssion, to remain in retentis till the Cause might be Determined, in respect the Witnesses might die in the mean time, which being reported, the Lords remitted to an Auditor to state the Compt of the Intromission according to the Probation, that the stated Account might remain in retentis. The Defender being heard again before the Lords, did allege that the Account could not be stated upon this Probation, but that there being yet no Litiscontestation in the Cause, neither can be, through the Defenders Minority, and this Probation being but before answer to remain in retentis, and taken by Commission, the Defender not being present at the Examination, and the matter being very ancient, fifty years ago, the Lords ought to give the Defender the sole or conjunct probation of this alleadgeance, viz. That he offered him to prove, that during the years of the Legal, the Lands were Possessed by several Persons, by Dispositions or Tacks, both under Reversion, for certain Sums of Money, due by the said Margaret Nisbet, which Rights were granted by her, and were now produced by the Defender, which with the saids Rights produced, is much more pregnant nor the Pursuers Probation, by some inconsiderable Country People, without any Adminicle in Writ. It was answered for the Pursuer, that the alleadgeance was no way Relevant, being contrare to her Libel, and founded super jure tertij, for this Defender hath no interest in the Wodset Rights, nor doth any Person appear for them, or own them, and if this were sustained, it would afford a current evasion in all kind of Pursuits upon Intromission, by offering still to prove that the Defender did not, but that a third Party did Intromet, and therefore the Lords have never Sustained such a Defense upon the Defenders sole Probation, and in no case have allowed a conjunct probation. It was answered, that in a matter so old, and where the sole probation of a thing of so great Moment was to be by Witnesses the Lords ex officio might Examine Witnesses for either Party, and have oft so done, especially the same aught to be done here, where the probation is by inconsiderable Persons, and so suspect and exorbitant, proving ●●nneirs Intromssion to be before he had any Right, and the quantities to be much higher than the written Tack of the Lands produced. The Lords found that they could not admit a Probation for the Defender, upon the Possession of any third Party, from whom he derived no Right, but that upon the consideration alleged, they would Sustain no Probation for the Pursuer, but that which were clear and pregnant, and allowed the Defender to give in any Objections against the hability of the Witnesses, yet having considered their Testimonies, they found that they did not prove Kinneirs Intromission to be before his Right, but that after his Assignation he had Removed and Dispossessed Margaret Nisbet, and entered in the natural Possession, and Labouring himself, which is a Fact more palpable than the lifting of Duties from Tenants. january 17. 1671. Stair was Admitted Precedent of the Session. Drummond of Rickartoun contra The Fevars of Bothkennel, Eodem die. THomas Drummond of Rickartoun pursues a Poinding of the Ground against the Tenants of the Lands of Bothkennel wherein the Fevars alleged no Process, because the Pursuer being Pupil, he is not sufficiently Authorized, the Tutory produced being to his Mother and Uncle jointly, and his Mother being dead, his Uncle is no more Tutor, the Tutory being granted to them, and bearing expressly to them jointly. It was answered, that in Tutories, Curatories, Executories, the death of one Person doth not evacuate the Office, but it accresces to the rest. The Lords found that in respect of the Tenor of the Tutory, bearing to two conjunctim, the death of one evacuats the Office; Nevertheless they declared that they would give a Curator ad hanc litem, to Authorise the Pupil, but that none could uplift or discharge, till there were a new Gift of Tutory. Mr. Robert Dickson contra james Graham, january 19 1671 MAster Robert Dickson Advocate having granted Bond to James Graham, for a Sum of Money furnished to his Brother upon an Account, he raises Reduction of the Bond, as to a part thereof, upon fraud and circumvention, alleging that the true cause of the Bond was the causing answer his Brother Money, and that he had made an agreement before the hand, for so much the French Floren; but his Brother having some Moneys answered in Vinnice, without any agreement before the hand; when the Parties came to Account, james Graham being wholly Trusted by the Pursuer did give an Account, and did Affirm to the Pursuer that the Rate of answering Money in Vinnice was at that time so much dearer than the same truly was, if it had been only answered in France, wherein he now understands he was deceived, because it was equal or less value to furnish it in Vinnice then France, and offered to prove the value of the Money by Witnesses, and the rest by Oath. The Defender answered, that it was lawful for him, being a Merchant, to take what value for the Floren he could agree, and that it would be of evil consequence, if Bonds upon Merchant's Accounts were Reduceable, and they held as Circumveeners, if they had taken a greater Rate than the ordinar Rate at that time, especially here the agreement of the Rate being with a prudent Party, and a Lawyer. 2dly, The Pursuer had Homologat the Bond by paying a part of it, and could not quarrel the rest. The Lords found the Reason of Circumvention Relevant, in these terms, that there being no agreement before the hand, wherein the Merchant might take any Rate he could get, but after the Money was furnished, the Defender had fraudulently affirmed to the Pursuer, that the furnishing of the Floren to Vinnice, was more than the furnishing of it to France, although he knew the contrare at that time, but would not find the main error in that Article of the Rate to be Relevant, and they Repelled the Homologation, because the Pursuer might be deceived in one Article, and not in the rest. Captain Ramsay contra William Henderson, january 20. 1671. CAptain Ramsay as assignee Constitute by Eupham Scot, to a Sum of two thousand Marks, Addebted by umquhile Mr. Charles Henderson pursues his Heir for payment, who alleged Absolvitor, because this Debt being due originally by Mr. Charles Henderson, and by the said Eupham Scot, who being vicious Intromissatrix with his Goods and Geir, and having been Assigned to this Sum herself, she became Creditrix, as assignee and Debitrix as vicious Intrometter, & confusione tollitur obligatio, and this Pursuer having Right from her, can be in no better case than she. It was answered, that vicious Intromission was not competent by way of Defense. The Lords found that whatever might be said, if the vicious Intrometter had been pursuing whether the Defense might have been competent, yet found it not competent against the assignee, seeing the Cedent was not in campo, and Probation behoved to be used against her. sandiland's contra sandiland's, january 25. 1671. THe Children of Alexander sandiland's pursue Agnes sandiland's their Mother, for Compt and payment of their Father's Means, the Tutory being now finished by her Marriage; In which Account the Mother gave up in defalcation the third of all movable Sums, as Ships, Merchant Goods, Household Plinishing, etc. It was answered for the Children, that she can have no part of the movable Sums, or movable Goods, because by the contract of Marriage produced, she is provided to the Annualrent of 5000. Marks which was her own Tocher, and ten thousand Pounds more of her Husbands, which is her Husbands, and was the whole Fortune he then had; and as to the Conquest, it is provided that all Sums of Money, Lands, Annualrents, Tacks and others whatsomever Conquest during the Marriage, shall be taken to the Husband in Liferent, and to the Bairns in Fee; and because the Wife is provided to be a Bairn in her Father's House, what shall come that way is provided to be taken to the Husband and Wife, the longest Liver of them two, and the Bairns of the Marriage, so that all the Sums, and Movables in question, being Conquest during the Marriage, they are by the Contract destinate to the Husband in Liferent, and the Bairns in Fee, and which Provision is a Debt upon the Husband, his Heirs and Executors, so that the Wife can have no third thereof. The Defender answered, First, That her Right of the third of the Movables being Constitute by the Law, cannot be taken away, but by an express clear Deed Renuncing the same, or accepting such Provisions in satisfaction thereof, which being a Clause now ordinarily adjected in Contracts, and not put in this Contract, albeit in the same the Wife's Tocher bears in full satisfaction, the Clause can never be so interpret as to exclude her third, especially a Contract of Marriage being so favourable, that words are always understood therein according to the meaning of Parties, and here the meaning of the Parties may be cleared, by this, that the Defunct who was a very intelligent Man, did declare that he would leave to his Wife so much of his Movables in full satisfaction of her third, so that he thought she was not excluded, and if need beiss the Parties alive, Writters and Witnesses in the Contract may be yet Examined to clear the meaning of the Clause. 2dly, Albeit the Clause could not exclude her from a third of Money, which is express therein, yet not from a third of Movable Goods and Geir, which is not expressed, and albeit the Clause bears, (and others) it can only be understood of Rights due by a stated Security, and the intent of the Clause has only been to substitute the Bairns of this Marriage, Heirs of the Conquest, and to exclude the Bairns of any other Marriage, but did neither exclude the Father, but that he might dispone on his Movables, albeit the Clause expresseth him but Liferenter thereof; neither does it exclude the Mother from the third thereof: And there was adduced a Decision in the Case of the Lady Oxenfoord, wherein, albeit by her Contract of Marriage she accepted certain Lands in full satisfaction of her Terce, and third of all Lands, Annualrents and others, yet that was not found to exclude her from a third of Movables, but only from a Terce, or third of heritable Rights. It was answered for the Children, that their Mother having consented by the Contract of Marriage, that all Conquest during the Marriage should be provided to their Father in Liferent, and to them in Fee, she had excluded herself as clearly, and effectually, as if she had Renunced her third thereof, or accepted of her Jointer in full satisfaction; neither is there a necessity that these words must always be used, nor is this alleged as a consequential Renunciation, but as an express Obligation, or Destination of the Husband consented to by the Wife, which must have its native effect, and so the Children must be Feears of the whole Conquest, and therefore the Wife cannot be Feear of a third of it, and albeit movable Geir be not expressed, the generality (others) must necessarily comprehend them, being of the same nature with Sums which are expressed, and may be Movable, and of less importance than they, and the case wholly differs from that of the Lady Oxenfoord, wherein nothing but heritable Rights are expressed, and it is an unaccustomed Clause amongst Persons of that quality to exclude Ladies from a third of Movables; but here Sums are expressed, and it is most ordinar for Merchants to exclude their Wives from their Merchant Goods, which is the greatest part of their Estate, as to the meaning of the Parties, clear Clauses cannot be enervat upon that ground, and as for any thing expressed by the Husband, It was on Deathbed in a great Fever whereof he Died, and no Testament followed. The Lords found that the foresaid Clause in the Contract did exclude the Relict from a Terce of Movable Sums, or Movable Goods during the Marriage, which could be understood, to be meaned to be put upon Security at any time, but that it did not exclude her from a third of the Household Plenishing. Charles Casse contra Sir Robert Cunningham, january 26. 1671. Charles' Casse having Sold to Sir Robert Cunningham his Right to the Lands of Achinhervy in his Minority, pursues a Reduction of the same Disposition upon Lesion, and condescends upon his Lesion, thus, that being Infeft for security of forty thousand Marks, and in an Annualrent effeirrand thereto, whereof there were many bygone years Annualrent resting, and yet he got only forty thousand Marks for all. The Defender alleged Absolvitor, because the Pursuer was satisfied of all his bygone Annualrents, in so far as he having Apprized for five years' Annualrents preceding the Apprizing, which was in Anno 1655. he had entered in Possession by virtue of the said Apprizing of the whole Lands of Achinhervie, and so is Comptable therefore according to the Rental, until he cease to Possess the same, which will fully satisfy all his bygones, so that he will have no Lesion 2dly, He had not only in his Person the said Apprizing, but the Infeftment of Annualrent, upon which he being preferred in a double Poinding, and excluding other Parties having also real Rights, he is thereby obliged to do Diligence, and be Comptable not only for what he intrometted with, but for what he ought to have intrometted with. The Pursuer answered, that he was content to Compt for what he had Intrometted with, but upon neither ground was he obliged to Compt for any further, especially as to his Apprizing, albeit Law and Custom had obliged him to Compt for the whole Rental, till the Apprizing were satisfied, yet he could not be Comptable but for his Intromission after he was satisfied● for then he had no title in his Person, and it is clear that any Intrometter without a title is only liable for his Intromission, and all Parties having Interest might have hindered him to have Intrometted after he was satisfied; and albeit a Tennent or Factor, after the expiring of the Tack, or Factory may be Comptable for a full Rental, yet that is because they have a title per tacitam relocationem, or tacitam commissionem; but after the extinction of the Apprizing then no title remains, and neither is he liable as an Annualrenter, even though he did exclude others to do any Diligence, because all the effect of an Annualrent can only be to distress the Ground, or Poind the Tenants for as much of their Rent as is equivalent to the current Annualrents, after which any other Party having Right may li●t the superplus, and in this case the Annualrenter hath not been preferred as to any bygone Rents, but only in timecoming, and for his current Annualrents, and the bygones are appointed to be brought in Account, which was never determined. The Defender answered, that it were against all Reason that an Apprizer after he is satisfied, should be in better condition then before he is satisfied, and so as long as he meddles, he must Compt by the Rental, and it is his proper part, who knows when he is satisfied, to relinquish the Possession, which other Parties cannot know, till by a long Process of Compt and Reckoning it be determined, and it were most absurd that in the mean time he should continue in Possession, and though the Rents did in a great part perish, he should not be Comptable therefore, but only for what he actually lifted. The Lords found the Pursuer as Apprizer Comptable according to the Rental, not only for Intromission, but Omission, both till the Apprizing be satisfied, and thereafter for all years of which he lifted any part, but found not the Annualrenter liable for Diligence, albeit he did exclude others, but the Case came not to be Determined if the Annualrenter had by a Personal Action insisted for more years Annualrent past, to be preferred to the whole Rents, till these bygones were satisfied, that not being the case here in question. In this Cause it had been formerly alleged that the Pursuer after his Majority, had Received a part of the price of the Lands, in so far as having in his Minority granted a Commission to Mr. john Smith, one of his Curators, to uplift all Sums due to him, and he having uplifted a part of the price of the Land from the Defender, and bonds for the rest; the Pursuer after his Majority, had by his Discharge produced, Received from his Curator and Factor the said Money and Bonds, and Discharged him thereof, and acknowledged that he and the remainent Curators had acted faithfully in all their Intromissions, whereby the Pursuer hath approven, and Homologat the Disposition of the Land, made by him and his Curators, which he now quarrels. The Pursuer answered, First, That the Defense is not Relevant, for Homologation being a presumed or conjectured Consent, not by Word or Writ, but by Deeds done, which import the adhering to the Disposition quarrelled, it cannot be inferred by any Deeds, but such as can have no other intent or purpose consistent with the Rejecting, or disapproving the Disposition, but here the Receiving of the Money and Bonds from the Factor hath a consistency and congruity with this Reduction, for the Pursuer knowing that he could not be restored against his Disposition, unless he did restore what was Received by his Warrant, might justly take up the same from his Factor, that he might be in capacity to Consign the same at the Bar, as if a Minor having Bought Lands to his Lesion, and having Wodset a part of the same, he might after his Majority Redeem the Lands Wodset by himself, which although it behoved to proceed upon the Disposition as his Title, yet it being a Deed necessary to purge the Wodset, and repone the Disponer to his own Land free thereof, it would never importan Homologation, or if he had in his Minority excambed Lands, and Wodset a part of the Lands he acquired thereby, the Redeeming or purging of the Wodset after his Majority would import no Homologation, so neither can any Deed import Homologation, which upon any account can be consistent with the annulling of the Right quarrelled upon Minority. 2dly, This Dicharge does bear expressly relation to Mr. john smith's Account of Intromission Subscribed at the same time, and bears that the Discharge should be also sufficient as if the Account were insert, Ita est in the Charge of the Account, wherein only mention is made of the Sums paid by the Defender, there is an express Reservation, that the Account shall be but prejudice to the Pursuer to insist in his Reduction of the Disposition, And as to that Clause in the Discharge, that the Curators and Factor had done faithfully▪ It relates only to their Intromission, and not to their Omission, and albeit it had born simply, that they had acted faithfully, that can only import that they had not acted Fraudulently, and that they had done for the Minor what they conceived best: but does not import that they had acted providently and skilfully, so that the Minor may still Reduce their Deed. The Defender answered, that his Defence was most Relevant, being founded upon the Pursuers consent, after his Majority: for consent may be Adhibite, not only by Word or Writ, but by any Deed importing the consent, as if a Minor giving a Bond in his Minority, should pay a Terms Annualrent thereof after his Majority: Or if a Minor intrometting with his Father's movable Heirship, or Rents of his Lands in his Minority, should continue to intromet for one Term, or one Point further after his Majority, in neither case would he be restored▪ and yet such Deeds might be consistent, and might be done to other intents, as if his payment of the Annualrent did bear, le●t before his Reduction he might be Distressed, or that he continued his Possession, lest the Rents or Goods might perish to the damage of his party: Yea, though these were expressly mentioned in his Discharge; and his Reduction were reserved, it would be protestatio contraria facto, and would not free him: so neither can the Reservation in this account, though it were repeated in the Discharge, be sufficient; especially seeing he might have caused the Factor Consign the Money in the Clerks hands, that it might be restored at the Discussing of the Reduction: So that inconsistent Reservations or Protestations, operate nothing. 3dly, The charge of this Account, wherein only the Reservation is mentioned, is a louse sheet of Paper, subscribed with another Hand than the Discharge, and has neither Date nor Witnesses, and so cannot instruct that this is the very Account mentioned in the Discharge. The Lords did not determine the Point of Homologation, but before answer ordained the Curators and Witnesses in the Account to be Examined upon Oath, whether the Charge produced be the same that was subscribed, abinitio, bearing the said Reservation, But they inclined that the Reservation would take off the Homologation, and would not be void, as contraria facto. Keir contra Nicolson. january 28. 1671. JOhn Keir as assignee by the Earl of Mar to some Feu-duties, pursues a Poinding of the Ground against Nicolson of Tillicutrie, who alleged no Process, because the Earl of Mar his Cedent, had no right to their Feu-duties, which were due in his Father's Life-time, whose Liferent was reserved ●whereupon compearance was made for Scotscraig's Heir, who was Donator to the old Earl of Mar's Escheat and Liferent, and concurred. The Defender answered, that the concourse could not be effectual, because their bygone Feu-duties being movable, belonged to Scotscraigs Executor, and not to his Heir: and though the Concurrer was both Heir and Executor, yet their bygones' belonging to Scotscraig as Donator, being for years wherein Scotscraig lived, they are movable, and aught to have been contained in the Inventar of his Testament, as they are not. It was answered, that a Liferent-Escheat having tractum futuri temporis, belongs not to the Executor, even as to the bygones, before the Donators Death, unless they had been liquid and established in his Life; but the Gift and all following thereon belongs to his Heir. The Lords found that the bygones of the Liferent preceding the Donators Death, did belong to his Executor, albeit in his Life he had obtained no sentence therefore. Dowglas of Kelhead contra The Vassals of the Barony of Kelhead and others. january 30. 1671. THe Earl of Queensberry being Superior to certain Vassals of the Barony of Kelhead, who did Dispone the Feu Duties and whole Casualties of the Superiority to Kelhead his Brother, to the effect that Kelhead might be his immediate Vassal, and that the Fevars might hold of Kelhead, whereupon Kelhead was Infeft, holding of Queensberry, and thereupon pursues a Declarator of Nonentry, both generally and specially in the said Summons. It was alleged for the Defenders absolvitor, because they were not the Pursuers Vassals, for albeit he was Infeft holding of Queensberry, to the effect he might become their Superior, yet that Infeftment was null, because no Superior could interpose any Person betwixt him and his immediate Vassals: Likeas the Nonentry could only infer the Feu Duty till Decreet or Declarator were pronounced, which used to be per se, but here both special and general Declarator being joint, could only conclude the Feu Duties for bygones till Litiscontestation. The Lords found that albeit the Pursuers Title upon his Infeftment, by which he was interposed, was invalide; yet seeing it contained a Disposition and Assignation to the Feu Duties, and Casualties of the Superiority, that the Pursuer had sufficient Title thereby, as Donator by Queensberry the Superior, and found that the Nonentry carried only the Feu Duty before the Citation, but after the Citation, the whole Profits, seeing the Vassals did not upon the Citation, obtain themselves Infeft by Queensberry. Laird of Milntoun contra Lady Milntoun. january 31. 1671. JOhn Maxwel younger of Calderwood having Married the Lady Miltoun Sir john Whitefoord of Milntoun her Stepson Acquired from him his Right to her Jointure of Milntoun, as her H●sband jure mariti, thereafter john Maxwel having gone out of the Country, the Lady pursues a Divorce against him, upon Adultery committed with Margaret Davidson, in which Process▪ Milntoun as having interest in the Jointure, which would return to the Lady from him upon the Divorce, craves to be admitted in the Process, but was not admitted, so the Process proceeded, and the Decreet of Divorce pronounced: whereupon Milntoun raises Reduction of the Commissars Decreet upon iniquity, because he was unjustly excluded from Defending, and if he had been admitted, he would have proponed pertinent Interrogators to the Witnesses which were omitted, and would have proponed Objections against their Hability, which would have excluded them from being Witnesses. In this Process the Lords Ordained the Witnesses to be Reexamined upon all such pertinent Interrogators as Miltoun should propose, and they being Reexamined, did acknowledge that the Lady prompted them how to Depone, as to their knowledge of Margaret Davidson, and gave them Tokens of her by her clothes and Stature, and that she promised them a good Deed to Depone. In which Process the Lords found that the Witnesses upon Re-examination, after Sentence, could not by their posterior Deposition, deerogate from the first Deposition, and therefore Assoilzied from the Reduction, reserving and allowing to Milntoun his Action of Reprobator, wherein he now insists on these Grounds, First, That the Witnesses, Paterson and Clerk who only proved, were viles personae, having no means worth the King's Unlaw. 2dly, That they were Persons infamous, and of very evil Repute, and in their Examination before, they had prevaricat and contradicted themselves. 3dly, That the Lady had Suborned and Corrupted the Witnesses, by Prompting and Instructing them how to Depone. 4thly, That she had Corrupted the Witnesses before their Testimonies before the Commissars, by giving some of them twenty Dollars to bear Witness, which is far above their ordinar allowance of Witnesses for their Charges. It was answered for the Defender, First, no Objection was now competent against the Hability or Sufficiency of the Witnesses, because Objections were given in against them by the Pursuer, and they have Deponed thereanent, so that albeit Reprobators be competent, where the Pursuer cannot instantly verify his Objections against the Witnesses, and protests for Reprobator; yet if either he forbear to protest, or refer his Objections to the Witnesses Oaths, he can never be heard by way of Reprobator against them: And here this Pursuer neither Protested for Reprobators at the first, nor at the Re-examination, but upon his own desire, they were purged, and did Depone anent these Objections. 2dly, Having made use of the Witnesses upon the said Interrogators, he has approven them, and cannot quarrel their Testimonies. And as to the particular Objection of their poverty, they have already Deponed that they are worth the King's Unlaw, and it being a Negative, which is not presumed that persons are so poor, it cannot be proven by Witnesses, and though it could, and were a sufficient Objection ordinarily, yet in a Crime of this Nature, which is so Clandestine, Objections of Poverty would not be sufficient, and as to that Member of the Reprobator, that they are persons of evil Fame, it is not Relevant, unless they were infamous, infamia juris, either by such Deeds, as the Law Declares to infer Infamy, or by a Sentence of a Judge, declaring them infamous. As to that Member of the Reprobator upon Subornation, it is not Relevant, unless it were Libelled, that the Witnesses undertook so to Depone, or that they had Deponed accordingly, for the Witnesses might be far above exception, as no offer of Subornation could Canvel the Faith of their Testimony, and so infer a blemish upon them. And it was answered to all the Members of the Reprobator that they are not proven by Witnesses, but by Oath of Party, otherways such Processes could never end, for if Witnesses were Receiveable to prove the inability or Corruption of the first Witnesses in the principal Cause, than the Testimonies of the Witnesses in the Reprobator might be Canvelled by Witnesses in a second Reprobator, against the Witnesses in the first Reprobator, and so Reprobator upon Reprobator without end. It was answered for the Pursuer to the first, that he cannot be excluded from Reprobators against the Commissars Decreet, though he protested not therefore, in respect it is evident by the Decreet, that he was not admitted to compear, but he did Protest in the Reduction before the Lords, who have expressly allowed him his Reprobators, neither doth the taking of the Oaths of the Witnesses de initialibus testimoniorum, exclude Reprobators, albeit the Party desire them to be Reexamined upon Oath thereupon, for that Oath is not an Oath upon the Parties Reference, as stating the sole Probation thereupon, but it is a judicial Oath, & partis judicis, for the Judge may, and aught so to Examine the Witnesses, whether the Party require or not, so that the Party refers not these Points to the Witnesses, but requires it of the Judges as a part of his Office. And as to these Points, every Witness is testis singularis, for he Depones only his own Hability, and so there is no Probation thereby, except in so far as may militate against the Witness himself, so that contrary Probation may well be admitted against such an Oath, as well as against Executors upon Superintromission, Tutors or Curators upon negligence or Malversation: and if it were otherwise, Reprobators could be Sustained in no case against Decreets of the Lords, because of Course, they take the Parties Oath to purge themselves of partial Counsel, and of Corruption by promise, or receiving of good Deed, etc. Neither doth the Pursuers making use of the Testimonies of their Witnesses in their Re-examination, import his Approbation of their Hability and Integrity, for Parties may give Interrogators to Witnesses not adduced by themselves. To the second, this Process being of so great importance, all lawful Objections against the Witnesses are competent, and there is none more ordinar than that they are pauperes, not worth the King's Unlaw, and so liable to great Temptation of Corruption. And as to the attempt of Suborning, or bribing the Witnesses, it is most Relevant and express in Law l. 33. ff. de re judicata, bearing testibus pecunia corruptis conspiratione adversariorum, etc. which being pessimi exempli in odium corrumpentis, not only are the Witnesses punishable, but the Sentence annullable, which is confirmed toto titulo Codicis si ex falsis instrumentis, and that without regard whether they undertake or Depone falsely or not, as is observed by Bartol l. in princ. ff. de falsis & addict l. divans 33. de re judicata Num. 7. and Covaruvias in repet. C. quamvis fol. 57 Col. 3. which he attests to be the common opinion; and which is likewise attested by Boss. in tit. de falsis num. 1608. and by Will. 66. come. opin. fol. 2991. and especially by Hartman tit. 15. de testibus observ. 16. where he doth expressly maintain, that it is not so much a lawful to instruct a Witness, excitandae memoriae causa non si subito deprehendatur haesitet & titubet, in respect any such instruction is subornationis velamentum: and which Opinion hath been likewise Confirmed by the Decisions of the most eminent and famous Courts of Justice, as may appear per Capell. tholos. deces. 2804. and others. And which is likewise the Opinion of Clarus, viz. That the foresaid Acts of Corruption are disjunctive and separatim Relevant, as may appear by Fassum. Num. 12, & 13. & qu●st. 53. de exceptionibus quae contra testes opponi possunt. And to the last alleadgeance against the Probation by Witnesses, that it would infer an endless course of Reprobators: It was answered, that by the same Reason, Reductions might be taken away; because the Decreet Reductive might be Reduced, and that Decreet by another Reduction without end: But Reprobators have every where been Sustained, and no such inconvenience ever found; neither can it be imagined, that every Pursuer of a Reprobator will prevail, which this infinite progress must suppose, only it may infer, that Witnesses in Reprobators ought to be more unquestionable, than the Witnesses called in question thereby. The Lords found that Reprobators were competent, albeit the Witnesses upon Oath Deponed upon their own Hability, at the desire of the Party: and albeit the Party Protested not for Reprobators, seeing he was not admitted to compear, and found that Member of the Reprobators upon the poverty not Relevant in this Clandestine Crime: neither that Member upon their alleged Infamy, unless it were alleged that they were infamous, infamia juris, by any Deed which the Law expressly declares to infer Infamy, or were declared infamous sententia judicis: and found that Member of the Reprobators upon instructing or prompting the Witnesses Relevant, without necessity to allege the Witnesses undertaking or Deponing conform, and that in odium corrumpenti●, without inferring any blemish upon the Witnesses so prompted, who consented not, or swore falsely: and found that Member Relevant of Corrupting the Witnesses, by giving or promising of good Deed, more than might be suitable to the Witnesses for their Charges: but as to the manner of Probation by Oath or Witnesses, The Lords superseded to give answer, till a Practic alleged upon were produced. Pringle contra Pringle. February 1▪ 1971. PRingle of Soutray having only three Daughters, does in his Testament done upon Deathbed, Dispone his whole Lands to his eldest Daughter, and Constitute her universal Legator▪ with this provision, that she pay 10000 marks to the other two Daughters, the Disposition as to the Lands being Reduced, as being in Testament, and on Deathbed, the universal Legacy was Sustained, to give the eldest Daughter the Right of the Deads' part, whereupon it was alleged for the other two Daughters, that if the eldest insisted for the universal Legacy, she behoved to have it with the burden of the ten thousand marks, which was a burden both upon the Land and Movables, and doth no more relate to the one than the other, so that albeit the Right of the Land be Evicted, the Movables remains burdened, as if a Father should Dispone certain Lands to a Son, with the burden of Portions to the other Children, albeit a part of the Lands were Evicted, the Portions would be wholly due without abatement. It was answered for the eldest Daughter, that in latter Wills, the mind of the Defunct is chiefly regarded, not only as to what is expressed, but to what is employed or presumed, and here it is evident, that the mind of the Defunct was, that his two younger Daughters should only have ten thousand marks in satisfaction to all Rights of Lands or Movables: Now seeing they have gotten two third parts of the Land, which is much better than ten thousand marks. It cannot be thought to be his meaning to give them any share of his Movables also, but that the half thereof, which was at his disposal, should belong to the eldest Daughter without burden. Which the Lords found Relevant, and declared the same to belong to the eldest Daughter, without burden of the Provisions. Alexander Ferguson contra Parochioners of Kingarth. Eodem die. ALexander Ferguson being one of the Prebands of the Chapel-Royal, by His Majesty's Presentation and Collation, pursues the Heretors of the Paroch of Kingarth for the Teinds, as being annexed to the Chappel-Royal, as appears by the Books of Assumption, and three Presentations from the King produced. Compearance is made for the Minister of Rothsay, who alleged that he had Presentation to the Kirk of Kingarth from the King, and Collation thereupon, and so had best right to the Teinds of his Paroch, because de jure communi decima debentur p●rocho, and as for the Pursuer, he shows no Right by any Mortification of these Teinds to the Chappel-Royal; Neither can he make it appear, that ever he, or any other Prebander were in Possession civil or natural thereof. 2dly, Albeit the Prebanders had had a Right, the same is now taken off by Prescription, because it is offered to be proven, that the Minister hath been 40. years in peaceable Possession, before the Pursuers Citation, which not only takes away the bygones, but the whole Right, and establishes the same in the Minister's person. The Lords found the Books of Assumption, and the three Presentations from the King, sufficient to instruct the Pursuers Title, and found the Defense of Prescription Relevant, as to the bygones before the Citation, but not to Establish the Right in the Minister, or to take it from the Chappel-Royal, as to years after the Citation, and in time coming, in respect of the Act of Parliament, providing that the King's Interest shall not be prejudged by the neglect of His Officers. Blair of Bagillo contra Blair of Denhead. February 3. 1671. BLair of Bagillo having granted Bond to Blair of Denhead, he did Assign the same to Guthrie of Collistoun. Bagilio raised Suspension against Collistoun as assignee, in Anno 1632. and now Collistoun insists in a Transferring of the old Suspension and Decreet Suspended against Bagillo's Heirs, to the effect the Cautioner in the Suspension may be reached. It was alleged no Transference, because Bagillo ●s Father obtained a general Discharge from Denhead, before any Intimation upon Collistouns Assignation; and albeit the Discharge be posterior to the Assignation produced, it must liberat the Debtor, who was not obliged to know the assignee before Intimation. It was answered, that the Debtor might pay to the Cedent bona fide, before Intimation: yet a Discharge obtained from the Cedent after Assignation, would not liberate against the assignee, though it were before Intimation: and this general Discharge bears no onerous Cause. 2dly, This general Discharge being only of all Processes and Debts betwixt Bagillo and Denhead, at that time, it cannot extend to this sum assigned by Denhead long before, and who could not know whether the assignee had intimate or not, and cannot be thought contrair the Warrandice of his own Assignation, to have Discharged the sum Assigned, especially seeing there was an Assignation long before, which was lost, and the Intimation thereof yet remains▪ and this second Assignation bears to have been made in respect of the loss of the former, and yet it is also before this general Discharge. The Lords found the general Discharge of the Cedent could not take away this sum, formerly assigned to him, though not Intimat, unless it were proven that payment or satisfaction was truly made for this Sum. Alexander Wishart contra Elizabeth Arthure. February 4. 1671. UMquhil Mr. William Arthure being Infeft in an Annualrent out of some Tenements in Edinburgh, and having entered in Possession, by lifting of Mails and Duties, some of his Discharges being produced. Alexander Wishart as now having right to the Tenements, pursues a Declarator against Elizabeth Arthure, only Daughter to Mr. William, for declaring that the sum whereupon the Annualrent was Constitute, was satisfied by Intromission with the Mails and Duties of the Tenements. The Defender alleged that this was only probable scripto vel juramento, and not by Witnesses, for an Annualrenter having no Title to Possess, out-put and in-put Tenants, cannot be presumed to uplift more than his annualrent, especially seeing his Discharges produced for many years, are far within his annualrent, and it were of dangerous consequence, if Witnesses, who cannot prove an hundreth pounds, were admitted, not only to prove Intromission with the Rents, so far as might extend to the Annualrent, but so much more as might satisfy the Principal, and thereby take away an Infeftment: for albeit that Probation has been Sustained to extinguish Appryzing, which are rigorous Rights, yet not to take away Infeftments of Annualrent. It was answered, that albeit Witnesses are not admitted where Writ may, and uses to be adhibite, in odium negligentis, who neglected to take Writ: Yet this is no such case; and therefore in all such, Witnesses are admitted: for if the Pursuer had insisted against the Defender, for intrometting with his Mails and Duties, of whatever quantity and time within Prescription, Witnesses would have been admitted: The Defender could only have excepted upon his Annualrent, which would have been Sustained, pro tanto; but the Pursuer would have been admitted to prove further intromission, which being by virtue of his Security for a Sum, and in his hand would Compense and Extinguish that Sum, which is all that is here craved, and whereupon the Witnesses are already Adduced. The Lords Sustained the Probation by Witnesses, for the whole intromission, to be imputed in satisfaction of the Principal Sum and Annualrents. Lowrie contra Gibson. Eodem die. LOwrie being Superior to Gibson in a Feu, pursued him before the Sheriff, for annulling his Feu, for not payment of the Feu-duty, and obtained Decreet against him, and thereafter Pursued him before the Lords for Mails and Duties, wherein Compearance being made, Gibson made an offer, that if Lowrie would free him of bygones, and pay him 1600. marks, he and his Author would Dispone their whole Right, which being accepted by the Superior, Decreet was pronounced against Gibson, to denude himself upon payment: Shortly thereafter, Gibson drew up a Disposition, and Subscribed it in the Terms of the Decreet, and offered it to Lowrie, who refused it, because his Author had not Subscribed. Thereafter Gibson Suspended upon Obedience, and Consigned the Disposition which was never Discussed; but Gibson continued in Possession still from the Decreet, which was in Anno 1650. Now Gibson raises a Reduction of the Sheriffs Decreet of Declarator, annulling his Feu, because the Sheriff was not a competent Judge to such Processes, and because Gibson had offered the Feu-duty, which was refused, so that the not payment was not through his fault: and also insisted for Reduction of the Lords Decreet, as built upon the Sheriffs Decreet, and falling in consequence therewith. And as for any offer or consent, the assertion of a Clerk could not instruct the same, unless it had been warranted by the Parties Subscription. It was answered, that Gibson having Homologate the Decreet, by an offer of the Disposition, conform thereto, which was only refused, because it wanted the Author's Subscription; and having Suspended upon Obedience, he cannot now object, either against the Decreets or Consent. It was answered, that so long as the Decreets of the Sheriff and the Lords were standing, Gibson might be compelled thereby to Consign the said Disposition; but that is only on these Terms, to be given up if the Lords saw Cause; and hinders not Gibson to allege, why it should not be given up. And as to the offer to deliver the Disposition, the Instrument of the Nottar could not instruct the same, but only Gibson's own Oath. The Lords found that albeit the Consignation for the Suspension would not have prejudged Gibson, yet the simple offer to deliver the Disposition, did so Homologate the Decreets and Consent, that he could not quarrel the same; but they found it not proven by the Instrument, without the Oaths of the Witnesses insert in the Instrument: And in regard that Lowrie had let the matterly over for more than twenty years, they Declared that the Agreement should only take effect from this time, and that Gibson should not be comptable for the bygone Duties. Ninian Home contra Francis Scot February 7. 1671. NInian Hume having Charged Francis Scot upon a Bond of 550. marks; He Suspends on this Reason, that both Parties having referred the matter verbally to an Arbiter, he had determined 200. marks to be paid for all, whereupon Hume had pursued. It was answered, that verbal Submissions and Decreets Arbitral are not binding, but either Party may resile before Writ be adhibite. The Lords found the Reason was Relevant to be proven thus, by the Chargers Oath that he did submit; and by the Arbiters Oaths, that they did accordingly determine. Lowrie of Blackwood contra Sir John Drummond. Eodem die. SIr Robert Drummond of Meidhope having Disponed his Lands of Scotstoun to Sir john Drummond, for love and favour, and for better encouraging Sir john to pay his Debt, as the Disposition bears, and under Reversion of a Rosenoble to Sir Robert in his own Life. Mr. John Drummond Sir Robert's appearand Heir, grants a Bond to Lowrie of Blackwood, whereupon he Adjudges the Land from the appearand Heir, and pursues a Reduction of the Disposition, as done on Deathbed. In which Pursuit Witnesses were appointed to be Examined, hinc inde, concerning Sir Robert's condition, when he made the Disposition, and thereafter till his Death; the sum of the Probation was, that before the Disposition Sir Robert had contracted an Apoplexy, whereby he remained senseless for a time, but by Cure there remained a Palsy in his Tongue, and a Vertigo in his Head, which continued till his Death, and about a year after that the sickness affected his Brain, so that he lost the remembrance of Names of things, and most of the Witnesses Depones, that he was not found thereafter in his Judgement, but that he keeped on his clothes, and was not affixed to his Bed, and went frequently and walked in his Garden, and to the Courthill, half a pair of Butts off; and one of the Witnesses Deponed, that he came to his House alone, a quarter of a mile off: but that he went never to the Kirk nor Mercat, nor any public place: Whereupon it was alleged for the Defender, that the Defunct continued in health at and after the Disposition, and that his going so frequently abroad, was equivalent to his going to Kirk and Mercat, which was sufficient to eleid the Reason of Deathbed, and that the Palsy being but in his Tongue, albeit he misnamed things, it did not import his being on Deathbed, especially seeing he Disponed for payment of his Debt, equivalent to the worth of the Land, his Disposition being to a Friend of his Name, who Relieved him of his Debt, his Heir not being his Son, nor Descendent, and uncapable to Relieve him of his Debt. It was answered, that the contracting of his sickness being sufficiently proven to be before this Disposition, and the continuance thereof to affect his Brain, in that case nothing could purge the same, but his going to Kirk and Mercat, which were the acts required in Law, and could not be supplied by his going privately abroad, and not to any popular public meeting; and as to his Debts they could not validat the Disposition by exception, though the Defender might by way of action affect therewith the Estate, or Burden the Heir, on whose Bond it was adjudged, especially seeing the Disposition buir for Love and Favour, and Redeemable for a Rose-noble. The Lords found the Reason of Deathbed sufficiently proven, and that his private going abroad (though unsupported) was not equivalent to going abroad to Kirk and Mercat, or public meeting, where the Disease continued to affect the Brain; But they found the paying of Debts equivalent to the worth of the Land Relevant by way of exception, in regard the Disposition buir to be for payment of his Debt. Mr. john Wat contra Campbel of Kilpont, Feb. 8. 1671. SIr Archibald Campbel being Debtor to Adam Wat in a Sum of Money, he did thereafter Contract his Son Mr. Archibald in Marriage with Thomas Moodies Daughter, and by the Contract Thomas Moodie acknowledges the Receipt of forty thousand Pound from Sir Archibald, and is obliged for twenty thousand Marks of Tocher, all to be employed for Mr. Archibald in Fee; but Thomas Moodies Daughter Dying, and leaving no Children behind her, Thomas Moodie did restore the Sums, and there is a Discharge granted by Sir Archibald and his Spouse, and Mr. Archibald bearing them to have Received the Sums, and to have Discharged the same; Whereupon Mr. john Wat as Heir to Adam, pursues Mr. Archibald to pay him the Sum due to his Father, upon this ground, that he having Received forty thousand Pounds of his Father's Means, after Contracting of the Debt, aught to make so much of it forthcoming as will pay the Pursuer; which Action was founded upon the Act of Parliament, 1621. whereby all Deeds done by Debtors in prejudice of their Creditors, without a Cause Onerous are declared null, and all Parties that by virtue thereof Intromets, are declared liable to restore to the Creditors. It was answered for the Defender; First, That the Libel was not Relevant, there being no part of the Act of Parliament 1621. that Incapacitats Debtors to Gift or Dispone Sums of Money, or Movables, especially if the Disponer at that time be not insolvent, but have a sufficient Estate for satisfying his Debt; and it is offered to be proven, that Sir Archibald had at the time of this Contract a sufficient Estate for all his Debt, in the hands of the Earl of Argile and Glenorchie; and albeit by the superveening Forefaulture, Argiles Debt be insufficient, it was a good Debt the time of the Contract, so that there can be no ground to make a Child liable to Restore a Portion given by a Father who was solvent. 2dly, Albeit the Defender could be liable, if it were clear that he had the Sum foresaid by his Father yet remaining to the fore, yet if it had been lost or spent before the Intenting of this Cause, he or any subsequent Estate acquired aliunde is not liable, ita est anything he has is a Wodset of forty thousand Marks on Kilpont, and the two Tochers he had viz. twenty thousand Marks from Thomas Moodie, and ten thousand Marks of Legacy, and twelve thousand Mark of Tocher with Sir William Gray's Daughter, was sufficient to acquire the Right of Kilpont, without any thing from his Father. 3dly, The Discharge produced cannot instruct that Mr. Archibald Received the Money, because it bears indefinitely that payment was made to Sir Archibald and his Spouse, and to Mr. Archibald, and all of them do Discharge. The Pursuer answered, that the Libel was very Relevant, for whatsoever might be alleged of Bairns Portions by a solvent Father, yet this being so considerable a Fortune provided to the only Son, and appearand Heir, if it did not make him liable to satisfy the Father's Debt pro tanto, it were a patent way to defraud all Creditors and elude the Act of Parliament, for the Father might Sell his Estate, and provide the Moneys in this manner; and as to the Discharge, albeit it be indefinite, yet it must be presumed that Mr. Archibald Received the Sums, because they belong to him in Fee by the Contract of Marriage. The Lords found the Libel Relevant, and that the Discharge produced did presume that Mr. Archibald the Feear did Receive the Money, but seeing the Probation was not express, but presumptive, they allowed Mr. Archibald to condescend upon what Evidences he could give, that the Money or Surety thereof was Delivered to his Father. john Will contra The Town of Kirkaldy, Feb. 11. 1671. JOhn Will pursues the Magistrates of Kirkaldy for paying the Debt of a Person Incarcerat in their Tolbooth, who was let escape by them. It was alleged for the Town, that the Person Incarcerat had escaped vi majore, and that they had not failed in their duty, having had a sufficient Tolbooth, having four Doors, and the inmost an Iron Door, and that all being Locked; the Person Incarcerat having gotten secretly conveyed in some Mason or wright's Tools, had in the night broken all the Locks, and escaped. It was answered, that the Defense was not Relevant, neither had the Magistrates done their duty and diligence, for they ought to have had Chains, and Cat-bands upon the utter-sides of the Doors, with Locks thereon, unto which the Incarcerat Person could not reach; and it was alike how many Doors they had upon the Tolbooth, with their Locks inward, for the same means that would break up one, would break up twenty, and if such a pretence should liberat the Magistrates, it were an easy way to elide all Captions, and let all Persons for Debt free. It was answered for the Town, that the having of Cat-bands without, Closed and Locked, was not the custom of their Tolbooth, who past all memory did never Lock the outward Chains but upon Malefactors, and such is the custom of Edinburgh, and other burgh's of Scotland. The Lords having before answer, ordained Witnesses to be Examined on both parts, anent the condition of the Tolbooth, and finding thereby that there was no Cat-bands or outward Chains Locked when this Prisoner escaped, they found the Magistrates had not done their duty, and so Discerned against them. Alexander Naper contra The Earl of Eglintoun, Feb. 14. 1671. THere was a Bond granted by the Laird of Minto as principal, Lugtoun james Creichtoun, and the Earl of Eglintoun Cautioners, in Anno 1641. to Adam Naper and his Spouse in Conjunct Fee; Alexander Naper as Heir to his Father, pursues this Earl of Eglintoun as Heir to his Father for payment, who alleged Absolvitor, because Minto having Disponed his Estate to his Son, under express Provision to pay the Debt, the same was satisfied by Minto younger, and was retired lying by him a long time, or by Robert Vrie, who had the Trust of Minto's Affairs and Writs, and Minto younger being lapsus bonis, and Robert Vrie being dead, the Pursuer had either practised with Minto upon his necessity, or upon Robert Vries Friends to give him back the Bond, and for evidence that the Bond has been satisfied and retired. First, It had lain dormant above this thirty years, without either payment of Annualrent, or any Diligence. 2dly, The late Earl of Eglintoun being Forefault by the Usurpers, his Creditors were appointed to give in their Claims, or else to be excluded, and yet no Claim was given in for this Debt, and therefore craved that Witnesses might be Examined ex ●fficio for proving of the points foresaid. The Pursuer answered, that it was an uncontroverted principle in our Law, that Witnesses could not prove payment of any Debt due by writ, nor take the same away; and as to the pretences adduced by the Defender, they import nothing, for the delay of seeking payment or Claiming the Sum, was because the said Adam Naper was with Montrose in the War, and his Heir remained a Minor, and his Wife was Married to another Husband. The Defender answered, that the Wife was Liferenter of the Sum, and she and her second Husband would certainly have sought her Annualrent, or Claimed the Sum, which takes off the excuse of the Pursuers Minority; and albeit Writ be not taken away by Witnesses ordinarily, yet where the matter is so ancient, and the Evidences so pregnant, the Lords uses not to refuse to Examine Witnesses ex officio. The Lords ex officio ordained Witnesses to be Examined anent the being of the Bond in the Custody of Minto, or his Doers, being a matter of Fact, but would not Examine them anent the payment made thereof. George Bain contra The Bailzies of Culrosse, Eodem die. GEorge Bain pursues the Bailzies of Culrosse for payment of the Debt of a Rebel, whom they had suffered to go free up and down their Streets, whereupon he had taken Instruments against them, and protested that they should be liable for the Debt; seeing squalor carceris is justly introduced against Debtors that will not pay their Debt, and the Magistrates of burgh's may not take it off in whole or in part, and produced a Practic observed by Durie upon the 27. of March 1623. Smith against the Bailzies of Elgine, where the Prisoner being suffered to walk freely upon the Streets, till he obtained a Charge to set to Liberty, the Magistrates were found liable. The Defender alleged Absolvitor, because he offers to prove that this Prisoner's going out was necessary, viz. He being a Person altogether Indigent, was permitted sometimes to go and mendicat his Bread, and once to go to the Burial of a Child of his own, and immediately thereafter; the Pursuers having taken Instruments, the Rebel was put in Waird, and continued there till he Died. Which the Lords found Relevant to Liberat the Burgh. Apilgirth contra Locarbie. Eodem die. IN a Compt and Reckoning at the instance of Apilgirth, for declaring two Apprizing Led by Lockerbie satisfied, this Query was moved by the Auditor, whether a Sum Consigned by umquhile Apilgirth, for Redeeming a part of the Lands Wodset to Lockerbie, conform to the Reversion in the Wodset, might be proven to be uplifted by Apilgirth from the Consignator, by the Oath of the Consignator, and of the Clerk of the Process who Received the Money, or only by Writ, Apilgirth the Consignator being Dead. The Lords considering that it was ordinar to take up Sums Consigned for Redemption of Wodsets, being upon the peril of the Consigner, did appoint the Oath of the Consignator and Clerk to be taken, for proving that the Money was taken up by Apilgirth from the Consignator, and that Apilgirth and not the Consignator put it in the Clerks hands, and that the Clerk gave it up again to Apilgirth. The Earl of Argile contra The Laird of Mcnaughtan. Feb. 15. 1671. THe Earl of Argile pursues the Laird of Mcnaughtan to Remove from the Lands of Benbowie, as being a part of the Earls Barony of Lo●how. The Defender alleged Absolvitor, because he pr●duces a Seizing, dated in Anno 1527. proceeding upon a Precept of clare constat from the Earl of Argile, in favours of Alexander Mcnaughtan as Heir to Giller Mcnaughtan, of the four Mark Land of Benbowie, by virtue whereof, the said Alexander and his Successors to this day have Possessed, and so have a sufficient Defense upon prescription by the Act of Parliament 1617. anent prescription. The Pursuer answered, that the Defense is not Relevant, as it is founded upon the naked Seizing only, because by the said Act of Parliament there is required to all prescriptions of Land a Title in Writ, preceding the 40. years' Possession, which Title is distinguished in two cases; First, In relation to Rights acquired titulo singlari, whereunto is required not only a Seizing, but a Charter, which although they may be excluded by an anterior or better Right, yet if Possession hath been had thereafter, for the space of forty years' uninterrupted, it becomes an unquestionable Right, and all other Rights are excluded. But, Secondly, A greater favour is shown as to the Title of prescription of Lands belonging to any Party titulo universali as Heirs to their Predecessors, in which their is no Charter required, but Seisings one or moe continued, and standing together for the space of forty years, either proceeding upon Retours, or upon Precepts of clare constat, so that the Seizing in question proceeding upon a Precept of clare constat cannot be a sufficient Title for prescription, unless the Precept of clare constat ●which is the Warrant thereof were produced. 2dly, The said provision of the Act requires that the Seizing one or more must stand, and be continued for the space of forty years, which cannot be alleged in this case, because by the Defenders production it is clear that the said Alexander Mcnaughtan, to whom the Seizing was granted, Lived not for forty years after the Seizing, so that unless his Heir had been entered, and had Possessed by virtue of the Heirs Seizing to perfect the forty years, the Defense of prescription is not Relevantly alleged. The Defender answered, that his Defense of prescription stands Relevant upon this one Seizing only; and he oppones the foresaid Clause in the Act of Parliament where an Heirs Title of prescription, is a Seizing proceeding upon a Retour or Precept of clare constat, and does not mention that the Seizing and Precept shall be a sufficient Title, as it does in the case of Lands acquired, where it expressly requireth both a Charter and Seizing, and it had been as easy in this Clause to have required a Seizing, and Retour or Precept, whereas it doth only require a Seizing on a Retour or Precept, so that the Seizing relating the Retour or Precept is sufficient, and by long course of time sufficiently instructs the being of the Retour or Precept. As to the second answer, the meaning of the Act of Parliament by a Seizing one or moe standing together, is that the said Seizing be not Reduced, for our Law doth ordinarily oppose standing and falling by Reduction, so that albeit the Party Seized Died within forty years after the Seizing, his appearand Heir continued his Possession, and being one Person in Law with him, did Possess by his Seizing, and if it were otherewise understood, many absurdities would follow; for if a Person were Infeft as Heir, and did Possess thirty nine years, thereafter Dying, then if his Heir were not Infeft within the year, he should have no Title of prescription, though within the forty year six Heirs consequently were Infeft, all their six Seisings with thirty nine years' Possession, though their appearand Heir should continue an hundreth years thereafter in Possession, would not induce prescription, yea, taking the Act Literally, it can never have effect, unless the Heir Infeft Live and Possess after his Infeftment forty years, which is very rare, for if there be more Heirs that Succeed, there must be still an intervale betwixt the Death of the one, and the Seizing of the other, and so the Seisings could not be said to be continued, but discontinued or interrupted, for Possession is not continued, if the Possessor cease to Possess one year, so that prescription being of common Interest and Advantage to the Liege's, the same aught to be ampliate in the interpretation thereof, and not straitened. The Pursuer answered, that he opponed the clear words of the Act of Parliament, which does not only require forty years continual Possession, but also that it be by Seisings standing, continuing together forty years, and that upon very solid Reason, for if both Charter and Seizing be required for a Title to prescription in Rights acquired: It cannot be imagined that an single Seizing should be sufficient in Rights devolved by Succession, without requiring any thing in place of the Charter, so that if neither the Precept nor Retour be required, nor yet the continuance of the Seizing, either standing in the Person of the first Heir, or renewed in the Persons of the subsequent Heirs, which certainly is of purpose put to astruct the Right in place of a Charter, or other Adminicle of the Seizing, and therefore the standing of the Seising is not here opposed to their being Reduced, but their falling by the Death of the Person Infeft, whereby according to the ordinar Terms of Law, the Fee falleth in Waird or Nonentry in the hands of the Superior; neither can a subsequent Heir Possess by the Seizing of a prior Heir, because Seisings are not given to Heirs, but to the individual Person Seized; but Charters and other Rights given to Parties and their Heirs may be a Title to their Heirs to Possess, but not a naked Seizing; and as to the inconvenience, it would be far greater if one single Seizing were sufficient, and would open the Door to all Forgery, after Parties and Witnesses are Dead, but if more Seisings be required, if the first Person Die, it is much more difficult to Forge divers Seising, by divers Nottars, and divers Witnesses, which may be redargued by the Hand-writ of some of the Nottars, or survivance of some of the Witnesses; and what is alleged upon a Seizing continuing thirty nine years, or of six subsequent Seising within that time is easily retorted by consideration of one Seizing, whereby the Party Infeft Lived and Bruiked but a year, whethet that would be a sufficient Title for prescription, or if six consequent Seisings proceeding upon Charters and thirty nine years' Possession, yea, or a hundred years' Possession, all which would make no Title of prescription, unless a Charter were also produced, as is clear by the Act, so we are not to consider equivalencies, but in a Statute must take it as it is made, and not make it; and as for the inconvenience alleged that there must necessarily be intervales, it imports not, for the continuance of Seising is not required to be so exact as the continuance of Possession, but subsequent Heirs being Infeft, albeit there be an intervale, their Seizing as in many other cases will be drawn back to the Death of their Predecessor, if there be no medium impedimentum by any Process intented in the interim; so that at least there must be a Seizing standing when the Possession began, and a Seizing standing when the first forty years is complete, but here there was no Seizing renewed, though there be a hundred years after the first forty years, and a full progress as to all other Lands. The Lords found that there was no necessity to produce, or instruct that there was a Precept or Retour, otherewise then by the relation of the Seizing, but found that a Seizing not having forty years' Possession, by the Life and Bruiking of the Person Seized, and never being renewed in his Successors, is not a suffient Title of prescription, and therefore Repelled the Defense: in this Process the Defender was permitted to allege the Lands in question to be Part and Pertinent of his other Lands, whereof he show a full Progress, and alleged a continual Possession, by doing all Deeds of Property that the Subject was capable of, and the Pursuer alleging that these Lands were severally kend and known from all the Defenders Lands contained in the said Progress, and that he and his Predecessors had exercised all acts of Property that could be done in the case of a Forrestry, such as the Lands in question were, and that after the Defenders alleging on a several Infeftment, by the foresaid Seizing, and so acknowledging these Lands to be separ●●●m ten●mentum, he could not return to allege Part and Pertinent so considerable a tract of Ground, six or seven Miles long, yet the Lords would prefer neither Party to the probation, but before answer ordained either Party to adduce Witnesses anent their Possession, and the several specialties by them alleged, that by the probation the Lords might see the just Interest of either Party, which might resolve into a promiscuous Commonty, or into a Property to the one, and a Pasturage or other Servitude to the other. Marion Dods contra Laurence Scot Feb. 16. 1671. BY Contract of Marriage betwixt james Scot and Marion Dods, Marion is obliged to pay in Tocher a thousand pound to the said james at the next Candlemass, and the said james is obliged to employ the same to him and her in Conjunct Fee, and to the Heirs of the Marriage, which failzing to her Heirs, and james having Died without Children; the said Marion pursues Laurence Scot as his Heir, to employ the Sum conform to the said obligement, who alleged Absolvitor, because the Pursuer has yet the Tocher in her own hand, unless she can show a Discharge. It was answered, First, That the Parties having lived together 22. years, it must be presumed that the Husband was paid, and had the Custody of the Discharge. 2dly. The Husband by his Testament acknowledges that the Sum was paid. It was answered, that this written Obligation cannot be taken away by such a presumption, and the Assertion of the Defunct in the Testament, has been procured by the Wife's importunity in her Husband's weakness, and however cannot prejudge the Heir, and can import no more then as legatum liberationis, which can only affect the Deads-part of the free Geir. The Lords found the presumption with the acknowledgement in the Testament a sufficient payment of the Tocher, against all Parties having interest. William Gordon contra Sir Alexander Mcculloch of Ardual. February, 17. 1671. WIlliam Gordon as Donator to the Recognition of the Barony of Cardines, by alienation of the Major part thereof, pursues a Declarator of the Recognition against Sir Alexander Mcculloch, who stands now Infeft therein, who alleged no Process, because the Pursuer produces no Charter to show the Lands to hold Waird, neither doth he produce the Infeftments Libelled, by which the Recognition is alleged to be procured, and if he shall get a Term to prove, and so Litiscontestation be made, the Defender will either be excluded from his Defences, which he cannot propone or know before he see the Infeftments, or otherwise two Litiscontestations may be in the same Cause, by admitting of exceptions after the Term, and albeit these Infeftments be not the Pursuers own Writs, yet he ought to have used an incident upon his Summons, to have compelled the haver's to produce the same, and so before Litiscontestation, the Defender might have proponed his Defense. It was answered, that the Pursuer is obliged to produce no more in initio litis then his Gift of Recognition from the King, for the Law presumeth that the King is Superior, and that the Lands are Waird, unless the Defender offer to prove the contrare. As for the Infeftments, whereby Recognition is incurred, they are not the Pursuers Title, but media concludendi▪ which he may produce ad modum probationis. The Lords Sustained the Process, and assigned a Term to prove the Infeftments Libelled for inferring the Recognition, and reserved all the Defenders Defences after the production thereof, in the same manner as if they were now produced. Mrs. Katharin Mcgil contra The Viscount of Oxenfoord. Eodem die. THe Deceased Viscount of Oxenfoord having named his Son Executor and universal Legator, he gives a Bond of Provision to umquhile Mistress Mary, one of his Daughters, in satisfaction of her Portion natural and Bairns part, there are yet three Children beside the Heir, and the said Mrs. Mary did survive her Father, and in the Compt and Reckoning of his Executory, the three surviving Children claimed half of the Movables as the Bairns part. It was alleged for the Viscount the universal Legator, that a fourth part of the Bairns part behoved to belong to him, which would have belonged to Mrs. Mary, because the Bond granted by the Defunct being in satisfaction of M●ries Bairns part, her Bairns part must come in place of it, and not accresce to the rest of the Bairns, but must belong to him as Executor and universal Legator, especially this Bond being granted on Deathbed, is only effectual as a Legacy, whereby the Defunct did burden his own Deeds part, which can be no otherways understood then thus, that he would make up Mary's Portion to ten thousand Pounds, her Bairns part being in the first end thereof, and it cannot be thought his meaning to exhaust his Deads' part further or to gift any thing to the rest of the Bairns by the accrescence of Mary's part. It was answered, that such Bonds of Provision are most ordinar, bearing it to be in satisfaction of their Bairns part, which has ever been so interpret, that the Portion of the Bairn so satisfied accresceth to the rest of the Bairns, and it was never heard that the Heir or Executor burdened with such Bonds of Provision, did thereupon recur to seek that share of the Bairns part, which was satisfied by the Bond of Provision, neither is there any odds whether the Provision were by Legacy or Bond, for the Reason of recourse being, because the Heir or Executor is burdened to satisfy that Bairn, and so in either case doth claim the share of that Bairn, neither was it ever so understood, that Father's granting such Bonds of Provision, did not thereby leave entire the Bairns part to the remanent Bairns. The Lords found that Mrs. Mary's share of her Bairns part did accresce to the rest of the Bairns, and did not belong to the Executor either as a part, or in place of any part of the ten thousand pound, but the 'samine did solely burden the Deads' part. Agnes Dundasse contra The Laird of Ardrosse, and the Laird of Touch. February 18. 1671. THe Laird of Ardrosse having granted Bond to umquhile Mr. Henry Mauld and his Spouse, and their Heirs, of 8000. Marks, and after his Decease he granted a Bond to the Relict, bearing to have borrowed two thousand Marks from her, and obliging him to pay the same to her in Liferent, for her Liferent use only, and after her Decease to William Mauld her Son, and his Heirs; and another Bond, bearing him to have Received from the Relict a thousand Marks in name of Henry Mauld her Son, and obliging him to pay to the said Henry and his Heirs; and after all he granted a Bond of ten thousand Marks to the Relict, her Heirs and Assigneys, which was made up of what remained due of all the three, this Bond the Relict Assigned to the Laird of Touch, who having Charged Ardrosse, and he having Suspended, there arose a Competition betwixt Touch as assignee, and Agnes Dundasse as Heir and Executrix to Mr. Henry, William, and Henry Maulds, and thereupon a division of the Sums betwixt the Parties; thereafter Agnes Dundasse pursues Ardrosse to make payment to her as Heir and Executrix to William and Henry Maulds, of two thousand Marks, which he was Addebted to the said William, and of one thousand he was Addebted to the said Henry; Whereupon he hath Deponed that he was Debtor by all the said's Bonds before related, and no otherways, and that in the former Decreet by mistake it was expressed, that the ten thousand Marks Bond was made up of the eight thousand Marks Bond, and of two thousand Marks of Annualrent thereof, whereas the truth was, it was made up by what was resting of the two Bonds due to William and Henry, which he produced canceled of the Tenor foresaid. It was alleged for Agnes Dundasse, that the Sums of these Bonds behoved only to belong to her as Heir and Executrix to William and Henry Maulds, and not to Touch as assignee by the Relict. It was answered, First. That the said Agnes had Homologat the prior Decreet, and division therein made, by giving Discharges accordingly, could not claim any more. 2dly, Another having taken a Bond in the Name of her two Sons, being Bairns in her Family, might lawfully alter the same at her pleasure, there being nothing more ordinar than that Fathers gives Bonds of Provision to their Children, or takes Bonds from their Creditors in their Names, yet these being never Delivered, the Parents may Dispose of them at their pleasure. It was answered for the Executrix, that the alleadgeance of Homologation is not Relevant, because it is Emergent by Ardrosse his Oath, that the ten thousand marks Bond, was not made up by the Annualrent, but by the said two Bonds, so that there could be no Homologation of that, whereof the Executrix was excusably ignorant. To the second, That albeit Father's granting Bonds of Provision in Name of their Children, may alter the same at any time before Delivery: Yet where they lend out the Sum to a Creditor, and take him obliged to a Child in Fee that cannot be altered, especially where the Parent is naked Liferenter, and hath not reserved a power to lift and Dispone; but whatsoever be in the case of a Father providing his Children, who can by no presumption be thought to have any Means; yet after the Father's Death, a Mother taking a Bond in the Name of a Bairn, it must be presumed to be the Bairn● Money, coming by the Father or otherwise, and the Mother having stated herself naked Liferentrix in the one Bond, and having no interest in the other Bond, she could not recall or alter the same in prejudice of the Children, especially seeing they were Infants, and had not Tutors to care for them. It was answered, that the Mother had held count for the whole Means of the Father, and so had cleared any presumption that their Bo●●s could be of his Means, but she Liferented the whole Estate, and made up their Bonds out of the Rents and Annualrents, and denied to be Tutrix, or Protutrix, so that the Money being freely her own, and her Children having died before her,, she might warrantably alter the Bond. The Lords found that the Mother could not alter the Bonds taken in favours of her Children from a Debtor, being of the Tenors above-written, wherein she was naked Liferenter of the one, and had not so much as a Liferent of the other, and that the Sums were rather presumed to be of the Bairns Means then her own, seeing they had no Tutor, and any meddling with their Means was by herself, and that their Executrix could not now be put to instruct what Means they had, or be countable thereupon. john Armour contra james Lands. February 21. 1671. IOhn Armour pursues his Tenants of some Tenements in Edinburgh, for Meals and Duties. Compearance is made for james Lands, who produces a Bond granted by umquhil George Armour, bearing that George Armour as Tutor Testamentar to john Armour, had borrowed 500 marks from james Lands, and obliges him, his Heirs, Executors and Assigneys, to repay the same, and thereby sets some of the said's Tenements to james Lands, ay and while he be satisfied of the 500 marks, and thereupon alleadges he must be preferred to the Mails and Duties till he be paid. It was answered, this Bond and Tack were not sufficient, in respect he does not bind himself as Tutor, nor the Pupil, but his own Executor and Assigneys, and so it must be the Tutors own Debt. 2dly, This Debt cannot burden the Pupil simply upon the Assertion of the Tutor; but the Creditor ought to have seen the Sum applied to the Pupils use: and therefore must yet allege in rem versam. Otherways, if the naked Assertion of Tutors may burden the Pupils, when they borrow their Name, it is a patent way to destroy all Pupils, Tutors being oftimes insolvent. 3dly, The Tutor could not set a Tack of the Pupils Lands, Longer than he had Interest as Tutor, Ita est, the Tutory is ceased by the Tutor's Death. The Lords found that this Creditor behoved to instruct the Sum applied to the Pupils behoove, which being proven, they Sustained the Tack. Alexander Pit●●irn contra February 22. 1671. ALexander Pitcairn having Right by progress to a Wodset granted by james Kininmouth to Mr. james Gordoun, and by him Disponed to Sir Archibald Sydserf, and by him to the Pursuer, pursues the Tenants for Mails and Duties, who alleged that Gordoun or Sydserf were satisfied by intromission with the Rents, for which they were comptable. It was Replied, that Sir Archibald Sydserf had obtained Declarator of the expyring of the Reversion, and was neither Countable nor Redeemable, and for proving thereof, produced the Decreet of Declarator, in Anno 1637. against which it was objected, that it was null, because albeit the Libel was upon a Clause irritant, whereby it is provided, if the Money were required, and not paid within such a time, the Reversion should expire; yet at the Compearance and Production, there is no mention thereof, albeit at the Conclusion, the Decreet bears, because the Libel was sufficiently proven by Production of the Writs aforesaid, which can be only understood of the Writs in the Production, and it is not enough only that they were libelled upon; for in all Decreets, the whole production is specially insert. It was answered, that the Requisition was truly produced, and that the omission of the Clerk to repeat it in the Production cannot annul the Decreet after so long a time without a Reduction thereof. It was answered, that albeit in favorabilibus, the Lords may supply Defects upon Production, ex post facto: yet in odiosis, such as Clauses irritant of Reversions, the Lords ought not to admit the same. The Lords found the Decreet of Declarator null. Sir David Dumbar of Baldoun contra David Dick and others. February 22. 1671. BAldoun pursues ●he Tenants of Bombie for Mails and Duties. Compearance is made for David Dick, who produced an Apprizing of the said's Lands, against the Lord Kirkcudbright, within year and day of the Pursuers apprizing, and craves to come in pari passu with the Pursuer, conform to the Act 1661. anent Creditor and Debtor. It was answered that by the same Act it is provided, that where Comprizing are acquired by the appearand Heir, or to his behoof, that the same should be satisfiable for such Sums as the appearand Heir paid, and offers to satisfy the same. It was answered, that albeit the Act doth so provide, as to the Estate that might belong to the appearand Heir, it can extend no further. But this apprizing is not only of the Estate of Orchartoun, but of the Estate of Kirkcudbright, wherein Sir Robert Maxwel, appearand Heir of Orchartoun hath no interest, the apprizing must be valide as to that. It was answered, that Kirkcudbright was but Cautioner for Orchartoun, and that the Act bears, that such Appryzing shall be satisfied by what the appearand Heir paid: and such Appryzing being satisfied, it is simply extinct and can have no effect. Which the Lords found Relevant, and seeing David Dicks apprizing is Assigned to Sir Roberts own Brother, the Lords allowed Witnesses, ex officio; to be adduced, for proving that it was for Sir Robert's behoof. William Gordoun contra Sir Alexander Mcculloch. Eodem die. WIlliam Gordoun pursues Sir Alexander Mcculloch for Spuilzying of certain Corns: Who alleged Absolvitor, because the Defender having right by apprizing to the Lands whereon the Corns grew, did warn the Pursuer, and obtained Decreet of Removing against him; and thereupon dispossessed him, and finding the Cropped upon the Ground, he might lawfully intromet therewith, nam sata cedunt solo, especially where the Sour is in mala fide; but here he was in Violence after a Warning, and did continue to Sow after Decreet of Removing: yea a part was Sown after he was Dispossessed by Letters of Ejection. The Pursuer answered, that by the Law and Custom of Scotland, the Cropped of Corns, or industrial Fruits are never accounted as pars soli, or any accessary, but are still movable, even when they are growing, so that they belong not to the Heir, but to the Executor; and in case of a Disposition, without mention of the Cropped, albeit the Acquirer were Infeft after they were Sown, and upon the Ground, he would not have Right thereto, neither doth mala fides, or violent Possession alter the case, for which the Law hath provided a special Remeid, viz. the violent Profits: but it can be no ground to meddle with the Parties Cropped, brevi manu, as accessary to the Ground, for then the Parties should both lose the Cropped, as pars soli, and be liable to the violent profits, neither is there any Ground from the Warning, nor yet from the Decreet of Removing, which was Suspended before it attained full effect, and the Defender continued in Possession of a House upon the Ground, albeit he was put out of the principal House. It was answered that the Decreet had attained full effect before the Suspension, all the Pursuers Goods being off the Ground, and he out of the Mansion-house, wherein the Defender entered; and brought all his Goods upon the Ground: and though the Pursuers Mother being a valitudinary impotent Woman, was suffered to remain in a Coat-house, and the Pursuer with her, upon that account, that imports no continuance of Possession of the Land. The Lords Repelled the Defense as to that part of the Cropped that was Sown before the Appryzer entered by the Letters of Possession, reserving to him the violent Profits for that time: But found the Defense Relevant, as to what the Pursuer did after the Defenders Dispossession; and found the Defender only liable for the Expenses of the Labouring and the Seed, as being eatenus Locupletior factus. Lord justice Clerk contra Mr. john Fairholm. February 23. 1671. THe Earl of Levin being Debtor to Lambertoun in forty thousand marks, and having Infeft him in an Annualrent out of his Lands in security thereof, Mr. john Fairholm did upon a Debt due by Lambertoun Appryze the foresaid heritable Bond and Annualrent, which was holden of the Earl of Levin himself, who was Charged upon the apprizing▪ but unwarrantably to Infeft Fairholm in the Lands, whereas the Annual rent only was apprised, and the Charge should have been to Infeft Fairholm in the Annualrent: thereafter Fairholm did Arrest the bygone Annualrents in the Earl of Levins hands, and after all, did upon a Decreet against Lambertoun, arrest the bygone Rents in Levins hand, and Lambertouns Liferent of the Annualrent having fallen by his being year and day at the Horn, the Justice Clerk as Donator to the Liferent, and as Arrester competing with Fairholm, did allege that Fairholms apprizing being an incomplete Diligence, and no Infeftment nor valide Charge thereon, and having lain over so many years, the Arrester must be preferred, for which he adduced a Practic observed by Dury the 14. of February 1623. Salicots contra Brown, where it was so found: and albeit Fairholm be the prior Arrester, yet he hath done no Diligence upon his Arrestment; whereas the Justice Clerk hath obtained Decreet, and as Donator to the Liferent Escheat, he is preferable for years after the Rebellion, because the Liferent Escheat falling before any Infeftment, or Charge on the apprizing, which was not used within year and day, the Liferent excludes the Appryzer. The Lords found the apprizing preferable to the posterior Arrestment, though no legal Diligence was done thereon for the space of nine years thereafter, in respect the apprizing being a Judicial Assignation, required no Intimation, and being prior, it is preferable: and they did not respect that single Practic, the constant Custom since being contrary: But found the Liferent Escheat preferable to the anterior apprizing, being without Infeftment or Charge, as to the years after the Rebellion, and preferred the Appryzer as to years preceding. Arnold of Barncaple contra Gordoun of Holm. Eodem die. THere being four Cautioners in a Bond, and the principal Debtor having Suspended, and found a Cautioner in the Suspension, who having been Distressed and paid the Debt, and having gotten Assignation from the Creditor, Charges one of the Cautioners in the first Bond, Gordoun of Holm, who Suspends on this Reason, that payment being made by the Cautioner in the Suspension, he can only have recourse against him for whom he was Cautioner, but not against his Cautioners in the principal Bond, for us to them it is all one as if the principal Debtor had paid. 2dly, Though the Cautioner in the Suspension could have access against the Cautioners in the principal Bond; yet all of them being Cautioners for the same Principal, they must bear equal burden, and so he must allow his own fifth part in the same manner, as Cautioners in a Bond of Corroboration, bear equal burden with the Cautioners in the principal Bond. The Lords found that the Cautioner in the Suspension had access against the Cautioners in the principal Bond, he always deducing his own fifth part. Earl of Northesk contra Viscount of Stormond. February 28. 1671. THe Earl of Northesk pursues the Viscount of Stormond on this Ground, that he having sent 100 pound Sterling to London, to the umquhil Viscount of Stormond, to be employed for Household Furniture, the most part thereof was not employed, and for instructing his Libel, produces several missive Letters of the Viscounts, one Holograph, another having an Holograph Postscript, and a third Written with another hand, which did state the Account, and acknowledged the Debt. It was alleged for the Defender, that the only Letter which had any special Probation in it, was the last, which is not Holograph. It was answered, that the Subject Matter being a Sum sent for Furniture, which uses not to be redacted in Writ, the Viscounts Letter Subscribed by him, though not Holograph, is sufficient to prove, for Bills of Exchange so Subscribed, or Letters among Merchant's are sufficient: and this Letter being amongst Noble Persons in such a small particular, which requires not ordinarily Writ, must be of the same force, especially seeing there is also produced two other missives not controverted, which comparatione literarum, are clearly the same with this Letter in question. The Lords found that this Letter, though not Holograph, was a sufficient Instruction, having compared the same with the other not controverted Subscriptions; The Pursuer making Faith, that this is the same Letter which he received from the Deceased Viscount, his Servant, or Messenger. Steil contra Hay of Rattray. june 6. 1671. UMquhil Steil having a Feu of some Aikers of the Barony of Rattray, Chancellor Hay as Superior, and Baron of the Barony, pursued Reduction and Improbation against Steil and other Vassals, and in july 1624. obtained Certification, the Chancellors Right being Transmitted to Doctor Patrick Hay, he accepts of the Feu-duty and gives a Discharge of the year 1624. and thereafter in Anno 1628. having obtained Decreet of Removing against Steils Relict; he by a Transaction with her passes from it, and gives her other Lands in lieu thereof, but without any mention of the Improbation. Steils Heir attains Possession of the said's Aikers of Land; and Hay of Rattray, as now having Right to the Barony, pursues a Removing against Steils Tennent, and obtains Decreet of Removing, without Calling Steil; whereupon Steil pursues Ejection and Intrusion against Hay of Rattray, wherein in respect that Rattrays interest was by a Sentence, though unwarrantably given, without Calling the Tenuents Master. The Lords restricted the Letters to Re-possession and ordinar profits wherein it was alleged for Rattry Absolvitor, because the Defenders Author having obtained Certification in the Improbation, at Chancellor Hays Instance, produces the same, which did evacuate the Pursuers Fathers and Predecessors Right. The Pursuer Replied, First, That the Decreet of Certification produced, was not Relevant, because it was not a Certification in an Improbation, which was not concluded by the Summons, as they are expressed in the Decreet, which bear, That the Writs called for, should be canceled, and declared null, but bears not that the same should make no Faith, or should be declared as False, Forged or Feinzied. 2dly, Doctor Hay the Defenders Author, by accepting of the Feu-duty for a Term after the Decreet, did pass therefrom, and did acknowledge and Homologate the Pursuers Right, and did acknowledge the Liferenters Right, by Excambion therewith. The Defender answered, that he opponed his Decreet of Certification, the Decernator whereof, is expressly in the Terms of an Improbation: And likewise the beginning of the Libel▪ being both at the Chancellor and King's Advocats Instance; and at the Compearance, the Pursuer insisted for improving the Writs called for, so that the Repetition of the Conclusion of the Libel, hath been only through Inadvertence, not fully set down. And as to the Discharge of the Feu-duty, First, It is Vitiat in the Date. 2dly, It wants Writer and Witnesses, and albeit it were Holograph, it cannot instruct the true Date, and it can never import a passing from the Improbation further, then for the Term Discharged, especially seeing it was granted by Doctor Hay, who was singular Successor to the Chancellor, and perhaps knew not of the Improbation. The Pursuer answered, that the Certification being granted in absence, the Obtainer thereof might frame it as he pleased; but it cannot be supposed to be truly better than as it stands: and though Improbations being in absence, are very much adhered to, yet they are odious Rights and very Reduceable upon any Defect or Informality, seeing it is formality that gives them all their strength. And as to the Discharge, the Date of it hath been altered at the Subscription by the Subscribers hand, as appears by comparing the Date and Subscription. 2dly, In the very Body of the Discharge, no ways altered, it bears to Discharge the year 1624. after the Certification, and the Discharge as it stands, is in the ordinar way as Discharges uses to be given to Tenants and Vassals, for small Feu-duties, and therefore must be sufficient in a case so favourable for the Pursuer who has a clear Right, and should not be elided by this dubious Certification, which must be restricted to a Certification in a Reduction, which is only Reducing the Rights till they be produced, and so falls, they being now produced. The Lords Repelled the Defense upon the Certification, in respect of the Reply, and Discharge produced, and Discerned the Defender to Repossess the Pursuer; but assoiled him from the bygone Profits, seeing he Possessed by a Title, and had just Reason to Defend in a matter so dubious. Sir William Stuart of Kirkhil contra Sir George Mckenzie and Kettlestoun. june 8. 1671. SIr William Stuart as Heir by progress to Sir Lewis Stuart, his Goodsire pursues Improbation of a Bond, bearing to be granted to Mr. john Stuart of Kettlestoun, his Son granting an Annuity of 3000. marks yearly during his life, and some other Provisions: Which Bond is Assigned by Keitlestoun to Sir George Mckenzie, and being produced, Kettlestoun has abidden by the same, and has declared upon Oath, that he was not present when it was Subscribed, but that he received it from his Father, as now it is, one of the Witnesses insert being then Kettlestouns Servant deponed, that the Subscription to this Bond as Witness is his Subscription, but that he did not see Sir Lewis Subscribe, nor any of the other Witnesses; and remembers nothing of the matter, and that he knows not john Carnagie, Serviture to the Earl of Southesk, another Witness insert. The Pursuer thereupon craved that the Defender would more particularly design the other Witness John Carnagie▪ Serviture to the Earl of Southesk, because there were several persons Servants, or Attendants upon the Earl at that time of the same name, and condescends upon two of them having several Designations, beside this common one. The Defender alleged that he was obliged to condescend no further, seeing the Act of Parliament required no more than the Name, Surname and Designation. It was answered, that the intent of Designations being to find out the Person of the Witness, that he might be adduced in the Improbation, a general Designation would not suffice, but behoved to be made special, or otherways if the Pursuer should Cite any Person of that Designation, and that Person should deny the Subscription, his Testimony would improve, or at the best, the Defender behoved then to Design specially another of the same common Designation, otherwise it were a compendious way to all Forgery, as if Witnesses should be insert of such a Name, Indwellers in Edinburgh, or any other Town: In that case, if the Testimony of none of them should Improve, there were no remeed for the Falsehood. The Lords found that all the persons that were the Earl of Southesks Servants or Attendantsat that time, and were called john Carnagie that were alive should be Cited, and the Hand-writs of any that wereso Designed, that were dead, should be produced by either Party to be compared with this Subscription, that thereby it might appear if the Subscription could be astructed by the Testimony or hand writ of any other. Sir, Francis Scot of Thirlstoun contra Lord Drumlanrig. june 10. 1671. SIr Francis Scot having obtained Decreet of Adjudication of the Lands of Brankinside and others, and having Charged the Lord Drumlanrig to receive and Infeft him. He Suspends on this Reason, that he was willing to satisfy the Sums contained in the Adjudication, upon Assignation made to him thereto, and so was not obliged to receive the Charger. It was answered, that albeit King james the third, his Act of Parliament anent Appryzing, doth provide, that for a years Rent, Superiors shall receive Appryzers, or otherways shall take the Land to themselves and pay the Sums; yet that gives not the Superior an option, but bears failzying of paying a years Rent, the Superior may satisfy the Sums, and take the Land in his own hands, but where that was offered, it was never by Custom or Practic allowed, that the Superior should exclude an Appryzer, but whatever were in the case of Appryzing, that power was never granted to Superiors in Adjudications, whereupon they were still obliged to receive Adjudgers without a years Rent, until the late Act of Parliament, and the said old Statute giving an option to the Superior, is not to be extended to Adjudications; nor was it ever by any subsequent Law, or Consuetude extended thereto. It was answered that by the ancient Feudal Law, a Superior could not have been compelled to receive a stranger Vassal, albeit a Creditor, yet the Statute of King james the 3d. did remeid this in favours of Creditors, and obliged Superiors either to receive Appryzers for payment of a years Rent, or else to pay the Sum apprised for; but long after that time, there was no mention of Adjudications, which were a Supplement of the Lords, that where the appearand Heir being Charged, did renunce, the Creditor should not be frustrate, but might obtain Adjudication of the Lands, contra haereditatem jacentem, which except as to that point of Form, is the same with an apprizing, under another Title: and albeit as to the years Entry, the Lords would not extend the same to an Adjudication: It was upon this special Reason, that in the Act of Parliament 1621. anent Appryzing, the same is declared Redeemable upon the Sums apprised for, and a years Rend for the Entry; yet in the very next Act in the same Parliament anent Adjudications, the years Entry is left out, which was thought by the Lords to be done by the Parliament of purpose, and so not to be extended by the Lords: But otherways the same Reason was for the Entry in Adjudications as in Appryzing, which the Parliament has now found by their late Act; and therefore the matter of the Entry is not to be drawn in consequence to the Superiors option. The Lords found that the Superior had his option, and might refuse to receive the Adjudger, offering to satisfy the Sums in his Adjudication, upon Assignation made to him thereof, and declared that the same should be Redeemable from the Superior upon the like Sums without any thing for a years Entry; and that in all things else, the Superior and Vassal should be in the same case as if the Adjudger had been Entered to that Effect. Town of Breichen contra Town of Dundee. june 14. 1671. LAurence Dundass having been Debtor to the Earl of Seaforth in 200. pound Sterling, was incarcerat in the Tolbooth of Breichen, and being suffered to go out of Prison, Mr. Rory Mckenzie as assignee to the Earl, obtained Decreet against the Town for payment of the Sum, and took Assignation to the Caption, and therewith Incarcerat Laurence in the Tolbooth of Dundee, and now pursues the Town of Dundee for suffering Laurence to go out of Prison. and condescends that they suffered him to go ordinarily to the Kirk on the Sabbath, and that once they suffered him to go to the River by Boat, and over to Fife another Shire; and ordinarily to go to the Street, and to Taverns without necessary Affairs. The Defenders answered, that the Prisoner returned still to the Prison every night, and went always abroad with a Guard, and his going to the Water was because of his Indisposition, and for his Health, that if he touched upon the other side in Fife, he did return that same night to Prison: and that his going to the Kirk with a Keeper, can be no Relevant Ground; and even the going out upon other occasions with a Keeper, though not absolutely necessary, cannot make the Magistrates liable, it being the constant Custom of all burgh's so to do, and that a Prisoner being under a Guard, is in Prison, albeit not in the Tolbooth. The Pursuers answered, that Magistrates of burgh's were but public Servants in Keeping of Prisoners, and were obliged to give punctual Obedience to the Letters of Caption, bearing to keep the Rebel in sure Firmance within their Tolbooth, which is founded on very good Reason, that the Prisoner may be necessitate, squalore carceris, to do all Deeds in his power to satisfy his Debt, which would be eluded, if the Magistrates at their pleasure might let them go out with a Guard, and would but turn to a Confynement, or entertainment and gratification to an Officer for a Guard: and even though there were necessary Causes of the Prisoners coming out, the Magistrate is not Judge thereof, nor has any power of it, but the Party ought to apply themselves to the Council or Session, and obtain their Warrant, which will not be granted even by them, but upon instruction of a necessary Cause, upon Oath of Physicians or others. The Defenders answered, that Incarceration was a civil effect of Law, and no punishment, and that it were against all humanity, to put Prisoners for civil Debt in that condition, that the Magistrates could not let them out for a little, even for the safety of their Life, in extremity of sickness, which oftimes would not admit of delay, till application were made to the Council or Session. 2dly, Whatsoever may be found just by the Lords in time coming, yet the constant and universal Custom of this and all other burgh's, to let Prisoners go out with a Guard when they saw convenient cause, did introduce a privilege to burgh's, or put the Defenders in bona fide, to Act as all their Predecessors had been accustomed to do, without any question or Decision in the contrair, and alleged a late Practic in the case of the Town of Culross, who suffering a Prisoner that was a poor man, to go out to an Hospital, where he got Bread, and thence he immediately returned to Prison, and to go and see his nearest Relation that was a dying in the Town, or to their Burial, was not found liable for the Debt. The Lords considering the ordinary Custom of burgh's, found that as to the time passed they would not find them liable for suffering Prisoners to go out with a Guard for any necessary cause, and found the Defense Relevant, that this Prisoner was let go out with a Guard for his health, or to the Kirk on the Sabbath, but found that Member of the Condescendence Relevant, that he went out to the Street and Taverns without a necessary Cause, though with a Guard, Relevant to infer the Debt: But found that in time coming they would have no regard to that unwarrantable Custom; but that Magistrates of burgh's should only have power to let Prisoners come out of the Tolbooth under a Guard in the extreme hazard of their Life by sickness, and not without Testificats by Physicians or skilled persons upon Oath, bearing the Parties condition to require the same, and that without great hazard, they could not suffer delay to make Supplication to the Council or Session. The Lady Wolmet and Dankeith her Spouse contra Major Bigger. Eodem die. JEan Dowglas Lady Wolmet being by her Contract of Marriage Infeft in the half of the Lands of Wolmet, did with her Husband consent to a Wodset of the whole Lands for 28000. marks, wherein there is a Back-tack setting the Lands and Coal to her Husband and her, the longest liver of them two for payment of the Annualrent of the Money: which Wodset the said jean in her Viduity as Tutrix, renewed to the first Wodsetters assignee, and became personally obliged, both for the principal sum, and Back-tack-duty, and took the Back-tack, half to herself and half to her Son the Heir; but after the first Wodset, her Husband set a Tack of the whole Coal to his seven Children, for twelve years, they paying twelve hundreth marks yearly to the Wodsetter, and two marks yearly to his Heir: which Tack expired in Anno 1663. after which the said jean Dowglas and David Cunninghame of Dankeith her Husband, pursues Major Bigger as intrometter with the Coal for the half of the profit thereof, conform to the Back-tack, who alleged Absolvitor, because the Back-tack, in so far as it exceeded the Lady's Jointure, was a Donation between Man and Wife, and was revoked by the children's Tack, and being once revoked, remained for ever revoked, because the ground of Law prohibiting Donations between Man and Wife, and annulling the same, nisi morte confirmentur is introduced ne mutuo amore se spolient; and therefore nothing can make them effectual but the Husbands continuing in the same mind to his Death, but any signification of alteration of his mind, directly or indirectly, though it were in his Testament or Codicil, or by any Deed whereby he owns the thing Disponed, as still at his Disposal, is sufficient to annul the Wife's Right, as if he should grant a Wodset of the same Lands, though without mention of his Wife's prior Liferent, given gratis stante matrimonio, It would Revock the same: so that though the Husband Redeemed the Wodset, the Wife's Right would not Revive. So here the Bairns Tack being of the whole Coal for twelve years, doth wholly Revock the Back-tack, as to the Wife, not only during these years, but for ever. 2dly, There is a minute of Contract betwixt the Husband, his Wife and Raith of Edmonstoun, clearly showing the change of his mind, and restricting the Lady to her first Liferent. It was answered, that albeit in jure donationis, or where there was a clear and liquid excess of the Right received, exceeding the Right quite, any Deed evidencing the Change of the Husbands Will, might be sufficient to Recall it▪ Yet that holds not here, where the Lady quite a certainty for a Casuality, viz. The profit of a Coal, which might many ways have been ruined and unprofitable, in which case she would have nothing for her Jointure, and so it was permutatio spei, aut jactus retis, and at the time of the Wodset, was not of more value in buying and selling then the Jointure of the Lands, being certain. 2dly, This not being a pure Donation, the Husband could not Recall it till he had Restored his Wife to her first Liferent, and releaved her of all Burden and Distress she had sustained by the Wodset: neither had he shown his mind to Change, but only in part. And as to the Contract with Raith, it was in Contemplation of a Marriage, and was all founded on advancing Sums to Redeem the Wodset, whereby the Back-tack ceased. 3dly, The Defender cannot exclude the Pursuer, unless he pay her all bygone years of her Jointure she wants from 1654., to 1667. by Arrestments and Processes upon the Back-tack, and free her of the principal Sum and Annualrent, and satisfy her of the damnage she has Sustained by lying out of her Liferent, for all these years, and sustaining a long pursuit, wherein she is willing to acquiesce. The Lords in respect of this offer, and that the Defender did also offer to free and relieve her, rested therein, and did not proceed to advise the former Points, in jure. Bowers contra Lady Cowper. june 16. 1671. BOwers pursues the Lady Cowper as vicious in●●●●●er with the Lord Cowpers Goods and Gear, for payment of a Debt of his, who alleged Absolvitor, because she had a Disposition from her Husband of his Movables. It was Replied that the Disposition being between most conjunct persons, without a Cause onerous, was null by Exception by the Act of Parliament 1621. against fradulent Dispositions. It was answered, that the Disposition behoved at least to purge the vicious Intromission, and did stand ay and while it was Redeemed: For notwithstanding of the Tenor of the said Act, the Lords do not Sustain that Nullity by way of Exception or Reply. The Lords found the Nullity competent by way of Exception, it being no heritable Right, requiring the production of Author's Rights, but in respect of this colourable Title, restricted the vicious Intromission to the single value. Lord Lovet contra Lord Mcdonald. Eodem die. THe Lord Lovet pursues the Lord Mcdonald to count for the Superplus of a Wodset, from the Date of his Instrument of Requisition, in Anno 1663. whereupon he had raised Summons in Anno 1667. It was alleged that the Instrument was at the Defenders Dwellinghouse, when he was out of the Country, and bear no production of the Procutry, and only an offer of a Bond, with a Clause of Infeftment in all Lovets Land: and did not bear an offer of Caution. It was answered, that the Act did not require Requisition by Instrument, but quaevis insinuatio sufficit, and the Instrument bear Delivery of a Copy to the Defenders Lady in his House, there being no Procutry, for the Pursuer offered now to produce the same, and a surety by Infeftment was sufficient, the Act of Parliament mentioning no Caution. The Lords found that the Requisition behoved to be by Letters of Supplement, at the Cross of Edinburgh, and Pear of Leith, seeing the Defender was out of the Country, but Sustained the same, as to the Procutry, it being now produced, and sustained the offer of Surety, and Ordained it to be produced, Reserving the Objections and Answers of either Party thereanent. john Boyd contra Hugh Sinclar: june 17. 1671. JOhn Boyd having a Right to some Teinds in Orknay, pursues Hugh Sinclar as Intrometter therewith, who alleged Absolvitor, because he had Right to a Tack, set to umquhil Sinclar during his Life, and to his first Heir after him, during his Life, and nineteen years thereafter, which is not yet expired; for though the Defuncts eldect Son survived him, yet he was never entered Heir to him, neither did he possess their Teinds, and Died shortly after his Father, but it is not nineteen years since the second Son Died, whose Retour is produced, as Heir to his Father. The Lords found that the eldest Son Surviving his Father, although he never Possessed, was the first Heir as to the Tack, and that he needed not be served Heir. Alexander Alexander contra The Lord Saltoun. june 20. 1671. THe Earl of Hadingtoun having obtained a Gift of Bastardy, and ultimus hares, of umquhil William Grace, Provost of Aberdere, did assign the same to Alexander Alexander, with a Process thereupon, against the Lord Saltoun, for payment of 5000. marks due by him by Bond, to the said umquhil William Grace. The Defender alleged that this Bond being granted for the price of Land bought by him from the Bastard, and of the same Date with the Contract of Alienation thereof; there was a Back-bond also of the same Date, by which the said William Grace was not only obliged in Warrandice, but also to procure himself Infeft, holden of the Earl of Mar, to purge an Inhibition at the instance of Ramsay, and to procure a Right of an apprizing, at the Instance of the Lord Newbeath. The Pursuer answered, that the King or his Donator was not obliged to fulfil these Obligements of the Bastard, which were not liquid nor special. It was answered, that the Gift of Bastardy, or ultimus haeres, not falling to the King by Forefaulture, or any Delinquence, but by Deficience of the Bastard's Heir, the Donator was in no better case, as to the fulfilling of these Obligements, than the Bastard or his Heir would be, if they were pursuing upon the Bond, who could not seek payment till the Obligements in the Alienation, or Back-bond, which were the Causes of this Bond were fulfilled. Which the Lords found Relevant, as to the special Obligements of obtaining Infeftment, and purging the Inhibition and apprizing, but not as to the general obligement of Warrandice, wherein no Distress was alleged. Thomas Crawford contra james Halliburtoun. Eodem die. THomas Crawford having Charged james Halliburtoun upon a Decreet Arbitral for payment of a sum. He Suspends, and alleged that he was Interdicted at that time, and that the Interdicters did not consent to the Submission, or Decreet Arbitral. The Pursuer answered, First, That the Alleadgeance was not competent by Exception, but by Reduction. 2dly, That Interdictions had only the same Effect as Inhibitions, and did operate nothing as to Movables, or personal Execution, even by way of Reduction. Both which Defences the Lords found Relevant. John Neilson contra Menzies of Enoch. june 21. 1671. JOhn Neilson as assignee Constitute by john Creightoun, pursues Menzies of Enoch for the Rents of certain Lands in Enoch upon this Ground, that there was a Tack set by James Menzies of Enoch of the said's Lands, to the said john Creightoun for nineteen years, for payment of fourscore pounds Scots yearly of Tack-duty, thereafter by a Decreet Arbitral, betwixt Enoch and his eldest Son Robert, he is Discerned to Denude himself of the said's Lands, in favours of Robert, reserving his own Liferent: After which Decreet, Robert grants a second Tack to Creightoun, relating and Confirming the first nineteen years Tack, and setting the Land of new again for five merk of Tack Duty, in stead of the fourscorepounds: After which Tack Robert Dispones the Land irredeemably to Birthwood, but at that time Robert was not Infeft, but upon the very same day that the Disposition was granted to Birthwood, Robert Menzies is Infeft, and Birthwood is also Infeft: Birthwoods Right by progress comes in the Person of james Menzies, the Defender Robert's Brother. The Pursuer insisted for the Duties of the Land, over and above the fourscore pounds, during the Life of old james Menzies, and over and above the Tack-duty of five marks after his Death: For which the Defender alleged Absolvitor, because he produces a Decreet at his instance against Creightoun the Tacks-man, Decerning him to Remove, because he was then resting several Terms Rend, and failed to pay the same, and to find Caution to pay the same in time coming. The Pursuer answered, that the said Decreet was in absence, and was null, because the Defender Libelled upon his own Infeftment, and upon a Tack set to Creightoun the Tacks-man by himself, and there was no such Tack produced by him, or could be produced, because the Tack, albeit it bear to be set by james Menzies, yet it was only set by James Menzies his Father, and not by himself. The Lords found the Decreet null by Exception. Whereupon the Defender alleged that the Decreet at least, was a colourable Title, and he possessed by it bona fide till it was found null, & bonae fidei possessor facit fructus consumptos suos. It was answered, that a Title that needs Reduction, may be the Ground for Possession bona fide: but this is absoltely null by Exception. 2dly, The obtainer of the Decreet was in pessima fide, because immediately after the obtaining it, it was Suspended, and the Tacks-man was able to instruct that there was no Duties resting at that time, and though Protestations were obtained, yet the Suspension was never Discussed against the Tacks-man. The Lords Repelled this Defense also. The Defender further alleged, that albeit he would make no opposition against the first Tack, yet the second Tack could have no effect against him, because, before it was clad with Possession, Robert Menzies setter thereof, was denuded in favours of Birthwood, from whom the Defender has Right, and it is unquestionable, that a Tack not attaining Possession, is no real Right, and that a singular Successor, Infeft before Possession on it, will exclude it. 2dly, As the Tack was not clad with Possession, so Robert who set it had no real Right in his Person when he set it, but only the Decreet Arbitral. The Pursuer answered to the first, that he opponed his new Tack, which contained not only a Ratification of the old Tack, but a new Tack de presenti, for five merk, and so was like a Charter by a Superior with a novo damus, whereby the Tacks-man might ascribe his Possession to any of the Tacks he pleased; and if this Tack had born expressly, a Reservation of the Father's Liferent for eighty pounds yearly, it would have been unquestionably a valide Tack from the Date, and Payment to the Father by the Reservation, would be by virtue of the new Tack, as well as of the old: So likewise the Tacks-man might Renunce the old Tack, and retain the new; or if the new Tack had been taken without mention of the Old, the same would have been clad with Possession, albeit it could not effectually exclude the payment of fourscore pounds to the Father, during his life, as having a better Right by the Reservation. As to the second Alleadgeance, albeit Robert who set the Tack, was not Infeft when he set it; yet Robert being thereafter Infeft, his Right accresced to the Tacks-man in the same manner, as if he had been Infeft before, fictione juris. It was answered to the first, that the new Tack did not bear a Reservation of the old, but the Tacks-man having two Tacks in his Person at once, although he might quite either of them, or declare to which of them he ascribed his Possession, before the interest of any other Party: yet not having so done, he must be holden to Possess by the first, because he continued to pay the Tack-duty of the first, and never paid the Tack-duty of the second till the Setter was Denuded. To this it was answered, that the payment to the Liferenter, who had a better Right, did not import the Possessing by the first Tack, and the Tacks-man needed not declare his option till he was put to it, but Law presumes that he Possessed by that Right, which was most convenient for him. As to this Point the Lords found that the Tacks-man might ascribe his Possession to either of the Tacks he pleased, both of them being set for a distinct Tack-duty, and that agibatur by the second Tack, that the Father's Liferent should be Reserved. As to the other Point, The Defender alleged that the Infeftment of Robert who set the Tack, could not accresce to the Tacks-man; because the same day Robert was Infeft, he was Denuded in favours of Birthwood, and he Infeft; so that it must be presumed, that he was only Infeft to that effect, that Birthwoods Right might be valide. 2dly, It was offered to be proven, that Birthwood procured Robert's Infeftment by his own Means, and so it cannot accresce to any other in his prejudice. It was answered, that whoever procured the Infeftment of the Common Author, the fiction of Law did draw it back to all the Deeds done by that Author, that might arise from that Infeftment, which cannot be divided or altered, by the Acting or Declaration of either, or both Parties. Which the Lords found Relevant, and found the Infeftment did accresce to the Tacks-man in the first place, whose Tack was prior with absolute Warrandice. Lord Balmerino contra Hamiltoun of Little Prestoun. June 22. 1671. Wishart in Leith did grant Infeftment of an Annualrent of forty pounds yearly, out of two Tenements in Leith, in any part of them: Which Annualrent by progress belonged to Mr. john Adamson, and after the Constitution of the Annualrent, the two Tenements were Transmitted to different Proprietars, and now the one belongs to the Lord Balmerino, and the other to Hamiltoun of Little Prestoun, the Annualrenter did only insist against Balmerino's Tenement, and upon an old Decreet of Poinding of the Ground of that Tenement, hath continued in Possession, and Distressed Balmerino: Who having Suspended on this Ground, that the Annualrent being out of two Tenements, whereof he had but the one, he could be only liable but for the one half. The Lords found that the Annualrenter might Distress any of the Tenements for the whole, but reserved to Balmerino his Relief as accords. Whereupon Balmerino now pursues Little Prestoun to Repay him the half of the Annualrent, for which he was Distressed, because he having paid, did liberate Little Prestoun of the Annualrent, which affected both Tenements, they being now in different Heretors' hands, behoved to infer a proportional Relief, as is ordinar in all Annualrents, Constitute upon any Barony or Tenement, which thereafter comes to be divided. The Defender alleged Absolvitor, because he had bruiked his Tenement much more than forty years before this Pursuit, free of any such Annualrent; and therefore had prescribed the freedom thereof. The Pursuer answered, that Prescription was hindered by the Annualrenters' Possession, in getting his Annualrent, which though it had been but by a Personal Obligement, it would have preserved his Right entire to all effects in the same manner, as payment by a principal Debtor hinders the Cautioners Bond to Prescribe, though he were free thereof for forty years. It was answered, that albeit there might be ground for the Reply, where the Annualrent is Constitute out of one Barony or Tenement, whereon Infeftment may reach the whole, yet it cannot hold in this case, where the Annualrent is Constitute upon two distinct Tenements; and where there behoved Seizing to be taken upon both of them, and if omitted upon one, that would be free. The Lords found that payment of the Annualrent out of any of the Tenements, saved Prescription as to both. Leslies contra Alexander jaffray. Eodem die. LEslies pursues Alexander jaffray and others, for producing of Writs, and counting anent a Wodset Right, as being satisfied by intromission, and that as appearand Heirs, ad deliber●● dum. Wherein the Lords refused to Sustain the Summons for Compt and Reckoning, but only for Exhibition, albeit there was a Practic produced, observed by Dury upon the 1●. of March 1637. betwixt Hume and Hume of Blackadder, wherein Compt and Reckoning was Sustained at an appearand Heirs instance, the Custom having been ever since contrair upon this Ground, that no Party should be troubled to Compt at the Instance of those, who when the Compt was closed, cannot exoner them, and yet may put them to make Litiscontestation and Probation in the Cause. Duke of Buccleugh contra Parochioners of Eodem die. THe Minister of Hasendein having obtained the Designation of a Gleib out of the Duke Land, who alleged that the Minister having a Gleib before, extending at least to two Aikers, the Earl upon this Designation had gotten Possession thereof, and could only seek Relief for the Superplus. It was answered, that these two Aikers had never been designed as a Gleib; but the Pursuers Predecessors were infeft therein, and in Possession thereof before the Ministers, and any Possession they had, was but by their sufference and connivance. It was answered; that decennalis & triennalis possessor non tenesur docere de t●●u●o and the Minister was not only in Possession thirteen years; but thirty years. It was answered, that albeit Possession may be a Title, yet it may be elided by the Pursuers Right, which cannot be taken away but by Prescription; whereupon the question arose, how the Tolerance or Sufference of the Ministers Possession was probable, whether by Witnesses or not, seeing Tollerances are not ordinarily so proven. The Lords found that if the Minister's Possession were alleged to have been 40. year, as belonging to the Kirk, that the Duke's Tolerance could only be proven by Writ, to elide the same, but if for fewer years, they found the Tolerance or Sufference probable by Witnesses. Mr. Arthur Gordoun contra Laird of Drum. Eodem die. MR. Arthur Gordoun as assignee to a Decreet recovered against the Laird of Drum, Charges him thereupon. He Suspends on this Reason, that the Debt being originally due to a Defunct, his two Executors nominate, recovered the Decreet, and the one only assigned the whole to Mr. Arthur, whereby he can only have Right to the half. It was answered, that the other Executor being Dead before the Assignation, the Office accresced to the Survivor, who might uplift all that was in bonis defuncti, not uplifted. It was answered, that this Debt was no more in bonis defuncti, but being established in the Executors Person by Sentence, testamentum suit oxecatum, and the Deceased Executor's half behoved to belong to their Executors, and not to accresce. Which the Lords Sustained. Lady Ballagan contra Lord Drumlanrig. june 23. 1671. THe Lady Ballagan being by her Contract of Marriage provided to certain Lands, and amongst others, to the Lands of Birks, the Contract bears, that she accepts of the said's Lands in full satisfaction of all further Conjunct-Fee, Liferent, or Terce: she was Infeft in the Lands of Birks by her Husband, but was not Confirmed by the Lord Drumlanrig Superior, of whom the Lands held Ward. The Lady pursues the Tenants of Birks for Mails and Duties. Compearance is made for the Lord Drumlanrig Superior, who craved preference, because the Lands are now by Ward in his hands by the Death of the Husband, and minority of the Heir. And as for the Lady's Infeftment, it can have no effect against the Ward, because it is not Confirmed. It was answered, that the Lands being Ward, and less than the third part of the Ward Lands, holden of the Lord Drumlanrig, the Lady has Right by Law thereto, as her Terce. It was answered, That by her Contract of Marriage, she had accepted the Lands provided therein, in satisfaction of her Terror, which is the ordinar conception of a Renunciation, as when a Sum is accepted in satisfaction of any prior Debt, it imports a Renunciation and Discharge of the prior Debt, and an Inhibition prior to the last Bond, will Reduce any Right thereupon: Neither can it be maintained, as having an anterior Cause by the former Bonds; yea, any apprizing upon them would be void, because they are Renunced. It was answered for the Lady, First, That there was here no formal Renunciation, or Discharge of the Terce, and the acceptance of Lands for it, doth very well allow, that the Land accepted, may be bruiked as Terce, at least a Terce of that Land must be due, though no Terce of other Lands can be claimed: and albeit the Clause in satisfaction, in personal Rights, is commonly understood to Renunce and extinguish the prior Rights, unless they be Reserved: Yet it is not so in real Rights, for if any person have many Rights to Lands, and doth thereafter accept a Disposition of a part of the Lands in satisfaction of all his interest, that does not Renunce his former Rights to that Land, but he may defend himself with them all. So here accepting of Lands in satisfaction of a Terce, does not Renunce the Terce, as to the Lands accepted. 2dly, Albeit this Clause could import the Renuncing of all Terce, that can never be extended to the benefit of the Superior, nor can it be understood the Contracters mind, to exclude the Wife from the Terce, to make it accresce to the Superior, in both their prejudices, because the Husband by the Warrandice, must make out the Jointure. 3dly, Albeit the Renunciation could be profitable to the Superior, yet it being by this Clause in the Contract, the Superior cannot question the Lady's Infeftment, which is the cause of the Renunciation, but must adhere to the whole Clause, nam qui approbat non reprobat. It was answered, that the common Sense of this Clause of acceptance does still import a full Renunciation, neither can the intention, or meaning of the Parties import any thing, unless they had acted accordingly; for it had been easy for them to have said, but prejudice of the Terce, as to their Lands; so that the Terce being Renunced, the Renunciation is profitable to all Parties having Interest, because the Right thereby Renunced is simply extinct: Neither needs the Superior approve the Infeftment Un-confirmed, by making use of the Renunciation, for as there could be no pretence for that upon the naked Clause, without any Infeftment, so the meaning can only be, that if the Clause had been perfected by a valide Infeftment, he could not have quarrelled it. The Lords preferred the Superior, and found the acceptance a full Renunciation of the Terce, both as to the Lands accepted, and others. Helen Hume contra Lord justice Clerk. june 28. 1671. UMquhile Hume of Rentoun having made several Provisions to his Children, and amongst the rest to Helen Hume, and having recommended the same to his Son, now Justice Clerk; he gave a Bond to the said Helen of two thousand Marks, payable upon Requisition of forty days; the said Helen pursued Registration of the Bond, wherein it being alleged that any Requisition made was passed from, by acceptance of Annualrent for Terms after. The Lords Assoilzied from that Charge, until Requisition were made, and new Requisition being made since, before the Extracting the Absolvitor, The Lords Sustained the same. It was further alleged Absolvitor, because the Bonds granted by the Father was done on Deathbed, and the Bond granted by the Defender his Son was in his Minority, and he had Reduction depending upon the said's two Reasons. The Pursuer replied, that the Defender had Homologat the Bond in question by a posterior Contract, whereby he had appointed a yearly payment to his Mother, in satisfaction of this and the other Portions. The Defender duplyed, that that Contract was no Homologation, being Subscribed by him when he was Minor, having Curators, without their Consent, and so is null by exception. The Pursuer triplyed, that the Defender had Homologat the said Contract and Bond in question by these Deeds. First, That after Majority he had paid Annualrent. 2dly, That he had pursued Exhibition and Registration of the said Contract, and thereupon had obtained the same Registrat, and the Decreet Decerns Letters to be Direct at his Instance thereupon. It was answered, that the payment of the Annualrent, albeit voluntar, though it may exclude repetition of itself, it cannot infer Homologation of the whole Bond, especially the payment being made by a Brother to an Indigent Sister. 3dly, Payment of Annualrent cannot Homologat a Contract, which is null by exception. 4thly, Any payment that was made, was after the Decreet of Registration, and so necessary; and as to the Exhibition, the pursuing for a Delivery of a Writ doth not import the approbation of the contents of it, but only a calling for it, because the Writ belongs to the Subscriber thereof, though he may quarrel the obligement therein contained, and albeit the Writ was ordained to be Registrat, yet there was neither Charge nor Execution used thereupon. The Lords found the payment of the Annualrent in manner foresaid not to import Homologation, but they found that a Writ Subscribed by a Minor without Consent of his Curators, as it might be Ratified, so it might be Homologat, and that it was de facto Homologat by this Decreet of Registration, containing neither Reservation nor Protestation for quarrelling the Writ Registrat. It was further alleged, that the new Requisition was null, bearing to proceed on a Procutry, and not bearing the Procutry produced. It was answered, the Procutry was not called for, and that the having of the Writs, which the Requisition mentioned, did import a Power to Require. 2dly, This is a Dilator after a Peremptor. The Lords found the alleadgeance upon the nullity of the Requisition Receivable after the Peremptor, and Sustained the Requisition, the Pursuer producing the Procutry, which was the Warrant thereof before Extract. Forbes of Watertoun contra Shein. Eodem die. FOrbes of Watertoun pursues Reduction of an Apprizing ex capite inhibitionis. The Defender alleged Absolvitor, because the Bond which was the ground of the Inhibition is satisfied, in so far as there followed thereupon an Apprizing, which came in the Person of the Debtors appearand Heir, and so is Redeemable from him, for the Sums he truly paid, by the Act 1661.▪ betwixt Debtor and Creditor; and it is offered to be proven, that the Sums he paid are satisfied by Intromission with the Rents of the Apprized Lands, or what is wanting the Defender will instantly satisfy or purge. It was answered, that albeit the Act of Parliament had declared that Apprizing might be satisfied by payment of the true Sums paid for them by the appearand Heir, that cannot extend to this Bond, or Inhibition, or Reduction thereupon, for the Pursuer may pass from his Apprizing, and yet make use of the Bond, and this alleadgeance will only be Relevant when he insists upon his Apprizing. The Lords found the Defense Relevant, that the satisfaction of the Apprizing on the Bond did to all effects satisfy, and extinguish the Bond itself. The Creditors of Balmerino contra The Lady Couper. Eodem die. THe Deceased Lord C●●per having made an heritable and irredeemable Right of his whole Estate and Dignity to his Lady and her Heirs: The Lord Balmerino his nearest Heir in the Estate, making use of the Names of certain of his Creditors, that he might not be necessitate to enter Heir, before the event of this Plea, pursues a Reduction of the said Disposition, as being on Deathbed. The Defender alleged, First, That the Reason of Reduction, as it is Libelled, is not Relevant, that the Defunct contracted a deadly Disease before the making of the Disposition, and that he Died of the said Disease, which is not Relevant, unless the particular Disease were condescended upon, otherwise it will remain conjectural and unsure, and Witnesses cannot distinctly Depone whether he was sick or not, specially he being an oldMan, so that they could not distinguish betwixt sickness and weakness through old age. 2dly, The Reason is not Relevant, unless the Disease were alleged to be morbus sonticus, that might affect the Mind, and infer a weakness, which is different from Fatuity or Insensibility. 3dly, The Defender alleged Absolvitor, because he offered him to prove that the Defunct was in Health the time of the Disposition, at least in as good Health as he had been for several years or months before, when he did go ordinarily abroad to Kirk and Mercat, about all his Affairs, at least if he had any indisposition, it was not impedimentum rebus agendis, because it is offered to be proven that he constantly put on his clothes, and walked up and down his House, convoyed Strangers to their Chambers freely without being helped or supported, and in the same manner went down with others to their Horse to the Green, made several Accounts and Bargains, and frequently Played at Cards, all which must necessarily infer his Health, unless a circumstantial Disease were condescended upon and proven▪ 2dly, The Defender offered to prove that after the Disposition, the Defunct went to Kirk and Mercat, at least to one or other of them, which the Law hath allowed as unquestionable evidences of Recovery of Health, and which therefore is Relevant, though Sickness was specially proven to have been Contracted before, and condescends that the Disposition being Dated the eight of December 1668. upon the Thursday immediately after, the Defunct went to the Mercat of Couper, it being the Mercat day, and upon the Sabbath thereafter heard Sermon in the Kirk of Couper. The Pursuer answered, that this Reason of Reduction is most Relevant, and in the same Terms, that the Reason of Deathbed has always been Libelled; neither was it ever found necessary to condescend upon morbus sonticus, but as Craig expresses it sufficit si morbus precedat & mors sequatur, before the Defunct go abroad, yet probatis extremis presumuntur media, it is still presumed that so long as the Defunct after the Disease remained within Doors, that the Disease continued, and that presumptione juris & de jure, neither doth it admit a contrare probation, by alleging that the Party convalesced medio tempore, otherwise then by his going out to public Meetings at Kirk and Mercat, nor is there any necessity to condescend on the kinds of Diseases, which even Physicians themselves, and the most skilful can hardly determine. And as to the first Defense, offering to prove that the Defunct was in Health, it is contrare to the Libel, and no ways competent, for in the case of contrare alleadgeances, the Pursuer offering to prove Sickness, and the Defender offering to prove Health at the same time, the Pursuer as being in the Libel must be preferred, especially considering that where such Deeds are procured through importunity from Sick and Weak Persons, who would do any thing to get leave to Die in peace, the Contrivers by the same facility may debar the access of any, but such as they have confidence in, and who have cuncurred with them in the Contrivance, so that the Disponers Sickness is difficillimae probationis, yet quaelibet probatio sufficit, as in this case within a day or two of the Disposition, my Lord was put to violent nature to attempt to go to the Mercat, and three days after to the Kirk, in both which attempts he failed, which doth sufficiently presume that he was Sick before, and was not able to cover his Sickness for a little time to attain the Evidences that Law requires to infer Health, but if a contrare probation should be Sustained, or preferred as more pregnant, and which would be by familiar Persons in the House, and concurrers in the Contrivance, this ancient and excellent Law would easily be elided, and as to the evidences of Health they are no way Relevant, neither are any private acts, but the Law hath justly determined that the Disponer must appear publicly in the solemnest Meetings, that thereby it may be known that he is able to abide the Air, and that matters of this importance be not probable by two picked out prepared Witnesses, but that the 'samine be cleared by the whole Witnesses of a Kirk or Mercat, which cannot all be bribed, and no few Witnesses dare adventure to Depone against that common knowledge, so that no private or domestic acts in or about the House can be equivalent to coming to Kirk and Mercat. And as to the second Defense, that the Defunct came out to Kirk and Mercat, it ought to be Repelled, because the pursuer offers to prove that he was supported. The Pursuer answered, that the Reply was not Relevant, unless it were condescended quomodo supported, and that it was by upholding the Defunct under the Oxter, or by the Elbow, but it is not Relevant to allege that the Defunct took any of the Company by the hand, or that they took him by the hand, especially if it was in rugged or uneven places, in respect of the Defuncts age, and that it is offered to be proven that he was ordinarily accustomed to take these who walked with him by the hand in such places, and for this there was alleged a Practic lately done by the Lords betwixt Pargilleis and Pargilleis, whereby a Disposition by Pargilleis was Sustained, because he came to the Mercat of Calder, albeit he was helped to and from his Horse, and up and down the Stairs, and that he was not able to tell Money, and was never at the Kirk thereafter: and likewise a Practic in Anno 1647. was alleged, whereby Graham Merchant in Edinburgh having made a Disposition to his Wife's Daughter, the same was Sustained, because he Lived a long time and did his Affairs in the House, and wrote the Disposition, being two or three sheet of Paper, all with his own hand, which is found sufficient though he did not go out to Kirk or Mercat. The Pursuer answered, that the Reply was most Relevant, even though the supporting were only by the hand, for albeit where there were reiterate acts of going abroad without design, such circumstances would not be noticed, yet where the going abroad was so near to the Disposition, and evidently done to validate the same, it hath been ultimus conatus naturae, and hath not been of custom, but of necessity, so that when such an attempt is made of design, if the Disponer have not so much strength as to walk without the help of any hand, it infers clearly the weakness and continuance of the Disease. The Defender repeated his alleadgeance, a●d offered to prove that not only the Defunct went out to Kirk or Mercat, but that he went freely by his own strength, no Body touching him. The Lords being desirous that neither Party should have the sole probation by picking out such Witnesses as made most for them, but that all the Witnesses might be adduced, did before answer appoint either Party to adduce Witnesses to instruct the Defuncts condition the time of the Disposition, and thereafter, and anent the manner of his going abroad, and there being a great multitude of Witnesses adduced by either Party, the Lords considered the Relevancy and Probation both together, by which the Lords found that the Reason of Reduction was relevantly libeled, and that it was sufficiently proven, that the Defunct had contracted the Disease whereof the Died before the Disposition; and as to the Defense and Reply the Witnesses proved all clearly, that he was supported to the Kirk, and from it, and that he fell a swoon in his return, but the Lords found it not necessare that the Defunct should both go to Kirk and Mercat unsupported, but that either was sufficient, but that where both was attempted shortly after, and upon design, the manifest failing in the attempt in going to the Kirk, did much weaken the prior attempt in going to the Mercat: As to which the Lords did consider that the going free to the Mercat behoved to include the free going to the Mercat place, and returning back from the same, not being supported in any place of the way, so that albeit many Witnesses Deponed the Defunct walked freely, none being by him in some parts of the way coming and going, there was no number of Witnesses that proved his walking freely all the way coming and going, even while he was within the Town, but that many Witnesses proved that he was supported, some in the whole way, and some as to several places, some by the Oxter, some by the Elbow, and most by the hand. Therefore the Lords found the Reply Relevant of supporting even by the hand, in any place of the way within the Town, whether Even or Rugged, and found the same sufficiently proven, and therefore Reduced the Disposition, albeit the Defuncts custom to take those who walked with him by the hand was also proven, whereunto they had no regard, this going to Mercat being so soon after the Disposition, and so evidently of design to validat it, and the Defunct never having gone out after, except to the Kirk when he was supported, and fell a swoon; and as to the Practic, that in Anno 1647. was not produced, but it was in consideration of a Sum left to the Church by that Disposition, and was generally cried out against by all Persons, yet una hirundo, etc. And as for Pargilleis Case, the Lords perused the whole Debate and Testimonies, and found that Pergilleis Lived near a Mile from Calder, and that being an old Guttish Man he was accustomed to be helped to and from his Horse, and that he Road to the Town, but that he Lighted then and walked freely through the Mercat, and up a Brae to my Lord Tarphichans House, and returned again to his Horse without any help, either by the hand or otherwise, and regarded not that he was helped up and down Stairs, or to and from his Horse, which the Law doth not require, but only the going freely from the Entry of the Town to the Mercat place, and back again unsupported. The Lords did also find none of the private acts alleged upon Relevant to prove Health, or equivalent to going to Kirk or Mercat, and that there was no necessity to condescend on particular Diseases. joachim Burnmaster contra Captain Dishingtoun. june 29. 1671 CAptain Dishingtoun having obtained a Decreet before the Admiral, Adjudging a Ship taken by him at Sea the time of the late War with Holland, whereof joachim Burnmaster was Master, the said joachim raised Reduction of the said Admiral's Decreet, on these Reasons, that his Ship and whole Goods did belong to the Subjects of Sweden, his Majesty's Allies, and who had a particular Treaty with the King, bearing expressly, that no Person should be Seized who had a Swedish Pass, in the Terms particularly expressed in the Treaty; Which Pass the Pursuer had, and produced when he was taken, and yet he was declared Prize, upon pretence that three of his Company were Hollanders, albeit the Treaty bears expressly that where such a Pass is found ulterius nihil exigatur, & in bona aut homines nullo modo inquiratur, and upon pretence that the Oaths of the Master and Company were contrare to the Pass, and proved that there were other owners than these in the Pass, and other Goods, viz. 15. Hogsheads of Wine, and a quantity of Wine and Brandy wine, and Paper▪ and that the Ship in question was not then Bought by the Swedes, nor did not go to, or from the parts mentioned in the Pass, albeit none of these said's points be Material▪ nor did infer that the Ship, or Loading, or any part thereof did belong to the King's Enemies, but did belong to the Swedes his Allies and Confederates, so that albeit they had had no Pass, or an unformal Pass, their Goods could not be taken from them, there being no Article in the Treaty declaring, that the not having a full and formal Pass should make such Ships Prize, but only that the having thereof should keep them from all question or inquiry. The Defender alleged Absolvitor, because the Decreet of Adjudication was justly and Warrantably given, for Contrivances the time of the War being most ordinar▪ the Dutch did frequently palliate their Trading under the pretence of the King's Allies; and in this Case it is evident, that the time of the Pass this Ship was in Holland, of a Dutch Build belonging to an Hollander Residing there, and no pretence of Buying the same by a Swede for a long time after, as appears by the vendition produced, which does not bear that the Ship was sold to any Swede, or for their use, but to a Swedish Factor in Holland, without mentioning to whose use, and so is justly suspect to have been for an other Dutchmans' use, especially being found Navigable with three Dutchmen in the Company, and no Swede hath ever yet declared upon Oath that this Ship and Goods belonged to them, for by a Certificate of the Swedish Chamber of Commerce produced, that two Swedes did declare that they intended to Buy a Ship in Holland, called the blue Lily, and yet the Pass of the same date bears, that they swore that the blue Lily belongs to themselves and no other, and by the vendition the Name of the Ship was not the blue Lily, so that all hath been but a Contrivance, and that there is nothing produced that necessarily evinces that the Ship and Goods belonged to the Swedes only, and seeing the Pass is so palpably false in all the substantial points required by the Treaty, and by the Oath of the Pursuer himself, he cannot clothe himself with the Treaty, which he hath so grossly transgressed, nor hath he adduced sufficient proof that the Ship and Goods belonged to the Swedes. And whereas it is alleged, that the being Sailed with Hollanders is no ground of Seizure by the Treaty, the same is opponed, which in the next Article to that alleged upon for not enquiring in the Men and Goods, bears that Seizure shall not be made where such a Pass is nisi gravis suspitio subsit, and there could be no better ground of suspicion, then that the Master when he was taken acknowledged the Contents of the Pass not to be true, or conform to the Treaty, and that a considerable part of the Company were Duchess, and as for any Letters produced, they are impetrate since the War upon misinformation. The Lords adhered to the Decreet of Adjudication, and Assoilzied from the Reduction, and found the verity of the Pass canvelled by the Testimonies of the Skipper and Company, and the Certificate, and that most of the material requisits in the Pass were wanting, and no sufficient Evidence that the whole Ship and Loadning did truly belong to the Swedes. Beidmen of the Magdalen Chappel contra Gavin Drisdail. june 30. 1671. IAnet Rud having mortified an yearly Annualrent of a Mark Scots, out of a Tenement of hers to the poor Beidmen of the Magdalen Chapel; they pursue Gavin Drisdail, now Heretor of the Tenement, for Poinding of the Ground▪ Who alleged Absolvitor, because he has bruiked the Tenement free of that Annualrent for more than forty years, so that the Right thereof is prescribed. It was answered, that prescription runs not against the Poor, and things mortified for pious uses. 2dly, They are in the same condition with Minors, having Overseers chosen yearly. 3dly, The years of prescription must be accounted, abating the times of Pestilence and War, when there was no Session. It was answered, that prescription was the great security of the Liege's, and hath no exception by the Act of of Parliament, but only Minority, and neither by the Civil Law or our Custom, is the time of prescription counted per tempus utile, but per tempus continuum, in regard of the length of the longest prescription. The Lords Sustained the Defense of prescription, and Repelled the Replies. Brody of Lethim and the Laird of Riccartoun contra The Lord Kenmure. july 1. 1671. BRody of Lethim as having Right from Riccartoun, having several years ago obtained Decreet against the Tenants of the Mains of Kenmure, thereafter upon a motion for the Viscount of Kenmure the Decreet was stopped, and now the Pursuers desire out their Decreet. It was alleged that the Cause having lain over several years, must be wakened. It was answered that there being a Decreet pronounced, there was no more Process depending, and so needed not be wakened. It was answered, that a Decreet though pronunced, not being conditional to a day, but being absolute, and thereafter stopped, in respect the stop takes off the Decreet, the Process is in statu quo prius. It was answered, that the stop doth not recall the Decreet, but only hinders the Extract thereof till the Supplicant be further heard, and it is his part to insist in the Bill, and that it would be of very evil consequence if stopped Decreets were recalled, for then not only wakening would be necessary, but in case the Parties should Die, Transferance should be raised, and seeing wakenings are not requisite in concluded Causes, much less after Sentence is pronounced. The Lords found no necessity of wakening, but allowed the Defender to propone what further he had to allege. Laird of Balfour contra Mr. William Douglas. july 4. 1671. THe Earl of Airlies' Estate being Apprized by Mr. William Douglas since 1652. after the Legal was expired Mr. William was Infeft, and after his Infeftment, the Laird of Balfour Apprized the same Land, and thereupon pursues the Tenants for Mails and Duties. It was alleged for the first Apprizer that he must be preferred; First, Because he has the only Right, having an Apprizing expired, and Infeftment thereon, before the Pursuers Apprizing was Led, so that eo momento that he was Infeft upon his expired Apprizing, the common Debtor was fully Denuded, and there was no Right of Reversion, or any other in his Person that could be Apprized thereafter. It was answered, that by the Act of Parliament 1661. between Debtor and Creditor: It is provided that all Apprizing Led within year and day of the first effectual Apprizing shall come in therewith pari passu, and therefore the Pursuer having Apprized within year and day after the first Apprizers Apprizing became effectual by Infeftment, he must come in with him pari passu by the said Act, which makes no difference of expired, or unexpired Apprizing, and by that same Act the Debtor is not so Denuded by the expiring of the Legal and Infeftment, but that year and day is still allowed to subsequent Apprizers, which in effect is a prorogation of the Legal as to Concreditors. It was answered, that the Act of Parliament is opponed, bearing that Apprizing before, or within year and day after the first effective Apprizing shall come in pari passu, as if one Apprizing had been Led for all, which necessarily imports the calculation of the year to be from the date of the first effective Comprising and not from the date of the Infeftment or Diligence, for the coming in as if one Apprizing had been for all, must relate to the Decreet of Apprizing, which as it is clear by the Letter of the Statute, so also by the Narrative and Motive thereof, bearing that Creditors did not know the condition of their Debtors Estate, which might be Apprized before they could do Diligence, whereas before they had only the benefit of Reversion, for remeed whereof the Parliament brings in all Apprizing that are before, or within a year, after the first effectual Apprizing, which before would have carried the sole Property, and factione juris, states all these Apprizing as Led in one day, so that the remeed is sufficient, by having a full year after the date of the Apprizing, and Correctory Statutes are to be strictly Interpret, and if the date of the Diligence be the Rule, an Apprizing after twenty year might be brought to admit a new one deduced after all that time, and not only so, but the Mails and Duties would belong proportionally to the last Apprizer for twenty years before it was Led. It was answered, that the year indulged by this Act of Parliament to Concreditors, must be from the time the Apprizing is effectual, for the words of the Statute bears, all Apprizing before, or within a year after the first effectual Comprising etc. so that the year must not run from its being an Apprizing, but from its being an effectual Comprising, and so from the Infeftment or Diligence, neither is the inconvenience shunned otherwise, for the only way then known for publication of real Rights was the Register of Seisings, and not the Register of the Allowance of Apprizing, which is only made necessary by an Act since, and it is very easy to make simulate executions of Apprizing, by taking away the Copies of Denunciation of the Ground, and Citation at the dwelling House of the Debtor, but if once a Seizing be in the Register, all provident men take notice thereof, and albeit a Charge be sufficient in stead of a Seizing which is not Registrat, yet the ordinar way of completing Apprizing, which the Law notices is Infeftment, and seeing Apprizing are now rigorous Rights, carrying any Estate without consideration of the value, Acts Correctory of them ought to be extended ex aequo, and the more ways Concreditors have for getting notice of the Apprizing of their Debtors Estate the better, neither are the evil consequences upon the other hand of any moment, it being the first Apprizers fault (if not his fraud) that he obtains not Infeftment, or does Diligence therefore, for he may of purpose lie dormant, not only till year and day run, but until the Legal expire, and thereby cut off the Diligences of all other Creditors, as in this very case the irredeemable Right of an Earldom shall be carried for 1500. pounds, and all the other Creditors excluded, so that the Apprizing is so far from making the case better, that it makes it much worse, as latent and fraudulent, for it cannot be imagined that if the second Apprizer had known that the first Apprizing was Led, but that he would have used Diligence within the year, at least within the Legal, for so soon as he saw a Seizing in the Register, he did immediately Apprise. The Lords preferred the first Apprizer, and excluded the second, and found that the year is to be reckoned from the date of the first effectual Apprizing, and not from the Diligence, whereby it becomes effectual. In this Process the Lords Sustained this Reply, that the first Apprizing was to the behoof of the common Debtor, or his eldest Son, and that they would purge the same by payment of what Sums were truly paid for it to the Apprizer, according to the said Act of Parliament 1661. without any Reduction or Declarator. Helen Hume contra The Lord justice Clerk. Eodem die. THere being a Bond granted by the Laird of Rentoun to Helen Hume his Daughter, obliging him and his Heirs to pay the Sum to her at her Age of ten years complete with Annualrent, so long as she should suffer the same unpayed, and then subjoining this Clause, that in case she should die unmarried the Bond should be void: Whereupon the said Helen pursues the Lord Justice Clerk her Brother, who alleged upon the foresaid Clause, that the effect thereof must necessarily be, that the said Helen should make no voluntare gratuitous Right in prejudice of her Father or his Heirs, that the Sum should return if she were not Married. It was answered, that this Clause not being the ordinar Clause of Substitution. Provision, or Return, cannot be understood a Suspensive Clause, hindering the lifting of the Money, neither yet a resolutive Clause in case the Pursuer Marry not, but it can only have the effect of a Clause of Substitution, that if the Pursuer died Un-married, and the Sum un-uplifted, or Disponed; her Father's Heir is preferred to her own Heir, or nearest of Kin, for the Term of payment being her age of ten years, she might then lift the Sum, and there is no provision to reimploy it of this Tenor, or to find Caution to Restore, if she were not Married. It was answered, that this Clause cannot be interpreted as a naked Substitution, but as a condition of the Bond, equivalent to that which is frequent in Provisions of Children, and Contracts of Marriage, that in case the Party had no Children, the sum should return, which was always interpret more than a single Substitution, and to import a Condition or Obligation against any voluntar Deed, or Disposition: And though the Party be thereby Feear of the Sum; yet it imports a limited Fee, with a Provision to do no Deed in the contrair, without a Cause onerous: and albeit Reimployment of the sum be not expressed in this Bond, it is employed in the nature of it. The Lords found, that seeing the Bond had a particular Term, and no Condition to Re-imploy: and the question now was only of voluntar Dispositions, without Causes onerous, whereof there was none at present existent. The Lords Discerned the Sum to be paid to the Pursuer, reserving to the Defender his Reason of preference against any Disposition, or Assignation, without a Cause onerous, if the same should happen to be made. john Mccrae contra Lord Mcdonald. july 6. 1671. JOhn Mccrae as Heir to John Mccrae his Goodsire, pursues the Lord Mcdonald, as Heir to his Goodsire, for payment of a Bond of 400. marks in Anno 1629. granted by the Defenders Goodsire to the Pursuers Goodsire. The Defender alleged absolvitor, because the Bond is prescribed. The Pursuer replied, that the Prescription was impeded, partly by Minority, and was interrupted by a Citation at his Instance, against the Lord Mcdonald. It was answered, that the first Citation made, was null, being at the Mercat Cross of the Shire, by Dispensation, upon an unwarrantable suggestion, that there was not safe access to him, which has been past of Course by the Servants of the Bill-Chamber, whereas they ought specially to have represented the same, and the consideration thereof to the Lords▪ and so being surreptitiously obtained, periculo petentis, it can import no interruption. 2dly, The Execution at the Mercat Cross, bears no leaving, or affixing of a Copy. And as for the second Citation, it is but one day before the forty years be complete, which being so small a time, is not to be regarded in Prescription, nam Lex non spectat minima, and it is also null, though it be done personally, as falling with the first Execution. The Lords found that the first Citation was sufficient to interrupt Prescription, although it had not been formal, through want of a Copy, and declared they would sustain the Process thereupon, if the leaving of a Copy were added to the Execution subscribed by the Messenger, and abidden by as true. They found also, that the second Citation was sufficient interruption, though within a day of completing the prescription, which was to be reckoned punctually the momento in momentum. Strachan contra Gordouns. july 7. 1671. STrachan pursues Gordouns for a Spuilzie of four Oxen taken away from them by violence, being then in their Plough by George and William Gordouns and others. The Defenders alleged absolvitor, because they offered them to prove, that the Oxon were their proper Goods, and were stolen from them, and that thereafter they were found straying upon the Pursuers Ground, and that they were proclaimed as Waith-goods by the Sheriff, and that by the Sheriff's Order direct to his Majors, the Defenders intrometted with them, and so did no wrong. The Pursuer Replied, that no way granting the verity of the Defense, the same aught to be Repelled, because they having the Oxen in question, in their peaceable Possession four Months, they ought not to have been disturbed in their Peaceable Possession, in this Order, without the Citation or Sentence of a Judge: So that the Defenders having unwarrantably and violently Dispossessed them, spoliatus ante omnia restituendus, and they may pursue for Restitution as accords; but the Pursuers are not now obliged to Dispute the Point of Right. 2dly, If need beiss, they offer to prove that they acquired the Goods from the Laird of Glenkindy their Master, so that being Possessors bona fide cum titulo, they could not be summarily Spuilzied, or Dispossessed: For albeit stolen or strayed Goods may be summarily Recovered, de recenti, or from the Thiefs; yet cannot so be taken from a lawful Possessor, acquiring bona fide. The Lords found the Defense Relevant, and admitted the same to the Defenders Probation: and found also that part of the Reply Relevant, that the Pursuers did Possess bona fide, by an onerous Title, Relevant to elide the Defense though it were proven, as to the Restitution of the Oxen to the Pursuer, and the ordinar profits thereof, but not the violent profits, for they found the Sheriffs Warrant being instructed, would excuse from the violent profits: but they found that the Defenders naked Possession, though for four months, by having the Goods in the Plough, would not infer Restitution or Spuilzie, but that the Goods being stolen or strayed, might be recovered Summarily. Laird of Polmais contra The Tradesmen of Striveling. Eodem die. THe Tradesmen of Striveling having Charged and troubled the Laird of Polmais Tenants, about St. Ninians Kirk, upon the Act of Parliament, prohibiting Workmen to exercise their Trades in the Suburbs of Royal Burrows, Polmais raised a Declarator for freeing of himself and his Tenants of the said's Charges, and that they might freely exercise all their Trades, especially about the Kirk of St. Ninians, which is about a Mile from Striveling, which being Dispute, and it condescended upon, that St. Ninians being a mile from Striveling, could no ways fall under the Act of Parliament, and could not be interpret a Suburb, being no ways adjacent to the Town. The Lords found the Declarator and Condescendence Relevant, and Discerned. Andrew and Adam Stevins contra Cornelius Neilson. july 11. 1671. ANdrew Stevin having made a Disposition of his Lands to Cornelius Neilson his Good-brother, and thereafter another Disposition to his Brother Adam Stevin. They pursue a Reduction of Cornelius Disposition. First, As being upon Trust, and only for the security of a thousand marks, whereanent, it being Debated anent the manner of Probation and Witnesses, ex officio, being craved for clearing the Trust by the Writer, Witnesses and Communers. The Lords refused to Sustain the same, till first they considered the other Reason of Circumvention, which was Libelled thus, That the Disponer was a lavish, weak person, that the Disposition was elicite by his own Good-brother, for a thousand marks only, and that he keeped him privately from the access of all other Friends, and drank him drunk, in which condition he was when the Disposition was Subscribed, and that it was not Read unto him, and it being excepted upon a Ratification, some Weeks after at another place, and the Reason of Circumvention repeated on the same Terms against that Ratification. The Lords ordained Witnesses to be Examined ex officio, upon the Reason of Circumvention as to both, and specially, whether these Writs were Read at the Subscribing, and whether the Subscriber was Drunk, and whether he was thereby insensible or disordered in his Reason, or what were the Motives induced him to Subscribe. Sir George Maxwel contra Maxwel of Kirkonnel. Eodem die. SIr George Maxwel of Nether Pollock, pursues Maxwel of Kirkonnel, for payment of a Debt of his Fathers, as behaving himself as Heir by intromission with the Mails and Duties of his Father's Lands of Kirkonnel. The Defender alleged Absolvitor, because his Father was Denuded, and an Appryzer Infeft, and so could have no Heir in these Lands. It was Replied, that notwithstanding of the apprizing, the same remained Redeemable, and the Defunct remained in Possession, and the Defender his appearand heir, did continue his Possession, and so has behaved as Heir; and though he had had a Right or Warrant from the Appryzer, yet during the Legal, it is immistio, having no other Cause nor Title. It must be presumed to be granted to him as appearand Heir, much more where he hath no Warrant from the Appryzers. 2dly, It is offered to be proven the Appryzers were satisfied by intromission, and what is wanting, the Pursuer offers to satisfy the same at the Bar; for by the Act of Parliament 1661. betwixt Debtor and Creditor, Appryzing acquired by appearand Heirs, may be satisfied by the Defuncts Creditors, for the sums they truly paid out by the space of ten years: So that the Defender ought to condescend, and Depone what he gave out, and to count for his Intromission, and what is wanting, the Pursuer will pay. The Defender answered, that behaving as Heir, being an odious, universal, passive Title, any colourable Ground is sufficient to restrict it to the value intrometted with. And as to the offer to satisfy the Defender of the apprizing, to which he has Right. It is not competent, hoc ordine; for by the Act it is only introduced in favours of other Appryzers, and the Pursuer is a mere personal Creditor, without any apprizing. It was answered, that the Narrative of that part of the Act, bears it expressly to be in favours of Creditors, and though the subsumption is only applied to Appryzers, yet it is not exclusive, and by the common Custom, satisfaction of Appryzing by intromission, or present payment, is ever received by Exception or Reply. The Lords found that behaving as Heir is sufficiently elided by any Right or Warrant from the Appryzers, as to intromission thereafter; or that if the Defunct died not in Possession, But that the Appryzers had then, or thereafter attained Possession, before the intromission. But found that the appearand Heirs continuing in the Defuncts Possession without a Warrant, did infer behaviour, and that the offer to purge the apprizing at the Bar, was competent, hoc ordine▪ without burdening the Creditors with the Expenses of apprizing, to make the appearand Heir liable for what he intrometted with; and that the appearand Heir should assign the apprizing, whereupon the Creditor might continue Possession till he were satisfied of the sums now paid out. Robert Lermont contra The Earl of Lauderdail. july 12. 1671. SIr Alexander Swintoun having Disponed his Estate of Swintoun, to john Swintoun his Son, in his Contract of Marriage, there is a Clause therein, on their Terms, that it shall be leisom to the said Sir Alexander, to affect and burden the Estate with Infeftments of Wodset or Annualrent, for the sum of fifty four thousand marks, for his Creditors and Bairns; thereafter Sir Alexander grants a Bond of 1400. marks to the Laird of Smeatoun, and declares it to be a part of the fifty four thousand marks, whereof 2000 marks being now in the Person of Robert Lermont. He pursues the Earl of Lauderdail, as now come in the place of john Swintoun by his Foresaulture, to pay the sums, or at least, that the Lands is, or may be burdened therewith, because the Forefault Persons Infeftment being qualified with the said Reservation, it is a real Burden affecting the Estate, and Swintouns Infeftment being public, and thus qualified and burdened, was as to this point, the Creditors Infeftment, and his being Forefault, could not prejudge the Creditors, as to this real Burden, in a public Infeftment, granted by the King. The Defender alleged, that the Libel was not Relevant, for the Reservation being a mere Power of Burdening by Infeftment, it cannot be pretended that the Forefault Persons Infeftment is sufficient therefore. But seeing Swintoun made no use of that power, albeit it might have been sufficient against Swintoun the Contracter, or his Heirs: It cannot militate against the King or his Donator, to whom the Fee returns by Forefaulture without any Burden, but what the King has consented to by public Infeftments or Confirmations: And though old Swintoun had given the Pursuer a base Infeftment, it would have fallen by the Forefaulture, not having been Confirmed, much more when there is no Infeftment. The Lords found the Libel not Relevant, and Assoilzied. The Heirs of Mr. Thomas Lundy contra Earl of Southesk and others. Eodem die. THe Estate of Sir james Keith of Powburn being apprised by several of his Creditors, they now compet for preference. Mr. Thomas Lundie who led the first apprizing, was more than year and day before the rest, and thereupon his Heir craved preference. It was alleged the Apprizing was null: First, Because it proceeded upon a Bond, carrying a Clause of Requisition, and the Claim of the apprizing, did not Libel thereupon, so that albeit it be now produced and done debito tempore: Yet the Claim was not sufficiently instructed without it. 2dly, The Messenger did unwarrantably continue the Court of apprizing till another Diet, without any necessary Cause, which was never accustomed before, and is of very evil consequence, for thereby Messengers at their pleasure may continue, and weary out the Persons concerned, who might propone Defences, or produce Suspensions, and are not obliged to attend the pleasure of the Messenger. 3dly, The apprizing was at the Beitch-hill of Cowper, which is not within the Shire where the Lands lie: And albeit there be a Dispensation in the Letters, that ought not to have been granted, because Appryzing should only be in the head Burgh of the Shire, or in communi patriâ at Edinburgh, but especially seeing the Warrant was obtained from the Lords of course, among the common Bills, without being Read or considered, and so is periculo petentis, and cannot prejudge the more formal Diligence of other Comprizers, especially seeing Lundy apprised of new for the same sums, which will come in pari passu with the rest, being within year and day. It was answered, that it is inherent in all Jurisdictions to continue Processes to new Diets, having keeped the first Diet, and that the Messenger by the Letters is Constitute Sheriff, and there is no question but Sheriff's might, and did prorogate Diets in Appryzing, and the Letters bears Warrant to fix Courts, one or more, and for the continuation, it was but to the next day, in regard of a great Speat, the apprizing being upon the hill in the open field, the time of Rain, and it being m●dica mora, to the next day, which will give no Warrant to an Arbitrary continuation by Messengers, to what Interval they please. And as for the place, The Lords by Dispensation may appoint what place they see convenient; and albeit the Dispensation had been of course, and that therein the Clerks had failed, yet the Parties obtainers of such Dispensations are secure thereby, and ought not to be prejudged. The Lords Sustained the apprizing, and found the Requisition now produced sufficient, and found that the continuing of the Diet for so short a time, to be no ground of nullity, unless the Competitors could allege a special cause, that they did or might alleged, whereby they were prejudged by leading the apprizing the second day, rather than the first. The Lords did also Sustain the Dispensation of the place; and having perused the Practic produced, at the Instance of the Lady Lucia Hamiltoun, anent an apprizing, led at Glasgow by Dispensation: They found that the Lords did not annul the apprizing on that Ground. But the Lords ordained, that no Bill bearing Dispensation, should pass of Course in time coming, but upon special Reasons, to be considered by the Lords, or the Ordinary upon the Bills; and that Messengers should not continue the Diets in Appryzing, but upon necessary Causes; and ordained an Act to be insert in the Books of Sederunt for that effect. Adam Gairns contra Isobel sandiland's. Eodem die. ADam Gairns pursues Isobel sandiland's, as Representing her Father, to pay a Debt of his, and specially as behaving as Heir, by uplifting the Mails and Duties of a Tenement, wherein the Father Died Infeft, as of Fee, in so far as by Contract of Marriage betwixt Thomas sandiland's her Father, and john Burn, and Isobel Burn his Daughter, The said john Burn provided the said Tenement in their Terms, viz. after the Obligements upon the Husband's part, it follows thus (For the which Cause the said john Burn binds and obliges him to Inseft Thomas sandiland's, and the said Isobel Burn, the longest liver of them two in Conjunctfee or Liferent, and the Heirs between them, Which failzying, the said Isobel her Heirs and Assigneys whatsomever) By which Provision her Father being Feear and Infeft, the Defender is liable. The Defender alleged absolvitor, because by this Provision of the Conjunctfee of this Tenement, Isobel Burn the Defenders Mother was Feear, and her Father was but Liferenter, in respect the Termination of the Succession is to the Mother's Heirs, yea, and to her Assigneys, which necessarily imports, that she had power to Dispone. And it is a general Rule in Succession of Conjunct-Feears, that that Person is Feear upon whose Heirs the last Termination of the Tailzie or Provision ended, especially in this Case, where the Right of the Tenement flows from the Woman's Father. So that if there were any doubtfulness, it must be presumed, that the Father's meaning was to give the Fee to his Daughter, having no other Children: Neither is this Land Disponed nomine dotis: And the Defender stands Infeft by Precept of Favour, as Heir to her Mother, and thereby bruiks bona fide, and her Infeftment must Defend her till it be Reduced. The Pursuer answered, that by the provision, the Husband was Feear, and the Wife was only Liferenter, because though the last Termination doth ordinarily rule the Fee: yet this is as favourable a Rule, that in Conjunct Provisions, potior est conditio masculi, and though the Termination be upon the Wife's Heirs whatsomever, yet they are but Heirs of Provision to the Husband, and he might have Disponed, and his Creditors may affect the Land, which holds in all Cases, except the Lands had been Disponed by the Wife herself, without a Cause onerous. But here the Husband is first named, and it is but a small parcel of Land, beside which, there is no other Tocher; So that though it be not Disponed, nomine dotis, Yet being Disponed (for the which Causes) it is equivalent, and in the same Contract, the Husband is obliged to provide all Lands that he shall Acquire, or succeed to, to himself and his Wife, the longest liver of them two in Conjunct-fee or Liferent, and to the Heirs between them, Which failzying, the one half to the Husband's Heirs, and the other half to the Wife's Heirs and their Assigneys, and it cannot be imagined, that the meaning of these Clauses was, that the Fee of the Man's Conquest and Succession, should not be all Constitute in himself, but that the Wife should be Feear of the half. And in like manner, the Father's meaning is clear, because the Clause bears not only in Contemplation of the Marriage, but for sums of Money received by the Father, which albeit left blank in the Contract, yet it cannot be thought, that in such a Narrative, he intended to make his Daughter Feear. And as for the adjection of her Assigneys, it is only ex stilo, for Assigneys is ever added after the last Termination of Heirs, and does always relate to all the Feears, and would extend to the Heirs of the Marriage, their Assigneys as well, as to the Wife's Heirs failing them. Likeas, Assigneys' isin the same way adjected to the Clause of Conquest, wherein there is no ground to imagine that the Wife is Feear: and both bears the Husband and Wife to be Infeft in Conjunct-fee, or Liferent. The Lords found that by this Provision, and Infeftment thereon, the Husband was Feear, and the Wife only Liferenter, and found no necessity to Reduce the Defenders Infeftment, as Heir to her Mother, not proceeding upon a Retour, but a Precept of Favour, But they found that the dubiousness of the case was sufficient to free her from the passive Title of Behaviour, but only for making forthcoming her intromission, quoad valorem: But it was not Debated nor Considered, whether as bonae fidei Possessor, by a colourable Title, being Infeft as Heir to her Mother, she would be free of the bygones, before this Pursuit. Marjory Murray contra Isobel Murray. Eodem die. UMquhil Murray having Infeft Isobel Murray his Wife in two Tenements, did thereafter by his Testament, leave a Legacy of a thousand pounds to their Daughter Marjory Murray, and gave other Provisions to the said Isobel his Wife, and provided his Daughter to the two Tenements: Which Testament his Wife Subscribes, and after his Death Confirms the same, but under Protestation, that her Confirmation should not prejudge her own Right. The Daughter pursues for the Legacy of 1000 pounds, and for the Rents of the Tenements, and alleadges that the 1000 pounds must be free to her, without being abated by Implement of the Mother's Contract; And likewise the two Tenements by her Mother's consent and subscription. It was answered, that the Mother's subscription was a Donation betwixt Man and Wife, for being to the Man's Daughter, whom by the Law of Nature he is obliged to provide, it was all one as if it had been to himself. 2dly, her Subscription was obtained in luctu, her Husband being near his Death, and at his desire, ex reuèrentia maritali, and the Confirmation can be no Homologation, because of the Protestation foresaid. It was answered, that it was protestatio contraria facto: and the Wife had no necessity to do it, for she might have Confirmed herself Executrix Creditrix. The Lords found that there was here no Donation between Man and Wife, but in respect the Parties had not Debated the effect of reverentia maritalis, ordained them to be heard thereupon, and found the Protestation sufficient to take off the Ratification, or Homologation by the Confirmation, and found the Legacy of 1000 pounds to be left only according to the nature of a Legacy, out of the Defuncts free Goods, and would not exclude the Relict, or any Creditor. Sir David Dumbar of Baldune contra Sir Robert Maxwel. july 14. 1671. SIr David Dumbar of Baldune being Infeft upon several Appryzing in the Estate of Kirkcudbright, pursues Reduction and Improbation against Sir Robert Maxwel of Orchartoun, of all Rights of the said Estate, granted by Baldune himself, or by umquhil john Lord Kirkcudbright, or Thomas Lord Kirkcudbright, or any of their Predecessors, to whom they may Succeed jure sanguin●s, to the Defender. It was alleged no Certification of any Writs made by the Predecessors of john or Thomas, Lords Kirkcudbright, to whom they might succeed, jure sanguinis, because that can be no active Title to the Pursuer; for if john Lord Kirkcudbright himself were pursuing a Reduction, he would not have a sufficient active Title, to Reduce the Writs made by any Person to whom he was appearand Heir, unless he had been actually Heir: So neither can the Pursuer his Appryzer, have further interest than Lord john himself: for albeit the Clause is Relevant passive against the Defenders, to produce all Writs made to them, or to their Predecessors, to whom they may succeed, jure sanguinis, because Reductions and Declarators are Competent against appearand Heirs, without any Charge to Enter Heir: Yet they are not competent to appearand Heirs, till they be actually Entered. It was answered, that the Pursuer being publicly Infeft, has good interest to call for all Writs that may burden the Land, to the effect he may improve the same, as an impediment hindering his Infeftment: But specially an Appryzer who has not his Author's Rights, and that this has been always the stile of the general Clause in Improbations. The Lords found the Defense Relevant, and would grant Certification against no Writs, but such as were granted by person, whose Infeftments and Retours should be produced before Extract. The Defender further alleged, no Certification against any Rights made by Thomas or john Lords Kirkcudbright, to the Defender, because no person was called to Represent them: Whereas it is known that George, Lord John's Nevoy, is both appearand Heir-male and of Line, and that this has been the common Defense always Sustained. The Pursuer answered, that the only ground of this Defense, is when Defenders have Warrandice from their Authors; and therefore the Pursuer ought to call their Authors, that their Rights in●erring Warrandice upon them, may not be Reduced, they not being heard: But here the Defender produces no Right from Lord john, or Lord Thomas, and so the alleadgeance is not Relevant against the Production, but only in case such Rights be produced, it will be Relevant, when the Pursuer insists to Reduce the Writs produced. The Lords Repelled the Defense, and reserved the same, if any Right should be produced by the Defender, bearing Warrandice. Laird of Milntoun contra Lady Milntoun. Eodem die. THe Laird of Milntoun having insisted in an Improbature against the Lady Milntoun, for annulling a Decreet of Divorce, obtained at her instance against john Maxwel her Husband, the Relevancy whereof was Discussed upon the 31. day of january 1671. and only the manner of Probation of the Corruption of Witnesses, by prompting them how to Depone, or by promising, or giving them Bribes, or any good Deed to Depone, more than their ordinar Charges, remained undiscust. It was alleged, that such Reprobators were only probable by Writ, or Oath of the Party adducer of the Witnesses, post sententiam latam, for Reprobators upon Corruption, albeit they might be proven before Sentence, by Witnesses above exception as to giving of Bribes, which was a palpable Fact, yet not then, by prompting, or promising, or any words emitted, which are only probable by the Witnesses adduced, or by the Oath of the Adducer: Neither in that case, if the Witnesses adduced be above all exception, can Witnesses be adduced against them, but only their own Oath, or Oath of the Party: So that any Party that quarrels Witnesses by Reprobators, aught to do the same after they are adduced▪ and before Sentence; but if Sentence be once pronounced, and Extracted, it is res judicata, quaepro veritate habetur: And if Reprobators upon corruption, be used after the Sentence, upon Corruption; the same can only be probable by the Oath of the Adducer: And neither by the Oath of the Witnesses adduced, who cannot annul their own Testimony, post jus quaesitum parti, nor by other Witnesses: and if it were otherwise, the greatest inconveniencies would follow: for then the Sentence and Securities of the people, founded thereon, might for forty years' space be quarrelled upon pretence of corruption, and singular Successors acquiring bona fide, might be outed of their Rights: As also, there shall be no Termination of Process; for as the first Sentence may be Canvelled by Reprobators against the Testimonies, whereupon it proceeded: so may the second be Canvelled in the same manner by a second Reprobator, and so without end. And seeing the Law of this Kingdom hath been so jealous of Probation by Witnesses, that it hath not allowed sums above 100 pounds to be proven thereby: So Witnesses should not be admitted in Reprobators, especially after Sentence. It was answered, that Reprobators being a necessary remeed against the Partiality and Corruption of Witnesses: and the question being only, the manner of Probation, by the Law of God and all Nations, Witnesses are the general mean of Probation, and so ought to take place in all Cases, where Law or Custom hath not restricted the same, and it cannot be pretended, that ever there was one Decision of the Lords finding Reprobators only probable scripto vel juramento: And it being acknowledged, that Witnesses are competent, ante sententiam, there is neither Law nor Reason to refuse the same, post sententiam, especially with us, where the Names of the Witnesses are never known till they be produced, neither is their Testimonies published, or ever known before Sentence: So that the other Party can have no interest to quarrel their Testimonies, or know them before Sentence, and so Reprobators shall never be effectual, unless proven by the Oath of the Party, that hath Corrupted them, which is as good as absolutely to refuse Reprobators; for it cannot be imagined that a Party will Corrupt Witnesses, and not resolve to deny it upon Oath. And as ●o the inconvenience to singular Successors, the Oath of the Author may be as hazardous to them as Witnesses: and if the acquirer of the Sentence be denuded, if in that Case, even their Oath be not receivable, it is easy to Evacuat all Reprobators. And as for the inconvenience of perpetuating Processes, that holds, whether Witnesses be receivable in Reprobators before Sentence or after, and if admitting of Witnesses be so qualified, that it be only when the Witnesses in the first Sentence, are not above Exception, and the Witnesses in the Reprobators above all exception, and that it be in a palpable Fact of receiving Bribes, and recently only after Sentence, and with a liberty to the Obtainer of the Sentence, to astruct the same by other Witnesses, or Evidences, as in Improbations; for Reprobator is a kind of Improbation, there can be no hazard of multiplying Reprobators, but this inconvenience, if it were Relevant, would not only take away all Reprobators, but all Reductions, for the Decreet Reductive may be quarrelled by a second Reduction, and that by a third, and so without end. But the inconvenience on the other hand is far greater, that all Parties will be sure to Corrupt Witnesses, if they do but resolve not to confess it, and Witnesses will be easy to be Corrupted, being secured against all Redargution: And whereas it is pretended, that Witnesses with us prove not above 100 pounds, that is only where Writ may, and uses to be adhibite, in paenam negligentium: But otherways Witnesses are adhibite in the greatest matters, as Improbation of Writs, Probation of Tenors, Extortion, Circumvention, Spuilzies, Ejections, and Intromissions of whatsomever kind or quantity. The Lords found Reprobators upon Corruption, and prompting of Witnesses, only probable scripto vel juramento, after Sentence, this was contrair the opinion of many of the Lords, and was stopped till a further hearing at the Bar. Earl of Hume contra The Laird of Rislaw. july 18. 1671. THe Kirk of Fogo having been a Kirk of the Abbacy of Kelso, when the same was Erected; this Kirk was reserved in favours of the Earl of Hume, and Disponed to his Predecessors, whereupon he pursues the Laird of Rislaw for the Teinds of his Lands, as a part of the Teinds of Fogo, who alleged absolvitor, because his Predecessors obtained Tack of their Teinds from the Minister of Fogo, as Parson thereof, which Tack, though it be now expired, yet he bruiks, per tacitam reloca●ionem. The Pursuer Replied, that his tacit Relocation was interrupted by Inhibitions produced. The Defender answered, that the Inhibitions were only at the instance of the Earl of Hume, who was never in Possession of his Teinds, whose Right he neither knew, nor was obliged to know, and the Earl ought to have used Declarator against the Defender, and the Parson of Fogo his Author▪ which was the only habile way, and not the Inhition. The Lords Sustained the Process upon the Inhibition, and restricted the Spuilzie to wrongous' Intromission, unless the Defender could propone upon a Right in the Person of himself, or his Author, that could either simply exclude the Earls Right, or at least give the Defender▪ or his Author the benefit of a possessory Judgement, and put the Earl to Reduction or Declarator. Whereupon the Defender alleged, that the Parson of Fogo was presented by the King, as Parson of Fogo, and did so bruik by the space of thirteen years, which was sufficient to Defend him, in judicio possessorio. It was Replied, First, That the Minister cannot pretend the benefit of a possessory Judgement, because his Possession was not peaceable, in so far as it was within the thirteen years, it was interrupted by the Pursuers Inhibitions. The Defender answered, that he offered to prove thirteen years' Possession, at least seven years peaceable Possession, before any Inhibition, which is sufficient; for as thirteen years' Possession makes a presumptive Title, decennalis & triennalis possessor non tenetur docere de titulo: yet where the Defender produces a Title, viz. a Presentation as Parson, he is in the common Case of a possessory Judgement upon seven years' Possession. The Pursuer further Replied, that albeit the seven years were peaceable, and sufficient for a possessory Judgement; yet the Defender cannot maintain his Possession by tacit Relocation, for he having no positive Right in his Person, his Tack being Expired, he can only maintain his Possession upon his Authors Right, as Parson, and so can be in no better Case than his Author, who if he were compearing, not pleading the benefit of a possessory Judgement, he would be excluded by this Reply, that he had acknowledged the Earls Right, and taken Assignation from him to the Tack-duty, due by the Defender, which, though it would not be sufficient after the Defenders Tack, to exclude the same, if it were not expired, yet it is sufficient against his tacit Relocation, which can only subsist, while his Author hath Right and Possession, and being but a presumptive continuation of the Right, it is easily taken away by any Deed of the Author. It was answered, that tacit Relocation being introduced by Law, was as strong as a Prorogation, and continuation of the Tack, which could not be prejudged by any posterior Deed of the Parson. The Lords found the Defense upon the Parsons Right clad with seven years peaceable Possession Relevant in judicio possessorio, to defend the Defenders tacit Relocation, but found the Reply Relevant, that the Parson had accepted Assignation from the Pursuer, to make the Defender liable for the ordinary profits, after the Assignation, and after the first Inhibition, but only for the Tack-duty till the first Inhibition, and found that the tacit Relocation was not in a like case, as if the Defender had a Tack, or Prorogation. Andrew Harlaw contra Agnes Hume. july 18. 1671. ANdrew Harlaw having obtained Decreet against Agnes Hume, as Executrix to her Husband: She Suspends and raises Reduction on this Reason, that the inferior Judge did wrong in Decerning her, being only Executrix Creditrix, as being liable for the whole Inventar, because by the Law and Custom of this Kingdom, Executors Creditors, who Confirm only for obtaining payment of their Debt▪ are liable for no more but what they intromet with above the Debt due to them, and are not liable for further Diligence as other Executors: Yea it was found upon the 11. of june 1629. observed by Dury, that an Executor having no interest, was not liable for Diligence, but only to Assign in the Case betwixt Nivin and Hodge. It was answered, that Executors Creditors are liable for intromission and omission as other Executors, because they accept an Office, and exclude others who would be liable for Diligence, and they have no more advantage, but that they are preferred to others as being Creditors, and may pay themselves in the first place, and it would be of pernicious consequence, if their negligence should cause the interest of Children, though Orphans, as well as Creditors to perish; and therefore the Lords did justly in Anno 1667. in the Case betwixt Biscuit and Greig, find an Executor Creditor liable for the whole Inventar, both for Intromission and Omission. It was answered, that it hath always been heretofore holden, that Executors Creditors were not in the case of other Executors as to Diligence, and that the ordinar Remeed was, that Creditors might pursue the Executor Creditor, and thereupon would obtain Assignations to any Debts in the Inventar they pleased, except such as had been uplifted by the Executor, for their own payment; upon which Assignations they did always pursue for themselves, so that there was neither Exclusion nor obstacle to the Creditors, but on the contrair, they got Assignations, without being at the trouble to Confirm: So that this Confirmation being many years ago, it were against all Reason to make the Executors Creditors further liable than they were then esteemed to be, which might also be drawn back against all Executors Creditors, which are very many. The Lords having considered the Decision betwixt Biscuit and Greig, that it was upon a recent Confirmation, and in favours of a Wife for her Provision, out of whose hands the Executor had recovered the Goods, though she was a privileged Creditor: They found that this Executor Creditor being long before Confirmed, was not liable for Diligence, but only for Intromission, and resolved to take it into consideration, whether Executors Confirming in time coming, should be liable for Diligence, and to consider the inconvenience on both parts, and to make an Act of Sederunt thereanent. Countess of Cassils' contra Earl of Roxburgh. Eodem die. THe Countess of Cassils' in her Contract of Marriage with the Lord Ker, being provided to 5000. pounds, he did stante matrimonio, provide her to an Annualrent of 10000 marks further during her Life-time, and upon his Deathbed, he made two Testaments of one date, by the one he nominate his Father Tutor to his Children, and left to him the Provisions of his Wife and Children, by the other he provided his Lady to 5000. pound more than her Contract, and named Provisions for his Children, but subjoined a Clause, that if his Father, who was then in England, returned and made use of the other Testament, that this Testament should be null▪ The Earl of Rox●urgh his Father did return, and was Infeft as Heir to his Son, and did Ratify his Son's Bond of Provision of 10000 marks, and by his Testament, did expressly mention his Sons former Testament, and by virtue thereof named Tutors to his Oyes, and by a Bond appart, gave different Provisions to them, from these appointed by their Father's Testament, and this Earl of Roxburgh being Heir of Tailzie to him, did in his Contract of Marriage reserve the Pursuers Infeftment of this Annualrent, and did many years satisfy and take Discharges of the same; and now she pursues the Earl, as contraverting the payment for some years bygone, and in time coming during her Life. The Defender alleged absolvitor, because the Pursuer being competently provided by her Contract of Marriage, this additional Provision was a Donation betwixt Man and Wife, and so by the Law is Revockable at any time during the Husband's Life, even upon Deathbed, or by his Testament, not only by a direct Revocation, but by any thing that might import a change of his mind, and accordingly he hath revoked the same by his Testament produced, adding only 5000. pounds to his Lady's Provision by her Contract, and albeit thereafter the late Earl did Ratify and acknowledge this additional Provision, yet therein they were errore lapsi, not having known of this Testament of the Lord Ker, at least not having understood that it imported a Revocation of this Provision, and therefore may justly now Reclaim against it. The Pursuer answered, that this Testament imported no Revocation, which it did not mention, neither is the addition of 5000. pounds therein an indirect Revocation, which must ever be by an inconsistent Deed, but both these conditions are consistent, albeit that by the Testament it be modo inhabili, and it is very like that the Testator, being taken with a great Fever, did not remember of this Provision, or added the other 5000. pounds on this consideration, that the former Provision was only to take effect, after the Earl of Roxburghs Death; so that the Lord Kers meaning might probably be to add 5000. pounds during his Father's Life-time. 2dly, Though the Testament could import a Revocation, yet the Testament itself being Conditional, only to stand in case his Father returned not to Scotland, and made use of the other Testament of the same date, all the Tenor of it, and this restricting Clause, is affected with the same Condition, so that if the Testator had said that he had restricted his Ladies additional Provision to 5000. pounds in case his Father returned not, but in that case left her to his Father's provisions, it would be truly a conditional Revocation, which Condition is purified by the Father's Return, and providing the Lady by his Ratification of this Bond of Provision, nor can it be justly alleged, that both this and that Earl were errore lapsi, seeing the Testament is produced by the Earl himself, and was never in the Lady's hands, and doubtless it hath been advised by the late Earl ere he Ratified, who was a most provident man, and his Ratification is dated at the Canongate, ubi fuit copia peritorum, and if Ratifications should become ineffectual, or if errore lapsus, should be Relevant upon the ignorance, or mistake of the import of a Writ; Ratifications should be of no effect, but any ground that might defend the Ratifier before the Ratification, might annul the same upon pretence that he knew it not: and therefore errore lapsus is only understood de invincibili errore facti, but never de ignorantia juris quae neminem excusat. The Lords found that any Revocation by the Testament was only Conditional, and became void by the Earls Returning, and making use of the other Testament; and therefore Repelled the Defense in respect of the Reply, and had no necessity to determine anent the Confirmation, and Error alleged. Lindsay of Mount contra Maxwel of Kirkonnel. july 20. 1671. LIndsay of Mount being Donator to the Waird of the Estate of Kirkonnel, by the Death of the late Laird, and Minority of this Laird, pursues the Tenants for Mails and Duties. Compearance is made for the appearand Heir, as having Right by Disposition from his Grandmother to an apprizing, led at her Instance against her Son, and alleged that there could be no Waird, because Kirkonnel the King's Vassal was Denuded before his Death, and his Mother as Appryzer was Infeft. It was answered first, That this Apprizing was upon a Bond granted by the Defunct to his own Mother, for the behoof of his Son, and appearand Heir, without any onerous Cause, and so was null and simulat, and a fraudful Contrivance, in prejudice of the King as Superior, of his Casuality of Waird, and that it was found in the Case of the Lord Colvil, that a Vassal having married his appearand Heir in lecto, It was found a Fraudulent precipitation in defraud of the Waird. It was answered, that the alleadgeance was not Relevant, because there was nothing to hinder the Defunct to have Resigned in favours of his appearand Heir, without any Cause onerous, or to grant him a Bond that he might be Infeft upon apprizing, or to grant such a Bond to any Person to the Heirs behoove, he being in liege poustie, and there can be no presumption of Fraud, seeing he might have obtained his Son Infeft directly, which the King refuses in no case, when the Granter is in liege poustie. The Lords Repelled the Alleadgeance for the Donator, and Sustained the apprizing. The Donator further alleged, that by the Act of Parliament 1661. betwixt Debtor and Creditor, It is provided, that the Debtor may cause the Appryzer Restrict himself to as much as will pay his Annualrent, and the Debtor may bruik the rest during the Legal; and now the Donator is in place of the Debtor, so that what superplus there is more than will pay the Appryzers' Annualrent▪ must belong to the Donator. It was answered, that this Clause is peculiar, and personal to Debtors, and cannot be extended to Donators, who are not mentioned therein; because Debtors when they crave Restriction, they are presumed as provident men, to uplift the rest for satisfying the apprizing, or their other Debts, or for their Subsistence, and so being introduced wholly in their favours, it cannot be extended in favours of the Donator to their prejudice: For if the Appryzer Possess all, the superplus will satisfy the apprizing; whereas, if the Donator uplift the Superplus, the Debtor will be hudgely prejudged, neither the apprizing, nor any other Debt of his being satisfied thereby, nor his Heir entertained therewith. The Lords found that this Clause could not be extended to a Donator, and that there could not be a Waird, both by the Decease of the Appryzer and Debtor. The Donator further alleged, that the apprizing was satisfied by Intromission within the Legal, which did extinguish the apprizing, as to all Effects and Purposes, as if it had never been, and all Parties return to their Rights, as they were before the apprizing; and so consequently the Superior, and his Donator has the Ward Duties, during the appearand Heirs minority, after the apprizing is extinct; for the apprizing being but a Collateral Security, like an Infeftment for Relief, it is jus resolubile, and doth not fully Divest the Debtor, who needs not be Reseased, as he would be in the case of a Wodset holden public, but the Debtors own Infeftment Revives and stands valide, and the appearand Heir must be Infeft as Heir to the Defunct, which cannot be till he be legitimae aetatis, after the Ward. It was answered, that the Alleadgeance is not Relevant, unless the apprizing had been satisfied in the Defuncts Life, for then his Infeftment would have Revived: But if any thing remained due, the appearand Heir hath the Right of Reversion as appearand Heir, and Intromission thereafter cannot Revive the Defuncts Infeftment. The Lords found that so soon as the apprizing was extinct, whether before the Defuncts Death or after, the Ward took effect, and the Donator had Right. Laird of Birkinbog contra john Grahame of Craigie. Eodem die. IN a Competition amongst the Creditors of umquhile Sir Robert Dowglass of Tilliquhilly, a Disposition granted by Sir Robert to Grahame of Craigie, was called for to be Reduced upon this Reason, that it was granted by Sir Robert when he was a notorious and known Bankrupt, and fled and was latent, so that by the Act of Parliament 1621. he could not prefer one Creditor to another, being in that Condition, for that Act annuls all Dispositions made by Bankrupts, without a just and necessary cause, and there was no necessity nor Justice for the Bankrupt to prefer one Creditor to another. It was answered, that unless there had been legal Diligence at the Pursuers instance, or that the Defenders Disposition had been without a cause onerous, there is no ground for that Act to hinder any Debtor, though Bankrupt, to prefer one Creditor to another, for if he had had the Money, he might have paid any he pleased, and the Cause is both just and necessary, because he might have been compelled by Law to have done the same, and there was nothing to hinder the Creditor, but that as he might have first apprised, so he might have taken the first Disposition from his Debtor. 2dly, The Pursuers Debt was for a Bargain of Victual Sold and Delivered to the common Debtor, but a Month before the Disposition in question, when he was alleged to be Bankrupt. The Lords found the last Alleadgeance Relevant, and Assoilzied from the Reduction, but did not decide upon the former alleadgeance. Guthrie contra Mackarstoun. Eodem die. IN a Competition betwixt an Heir and an Executor, anent the Rent of a Miln, where the Tacks-mans' Entry was at Whitsunday, where the first Terms of payment of the Rent was at Candlemas, and the second at Whitesunday, the Liferenter having survived Candlemas, and died before Whitesunday: The question arose, how far the Executor of the Liferenter had Right, it being alleged, that the Executor of the Liferenter could only have Right to the one half, the Liferenter having only survived the first Term as in House Mails. The Lords found that the legal Terms of a Miln Rent being Whitesunday and Mertinmas, the Liferenter having survived both the legal Terms, had Right to the whole years Rend in the same way as in Land Rents, and not to the one Term as in House Mails. Sir George Maxwel of Nether Pollock contra Maxwel of Kirkonnel. july 21. 1671. IN this pursuit related the 11th, of july instant: It was further alleged for the Defender, that the Pursuer cannot purge his apprizing, as now being in the Person of the appearand Heir, by the Act of Parliament 1661. betwixt Debtor and Creditor, by payment of what truly the appearand Heir paid, because the express Provision in that Act is, that where ever the appearand Heir of the Debtor shall acquire Right to expired Apprizing hereafter, which cannot extend to this case, because the Right to this Apprizing was acquired before that Act, and because it was not an expired apprizing, but the Legal then running. It was answered, that albeit the Disposition of the apprizing granted to the appearand Heir, was prior to the Act, yet the Right was purchased posterior to the Act, for the Disposition could not give Right, but only the Infeftment following thereupon; for if after that Disposition, any other had been Infeft upon apprizing or Disposition by the Defenders Author, that posterior Infeftment would carry the Right, so that the Author cannot be said to be divested, or the appearand Heir invested, or stated in the Right, till his Infeftment, which is after the Act of Parliament. To the second, The Pursuer answered, that the Defenders apprizing, albeit it was Redeemable, when he acquired Right thereto; yet it becoming now irredeemable in his Person; it cannot be denied but he has acquired Right to an irredeemable apprizing, albeit it was not irredeemable when he acquired the Right, yet he hath acquired Right to that apprizing, that now is irredeemable; for the Extinction of the legal Reversion, cursu temporis, is a Right accrescing to him, and acquired by him, and no heritage to him: and seeing the Words of the Act are capable of this interpretation, there can be no doubt of the Legislators mind, or that it should be thus interpret; because otherways that excellent Provision would be evacuate, for the appearand Heir would always acquire Right to an apprizing before the Legal were expired, though he should pay the Appryzer the full sum, and would make no use of it till the Legal were expired, and thereby carry the Right of the whole Estate, though it were of twenty times more value: But the only Motive of that Act of Parliament being, that albeit the Law gives Appryzers the Right of all that they Appryze at random, if they be not Redeemed within the Legal▪ yet the Appryzer is ashamed to take so great Legal advantage; and therefore ordinarily compones with the appearand Heir, who being favourable, makes no Bonds to bruik the whole Estate of his Predecessor, excluding all his other Creditors: and therefore this Remeed is introduced, which will be evacuate, if the Act of Parliament be not thus interpret, and that interpretation should be ever followed, which is according to Equity, and whereby the Statute may stand, and not be eluded. The Defender answered, that this Statute being Correctory of the Common Law, is strictly to be interpret, and not to be extended: and the Acquisition of Rights being ever interpret from the Disposition, and not from the Infeftment thereon, multo magis, should it be so interpret in this case, And as to that part thereof anent the Expyring of the apprizing, the Pursuers Interpretation is not only constrained, but inconsistent with Justice, for ubi subest Remedium ordinarium non est recurrendum ad medium extraordinarium, for if the appearand Heir acquire Right to an apprizing unexpyred, the Reason and Motive of the Statute ceases, for both the Debtor and Con-creditors may Redeem from the appearand Heir, and can pretend no necessity of extraordinary Remeed, especially if the appearand Heirs Right be not latent, but public by Infeftment. The Lords found that the appearand Heirs Right being only become Real by Infeftment after the Act of Parliament, that it was then to be understood to be acquired, when the Author was Denuded and the appearand Heir Invested, so that no posterior Right from his Author could Exclude him: And found also, that albeit the appearand Heirs Right were during the Legal, yet if it stood in his Person till the Legal were expired, that the same fell within the Act of Parliament, and found it Redeemable by what the appearand Heir truly paid within ten years, to be counted from the Date of the acquiring of the Right, conform to the words of the Act, and not from the time the apprizing became expired thereafter. Scot of Hassendene contra The Duchess of Buccleugh. Eodem die. UMquhil Scot of Hassendene having no Children, Disponed his Estate to Buccleugh his Chief, who granted a Back-bond of the same Date, bearing the Disposition to have been granted upon the ground foresaid, and obliges himself and his Heirs, that in case Hassendene should have Heirs of his Body to succeed him, that he should denude in favours of these Heirs: and now his Son and Heir born thereafter, pursues the Duchess to Denude, who alleged Absolvitor, because the Back-bond being now fourscore years since, is long ago expired. It was answered, that albeit the Date be so long since, yet the Prescription runs not from the date, but from the Death of the Pursuers Father, which is within forty years, for the Pursuer could not be his Heir before he was Dead; and the Back-bond bears, if Hassendene had Heirs to succeed to him. It was answered, that Heirs oftimes were interpret, Bairns that might be Heirs; and if this Pursuer had pursued in his Father's Life, he could not have been justly excluded, because his Father was not Dead, and he actually Heir, and so valebat agere, in his Father's Life. It was answered, that although in some favourable Cases, Heirs be interpret to be Bairns that might be Heirs; yet in odiosis, it is never so to be interpret, and there is nothing more odious, than to take away the Pursuers Inheritance, freely Disponed to Buccleugh by his Father, in case he had no Children upon Prescription, by such an extensive interpretation of the Clause. 2dly, If he had pursued in his Father's Life, he might have been justly Excluded, because if he had happened to die without issue, before his Father Buccleugh had unquestionable Right, and so during his Father's Life, he could not be compelled to Denude. The Lords found that the Prescription did only run from the Death of the Father, and that this Pursuer could not have effectually pursued in his Father's Life-time. Blair of Bethaick contra Blair of Denhead. july 22. 1671. PAtrick Blair of Bethaick as principal, and Patrick Blair of Ardblair as Cautioner, granted Bond to jean Blair, and failing of her by Decease, to her Children equally amongst them, for the sum of 2550. marks, upon 5th of May 1624. there were five years Annualrent resting at the Death of the said jean Blair, and now Captain Guthry her Executor pursues the Representatives of the Cautioner for payment thereof, who allege Absolvitor, because the last of these Annualrents being due in Anno 1630. There is forty years run before this pursuit, or any other Diligence, and so the Bond itself is Prescribed, and specially these years' Annualrents. The Pursuer Rep●yed, that the Prescription was interrupted, in so far as a part of the Principal Sum was paid within the years of Prescription. It was answered for the Defender, that the payment being mode to the Daughters of the principal Sum, it could have no effect as to the Annualrents preceding jean Blairs Death, which belonged not to her Daughters, as persons Substitute in the Bond, but to her Executors, so that the Bond might well be preserved, as to the principal Sum, and yet prescribe as to the Annualrents, these being two several Right, and stated in several Persons. It was answered, That the Interruption by payment was sufficient for preserving both Principal and Annual, for Prescription being odious, any Deed by which the Debtor and Creditor acknowledge the Right within the forty years, is sufficient, not only as to the interest of the particular Actors, but as to all others who have interest in the same Right, as payment of any part of the Annualrent by one Person, preserves the whole Right against all the Cautioners and Co-principals, though they neither paid, nor were pursued within forty years, so payment of any part of the Principal, must in the same manner preserve the Right of the Bond, as to all Annualrents, to whomsoever they belong, if they be not forty years before that Interruption, by payment of a part of the principal. Which the Lords found Relevant. This was stopped on the Lords own consideration, without a B●ll from the Parties, because by common Custom, though Annual had been constantly paid for forty years, yet all preceding prescribed, whereupon it was contrarily Discerned thereafter, February 7. 1672. Alice Miller contra Bothwel of Glencorse. Eodem die. ALice Miller pursues Improbation of a Minute of a Tack betwixt her and Glencorse who compeared and abode by the verity of the Tack, and the Writer and Witnesses of the Tack being Examined upon Oath, did Depone that they did not see Alice Miller Subscribe, and one of them Deponing that he had Subscribed at Glencorses' instigation, who told him that he had caused set to Alice Miller's Name, only one Witness who was Writer, and was Glencorse his Brother Deponed that he saw the said Alice Miller Subscribe with her own hand. The Lords having this Day Advised the Cause, found that the Witnesses did not abide by the verity of the Subscription of the said Alice Miller, and did therefore improve the Minute, but found it not proven who was the Forger of the said Alice Miller's Subscription. Captain Guthrie contra The Laird of Mccairstoun. july 25. 1671. CAptain Guthrie having Married Dame Margaret Scot, and she dying in Possession of the Lands of Mannehill, Laboured by her Husband and her in the Month of April, Mccairstoun as Heretor of the Land, craves the Rent of the Land for that year, in respect the Liferenter neither lived till the first Legal Term, which is Whitesunday, nor till Martinmasse. It was answered, that by immemorial Custom, Liferenters have Right to the Cropped of Lands Sowed by themselves, whether they attain to the Term of Whi●esunday or not, neither were they ever found liable for any Duty therefore. Which the Lords Sustained. Robert bailie contra Mr. William bailie. july 27. 1671. THe Laird of Lamingtoun having made a Tailzie of his Estate wherein William bailie eldest Son to his Deceased eldest Son, is in the first place, and to him is Substitute Robert bailie, Lamingtouns second Son, and the Heirs of his Body, reserving to the said Robert his Liferent, from the Fee of his Heirs, in case they succeed, and failzying of Robert's Heirs, to Master William bailie, Lamingtouns Brother Son, after Lamingtouns Death there is a Contract betwixt this Lamingtoun and Mr. William bailie on the one part, and Robert on the other, by which Lamingtoun obliges himself to pay to Robert, the sum of six hundreth marks during his Life, and Robert Renunces and Dispones to Lamingtoun his portion natural, and Bairns part of Gear, and all Bonds and Provisions made to him by his Father, and all Right he has to the Estate of Lamingtoun, or any part thereof, and that in favours of this Lamingtoun, and his Goodsires' Heirs males, contained in his Procutry of Resignation. Robert bailie raises a Declarator against Lamingtoun and Mr. William bailie, for Declaring that this Contract could not be extended to exclude him or his Heirs from the Right of Tailzie in the Estate of Lamingtoun, failzying of this Laird and his Heirs, and that it could only be extended to any present Right Robert had to the Estate of Lamingtoun, but to no future Right, or hope of Succession, seeing there is no mention either of Tailzie or Succession in the Contract. It was alleged Absolvitor, because Robert getting 600. Marks yearly, he can instruct no Cause for it but this Renunciation, which must necessarily be so interpret, as to have effect, and so if it extend not to exclude him from the Tailzie, it had neither a Cause for granting the six hundreth marks, nor any effect thereon. It was answered, that Robert being a Son of the Family, and Renuncing his Portion natural, it was a sufficient Cause, and though there were no Cause, such general Renunciations could never be extended to future Rights, or hopes of Succession, unless the sum had been expressed. Which the Lords found Relevant, and Declared accordingly. Sir john Keith contra Sir George johnstoun. july 28. 1671. THe Estate of Caskiben being apprised by Doctor Guilford, Sir George johnstoun the appearand Heir, acquired Right to the apprizing, in the Person of Phillorth, who by a Missive Letter, acknowledged the Trust, upon which Letter, Sir George raised Action against Phillorth, to count for his intromission, and Denude himself, and upon the Dependence, raised Inhibition, yet Phillorth sold the Estate to Sir john Keith, who to clear himself of the Inhibition, raised a Declarator that the Inhibition was null, and that his Estate was free of any burden thereof, because it wanted this essential Solemnity, that the Execution against Phillorth did not bear a Copy to be delivered, and that the Executions being so Registrat, he being a Purchaser for a just price; and seeing no valid Inhibition upon Record, he ought not to be Burdened therewith. The Defender alleged Absolvitor: Because, First, The delivering of a Copy was no Essential Solemnity, neither does any Law or Statute ordain the same: much less any Law declaring Executions void for want thereof: and albeit it be the common Style, yet every thing in the Style is not necessary; for if the Messenger should have read the Letters, and shown them to the Party, he could not say, but that he was both Certiorat and Charged not to Dispone. 2dly, The Executions bear, that Phillorth was Inhibit, personally apprehended. 3dly, The Inhibition comprehends both a Prohibition to the Party Inhibit, and to all the lieges at the Mercat Cross, at which, the Execution bears a Copy was affixed, so that whatever defect might be pretended as to Phillorth, this Pursuer and all the lieges were Inhibit to block or buy from him, so that the Pursuer has acted against the Prohibition of the Letters, and cannot pretend that he purchased bona fide, being so publicly Inhibit, and the Inhibition put in Record, he neither should nor did adventure to purchase, without special warrandice, to which he may recur. 4thly, Such Solemnities when omitted may be supplied; for there is nothing more ordinar than in Summons to add any thing defective in the Executions, and abide by the truth thereof, and many times these Solemnities are presumed done, though not expressed, as a Seizing of a Miln was Sustained, though it bear not Delivery of Clap and Happer; yet bearing a general with all Solemnities requisite, it was Sustained: and a Seasine of Land, though it bear not Delivery of Earth and Stone, seeing it bear Actual, Real and Corporal Possession, and the Clause ●acta erant hac super solo etc. ut moris est: Yea, in other Solemnities which the Law expressly requires as three ●las●s in the Executions of Horning, and six knocks, and the affixing of a Stamp, have all been admitted by the Lords to be supplied, by proving that they were truly done, though not expressed in the Execution: Though Horning be odious and penal, inferring the loss of Movables and Liferent; therefore it ought much more to be supplied in the case of an Inhibition, which is much more favourable to preserve the Croditors Debt, and here the Messenger hath added to the Execution, that a Copy was Delivered, and Subscribed the same on the Margin, and it is offered to be proven by the Witnesses in the Execution, that it was truly so done. The Pursuer answered, that there was nothing more essential in an Execution, than delivering of a Copy, for showing or Reading of Letters was no Charge, but the delivering of the Copy was in effect the Charge; and albeit Executions which require no Registration, and may be perfited by the Executor, at any time may be amended as to what was truly done; Yet where Executions must necessarily be Registrate within such a time, else they are null, after the Registration the Messenger is functus officio, and his assertion has no Faith: and seeing the giving of a Copy is essential, and if it be omitted, would annul the Execution; so after Registration it cannot be supplied, because in so far the Execution is null, not being Registrate, debito tempore, for as the whole Execution would be null for want of Registration, so is any essential part: and whatever the Lords has supplied in Hornings, yet they did always bear, that the same was lawfully done according to the Custom in such cases; and this Execution does not so much as bear that Phillorth was lawfully Inhibit, but only according to the Command of the Letters which do not express any Solemnity: and it hath been found by the Lords, that a Horning being Registrate, and not bearing a Copy Delivered, it was found null; because that part was not in the Register, nor was it admitted to be supplied any way, but that it were proven by the Oath of the Keeper of the Register, that that Clause was upon the Margin of the Execution, when it was presented to the Registister, and was only neglected to be insert by him, which shows how necessary a Solemnity the Lords have accounted the giving of a Copy, and Registrating thereof: And if Solemnities of this kind, be by Sentence passed over, it will not only encourage Messengers to neglect all accustomed Solemnities, but course of time may encroach on all other Solemnities; whereas, if this be found necessary, none will ever hereafter omit it, or any other necessary Solemnity. The Lords found the Inhibition null, and that the Delivering of a Copy was a necessary Solemnity, which not being contained in the Register, they would not admit the same to be supplied by Probation, in prejudice of a singular Successor, Acquiring for a just price. Hadden contra The Laird of Glenegies. Eodem die. HAdden being Donator to the Marriage of the Laird of Glenegies, pursues Declarator for the avail thereof. The Defender alleged Absolvitor, because by an Act of Parliament 1640. It was Declared, That whosoever was killed in the present Service, their Waird and Marriage should not fall, Ita est, Glenegies was killed during the Troubles, at the Battle of Dumbar. It was Replied, that the present Troubles could not extend further than to the Pacification, Anno 1641. After which there was peace till the end of the year, 1643. 2dly, The Parliament 1640. and all the Acts thereof are Rescinded. It was duplied, That the Troubles were the same, being still for the same Cause, and that the Rescissory Act contained a salvo of all private Rights Acquired by these Rescinded Acts. It was answered, that this was a public Law, and the salvo was only of particular concessions by Parliament to private Parties. The Lords found that the Act 1640. reached no further than the Pacification, by which the Troubles then present were Terminate. The Lords Demured in this case upon remembrance of a Process before them, at the instance of the Heirs of Sir Thomas Nicolson, against the Heirs of the Laird of Streichen, upon the Gift of Streichens Waird, to Sir Thomas, who Died the time of the War, being Prisoner by occasion of the War, and after Pacification, that they might have seen what they had done in that Case, but did not get the Practicque, and the Parties being agreed, they Decided in manner foresaid, wherein this was not proponed nor considered, that the foresaid Act was always esteemed, an Exemption after the Pacification, during the whole Troubles, and no Waird for Marriage was found due that time, though many fell during the War, and if it had not been so esteemed, the same Motives that caused the first Act to be made in Anno 1640. would have moved the renewing thereof after the Pacification: and no doubt the King and Parliament Anno 1650. before Dumbar would have renewed the same for encouragement, in so dangerous a War, if it had not been commonly thought that the first Act stood unexpired. Murray contra The Earl of Southesk, and other Appryzers of the Estate of Powburn. Eodem die. JAmes Murray having Right to an apprizing of the Estate of Sir james Keith of Powburn, led at the instance of Mr. Thomas Lundie, pursues thereupon for Mails and Duties. Compearance was made for the Earl of Southesk, and posterior Apprizers after Year and Day, who alleged that by the Act of Parliament 1661. betwixt Debtor and Creditor. It is provided that the Lords of Session, at the desire of the Debtors, may ordain Appryzers to restrict their Possession to as much as will pay the Annualrent, the Debtor Ratifying their Possession, and now the Posterior Appryzers having apprised omne jus, that was in the Debtor, craved that the first Appryzer might Restrict himself to his Annualrent, and they preferred to the rest of the Duties. It was answered that this was a personal and peculiar privilege in favours of the Debtor, that he might not unnecessarly be put from his Possession, and which he might make use of against all the Appryzers, if there were a superplus above the Annualrents, and it is upon condition that the Debtor Ratify the Appryzers' Possession, which is not competent to a posterior Appryzer, in whose favour this Clause was never meaned: But there is a special Clause for posterior Appryzers, being within year and day, to come in pari passu: neither can the posterior Appryzers have any interest, because the superplus will satisfy the first apprizing pro tanto. The Lords found the foresaid privilege peculiar to the Debtor; but found that the first Appryzer, seeing he excluded the rest, behoved to count from this time as if he had Possessed the whole. The End of the first Part of the Decisions of the Lords of Session: AN INDEX Of the Pursuers and Defenders Names, for the usual and easier Citing of the Lords Decisions. ABercrombie contra anderson's, 15 Novemb. 1666 Lord Abercrombie con. Lord Newark, 17 Decemb. 1667 Achinleck con. Mccleud, 7 Feb. 1662. Achinleck con. L. Wedderburn, 16 january, 1663. Achinleck con. Williamson and Gillespie, 18 Decemb. 1667 K. Advocate con. Craw, 19 Feb. 1669 K. Advocate con. E. of Mortoun, 25 Feb. 1669 Agnew con. Tenants of Dronlaw. 30 june, 1669 Aikenhead con. Aikenhead, 25 Feb. 1663. Aikman con. 14 june, 1665 E. Airlie con. Mcintosh, 8 july, 1664 Aitcheson con. La. Mccleud, 7 Feb. 1662. Aitoun con. Watt, 26 july, 1662. L. Aitoun con. james Fairy, 29 january, 1668 Allan con. Paterson, 17 june, 1663. Allan con. Collier, 25 june, 1664 Allan con. Fairy, 2 july, 1667 Capt. Allan con. Parkman, 9 july, 1668 Alexander con. L. Clackmannan. 9 july, 1668 Alexander con. Lo. Saltoun, 20 june, 1671 Lo. Almond con. Dalmahoy, 25 Feb. 1668 Anderson and Elphingstoun con. Wachop, 22 july, 1662. Anderson and Provon con. the Town of Edinburgh, 31 january, 1665 Anderson con. Cunninghame, 7 Decemb. 1665 Anderson con. Cunninghame, 9 june, 1666 Andrew con. Carss. 25 Novemb. 1668 E. Annandale con. Young and others, 24 Feb. 1669 Antrobus con. Anderson, 13 june, 1667 L. Aplegirth con. Lockerby, 14 Feb. 1671 Arbuthnet con. Fiddes, 25 Feb. 1662. Arbuthnet con. Keith, 23 june, 1666 Archbishop and Presbytery of St. Andrews contra George Pittillo, 6 july, 1670 E. Argile con. Mcdowgals, 14 july, 1665 E. Argile con. Campbel, 24 january, 1666 E. Argile con. Campbels, 25 january, 1666 E. Argile con. Campbel, 15 january, 1668 E. Argile con. Stirling, 9 Decemb. 1668 E. Argile con. Mcnaughtouns▪ 15 Feb. 1671 E. Argile con. Vassals, 30 June, 1669 Armour con. Lands, 21. Feb. 1671 Arnold of Barncaple, con. Gordon of Holme, 23 Feb. 1671 Arnot con. Arnot, 11 january, 1665 E. Athole con. Scot▪ 20 Decemb. 1664 E. Athole con. Robertson of Strowan, 19 january, 1669 BAilie con. Town of Inuerness, 11 Decemb. 1661. B●ilie con. Henderson, 1 july, 1662. Bailie of Regallty of Killimuir con. Burgh of Killimuir, 14 january, 1668 Bailie con. Mr. William Bailie. 27 july, 1671 Bain con. Bailies of Culross, 14 Feb. 1671 Bain con. L. Striechen, 24 january, 1663. Baird con. Magistrates of Elgin, 25 january, 1665 Baird con. Baird, 9 january. 1662. D. Balfour and his Spouse con. Wood, 8 january, 1670 L. Balfour con. Mr. William Douglas, 4 july, 1671 Lady Ballagan con. Lo. Drumlanrig, 23 june, 1671 Balmano's Daughter con. 〈…〉 the Helr, 12 November, 1664 Lo. Balmerino con. the Town of Edinburgh, 25 November, 1662. Lo. Balmerino con. Creditors of Sir William Dick, 14 july, 1664 Lo. Balmerino Supplicant, 7 january, 1669 Creditors of Balmerino, and Cowper Supplicant, 16 Feb. 1669 Lo. Balmerino con. Hamiltoun of Little-Prestoun, 22 june, 1671 Creditors of Balmerino con. Lady Cowper, 28 june, 1671 L. Balnagoun con. Dingwall, 30 july, 1662. L. Balnagoun con. Mckenzie, 28 january, 1663. Lo. Balvaird con. the Creditors of Annandale, 21 january, 1662. Barclay con. L. Craigivar, 10 january, 1662. Barclay con. Barclay, 6 july, 1669 Barclay con. Barclay, 20 july, 1669 Barns con. L. Aplegirth, 1 january, 1662. Barns con. Young, 12 Decemb. 1665 Baxters of Edinburgh con. the Heretors of East-Lothian, 20 Feb. 1663. Baxters in Cannongate, 21 Novemb. 1665 Beadmen of the Magdalen Chapel, con. Drysdale, 30 june, 1671 Beatoun of Bandoch, con. Ogilvie of Mantoun, 13 july. 1670 E. Bedford con. Lo. Balmerino, 18 Feb. 1662. E. Bedford con. L. Balmerino, 29 Novemb. 1661. Beg con. Nicolson, 14 january, 1663. Beg con. Beg, 4 Feb. 1665 Beg con. Be●, 5 Decemb. 1665 Beg con. Nicol, 22 june, 1666 Bells con. Wilkie, 12 Feb, 1662. Bell of Belford con. the Lady Rutherford, 27 january, 1669 Lairds of Beerfoord and Beanstoun, con. Lo. Kingstou●, 27 january, 1665 Mayor of Berwick con. L. of Haining, 1 july, 1661. Major Bigger con. Cunninghame of D●nkeith, 15 july, 1670 Binning con. Binning, 28 january, 1668 Birkinbeg con. john Graham of Craigit, 20 july, 1671 Birnie con. Henderson, 18 january, 1668 Birsbane con. Monteith, 24 july, 1662. Birsh con. Dowglas, 18 Feb. 1663. B●shop of Isles con. Hamiltoun, 13 Decemb. 1664 Bishop of Dumblaine con. E. Cassils', 15 February, 1665 B●shop of Isles con. the Fishers of Greenock, 24 Novemb. 1665 Archbishop of Glasgow con. Mr. james Logan, 6. Feb. 1666 Arch●-Bishop of Glasgow, con. Commissar of Glasgow, 14 Feb. 1666 Bishop of Glasgow con. Commissar of Glasgow, 22 Feb. 1666 Black con. Scot, 25 june, 1668 Black con. French, 9 Feb. 1669 Blaikwood con. Purves, 20 Novemb. 1666 Blair con. Anderson, 18 Feb. 1663. Blair of Balgillo con. Bl●ir of Denhead, 3 February, 1671 Blair of Balhead con. Blair of Denhead, 22 july, 1671 Lo. Blan●yre con. Walkinsh●w, 2 july, 1667 Blomart con. E. Roxburgh, 17 Decemb. 1664 Bones con. Barclay of johnstoun, 9 july 1662. Bonnar con. Foulis, 7 Feb. 1662. Capt. Bood con. Strachan, 28 Novemb. 1667 Boog con. Davidson, 9 july, 1668 Lo. Borthwick con. Mr. Mark Ker, 31 january, 1665 Borthwick con. Skeen, 14 july, 1665 Borthwick con. Sk●en, 16 Feb. 1666 Lo▪ Bor●hwick con. 21 Feb. 1666 Borthwick con. Lo. Borthwick, 14 Feb. 1668 Boswel con. Boswel, 22 Novemb. 1661. Boswel con. the Town of Kirkaldy, 22 july, 1668 Boswel con. the Town of Kirkaldy, 1 Feb. 1669 Boswel con. Lindsey; 3 Feb. 1669 Bow con. Campbel, 2 july, 1669 Bowers con. Lady Cowper, 16 june, 1671 Boyd con. L. Nithrie, and L. of Edmondstoun. 13 Decemb. 1661. Boyd of Pinkill con: Tenants of Carsluth, 15 Feb. 1666 Boyd con. Kintore, 4 july 1665 Boyd con. Lauder and Telziefer, 30 Novem. 1665 Boyds con. Boyd of Temple, 6 january, 1670 john Boyd con. He●gh Sinclar, 17 june 1671 Boyl of Ke●h●rn con. Wilkie, 26 January, 1669 Lady Braid con. E. Kinghorn, 26 january, 1669 Bradie con. L. of Fairnie, june 21. 1665 Bradie con. L. Fairnie, 20 january, 1666 Bredy con. Bredy, 1 july, 1662. Broady of Lethem, and L. of Rickartoun con. Lo. Kenmure, 1. july, 1671 Brotherstons con. Ogil ●●d Orrocks, 26 july, 1665 Broun con. L●ferenters of Rossie, 13 Feb. 1662. Broun con. johnstoun, 26 Feb. 1662. Broun con. La●sons, 25 june, 1664 Broun con. Scot, 9 january, 1666 Broun and D●ff con. ●issat, 18 july, 1666 Broun con. Happiland, 29 january, 1668 Broun con. johnstoun, 1. Feb. 1669 Broun con. Sibbald, 12 Feb. 1669 Bruces con. E. Morto●n, 16 june, 1665 Bruce con. E. Mortoun, 28 N●vemb. 1665 Bruce con. L. and Lady Stenhops▪ 20 Feb. 1669 Countess of Buccleugh con. E. Ta●ras 7. Fe●. 16●2 Duke of Duccleugh con. Parochiners of 22 june, 1671 Children of the E. of Buchan con. the Lady B●●han, 23 Feb. 1666 Buchan con. Taits. 11 Feb. 1669 Buchannan con. Osou●n, 24 july 1661. Lady Burgie con. Tenants 18 july, 1667 Lord Burly con. Sime 30 january, 1662. Lord Burly con. Sime, 25. Novem. 1662. Dame Rachel Burnet con. Lepers, 23 December 1665 Bu●net con. johnstoun 17 july, 1666 Burnet con. Nasmith, 19 june, 1668 Burnet con. Swain, 30 June, 166● joachim Burnmaster con. Captain Dishingto●n, 29 june, 1671 Lady Bute and her husband con. Sheriff of But●. 5 january, 16●● Butter con. Grace, 17 Feb. 16●5 con. Brand, 3 January, 1667 con. Edmistoun 6 January, 1665 con. Wilson, 2 january, 16●● con. John and Harry Rollocks, 1 Fe●. 1666 con. E. Kinghorn, 23 january, 1666 con. He●gh Mcculloch, 29 Feb. 1666 con. the Sheriff of Inverness 21 Feb. 1666 CAlderwood con. Schaw, 14 Novem. 1668 ●. Callender con. Monro, 20 Feb. 1662. Campbel con. Bryson, 10 january, 1664 Campbel con. Campbel, 22 Feb. 1665 Campbel con. Doctor Beatoun, 23 Novem. 1665 Campbel con. Dowgal, 14 Decem. 1667 Campbel con. L. Glenorchie, 25 July, 1668 Canham con. Adamsone, 25 June, 1664 Canham con. Adamsone, 7 Novem. 1666 Canna con. 10 july, 1666 Mr. Walter Cant con. Loch, 27 june, 1665 L. Carberry con. Creditors, 30. january, 1663. Lady Carnagy con. Lo. Cranburn, 11 january, 1662. La. Carnagy con. Lo. Cranburn, 19 Feb. 1662. La. Carnagy con. Lo. Cranburn, 30 January, 1663. La. Carnagy con. Lo. Cranburn, 5 Feb. 1663. Countess of Carnwath con. the Earl, 27 Feb. 1667 Cass con. Mr. john Wat. 18 Decem. 1666 Cass con. Sir Robert Cunninghame, 26 january, 1671 E. Cassils' con. Agnew, 6 January, 1666 E. Cassils' con. the Tenants of Dalmortoun, 11 Decemb. 1666 E. Cassils' con. the Sheriff of Galloway, 10 Decemb. 1669 Countess of Cassils' con. E. Cassils' 22 Feb. 1670 Countess of Cassils' con. the E. Roxburgh, 18 July, 1671 Cathcart con. Mccorquodel and Murky▪ 8 Feb. 1670 L. Cesnock con. Lo. Bargainy, 23 Decem. 1665 Chalmer con. Dalgarno, 27 Feb. 1662. Chalmer con. Lady Tinnel, 24 Novem. 1665 Chalmer con. Bassillie, 30 june, 1666 Chalmer and Gairns con. Colvils, 16 Novem. 1667 Chalmer con. Wood, 27 Feb. 1668 Chapman con. White, 18 january, 1667 Charters con. a Skipper, 13 january 1665 Char●rs con. Parochiners of Currie, 8 jan. 1670 Charters con. Neilson, 29 july, 1670 Cheap. con. Philip. 19 Decem. 1666 Cheap con. Philip, 5 january, 1667 Cheap con. the Magistrates of Falkland, 18 june, 1670 Chein con. Chri●●● 4 july, 1667 Chei● ●on. Christy 30 june 1668 Chei● con. 〈◊〉 5 Decem. 16●5 Children of Mo●swal con. Laurie of Maxwel●●●n, 14 Feb. 1662. Children of Wolmet con. Mr. Mark●●●▪ 19 Feb. 1662. Children of ●olmet con. Dowg●●s and Danke●●●, 20 Nevem. 1662. Chi●●●me con. Rennies, 6 Feb. 16●8 Chisolme con. Lady Brae, 26 January, 1669 Clappertoun con. L. of Ednem, 11 Decem. 1662. Clappertoun con. L. Torsonce, 20 January 1666 Cleland con. Stevinson, 5 Feb. 1669 Clerk con. Clerk 2 Decem. 1662. Lo. Justice Clerk, con. Rentoun of Lambertoun, 13 Feb. 16●7 Lo. Justice Clerk con. the L. of Lambertoun, 23 November, 1667 L. Justice Clerk con. Home of Linthil, 28 Feb. 1668 L. Clarkintoun con. L. Corsbie. 3 Decemb. 1664 L. Clerkingtoun con. Stewart, 20. july, 1664 La. Clerkingtoun con. the L. and the young Lady, 9 january, 1668 Cochran con. 22 Feb. 1668 Cockburn and Gilles●ie con. Stewart 18 Feb. 1669 M●n●ster of Cockburns-path con. Parochiners, 7 Feb. 1668 College of St. Andrews Supplicant, 16 July, 1661. Old College of Aberdeen con. the Town, 13 July, 1669 Colquhoun con. Creditors, 18 january, 1662. Colquhoun con. Watson, 15 Feb. 1668 Colquhoun and Mcnaire con. Stewart of Ba●scob, 1 july, 1668 Colvil con. Executors of Colvil, 15 july, 1664 Lady Colvil con. Lo. Colvil, 14 Decem, 1664 Colvil con. Lo. Balmerino, 6 july, 1665 Lo. Colvil con. Town of Culross 27 Feb. 1666 Lo. Colvil con. the Fevars of Culross, 15 Decem, 1666 Commissars of St. Andrews con. the L. of Bussie, 4 july, 1665 Captain Conningsbi● con. Captain Mastertoun, 7 Feb. 1668 Corstorphine con. Martin's, 21 Decem. 1666 Covan con. Young and Reid, 9 Feb. 1669 Lo. Couper con. L. Pitsligo, 3 july, 1662. Town of Couper con. Kinocher, 24 june, 1664 Lady Craig con. L. Lour, 7 Decem. 1664 La. Craigcasse con. Neilson, 12 Novem. 1664 Cranstoun con. Pringle, 13. Decem. 1665 Cranstoun con. Wilkieson, 10 july, 1666 Cranstoun con. Wilkieson, 20 Feb. 1667 Crawfoord con. E. Murray, 8 Feb. 1662. Crawfoord con. Prestoun Grange, 15 july, 1664 Crawfoord con. Auchinleck, 17 january 1666 Crawfoord con. Duncan, 7 june, 1666 Crawfoord con. the Town of Edinburgh, 31 july, 1666 E. Crawfoord con. Rigg, 21 July, 1669 Crawfoord con. Anderson, 24 july, 1669 Crawfoord con. haliburton 20 june, 1671 Creditor's of Kinglassi●, 26 and 27 Feb. 1662. Creditors of james Masson, 30 Novem. 1665 Creditors of Andrew Bryson, 14 Novem. 1662. Creditors of the Lady Couper and Balme●ino con. Lady Couper, 25 Novem. 1669 Crichton and her spouse con. Maxwel of Kirkhouse, 27 january 1666 Daughters of Crichton of Crawfoordstoun con. Broun of Eglistoun, 22 january 1669 Cruckshank con. Cruckshank, 16 june, 1665 L. Culteraus con: Chanman, 16 Novem. 1667 Cumming con: Lumsden, 4 july, 1667 Cunninghame con: Dalmahoy, 1 Feb▪ 1662. Cunninghame con. the Duke of Hamiltoun, 5 Decem. 1665 Cunninghame con: Lyel, 1 Feb, 166● Cunninghame con: L. Robertland, 4 july, 166● DAes con. K●le 19 july, 1667 Dallas con. Frazer of ●nnerallochie, 31 january, 1665 Dalmahoy con: Hamiltoun, 6 Decem. 16●● Minister of Dal●ymple con. E. Cassills', 27 June, 166● Deans con. Bothwel, 5 Feb. 16●● Dennistoun con: S●mple of Falwood, 16 july. 1669 Mr. David Dewer con: Paterson, 26 〈◊〉. 1667 Dick con: Sir Andr●w Dick, 13 january 16●● Dick con. Ker, 26 ●une 1668 Dukie con: Mon●gamery, 14 january, 1662. Mr. Robert Dick●on con: Mr. Ma●k K●r, 21 july, 1665 Dickson con: ●●me, 16 Novem: 1665 Mr. Robert Dickson con. James Graham, 19 january, 1671 Executors of the E. of Di●ltoun con: the Duke of Hamiltoun and others, 18 july 1667 Dobie con: Lady Stoniehill, 18 Decem. 1667 Dobie con: Lady Stoniehill, 28 January, 1668 Dodds con: Scot 16 Feb. 1671 Donaldson con: Harower, 3 july 1668 Dove con. Campbel, 4 january, 1668 Do●glas con: 22 Novem. 166● Dowglas con: Lindsey, 2 Decem. 1662. Dowglas con: L. Wadderburn. 19 July, 16●4 Dame Elizabeth Dowgla● and Lockermacus, her ●u●band con: L. Wedderburn, 24 Feb. 166● Dowglas con: Cowan, 29 July, 1665 Mr. James Dowglas con: 〈◊〉 28 Jun●, 166● Dowglas Lady Wam●rey con. the L. Wam●●●y 22 J●●●ary, 1668 Dowglas of Lumsden con: Dowglas. 22 June, 1670 Dowglas of K●●head con: his Vessals and others, 30 January, 1671 Do●ni● con: Young, 17 Novem: 1666 Lo. Drums●ies con: Smart, 18 July, 1668 L●dy Drum con. L▪ Drum. 13 Feb: 1666 Drummond con. Skeen, 19 June, 1662. D●ummo●d con. Campbel, 5 July, 1662. Drummond con. Starling of Airdoch, 23 jan, 1669 D●ummond of Rickartoun con. Fevars' of Botkennel, 17 january, 1671 Dun con. Duns, 25 Feb. 1666 Dumbar of Hemprig con. Lo. Frazer, 18 Feb, 1663. Dumb●r of Hemprig con. Lo: Frazer, 11 july, 1664 Dumbar con. E: Dundee, 5 july, 1665 Dumbar con. Lo: Dussus, 14 june, 1666 Sir David Dumbar o● Baldoon con. Dick and others, 22 Feb. 1671 Sir David Dumbar of Baldoon con. Sir Robert Maxwel, 14 july, 1671 Duncan con. Town of Arbroth, 17 Novemb, 1668 Dundas con. the Lairds of Ardrosse and Touch, 18 Feb. 1671 Merchants in Dundee con. Spruce an Englishman, 3 Novemb. 1666 Countess of Dundee con. Straitoun, 24 Feb. 1669 L. of Durit con. Relict and Daughters of umquhil D●rie his Brother, 6 Feb. 1666 Durie con. Gibson, 28 Feb: 1667 ECcles con. Eccles, 7 Decemb. 1664 Edgar con. Edgar, 17 january, 1665 Edgar con. Colvils 2 Decemb. 1665 Town of Edinburgh con. L. Le●s and Veitch, 8 July, 1664 Town of Edinburgh con. Sir William Thomson, 6 June, 1665 Edmistoun con. Edmistoun, 4 june, 1662. E. Eglintoun con. L. Cunningham-head, 27 january, 1676 E. Eglintoun con. L: Cunningham-head, 23 June, 1666 Elies con. Ke●th, 15 Decemb. 1665 Eleis con. Cass●e, 24 january 1666 Eleiss con. Wishart and Keith, 27 Feb. 1667 Eleis con. Keith, 16 july, 1667 Mr. john Eleis con. Inglistoun, 23 july, 1669 Eleiss of Southside con. Carss, 28 june 1670 Minister of Elgin con. Parochiners. 30 june, 1670 Elphingstoun con. Murray, 4 Feb. 1662. Elphingstoun of Selmes con. Lo. Rollo and Niddrie, 1 Feb. 1665 Lo. Elphingstoun con. L. of Quarrel, 19 Feb. 1669 E. Errol con. the Parochiners of Urie, 16 january, 1663. E. Errol con. Hay of Crimonmagat, 23 Feb. 1667 Executors of Fairlie con. Parochiners of Leswaid, 5. july, 1662. FAirfowls con. Binning, 4 january, 1666 Fairholme con. Bisset, 18 january, 1662. Fairy con. Inglis, june 23, and 24▪ 1669 Executor of Fairlie con. Parochiners of 1662. Fairly con. Creditors of Sir William Dick, 14 December, 1666 Falconer con. Dowgall, 24 june, 1664 Falconer con. E. Kinghorn, 3 Feb. 1665 Mr. David Falconer con. Sir james Keith, 14 july, 1668 Farquhar con. Lion, 3 Decemb. 1661. Farquhar con. Magistrates of Elgin, 2 july, 1669 Ferguson con. Ferguson, 23 june, 1663. Ferguson con. Gairdner, 25 june, 1664 Ferguson con. Stewart of Ashcock, 1665 Ferguson con. Parochiners of Kingarth, 1 Feb. 1671 Fiddes con. jack▪ 19 july, 1662. Findlason con. Lo. Cowper, 22 january, 1666 Findlay con. E. Northesk, 25 june, 1670 Procurator-Fiscal of the Commissariot of Edinburgh con. Thomas Fairholme, 23 June, 1665 Fleming con. Forester, 17 july, 1661. Fleming con. her Children, 26 july, and 19, 20. of November, 1661. Fleming con. Fleming, 13 Feb. 1663. Fleming con. gills, 18 june, 1663. Fleming con. Fleming, 16 Novemb. 1664 Fleming con. Fleming▪ 3 july, 1666 Sir john Fletcher Supplicant, 3 Feb. 1665 Forbes con. Inns, 8 january, 1668 Forbes con. Inns 20 Feb. 1668 Forbes of Watertoun con. Chain, 28 june, 1671 Forsyth con. petoun, 17 Feb. 1663. Mr. Alexander Foulis and the Lo. of Collingtoun, con. Tenants and the Lady Collingtoun, 9 Feb. 1667 Fountain and Brown con. Maxwell, 14 july, 1666 Lo. Frazer con. the La●rd of Philorth, 18 and 23 july, 1662. Frazer con. Frazer, 11 Feb. 1663. Frazer con. Frazer, 3 july, 1668 Sir Alexander Frazer con. Keith, 16 Decemb. 1668 Fullertoun con. Viscount of Kingstoun, 8 january, 1663. GAirdner con. colvil, 10 july, 1669 Gairns con. Arthur, 19 Decemb. 1667 Gairns con. sandiland's, 12 july, 1671 Galbraith con. Colq●houn, 12 Novemb. 1664 R●●●ct of Galriggs con. Wallac● of Galriggs, 19 june, 1668 Sir john Gibson con. Oswald, 13 june, 1668 L. Gight con. Birkinbeg, 12 Decemb. 1661. Town of Glasgow con. Town of Dambarton, 6 Feb. 1666 Glass con. Hadden, 10 july, 1669 Glen con. Home, 19 Feb. 1667 L. Glencorss younger con. his Brother and Sisters, 10 Ian●●ry, 1668 Glendinning con. E. Nithsdale, 22 January, 1662. Goldsmiths of Edinburgh, con. Haliburtoun, 10 December, 1664 Goodla● con. Nairn, 8 Decemb. 1668 Gordon of Lesmore con. Leith, 10 June, 1663. Gordon con. Frazer, 3 July, 1663. Sir Lodovick Gordon con. Sir John Keith, 31 July, 1666 Gordon con. Sir Alexander Mc●●lloch, 17 Feb. 1671 Gordon con. Sir Alexander Mc●ulloch, 22 Feb. 1671 Gordon con. L. of Drumm, 22 June, 1671 Grahame con. Ross, 24 January, 1663. Grahame con. Ross, 5 Feb. 1663. Grahame of Hiltoun con. the Heretors of Clackmannan, 13 July, 1664 Grahame con. brown's, 7 January, 1665 Grahame con. Bruce and Martin, 7 Feb. 1665 Grahame and Jack con. Brian, 3 January, 1666 Grahame con. Towris, 26 Feb. 1668 Grahame con. L. Stainbyres, 26 Feb. 1670 Grant con. Grant, 15 January, 1662. Grant con. Grant, 24 Feb. 1666 Grant con. Grant, 11 January, 1668 Grey con. Dalgarno, 7 Feb. 1662. Grace con. Oswald, 28 June, 1662. Creditors of the Lo. Grace con. the Lo. Grace, 27 Feb. 1666 Grace con. Forbes, 15 June, 1667 Grey con. Howison and Grace, 24 June, 1668 Grey con. Ke●, 23 July, 1669 La. Greenhead con. Lo. Lour, 10 Feb. 1665 Greenlaw con. ●5 january, 1663. Greggs con. Weems, 30 june, 1670 Greirson con. Mcilroy, 13 Feb. 1668 L. Grubbet con. More, 2 july, 1669 Guin con. Mcke●●, 19 july, 1665 Guthrie con. L. Sornbeg, 18 Novemb. 1664 Guthrie con. L. Mckers●oun, 25 July, 1671 HAdden and Lawder con. Sherswood, 13 June, 1668 Hadden con. Campbel, 25 January, 1670 Hadden con. L. Glenegies, 28 July, 1671 haliburton con. E. Roxburgh, 25 June, 1663. haliburton con. Porteous, 23 Novemb. 1664 Lady haliburton con. Creditors of haliburton, 27 July, 1670 Merchants of Hamburgh con. Capt. Dishingtoun, 24 Feb. 1668 Duke Hamilton con. Scots, 24 june, 1664 Duke Hamilton con. L. Clackmannan, 14 Decemb. 1665 Duke Hamilton con. Duke Bucleugh, 24 June, 1666 Duke Hamilton con. L. of Allardyce, 6 Decemb. 166● Duke Hamilton con. Maxwel of Mureith, 29 Feb. 1668 Duke Hamilton con. Fewars of the King's Property, 14 july, 1669 Duke Hamilton con. Blackwood, 14 and 28 july, 1669 Hamilton con. Rowan, 13 Decemb. 1661. Hamilton con. Mcferling, 28 Feb. 1662. Hamilton con. Hamilton, 21 Feb. 1663. Hamilton con. Mitchel and Keith, 18 june, 1663. Hamilton con. Esdale, 9 july, 1663. Hamilton con. Tenants, 27 July, 1665 Hamilton con. Duke Hamilton and Bishop of Edinburgh, 21 july, 1666 Hamilton con. 2 january, 1667 Hamilton con. Symontoun, 16 July, 1667 Hamilton con. Lo. Belhaven, 14 Decemb. 1667 Hamilton con. Hamilton, 7 july, 1668 Hamilton con. Bain, 15 january, 1669 Hamilton con. Harper, 16 Feb. 1669 Hamilton con. Hamilton a●d the Viscount of Frendraught, 22 june, 1669 Lady Lucia Hamilton con. Lairds of Dunlop, Pitcon, and Creditors of Hay of Mountcastle, 15 Jan. 1670 Lady Lucia Hamilton con. L. of Pitcon and others, 8 july, 1670 Lady Lucia Hamilton con. Boyd of Pitcon, 15 july; 1670 Executors of Walter Hamilton con. Executors of Andrew Reid, 20 July, 1670 L. Haining con. the Town of Selkirk. ● 15 Feb. 1668 Harlay con. Hume, 18 july, 1671 Harper con. Hume, 14 january, 1662. Harper con. Hamilton, 29 july, 1662. Harper con. Vassals, 25 july 1666 Harrowar con. Haitly, 13 june, 1667 Hay con. Hume 24 june, 1662. Hay con. Seaton, 28 june, 1662. Hay con. M●rison, 17 Feb. 1663. Hay con. Corstorphin, 19 june, 1663. Hay con. Nicolson, 16 july, 1663. Hay con. Collector of the vacand Stipends, 17 june, 1664 Hay con. Magistrates of Elgin, 23 Novemb. 1664 Hay con Little● john, 16 Feb. 1666 Hay con. Magistrates of Elgin, 12 june, 1666 Hay con. Magistrates of Elgin, 5 july, 1666 Hay con. Dowglas, 10 july, 1666 Hay con. Little-Iohn, 14 Decemb. 1666 Hay of Strovie con. Fe●ars, 22 june, 1667 Hay con. Drummond and Hepburn, 26 Novemb. 1667 Hay con. Town of Peebles, 20 january, 1669 Hay con. Town of Peebles, 19 Feb. 1669 Doctor Hay con. jameson, 8 june, 1670 Hay con. Magistrates of Elgin, 18 june, 1670 Henrison con. L. Ludwharne, 22 Decemb. 1666 Henryson con. L. Ludwharne, 4 january, 1667 Henryson con. Henryson, 31 january, 1667 Henryson con. Henryson, 14 Novemb. 1667 Henryson con. Birn●e, 27 Feb. 1663. Henryson con. Anderson, 18 Novemb. 1669 Hepburn con. Hamiltoun 12 Decemb. 1661. Hepburn con. Hepburn, 22 january, 1662. Hepburn con. Hepburn, 25 Feb. 1663. Hepburn con. Nisoet, 16 Feb. 1665 Heretors of Don con. Town of Aberdeen, 26 january 1665 Heretors of the Milne of Keithick con. Fewars, 29 June, 1665 Heretors of Don con. Town of Aberdeen, 29 july, 1665 Heretors of Johns-milne con. Fewars, 9 Feb. 1666 Heriots con. Fleming Messenger, and his Cautioners, 19 january, 1666 Heriot con. ● Town of Edinburgh, 25 June, 1668 Hill con. Maxwel, 5 Feb. 1663. Hill con. Maxwells, 5 Decemb. 1665 Hogg con. Hogg, 2 january, 1667 Hogg and others con. Countess of Hume, 3 July, 1667 Hogg con. Countess of Hume, 10 Decemb. 1667 Hogg con. Countess of Hume, 10 Decemb. 1667 Humes con. Bonnar, 14 Decemb. 1661. Hume con. Pringle, 3 January, 1662. Hume con. 10 June, 1665 Hume con. the Tenants of Kello and Home, 13 June, 1666 1666 E. of Hume con. Wodsetters 5 july, 1666 Dame Margaret Hume con. Crawsoord of Kerse, 10 July, 1666 Hume con. Creditors of K●llo, and Hume, 12 Decemb. 1666 Hume con. Tenants of Kello and Hume, 24 january. 1667 Countess of Hume con. Tenants of Alcambus and Hogg, 5 Feb. 1667 Hume con. Creditors of Kello, 28 june, 1667 Hume and others con. Hume, 6 July, 1667 Hume con. Tenants of Kello, 23 July, 1667 Hume con. Seaton of Meinzles, 13 january, 1669 Hume con. E. Hume, 14 july, 1670 Hume con. Sco●, 7 Feb. 1671 Hume con. Lo. Justice Clerk, 28 June, 1671 Hume con. Lo. Justice Clerk, 4 July, 1671 ● Hume con. L. Ryslaw, 18 july, 1671 Hospital of Glasgow con. Campbel, 19 July, 1664 Howison con. Cockburn, 17 Novemb. 166● H●nter con. wilson's, 13 Decemb. 1667 H●nter con. Creditors of john Peter, 11 June, 1670 Marquis of Hun●ly con. Gordon of Lesmore, 22 〈◊〉 1665 Hutcheson con. E. Cassals, 3 Decemb. 1664 Hutcheson con. Dickson, 6 january, 1665 JAck con. Fiddes, 24 july, 1661. jack con. Pollock and Rutherfoord, 23 Feb. 1665 Jack con. Movat, 13 june, 1666 jack con. jack, 15 july, 1669 Jack con. Borthwick, 2 Feb. 1670 Jaffray con. jaffray, 4 Decemb. 1669 Jameson con. Mcclied, 3 Decemb. 1661. jerdin of Applegirth, con. johnstoun of Lokerbie, 24 Feb. 1670 Inglis con. Hogg, 22 Decemb. 1664 Inglis con. L. Bal●our, 25 june 1668 Inns con. Wilson, 4 July, 1665 Inns con. Inns, 5 January, 16●0 Johnstoun con. Applegirth, 7 Feb. 1662. Johnstoun of Sheenes, con. Broun, 14 july, 1665 johnstoun con. Mcgreegers, 19 july, 1665 johnstoun con. Tenants of Achincorse, 22 july, 1665 johnstoun con. johnstoun 21 Feb. 1667 Johnstoun con. Cunningham, 19 June, 1667 Johnstoun con. Sir Charles Erskine, 6 Feb. 1668 Johnstoun con. Paro●hioners of Hodonie, 18 july, 1668 johnstoun of Sheenes con. Ar●old, 22 july, 1668 Johnstoun con. Sir Charles Erskine Lord Lion, 19 January, 1669 Irwing con. Mccartney, 30 January, 1662. Irwing con. Strachan, 24 june, 1665 jurgan con. Capt. Logan, 23 july, 1667 justice con. Stirling, 23 january, 1668 Lo. Justice Clerk, and Sir Alexander his Son con. E. Hume, 15 june, 1670 Lo. justice Clerk con. Fairholme, 23 Feb. 1671 K Sir john K●●th con. Sir George Johnstoun, 28 July, 1671 Kello con. P●xtoun, 3 July, 1662. Kello con. Pringle, 31 January, 1665 Kello con. Kennier, 5 January, 1671 Kennedy con. Hutcheson, 8 July, 1664 Kennedy con. Weir, 23 Feb. 166● Kennedy con. Agnew of Lochnaw, 27 july 166● Kennedy and Mu●e con. Jaffray, 24 June, 1669 Kennedy con. Kennedy, of Cullen, 8 july, 1670 Kennedy con. Cunninghame and Wallace, 12 July, 1670 Ker con. Paroch●oners of Carriden, 26 July, 1661. Ker con. Ker of Fairni●lie, and others, 9 July, 1662. Ker con. Hunter and Tenants of Cambo, 8 F●b. 1666 Ker con. Children of Wolmet, 25 Feb. 1667 Ker con. Ker, 18 July, 1667 Ker con. Ker, 5 Feb. 1668 Ker of Cavers and Scot of Golden-berrit Supplicants 6 January, 1670 Ker con. Downie, 7 January, 1670 Ker con. Nicolson, 28 January, 1671 Kidd con. Dickson, 29 June, 1666 L. Kilbirnie con. Hei●s of Tailzle of Kilbirnie, and Schaw of Greenock, 20 January, 1669 Lady Kilbocho con. the L. of Kilbocho 20 Decemb. 166● Kilchattans Creditor's con. Lady 16 January, 1663. Kincaid con. L. Fenzies, 26 Feb. 1662. E. Kincairn con. L Rossyth, 24 Feb. 1669 E. Kincairn con. L. Pittar●, 3 Feb. 1670 King's Advocate con. E Mortoun, 25 Feb. 1669 E. Kinghorn con. L. Udney, 3 july, 1666 E. Kinghorn con. L. Udney, 15 January, 1668 Viscount of Kingstoun con. Colonel Fullertoun, 22 Feb. 166● Kinross con. L. Hunthil, 10 Decemb. 1661. Kinross con. L. Hunthil, 25 July, 1662. Kintore con. Boyd, 27 january, 1665 Kintore con. the Heir of Logan of Coa●field 9 July, 1669 Kirkaldy con. Balkanquell 9 July, 1663. Kirktouns con. L. Hunthill, 12 Feb. 1662. Kirktouns con. L. Hunthill, 31 January, 1665 L. Knaperin con. Sir Robert Farquhar, 9 Novemb. 1665 Kyle con. Seaton, 28 june, 1665 L. Lambertoun con. E. Levin, 24 july, 1661. L. Lambertoun con. E. Levin, 3 and 11 days of july, 1662. L. Lambertoun con. Hume of Kaimes, 9 july, 1662. L. Lamingtoun con. Chief, 29 January, 1662. L●nglands con. Spence of Blair, 17 june, 1670 Langtoun con. Scot, 17 Decemb. 1670 E. Lauderda●e con. the Tenants of Swintoun, 7 January, 1662. E. Lauderdale con. Wolmet, 13 july, 1664 E. Lauderdale con. the Viscount of Oxenfoord, 11▪ Feb. 1665 E: Lauderdale con. Viscount of Oxenfoord, last Feb. 1666 E. Lauderdale and Wachop, con. Major Biggar, 7 Decemb. 1667 Laurie con. Sir john Drummond, 18 Feb. 1670 Laurie con. Gibson, 4 Feb. 1671 Laurie con. Sir john Drummond, 7 Feb, 1671 Leckie con. 20 Feb. 1663. L●ith con. L. Lismore, and others, 14 july, 1666 Lennox of Wood●head con. Nairn, 24 june, 1662. Lennox con. Linton, 5 Feb. 1663. Lermont con. Russel, 9▪ Decemb. 1664 Lermont con. E. of Lauderdale, 12 july, 1671 Leslie con. Grace, 10 january, 1665 Sir. john Leslie con. Sinclar of Dun, 22 Decemb. 1665 Leslie con. Cuningname, 28 july, 1669 Leslie con. Guthri●, 19 Feb. 1670 Leslies con. jaffray, 22 june, 1671 Letter from the K●ng, 14 june, 1665 Lo. lay con. Porteous, 15 Feb. 1666 Lindsey and Swinton con. Ingles, 5 July, 1670 Lindsey of Mount con. Maxwel of Kirkonnel, 20 july, 1671 Town of Linlithgow con. Town of Borrowsto●nness, 30 january, 1663. Town of Linlithgow con. Town of Borrowstounness, 13 Feb. 1663. Little con. E. of Neidsdaile, 20 january, 1665 Litle-Iohn con. Duchess of Monmouth, 20 Feb. 1667 Litster con. Aitoun, 2 july, 1667 Livingstoun con. the Heir of Forester, 22 july, 1664 Livingstoun con. Sornbeg, 23 Novemb. 1664 Livingstoun con. Beg, 6 Feb. 1666 Livingstoun con. Lady Glenegies, 13 july, 1666 Livingstoun con. Burns, 15 june, 1670 Loches con. Hamiltoun, 18 Novemb. 1664 Lockhart con. Kennedie, 13 Feb. 1662. Lockhart con. Lo: Bargenie, 22 Feb. 1666 Logans con. Galbreath, 26 january, 1665 Logi● con. Logie 11 Decemb. 1662. Lo: Lour con. E. Dundee, 6 Feb. 1663. Lo: Lour con. La. Craig, 22 july, 1664 Lo. Lour con. 20 january, 1665 Lo. Lovat con. Lo. Mcdonald, 16 june, 1671 Loyson con. the L. Ludwharn, 15 June, 1669 L. Ludwharn con. L. Gight, 21 July, 1665 Heirs of Lundie con. E. Southesk, 12 July, 1671 Lion of Murresk con. L. of Ersk, 17 June, 1664 Lion of Murresk con. Farquhar, 10 Decemb. 1664 Lion of Murresk con. Heretors of the Shire, 7 Feb. 1665 Lion of Murresk con. gordon's, and others, 15 Feb. 1666 Magistrates of con. the E. Finlatour, 24 january, 1666 Mair con. Stewart, 22 January, 1667 Maitland con. Leslie, 27 Feb. 1668 Maitland of Pitrichie con. L. of Gight, 15 Decemb. 1669 E. Marischal con. Bra●, 18 June, 1662. E. Marischal con. Leith of ●hit●haugh, 14 july, 1669 Masson con. 27 june, 1666 Creditors of Masson con. Lo. Torphichan, 19 january, 1669 Mastertoun con. strangers of Ostend, 24 Feb. 1668 Mathieson con. Gib, 14 july, 1665 Maxwel con. Maxwel, 13 Feb. 1662. Lady Diana Maxvel con. Lo. Burlie and others, 15 Feb. 1667 Maxvel con. Maxvel, 15 Novemb. 166● Maxvel con. Maxvel, 11 july, 167● Maxvel con. Maxvel 21 july, 1671 L. May con. Ross, 23 Feb. 1667 M●alexander con. Dalrymple, 9 June, 1668 Mcbrair con. Sir Robert Crei●hton 20 Feb. 1666 Mcclaud con. Young and Girvan, 20 Decemb. 1665 Mcclellan con. the Lady Kircudburgh, 13 Feb. 1669 Mccrae con. Lo. Mcdonald, 6 July, 1671 Mculloch con. Craig, 2 Dec●mb. 1665 Mcdougal con. L: Glenorchie, 24 june, 1663. Mcgill con: Ruthven, 22 Novemb. 1664 Mcgill con: Viscount of Oxenfoord, 17 Feb: 1671 Mcgreeger con: Menzies, 24 Feb: 1665 Mcintosh con: Robertson, 26 july, 1662. Mckenzie con: Ross, 18 Feb: 1663. S●r George Mckenzie con: Fairholme, 7 Decemb: 1666 Sir George Mckenzie con: Mr, john Fairholme, 25 July, 1667 S●r George Mckenzie con: L. of Newhal, 30 July, 1668 Sir George Mck●nzie con. Mr: john Fairho●me, 14 Feb. 1668 Mackenzie con. Rober●son, 23 Decemb, 1668 Mckenzie con. Ross, 14 january, 1669 Mckie con. Stewart, 5 July, 1665 Mcmorland con. Melvil, 28 june, 1666 Mcpherson con. M●cleud, 29 june, 1666 Mcpherson con: Wedderburn, 14 january, 1668 Mcqueen con: Marquis of Dowglas, and Peirson, 26 january, 1670 Lo: Melvil con. the Laird of Fairnie, 4 Feb, 1662. Menzies con. L. Drum, 25 January, 1665 Menzies con: L. Glenorchie, 24 June, 1663. Mercer of Aldie con▪ Rovan, 24 Feb: 1665 Merstoun con. Hunter, 9 january, 1663. Mille● con. Howison, 5 June, 1666 Mille● con. Watson, 21 july, 1666 Miller con. Bothwel, 22 july, 1671 Milne con: Hume, 7 july, 1664 Milne con. Clerkson, 21 Feb: 1667 Lady Mil●toun con. L. Milntoun, 26 july, 1662. L. Milntoun con: Lady Milntoun, 4 january, 1666 L. Milntoun con. Lady Milntoun, 27 Feb. 1663. L. Milnto●n con. Lady Milntoun, 25 Feb. 1667 L. Milntoun co●. Lady Milntoun, 26 Feb: 1668 L. Milntoun con. Lady Milntoun, 30 July, 1668 L. Milntoun con. Lady Milntoun, 31 january, 1671 L. Milntoun con. Lady Milntoun, 14 july, 1671 Minister of north Leith con. Merchants of Edinburgh 10 Feb: 1666 Minister of con. the L. Elphinstoun 16 june, 1666 Mitchel con. Hutcheson, 24 july, 1661. Dame G●ils Moncrief con. Tenants of Newtoun and Yeoman, 9 Feb: 1667 Moncrief of Tippermalloch con. Magistrates of Pearth, 26 july, 1670 Children of Mouswal con. Laurie of Maxwaltoun, 14 Feb. 1662. Lady Mo●swal con. 15 Feb. 1662. Montei●h con. Anderson, 28 june, 1665 Monteith con. Anderson, 15 Decemb. 1665 Monteith con. L. Glorat, 7 Dec●mb. 1666 Monteith of Carrubber con: Boyd, 2 Decemb. 1669 Montgomerie con. Lo. Kirkudbright, 20 Decemb, 1661. Montgomerie con. Peter, 19 July, 1662. Montgomerie con. Montgomerie, 22 july, 1662. Montgomerie con. Brown, 28 January, 1663. Montgomerie con. Hume, 22 july, 1664 Colonel Montgomerie con: Wallace and Bowie, ●4 I●ne, 1665 Colonel Montgomerie and his Spouse, con. Stewart▪ 24 and 27 january, 1666 Coll. Montgomerie con: the Heirs of H●lliburton, 17 Feb. 1663. Montgomerie con. Rankine, 23 Novemb. 1667 Moffat con. Bl●●k, 24 june, 1664 Morison's Rel●ct con. the Heir, 12 Feb. 1663. Daughters of Mr. james Mortoun Supplicant, 26 Novemb. 1668 Parson of Morum con. the L●s. of Be●rfoord and Beinstoun, 6 July, 1666 Sir George Movat con. D●mbar of Hemprig, 22 Feb. 1665 Mow con. Duchess o● Buccleugh, 7 July, 1663. L. Muchrum con. L. Mercoun, and others 20 Decemb. 1662. Muir con. Frazer, 27 July, 1665 Muir con. Sterling, 19 Feb. 1663. Muirhead con. 27 July, 1664 E. Murray con. L. G●ant, 9 January, 1662. Sir Robert Murray, con. 8 Feb. 1662. Murray con. 17 June, 1665 Murray con. Executors of Doctor Guild, 16 june, 166● E. Murray con. Hume, 2 january, 1667 Creditors of Sir james Murray con. Murray, 1 Feb. 1667 Murray of O●htertyre con. Sir john Drummond▪ 22 Feb, 1670 Murray of Ochtertyre con. Grace, 16 Decemb, 1670 Murray con. Murray, 12 july, 1671 Murray con. E. Southesk and others, 28 July, 1671 Mushet con. Duke and Duchess of Buccleugh, 28 january, 1668 NAper con. Gordon of grange, 12 Feb▪ 1670 Naper con. E. Eglintoun, 14 Feb. 1671 Nasmyth con. jaffray, con: 25 july, 1662. Nasmyth con. Bowar, 1 july, 1665 Neilson con. Meinzies of Enoch, 21 june, 1671 Lo. Newbyth con. Magistrates of Elgin▪ 17 Feb: 1665 Lo. Newbyth con. Dumbar of Burgie, 18 Decem, 1666 Newman con. Tenants of Hill and Mr. john Preston, 8 january, 1669 Nicol con. Hope, 8 january, 1663. Nicolson con. reward of Tillicutrie, 14 january, 1662. Nicolson con. L. Bughtie and Babirnie 14 Novemb. 1662. Sir Thomas Nic●lson con. L: Philorth, 18 Decemb, 1667 Nisbet con. Least▪ 8 july, 1664 Nisbet con. Murray, 23 Novemb. 1664 Nisbet con. 5 June 1666 E. N●rthesk con. Viscount of Stormond, 28 Feb. 1671 Norvel con. Sunter, 20 Decemb. 1664 Norvel con. Sunter, 29 june, 1665 OGilvie con. Stewart, 11 Decemb▪ 1662. Ogilvie con. Grant, 7 july, 1664 Ogilvi● con. 21 Feb. 1666 Ogilvie con. Lo. Grace, 17 july, 1666 Oliphant con. Dowglas; 3 Feb: 1663. Sir Laverance Oliphant con. Sir john Drummond. 6 and 9 january, 1666 Oliphant con. Hamilton, 2 january, 1667 Lady Otter con. L. Otter, 8 january, 1663. Lady Otter con. the Laird, 16 Feb▪ 1666 palate con. Fairholme, 7 F●b. 1665 E. Panmuire con. Parochioners, 7 Feb. 1666 Papla con. Magistrates of Edinburgh, 31 january, 1668 Pargillies con. Pargillies, 26 Feb. 1669 Park con. Somervail, 12 Novemb. 1668 Parkman con. Allan, 14 Feb. 1668 Parkman con. Allan, 21 Feb, 1668 Parochioners of Port Supplicants, 4 Decemb. 1665 Paterson con. Watson, 17 Decemb. 1664 Paterson con. Pringle, 4 Feb: 1665 Paterson con. Humes, 17 Decemb. 1667 petoun ●nd Mercers con petoun, 23 June, 1666 Relict of petoun con. the Relict of Archbald Patou● 7 july, 1668 petoun con. petoun, 21 july, 1668 ●e●cock con. bailie, 3 july, 1662. Peirson con. Martin, 12 Decemb. 1665 Peirson of Balmadies con. the Town of Montross, 29 june, 1669 Town of Peart● con. Weavers at the B●idg-end of Pearth, 21 July, 1669 The Weavers of Pearth, con. the Weavers at the B●idge-end of Pearth, 4 Decemb. 1669 Paterson con. Anderson, 30 june, 1668 Petrie con. Paul, 20 July, 1664 Petrie con. Mi●chelson, 25 Novemb, 1665 Philip con: Cheap, 26 July, 1667 L. Philor●h con. Lo. Frazer, 4 Feb. 1663. L. Philor●h con. Fo●bes and Lo. Frazer, 16 Decemb. 1664 L. Philorth con. Lo. Frazer, 28 june, 1666 Ex●cutors of the Lady P●●toun con. Hay of Bal●ousie, 2 Feb. 1667 Pitcairn con. Edgar, 28 june, 1665 Pitcairn con. Tenants, 22 Feb. 1671 L. Pitfoddel con: L. Glenkindie, ●5 Feb, 1662. Creditors of Pollock con: Pollock, 21 ●anuary, 1669 L. Pol●●aes con. Tradesmen of Sti●ling, 7 July, 1671 L. Polwart con: Humes, 21 january, 1662. L. Palma●s con. L: haliburton, 16 January, 1667 Pot con. Pollock, 12 Feb. 1669 Po●tie con. Dycks, 2 Feb: 1667 L. Prestoun con. Allurid, 24 june, 1664 Sir George Prestoun con. Scot 27 July, 1667 Primross con. Din▪ 22 Novemb. 1662. Pringle con. Ker▪ 17 Feb. 1665 Pringle and her Spou●e con. Pringle, 29 Novemb. 1667 Pringle con. Pringle, 1 Feb▪ 1671 RA● con. Tenants of Clackmannan. 27 july, 1665 Ra● con. Tenants of Clackmannan, 28 July 1665▪ Raith of Edmonstoun con▪ L. Niddrie, 4 july, 1661. Raith and Wachop con. L: Wolme● and Major Biggar, 13 july, 1670 Ramsey con. E: Wintoun, 24 January, 1662. Ramsey con. M●clelland, 24 january, 1662. Ramsey con. M●clelland, 11 Feb: 1662. Ramsey con. Hogg and Seaton, 22 Decemb. 1664 Ramsey con. Wilson and others, 12 Decemb. 1665 Ramsey con: Ker, 9 Feb. 1667 Ramsey con. Henderson, 20 jannuary, 1671 Rei● con. Harper, 19 June, 1663. Reid con. Melvil, 20 Decemb. 1664 Reid con. Reid. 10 January, 1665 Reid con▪ Summoned, 16 january, 1667 Reid con. 19 Jan●ary, 1667 Renton con. Mr. Mark Ker, 10 and 24 january▪ 1662. Lo. Renton con. Fewars of Coldinghame, 20 january▪ 1666 L●. Renton con. L: Lambertoun, 23 Feb, 1667 Lo. Renton con. L. Lambertoun, 21 July, 1668 Reoch con: Cowan, 26 Feb. 1668 Ri●kart con. 30 January, 1663. Riddel con. 13 F●b. 1663. Ex●cu●ors of Ridpath con. Hu●●, 27 J●ly, 1669 Owners of the Sh●p call●d the Castle of Riga, con. Captain Seaton, 27 July, 1667 Owner● of the Ship c●lled the Castle of Riga, con. Captain Seaton. 25 Feb. 1668 Robertson con. Buchannan, 1 Feb. 1663. Lo. Rollo con. his Chamberlain. 13 Dec●mb: 1664 Ross con. Campbel of Calder, 3 Ianua●y, 1662. E: Rothes con: the Tutors of Buccleugh, 20 Decemb. 1661. SLo. Saltoun con. Lairds of Park and Rothomay, 20 Feb. 1666 sandiland's con. sandiland's, 25 January, 1671 Saver con. Ruther●oord, 25 Novemb. 1662. Schaw con. Lewis, 19 January, 1665 Schaw con. Tenants, 4 July▪ 1667 Schaw con. Calderwood▪ 21 January, 1668 Scot con. Montgomery, 14 January, 1663. Scot con. E. Home, 19 Feb. 1663. Scot con. Lady Fewaltoun, 19 july▪ 1664 Scot of Bread-Meadows con. Sco● of T●irlston, 20 july, 1664 Scot▪ con. L. Beerfoord, 23 Novemb. 1664 Scot con. Henderson and Wilson, 8 Decemb. 1664 Scot con. ●letcher, 27 january, 1665 Scot of Thirlstone con. Scot of Broad-meadows, 11 Feb. 1665 Scot con. Silvertounhill, 14 july, 1665 Scot con. Somervail, 28 july, 1665 Scot con. Boswel of Achinleck, 22 Novemb, 1665 Scot con. Heirs of Line of Achinleck, 5 july, 1666 Scot con. Sir Robert Montgomerie, 12 july, 1666 Scot con. Gib. 29 january, 1667 Scot con. Scot, 14 july, 1667 Scot of Clerkingtoun con. the Lady, 21 Feb. 1668 Scot con. A●ton, 11 Decemb. 1668 Scot con. L●ngtoun, 19 june, 1669 Scot of Hartwoodmyres con. 6 Novemb. 1669 Scot con. Murray, 8 january, 1670 Scot con. Chiefly and Thomson, 9 Feb. 1670 Scot of Thirlston con. Lo. Drumlen●ig, 15 june 1670 Scot con. L. Drumlen●ig, 10 june, 1671 Scot of Hassenden, con. Duchess of Buccleugh, 21 july, 1671 Scrimz●our con. Murrays, 24▪ june, 1663. Scrymzeour con. Murrays, 19 july, 1664 Scrymzeour con. Wedderburn, of Kingenie, 19 july, 1671 Seaton con. Roswel, 4 january, 1662. Seaton and L. Touch con. Dundas, 11 january, 1666 Seaton con. L. Bawhillie, 22 Novemb. 1667 Seaton con. Seaton 19, Decemb. 1668 Seaton con. Seaton, 22 Decemb. 1668 Sharp of Houstoun con. Glen, 16 Feb. 1666 Sharp con. Gl●n, 14 july, 1666 Shed con. G●rdon and Kyle, 24 july, 1662. Shed con. Chartres, 13 january, 1665 Relict of Mr. Pat. Shiel con. Paroch●oners of West-Calder, 26 january, 1670 Shein con. Chrystie, 15 Novemb. 1666 Simes con: Brown, 5 january, 166● Sir Robert Sinclar con. the La●rd of Wedderburn, 21 Feb, 1666 Sinclar of Brim Supp●lcant, 12 june 1666 Sir Robert Sin●lar con. the L, of Houstoun, 15 june, 1666 Sir Robert Sinclar con. Couper, 2 july, 1667 Skene con. Lumsden, 4 Feb. 1662. Skene con. Lumsden, 19 july, 1662. Skene con. Lumsden, 9 january, 1663. Skene and Thoires con. Sir Andrew Ramsey, 14 Novemb. 1665 Relict of Skin● con. the E. Roxburgh, 19 Feb. 1669 Slivanan con. Wood of Grange, 13 Feb. 1662. Smeton con. Crawfoord 3 january, 1667 Smeton con. Talbert, 7 Feb. 1667 Smith and Duncan con. Robertson, 7 Decemb. 1665 Smith con. Muire, 23 Decemb. 1668 E. Southesk con. Broomhal, 12 Feb. 1663. E. Southesk con. Marquess of Huntly, 23 july, 1666 E. Southesk con. Marquess of Huntly, 31 July, 1666 E, Suthesk con. L. of Earles●al, 27 Feb. 1667 Daughters of Sautray con. the eldest Daughter, 13 July, 1670 Spruel con. Miller, 21 July, 1665 Steel con. Hay of R●tra, 6 June, 1671 Stewart con. Fewars of Aberl●dnoch, 8 January, 1662. Stewart con. Nasm●th, 6 Decemb. 1662. Stewart con. Spruel 21 January, 1663. Stewart con. Bogle, 30 January, 1663. Stewart con. Stewart, 25 June, 1663. St●wart con. Stewarts, 18 January, 1665 Stewart con. Aitcheson, 17 January, 1668 Stewart con. L. Rossyth, 21 January, 1668 Stewart con. Fewars of E●nock, 24 June, 1668 Sir William Stewart con. Murrayes, 17 July, 1668 Stewart of Gairntillie con. Stewart, 24 June, 1669 Sir William Stewart con. Sir George M●ckenzie, and Kettlestoun, 8 July, 1671 Stevin con. Boyd, 30 June, 1666 Stevin con. Boyd, 9 July, 1667 Stevins con. Neilson, 11 July, 1671 Stevinson con. Ker, 28 January, 1663. Stevinson con. Crawfoord, 30 June, 1665 Executors of Stevinson con. Crawfoord, 12 J●●uary, 1666 Stevinson con. the L. of Hermiesheels, 15 June, 1666 Stevinson con. Dobbie, 30 June, 1666 Sterling con. Campbel, 21 Feb. 1663. Sterling con. Hariot, 27 January, 1669 Viscount of Stormount con. the Creditor's of Annandale, 26 Feb. 1662. Strachan con. Morison, 17 January, 1668 Strachan con. Morison, 22 Feb. 1668 Strachan con. gordon's, 7 July, 1671 Straitoun con. the Countess of Hume 10 Decemb. 1667 Street con. Home and Bruntsfield, 9 June, 1669 Street con. Masson, 27 July, 1669 Swintoun con. 18 July, 1662. L●dy Swintoun con. the Town of Edinburgh, 19 Feb 1663. Swintoun con: Notman, 10 June, 1665 Swintoun con. Brown, 18 Decemb. 1668 Sword con. Sword, 16 January, 1663. E. Sutherland con. M●intosh, 22 July▪ 1664 E. Sutherland con. Gordon, 1 Decemb. 1664 E. Sutherland con. the Earls of Er●ol and Marischal 3. January, 1667 TLa. Tarsapie con. L, Tarsapi●, 20 Decemb. 1662. Collector General of the Taxation con. D●rector of the Chancellarle, etc. 22 January, 1669 Collector General of the Taxation con. Mr. and Servants of the Mint●house, 22 January, 1669 Tailor con. Kintie, 15 June, 1666 Telzi●fer con. Maxtoun and Cunninghame, 29 June, 1661. Telziefer con. Maxtoun and Cunningham, 4 july, 1661. Tailziefer con. L. So●nbeg, 6 Decemb. 1661. Tailziefer con. Geddes, 11 Novemb. 1665 Lo. Thesaurer and Advocate, con. Lo. Colvil, 20 ●●b. 1667 Thomson con. Mckittrick, 3 July, 1662. Thomson con. Reid, 15 June▪ 1664 Thomson con. Town of Edinburgh, 14 Feb. 1665 Thomson con. Henderson, 4 Decemb: 1665 Thomson con. Binning, 10 July, 1666 Thomson con. Mckittrick, 21 july, 1666 Thomson con. Stevenson, 19 and 13 Decemb. 1666 Thomson con. E. Glencairn, 21 July, 1668 T●orntoun con. Milne, 29 June▪ 1665 Tipertie con. his Creditor's, 3 January, 1662. Lo. Torphichan con 8 Feb, 1662. Tosh con. Cruckshank, 16 July, 1666 La. Towi● con. Barclay, 9 Novemb. 1669 La. Towie con. Barclay, 26 January, 1670 Trench con. Watson, 18 Feb. 1669 Exe●utors of Trott●r con. Trotter, 20 Novemb. 1667 Lairds of Tullialland and Condie, con. Crawfoord, 16 and 17 June, 1664 E. Tullibardin con. Murray of Ochtertyre, 12 Feb. 1667 Tweedies con. Tweedies, 22 Dec●mb. 1666 URqu●art con. Blair, 14 July, 1665 Urquhart con. 〈◊〉 4 Decemb. 1666 Sir. John urquhart Supplicant 7 Decemb. 1669 V Collector of the Vacand Stipends con. Parochi●ners of Maybol, 10 Feb. 1666 Veitch con. lyel, 18 january, 1662. Veitch con: Paterson, 2 Decemb. 1664 Veitch of Daick con. Williamson, 9 Decemb. 1664 Veitch con. D●ncan, 7 Decemb. 1665 Vernor con: Allan. 24 June, 1662. WAchop con. L. Niddrie, 15 july, 1662. Wallace con. Fork, 19 June, 1662. Wall●●e con. Edgar, 22 january, 1663. Wallace con. Mckerrel, 9 january, 1669 Wardlaw con. Grace, 20 Novemb. 1662. Wardlaw con. Frazer, 21 Feb. 1663. Wat con. Russel, 16 Novemb. 1665 Wat con. haliburton, 14 june, 1667 Wat con. Campbel, 8 Feb. 1671 Watson con. Elies, 27 June 1662. Watson con. Fleiming, 6 Feb. 1666 Watson con. Fewres of Duckennan, 21 june, 1667 Watson con. Law, 12 july, 1667 Watson con. Sympson, 1 Feb. 1670 L. Wedderburn con. Wardlaw, 13 Feb. 1666 Wedderlies Children, 24 January, 1663. Weems con. Cunninghame, 24 july, 1662. Weems con. Lo. Torphichan, 25 july, 1661. Sir john Weems con. the Laird of Tolquhon, 8 Feb. 1668 Sir john Weems con. Wil Campbel of Ednample, 21 july▪ 1668 Sir john Weems con. Forbes, of Tolquhon, 2 january 1669 Sir john Weems con. Farquhar of Tauley, 23 January, 1669 white con. Crocket, 4 Decemb. 1661. white con. Hume, 25 Novemb. 1665 white con. Brown, 30 Novemb. 16●5 Whytehead con. Straitoun, 16 Novemb. 1667 Wilkit con. Ker, 24 june, 1662. Will con. Town of Kirkaldie, 11 Feb. 1671 Wilson con. Thomson, 26 June, 1662. Wilson con. Murray, 27 june, 1662. Wilson con. Hume of Linthil, 2 Decemb. 1664 Wilson and Callender, con. 12 January, 1665 Wilson con. Magistrates of Queens●errie, 2 Ianua●y 1668 Winraham con. La. Idingtoun, 19 july, 1665 Winrham con. Elies, 15 Decemb. 1668 E▪ Wintoun con. the Countess of Wintoun, 16 Feb. 1666 E. Wintoun con. Gordon of Letter-●errie, 15 July, 1668 Wishart con. Arthur, 4 Feb. 1671 La. Wolmet and Dankeith, con. Major Bigg●r, 24 January, 1668 La. Wolmet and Dankeith con. Major Bigga●, 14 june, 1671 Wood con. Neilson, 13 july, 1669 Wright con. Sheil, 16 june, 1665 Yeoman con. Oliphant, 29 july, 1662. Yeoman con. Oliphant, 22 january, 1663. Yeoman con. Oliphant, 21 Decemb. 166● Yeoman con. Oliphant, 5 january, 166● Young●r con. Johnstoun, 30 june, 1665 Younger con. johnstoun, 28 Novemb. 1665 FINIS. ERRATA. SEveral Errors has escaped the Press in the Author's absence, and the rest being but Literal Faults, the Judicious and Candid Reader▪ will easily correct them. PAge 53. l. 9 Osburn r. Osburns nam. p. 57 l. 12. acratus r. lucratus. p. 43. earister r. thereafter, p. 64. l. 20. on by, there r. Town, p. 71. l. 21. instructions of offence, r. instrument of offer, p. 72. l. 31. Defender, r. Pursuer, l. 34, grant. r. granter, p. 81. l. 6. if▪ r. yet, p. 91. l. ult, Suspender r. Charger, p. 92. or. by. r. to p. 98 l. 23. to r. by, p. 100 l. 14. and r. he. p. 101. l. 15. the second Annualrent deal, p. 105. l. 11. initiable r. imitable, p. 107. l. 21. defender r. pursuer, p. 108. l. 21. Laws r. Lands, p. 110. l. 36. pursuer r. suspender, p. 112. l. ●. in r. no, p. 114. l. 23. actorialis, r. actio r●alis, l. 24. ● valued r. valid, p. 116. l. 18. differred r. discerned, p. 118. l. 27. and 28. And dispone the Tenement, de●e, l. 40. debtor. r. debate, p. 120. l. 41. lands r. bonds, p. 122. l. 4. deposition r. depositation, p. 152. being r. and therefore writs being, p. 126. l. 33. ●nstruct, r. in●ert, p. 128. l. 11. therefore, r. the pursuer p. 140▪ l. 1. though r. the, p. 141. l. 20. would r. could no●, l. ult. was r. was not, p. 142. l. 19 have been vincus, r. not have been unicus, l. 20. b● r. exchanging, p. 146. l. 20. observed, r. reserved, p. 150. l. 23. first, r. fifth, p. 160. l. 16. the r. by▪ l. pen i● he, r. who, p. 162. l. 17. needful r. wilful, p. 166. l▪ 2. bl r. ●ight searz, p. 180. l. 22. defuncti maritis, r. defunctae matris, p. 181. l. 31. no deal, p. 188. l. 40. inmoveable deal, 191. l. 25. a sufficient, r. this, p. 194. l. 19 bls. r. incumbent, l. 28. heretor r. heritable, p. 195. l. 19 transaction, r. translation, l. 21. heir r. her son, l. 36. confirmation, r. confinio, p. 196. l. 37. their r. her, p. 200. l. ●4▪ bl: r. knew, p. 202. l. 25. past, r. past f●ra, was, l. 42. which r. 4th▪ p. 219. l. 17. could, r. would not▪ 220. l. 15. He●r r. He●r of line, p. 231. l. 9 power r. so near, p. 236. l. 18. answered deal, p. 251. l. 42. Pursuer r. Children, p. 252. l. 7. Children r. Pursuer, l. 42. to deal, p. 253. l. 39 were r. neither, l. 40. seem r. some, p. 269. l. 35. likeas in his office, r. in his office likeas, p. 281. l. 14. minister r. master, p. 292. l. 42. reduced r. deduced, l. 43. others r. and, p. 309. l. 3. with r. which. 480. l. 10. emmitted r. ommitted, p. 483. l. 29. without consent r. with consent, p. 490. l. 10. he did not sell r. he did sell, p. 493. l▪ 8. peculium r. periculum, p. 497. l. 47▪ yet whether. r. yet where the▪ p. 498. l. 30. 29. ad r. 30. act, p. 518. l. 42● so Richard r. to Richard, p. 533. l. 28. loadned r. abandoned, p. 546▪ uses to be preferred, Add the Stranger's Infeftment. p, 567. l▪ 30. and jus, r. as jus, p. 569. l. 22. heritable r. Movable: p. 570. l. 4. the Husband therein, r. the Husband's interest therein, p. 590. l. 32. Ardoch, r. him, p. 593. l. 38. granted to r. granted by, p. 610. l, 7. no Testament, r. a Testament, ibid. did exhau●t, r. did not exhaust, p. 627. l. 26: nothing r. any thing. p. 659. l. 30. by invalidat, r. to invalidate, p. 657. l. 36. are not comprehended r▪ are comprehended, p. 665. l. 27. exclude r. excluded, p. 666. l. 41. and in r. and not, p. 679. l. 21, they could be, r. they could not be, p. 725. l. 2. another r. a Mother▪ last Index, p. 2. l. 49. fragrant r. fragrant▪ A LIST Of the Heads of the following Index, or Alphabetical Compend. ACT of Indemnity. Act of Parliament, Act Salvo Jure, Adjudger, Adjudication, Adm●ral, Advocate, Adulter●e, Alibi, Aliment, Ann, Annexation, Annuity, Annus deliberandi, Annuelrent, apprizing, Arb●ter, Arrestment, Assignation, Attester. BAillie, Bairn, Band, Barron, Base Infeftment, Bastardy, Behaving as Heir, Bills of Exchange, Blank, Bloodwi●e, Bona fides, Burgh, Burgh Royal. Caption, Casus ●ortuitus, Cause onerous, Cautioner, Cedent, Certification, Charge, Chyrog●aphum, etc. Circumvention, Citation, Clause, Clause of Conquest, Clause Irritant, Cl●●se of Substitution, Clause de non alienando, Coal, Cogn●tion, College, Command, Commissar, Commission, Commodatum, Common Pasturage, Commonty, Compensation, Competent and ommitted, Compt, Compt Book, Conclusion of the Cause, Confession, Confirmation, Con●usion, Conjunct●ee, Conquest, Con●ent, Consignation, Continuation, Contract, Contrary Alleadgances, Contravention, Creditor, Cropped, Cruves, Curators, Custody. DAmnage, Date, Death, Deathbed, Debtor no● presumitur donar●, Debitum fundi, Declarator, Declarator of Escheat, Declarator of Non-entr●e, Declarator of Nullity, Declarator of Property, De●reet, Decreet Arbitral, Decreets of inferior Courts, De●reets of Session, Decreets of Parliament, Delivery, Depositation, Designation, Devastation, Diligence, Discharge, Disposition, Division, Donation, Donation betwixt Man and Wife, Donator, Double poinding, In Dubiis, &c▪ EJection, Erection, Escheat, Ex●cutors, Executor Creditor, Execution, Exception, Exhibition, Exhibition ad deliberandu●, Extract. FAther, Feu, Feu-dut●e, Forfeiture, Fraud, Fraught, Fruits. General Let●e●●, G●ft, HEirs, Heir Male, Heir substitute, He●r apparent, He●rs ●n Tacks, Heirship movable, Her●table, Holden as confessed, Holograph, Homologation, Horning, Husband, Hypothecation▪ IGnorantia ju●is, etc. Improbation, Incident, Pro ●ndiviso, Infeftment, Inhibition, Interdiction, Interruption, Intimation, Intromission, Jus Mariti, Jus superveniens, etc. Jus tertii. K The K●ngs Palace, Knowledge. LAw, Legacy, Licence to pursue, Litiscontestation, Locus penitentiae, Lords, Lucrative Successor, Life, Lyferenter, Lyferent E●chea●, Lion Herald. Magistrates, Manda●, Mails and Duties, Maintinance, Marriage, Melioration, Merchant, Metus Causa, Miln, Minister, Minor non tenetur placitare, etc. M●nor, Minority and Le●●on, Minute, Missive Letter, Mother, Movable▪ NEarest of Kin, Nonentrie, Noviter veniens ad notitiam. OAth, Oath of Calumny, Oath ●x officio, Oath in 〈◊〉, Oath qualified, Obligation, Offer, Office, Overseer. Partly and pertinent, Parties having Interest, Parricide, Passing from, etc. Payment, Pension, Peril, Personal, Possession, Possessor bonae fid●●, Possessory Judgement, poinding, Precept, Premonition, Prescription, Presumption, Privilege, Probation, Process, Promise, Protutor, Prise Ships, Pupil. Ratihabition, Recognition, Redemption, Reduction, Regality, Relief, Rel●ct, Removing, Renunciation, Reparation, Reprobature, Requisition, Retour, Reversion, Right Real. SAlmond-fishing, Satisfaction, Seasine, Service, Servitude, Simulation, Singular Successor, Slander, Special Declarator, Spui●zie, Stipend, Stolen goods, Submission, Substitution, Successor Lucrative▪ Summons, Superior, Superiority, Suspensions. TAcit Relocat●on, Tack, Taxation, Teinds, Tenor, Terce, Term of payment, Testament, Thirlage, Tocher, Tradesmen, Transaction, Transference, Trust, Tutor, Tutor nominat, Tutor dative. ULtimus Haeres. Use of Payment, Userie. VIcarage, Violent profits, Vitiation, Vicious Intromission. WArd, Waking, Warning, Warrandice, Wi●e, Witness, Witness ex officio, Witness insert, Wodsetter, Wodset, Writ. INDEX: OR, An Alphabetical Compend of the first Part of the Decisions of the Lords of Session, beginning in June 1661. and ending in July 1671. ACT OF INDEMNITY, found to liberate a Soldier, acting with a party of Soldiers in Arms, under any Authority, lawful or pretended, and that his Warrant or Command was thence presumed, unless it were proven by his Oath that he had no Warrant, and converted the Goods to his own private use, june 25. 1664. Ferquharson contra Gardner. The same found, February 15. 1666. Lion of Mur●ask contra Gordouns and others: But here the application was ●ound probable by Witnesses. Act of Indemnity ●ound to secure a Person intrometting by order of the Committee of Estates for the time, in so far as he counted to them, without necessity to show his Commission, or the Warrant of the Auditors that counted with him, but not found sufficient to free him from what he had omitted, though the said Account bear, That he had made Faith, that he had omitted nothing, Which was only accounted an Oath of Credulity, like that of Executors, February 13. 1667. Lord justice Clerk contra Laird of Lambertoun. Act of Indemnity, ●ound to make Intromettors with public Money, liable only for their Intromissions, and not for omission, though by their Commission they were bound to do Diligence, February 23. 1667. inter ●osdem. Act of Indemnity, found not to make Collectors liable for what they intrometted with, and counted not for, not being applied to their own use, but carried away by Soldiers, for the use of the Army, without necessity to instruct the Soldiers or Collectors Warrant, which was presumed, I●ly 28. 1668. inter ●osdem. ACT OF PARLIAMENT, Relating a former Act, and not conform thereto, ●ound not thereby to alter the former Act, but to be Regulat thereby, january 20. 1665. The Heretors upon Don Water contra the Town of Ab●rdene. An Act of Parliament anent leaving the mid-stream free in Cr●ives, found to be taken away by Desuetude past memory, july 29▪ 1665. Inter eosdem. The like of the Act 1555. cap. 29. july 5. 1666. The Earl of Hume contra his Creditors. Act of Parliament in favours of private parties, not Printed, assigning them to some bygone Maintenance, found not effectual against singular Successors, though not excepted in the Act, they not being called thereto, june 25. 1668. Inglis contra Laird of balfour. Act of Parliament betwixt Debtor and Creditor, found not to extend to Bonds for Rents of Lands, though exceeding 1000 pounds, but that personal Execution might be thereon, December 6. 1661. Dalmahoy contra Ham●●toun of ●innie. The said Act found to Restrict a Wodset, though the Usurpers Act, and all such Acts made, or to be made, were Rescinded, january 29. 1661. Laird of Lamingtoun contra Sir john Ch●isty. The Security required by the said Act for Principal and Annualrent accumulat, found either to be by Cautioners, or Infe●tment of Land, july 7. 1664. Miln contra Hume of Eccles. THE ACT SALVO JURE being excluded in a Ratification to a particular Party, and that Exclusion not being repeated in the Act Salvo, The Lords were unwilling to decide, whether such Exclusion should be sufficient, but ordained the Parties in the first place, to Dispute their Rights, without consideration of that Clause, Feb●uary 11. 1665. Earl of Lauderda●l contra Viscount of Oxenfoord. AN ADJUDGER ordained to be Received, without instructing his Debtors Right, who Renunced to be Heir, Salvo jure superioris & cujus●bet, February 9 1667. Ramsay contra K●r. ADJUDICATION being on a Disposition, and obligement to Infe●t, and not upon a liquid sum, the Superior was not found obliged to receive the Adjudger, unless he instructed the Disponers Right, june 24. 1663. Medowgal contra Laird of 〈◊〉. Adjudication being pursued by a Creditor on a personal Debt, was not excluded by a Back-bond of the Defuncts Debtors, bearing his Infeftment to be on Trust, to the behoof of a third Party, whose Creditors compeared against the Adjudger, yet was not put to Dispute his Debtors Right till a●ter the Adjudication, he might use Exhibition of his Evidents: but the Adjudication was granted with the burden of the Back-bond. November 23. 1663. Livingstoun and Sornbeg contra Lord Forrester and Creditors of Grange. Adjudication was Excluded as to the Property, in favours of a Party, showing the Defunct to be Denuded, and himself Infeft, but was Sustained to Adjudge any Right of Reversion, Clause irritant, or Provision in favours of the Defunct Debtor, Iu●y 22. 1664. Inter ●osdem. Adjudication was Sustained against a second appearand Heir upon a Decreet cognitionis causa, upon the Renunciation of a former Heir, without a new Charge against the Heir, or his Renunciation: The Defender declaring that the Lands should be Redeemable within ten years, if the Pursuer Entered within these years, january 17. 1666. Crawford contra Auchinleck. Adjudication was found not to be stopped upon a better Right than the De●uncts, alleged upon by a Party compearing, but the Pursuer was suffered to Adjudge upon his peri●, November 15. 1666. Chein contra Christie. ADMIRAL, or the judge of the high Court of Admiralty, does Reduce the Decreets of inferior Admirals. or their Deputs, February 24. 1668. Captain Mastertoun contra Strangers of Ostend. The Lord Admiral being out of the Country, found not necessary to be called in the Reduction of a Decreet of Admiralty, where the judge pronuncer of the Decreet was Called, Inter ●osdem. ADVOCATE was found obliged to Depone concerning the having of his Clients Writs, February 1. 1666. contra Rallo. An Advocate being in his Duty, hindering a Suspension to pass, being threatened by a Party, who said he would make him repent what he had said if he were in another place, and calling him Liar and Knave, the Lords imprisoned the Party, and Fined him in 500 marks, july 14. 1668. Mr. David F●lco●er contra Sir james Keith. ADULTERY was found not to infer Escheat, unless the Adulterer were Convict Criminally, or Denunced as Fugitive, though he had confessed, and stood in Sackcloth a year, Ian●ary 9 1662. Baird contra Baird. ALIBI was found not receivable for proving a false dat● to annul the whole Write, where the Witnesses insert proved the 〈◊〉 of the Subscription, though of a● Erroneous date, February 23. 1667. Laird of May contra Ross. ALIMENT was found due by the Heir to his Brothers and Sisters, their Mother being dead, and they left without any Provision, january 24. 1663. Children of Wedderly contra Laird of Wedderly, R●o absent. Aliment was found due by an Heir-male, to Heirs of Line, to whom he was obliged to pay such a sum when they were Marriageable without mention of Annualrent or Aliment, here the Heir-male succeeded to a considerable Estate, November 8. 1663. Lady Otter contra Laird of Otter. Aliment was found due by an Heir-male to an Heir-●emale of a second Marriage, till her age of fourteen, from which time, her Portion bear Annualrent, and bea● no mention of Aliment till then, her Mother being dead, and having no way to subsist, without consuming the Stock of her Portion, February 11. 1663. Frazer contra Frazer. Aliment was found due by an Heir-male, to Heirs of Line, till their Marriage, and not till the Term of payment of their Portions only, seeing the same bear no Annualrent, r●o abs●●te, November 12. 1664. Daughters of Balmerino contra Lord Balmerino. Aliment of a Child was found not due where the Child was freely entertained by the Mother's Father, who demanded nothing during the time of the Entertainment, and was holden as freely g●f●ed for all years before the pursuit, july 21. 1665. Laird of Ludquhairn contra Laird of Geight▪ Vide Mother. Aliment was found due upon a Bond of Provision, granted by a Father to his Daughter, obliging him to Entertain her till the Term of payment of her Portion, which bear no Annualrent, and that not only till the Term of payment, but thereafter till her Marriage, and even for years in which her Mother's Brother Alimented her Gratis, after her Father's Death, but for no time of his Life, seeing she le●t her Father's House, upon pretence of her Stepmother's severity, january 21. 16●8. Stevart contra Laird of Rossesyth. Al●ment of a Daughter by her Mother, Married, was ●ound due, the Daughter being appearand Heir to her Father, whose whole Lands the Mother Liferented, though the Daughter Renunced to be Heir, july 16. 1667. Ha●iltoun contra Symontoun. Aliment was not found due to an appearand Heir, who was Major, and keeped a Brewary, by a Liferenter, whose Liferent was very mean, and entertained one of his Children, january 27. 1669. Stirling contra Heriot. AND was found to be the whole year wherein the Defunct died, if he died before Michalmas, and if he died after Michalmas, and before january, to be the whole year in which he died, and the half of the next year; but if he reached january, dying in February, he hath that whole year, july 5. 1662. Executors of Fairly contra his Parochioners. An● of a Minister having a Wife and no Bairns, was found to divide equally betwixt his Wife and nearest of Kin, june 24. 1663. and july 19 1664. Scrymzour contra● Executors of Murray. Ann of a Minister dying after Michalmas, and before Mar●●nmas, was ●ound to extend to that years Stipend, and the hal● of the next, july 19 1664. Inter ●osdem. ANNEXED PROPERTY of the Crown was found not validly dissolved, unless the dissolution had preceded the Gift and Infeftment, and had proceeded upon weighty Reasons, by a special Act, and not by a Clause i● a Ratification of the Gift, February 25. 1669. King's Advocate contra Earl of Mortoun and Viscount Grandi●ound absent. ANNVITY of Teinds included being in question, it was recommended to the Parties to settle, but the Lords inclined to Liberat the Teinds, january 10. 1662. Laird of Rentoun contra Ker. ANNUS DELIBERAND I, was found to exclude Reductions and Declarators against appearand Heirs, not requiring a Charge to Enter Heir, in respect the appearand Heir must therein except upon the Defuncts Rights, and so behave as Heir, june 27▪ 1667. Dewar contra Paterson▪ Annus deliberandi, Excludeth Citations, given within that year, here the day of compearance was within the year▪ Ibidem. ANNVALRENT was not found due for sums of Money without paction, albeit the Money was lent with this provision, that failing Heirs of the Creditors body, who was very old, the Debtor should succeed, December 11. 1662. Logi● contra Logi●. Annualrent was found due after Horning, albeit the Decreet being Suspended, a part of it was taken away, yet Annual was found due for the rest, january 30. 1663. Rigg of Carberry contra his Creditors. Annualrent was allowed without paction for a Portion, left by Legacy to the Defuncts natural Daughter, the time of payment of which Legacy was her Marriage, which being in her power, The Lords would give no occasion to hasten the same, but allowed Annualrent in the mean time, june 25. 1664. Inglis contra Inglis. Annualrent was not found due by a Father to his Son for a Legacy left to his Son by his Mother's Father, and uplifted by the Father, during the time he alimented his Son in his Family, December 15. 1668. Windrham contra Eleis. Annualrent promised for a time by a Letter▪ was found due in all time thereafter, january 13. 1669. Hume contra Seaton of Menzies. Annual of Annual was not found due, though expressly obliged to be paid by a Bond, bea●ing, That after each Term the Annualrent, if it were not paid, should bear Annualrent with the principal, which clause was found null, and not in the same case with a Bond of Corroboration▪ granted after Annualrents were due, accumulating the same, january 26. 1669. Lady Braid contra Earl of King●orn. APPRYZING were found not to be affected by a Bond or a Contract amongst the Appyzers, to concur and communicate their Rights, as to singular Successors, seeing the Contracters were then Infeft, july 1661. Ta●lzi●er contra Maxtoun. An Apprizing led before the year 165●. but no Infeftment thereon till after that year, was found not to come in pari passu with posterior Apprizing Infeft, or Charging after the Charge or Infeftment on the apprizing before 1652. but it did exclude them wholly, December 12. 1666. Sir Henry Hume contra Creditors of Kello. An Apprizer was found Comptable ●or his Intromission with such as he Entered in Possession of, according to the Rental the Lands gave at his Entry, with power to him to give up all defalcations in his Discharge, and instruct the same, january 4. 1662. Seaton contra Rosewall. An Apprizer was excluded by a prior Infeftment, though granted to the Creditors appearand Heir, whereby he became Lucrative Successor, after this Debt contracted, but prejudice to pur●ue him personally, or to Reduce on that Title, january 6. 1662. Mansoun contra Bannerman of Elsick. An Apprizer pursuing for Removing, and Mails and Duties, his pursuit was Sustained only as ●o so much of the Apprized Lands, as he should choose, worth 8. per cent, and to count for the superplus more than his Annualrent and public burdens excepting the Defenders House and Mains, by the late Act of Parliament, betwixt Debtor and Creditor, june 27. 1662. Wilson contra Murray. Apprizers Competing upon the late Act of Parliament, bringing in Apprizing since 1652. pari passu, was found not to exclude Apprizing before, having obtained Infeftment since; but that none could come in with him, who was first Infeft, and paid the Composition till they refounded their shares thereof, january 24. 1663. Graham contra Ross. But also by the Tenor of the late Act, the first Apprizers being Infeft in an Annualrent, were found to have access to his Annualrent, though there was no poinding of the ground February 5. 1663. Inter ●osdem. An Apprizer was found comptable for the Rents of the apprized Lands, during the Debtors Minority, contrary the Act of Parliament 1621. Which was ●mended in the late Act, 1641. But in the late Act Rescissory, that was not Revived, seeing all private Rights by these Rescinded Acts. m●dio tempore, were Reserved, and this had been the Custom for twenty years, February 18. 1663. Rosse contra Mckenzie. Apprizers Competing, the first Apprizer having given the first Charge on the Letters of ●our Forms, and before the days thereof were expired, the Superior Infefting a second Apprizer, the Infeftment was found Collusive, and the first Apprizer, giving the ●irst Charge, and Infeft within a little time after the second, was preferred, and the first Infeftment Reduced, was still in Possession till now, that the Legal was expired, not only the bygone Fruits were his own, but that he might Redeem within a year after this Sentence, seeing by the Taciturnity of the Pursuer, he was in bona fide to continue his Possession, and not to doubt his own Right, or Redeem a second Apprizer, December 3. 1664. Laird of Cl●rkingtoun contra Laird of Corsbie. An Apprizing within a year was excluded from coming in pari passu, with a prior Apprizing, in respect the prior Apprizer, had before the Act betwixt Debtor and Creditor, taken Right to a prior Apprizing, without necessity to allege, that he took the Right to shun the expiring of the Legal of that prior Apprizing, or any other necessary Caus●, December 9 1664. john Veatch younger of Dawick contra Alexander Williamson. Apprizers Competing, where the first Apprizer being Infeft would possess but a part, the Debate being as to the rest, betwixt the second Apprizer, not Infe●t, and the third Infeft; the Lords preferred the second as needing no Infeftment, December 22. 1664. Doctor Ramsay and Hay contra Seatoun. Apprizers come in pari passu, not before the date of the late Act, but from that time both Parties Sums should be accumulate, and the Mails li●ted proportionally, but proceeding Mails should be imputed in payment of the Expense of the Apprizing, Composition to the Superior, and then in payment of the principal Sums, january 7. 1665. Grahame of Blackwood contra Brow●s. An Appri●ing being to be led, the present Heritor and Possessors obtained assessors to be joined to the Messenger, that he might stop the Apprizing by production of his In●e●tment, february 3. 1665. Sir john Fletcher Supplicant. An Apprizing ordained to be allowed, and Registrat after the Debtors death, and long after the sixty days were passed from the Date of the Apprizing, and that upon Supplication, without Citation▪ in respect it was found▪ that the Apprizing Registrate Quandocu●que, would be preferred to others, not sooner, or more orderly Registrate, Iune ●. 1665. An Apprizer pursuing for Mails and Duties, was excluded till he satisfied the Superior for a years Rent, he being now ready to Receive him, albeit he ●as Charged before, and did not obey, july 22. 1665. johnstoun contra Tenants of Auchincorse. An Apprizing being lost, and a new Extract thereof being Subscribed by the Clerk of the Apprizing, but not by the Messenger, being produced as a Title in a Process, the same was not Sustained without the Messenger's Subscription, or his Executions; but the Party was remitted to prove the Tenor thereof, December 1665. M●culloch contra Craig. An Apprizing was found to be satisfied by Intromission, not only within the years, but also within the three years added by the Act betwixt Debtor and Creditor, though the Apprizing was led long before that Act january 20. 16●6. Clappertoun contra Laird of Torsonce. Here it was also found that a part of the Lands Apprized being sold irredeemably by the Apprizer, were Redeemable within thr●e years; and that the singular Successor was only comptable for the Rents thereof, and not the Apprizer who had sold the same before the Act. An Apprizing led upon several Sums, of one whereof the Term of payment was not come, the Apprizing was ●ound null, as to that Sum; but whether it would be null in totum, or whether it would be valide to carry the whole Right of the Lands, as that Sum had never been in: or if a proportional part of the Land, effeiring to that Sum, would be free of the Appr●izing, the Lords decided not, but were of different judgements, February 16. 1666. Sharp of Houstoun contra Glen. An Apprizing was found extinct, as being satisfied by the Debtor, and retired by him with a blank Assignation thereto, lying by him at his death, though his Son thereafter filled up his Name therein, which was instructed, partly by the Son's Oath, which was found not sufficient to prove alone, and partly by Witnesses, ex officio, one of which, who proved most clearly, was his Brother, February 27. 1666. Creditors of the Lord Gr●y contra the Lord Grace. An Apprizing on a Bond bearing a Sum to be payable without Requisition, was found valide without either Requisition, or Charge of Horning, july 21. 1666. Thomson contra M●kitrick. An Apprizing was found extinct, as to a Party in whose favours the Apprizer granted a Back-bond, bearing (that the Apprizing should not be prejudicial to that Parties Right) which was found Relevant against a singular Successor, viz. The King's Donator having right to the Apprizing by Fore●aulture, july 31. 1666. Earl of Southesk contra Marquis of Huntly. An Apprizing was found satisfied within the Legal by Intromission, and no part of the Martinmas Rent was ascribed to a Tercers Right, not being served, though she gave Tack to the Apprizer, he having Entered on the Debtors Possession, December 21. 1666. Zeaman contra O●●phant. An Apprizing led against an appearand Heir, as specially Charged to Enter Heir, was preferred to the Infeftment ●f the next apparent Heir, after the Heir Charged his death, or the Infe●tment of their singular Successor granted after the matter became Litigious, albeit the Apprizer from the apparent Heir Charged, was never Infeft, nor Charged the Superior upon the Apprizing, neither was the apparent Heir himself Infeft, but that the Superior might be Cha●ged at any time after the apparent Heirs death; and albeit the next apparent Heirs▪ could not Enter Heirs to the former apparent Heir Charged, but to his Predecessor, to the effect they might Reduce or Redeem the Apprizing, led against the former apparent Heir, February 6. 1668. johnstoun contra Erskin. An Apprizing was found Redeemable from the eldest Son, and apparent Heir of the Debtor, within ten years, for the sums he truly paid out, by the Act of Parliament 1661. albeit his Father was living the time of this Process, june 19 1668. ●urnet contra N●smith. An Apprizer since 1652. pursuing the rest for his part of the Duties, as coming in with them pari passu, by the Act 1661. betwixt Debtor and Creditor, his Apprizing was ●ound not to be effectual, till the allowance thereof were Registrate, conform to the late Act of the same Parliament, anent Registration of allowances, but that it required no determinate time to Registrate, but whensoever Registrate it would be effectual as to all Rights, not completed before Registration, july 17. 1668. Stevart contra Murrain. An Apprizing on an Assignation to a Cautioner, or for his behoof, Apprizing for the whole sum, without deduction of that Cautioners part, was not found thursdays, in totum, but Restricted to the Sum truly due, being within the Legal, july 22. 1668. johnstoun of Sheins contra Arnold. An Apprizing and Infeftment thereon, granted by the Exchequer of course without notice, when the King by Forefaulture, was immediate Superior, was found not to supply a Confirmation, or to exclude the Donator of the Forefaulture, pursuing a Removing on a posterior Gift, December 9 1668. Earl of Argile contra Stirling. Apprizing with a Charge against the Superior, does not exclude the Liferent Escheat of the Vassal, against whom the Apprizing was led, without consideration whether the Superior was in culpa, by not obeying the Charge, june 28. 1667. Dowglat contra Lisk. An Apprizer having at several times Apprized on several Sums, and Entered in possession by the first Apprizing, before the seco●d was led, was found to impute his whole Intromission to the first Apprizing, that thereby it might be satisfied within the Legal: The Apprizer was also found comptable for what sums he received, for a part of the Lands sold by him within the Legal, but for no greater price: and a joint probation was refused, though it was in the Highlands, the Apprizer offering to prove by Witnesses above exception, and the Lords ordained both the Feears to be produced, and the greatest prices to be proven, that they might choose what Rate to ●ollow, january 14. 1669. Mckenzie of Puglas● contra Ross of Auchnacloich. An Apprizing led against one Charged to Enter Heir, who dying un-infeft, his Sisters as Heirs to his Grandfather, to whom he was Charged to Enter Heir, were ●ound to have the Right of Reversion of the Appri●ing, albeit they were not Heirs to their Brother, who was Charged to Enter Heir, but died un-infeft, january 1●. 1669. johnstoun contra Erskin Lord Lyon. An Apprizer having Charged the Superior, was found not thereby to become Vassal, so as by his death the Lands would ●all Waird, but by the Death of the Party, against whom the Apprizing was led, unless the Apprizer when he Charged the Superior, had presented a Chatter, with an offer of Money, and a Bond for what ●urther the Lords should modify for the years Rend, and had put the Superior in culpa aut mora, in not Infefting the Apprizer, and that whether the Superior required the same or not, February 9 1669. Black Donator by the Duke of Hamil●oun contra French. Vide Liferent, Dowglas contra L●●k. An Apprizing was found extinct, by the Intromission of him to whom the Apprizer granted Back-bond, declaring the Apprizing to be to his behoof, and that against a singular Successor, who thereafter obtained Disposition and In●e●tment upon the Apprizers Resignation, Iu●y 12. 1670. Kennedy contra Cuninghame and Wallace. An Apprizing posterior was preferred to a prior Appri●ing, being less formal and solemn, according to the custom then in u●e, the posterior being upon Denunciation at the Mercat Cro●s of the Sheriffdom, and the other at the Mercat Cross of the Regality, when Regalities were suppressed by the Usurpers, and was led at Glasgow, july 15. 1670. Lady Lucia Hamiltoun contra Boy● of Pitcon. An Apprizer was ●ound comptable for the whole Rents of the Lands he possessed by his Apprizing, both for his Ommission and Intromission, and that not only till his Apprizing was satisfied, but for all years subsequent, that he continued to intromet with any part, january 26. 1671. Cass contra Cunninghame. An Apprizing coming in the person of the apparent Heir of the principal Debtor, was ●ound extinct by satisfaction of the ●ums paid by the apparent Heir therefore, summarily without Reduction, not only as to the Estate of the apparent Heir, but as to the Estate of a Cautioner ●or that Debt, which was also Apprized, February 22. 1671. Dumbar of Baldoon contra Dick. An Apprizer of an Annualrent was preferred to an Arrester, although there was no Diligence upon the Apprizing, for nine years before the Arrestment, and that there was no Infeftment, or lawful Charge on the Apprizing, in respect it was a prior judicial Assignation, requiring no Intimation, February 23. 1671. Lord justice Clerk contra Fairholme. Apprizing deduced since january 1652. within year and day of the first effectual Apprizing, were found not to be counted by a year from the Infeftment or Charge, by which the Apprizing becomes effectual, but from the date of the first effectual Decreet of Apprizing, by the Act 1661. betwixt Debtor and Creditor, Which bears, That all such Apprizing shall be, as if one Apprizing had been led for the whole, july 4. 1671. Laird of Balfoure contra Dowglas. An Apprizing was found satisfiable by Exception or Reply, as being to the behoof of the Debtor, or his eldest Son, for the sums that were truly paid out by the Act of Parliament 1671. Albeit the Apprizing was Expy●ed, Ibidem. An Apprizing was Sustained, though it proceeded on a Bond, payable upon Requisition, and that the Claim of the Apprizing did make mention of the Requisition, seeing the Requisition was done, and is now produced▪ and though the Messenger having met at the diet appointed for the Apprizing, did adjourn the Court of Apprizing till the next day, in respect of a great Rain, and that the place designed for the Apprizing was upon the open Field: and though the place of the Apprizing was by dispensation, neither at Edinburgh, nor at the Head Burgh of the Shire, and past as a common Bill of course, july 12. 1671. Heirs of Lundy contra the Earl of Southesk and others. In Apprizing Messengers are prohibit by Act of Sederunt, to continue the dyet of Apprizing, except upon absolute necessity, that Parties interressed be not put to uncertain attendance: and likewise, dispensations for the place of Apprizing is prohibit to be passed of course amongst other common Bills, without being Read, Ibidem. An Apprizing acquired by the appearand Heir of the Debtor, was found satisfiable by any other of the Defuncts Creditors, by paying what the appearand Heir truly paid therefore, albeit the appearand Heirs Disposition was before the Act of Parliament 1661. seeing his Infeftment, by which the Right real is Established in his Person, and his Author was Denuded, was after the said Act; and albeit the Apprizing was not expired, when the appearand Heir acquired Right, but that it became to expire, continuing in his Person, and that it was Redeemable within ten years from the date of the acquiring, but not from the expiring of the Legal, I●ne 21. 1671. Maxwel of Nether-pollock contra Maxwel of Kirkconnel, An Apprizer was found not obliged to restrict his Possession to his Annualrent, in favours of posterior Apprizers, by the Clause for Restriction in the Act of Parliament 1661. which is personal and peculiar to the Debtor; but seeing the first Apprizer would not admit the posterior Apprizers to possess, he should be comptable for the whole Rental, from the time of the Exclusion, july 28. 1671. Murray contra Earl of Southesk and others. ARBITERS got Warrant on a Supplication to Cite Witnesses before them, january 6. 1670. Ker of Cavers and Scot of Goldenberry Supplicants. ARRESTMENT was not elided, because the sum arrested was discharged before the arrestment, seeing it appears the Discharge was not delivered to the Party. in whose hands the arrestment was made, nor none to his use, before the arrestment, December 13. 1661. Boyd contra Lairds of Niddrie and Edmonstoun. An Arrester and an assignee competing, the assignee was preferred, because the Arrestment was loosed, albeit the sum Arrested remained still in the same hands, because the Arrestment was on a dependence, and no Decreet thereupon, against the principal Debtor, july 4. 1661. Raith of Edmonstoun contra Laird of Niddrie and Lady Wolmet. Arrestment cannot be loosed without Caution, super cautione juratoria, july 16. 1661. College of St▪ Andrews Supplicant. Arrestment was found not to affect the Salaries of the Lords, and the King's Pensions, conform to a Letter and Act of Sederunt, February 18. 1662. Sir Robert Murray contra Arrestment Execute on the Sabbath Day, was found null by Exception, February 3. 1663. Oliphant contra Dowglas of Dor●och. Arresters' Competing, the second being on Letters of Supplement, against a Party ou● of the Country, was preferred to the first, being at his Dwelling Place, without Supplement, january 20. 1665. Lord Lower contra Givon. Arrestment on a Bond not Registrate, was found looseable, as not being on a Decreet of Registration, or any other, and after the losing, the Arrester was found preferable to a posterior assignee, seeing the Money was yet in his Hand, in whose it was Arrested, February 7. 1665. Grahame contra Brown and Doctor Martin. Arrestment being laid on in the hands of a Party who Entered in a Minute, or Bargain of Land, though he passed therefrom▪ yet the price was ordained to be made forthcoming, November 23. 1665. Campbel contra Doctor Beatoun. Arresters having both obtained Decreet in one day, were found not to come in equally, but the first Arrester was preferred, have done equal diligence, February 1. 1666. Colonel Cunninghame contra Lyel. An Arrester and Comprizer Competing for a S●m, whereupon Apprizing was led at the Instance of the common debtor, whereupon no Infeftment followed, yet the Arrestment upon the said first Apprizers debt, was not ●ound habilis modus, to make forthcoming the Sum apprised for, but the second Appryzer was preferred to the Arrester, February 22. 1666. Lockhart contra Lord Bargenzie. An Arrestment was found to give Action after the death of the debtor, whose Goods were Arrested, without a new Decreet against any Representing him, seeing he died at the Horn, and so could have none to Represent him in mobilibus, February 19 1667. Givon contra Hume: here the Defuncts Donator to his Escheat concurred, An Arrestment of Annualrents laid on curr●nte termi●●, was preferred to an apprizing of the Lands, led before that Term, seeing Infeftment followed not thereon, before the Term, july 2. 1667. Luster contra Aitone and Sleigh. Arresters' Competing, the ●irst Arrestment, and first Citation before the Lords and compearance sine mora, was preferred to a posterior Arrestment, and Citation before the Sheriff, though obtaining the first Decreet in absence, the Arrester not being in that Shire, November 23. 1667. Montgomery contra Rankine. Arrestments were found not to reach the Fie of a Servant, in so far as was necessary for the Servants Aliment, conform to the condition of his Service, but only as to the Superplus, july 9 1668. ●oog contra Davidson. Arrestment was found to Reach the next Terms Rend after it was laid on▪ though it was not due when it was laid on, july 20. 1669. L●ssy contra Cunninghame. Arresters' Competing, the posterior Arrestment by four days, was preferred to the prior, in respect the Term of the Sum, for satisfying of which, the Arrestment was laid on, was not come the time of the Citation, or Competition before the Bailies, though by an Advocation, raised by the prior Arrester, without a just Reason of Advocation, the Term was passed before the Competition before the Lords, july 29. 1670. Charters contra Neilson. AN assignee was not excluded by payment made to the Cedent after Intimation, albeit the Assignation was to the behoof of the Cedents Son, without a Cause onerous, january 3. 1662. Ross of Earles-milns contra Campbel of Caddel. An assignee constitute by a Tutor, who took Assignation to his Pupils Bond, was found to have no Process against the Pupil, till the T●tor Compts were made, unless the assignee found Caution for the Tutor, january 24. 1662. Ramsay contra Earl of Wintoun. An Assignation omnium bonorum, by a Father to his Son, was Sustained to give Process against the Debtors, albeit not Intimate in the Father's Life, and so in bonis defuncti, june 25. 1663. Hallyburtoun contra Earl of Raxburgh. An assignee may be prejudged by the Cedents Oath, before Intimation; or if the Debtor pursue the assignee, ad hunc e●●ectum, to take away the Bond before Intimation by the Cedents Oath, and his being so called, and producing the Assignation, will not exclude the Cedents Oath, February 15. 1662. Laird of Pitfoddels contra Laird of Glenkindy. An assignee was found to have interest to pursue, albeit his Assignation was not Intimate before the Cedents death, without necessity of Confirmation, july 27. 1664. Muirhead contra 〈◊〉 Intimation, November 18. 1664. Guthrie contra Sornbeg. An Assignation being gratuitous, the Cedents Oath was found sufficient against the assignee, june 16. 1665. Wright contra Sheils. The like, june 13. 1666. jack contra Mowat. An Assignation to a Reversion, being Registrate in the Register of Reversions, and a Liferent Infeftment of the Wodset Land, Registrate in the Register of Seasines, was found sufficient to give the Wife interest, even in her Husband's time to Redeem, that she might Redeem the Wodset Land, for her Liferent use, and to be preferred to an Appryzer of the Reversion, after the Wife's Right, Registrate as said is, without necessity of any other Intimation, December 5. 1665. Beg contra Beg. An Assignation to a Gift, when it is incomplete, and before it pass the Exchequer, doth not exclude the Donators Back-bond, at passing thereof, even as to the assignee, january 13. 1666. Dollace contra Frazer of Streichen. An Assignation to such a sum yearly, out of the first and readiest of the Teinds of such Lands, found not preferable to a posterior apprizing of these Lands and Teinds, as an Assignation to the Tack, or whole Tack-duty of the Teinds, would have been preferred as habilis modus, February 6. 1666. Watson contra Fleming. Assignation Vide Compensatione, Cockburn contra Laird of Craigivar. An assignee to a Tack, which is Transmitted by Assignation, was not found as a singular Successor to Lands, passing by Infe●tment, so that what is competent against the Cedent in Tacks, is competent against the assignee, except as to the manner of Probation by the Cedents Oath, December 18. 1668. Swintoun contra Brown. Assigneys were found to have Right to an Annualrent, granted by a Father to his Daughter and her Heirs, without mention of Assigneys, though her Brothers and Sisters were substitute, failing the Heirs of her Body; and though the Assignation was granted without a cause onerous to another Brother, I●●e 24. 1669. Stevart contra St●uart. An Assignation without Intimation, was preferred to an Executor Creditor of the Cedent, even as to the Executors own debt, july 27. 1669. Executors of Redpeth contra johnstoun. AN ATTESTER of a Cautioner in a Suspension, declaring that the Cautioner was sufficient, being convened subsidiary, was found to be no further liable, than that the Cautioner than was holden as sufficient for the Sum Charged for▪ December 17. 1667. Paterson contra Hume. A bailie of Regality amerciating Parties for a wrong committed, in the thrusting out of others out of a Seat in the Church, in time of Divine Service, and beating of them, his Decreet was Sustained: though it extended to two hundred pounds, half to the Party, and half to the Fiscal, january 30. 1663. Stevart contra Boggle and Matthie. A bailie of a Barony of Kirkland, being Infeft by the Abbots, with full jurisdiction, Civil and Criminal, with power to Repledge, and with power to apply the whole amerciaments and Casualties to his own behoof, his Right was found not to be derogate from, or prejudged by the Kings Erecting a part of that Barony in a Burgh Royal, and giving them power of Heading and Hanging, and all jurisdiction, unless they extinguished the Bailies Right by Prescription; albeit it did not appear, that these Kirklands were Erected in a Regality, no mention being made thereof in the Infeftment of Bailliarie, nor was it commonly known under that Title, February 27. 1667. Lord Colvil contra Town of Culross. A bailie of Regality was found to have power to amerciat the Inhabitants of a Burgh of Regality, though having Bailies of their own in the Burgh, in respect the Burgh being Vassals to the Baron, their power is cumulative, and not exclusive of his jurisdiction; but there is place for prevention, to the first Attatcher doing diligence, january 14. 1668. The bailie of Regality of Killimuire contra Burgh of Killimuire. BAIRNS Provisions being upon Bond subscribed by their Father, but not delivered till he had disponed his whole Estate to his eldest Son, with Warrandice from his own deeds done, or to be done, and reserving his Liferent of a part, which was found sufficient to Reduce the Bonds of Provision, and apprizing thereupon, as not obligator till delivery, or the death of the Father, and Revocked indirectly by the Son's Disposition, january 10. 1668. Laird of Glencorse contra his Brothers and Sisters. A Bairns provision posterior in date and delivery to a Creditors debt, the Creditors apprizing, though posterior, was preferred in a Reduction to the apprizing on the Bairns Portion though prior, july 22. 1668. johnstoun of Shems' contra Arnot, Vide Children, january 16. 1676. Erskines contra R●ynolds. A BOND bearing borrowed Money, was found not Reduceable upon the Act against Bankrupts, but that the Bond itself did sufficiently instruct the borrowing of the Money, as the cause onerous, june 28. 1665. Mo●teith contra A●derson. A Bond was found heritable as bearing annualrent, though it was but 5. per cent, in a Bairns Portion, june 28. 1665. P●tcairn contra Edgar. Bonds bearing Annualrent are movable till the first Term of payment of Annualrent, and fall within single Escheat, june 26. 1668. Dick contra Keir. A Bond by a Father to a Son, though bearing borrowed Money, yet was presumed to be for love and favour, and the same with an apprizing thereupon, was Reduced at the instance of anterior Creditors, who obtained Decreets after the Bond for Bargains, which were proven by Witnesses to have been contracted before the Bond, january 21. 1669. Creditors of Pollock contra Pollock his Son. A Bond by a Father to his Son, after he was Married and out of his Family, payable after the Father's death, was found not Reduceable at the instance of posterior Creditors of the Father, by the Act of Parliament 1621. against fraudful Alienations, though it were Reduceable upon evidence of Fraud, ex jure communi, which were appointed to be condescended upon: Ibidem. A Bond taken by a Father from a Son, after Contract of Marriage▪ Vide Contract. BARON'S Decreets are valide in Vaccance time by their privilege, without dispensation, and they are competent to judge the Multures due by their Vassals, February 14. 1662. Nicolson contra Forbes of Tillicutri●. A BARONY was found to include a Burgh of Barony as P●rt and Pertinent, though not expressed in a donators Infeftment, albeit it was expressed in former Infeftments, and particulars of less moment were expressed in this Infeftment, as comprehended in the Barony, january 15. 1668. Earl of Argile contra Campbel. A BASE INFEFTMENT of Annualrent was sound valide against a posterior public Infeftment, because thereupon there was a Decreet of poinding the Ground, though it could take no effect for a long time, till the entry to the Annualrent, which was not, till after the Constituents death, 26, and 27. of February, 1662. Creditors of Kinglass competing. A base Infeftment by a Husband to his Wife on her Contract, was validate by, and preferred upon the Husband's Possession, though the Wi●es Infeftment was of annualrent, and the Husbands of property, November 23. 1664. Lady Grang● contra Murray, where it was found, that from the very date it was validate and preferred to any other, though prior and base, but apprehending Possession upon a Citation before Candlemas, it being Ferm Land, and a Decreet thereon in March thereafter. Two base Infestments of annualrent competing, one to a Wi●e, the other to a Creditor, the Wife was preferred, being clad with Possession by the Husband's possession, which was not found competent to the Creditor, though his Infeftment was prior, and though he used Inhibition before the next Term, after the Wife's Infeftment, and alleged the Husband could have no Possession after the Wife's Infeftment, before his diligence, which the Lords Repelled, because the Husband was in a present current Possession, and nor in acquirenda possessione, but the Wife's Infeftment was only sustained in prejudice of this Creditor, in so far as it had an anterior Cause to his debt: The Husband's Possession was also found sufficient to validate the Wife's Infeftment of annualrent, though he possessed the property which includes eminenter, all other Rights, November 23. 1664. inter cosdem. An Infeftment of Warrandice Lands being in the same Infeftment with the principal Lands, and both holden base, was preferred to a posterior public Infeftment of the same warrandice Lands, though clad with long Possession, and that upon an action of Mails and Duties upon the Distress, without Reduction, january 9 1666. Brown contra Scot A base Infeftment by a Father to a Son, reserving the Father's Liferent, was found not validate by the Father's continuing his Possession, but the Father's Creditors apprizing were preferred to the Donator of the Sons Forefaulture, founding upon the Son's Infeftment, june 14. 1666. Hume contra Hume. A base Infeftment of annualrent was preferred to a posterior apprizing and charge before the Term, at which the annualrent began to be payable, in respect the annualrenter was in Possession of the Land, out of which the annualrent was payable & intus habuit, viz. his annualrent proportionally from the date of his Right, june 30. 1666. Stevinson contra Dobbie. A base Infeftment by a Father to a Son, Reserving the Father's Liferent, was found not validate by the Father's possession, albeit the Father disponed the Lands reserved to a third Party, who did possess; but the Disposition was of the Fee, and no mention of the Liferent reserved, December 18. 1666. Lord Newbeath contra Dumbar of Burgy. A base Infeftment was excluded by the Liferent Escheat of the granter, albeit the base Infeftment was before the Rebellion, seeing it was not clad with Possession in cursu rebellionis, within year and day. February 21. 1667. Miln contra Clerkinson. A base Infeftment by a man to his Wife, was preferred to a posterior public Infeftment, albeit the base Infeftment was not clad with Possession of the Husband himself, but by others deriving Right of Wodset, or other Temporary Right from the Husband, or his authors, which was counted as the Husband's Possession, to validate the Wife's base Infeftment, july 18. 1667. Lady Burgy contra Strachen. A base Infeftment of annualrent was found to be validate by receipt of a part, though far within a Terms annualrent, and not relative to the Infeftment, but to the Bond whereupon it followed, and though there was no ann●alrent due before the Infeftment, yet seeing the Receipt bear in part of payment of bygone annualrents, the Annualrenter was allowed to ascribe it to the annualrents due after the Infeftment, to exclude an Infeftment on an apprizing, which apprizing was led before the Receipt, but the Infeftment thereupon was after▪ and the Receipt was proven by an Apocha under the Debtors hand, july 23. 1667. Hume contra Hume and the Tenants of Kello. A base Infeftment of annualrent on a Bond bearing 3000. marks of borrowed Money; and 3000. marks of Portion, the one half of the whole Sum and annual●ents thereof, was Suspended till the Father's death, Yet payment of the annualrent of the other half not suspended, was found sufficient to validate the whole Infeftment, and to prefer it to a posterior public Infeftment, February 5. 1668. Keir contra Keir. A base Infeftment in warrandice granted by a Husband to his Wife, holden of himself & ex intervallo, after the principal Infeftment, was found valide against a posterior public Infe●tment of the ●ame warrandice Lands, as being clad with the Husband's Possession in the principal Lands, and that these needed no declarator of Distress, or Eviction, but a pursuit of Removing, or Mails and Duties upon Eviction is sufficient, which cannot be excluded by a possessory judgement upon 7. years' Possession, by the public Infeftment, unless it were 7. years after the Eviction, February 20. 1668. Forbes contra Inns. Base Infeftments granted by a Father to his two Sons of the same date, one of Property of Lands, and another of annualrent forth thereof, was found both valide, as being clad with the Father's possession, reserved in both, there being no suspicion of defraud of Creditors, or competition with them, and that a singular Successor apprizing and Infeft from the one, was not preferable to a posterior Adjudger from the other, june 30. 1668. Them contra Chrisly. A base Infeftment of annualrent was found validate by Possession, upon another Infeftment of annualrent, in corroboration of the former, out of distinct Lands, whereby both Infeftments as to both Lands, were found valide, though no payment was made by the Debtor, or by the Tenants in the first Infeftment, july 9 1668. Alexander contra the Laird of Clackmannan. A base Infeftment to a Creditor, was preferred to a posterior public Infeftment, granted to a Wife by an additional jointure, in respect there was a Citation on the base Infeftment, anterior to the Wife's public Infeftment, which was found to validate the same, and sentence of preference of poinding of the Ground, was now granted therein, january 27. 1669. Bell of Belfoord contra Lady Ruther●oord, A base Infeftment never clad with Possession, was found valide to exclude the Terce of the granters Relict. Ib●dem A base Infeftment by a Father to his Children, was found not validate by the Father's Possession, wherein he continued, albeit he had a Factory from the Children: here it was not alleged that the Father had granted Discharges, or used Citation expressly, relative to the Factory, july 10. 1669. Gairdiner contra Colvil. BASTARDY being gifted by the Usurpers, defends the Bastard's Debtors no further than what they bona fide paid to the Donator, but not for what was yet in their hands, which belongs to the King's Donator. july 19 166●. Windrham contra Megregors. Bastardy was found not to be relevantly Libelled, that the Defuncts Father and Mother were not Married, but that it behoved to be alleged, that the Defunct was commonly holden and repute Bastard: But that it was also sufficient, that the Defuncts taking a Legitimation, had acknowledged his Bastardy, February 19 1669. King's Advocate contra Craw. Bastardy was found not to be inferred by the negative presumption, that the Father and the Mother were not Married, but that it behoved to be proven positive, that the Defunct was holden and repute Bastard, june 15. 1670. Livingstoun contra Burn. Bastardy puts the Donator to no better case, as to Backbonds, or mutual Obligements, than the Bastard his Heir would have been in, june 20. 1671. Alexander contra Lord Sa●toun. BEHAVING AS HEIR by intrometting with the Mails and Duties of the Defuncts Lands, was elided, because the Defender intrometted singulari titulo, by an apprizing, though the Legal was not expired, unless it had been clearly satisfied by intromission, or otherwise, january 10. 1662. Barclay contra Laird of Craigivar. Behaving as Heir was found in no time coming to be ●lided by taking Right to any apprizing or Adjudication, led against the Intrometters for their own Debt, real or simulate, though such Rights were expired, February 28. 1662. Act of Sederunt Vide, january 22. 1662. Glendoning contra Earl of Nithisdail. Behaving as Heir was not inferred by Intromission with the Rents of the Lands, which were disponed by the Defunct, and Infeftment thereon; but to the behoof of the Defender the appearand Heir, january 14. 1662. Harper contra Hume of Plandergaist. Behaving as Heir was inferred by the appearand Heir, his in●rometting with the Rents of Lands belonging to his Father the Debtor, in so far as being disponed to the Defender, they were Redeemed by him, though no Declarator or new Infeftment followed; and also found by intrometting with the Father's whole Silverwork, without alleging a formal drawing of the Heirship, or taking any of them as such; and though the Lands were apprised from the Defunct, seeing the Legal was un-expired, and the Defender had no Right from the Appryzer, February 21. 1663. Hamiltoun contra Hamiltoun. Behaving as Heir, by intrometting with Heirship was not ●lided, because the Defuncts Lands were apprized, seeing the Legal was not expired before his death, February 26. 1663. Cuthbert of Drakies contra M●nro of Foulis. Behaving as Heir was not inferred by intromission with the Rents of the Defuncts Lands, which were apprised, and whereunto the appearand Heir acquired Right, before he fell to be apparent Heir, though he continued to possess after the apprizing was satisfied by intromission, February 26. 1663. Inter cosdem. Behaving as Heir was elided as to Heirship, because the Defunct died Rebel, and his Escheat was gifted and declared Ibidem. Behaving as Heir, by meddling with heirship, was not elided, because the Defunct died at the Horn, and thereby nihil habuit in bonis; nor yet that the Escheat was gifted before intenting of this cause; but that it was gifted and declared before, june 10. 1663. Gordoun of L●smore contra Keith. Behaving as Heir was elided, because the Defunct was Rebel, his Escheat gifted and the appearand Heir intrometted by the Donators Rights or Tolerance, and that before intenting of the Cause, albeit no declarator thereon, july 4. 1665. Inns contra Wilson. Behaving as Heir was not Sustained upon Intromission, had by a Tutor, November 30. 1665. Boyd contra T●lzi●er. Behaving as Heir was not Sustained by Heirs of Line, their Renuncing to be Heirs; in favours of the Heir-male, to whom the Father had disponed, seeing they gave no Right thereby, hurtful to Creditors, but gave a Renunciation voluntarly, which Law would have compelled them to give, though for their kindness they got a sum of Money, july 5. 1666. Scot contra Heirs of Auchinleck. Behaving as Heir by Intromission with the Rents of the Defuncts Lands, was elided by Tolerance from a Donator of Recognition, albeit not declared till after the Intromission, the Defender paying the single value, july 17. 1666. Ogilby contra Lord Grace. Behaving as Heir by intromission with the Duties of the Defuncts Lands, was elided by a Disposition from the Defunct to the Intrometters Son, the Defuncts oye, though without Infeftment, or by a Tack by the apparent Heirs Husband, though expired before the Defuncts death, as continuing per tacitam relocationem, january 16. 1667. Re●d contra Salmond. Behaving as Heir was Sustained by Exception, january 8. 1668. Forbes contra Inns. Behaving as Heir was found to be instructed by a Discharge granted by the Party as appearand Heir, bearing receipt of the Defuncts Charter Chest, without any Inventary or Protestation, and keeping of it two years, without necessity to allege that any use was made of the Writs, but was not inferred by raising of Breives to serve Heir, wherein no Service followed; or by Revocking deeds done by the Defunct in his Minority, june 28. 1670. Eleiss of Southside contra Casse. Behaving as Heir was not inferred by the appearand Heirs having right or tolerance from App●yzers, and intrometting thereby, even within the Legal; but was inferred by continuing the Defuncts Possession, before obtaining such Warrant, and that any Creditor, though not Appryzer, pursuing the appearand Heir, behaving as Heir, and he Defending upon the Right of an apprizing, that the Creditor might Summarily by Reply, prove satisfaction of what he truly paid out, by intromission or present payment, and thereupon he was obliged to Assign, or Dispone to the Creditor, july 11. 1671. Maxwel contra Maxwel. Behaving as Heir was not inferred simply where the Defender was Infeft, as Heir to her Mother, her Father and Mother being Infeft in Conjunct see upon their Contract of Marriage, by which there was probable ground to think that her Mother was Feear and not her Father, july 12. 1671. Gairns contra sandiland's. BILLS OF EXCHANGE being accepted, and before the Term of payment the Accepter dying, no Exchange or Re-exchange was found due, but the obtainer of the Bill might either return upon the drawer, for single value, or proceed against the Successors of the Accepter; This Bill was protested for not payment, at the dwelling House of the Defunct, july 3. 1664. Kennedy contra Hutcheson. A BLANK Bond, as to the Creditors Name, was found to constitute the Receiver thereof to his own behoof Creditor, and that it would be affected with his Deb●s and Deeds, and fall under his E●cheat, as if his Name had been filled up before, and before any other Name was filled up, shown or intimat, an Arrester being Creditor to the person who got the Bond, is preferable to him whose Name is filled up therein, November 11. 1665. Telzifer contra Geddies, debated again, and so decided, December 1. 1665. A blank Bond being filled up by him who received it in Name of another, and delivered to that other, and by him shown to the Debtor, these particulars being proven by Witnesses ex officio, the ●●●ty whose Name was filled up, was preferred to a Creditor of him to whom the Bond was first delivered blank, arresting all Sums due to him in the Debtors hands, but after filling up, and showing of the Bond to the Debtor, without necessity of an intimation by Instrument, january 18. 166●. Birnie contra He●drieson and George Vide Compensation inter ●osdem. A blank in a Disposition, whereby Lands are Disponed to two for themselves, and the Creditors of the Disponer afterspecified; after which several ●ines were written with another hand, inserting the particular Creditors and Sums, without mention of the Writer of that part of the Writ, whereupon it was presumed, that that blank was filled up after the date of the Writ, and after another Creditors Inhibition, unless the contrary were proven, not by the Trusty's oath, but by the Witnesses insert, or other Witnesses above Exception, january 16. 1670. Lady Lucia Hamiltoun contra the Creditors of Monkcastle. BLOODWITS were found due to a Superior Infeft cum Bloodwitis, albeit not a Baron holding immediately of the King, December 12. 1665. Cranstoun contra Pringle. BONAE FIDEI POSSESOR ●acit fructus consumptos suos, though he have not possessed so long as to obtain a possessory ●udgement, November 18. 1664. Guthrie contra Laird of Sornbeg, and though the other Parties Infeftment was Registrate. Bonae ●idei possesior, etc. was found Relevant to defend a Party possessing by a Contract with a minor, though Reduced upon minority, as to the years uplifted before the Reduction, February 16. 1666. Earl of Wintoun contra the Countess of Wintoun. Bonae ●idei possessor, was found Liberat from the Mails of a Booth, whereof he had Tack till a Sum were paid, albeit the Setter was but Li●erenter, and had purchased the Tenement to himself in Liferent and to his Son in Fee, but the Father was commonly repute Feear, and did not set the Tack as Liferenter, yet the same was excluded from the duties before Citation, and was not found to have Right from a Warning he had made after his Father's death, by chalking of the door, without any other intimation, February 16. 1669. Hamiltoun contra Harper. Bona● fides of Creditors lending their Money, and seeing a Wife's Contract Registrate, bearing such a sum to be employed, was found not to defend them against the Wife, who obtained a Declarator of Vitiation of the principal Contract by her Husband and Fathers diminishing the ●ocher and jointure, to be extended and amended as it was at first, june 11. 1670. Hunter contra the Creditors of Peter. Bona● fidei possessor, etc. was found of no effect to one who obtained Decreet of Removing, for not payment of the Duties in absence, and produced not his Infeftment, but an Infeftment of another person of the same Name, which being a fraudulent deed, he could not thereby have a Title bonae fidei, july 21. 1671. Neilson contra M●nzies of Enoch. BURGHS were found to have no power to stint any part of the Charges of their Commissioners, sent to the Convention of Burrows, upon these who had no Trade in their Town, but only Tenements, or for any part of a second Minister's Stipend, unless it had been due by Law, Sentence, consent of party, or prescription, February 1. 1669. Boswel contra the Town of Kirkaldie. The privilege of burgh's by the Act of Parliament, that no Tradesmen should exercise their Trade in Suburbs, was found only to extend to such Suburbs as had no privilege, but if the Suburbs were erected in a Burgh of Regality, or Barony, or were within a Barony, the Inhabitants might freely use these Trades albeit some of them had given Bond to pay such a Duty for the Liberty thereof; The same could only bind themselves and not their neighbours, or the Heritors Ground with a Servitude, without his consent, july 21. 1669. Town of Pearth contra the Weaver's in the Bridge● end of Pearth. A BURGH ROYAL having obtained Decreet against certain persons in a Burgh of Borony, to desist from Merchant Trade, and impowering the Burgh to seize on the Merchandise▪ and the persons of the contraveeners, was found not to militate against others than those individual persons, and not against the Lord or Bailies of the Barony, and that there was no warrant in Law to incarcerate persons hoc ordine, February 13. 1663. Town of Linlithgow contra unfree-men of Borrowstounn●s●. A Burgh Royal pursuing a Burgh of Barony for desisting from Merchant Trade; The Lords ●ound the Letters orderly proceeded, till the Burgh of Barony should find Caution to desist from Merchant Trade in general, but would not suffer to condescend upon particulars, as to the retailing of Wine, etc. which had been forborn by the Lords these 30, or 40. years, june 24. 1664. Town of Cowper contra Town of K●oucher. A Burgh-Royal having immemorial possession, and free Trading on the River on which it stood, was found not to be burdened with Anchorage, Measurage, Tonnage and Weyage, granted by the King thereafter to another Burgh, in Stations on that same River, though clad with 40. years' possession, but neither universal nor peaceable, but interrupted, February 6. 1666. Town of Glasgow contra Town of Dumbartoun. A Burgh Royal being pursued by one who had Lands within their Burrow-Lands, and Houses within their Town, were found not liable for any Stint out of his personal Estate, or Trading, or for the Towns debts, or second Ministers Stipend, unless he had consented, or had been in immemorial custom of payment, july 22. 1668. Bosewel contra the Town of Kirkaldy. A Burgh Royal and their Tradesmen, were found not to have Right to hinder the exercise of Tradesmen, no ways adjacent to the Town to exercise their Trade, upon pretence of the Act of Parliament, Prohibiting Workmen to exercise their Trades in the Suburbs of Royal Burrows, Ia●uary 7. 1671. Laird of Polmais contra Tradesmen of Stirling. CAPTION was granted summarily upon supplication against a Bankrupt, who had unexpectedly and fraudulently broken, and fled, though he was not Rebel, but the King's free Liege, November 30. 1665. Creditors of Mason Supplicants. CASUS FORTVITUS, was found not to Liberate the Grasser of a Horse that broke his Neck, where the Owner of the Horse appointed him to be keeped in at hard meat, january 29. 1666. Scot contra Gib. A CAUSE ONEROUS of a Disposition, by one Brother to another, was found not to be instructed by the Narrative thereof, but behoved to be instructed aliunde, November 19 1669. Whitehead contra Lidderdail. A cause onerous of a Disposition, was found not instructed by its own Narrative, or the Acquirers Oath, though he was not a conjunct person with the Disponer, seeing the Disposition bear to be to two persons for themselves, and to the behoof of others, whose interest was evacuate, as being filled up after an Inhibition, and the Disposition did not express what the Acquirers own Interest was, july 15. 1670. Lady Lucia Hamiltoun contra Boyd of Pi●con. A CAUTIONER for Executors was found not conveenable till the Executor be discussed, and that Decreet is not a sufficient discussing, without Registrate Horning, though the Executor have no Lands, and though it was alleged he was Bankrupt, july 24. 1664. Brisb●●e contra Monteith. A Cautioner in a Testament was found conveenable and comptable with the Executor, before they were discussed, but superseded all Execution against the Cautioner, till the Executor be first Discussed, December 2. 1662. Dowglas contra the Lady Edmonstoun. A Cautioner for an Apprentice was not liberate from causing the Apprentice serve his time, and pay damnage for his absence, because the Merchand suffered him to go over Sea, and intimate not to the Cautioner to restrain him, yet the penalty was modified to 50. pounds, june 17. 1663. Allan contra Paterson. Cautioners conjunct, getting Assignation from the Debtor, were found to have access to the rest, allowing their own part, but are not obliged to accept their part of what they truly paid by Composition, july 18. 1664. Ni●bit contra Lesly. A Cautioner was not found liable to pay, unless the Debtor Assign him to the debt, and all security he had from the principal thereof, january 10. 1665. Lesly contra Grace: The contrary was found, july 10. 1665. Hume contra Crawford of Kerse. So this is arbitrary, and according to the favour of the case. A Cautioner as Law will, being obliged to present a party at all the diets of Process, and pay what should be discerned against him, if he did not produce him within Term of Law; having produced the Party, and taken Instruments protesting to be free, he was found liberate, albeit at that same time the party produced an Advocation, and was not Incarcerate, seeing the Bailies might have Incarcerate him, notwithstanding of the Advocation, February 20. 1666. contra Mcculloch. A Cautioner as Law will, not being both judicio si●ti & judicatum solvi, was liberate by putting the party in prison, though not judicially, when the cause was called, july 10. 1666. Thomson contra Binnie. A Cautioner in a Suspension of a Bond, wherein there were five Cautioners, being distressed, having paid and obtained Assignation from the Creditor, was found to have access against the first four Cautioners, as if he had been Cautioner with them, allowing his own fifth part, February 3. 1671. Arnold of Barnkaple contra Gordoun of Cholme. A CEDENTS Oath was found to prove against an assignee, being the Cedents Son in the same Family, having no ●eans of his own to acquire, and the Assignation being gratuitous, November 30. 1665. White contra Brown. CERTIFICATION was not sustained against the Writs granted to the Defenders Authors, but such as were called for, though the Writ were alleged to be in his own hand, and these Authors fully Denuded, january 3. 1662. Hume of St. Bathing contra Orre and Pringle. Certification was not admitted against the Letters and Executions of an apprizing, there being no Reduction intented till 30. years thereafter, November 20. 1666. Blackwood contra Purves. Certification was not admitted against a Writ Registrate in the Register of Session, where the Extract was produced, albeit the principal was not produced, and there were pregnant evidences of Falsehood ibidem. Certification contra non producta, was stopped upon producing, and offering to dispute that the Writs produced, excluded the Reducer, without necessity to the Defender to declare that he would make use of no more, and the Ordinary appointed to hear him thereupon, but if they sufficed not, he behoved with the next to produce all, or declare he would make use of no further, else Certification to be granted. December 7. 1667. Earl of Lauderdale and Wachop contra Major Bigger. Certification was refused against a Defender, producing an express Infeftment of the Lands in question, and the pursuer alleging that they were part and pertinent of the Lands expressed in his Title, he was ordained first to instruct them part and pertinent, before the Defender was obliged to take a Term to produce, january 20. 1669. Hay Clerk contra Town of Peebles. Certification extracted was found not to terminate the Process of Improbation, but that in the same Process, the Pursuer obtained Witnesses examined as to the Forgery, in so far as it depended not on the inspection of the Subscriptions, and that upon production of Copies, the Principals having once been judicially produced before, by the Defender compearing, who now wilfully keepeth them up. November 9 1669. Lady Towie contra Captain Barclay. Certification against a Decreet of Valuation, was found to have no effect against a Liferenter, publicly Infeft, not called, though she had no right to the T●ind, but only to the Benefit of the Valuation, to liberate the Stock of any further burden, july 15. 1670. Major Bigger contra Cunninghame of Dankeith. Certification was found null by Reply, being in absence, and where the conclusion of the Summons, as it is related in the certification, was not in the Terms of an Improbation, and at the King's Advocats Instance, there being likewise a Discharge of a Terms Feu-duty granted by the party having Right to the certification, which Term and Discharge were posterior to the certification, and did import a passing from it, and did Homologai● the Vassals Right, june 6. 1671. Steil contra Hay of Ra●ray. Certification contra non producta, was not Sustained at the instance of an Appryzer, against all Writs granted by him and his Authors Named, and their Predecessors, to whom they may succeed ●ure sanguinis, as to the Rights granted by these Predecessors, unless it be instructed that the said Authors were Infeft as Heirs to their said's Predecessors; and that though Defenders be obliged passive, to produce all Rights made to them and their Predecessors, to whom they may succeed jure sanguinis, and so to produce before they be entered; yet active they cannot insist for certification of Rights made by their Predecessors, as appearand Heirs to them, but as being actually Heirs and Infeft, and that an Appryzer was in no better case as to this, than if his Authors had been pursuing, and so he behoved to instruct that they were Infeft as Heirs to their Predecessors, july 14. 1671. Dumbar of Baldoon contra Maxwel. Certification was not stopped, because there was none called to represent the Defenders Authors, upon whom they did condescend, unless they first produce their Rights from these Authors, thereby to instruct that they are Authors, and unless that these Authors be obliged to them in warrandice, the warrandice being the only ground of calling the Authors, that they might defend their Rights to shun the warrandice Ibidem. A CHARGE to enter Heir was not found necessary to a poinding of the Ground against the appearand Heir of the granter of the Annualrent, january 2. 1667. Oliphant contra Hamiltoun. CHIROGRAPHUM apud debitorem repertum, was found not only to extend to a Bond found by the debtor, but to an Assignation made by the Cedent, found by him, and Witness were not admitted to prove delivery, and instructing the Cedent to have the Assignation as Agent, December 13. 1666. Thomson contra Stevinson. CIRCUMVENTION was not Sustained upon a parties making bargain anent the boot of an ● Horse, though it was offered to be proven by the Defenders own Oath, that according to his own estimation, the Pursuer was lesed above the half, and that he was Minor, in respect of his Bond, bearing upon his oath and conscience, never to come in the contrary, given at that same time in his minority, and ratified after his Majority, june 23. 1669. Fairy contra Inglis. Circumvention was found instructed upon several pregnant evidences of fraud, and that not only against the circumveener, who obtained a Bond blank in the Creditors Name, but against a third Party, whose Name was filled up in the blank, he having acknowledged by his Oath of Calumny, that there were not equivalent sums due to him by the circumveener, the time that he delivered to him the blank Bond and filled up his Name; but that he became Debtor to him thereafter in equivalent sums, whereof he could give no evidence even by his own count Book, though he was an exact Merchant, and lived in the same place with the granter of the Blank-bond, who is commonly known to be a simple person, and the obtainer thereof a subdolus person, without ask the granter of the Bond, if he had any thing to object, whereof he should not accept of it, February 9 1670. Scot contra Che●sly and Thomson. Circumvention was sustained to Reduce or aba●e a Bond made up of the Rate of the Exchange of Money, not agreed upon before the Money was advanced by the Merchant, but thereafter, the Merchant being entrusted, and gave up the rate of Exchange, much higher than he then● knew it was, but not upon the agreement before hand, although it had been far above the ordinary Rate, january 19 1671. Dickson contra Grahame. CITATION on a Bill without the Signet, was sustained against a person dwelling in Edinburgh, though no member or dependent on the College of justice, February 12. 1663. Earl of Southe●k contra Laird of Broo●●hal. Citation at the Mercat Cross of the Shire, with certification to be holden as confessed, granted against a Defender absent, where the Messengers Executions bear, that he Charged the Defender at his dwelling House, and that he knew that he was within, but was forcibly holden out by his Wife, july 1670. Lindsay and Swintoun her Spouse contra Inglis. A CLAUSE in a Bond whereby a Sum was payable to the Man and Wife, the longest liver of them two and their Heirs, which failing, the Man's Heirs, was found to constitute the Wife a Lif●erenter only, and that she could not uplift the sum, because the Heir was not concurring, and was Infeft, and behoved to concur, December. 10. 1661. Kinross contra Laird of Hunthil. A Clause in a Tack, that if two years' duty run together unpayed, the Tack should expire, and renuncing the same in that case, with a Bond bearing much Duty resting, and if it were not paid by such a day, that the Master of the Ground might enter in Possession of the Land and Cropped br●vi ma●●, was found to exclude ejection and spuilzie by so entering without declarator. December 19 1661. Dewar contra Countess of Murray. A Clause in a Missive whereby the Writer says (I have sent you such a sum, and you shall have as much as long as you live, if you carry yourself as you do now) being questioned as a Postscript unsubscribed, written with the Parties own hand, at his Subscription, was not found null on that ground, but it being alleged to import but a resolution, and not a promise, and that the Parties behaviour should only depend on the Writers opinion, without necessitating him to prove it aliunde; The Lords assoilzied, july 15. 1662. Wauchop contra Laird of Niddrie. A Clause obliging a party and his Heir-male, and all others succeeding to him, on this Narrative, that his Heir male had the benefit of his Estate, and the Heirs female excluded, were found to burden the Heir-male primo loco, and therefore behoved to be discussed first, or the Executors could be liable, july 22. 1662. Anderson contra Wauchop. A Clause destinating a Sum to be employed for the Pursuer and his Heirs on Infeftment, was found heritable quo ad creditorem, and to exclude the Wife and Bairns, but Movable quo ad d●bitorem, and payable out of his Movables, july 22. 1662. Nasmith contra jaffray. A Clause that an Heir-male should pay a Sum to an Heir female out of ●enements, was found personally to oblige him to pay, but only quo ad valorem, of the Tenements, and therefore time was granted to dispose thereupon for that purpose, December 2. 1662. C●●●k contra Clerk of Pit●ncre●●f. A Clause bearing such a quantity to be the just value of certain Aikers, was found not to be drawn in consequence to necessitate the same party to accept the like quantity of other Aikers lying run-rig therewith, December 18. 1662. Lord Balmerino contra Town of Edinburgh. The Clause of Command, hunding out, and Ratihabition in a Spuilzie, was found not to be inferred by giving the Messenger the precept of Poinding simply, but by sending him and other● Servants to a particular place extra territorium, which made the poinding Spuilzie, january 9 1663. Mason contra Hunter. A Clause in a Bond providing a Sum to a Man and his Wife, the longest liver of them two in Conjun●●see, and the Bairns procreate betwixt them, which failzying, to two Bairns of his by a former Marriage, contaning also a precept for Infefting the Spouses, and the Bairns of the Marriage, which failzying, the two Bairns, etc. was found to constitute the Husband Feear, the whole Bairns of that Marriage Heirs of provision, jointly male or female, the two Bairns of the former Marriage Heirs Substitute, and that they behoved to be served Heirs and Infeft, there being an Infeftment before, and that the Seasine in quantum, to the two Bairns nominatim, though Bairns of this Marriage should ●ail, was not valide, january 14. 1663. Beg contra Nicolson. A Clause in a Disposition of Lands, bearing that it shall not be leisum to the Purchaser to alienate the Lands during such a Man's Life, and if he did in the contrary, to pay 10000 pounds for damnage and interest, ex pacto convento, was found not to be as a liquidate penalty, for the expenses of the Failzi● to be performed by and a●●our the principal obligement, but to be a liquidation of the principal obligement itself, and to resolve into an alternative Obligation, February 4. 1663. Laird of Philorth contra Lord Frazier. A Clause in a Bond bearing to pay the sum to the Lender or his Brother, was found not to give ground to use compensation against that Brother, to exclude the Lender himself, February 14. 1663. Robertson contra Buchannan. A Clause in a Bond whereby the sum was payable to the Man and Wife in Conjunctsee, and to the Bairns of the Marriage, whereupon Infeftment followed to the Man and Wife, was found not payable to the Wife till all the Bairns equally male or female were served as Heirs of provision in the annualren●, and Infeft and Renunced, February 14. 1663. Hay contra Morison. A Clause bearing to accept such a sum in case there were Bairns of the Marriage, was found to take place if there was a Bairn surviving the Mother never so shortly, February 17. 1663. Forsyth contra petoun. A Clause in a Bond bearing a sum payable to Man and Wife and their Heirs, but not mentioning, which failzying, etc. was found to give the Wife the Liferent of the sum, but not both the Liferent and half of the Stock, though it bear no annualren●, and she was the longest liver, june 24. 1663. Scrymzour contra Murrays. A Clause in a Tack wherein the Tacks-man was to retain his annualrent, or to pay the Bolls at 20. shillings less nor the Feirs at his option, was sustained not as usury, or contrary the Act, Debtor and Creditor, November 23. 1664. Scot contra Laird of Barefoord. A Clause in a Contract of Marriage, providing a Wife to the annualrent of all Goods and Gear, Movable and immovable, was found to exclude her from her third of Movables, and that she could not both have the Liferent of the whole and a part of the Stock, December 20. 1664. Young contra Buchannan. A Clause in a Contract of Marriage, providing a jointure to a Wi●e, with condition that she should restrict herself to so much less in favours of the Bairns, and that the superplus should pertain to the Bairns for their Aliment; This restriction was found not to be from the Father, but from gratuity of the Mother, the whole jointure being no more than proportionable to the condition of the parties, and so not to be in defraud of the Father's Creditors, November 16. 1●●5. Wat contra Russel. A Clause obliging a Father and his Heirs of the first Marriage, which failzying his other Heirs to pay to the Bairns of a second Marriage, at such an age, such s●ms, was found to give no Right to the assignee of them who attained not to that age, so soon as they would have been of that age, if they had lived, but that it was dies ●ncertus qui pro conditions habet●r, and accresced to the rest, and the H●●● of the first Marriage failzying, never being entered Heir, the Heir of the second Marriage had no share as Heir of that Marriage, but was excluded as Debtor in the Clause, February 17. 1665. Edgar contra Edgar. In Clauses conceived passive, the contracters are understood obliged, though they do not nominatim oblige themselves February 22. 1665. Mowat contra Dumbar of Hemprigs. A Clause in a Bond obliging many parties conjunctly and severally, without a Clause of Relief, was found to import mutual Relief, ex natura rei, june 28. 1665. Monteith contra Anderson. A Clause in a Contract of Marriage, obliging the Husband and his Cautioner, that so soon as he should receive the Tocher from the Wife's Father, the same with so much more should be employed for the Wi●es Liferent use, was found valide against the Cautioner, 40. years after the date of the Contract, without necessity to instruct that the Tocher was paid, seeing it was the Husband and Cautioners ●ault that it was not demanded, and now it cannot, because Prescription was run, july 5. 1665. Mackie contra Stevart. A Clause in a Bond obliging a Cautioner as Sure●y and full debtor, was found to make the Cautioner liable for the whole Sum, and not for the half only, though it bear not conjunctly and severally, july 5. 1665. Dumbar contra Earl of Dundi●. A Clause in a Bond obliging to pay the price of Wine according to the conditions agreed on, was found to burden the Debtor to prove the conditions, or to pay the common Rate of Wine, but it was found probable by Witnesses, july 29. 1665. Dowglas contra Cowan and Russel. A Clause providing a Tocher to the Husband and Wife, the longest Liver of them two in conjunctsee and Liferent, and to their Bairns in Fee, was found not to constitute the Man and Wife Naked Liferenters, but to have power to alter the Substitution, seeing there were no Bairns existent at that t●me, D●●●mber 12. 1665. Pearson contra Mar●●e and his Son. A Clause in a Letter whereby three parties obliged them to pay such Bills as the bea●er would draw for Cows that he should buy for their use, he having drawn a Bill upon them or any of them, each of them was found liable accordingly in solidum, December 20. 1665. Mcl●●d contra Young and Giffan. A Clause in a Bond bearing a sum payable to two brethren, or failing the one, to the other, being a mutual Substitution, was found not jure accrescendi to belong to the Survivor, but 〈◊〉 Heir Substitute to the Deceassing, without Children, yet so as not to be liable as Heir in solidum, but quo ad valorem, july 3. 1666. Fleming contra Fleming. A Clause in a Writ bearing a Narrative as a Testament, and leaving such a 〈◊〉 Heir and Donator to such Tenenements, and Assigning him to the Evidents, with power to him after return to Recall, was found effectual though not formal to enforce his Heir to perfect the same, january 31. 1667. Henrison contra Henrison. The same was renewed upon full debate, November 4. 1667. and the being of the Writs in the granters hands after his Return, was found a sufficient Evidence of Recalling it, but its coming back in the hands of the other party, was found not sufficient to Revive it, but they were ordained to instruct how they came by it, whether as delivered back again by the Granter, or found amongst his Papers, November 14. 1667. inter cosdem. A Clause obliging a party to pay such a sum, as being the Annualrent of such a sum, without any obligation for paying the principal expressed, was found not to imply an obligement to pay the principal, as acknowledged due, but was found to constitute the Annualrent perpetual, and not for the Woman's life, though it expressed not Heirs and Assign●ys, February 2. 1667. Power contra Dykes. A Clause in a Bond bearing a sum to be lent by a Father for himself, and as Administrator for his Son, a●d payable to the Father, and after his decease to the Son, but bearing that it was the Sons own Money, not expressing how or from whom it came, was ●ound to constitute the Son Feear, and the Father Naked Liferenter, February 14. 1667. Campbel contra Constantine. A Clause disponing Lands, was found to carry the Miln, if the Lands were a Barony, or if the Miln was not expressed in the Authors own Right, otherways that it could not pass as part and pertinent, February 15. 1667. Countess of Hume contra Tenants of Oldcambus and Mr. Rodger Hog. A Clause in a Contract of Marriage, whereby the Husband is obliged to take the conquest to the future Spouse in Conjunct●ee, and the Heirs betwixt them▪ Which failing, the Heirs of the Man's Body, which failing, the Wife's Heirs whatsoever, was found not to constitute the Wife Feear, upon the ●ailing of Heirs of the Man's Body, but the Husband, February 20. 1667. Cranstoun contra Wilkison. A Clause in the dispositive part of a Charter Cum privilegio piscaudi in aqua, etc. was found not to be a sufficient Right of Salmond-fishing, unless Salmond-fishing had been thereby possess forty years without interruption, and so it is only a Title for Prescription, February 27. 1667. Earl of Southesk contra Laird of Earlshall. A Clause in a Bond bearing sums to be paid to a Man and his Wife, and their Heirs, bea●ing Annualrent, though no Infeftment followed, was found to give the Wife's Heirs no share, seeing the Money appeared not to have been hers, and was presumed to be the Man's, and he surviving did Revock the Substitution, as a Donation betwixt Man and Wife, june 19 1667. johnstoun contra Cuninghame. A Clause in an Assignation by a Father to his Daughter, bearing a power to alter during his Life, was found not to take effect by an Assignation to a third party, who instantly granted a Back-bond bearing his Name was but in trust to do diligence, and obliging himself to denude in favours of the Father his Hei●s and Assigneys, but was not found to operate for the Father's Heir, but for the Daughter his assignee, july 17. 1667. Scot contra Scot A Clause in a Tack setting 14. A●kers of Lands presently possessed by the Tacks-man, was found not to limit him to 14▪ Aikers of any present Measure, seeing he had possessed still since the Tack these 30. years, albeit it was alleged that besides 14. Aikers, there were six Aikers severally ●enned and possessed by different persons before that Tack, july 19 1667. Dae● contra Kyle. A Clause in a Bond bearing a sum borrowed from Husband and Wi●●, and payable to the longest liver of them two in Conjunctfee, and to the Heirs betwixt them, or their Assigneys, which failing to the Heirs or Assigneys of the last liver, was found to constitute the Husband Fe●ar and the Wife Liferenter, albeit she was last liver, and the Heirs by the last Clause, were but Heirs of provision to the Husband, in case the Heirs of the Marriage failed, january 26. 1668. justice contra Barclay his Mother. A Clause in a Bond whereby a Woman obliged herself to enter heir of Line to her Father, and to resign certain Lands in favours of herself and the heirs of her body, which failing to the heirs of her Father, and obliged herself to do nothing contrary to that Succession's whereupon Inhibition was used before her Marriage, was found effectual against her and her Husband whom she Married thereafter, and disponed the Lands to him and his heirs, as being a voluntar deed, without an equivalent cause onerous, albeit by the said Bond of tailzie, the heir of provision beh●ved to be the heir to the Woman herself, without discussing whether deeds done for causes onerous, without collusion, would be effectual against the said heir of provision, january 28. 1668. Binn●● contra Binnie. A Clause in a second Contract of Marriage, that the heirs of the Marriage should have right to Tacks acquired during the Marriage, was found to extend to a new Tack obtained of Lands, then possessed by the Father, unless he had a Tack thereof before in Writ, which if not expired, the new▪ Tack would not be esteemed conquest, if the new Tack were given for the old, july 3. 1668. Frazer contra Frazer. A Clause in a Testament, leaving a Legacy to a second Son in satisfaction of all he could befall by his Father's deceass, was found not to be in satisfaction of a debt due by his Father to that Son, as having uplifted a Legacy left to him by his Mother's Father, both not being above a competent provision by a Father in his condition to his Son, December 15. 1668. Win●●●am contra Eleis. A Clause in a Contract of of Marriage, providing all the Husband's Goods and Gear acquired during the Marriage, to the Wife for her Liferent use, was found to be with the burden of the Husband's debt, and only to be meaned of free Gear, and not to exclude the Husband's Creditors at any time contracting, December 23. 1668. Smith contra Muire A CLAUSE OF CONQUEST in a Wife's Contract of Marriage, who was competently otherways provided, was ●ound to carry the Lands conquest, with the burden of a sum, which the Husband declared under his hand to be a part of the price, though the same would not hold in the burdening of heirs of conquest, December 20. 1665. Lady Kilbocho contra Laird of Kilbocho. This sum was due to the Seller of the Lands and expressed. A Clause of Conquest providing the Goods to be conquest and acquired during the marriage to the Children of a second Marriage, was found to be understood of the Goods as they were at the Defuncts death, and that he might dispone of, or burden them during his life at his pleasure; and therefore a Bond granted to the Children of the first Marriage, was found valide against the Children of the second Marriage, to affect the Goods acquired during that Marriage, February 9 1669. Cowan contra Young and Reid. A CLAUSE IRRITANT in a Reversion being committed, was found not to be null but to be restricted to the damnage of the Granter, so that if the Wodsetter would give as much, or had offered the same before the Reverser had closed bargain with another, the clause irritant would be sustained, the Wodsetter paying in the superplus, February 12. 1667. Earl of Tillibardin contra Murray of A●chter●yre. A Clause irritant in a Back bond after a Reversion discharged, bearing that in payment of such sums, the Acquirer should denude himself, it being done within such a time, and if not then done, to be null ipso facto, without declarator, was found not to exclude Redemption after that Term before declarator, which was found necessary in this case, February ●. 1667. Inter ●osdem. A Clause irritant on not payment of the Back-tack-duty, was found not to be comprehended in that clause of the Act Debtor and Creditor, November 26. 1662. Sawer contra Rutherfoord. A Clause irritant on not payment of the Back-tack-duty, was found valide, unless purged by payment at the Bar, Ibidem. A CLAUSE OF SUBSTITUTION in an universal Legacy, providing the Father's free Goods to two daughters, and falling of either of them to the other, the one dying, the portion was found to accresce to the other, without necessity of her confirming her deceased Sister's Testament, ●ure accrescendi, December 5. 1665. Helen H●● contra Maxwell. A Clause of Substitution upon the Margin of a Bond contrary the Substitution in the Body, to wit by the Gran●er of the Bond himself, who expressed that he had filled up the date and Witnesses, and mentioned not that he had filled up the marginal Note, And the Witnesses insert deponing that they remembered not that they did see that marginal Note, though holograph, was not found to be of the date of the Bond, nor of any date before the Granter thereof was on deathbed, therefore on all these Grounds jointly it was found null as to the heir, here the parties had accorded, February ●8. 1667. Laird of Dury contra▪ Gibson. A Clause of Substitution in an Assignation to a Bond of 6000. marks, whereof 4000 marks to the Cedents eldest Son, and 2000 marks to william and janet his youngest Children, and in case of the eldests deceass, providing the other two to his part, janet dying before Robert, and he also dying after without Issue, janets heir was found to succeed as heir of provision to Robert, in her half of his part, though she died before Robert, and the clause did not substitute her and her heirs, but only mentioned herself, january 5. 1670. Inns contra A Clause in a Bond to be comptable for the profit of an Office, and stating such a party judge in case of difference, was found to be an effectual submission, not only as to the subscriber, but as to the accepter, and not to terminate with a year▪ and to this effect, if that person determined not being required, or determined wrong, the Lords would hear and rectify the accounts themselves, February 3. 1669. B●s●wel contra Lindsay of Wormistoun. A CLAUSE DE NON ALINANDO, otherways the contraveeners right should be void, and the next heir have place, being insert in the original Charter and Seasine, ad longum: and also i● the heirs Re●our and Seasine, was sound to annul the Contrauceners' Infe●tment, in favours of the next heir, and in consequence to annul the Rights of apprisings from that heir, February 26. 1662. Viscount of S●●rmount contra the Creditor's of A●nandal●. A Clause in a Disposition of Tailzie de non alienando, in common form, with this addition, that it should be leisom to the Feear and heirs of Tailzie, to sell, di●pone, or Wodset such of the Lands ●ominatim, to affect and burden the same for payment and satisfaction of the Disponers debts This addition was not found to restrict the Feear, or heirs of Tailzie, to dispone only so much of these Lands as w●re sufficient to pay the Defuncts debts, the Clause not running in these Terms, but that they might dispone the whole; so that the Disponers debt were paid therewith, and needed not allege that the debt was as great as the price they got, lanuary 20. 1669. Lady Kilbirnie contra the heirs of Tailzie of Kilbirnie and Schaw of Gr●●nock renewed, F●bruary 3. 1669. Inter cosdem. A Clause in a Bond obliging many parties conjunctly and severally, without a clause of Relief, was found to import mutual Relief ex natura re●, june 28. 1665. Monteth contra Anderson. COAL was found to be carried by the common clause of pertinents, against a party expressly in●e●t in the Coal-heughs of the Lands, january 30. 1662. Lord Burly contra Sym. COGNITION of Marches betwixt Vassals by Witnesses adduced before the Sheriff, or by Arbiters, was found valide, albeit the Superior was not called, nor consenting, but so that the Superior should not be prejudged in case the Fee fell in his hand by Ward or Nonentry, February 8. 1662. Lord Torphichen contra A COLLEGE was found not excluded from setting long Tacks, as being comprehended under beneficed Persons, but their obligement to renew a Tack perpetually, was found not obligatory, unless there were an equivalent Cause onerous, for which the obligement was granted, july 13. 1669. College of Ab●rdene contra the Town of Aberdene. COMMAND or Warrant of a Servant, taking off Furniture in his Master's Name, was presumed to have been known to the Merchant, and not to oblige the Servant, though he gave Ticket acknowledging the Receipt in his Master's Name, but not obliging himself to pay, being pursued thereon after 19 years, and after his Master's death, unless it were proven by his oath that he had no Warrant, or applied not the Goods for his Master's use, November 17. 1665. Howison contra Cockburn. Command or direction was found probable by Witnesses, being a part of a Bargain for Grassing an Horse, january 29. 1667. Scot contra Gib. Command or Warrant was in●e●●ed by the presence of him who had Commission to do an Act, and did not hinder or contradict the doing thereof by others, who therefore were presumed to have Warrant from him, February 23. 1667. Lord Ren●oun justice Clerk contra Laird of Lambertoun. THE COMMISSARS OF EDINBURGH were not found to have right to confirm the Testament of a Defunct dying out of the Country on a Voyage, not being away animo remanendi, this was stopped till further hearing on the Petition of the Commissars of Edinburgh, November 23. 1661. Dowglas contra johnstoun. A Commissar was found obliged by the Injunctions to reside at the place of the Commissariot, albeit he had power of deputes, that he might direct them, being answerable for them, and that under the pain of deprivation, February 14. 1666. Arch●bishop of Glasgow contra the Commissar of Gl●sgow. A Commissar was foun● deposable if he be not found sufficient for discharge of the Office in his own person, albeit he have the power of Deputes, Ibidem Inter ●osdem. A Commissar having power to constitute Deputes by the King's Gift, and the former Archbishops, was found ●●ereby not to have power to make use of any Deputes, but such as were authorized by the Bishop, conform to the injunctions; but whether Deputes might be authorized pro re na●a, only in the cases of Sickness, or declarator mentioned in the injunctions, or in other cases also, so that there might be a constant deputation for things in ordinary course in Process, and to advise with the principal Commissa● in matte●s of importance or not: The Lords recommended to the Bishops in common, who made the injunctions, to clear the parties thereanent▪ But found that the Commissars none-residence, or acting by his own deputes, albeit he was required in the contrary did not annul his Office, i● respect of his Gift, with power of deputation, and of the common custom of Bishops to grant deputations that way; but as to the future, seeing the King had approven their Instructions, The Lords ordained them to be insert in the Books of Sederunt, and to be observed in all time coming, February 22. 1666. Inter eosdem. The Commissars of Edinburgh were found to have right to Confirm the Testaments of Scots-men dying abroad ani●● r●manendi, as to their Movables in Scotland, and that they might be confirmed, and pay Quot here, july 18. 1666. Brown and Du●● contra Biss●t. A Commissars Decreet was not found thursdays, as being of matters exceeding the injunctions, the Defender not compearing, and the probation being lost by the Suspenders silence ten years, yet the Lords allowed the Defender a contrary probation, june 25. 1668. Black contra 〈◊〉. The Commissars of Edinburgh upon a pursuit for Slander and Defamation, having discerned the Defender to make an acknowledgement before the congregation, and to pay 100 pounds Scots to the party, and another to the poor, The Lords Sustained the Decreet, February 5. 1669. Deans contra Bothwel. A COMMISSION or Factory was found Revockable, though it had an express Term of endurance, the Factor being satisfied of what he profitably debursed in contemplation of the Factory, june 30. 1660. Chalmers con●●● Baffilli●. A Commission in a Minute impowering the buyer of Land to retain the price till he were secured, and to Infeft the seller and himself, and do all things necessary for his secu●●●y to be satisfied by a part of the price, was found to oblige him to do no diligence, December 16. 1668. Frazer contra Keith. COMMODATUM, or the lending of Canons for defence of a Town in these Terms (to restore them without hurt, skaith, or damnage, and in case of damnage to pay 100L. marks for them as the price agreed on) was found not to oblige the borrower to pay the price, where the Cannon were taken by the Enemy, all diligence being done to preserve them, and that the peril was the Lender's, and that this was not commodatum estimatum, giving the borrower his option to restore or pay the price, but only a liquidation in case of damnage, November 17. 166●. Duncan contra Town of Ar●roth. Comm●datum, or one lending a Watch to one who put forth his hand for it without words, was found sufficient to oblige him to restore it, though just then lending it to another, not to liberate him, though in the presence and silence of the first Lender, seeing it was so sudden an Act, as his silence could not be thought nor esteemed a consent, july 3. 1662. Lord Cowper contra Lord Pitsligo. COMMON PASTURAGE was found relevant by a clause cum comm●ni pastura in general, and 40. years' possession, to come in with another having a clause of common pasturage in the Muire in question per expressum, November 14. 1662. Nicolson contra Laird of Balbirnie. Common pasturage in a Commonty of a Barony of the King's property, was found constitute by a Fe● cum pertinent: & ●um pas●●●s & pasturis, though not special in this Muire, being then a Common●y of the Barony, February 15. 1668. Laird of Haming contra Town of Selkirk. Commonty was found inferred upon mutual declarators of property of two parts of a piece of Ground upon their Ma●ch, wherein either party proved 40. years' possession, and mutual interruptions, and though the one proved more pregnantly than the other, yet it was not sufficient to exclude him, neither party having a bounding Charter, june 13. 1668. Giabs●n contra Oswald. COMPENSATION was found not competent to the Debtor of a Defunct, taking Assignation from the Creditor of the Defunct, after the Defuncts death to exclude an Executor Creditor, albeit the Assignation was anterior to the Confirmation, at least any diligence of the Executor Creditor, February 8. 1662. Crawfoord contra the Earl of Murray. February 14. 1662. Children of Mouswal contra Lowrie of Maxw●lstoun. Compensation against an Assignay was sustained on debts due by the cedent to the debtor himself, or whereunto he had Assignation intimat before the Assignays' intimation, but not for debts whereunto he had taken Assignation, but had made no Intimation before this other Assignay did intrtimat, january 22. 1663. Wallace contra Edgar. Compensation of an illiquid Number of coals, was found not receivable to take away a liquid Decreet, here they bear a price far above the ordinary rate, which behoved to be modified, january 17. 1664. Laird of Tulliallan and Condie contra Crawfoord. Compensation was sustained upon Rents liquidat against the principal debtor, before the Assignation, which was found sufficient against the cautioner, whose Right was accessary, albeit not called in the Decreet of Liquidation, june 24. 1665. Irving contra Strachan. Compensation against one of four Executors was sustained upon a debt of the Defuncts, not only as to that Executors fourth part, but in solidum, being equivalent to a discharge, Iun● 15. 1666. Stevinson contra Hermasheills. Compensation was found not competent against a Bond delivered, being blank in the Creditors Name, and by the Receiver, for an equivalent cause, delivered to a third party, who was found not to be compensed by any debt of him who first received the Bond, though prior to the filling up of the Name, February 27. 1668. Hendrison contra Birnie. Compensation was sustained against the bygones of an Ann●alrent by Infeftment against a singular Successor, upon his Authors liquid debt, january 2. 1669. Oliphant contra Hamiltoun. Compensation was Sustained against a Donator of Escheat upon a debt due by the Rebel before the Rebellion, january 2●. 1669. Drummond contra Stirling of Airdoch. Compensation of a Bond by Rents, was sustained to take Effect, not only from the date of the Decreet, Liquidating the Rents, but from the time the Rents were thereby proven to ●e due, February 5. 1669. Cleiland contra johnstoun. COMPETENT AND OMITTED, was ●ound Relevant as to Decreets of Suspension, since the Act of Sederunt 1649. and that a reason then past from in a Suspension pro loco & tempore, could not in eodem statu be repeated against that Decreet, or apprizing thereon, especially seeing the apprizing was not expired, and might be Redeemed, july 17. 1664. Laird of Tulliall●●● and Co●die contra Crawf●ord. Competent and omitted, was not Sustained against Strangers in Decreets against them before the Admiral, july 23. 1667. I●rgan contra captain Logan. A COMP● sitted, and bearing at the foot such a Sum resting, not mentioning the Instructions of the Account, or delivery thereof, was found not to make the Debtor liable to produce the Instructions, or count again, unless it were proven by Writ, or his Oath, that the Instructions were in his hand, albeit a considerable Article of the Account was general, bearing paid for the Pursuer to his Creditors 20000. pounds, and though the foot of the Account was exhausted by debts paid upon Precepts from the Creditor, after that Account, December 17. 1667. Lord Abercrombic contra Lord Newwaak. A COMPT BOOK of a Factor in Campheir, being proven ●o be unvitiate, or Written by the Factor, or a known Book-keeper, and Sequestrate before any question, was found to prove against the Factor's Brother and Assignay, even quo ad datam, being instructed by the oaths of the Debtors, who paid conform to the Articles in the Book, july 19 1662. Skeen contra Lumbsdean. Renewed january 9 1663. Inter eosdem. A Compt Book Written by the hand of a person of discretion, was found sufficient to prove payment of his Rent against his Executor Creditor, but the Tennent being on Life was ordained to depone on the Truth of the payment, November 20. 1662. Wardlaw contra Grace. AFTER CONCLUSION of the Cause, a Reply instantly verified, and not putting the Defender to prove, was admitted, but a duply dolose omitted before L●tiscontestation, and not being instantly verified, the same was repelled, albeit there was a Reservation contra producenda; this alleadgeance was upon part and pertinent of the Lands contained in the Infeftment produced, December 10. 1664. Lion of Mur●a●k contra Farquhar. After conclusion of the cause in a Reduction, the same was found not to be advised till some representing some of the Authors, who died pendente li●e, were called, july 14. 1666. Le●th contra Laird of Lessemore, Troup and others. CONFESSION to the Church, and standing a year was found not to prove Adultery, to 〈◊〉 infer the party's Escheat, january 9 1662. Baird contra Baird. Here the Defender had taken Remission. CONFIRMATION of Exchequer to a particular effect in so far as concerned the obtainers base Infeftment, granted by him who was Infeft, but not confirmed, was found valide only ad istum effectum, and not to accresce to any other, january 16. 1663. Tenants of Kilhattan contra Laird of Kelhattan, Major Campbel and bailie Hamiltoun. Confirmation and paying of the Quote was found necessary, though there was a Disposition omnium bonorum, without a cause onerous, or any delivery, june 23. 1665. Procurator Fiscal of of Edinburgh contra Fairholm. Confirmation and Quote was not excluded by a Disposition omnium bonorum, with a Reservation to the Disponer, that he might dispose thereupon otherwise during his life, july 4. 1665. Commissar of Saint Andrews contra Hay of Bousie. Confirmation of a Scots-mans' Testament, who lived animo remanendi in Polland, was found necessary in Scotland, by the Commissars of Edinburgh, july 18. 1666. Brown contra Duff and Bisset. Confirmation of a Testament wherein the division of the whole Inventar was tripartite, and yet much of it was Sums bearing annualrent, wherefrom the Relict is excluded, was found to need no Reduction, as to that division, but that notwithstanding thereof, the Relict was excluded by Reply, january 18. 1670. Doctor Bal●oure and his Spouse contra Wood Confirmation Vide Homologation. Confirmation of an Annualrent granted by a Vassal to be holden of the Superior, was found not to take away any casuality belonging to the Superior, but that the same might be made use of against that Annualrent, as communicating only a part of the Vassals Fee, but no interest of the Superiority, january 14. 1670. 〈◊〉 of Kirkaldy contra Duncan. CONFUSION was found not sufficient to take away an Adjudication against an appearand Heir on his own Bond assigned to himself, and so simulate, which was found a Ground to Reduce by, but not to annul the Bond, or Adjudication, or make the Defender liable as Heir, january 22. 1662. Earl of Nithisdail contra Glendoning. CONIUNCTFEEARS Vide clause in a Contract of Marriage, july 12. 1671. Gairns contra sandiland's. CONQUEST VIDE CLAUSE. CONSENT of parties to a Decreet judicially, was found not sufficiently instructed by the Decreet, in respect there was a Minute of Process, by which it appeared that the said consent was not Minuted de recenti, but half a year thereafter, upon remembrance of the judges, july 24. 1661. Laird of Buchannan contra Osburn. Consent of a Minister to quite so much of his Stipend to an Helper, was found not proven by an Act of Presbytery without a Warrant subscribed by him, july 26. 1661. Ker contra Minister and ●arochioners of Carrin. Consent to a March and building a Park-dyke thereon was found not sufficiently proven by the building of the dyke, and silence of the other Heretors, january 8. 1663. Nicol contra Hope. Consent was inferred by subscribing as Witness to a Writ on deathbed, to take away the Reduction on deathbed, which the Witnesses could not but know, seeing the sick man subscribe without Importing his consenting to the contents, as in other cases, june 25. 1663. Stevart of Ashcog contra Stevart of Amholme. The like, july 24. 1666. Halyburtoun contra Halyburtoun. Consent of a dumb Man, was not inferred by his Subscription of a Discharge given to his Sister, whereunto he put the initial Letters of his Name, seeing nothing was adduced to instruct that he knew what he did, july 9 1663. Hamiltoun contra Ethdale. Consent of a Wodsetter in a Disposition with the Reverser, was found not to carry his Right, seeing he assigned no part of the Sums▪ and that it only imported the Restricting of his Wodset to the remanent Land, and Renuncing the rest, july 4. 1665. Boyd contra Kintor. Consent was not inferred by knowledge and silence, in that a future Husband knew his future Spouse had disponed a part of her jointure, and yet went on in the Marriage, january 5. 1666. Heretors of johns-miln contra the Fewers. Consent to a Diiposition of a Wodset Right, which Dis-Position disponed the Lands, but neither expressed under Reversion, or Irredeemable, which consent was found not to take away the Reversion from the consenter, who then had no present Right, the Reversion being conceived to another person, and the Heirs of his Body, which failing to that consenter, and that person being then alive, so that the consenter falling thereafter to be Heir of Tailzie in the Reversion, was not excluded by his consent from Redemption, February 23. 1667. Earl of Errol contra Hay of Crimmonmogate. Here the consenter was not obliged for Warrandice. Consent without Warrandice to a Disposition, imports only such Right as th● consenter than had, but for no other supervenient, january 8. 1668. Forbes contra Inne●. Consent of a Superior to a Wodset and Eke, was found to carry the Liferent Escheat of the Vassal then in the Superiors hand, and to exclude a gift by the Superior of the same date with his consent, seeing the gift required declarator to make it effectual, and the consent 〈◊〉 not, june 19 1669. Scot contra Langtoun. Consent of parties to a Decreet of the Lords, bearing the particular Terms of an agreement, and a Decreet thereupon Extracted, the same was Sustained in respect of the offer of a Disposition by the Accepter, who now quarrelled, the Decreet as having a Warrant for his consent, under his hand the offer being simple, provided the same were instructed by the Oaths of the Witnesses insert in the Instrument of offer, February 4. 1671. Lawrie contra Gibson. CONSIGNED SUMS' cannot be affected by arrestment or Escheat for the consigners debt, but belong only to the Wodsetter, june 29. 1661. Telz●●er contra Maxtoun and Cunninghame. Consigned sums in the hands of the Clerk to the Bills, for obtaining Suspension, was found not to be upon the peril of the consigner, unless he were in the fault; and therefore the consigner having first o●●ered by Instrument the principal sum and Annualrent, and so much of the penalty as the charger would depone upon Oath that he truly debursed, and the instrument being instructed by the Oaths of the Witnesses insert, the consigner was declared free▪ though the then Clerk of the Bills was become insolvent, july 28. 1665. Scot contra Somervel. Consigned Sums being lifted by the consigner, he was found liable to produce the same with Annualrent, since he lifted the same, though he offered to depone he had keeped them by him and had made no profile, and that the consignation was not by his fault; january 14. 166●. Mcpherson contra Wedderburn of Kingeme. Consignation being truly and formally made, and the Wodsetter truly in the fault, that received not his Money, he was only found to have right to his Annualrent after the consignation, and not to the Rents of the Lands, though he continued five years in possession before declarator, and that the Sum was taken up by the Redeemer, upon whose peril the consignation was, being now produced by him at the Bar, with Annualrent since the consignation, February 24. 1670. Ierd●●n of Applegirth contra johnstoun of Lockerbie. Consigned Sums for Redemption being taken up, and Annualrent craved therefore since the consignation, the taking up thereof was found probable by the consignator and clerks oaths, the consigner being dead, February 14. 1671. Inter eosdem. CONTINUATION was not found necessary in a declarator of Redemption, though not instantly verified, February 19 1662. children of Wolm●t contra Ker. Vide Improbation, Laird of Auchinbreck contra Continuation was found necessary in Summons, for making Arrested Goods forthcoming, albeit accessary to a Decreet, seeing they were not privileged by deliverance, as they would have been upon that ground, if it had been demanded in the Bill, November 28. 1665. Bruce contra Earl of Mortoun. Continuation was not found necessary to a declarator of Bastardy, but that in favorem fisci, upon a single Summons it might be proven, that the defunct was repute Bastard, as in declarators of Nonentry, the death of the Vassal may be proven without continuation, june 15. 1670. Livingstoun contra Barns. A CONTRACT was found effectual to a third party not contracting, in whose favours an article to pay the debt due to him, was found sufficient, and not to be discharged by the contracter, seeing the bargain followed, july 7. 1664. Ogilbie contra Grant and Ker. A contract of Marriage, by which the Wife declared herself to have a Sum, and contracted the Sum to the Husband, was found to give her no interest to the implement of the Husband's part, till she instructed her part to be fulfilled, which was not presumed to have been performed, though after a long time without some Adminicles, july 26. 1665. Brotherstones' contra Ogle and Orrock. A contract of marriage bea●ing a general clause whereby the Husband renunceth his jus mariti, in the means of the Wife, and all other Right he could have thereto by the subsequent Marriage, was found not to take away a Right granted before the contract, whereby in contemplation of the Marriage, the Wife disponed her Liferent in Trust, and took a back-bond, that the benefit of it should be for entertaining the Wife and her future Husband's Family jointly, both being esteemed as parts of the same Treaty of Marriage, and the general clause in the contract of Marriage, not to be derogatory thereto, February 9 1667. Ratho and Colingtoun contra Tenants of Inn●rtil● and Lady Collingtoun. A contract of Marriage providing the Movables of either party to return after the Marriage, in case there were no children, was found effectual to the Wives Assignays', and that the same did not return to the Husband by his jur marit●, or was not inconsistent therewith, june 30. 1670. Greig● contra Weims. A contract of Marriage by minute, being craved to be declared void, as to the payment of the Tocher, because the mutual obligements therein could not be fulfilled. The Lords liberate the Pursuer, he Renuncing the obligements on the other side, july 13. 1670. Raith and Wauchop of Edmonstoun contra Wolmet and Major Biggar. A contra●t of Marriage whereby a Father disponed his whole Estate in Fee to his Son, and got the Tocher, was ●ound not to annul a Bond of provision, granted by the Son to the Father for his Bairns provisions, after the Contract and before the Marriage, as contra pacta dotalia, but upon Examination of the Witnesses, it being found communed, that the Tocher should suffice for the Bairns Provisions, and that by the new Bond, there would little have remained to the Married persons: The Lords Reduced the Bond, january 21. 1668. petoun contra petoun. Contract of Marriage vid. Clause. IN CONTRARY alleadgances of Minority and Majority, neither party was preferred to Probation, but Witnesses and Adminicles were admitted hinc ●nde, that the Lords might follow the strongest, and clearest Probation, February 20. 1668. Farquhare of Tonley contra Gordoun. CONTRAVENTION was Sustained upon several times Herding, for a considerable space together, by the Defenders Herds at his command, on the Pursuers Ground uncontroverted, reserving to the Lords whether to make every special Pasturing, a several contravention, or one made up of all at the conclusion of the cause, Iuly ●. 1664. Earl of Airly contra Mcintosh. A CREDITOR personal, was found to have no interest to compeat to exclude another Creditor, alleging his debt paid, july 24. 1662. Shed contra Gordoun and ●yle. A CROPPED of Corn was ●ound not to be as a part of, or accessary to the Ground, or as sata solo cedunt solo, so that after Possession attained by Removing, against a violent Possessor warned, the cropped on the Ground was found not thereby to belong to the Heretor entering, even as to that part thereof, which was sown after the Warning, but as to what was sown after the Possessor was dispossed by the Removing, and his Goods off the Ground, the corn was found to accresce to the Heretor, by paying the expense of the Seed and Labourage, as Eatenus locupletior factus, February 22. 1671. Gordoun contra Mcculloch. IN CRVIVES no necessity was found for the stream to be continually free besides the Saturdays slop, but that the same is commonly in desuetude, and particularly in the Cruive in question, notwithstanding that it be special in the Act of Parliament, july 29. 1665. Heretors of Don contra Town of Aberdene. A CURATORS Decreet obtained against him by a Minor, for Liberation of the Curator from his Office, upon consent of the Minor, and his alleged irregularity, was ●ound not to Liberate that Curator from his Office, even for Omissions after the Decreet, july 21. 1664. Scot of ●road-meadows contra Scot of Thirlestoun: But with consideration of the irregular forcible Acts, that he should not be liable therefore, but liberat pro tanto vide Minor. Ibid. Curators being chosen three in number, or any two of them, the Mother being sine qua non, and she being dead, the Pupil was found sufficiently authorized by the other two, he appearing judicially, and acknowledging the same, january 4. 1666. David and Andrew Fairfouls contra Binn●●. Curators, or a Father as lawful Administrator, authorising Minors, or Children to their own behoof, being Ca●tioners for, or with them, was found null, December 7. 1666. Sir George Mckenzie contra Fairholme. CUSTODY of Money was found to liberate the Keeper, where his whole means were sent for safety to a Garrison, and there lost, and he being required to deliver the Money in custody, declared that it was there, and the owner might have it for sending for it, without special probation as to the Money in question, he giving his Oath in Supplement that it was there, and was lost, july 19 1662. Fiddes contra jack, vid. Novemb. 16. 1667. Whitehead contra Stra●to●n. DAMNAGE of a Tenement by the fall of a Neighbour Tenement, was found competent against an Appryzer of a Liserent of the fallen Tenement, possessing thereby, February 16. 1666. Hay of Knockc●ndie contra Litlejohn. Renewed, january 13. 1666. the ruinousness of the fallen House being Proven, though no Requisition to Repair it. Damnage done to Victual Embarked for the use of Merchants, by the fault and negligence of the Skipper, was found not to oblige the Skipper and Owners to take the Victual, and pay the price, but only to pay the damnage, seeing the Victual was not wholly corrupt, but remained in Specie, February 19 1670. Leslie contra Guthrie. DATE of a Bond, wanting as to day, month, and year, was found not to annul it, seeing it bear in the Body, Annualrent from such a Term, in such a year, last bypast, which supplied the date as to the year, june 15. 1662. Grant contra Grant of Kirkdail. Date of a Discharge in a Merchant's count Book, being instructed by Witnesses and Adminicles, was found to prove against the Merchants assignee, january 9 1663. Skeen contra Lumsdean. Date being wanting in a Writ, was sustained to be astructed by a Witness insert, that it was anterior to an Assignation, whereupon it was admitted as a compensation against the assignee, june 29. 1665. Thorntoun contra Milne. Date of a Writ being wanting, was found not to annul it, the party referring the verity of the Subscription to the Subscribers oath, which was allowed, with power to qualify if it was undelivered, or in minority, july 7. 1666. contra Duncan. Date of a Writ being false was found not to infer Falsehood of the whole, or nullity thereof, where the Witnesses insert proved the verity of the Subscription, February 23. 1667. Laird of May contra Ross. The date of a Writ was not quarrelled by the Lords as false, albeit it was not Subscribed the day that it bear, in respect there was a Writ of the same Tenor truly subscribed that day, but being a missing, the Granter a long time after, Subscribed another of the same Tenor and date, and the first being found, and both produced in Process, the user abode by the first simply, and by the last as to the verity of the Subscription, but not of the date, which was so insert for the reason foresaid. july 10. 1669. Gardner contra Colvi●. DEATH of a party was found instructed by 18. years' absence out of the Country, and repute dead, and a Letter produced, w●itten by a Comrad in the War, bearing that he was dead▪ to Sustain an Adjudication upon a Bond granted by the next Heir, which was to his own behoof. February 18. 1670. Lowrie contra Drummond. DEATHBED was not Sustained to Reduce a disposition by a Father to his Son of a Sum, as prejudicial to his Heir, seeing by Contract with his eldest Son, he reserved that power to burden the Estate to any he pleased, though it bear not on deathbed, yet that was not excluded, nothing being there done but the designation of the Person, june 28. 1662. Seatoun of Barns contra his Brother. Deathbed was found relevant to reduce a Disposition and Infeftment of Lands to an Heir female and of line, in prejudice of a Brother and Heir-male, who was provided to the Lands by the Disponer, with a clause (with power to him to alter during his Life) which was found not to extend to deathbed, though he should have been proven in soundness of mind, as contrary to the presumptio juris & de jure, that persons on deathbed are weak, February 25. 1663. Hepburn of Humbie contra Hepburn●, this clause not being in the Writ etiam in articulo mortis, or on deathbed. Deathbed and a Testament was found equivalent, albeit the Testament was made in liege poustie, and so no provision therein, prejudgeth the Heir, December 14. 1664. Lady Colvil contra Lord Colvil. Deathbed was found not Relevant to hinder a Husband to provide a Wife with a jointure, she having no Contract of Marriage, nor competent provision, nor any Terce, he having only Tenements in Burgh, of which no Terce is due; but the Lords modified the Provision near to a Terce, February 22. 1661. Rutherfoord and Pollock contra jack. Deathbed was found not competent by way of exception or duply, january 12, 1666. Seatoun and the Laird of Touch contra Dundas. Deathbed was found Relevant to Reduce a Liferent Provision by a Husband to a Wife, being unprovided, and having no Contract, except only in so far as it extended to her Terce, due by Law, january 21. 1668. Schaw contra Calderwood. Deathbed was found Relevant to Reduce a Bond granted by a Father to his Daughter, who had a former Bond of another small Sum, and that seeing he went not out to Kirk and Mercat after Subscribing of the Bond, and no equivalent, or probation of his being in health, or doing all his Affairs, or that it was a small portion to a Daughter, were Sustained, February 25. 1668. Dun contra Duns. Deathbed was Sustained by Exception against a Bond wanting Witnesses, and alleged holograph, seeing the Bond was defective, and the alleadgeance of deathbed was instantly verified, and the presumption of Law, that the holograph Writ proved not its own date to be before the Defuncts sickness, November 14. 1668. Calderwood contra Schaw. Deathbed being insisted in as a Reason of Reduction, and going to Kirk and Mercat being proponed in Defense, and being supported, and that the disease continued notwithstanding of the Defuncts going out being proponed, The Lords ordained Witnesses to be Examined hinc inde, anent the Defuncts condition and manner of going abroad, whereby it being proven, that the Defunct went freely unsupported, a considerable difficult way, having only a Staff in his hand: The disposition made by him was Sustained, albeit it was proven that he was helped up Stairs and down Stairs, to and from his Horse, being an old man, and that his Bridle was led, and that he was not free of the disease of which he died, and though he came abroad, February 26. 1669. Pargillies contra Pargillies. Deathbed was found Receivable by Exception. to exclude a Recognition, as not being a possessory, but a petitory judgement, july 20. 1669. Barclay contra Barclay. Deathbed was found a sufficient ground to Reduce a disposition, at the instance of the Defuncts Creditors, or the Creditors of the appearand Heir; neither did an offer to declare the Estate jyable to the Defuncts own debts, exclude their interest, without security equivalent to the apprizing, November 25. 1669. Creditors of Cowper and Basmerino contra the Lady Cowper. Deathbed was not found Relevant to Reduce a Bond granted on deathbed by a party who had disponed his Estate, reserving a power to himself to burden at any time during his Life, though it did not bear etiam m articulo mortis, june 22. 1670. Dowglas of Lumsdean contra Dowglas. Deathbed was found proven, Witnesses being adduced before answer on either part, concerning the Defuncts condition the time of the disposition quarrelled, and thereafter till his death, it being by them instructed that he contracted a palsy affecting his Brain before the Disposition, whereby he remained senseless for a ti●e, but thereafter continued to have a Palsy in his Tongue, and Vertigo in his Head till his death; but that he lost the remembrance of things, and Names, and was not sound thereafter in his judgement, though he went frequently to his Garden, and half a pair of 〈◊〉 from his House unsupported, never having gone to Kirk or market after the disposition, or to any public Place, but the disposition bearing for the better payment of the Disponers debt, was sustained, in so far as the Acquirer paid of his debt, February 7. 1671. Lowrie of Blackwood contra Drummond. Deathbed being insisted in to Reduce a disposition, Witnesses were appointed to be adduced for either party ex officio, for clearing the condition the Defunct was in, as to health and sickness the time of the Disposition, and thereafter till his death, and the manner of his going abroad, whereupon the Relevancy and Probation were advised together, and it was found that there was no necessity to libel the particular disease, or that it was Morbus sonticus, but ●ound it sufficiently proven that the Defunct had contracted a disease, before Subscribing of the disposition, and that he nev●r went abroad thereafter, as the Law requires for the Evidences of Convalescence, It was also found, that the going to Kirk and Mercat was a Relevant defence, but that it was elided by the Reply of Supportation, and that the Defunct from his Entry to the Town of Cowper, to the market place, and from the market place till he went out of the Town, did not walk freely unsupported, and that even supporting by the hand was found Relevant, without consideration of the unevenness of the Ground, and that the Defunct was an old man, and accustomed sometimes to take the hand of these that were with him in rouged places, in respect that the attempt to go to Kirk and Mercat, was the next day after the disposition, and so was of design to validate the same, and yet the Defunct was not able to forbear help for so short a way, and attempting to go to the Kirk the next Sabbath, was supported to it, and from it, and fell in a swoon in his return, and died shortly after, which though it was not necessary, if he had gone freely to Mercat, yet was an evidence of the continuance of the disease; neither were private Evidences of putting on his clothes, making of Bargains, Counts, and conveying of Strangers to the gate, going to the Garden unsupported, ●ound Acts sufficient to prove health and convalescence, or equivalent to going to Kirk and Mercat unsupported, seeing in these public meetings, the party behoved not only to suffer the alteration of the free Air, but that there was the Testimony of many unsuspect Witnesses, whereas a few picked out Witnesses might be sufficient for these domestic Acts, if these were Sustained, june 28. 1671. Creditors of Balmerino contra Lady Cowper. Deathbed was found Relevantly libelled, that the Defunct was enclosed on suspicion of the Plague, without proving infection, seeing he died and came never abroad, February 28. 1665. Rutherfoord contra DEBTOR non presumitur donare, was elided by a stronger contrary presumption, viz. that an Assignation made to a creditor who was his nearest of Kin, done mortis causa, and in it another provision of a Sum to another person expressly, in satisfaction of another debt, which not being repeated in this, must be thought ●o ammo, not to be in Satisfaction of the other prior debt, june 16. 1665. Crockshank contra Crookshank. Vide donation, Fleming contra his children, December 20. 1661. Debtor non presumit●r donare, was found not to make a posterior Bond in favours of a Brother's Son, to be in satisfaction of a former Bond to that Brother, seeing the posterior Bond bear for Love and Favour, and no other cause, neither did it mention the prior Bond, December 5. 1671. Dickson contra Dickson. DEBIT A FUNDI cannot be effectual by voluntar Dispositions of the Lands affected thereby, but only by poinding of the Ground; and therefore an apprizing, and an Infeftment thereon, was preferred to a posterior Disposition for Feu-duties, But prejudice to make use of the Feu-duties, by poinding the Ground, whereby they would be preferred to the apprizing, july 8. 1671. Margaret Scrymzour contra Earl of Northesk. By this Decision the Accumulation of Annualrents by the voluntar Disposition was Evacuate. DECLARATOR of the expyring of a Reversion upon a clause irritant, was found null summarily without Reduction, in respect the Decreet bear not the Production of the Instrument of Requisition whereupon the irritancy fell, although the Instrument was now produced, and the party long in Possession by virtue of the Decreet, and albeit the Requisition was expressly libelled upon, and that it seemed to be the Clerk's omission in not mentioning of it in the production, February 22. 1671. Pi●cairn contra Tenants DECLARATOR OF ESCHEAT was sustained without calling all parties having interest at the Mercat Cross, though it was a part of the Style of the Summons in desuetude, june 23. 1666. Masson contra DECLARATOR OF WARD AND NONEENTRIE should only be pursued before the Lords of Session not before the Exchequer, june 14. 1665. His Majesty's Letter Recorded in the Books of Sederunt. DECLARATOR OF THE NULLITY of Bonds and Rights to Creditors; by a Feear in a Tailzie, with a clause de non ali●nando, was Sustained without the form of a Reduction, or Production of the particular Rights, january 21. 1662. Viscount of Stormount contra creditors of Annandale. In a Declarator of Property, the Defender was not admitted to propone a Nullity in the Pursuers Right, or that certification was granted against his Authors Seasine, even at the Defenders instance, unless the Defender allege a better Right, july 10. 1662. Lord Frazer contra Laird of Phillorth. A DECREET of Removing, for not finding caution in absence, was found null by Exception, in respect the Title Libelled on, was not produced, but the Infeftment of another Person of the same name fraudfully mentioned in the production, so that it was not Sustained as titulus bonafides, to give the Possessor the Fruits, june 21. 1671. Neilson contra Menzeis of Enoch. A Decreet being stopped on a Bill, was found not to be recalled, but only the Extracting thereof to be forborn till the Party were heard on the Grounds of the Bill, and that though it lay over several years, it needed not wakening, july 1. 1671. Broadie of Lethem and the Laird of Riccartoun contra Lord Kenmure. A DECREET ARBITRAL was found null, as not being within a year of the Submission, though it had no time, but a power to the Arbiters to meet at their convenience and prorogat, but did not prorogat the same, February 24. 1665. Mcgregor contra Menzeis. A Decreet Arbitral was sustained without Submission in Writ, it being proven by the Parties Oath, that he so submitted, and by the Arbiters Oath, that they so discerned, though both the Submission and Decreet were only verbal, the matter being but of 200. marks, February 7. 1671. Hume contra Scot Here the matter was a Bond of 550. marks, Suspended and determined to 200. marks. DECREETS OF INFERIOR COURTS were found not to be taken away upon Iniquity, though it be instantly verified by the Decreet, by way of Suspension without Reduction, january 24. 1662. Ker contra Lord Rentoun. A Decreet of an Inferior Court was not Reduced simply, because Advocation was produced before Extracting, being after Sentence, but was Reduced because the Advocation was produced before eleven hours, which was the ordinary hour of beginning to sit, but the Sheriff sat that day an hour before ordinary, which the Lords found sufficient presumption that it was of purpose to prevent the Advocation, july 10. 1662. Laird of Lambertoun contra Hume of Kaimes. A Decre●et of an inferior Court was not Sustained as in ●oro, where a Term was taken by a Procurator, to prove a Defense without a Mandate or Writ produced that might in●er the same, November 24. 1665. Chalmers contra Lady Tinnel. A Decreet of an inferior Court was found null for want of Probation, bearing only that the Defender compeared, and confessed the debt, without proponing any other alleadgeance or defence, and not Subscribing his acknowledgement, july 19 1665. Guine contra Mcken. A Decreet of an inferior Court upon compearance, was not found null by Suspension, without Reduction, though it had visible Nullities, and was a small matter, Inter pauperes. November 21. 1665. Baxters in the Cannongate contra A DECREET OF SESSION was Reduced as null, being ultra petita, july 21. 1666. Waison contra Miller. A Decreet of Session in foro, whereby in a Suspension a sum being alleged paid & not instantly verified, the Letters were found orderly proceeded conditionally, if any thing were produced by such a time, it should be received, and was not produced after, which the Lords would not admit, it being now produced in a Reduction of an apprizing of the said Decreet, now in the hands of a singular Successor, june 16. 1664. Laird of Tillieallan and Condie contra Crawfoord. A DECREET OF PARLIAMENT was taken away by double poinding without a Reduction, the same being referred to the Lords by the Parliament upon Supplication on this Reason, that it was pronounced against a Forefault person alter his death, without calling the King's Officers, july 14. 1665. Earl of Argile contra Mcd●wgal of Dinolich and Raca. A Decreet of Parliament Rescinding a dishabilitation of the Children of Forefault Persons without Citation, was Sustained, there being no Citation of the Children to the Dishabilitation, nor Restitution by way of Grace, but in justice, the Children being Infants, incapable of the Crime, February 24. 1665. Sir Robert Sinclar contra the Laird of Wedderb●rn. DELIVERY Vide Chyrographum, December 13. 1666. ●●net Thomson contra Stevinson. Delivery of an Assignation was not found necessary to validate the same, being granted by a Defunct to his near Relation, though not in his Family, though it bear not a Clause to be valide without delivery, seeing it bear a Reservation of his Liferent, and a power to dispose, evidencing his purpuse, not to deliver the same, and so importing the Writ to be valide without delivery. Delivery of three Dispositions in Tailzie to a Daughter's Son, was found to be employed by a Clause in the first dispensing with delivery, and seeing the Substantials of the rest were the same with the first, and only qualified the same conform to the reserved power in the first, they were all Sustained, though the other two had no dispensatory Clause, but so that what was in the first, for the benefit of the Heir, should be holden as repeated in the rest, that by the rest, the Heir might not be in a worse case, july 23. 1669. Elle●s contra Ingles●●●n. Delivery of Bonds of provision to Children is not presumed to have been at; or near the date, but must be proven to prefer them to posterior Creditors, july 22. 1668. johnstoun of Sh●ins contra Arnot. DEPOSITATION of a Writ was found probable by the Notar and Witnesses insert, where the Writ was not produced by the Party, in whose favours it was principally, but by a third party, july 5. 1662. Drummond contra Campbel. A DESIGNATION of a Gleib by way of Instrument of a Nottar, was not Sustained without Production of the Testificate of the Ministers Designers, December 17. 1664. Paterson contra Watson. Designations of Gleibs must first be of Parsons before Bishop's Lands, though they were Feved before the Act anent Manses and Gleibs, and built with Houses, so that the Fevar must purchase as much ere the other Kirk Lands be affected, january 25. 1665. Parson of Dysart contra Watson. Designation of one to be Tutor Testamentar by his own acknowledgement, was found not to prove against him, where by the Testament, the contrary appeared, june 10. 1665. Swin●●●n contra Notman. Designation of a Manse was Sustained by Intimation out of the Pulpit, or at the Kirk door, warning the Heretors thereto, as being the constant custom, though some of the most considerable were ou● of the Country, january 28. 1668. Minister of Hassendene contra Duke of Buccl●●gh. Designation of a Gleib was Sustained, though done but by two Ministers, the Bishops Warrant being to three without 〈◊〉 Qu●run●, unless weighty reasons upon the prejudice of parties were shown, February 7. 1668. Minister of Cockburnspe●h contra his Parochioners. DEVASTATION total was found to Liberate from public Maintenance, February 20. 1663. Baxters of Edinburgh contra Heretors of Eastlouthian. DILIGENCE was not required of a Person whose Name was not entrusted in the Infeftment of Annualrent, to make him Comptable for ommis●ion, but only for intromission, December 18. 1666. Cass contra Wat. A DISCHARGE to one of more Contutors, was ●ound not to Liberate the rest, except in so far as satisfaction was given by the Party discharged, or in so far as the other Contutors would be excluded from Recourse against the Party Discharged, December 19 1668. Seatoun contra Seatoun. A Discharge of Rent not designing the Writer thereof, was found null, unless the user thereof designed the Writer, because it was of 80. pounds of Annualrent yearly, and that thereby an Infeftment of Annualrent would be clad with Possession, and preferred to another Annualrent, july 14. 1665. Scot contra Silvertoun●il. A Discharge being general, was found not to extend to a Sum Assigned by the Discharger before the Discharge, albeit it was not intimate before, unless it were proven that payment was truly made for this sum, February 3. 1671. Blair of Bagillo contra Blair of Denhead. A DISPOSITION of Movables was preferred to an Arrestment on an horning anterior to the Delivery, seeing the Disposition was before the Horning, and the delivery before the Arrestment, july ●. 1662. Bouse contra bailie Iohnsto●●. A Disposition was Reduced on the Act of Parliament 1621. as in fraudem creditorum, though the Disponer was not Bankrupt, and that he had reserved the power of a considerable sum to sell Land to pay his debt, which the Creditors might affect, seeing the Creditors ought to have Preference according to their Legal diligence on the whole Estate till payment, February 6. 1663. Lord Lour contra Earl of Dundee. Dispositions of heritable Rights are only Reducable upon the Act of Parliament against Bankrupts, and not by exception or reply, though betwixt Father and Son & in re parvi momenti, viz. 100 pounds, june 19 1663. Reid contra Harper. A Disposition by a Husband to his Wife of an additional jointure, she being sufficiently provided before, was found Reduceable at the instance of anterior Creditors, albeit the Husband was no Bankrupt, but because he had no Estate un-liferented or affected, albeit the Reversion was much more worth nor the Creditors Sums, but the Relic offering to purge the prejudice by admitting the Creditor, who had apprised, to possess Lands equivalent to his Annualrent, he Assigning to the Relic what he was satisfied by the jointure Lands, and with this provision, that if the Legal expired she should not be absolutely excluded. The Lords found the offer sufficient, February 10. 1665. Lady Craig and Greenhead contra Lord Louvre. A Disposition omnium bonorum, without any cause onerous, and without delivery, was found not sufficient to exclude the necessity of Confirmation and paying of the Quote; june 23. 1665. Procurator-fiscal of the Commissariot of Edinburgh contra Fairholm. A Disposition omnium bonorum, though with possession was ●ound not to exclude the Quote and Confirmation, seeing it bear a reversion to the Disponer, during his Life to dispone of the Goods notwithstanding, july 4. 1665. Commissar of Saint Andrews contra Laird of Bousie. A Disposition of Land was found to carry all Right that was in the Disponers' Person, and to import an Assignation to a Reversion, which needed not intimation, seeing the Seasine was Registrat in the Register of Seasines, December 5. 1665. Beg contra Beg. A Disposition of Lands was found imported by an Assignation to the Mails and Duties in all time coming, against the Heir of him that granted that Right, and that the Heir was obliged to renew a complete legal Disposition, with a Procuratory of Resignation, and Precept of Seasine, july 2. 1667. Sinclar of Hirdmanstoun contra Cowper. A Disposition by one Brother to another of his whole Estate, bearing for satisfying of his debts enumerat, and containing a power to the Purchaser, to satisfy what debts he pleased, and to prefer them, was found valide and not fraudulent, in so far as extended to the Purchasers own Sums due to him, and for which he was Cautioner for his Brother, as if it had born these to be paid primo loco, and thereupon one of the Creditors whose debt was enumerat in the Disposition, was postponed to the Acquirers own debt and cautionry, till they were first satisfied, january 8. 1669. Captain Newman contra Tenants of White-hill and Mr. john Prestoun. A Disposition was Reduced, because given by a weak person to him, who was lately her Tutor ante redditas rationes, and done of the same date with a Contract of Marriage, whereby she was married to his Nephew, who got the Disposition, and died ere he was Married, albeit he who got the Disposition was her Mother's Brother, who Educat and Alime●●ed her, and the Pursuer of the Reduction was her Grandfather's Brothers Son, who had not noticed her, but she was an ignorant person, half deaf, February 18. 1669. French contra Watson. A Disposition of Movables in Writ, bearing onerous causes, expressing a Sum, and others generally, was fou●● not to prove the cause onerous by the Narrative, being 〈◊〉 dulent, leaving nothing to other Creditors, nor 〈…〉 by the Acquirers Oath, but also by the Oaths of the 〈◊〉 whom payment was made, November 18. 1669. Henderson contra Anderson. A Disposition of Lands bearing the Buyers Entry to be at Whitsonday, and to the Cropped of that year, was found not to extend to the Cropped of Corn that was Sown, and standing on the Ground that year the time of the Buyers Entry, or to any part of the Rent, payable for the Land, f●om the Whitsunday before to the Whits●nday at which the Buyer was to Enter, February 22. 1670. Murray of Auchtertyre contra Drummond. A Disposition of Lands and universal Legacy, both contained in one Infeftment, in which there is a Sum provided to Children, not being particularly annexed either to the Disposition of Legacy, the Disposition of Lands being found null, as being in a Testament, the universal Legacy was found burdened with no part of the Provision, seeing by the Nullity of the Disposition, the Children had Right to their Portion of the Lands, which exceeded the Sum they were provided to, February 1. 1671. Pringle contra Pringles. A Disposition granted by a Person who was insolvent, and thereafter notoriously Bankrupt, was not reduced as not proceeding upon a necessary cause, or as being a preference of one Creditor to another, none having done diligence, in respect the Disposition was granted for a Bargain of Victual sold and delivered a Month before the Disposition in question, whereby the Disponer was alleged to become Bankrupt; but it was not decided, whether a notorious Bankrupt could after he was so known, prefer one Creditor to another, when none of them had done diligence, july 20. 1671. Laird of Birken●●g contra Grahame of Craig. A Disposition of Lands was found to imply an Assignation to the Reversion of a former Wodset, and that it needed no intimation, the Infeftment on the Disposition being Registrate, though a posterior assignee had first redeemed, November 18. 1664. Gu●hrie contra Idem December 5. 1665. Beg contra Beg. DIVISION of Lands and a Muire betwixt Coheirs, was reduced upon a considerable inequality, though not near the half value, and though the division proceeded upon the Reducers o●n Brief of division, December 2. 1669. Monteith of Corruber contra Boid. A DONATION was not presumed by a Mother to her Child, by giving out Money in her Name, with power to uplift and re-imploy, in so far as she was debtor to the Child, but pro reliquo, December 20. 1661. Fleming contra her Children. Donation of Aliment by a Mother to her Son, who had no other means, was presumed to Liberate him from Repetition, but was not found so against his Stepfather, for the years after his Marriage, june 25. 1664. Melvil contra Ferguson. Donati● inter Virum & uxorem, was found Revockable, albeit it was not a pure donation, but in lieu of another quo ad excessum, seeing it was notabilis excessus, November 20. 1662. Children of Wolmet contra Lady Wolmet and Dankeith her Husband. Do●atio inter virum & uxorem, was sustained to recall the acceptance of an Infeftment in satisfaction of the Wife's Contract. February 12. 1663. Relict of Morison contra his Heir. Donation betwixt Man and Wife Revockable, was found not to extend to a Contract of Marriage, though made up during the Marriage, there being none before, November 22. 1664. M●gil contra Ruthven of Gairn. Donatio inter virum & uxorem, was found not revockable, if it were granted upon consideration of what fell in by the Wife after her former Provisions, though that would also have belonged to the Husband jure mariti, yet might be the ground in gratitude of a Donation Remuneratory, November 23. 1664. Halyburtoun contra Porteous. Donatio inter virum & uxorem, being in question, where there was no Contract of Marriage, but an Infeftment of all that the man then had, and after a second Infeftment, but stante matrimonio; The Lords found that the first was valide, there being no Contract before, but they reduced the second, finding no remuneratory provision of the Wife to answer both November 23. 1664. Inter eosdem. Donatio inter virum & uxorem, was found not to reach an Infeftment of Lands, to warrant and make up the principal Lands in the Contract such a Rent, albeit there was but a personal Obligement in the Contract, and that the Obligement to Infeft in Warrandice, was therein satisfied and extinct, November 24. 1664. Nisbit contra Mur●ay. A Donation was presumed of Aliment by a Goodfire to his Daughter's Child, who was long in his House, and after the Mother's death continued still without any agreement with the Father, july 21. 1665. Ludquharn contra Geight. Donatio inter virum & uxorem, was found relevant to recall a Bond granted by a H●●band to his Wife bearing (that he thought it convenient that they should leave a part, and therefore obliged him to pay a Sum yearly for her aliment) albeit it bear also that he should never quarrel or recall the same, as importing a Renunciation of that privilege, February 6. 1666. Living stoun contra Beg. Donation betwixt Man and Wife was found to extend to a Charter bearing Lands and a Miln, where the Contract of Marriage bear not the Miln, and that it was not as an Explication of the party's meaning, and so was revoked by a posterior disposition of the Husband to another, February 5. 1667. Countess of Hume contra the Tenants of Old●a●●us and Hog. Donation betwixt Man and Wife was found not to extend to a donation by a Husband to his Wife's Children of a former Marriage, of her Goods belonging to him jure mariti, and so was not revockable as done to the Wife, though to her Bairns at her desire, january 15. 1669, Hamiltoun contra Baynes. A Donation by a Husband to his Wife by a Tack of his whole Lands, not Liferented by her, and bearing for Love and Favour, and for enabling her to Aliment her Children, and bearing a small duty in case there were Children, and the full Rent if there were none, was found valide, as being remuneratory to make up the defect of the value, which by Contract, her Liferent Lands were obliged to be so much worth; superseding to give answer, whither the Tack would be null at the instance of Creditors, lending Sums after the Tack, as latent and fraudulent, if it were not proven remuneratory; or whither a donation betwixt Man and Wife is null, and pendent as a Bairns Portion till the Husband's death, and if the borrowing thereafter would prejudge the same, there being no Lands left un-liferented thereby, january 26. 1669. Chis●holm contra Lady Bra●. Donation betwixt Man and Wife revockable, was found not to extend to Wife Subscribing her Husband's Testament, by which her Liferent Lands were provided to their Daughter, which was not ●ound alike, as if it had been in favours of the Man himself, who is naturally obliged to provide his Daughter, july 12. 1671. Murray contra Murray. Donation by a Man to his Wife, by a great additional jointure, where she was competently provided before, was found not to be taken away by a posterior Testament made in lecto, providing a less additional jointure, without mention of the former, and being conditional, that the said last addition should be at the Testators Fathers disposal, if he returned to Scotland, and he having returned, and having Ratified the fi●st additional jointure, the same was Sustained, july 18. 1671. Countess of Cassils' contra Earl of Roxburgh. DONATAR of Forefaulture obtaining Decreet of Parliament, upon fewer day's citation then are required by Law, Reducing an Infeftment on this Ground, that it is holden of the Forefault person base un-confirmed, and so excluded by the Forefaulture, and not upon the five years' possession of the Forefault person, as heritable Possessor; The Lords Sustained the Decreet, February 22. 1665. Marquess of Huntly contra Gordoun of Lesmore. A Donatar of single Escheat, though excluded by the diligence of the Creditors of the Rebel before declarator, upon debts before Rebellion, was found not to extend to prefer an apprizing of a Wife's Liferent, led against her Husband as having right thereto jure mariti, in prejudice of the Donatar of the Husband's single Escheat, though the apprizing was before Declarator, for a debt before Rebellion, seeing the Liferent had tractum futuri temporis, and is not as Movable Sums, july 18. 1668. Earl of Dumfreis contra Smart. DOUBLE POINDING being raised in Name of Tenants by one of the Parties competing, the same was sustained, though the Tenants did disclaim the same, and that the other party was their present Master, his possession being but of late and controverted, it was also sustained, though there was no particular duties libelled, but in general to be answered of the Mails and Duties, as is ordinary in Decreets conform, july 14. 1665. Earl of Argile contra Dinloch and Rara. A Double poinding, calling two Ministers, and preferring one, the other being absent, was found not irreduceabl● by the Act of Parliament anent double poindings, seeing the Decreet was only general, without expressing the Teinds in question, and so was only found valide as to what was uplifted, but not in time coming, without having a Right, june 15. 1667. Grace contra IN DVBIIS● interpretatio facienda contra proferentem qui po●uit sibi lege●● dixisse clarius, july 29. 1665. Dowglas contra Cowan. EIECTION vide Clause in a Tack, December 19 1661. Dewar contra Countess of Murray. Ejection was not sustained at the Instance of an Heretor by the Tenants ceding the Possession to a Stranger, seeing the Tennent pursued not, and that Tennent was not in natural possession, but both were to compet for the duties, that party having given an obligement to cede his Right, December 21. 1661. Montgomry contra Lady Kirkcudbright. Ejection at the instance of Heirs infants, who had an old Infeftment, but were not Infeft themselves, was Sustained for repossessing, albeit the Defender obtained Decreet of removing, against their Mother, and entered thereby, though the Decreet bear to remove herself, cairns, Servants, etc. The Pursuer being then in her Family, February 19 1665. Scots contra Earl of Hume. Ejection was sustained upon putting the Pursuer out of his House and Land, Naturally possessed by him, though the Ejecter obtained Improbation against the Pursuer, and thereupon Removing, seeing he entered not legally by Letters of Possession. But this was not extended to the Lands possessed by Tenants, who were induced to take Right from the Ejecter, to give violent profits of these Lands, july 25. 1668. Campbel contra Laird of Glenure●y. ERECTION granted by the King, erecting Kirk lands into a Temporal Lordship, was found not to be habilis modus, while the same was not vacant, but in the hands of a Commendator, albeit he was dishabilitat to brook any Estate by his Father's Forefa●ture at the time of the erection, seeing his dishabilitation was thereafter rescinded in Parliament, because he was no ways accessary to his Father's crime, whereupon his Temporal Provision was validate, and the erection medio t●mpore, was postponed to a posterior erection to the Commendator himself, upon his own dimission, February 24, 1666. Sinclar contra Laird of Wedderburn. ESCHEAT single was found to reach a sum due as the Liquidation of an obligement not to alienate Lands, which was found movable quo ad fiscum, albeit it came in the place of the Right heritable, which would have belonged to the Heir, February 4. 1663. Laird of Philorth contra Lord Frazer. An Escheat gifted by the King, was excluded by a Creditor, who arrested during the Rebel's life, and pursued to make forthcoming after his death, he having none to represent him in mobilibus, dying at the Horn, and so needed no Decreet establishing the debt in one representing the Defunct, and calling the Representatives in the action for making forthcoming, albeit the Arrestment was laid on after the Rebellion, but before declarator, and for a debt contracted before the Rebellion, February 19 1667. Glen contra Hume. Escheat was found to carry a Bond bearing annualrent, the Rebellion ●alling before the first Term of payment of the annualrent. june 26. 1666. Dick contra Ker. Vide Donator of Escheat. Escheat was not burdened with debts contracted after Rebellion, February 24. 1669. Counts of Dund●e contra Stra●town▪ Vide Gift of Escheat. AN EXECUTOR pursuing a debtor of the Defuncts, was not excluded by Compensation, because that debtor had taken Assignation from the Defuncts Creditor, after the Defuncts death, seeing thereby the Defuncts debtor might prefer one of the Defuncts Creditors to another, which neither a Debtor nor Executor can do, but according to their diligence, February 14. 1662. Children of Mouswal contra Lowry of Maxwelstoun. In a Competition of Executry of Defuncts amongst their Creditors, all who do diligence within six Months of the defuncts death, by Confirming themselves Executors Creditors, or intenting any Action against the Executor or Intromettor, should come in pari passu, by Act of Sederunt, February 28. 1662. An Executor was found liable to pay a Creditor of the defuncts, albeit it was the price of Land sold to the defunct by a Minute, without restricting the debtor to the Heir, who would only get the disposition, or causing the Creditor dispone the Land to the Executor in lieu of the Movables, but reserving to the Executor to seek relief of the Heir as accords, july 1. 1662. bailie contra Hendrison. Executors were found liable for an Annual payment, for years after the defuncts death, February 5. 1663. Hill contra Maxwel. In the Executry a Child dying before Confirmation of the Mother's third, the Father being alive, was found not to transmit to the Father as nearest Ag●at, but to the Mother's brother, and that it was not in the case of the Legitim from a Father, which is Transmissible without any Confirmation, or addition to the Succession, February 17. 1663. Forsyth contra Pa●oun. Executry was found bipartite, where there was but one Child, which was Forisfamiliat and provided, without alleging in satisfaction of the Bairns part, seeing here the Child offered not to confer, February 18. 1663. Dumbar of Hemprigs contra Frazer. An Executors proper Creditor competing with a Creditor of the Defuncts, both on Arrestments of a part of the Defuncts Inventary, the Defuncts Creditor was preferred to the Executors doing more diligence, especially before this Sum was established in the Executors person by Decreet, july 8. 1664. Ve●ch contra Lord Ley. An Executor was not liberat by a decreet of exoneration, as to the Creditors not called, who needed not reduce the same, neither yet by exhausting, by payment of lawful debts, instructed by Writ, before intenting of the Pursuers Cause, unless sentence had been first obtained against the Executor, who cannot prefer one Creditor to another, but according to their diligence, November 11. 1664. johustoun contra Lady Kincaid. An Executor ad non executa, was found to have no place where the former Executor had obtained Sentence, albeit no payment, and albeit he was Executor dative, and a mee● Stranger, November 7. 1666. Down contra Young. An Executor was found obliged to depone upon the kinds, quantities and prices of the Goods in the Inventary, at the instance of an Executor ad omissa. Notwithstanding of the Oath given by the Executor at the Confirmation, july 18. 1667. Ker contra Ker. The Executor of a donator of Liferent was found to have right to the bygones of that Liferent before the donatars death, and that the donatars Heir had only right to the Liferent after the donatars death, albeit there was no declarator establishing the Liferent in the donatars person before his death, january 28. 1671. Kiry contra Nicolson. Executors having obtained decreet for the defuncts debt, the Testament is thereby execute, although they have not obtained payment, and after the death of one of them, the decreet doth not accresce with the Office to the other, but the one half belongs to the executors of the deceased Executor, june 22. 1671. Gordoun contra Laird of Drum. CO-EXECUTORS being Confirmed, one dying, the Office accresceth to the rest, and all benefit that follows thereon, but the defunct executor being nearest of kin, his part as nearest of kin, is Transmitted to that Executors nearest of kin, and does not belong to the surviving Executors, February 12. 1662. ●ells contra Wilk●e. Co Executors after obtaining Sentence, may pursue for their shares severally, without concourse or calling the rest, january 25. 1665. Menzeis contra Laird of Drum. EXECUTORS CREDITORS were not excluded by the defunct debtors alleging compensation upon an Assignation to a debt due by the defunct, albeit anterior to the Confirmation or diligence, yet posterior to the defuncts deceass, whereby one Creditor is preferred to another, which cannot be done, either by the Executor or by the Debtor, but according to their diligence, February 8. 1662. Crawfoord contra Earl of Murray. An Executor Creditor was not found liable for diligence, where the confirmation was questionable, whether it was by a competent Commissar or not, December 10. 1664. Goldsmiths of Edinburgh contra Haliburtoun. An Executor creditor long since confirmed, was found liable for no diligence to other creditors, but to assign them next to their own payment: And as to the future, The Lords resolved to consider the Motives on both hands, and make an Act of Sederunt thereanent, july 18. 1671. Harlaw contra Hume. EXECUTIONS of arrestment or the like on the Sabbath day, are null by Exception, as was found, February 1●. 1663. Oliphant contra Dowglas of Dornoch. In Executions, giving of a co●y was found an essential requisite, and in Executions requiring Registration, that the same must be expressed in the Execution Registrate, else the same is null, although it be added ex post facto by the Messenger, and offered to be proven to be true, july 28. 1671. Keith contra johnstoun. EXCEPTIONS which do not acknowledge the Libel, do not free the Pursuer from proving of the Libel, but both parties must prove hinc ind●, july 24. 1661. Mitchel contra Hutcheson. The Exception of the Pursuers lossing the Plea by beating the defender in the Session-House, was Sustained without necessity to allege effusion of Blood, but the Lords determined not whether they would admit the probation of the Fact before themselves, or assign a long Term, that the defender might insist criminally before the justices, that it being there cogno●ced, it might be here repeated in termino, july 29. 1692. Harper contra Hamiltoun. An Exception being proponed without denying the Libel, or quantities therein, the Defender succumbing in probation, the Libel was holden as acknowledged and proven, albeit the Exception of its own Nature did not acknowledge the same, but it was recommended to the parties to accord, December 13. 1664. Lord Rollo contra his Chamberlain. EXHIBITION of defuncts Writs by his Heir was sustained, not only for such as belonged to the defunct, but for such also as were in his Possession at his death, january 10. 1665. Reid contra Reid. Exhibition of Writs which the Defender before intenting of the cause had, and fra●d●ully put away, was sustained by Witnesses to prove the having, in respect of the defenders fraud, in endeavouring to transvert the Right, yet not thereupon simply to decern to Exhibit, but only unless the defender refu●e to tell quo modo des●●t possidere, july 14. 1666. Fountain and Brown contra Maxwel of Nethergate. Exhibition of an Assignation out of the granters hands, was found not probable by Witnesses, albeit the granter was alleged to have received it as Agent for the Pursuer, December 14. 1666. Fairly contra Creditors of Dick. Exhibition of count Books being craved in a count betwixt the Successors of two brethren, not to instruct but to make up the charge, in respect of their near interest and commerce, and that they were copartners, the Books were ordained to be put in the Auditor's hands, and if thereby co-partnery appeared, or trust as Factor for others, they should be exhibit to the other party, to frame his accounts by, otherways to be given back, and not to be seen by the pursuer▪ july 7. 1668. Kelict of petoun contra Relict of petoun. EXHIBITION AD DELIBERANDUM was sustained for all Writs wherein there was any clause in favours of the Pursuers Predecessors, and for Writs made by him, to persons in his Family, Wife, Children and Servants, on which no Infeftment followed, December 6. 1661. Telzifer contra Forrester and Sc●aw of Sornbeg. The like November 12. 1664. Galbraith contra▪ EXTRACT of a Bond Registrate, was found not to Instruct the debt against the Heir of a party, whom the extract bear to have subscribed it, but only against the consenters to the Registration: The like unless it were instructed that the Defenders Predecessor truly subscribed the Writ, February 7. 1662. A●cheson contra Earl of Errol: Here Witnesses ex officio, were admitted to instruct by way of Reply. Extract of a Bond Registrate against a party living, consenting by the Procuratory, was found not to instruct, or prove against those who consented not, unless other Adminicles to astruct the ●●uth thereof, were adduced, june 24. 1664. Hay Tailzeor contra Hume of Blackburn. A FATHER as Tutor of Law, was found liable to pursue for the Annualrent of his Child's Mothers third of moveables, February 4. 1665. Beg contra Beg. A Father was ●ound liable to receive his Son in his Family, and to entertain him as the rest of his children, or else to pay a Modification for his aliment, albeit the Father was indigent, seeing the Son had no Means or Calling to aliment himself, january 13. 1666. Dick contra Dick. A Father was sound to be lawful Administrator to his Son in his Family, not only in his Pupillarity, but Minority, as curatory honorarius, not liable to o●●mission, or exclusive to other Curators, but deeds done without his consent were found null, albeit his Son resided not in his Family, but followed the Law, living still on his Father's charges, and having no Calling or Patrimony to maintain himself, neither was his Father's Subscribing with him, found a sufficient authorising of him, seeing he subscribed with him as Cautioner for him, December 7. 1666. Menzeis contra Fairholme. A Father taking a Bond blank in the Creditors Name, and filling up his Brothers Name therein, and obtaining an Assignation from him to his daughter, was not found as a Bond of Provision, Revockable by the Father, in respect the Bond was Registrate in the Brother's Name, November 20. 1667. Executors of Trotter contra Trotter. A Father was not found obliged for Annualrent of a Legacy, uplifted by him, belonging to his Son, as being his Tutor of Law, the Son being Alimented by the Father, and in his Family, December 15. 1668. Windrham contra Ele●s. A Father granting Bond to a Bairn in satisfaction of her Portion Natural, was found thereby to increass the Bairns part of the rest of the Bairns, and not to apply that Bairns part to the Heir, Executor, or universal Legator, as they who were obliged for the Bond of Provision, comprehending the Bairns part, February 17. 1671. Megil contra Viscount of Oxenfoord. A FEW containing a clause irritant expresly● to be null upon the Failzle, was found not to be purged at the Bar where offer of payment was made, in which it differs from a Feu, not having that clause, February 13. 1666. Laird of Wedderburn contra Wardlaw. Feus' of Ward-lands granted before the Act of Parliament 1666. against Feus', was found valide, albeit granted by these who held Ward of Subjects, without consent of their Superior, june 24. 1668. Stevart of Torrence contra Fevers of Ernoch. A Feu was found to be Renunceable by a Fever, to free him of the Feu-duty, albeit it was constitute by a mutual contract, obliging the Fever and his Heirs, to pay the Feu-duty yearly, seeing by a Back-bond of the same date, he was allowed to Renunce when he pleased, which was found effectual, to take away that personal obligement, being extrinsic to the Feu, though in the Feudal Contract against a singular Successor in the Feu, February 1. 1669. Brown contra Sibbald. A FEW-D●VTY was found personally to affect a Liferenter for these years only, whereof she lifted the Rent, july 19 1665. Windrham contra the Lady Idingtoun. FOREFAULTURE of a Parricide, as having killed his own Mother, being gifted by the King, and Infeftment thereon, was found to have no effect, unless there had been a doom of Forefaulture pronounced by the justices, but not upon the ordinary course against absents, declaring party's Fugitives for not underliing the Law, which can only reach their Movables, july 30. 1662. Zeaman contra Oliphant. Forefaulture having with it dishabilitation of the Forefault persons Children, declaring them incapable of Lands or Estate in Scotland, whereby the Sons Estate fell in the King's hand, and was disponed to a donatar, who set Tacks, and the Son being restored by Sentence of Parliament, as an Infant not accessary to the Crime; The Infeftment and Tack thereon were found to fall without calling the Persons interressed before the Parliament, notwithstanding of the Act 1584. Prohibiting Restitutions by way of Reduction, and declaring Rights granted medio tempore, by the King to be valide, which was not found to extend to dishabilitation of the Children, but to the principal Forefalture, February 24. 1665. Dowglas and Sinclar her Husband contra the Laird of Wedderburn: Here both the dishabilitation and remission thereof proceeded without citation. Forefalture and five years' possession of the Forefalt person, before the Forefalture, makes a valide Right, notwithstanding of the posterior Act of Parliament for registration of Seasines and Reversions, etc. Yet interruption within the five years, was found to elide the same by Inhibition, and granting a new Corroborative Right, especially where citation was used immediately before the five years, albeit the corroborative Right was post commissum crimen, july 23. 1666. Earl of Southesk contra Marquis of Huntly. Forefalture and five years' possession was found not Relevant by exception or reply, without a re●our by an Inquest, june 13. 1666. Hume contra Hume. Forefalture gives the King or his Donator five years Rend of any Land the Forefalt person was in possession off the time of the Sentence, whether by Tack or not, january 24. 1667. Inter eosdem. In Forefalture a donatar was found excluded by apprizing, at the instance of the Creditors of the Forefalt person, who had comprised before the committing of the Crime, and had charged the Superior after the crime, but before the Process of Forefalture, july 6. 1667. Creditors of Hume of K●llo contra Hume. The Donatar of Forefalture pursuing Removing, was found not to be excluded by an In●e●tment on an apprizing granted by the King, being then immediate Superior before the Gift, which was not found equivalent to a Confirmation, but past in Exchequer of course without notice, December 9 1668. Earl of Argile contra Stirling. Forefalture was found to exclude a Creditor, founding upon a clause in the disposition made to the Forefalt Person by his Father, reserving a power to himself to affect and burden the Lands disponed by Wodset or Annualrent for such a sum, though the Father had granted a Bond to the Pursuer, declaring the sum to be a part of the Reservation, seeing there followed no Infeftment by Resignation, or Confirmation by the King, july 12. 1671. Learmo●th contra Earl of Lauderdail. Forefalture Vide Gift, Hague contra Moscrop and Rutherfoord. FRAUD of Creditors being insisted on to Reduce an additional jointure after the debt apprised on, the Liferenter offering access to the Appryzer for his Annualrent, and to be totally excluded if it were not Redeemed within the Legal, it was Sustained Relevant; here the Husband was neither bankrupt nor insolvent, but there was no ready execution, because of the additional jointure, February 10. 1669. Lady Greenhead contra Lord Lour. Fraud of Creditors upon the Act of Parliament 1621. was not found Relevant by Reply without Reduction, though of a disposition by a Father to a Son in a small matter, june 19 1663. Red contra Harper. Fraud of Creditors was not inferred by a clause in a Contract, providing a jointure to a Wife, with condition of restricking herself to a part, that the superplus might belong to the Bairns for their Aliment, the whole jointure being only proportionable to the condition of the parties, November 16. 1665. Wat contra Russel. Fraud in a debtors granting a Bond to his Brother, and taking a discharge of the same da●e and Witnesses, and thereby proponing a defence against an assignee, was found Relevant, and receivable by way of Exception, unless the Debtor could condescend upon a reasonable cause, for which the Bond and Discharge were so granted▪ that it might not in●e● their design to deceive any that should contract with the Receiver of the Bond, December 4. 1665. Thomson contra Hendriso●. Fraudulent dispositions may be either Reduced by the Act of Parliament 1621. or declared to be affected with all Execution, as if they were in the disponers' person, December 15. 1665. Ele●s contra Keith. Vide january 8. 1669. Captain Newman contra Fraud was inferred by a Father's granting a Bond to his Son who was Forisfamiliat without a cause onerous▪ albeit the Bond bear borrowed Money; yet formerly it was found to be gratuitous, and it bearing no Annualrent, and only payable after the Father's death, the Father after the date of the Bond continuing in a considerable Trade, and his Estate being insufficient to pay his debt, the foresaid Bond and Adjudication thereon, was Reduced at the instance of posterior Creditors, as being a fraudulent conveyance betwixt the Father and Son to ensnare Creditors, and very hurtful to commerce, February 12. 1669. Pot contra Pollock. The same, February 16. 1669. French contra Watson. Fraud of Creditors was found valide to Reduce a Disposition of Movables, being omnium ●●norum; and that the Narrative bearing special onerous causes was not sufficient, though the parties were not conjunct, but that it behoved to be astructed otherways then by the acquirers Oath November 18. 1669. Hendrison contra Anderson. Fraud of Creditors was inferred by the Act of Parliament 1691. against an only Son and appearand Heir, provided to a great sum of Money by his Contract of Marriage, so far as to make a part thereof forthcoming, for satisfaction of an anterior creditor, albeit the Father was not Insolvent, or made Insolvent by the Contract; and albeit the Contract bear no Assignment to an heritable sum, but actual payment of Money, February 8. 1671. Wat contra Campbel of Kilpont. Fraud was not inferred by the latency of a Translation to a Tack by a Husband to his Wife, granted for quiting of her Liferent of Lands to his Creditors, and therefore was preferred to an Acquirer thereafter upon an onerous cause, February 7. 1670. Damn Elizabeth Burnet contra Sir Alexander Frazer. A FRAUGHT was found only proportionably due to a Skipper, where the Ship was not fully loaden, unless he proved by Witness that he intimate his going to Sea, and required more loading, and abode his ●y days, without necessity to allege an Instrument and Protest taken thereon mentioning he was not fully fraughted, and craving more Fraught, january 13. 1665. contra Charters. FRVITS Vide Cropped, Gordoun contr M●●●lloch. GENERAL LETTERS upon Presentation or Collation of Ministers, whether having benefices, or modified Stipends, are prohibit by Act of Sederunt, and the same intimate to the Writers and Keepers of the Signet, and Clerk to the Bills, but that every Incumbent must have a Decreet conform, although he produce his Predecessors Decrect conform, june 3. 1665. A GIFT granted by the King, Erecting Kirk-lands in a Temporal Lordship, was found not to be habil●● modus, while the same was not vacant, but in the hands of the Commendator, albeit he was dishabilitat from brooking any Estate by his Father's forefa●ture, at the time of the Erection, seeing his dishabilitation was thereafter Rescinded in Parliament, because he was no ways accessary to his Father's Crime, whereupon his Temporal Provision was validate, and the Erection medio tempore was postponed to a posterior Erection to the Commendatar himself, upon his own dimission, February 24. 1666. Sinclar contra Laird of W●dderburn. Gifts of E●cheat competing, the Gift last passed in Exchequer, but first past the Seals, was preferred to the other, though the other took Instruments against the Keeper of the Seal, for delaying him, seeing the Instrument was after the other Gift was past, December 6. 1662. Stevart contra Nasmith. A Gift of a Ward being to the behoof of the Superiors Heir, and made 〈◊〉 of against the Vassals, who had the Rights with absolute Warrandice, the Gift was ●ound to accresce to the Vassals, they paying a proportional part of the Composition, February 15. 1665. Boyd of P●nk●ll contra Tenants of Cars●l●ugh. A Gift was found to be affected with a Back-bond granted by the Donator, when the Gift past the Exchequer, and was Registrate in the Books of Exchequer, albeit the Back-bond was not conceived in favours of the Thesaurer, but of a private person, and albeit the Gift was assigned when it was incomplete before it passed in Exchequer, and the Assignation, was intimat, january 31. 1666. Dallace contra Frazer of Strei●ha●. Gifts of Escheat bearing all Goods to be acquired, was ●ound to extend to Goods acquired within a year after the Gift only, and not within a year after the Horning, july 2. 1669. Barclay contra Barclay. HEIRS ●ound to have the benefit of an obligement to re-dispone Lands, albeit Heirs were not expressed, but appeared to be omitted by negligence, seeing the clause bear not that they should be●redeemable any time in the Disponers' Life, january 9 1662. Earl of Murray contra Laird of Gairn. Heirs were ●ound to have right to an Annualrent, though Heirs were not expressed, and though it bear only to be paid yearly to the Annualrenter, and not Heretably or perpetually, February 2. 1667. Pourie contra Dykes. An Heir, viz. a Son being in●e●t as Heir to his Mother, dying without Issue, his Brother V●erine by that Mother not found Heir to him therein, but his Father, February 5. 1663. Lennox contra Lintoun. An Heir found conveenable for the avail of her Marriage, without calling the other●Heir portioner who was dead, june 26. 1666. Arbuthne● contra Keith. HEIRS OF LINE and not of Conquest, ●ound to have right to a Tack, albeit Conquest, june 23. 1663. Ferguson contra Ferguson. An Heir of Line of a youngest Brother by a several Marriage, found to be the immediate elder Brother of the former Marriage, and not the eldest Brother, june 20. 1664. Lady Clerkingtoun contra Stevart. AN HEIR MALE was found to be presently liable without discussing the Heir of Line, where he was obliged to relieve the same, November 22. 1665. Scot contra Bothwel of A●●hinleck. AN HEIR SUBSTITUTE in a Bond, was found not to make the Substitute Heir liable in solidum, but quo 〈◊〉 valorem of the sum, this was a mutual Substitution of a sum payable to two Brothers, or the survivor, july 3. 1666. Fleming contra Fleming. Heirs have right in a Substitution, though only a person by Name was Substitute, without mention of Heirs, and though that people died before the Institute, january 5. 1670. Inns contra Inns. AN HEIR APPARENT was allowed to have Aliment from the Liferenter, seeing the whole Estate was either affected with the Liferent, or the remainder thereof was apprised from the appeared Heir for the Defuncts debts, exceeding the value thereof, February 13. 1662. Brown contra Liferenters of Rossie. An Heir apparent was allowed to have Aliment of his Grandfather, though he had voluntarly infe●t his Son the Pursuers Father, and though the Pursuer had a stock of Money, Liferented by his Mother, here the Grandfather was jately fallen to a plenteous Estate, june 17. 1662. Ruthven Feuar of Gairn contra Laird of Gairn. An Heir apparent taking Right to Land from his Grandfather, was found not to enjoy the privilege of a singular Successor, and to be in no better case as to that Right than his Grandfather, albeit his Grandfather was living, and the Oye than not immediate Successor, july 23. 1662.▪ Lord Frazer contra Laird of Phillorth. An Heir Apparent was found to have Right to the Rents of ●is predecessors Lands▪ although he died before he was Infeft, and that the next Heir intrometting with the Re●●s of the years that the former appearand Heir lived, was liable to pay the said appearand Heirs Aliment, in so far as he Intrometted, December 20. 1662. Lady Tarsappie contra Laird of Tarsappie. An Heir apparent pursuing for Inspection ad deliberandum, was found not to have interest, to cause a party count and run Probation, that he might know the condition of the Heritage, though there was a contrary Decision observed by Dury, March 16. 1637. Hume contra Hume of Blacketer, seeing the ordinary course since hath been contrary, june 22. 1671. L●s●ies contra Ia●●ray. HEIRS IN A TACK found not to require service, but that such as might be served Heirs, might enjoy the benefit thereof, june 17. 1671. Boyd contra Sinclar. HEIRSHIP MOVABLES was found competent to one who was infeft in Lands, and though the same was apprised, and the Appryzer infeft, yet the legal was unexpyred, and the apprizing stood but as a collateral Security, not as a full Right, February 26. 1663. Cuthbert of Draikies contra Monro● of Foul●s. Heirship movable was found to belong to an Heir of person who died only infeft in an Annualrent, july 19 1664. Scrymzeour contra Executors of Murray. Heirship movable was not found competent to a person who was only Heir apparent of Tailzie, and died never Infe●t. january 27. 1666. Colonel Montgomerie contra Stevart. Heirship movable being renunced from the Heir of Line, in favours of his Father, was found not to return to him after his Father's death, but to belong to his Father's Executors, 〈◊〉 18. 1666. Pollock contra Rutherfoord. Heirs 〈◊〉 clause. AN heritable Obligement quoad creditorem may be movable quoad debitorem, july 25. 1662. Nasmith contra Ia●●ray. An heritable Sum was found so to remain notwithstanding of a Requisition not being made conform to the clause of Requisition, and so null as being provided to be required by the Husband with consent of the Wife, whose consent was not adhibite, nor was the showing the Creditors intention to require his Money enough, not being made debiro modo, january 18. 166●. Stevart contra Stevarts. An heritable Bond was found movable by a charge, though but against one of the Ca●tioners, january 24. 1666. Montgomery and his Spouse contra Stevart. An heritable Bond bearing a clause of Annualrent, was found not to be movable, though the principal sum was not payable till the debtors death, seeing the first Term of payment of the Annualrent was past, july 31. 1666. Gordoun contra Keith. Vide Bond, june 28. 1665. and Iun● 26. 1668. ONE HOLDEN AS CONFESSED was reponed against a Decreet of an inferior judge, albeit a Procurator compeared, and took a day to produce him, but without a Procuratory, or proponing any Defense that might show any Information of the cause, and so no warrant to compear, November 24. 1665. Chalmers contra Lady Tinnel. Holden as confessed was not admitted against a Defender absent, where the Messengers Execution did not bear personally apprehended, but that the Messenger knew that the Defender was in his House, but was forcibly keeped from access by his Wife, july 5. 1670. Lindsay and Swintoun contra Inglis. AN HOLOGRAPH Discharge was found not to prove its date against an assignee, unless it were astructed by Adminicles or Witnesses, that knew it subscribed of that date, january 4. 1662. Dicky contra Montgomery. A Holograph Writ proves not quo ad datam, yet the date may be astructed by Witnesses above exception; but persons of ordinary credit, one of two being a Towns Officer, were not found such Witnesses, albeit no exception was competent against them for being ordinary Witnesses, june 21. 1665. Bradie contra the Laird of Fairny. Holograph was found proven by production of a Transumpt done judicially, and the Oaths of the Witnesses, and Friends of the Defunct who made the Wri● Transumed amongst his Children, altering their portions; and though a part of it was written by another when the Defunct was so weak that he could not write, yet the writ was found holograph as to the rest, but not as to this Article, albeit the principal writ was lost and not produced, but only the judicial Transumpt taken off when it was produced, july 30. 1668. Mckenzie contra Balla●dine of Newhall. Vide Deathbed, November 14. 1668. Calderwood contra Schaw. HOMOLOGATION to communicate Appryzing, was found not to be inferred by the singular Successors concurring the facto against third parties, unless it were proven by the singular Successors Oath, that he knew of such a Bond, july 6. 1661. Tailzifer contra Maxtoun and Cunningham●. Homologation of a Decreet was not inferred by payment thereof, without a Charge, seeing the Givers thereof were Officers having no Commission, or any civil Authority, july 24. 1661. jack contra Feddes. Homologation of a Decreet Arbitral quoad, one of many Articles of different matters, was found not sufficient for the whole, November 22. 1662. Pringle contra Din. Homologation of a Father's Legacy to his Children, was inferred by his Wife, Confirming the Testament without Protestation, not to prove that Legacy, here the Wife by her Contract was provided to the Liferent of all her Husband's Movables, February 19 1663. More contra Stirling. Homologation of an Infeftment granted to a Wife in satisfaction of her Contract of Marriage, was inferred by her continuing six or seven years to possess, and setting several Tacks as Liferentrix, where the clause in the Contract was only in general to employ Money on Land, or Annualrent, and no Infeftment followed thereon, nor was the Husband in possession in his Life, but the Wise began the Possession, albeit the acceptance of the Infeftment was to her prejudice, and was not in her hand, nor did the Seasine repeat that provision particularly, But only according to the conditions contained in the Bond, the Seasine being Registrate, and the Bond still in the Nottars hand Who took the Seasine, in which case the Wife was presumed to know and not to be ignorant of the Terms of her Infeftment, November 14. 1665. Skeen and her Spouse contra Ramsay. Homologation of an Infeftment, bearing in satisfaction, etc. was sound not to be inferred by possessing the Lands, seeing the Possessor had another Title, as Heir apparent to persons who died Infeft therein, unless it were instructed that the possession was attained by Process upon the Infeftment in satisfaction, December 12. 1665. Barns contra Young and her Spouse. Homologation of a Fevars Right, and passing from a Declarator against the same, upon a clause irritant, was found not to be inferred by acceptance of two years' Feu-duties after the Declarator, except as to these two years that more duty could not be demanded therefore, june 6. 1666, Earl of Cassils' contra Agnew. Homologation of a Bond granted by a Minor, without consent of his Father as lawful Administrator, was found not inferred by payment of Annualrent by him after his Majority, especially not being of his own Money, nor by taking a Discharge of the Annualrent to the Principal, and himself as Cautioner, February 14. 1668. Mckenzie contra Fairholm, Here the Discharge related the Bond both as to Principal and Cautioner. Homologation of a Minors Bond, was not inferred by pursuing for his relief after his Majority, but that in case he were not liberate by that mean, he might return to his Reduction upon Minority, February 20. 1668. Farquhar of To●ley contra Gordoun. Homologation of a Tack of Teinds which was null, as wanting the consent of the Patron, was not found inferred by the Ministers receiving the duty conform to the Tack before Reduction thereof, February 27. 1668. Chalmers contra Wood of Balbegno. Homologation of a Decreet was not inferred by giving Bond of borrowed Money for the like sum, and taking a Discharge of the Decreet, seeing it was no voluntary deed, but the Debtor was then under Caption in the Messengers hands upon the Decreet, neither a Transaction, if the Bond contained all the sum in the Decreet, unless abatement had been gotten, july 3. 1668. Row contra Ho●stoun. Homologation was not inferred by a Husbands Discharge of Annualrent, as Tutor to his Wife's Child, to infer the Child had right to the Annualrent, whereas by the Bond itself the Wife was Liferenter, january 18. 1670. Doctor Balfour and his Spouse contra Wood Homologation of a Decreet of consent, containing a Transaction of parties at the Bar, without any Subscription, was inferred by a simple offer of a Disposition conform to the said Transaction be that party who quarrelled the Decreet as without Warrant, but was not inferred by consignation of the Disposition, for obtaining a Suspension upon obedience to be delivered up, if the Lords saw cause, February 4. 1671. Lowrie contra Gibson. Homologation of a Contract of a Minor having Curators; without their consent, was not inferred by payment of a years Annualrent of the sum contained in the Contract, being made ●o an indigent Sister, who had no other provision, but homologation was inferred by a Decreet of Registration of the Contract, at the instance of the Party, none quarrelling the same after his Majority, though there was neither Charge nor Execution used thereon, and in the Decreet of Registration, there was neither Protestation nor Reservation, that the same might be quarrelled in any point, june 2●, 1671▪ Hume contra Lord justice Clerk. Homologation of a Testament subscribed by a Wife at the desire of her Husband near his death, was not in●erred by her Confirming the Testament under Protestation, not to prejudge her own Right, though she might have attained her interest in the Movables, by Confirming herself Executrix Creditrix, july 12. 1671. Murray contra Murray. HORNING granted Summarily upon the late judge's Act, at the instance of heirs or Executors confirmed, was found to be ●ull, upon the late Act of Parliament, declaring their ludi●●●● proceedings to be quarrellable, seeing there● was no ●●justice in the matter, but the Lords gave the Suspenders such time for their Defences as in an ordinary Action, january 1. 1662. Barnes contra Laird of Applegirth. Horning doth not affect the Rebel's Movables by the Act 1592.▪ but that the Rebel may effectually deliver them to one who had Disposition of them before the horning, july 9 1662. Bower contra Barclay and johnstoun. Horning was not found null by payment before denunciation, to be proven by the Creditors Oath▪ or holograph Discharges, but by the Denuncers Oath of Verity, February 10. 1663. Montgomery contra Montgomery and Lawder. Horning granted against the Magistrates of a Town upon the Act of their Council, obliging to pay a Debt upon a Bill without Signet, though there was no Process whereon the Act proceeded, or Clause of Registration therein, February 19 1663. Lady Swintoun contra Magistrates o● Edinburgh. Horning was sustained though on a Charge of six days beyond Dee, contrary to the Act of Parliament 1580. ●n respect it proceeded on consent of parties upon a clause of Registration, and since that Act, such hornings had never been quarrelled, December 16. 1664. Laird of Phillorth contra Forb●s of As●oun and the Lord Frazer. A HUSBAND was found liable to his Wife's debt, though not established against him during the Marriage, in so far as might be extended to the benefit of her Liferent Duty resting after the Marriage dissolved, which could not belong to the Husband, but with the burden of her debt, February 1. 1662. Cunninghame contra Dalmahoy. A Husband was found liable for his interest in Movables intrometted with by his Wife of her first Husbands, albeit there was an interveening Husband who was not found to be first discussed, but reserving to the Defender to pursue his heirs as accords, February 18. 1663. Dumbar or Hemprigs contra Lord Frazer, Vide interdiction, February 27. 1663. Laird of Milntoun contra Lady Milntoun. A Husband was assoilzied from his Wife's debt, albeit Litiscontestation was past, seeing she was dead, and albeit there was an Interlocutor ordaining him to give Bond to pay what his Lady should be found due, july 11. 1664. Inter eosdem. A Husband being pursued to remove from a Tenement, which he possessed jure mar●ti, no Process was sustained till the Wife was cited, july 14. 1665. johnstoun of Shee●s contra Brown. A Husband Confirming his Wife's Testament, by giving up his own Movables and Debt, though he made Faith upon the Inventary, yet was not excluded from debarring the Wife's Legatars upon another debt then forgotten, though not old, December 7. 1665. Anderson contra Cunninghame. But he being lately charged on a debt before the confirmation, it was not allowed as forgotten, june 5. 1666. Inter eosdem, A Husbane was not found liable for his Wife's debt jure Mariti after her death, though in her life there was Decreet against her and him as Husband, seeing there was no Execution thereon in her life, December 23. 1665. Damn Rachel Burnet contra Lepers. A Husband and Wife were not found liable as lucrative Successors for a competent Tocher suitable to their condition, but for the superplus, and if the provision was exorbitant, not only the Wife but even the Husband is liable in quantum lucratus est, December 23. 1665. Inter eosdem. A Husband receiving a sum provided to his Wife for her use, Ornaments, or Abuilziaments, or any other use she pleased, excluding the Husband and his jus mariti, was found to exclude the Wife's Executors, seeing the husband sufficiently furnished his Wife, and the Granter of the Provision freely made payment to the husband, February 12. 1667. Executors of the Lady Piltoun contra Hay of Balhousie. A Husband's Escheat falling by being denunced as husband for his in●erest upon his Wife's Bond, not subscribed by him, and only at the Mercat Cross of Edinburgh, he residing out of the Country, was found not to be Liberate by the dissolution of the Marriage, February 25. 1668. Lord Almond contra Dalmahoy. A Husband was discerned for his Wife's debt, as being holden as confessed, upon refusing to give his oath of Calumny whether he had just reason to deny what his Wife had declared upon Oath, the Decreet for that reason was Reduced, February 26. 1668. Grahame contra Touris and her Husband. A Husband having Married a Taverner, who after Proclamation of the Marriage had bought twelve Hogsheads of Wine, and the Pursuer having intented Action against her and him as Husband, she died within four months after the Marriage, the Husband delivered the Keys of the Cellar to the Magistrates, and Inventared the Wines, and abstained from intromett●ng; the Husband was not found liable for what was vended before the Marriage, nor for what remained unfold after his Wife's death, but the burde● of probation was put on the Husband, to prove what was vended before, and what remained after the Wife's death, otherwise to pay the whole, November 25. 1668. Andrew contra Corse. A Husband Ratifying his Wife's Disposition to her Children, by the first Marriage, though after Proclamation, it was ●ound valide, and not Revockable, as Donatio inter virum & uxorem, February 15. 1669. Hamiltoun contra Banes. HYPOTHECATION of the profits for the Rents, was found to prefer a Town setting their Customs, as to the duty due by a Sub●acksman therefore, though not to the Town, but to the principal Tacksman, and though a Creditor of the Tacksmans' had arrested the Sub-Tack-duty for the Tacks-mans' debts the Town using no diligence till they were called in a double poinding, yet were preferred, january 31. 1665. Anderson, etc. contra the Town of Edinburgh. Hypothecation of the Fruits of the Ground, for the Rent of the same year, was found valide to the Setter of a Fishing against the Do●atar of the Tenants Escheat, who had intrometted therewith, and was found liable to restore, july 4. 1667. Cumming of Alter contra Lun●d●an. IGNORANTIA●IVRIS non excusat etiam in mulieribus, as that a Bond movable in the Wife's Name belonged to the Husband▪ june 16. 1664. Murray contra IN AN IMPROBATION a party user of a Writ challenged, but not produced by himself, was admitted to abide thereby qualificate, viz. That he used it as a Writ produced by another, which was in his favours, and knew nothing of the Forgery thereof, july 24. 1661. Laird of Lambertoun contra Earl of Levin and Kennedy. Improbation of a Writ by Exception being proponed, and an Act extracted, the Defender was not admitted to allege nullities, quia excepti● falsi est omnium ultima, july 3. 1661. Peacock contra bailie. In an Improbation, testimonies were published to both Parties, and the Defender was made closely Prisoner, july 26. 1661. Lambertoun contra Kennedy. Improbation was found necessary to be continued, though it bear an express privilege without continuation, which was thought to pass of course, contrary to form, February 7. 1662. Laird of Auchinbreck contra Mcleree. In an Improbation after Articles indirect for improving, and Articles approving, and a Dispute in Writ thereon, and Witnesses hinc ind● examined on all before discussing the Relevancy, and the Testimonies closed, and new Articles hinc inde, and a Dispute in Writ thereon, the Parties were heard viva voc●, and then all advised, july 11. 1662. Laird of Lambertoun contra Earl of Levin and Kennedy. In an Improbation a Writ was improven, though two Witnesses in it were alive, and examined thereon, and deponed it was his Subscription, the other deponed it was like his when he was young, seeing the Writ was null for want of the Designation of the Writer, and other presumptions against it, and seeing none of the Witnesses remembered that they subscribed, or that they saw the Party subscribe, so tha● their Testimonies were held no more but as de credulitate▪ that this was their subscription, seeing no ●●n could possibly swear, but that this might be ●en●ied by some other, not remembering of his subscription, neither was holograph Writs found sufficient to astruct, and many Witnesses Deponing these were the hand Writ of the Parties; yet seeing they Deponed not that they saw these written by the Party, it was but like the other, that these were so like his ●and, as that they believed it to be the same, which therefore would have proven, if there had not been contrary presumptions and evidences proven; here some of the Lords were unclear that this Improbation could absolutely ●mprove as false, but that the Writs never having been in the Creditors hands, and long keeped up by the producer suspecta fama, and many presumptions contrary proven, it might conclude the Writs suspect, and not authentic and probative, but not to be forged or false. which infers p●nam sa●guinis, and aught to be on clearer probation than such presumptions, july 14. 1662. Inter eosdem. Improbation of Rights of Lands was found not to be sustained upon the Advocate's concourse, without the King's special Warrant, albeit it was of Kirklands erected wherein the Pursuer stood infeft as Superior till he were Redeemed by the King, by the Act 1637. and 1661.▪ anent Erections, june 24. 1664. Laird of Prestoun contra Alred. Here some of the Lords remembered the like done in the case of Hopes Goodson when he was Advocate. Improbation being Sustained by exception against an assigney, it was found sufficient that the assignee abode by the Writ delivered to him as a true Writ, and that he knew nothing to the contrary, and producing his Cedent to bide by it, who though alleged to be Bankrupt, yet was not obliged to find caution, nor go to Prison, but only to enact himself to appear judicially whensoever any thing that might infer the falsehood of the Writ was referred to his Oath▪ and his being holden as confessed, should be effectual to prove both against Cedent and assignee, january 3. 1666. Grahame and jack contra Bryen. Improbation being sustained by exception, and Terms assigned to the Defender to improve, and to the Pursuer to abide by the Write, after the Term was come, the Defender was admitted to propone payment by Bill, the Act not being Extracted on the improbation, though it be omnium exceptionum ultima; january 23. 1666. contra Earl of Kinghorn. In Improbations the Lords declared they would grant three Terms for production of Rights of Lands, and appointed the Ordinary to intimate the same, November 26. 1667. Hay of Haystoun contra Drummond and Hepburn. Improbation upon certification was found null, because the Defender was then Prisoner of War in Ireland, and his Right was after acknowledged by an agreement, though not perfected, july 25. 16●8. Campbe● c●ntra Laird of Glen●rchy. In an Improbation the Witnesses insert were examined ex officio what they knew of the Truth, or Forgery of the Writs in question, though the Writs were not produced, there being pregnant presumptions, and fragrant fame of Forgery, july 6. 1669. Barclay contra Barclay. In an Improbation after certification was Extracted, The Lords Examined Witnesses as to the Forgery, in so far as it might be known▪ without production of the Writs in question, and though th● Witnesses were accessary to the Forgery, November 9 1669. Inter eosdem. In an Improbation where the Writs were once judicially produced in Exchequer, and wilfully keeped up, certification being Extracted, The Lords upon Copies Examined the Witnesses insert and Writer, who confessed the Forgery and were moved thereto by the Defender, whereupon the Writs were not improven as not being produced, but the Writers and Witnesses were found Forgers, and the Defender as user and accessary, and all were declared infamous and remitted to the Council, to use an extraordinary Remedy by Banishment against the Defender. january 26. 1670▪ Inter eosdem. In an Improbation where one of the Witnesses insert had a Designation alleged competent to more persons, all that were alleged to be so designed that were alive were ordained to be Summoned, and the hand writs of those that were dead to be produced, june 8. 1671. Stevart contra Mckenzie and Kettlestoun. In an Improbation of the Minute of a Tack, wherein one Deponed, that he had subscribed at the Defenders Instigation, who told him that he caused the Pursuers Name to be set to the Writ, and another that he did not see the Pursuer subscribe, and the third who was Writer of the Minute, and also Brother to the Defender Deponed, that he saw the Pursuer subscribe with her own hand; The Writ was found improven and false, but there was not two Witnesses instructing who was the Forge●, july 22. 1671. Miller contra Bothwel of Gl●●corse. INCIDENT was not Sustained upon an Act before answer, ordaining all Writs to be produced, the parties would make use of which was found only to extend to such Writs as they then had, july 3. 1662. Kello contra Pa●toun. In an Incident four Terms were allowed for proving the having of the Writs by Witnesses, but the Terms were to be short. December 15. 1665. Mo●teith contra Anderson. An Incident was Rejected, because the Pursuer of the principal Cause was not called thereby, and the Executions suspect▪ December 23. 1665. Laird of C●●neck contra Lord Bargeni●. Incident was not Sustained at the instance of any but these whose Names as Purshers were filled up in the Bill▪ though it contained a blank, but it was Sustained against the Defenders, havers of the Writs, for whom a blank was left, though nor at first filled up, in respect of the custom for the last and not for the first, july 3. 1667. Creditors of Wa●chtoun contra Counte●s of Hume. PRO INDIVISO was not sustained to hinder Removing of a Relic from an House, as being a Tenement Indivisible, though she had a Terce of it, but the Heretor was found to have Right to possess, yet so that if he dwelled not so himself, she should be preferred to all others, she giving like Mail as others would pay, january 26. 1665. Logan contra Galbraith. INFEFTMENT of Annualrent holden base, was found valide against a posterior Public Infeftment, because thereon there was a Decreet of poinding the Ground, though it could take no effect for a long time, seeing the Entry to the Annualrent was not till after the Constituents death, February 26, and 27. 1662. Creditors of Kinglassie competing. Infeftment past in Exchequer on an apprizing against one who was Infeft by his Author not Confirmed, was found not to supply or comprehend a Confirmation in prejudice of another Creditor, who regularly had obtained Confirmation of that null Seasine, in so far as might concern his base Right depending thereon. january 16. 1663. Tenants of Kilchattan contra Laird of Kilchattan, Major Campbel and bailie Hamiltoun. Infeftments gratuitous to a Wife after she was provided by her Contract of Marriage, was found not to be taken away at the instance of Creditors upon the Act 1621. by Exception or Reply, july 22. 1664. Lord Louvre contra Lady Craig. An Infeftment to a Wife in Liferent, was Sustained by her Seasine adminiculat by her Contract, albeit the Seasine was not immediately upon the Contract, but related a Bond granted for the same Cause, which was not produced, january 29. 1665. Norvil contra Sunter. Infeftment of warrandice Lands being in the same Investiture with the principal Lands, and both holden base, was preferred to a posterior public Infeftment of th● same Warrandice Lands, though clad with long possession, and that upon an Action of Mails and Duties upon the Distress without Reduction, january 9 1666. Brown contra Scot An Infeftment of Kirklands was Sustained▪ though it bear to be upon Resignation, and had not the r●ddendo●per expressum, but relative to the former Infeftment, without necessity to produce any original Right, seeing the Charter was subscribed by the Abbot with consent of the Convent, january 17. 1666. Lord Rentoun contra Fevars of Coldinghame. An Infeftment to a person on her own Resignation, bearing expressly her to be Heir to her Father, who was last Infeft, The Charter was found equivalent to a precept of clare constat, Ianu●ry. 20. 1666. Inter eosdem. Infeftment of the Office Forrestrie, with a Duty out of the whole Lands of an Abbacy, was found valide being granted by the Abbot and Convent, without Confirmation by the King or Pope, Ibidem. Infeftment in warrandice granted by a Husband to his Wife though base holden of himself, and ex intervallo, after the principal Infeftment, was found valide against a posterior public Infeftment of the same warrandice Lands, as being clad with the Husband's Possession in the principal Lands, and that there needed no Declarator of Distress or Eviction, but a pursuit of Removing, or Mails and duties upon the Eviction is sufficient, which cannot be excluded by a possessory judgement upon seven years' Possession by the public Infeftment, unless it were seven years after the Eviction, February 20. 1668. Forbes contra Inns. An Infeftment of Annualrent being before a Liferenters' Infeftment, after which there followed a corroborative Security▪ accumulating the bygone Annualrents, and giving Infeftment for both, which posterior Security was not Sustained against the Liferenter, nor was it held as if it has been a poinding of the Ground, February 13. 1669. Mclellan contra Lady Kilcu●bright. An Infeftment to be holden of the Superior not Confirmed▪ wa● found null▪ albeit it was only granted for Security of ● Wi●es liferent, conform to her Contract of Marriage, july 2●. 1669. Grace contra Ker. An Infeftment of Annualrent was found extinct by the Annualrenters intrometting with the Annualrents of the Lands equivalent to the principal sum, February 4. 1671. Wishart contra Arthur. An Infeftment was found null by reply without Reduction, whereby a Woman was served Heir to her Mother in a Tene●ent● in which her Mother and Father were infeft in Conjunct ●ee, albeit she had probable▪ Ground to think her Mother was Feear, seeing her Father was found to be Feear, and that she was not 〈◊〉 〈◊〉 by Retour, but by precept of favour; here seven years' possession was not alleged to give the benefit of a possessory judgement, july 1●. 1671. Gairns contra Sa●●ilands. ● Infeftment Vide base Infeftment. INHIBITION was found not to Reach Lands acquired after it, lying in another jurisdiction, then where it was published and Registrate, july 18. 1662. Smeateun contra An Inhibition was found to be valide to reduce or declare against the Person Inhibit, not only for the Lands he had the time of the Inhibition, but these acquired thereafter, December 15. 1665. Ele●s contra Keith. An Inhibition of Teinds was found sufficiently execute by a Sheriff in that part, and not by a Messenger, being direct to Messengers, Sheriffs in that part, which was sufficient to interrupt tacit Relocation, january 27. 1666. Earl of Eglintoun contra Laird of Cunninghamehead. Inhibition being used on a Sum, was found sufficient to reduce, and that the Inhibition and Reduction thereon could not be purged by payment of the sum whereon it proceeded with Annualrent and Expenses, seeing there was a supervenient apprizing upon the Sum which was now expired, February 24. 1666. Grant contra Grant. Inhibition was found to extend to Rights acquired after the Inhibition, but not to a Wodset acquired after, and Renunced upon payment, without abiding an Order, albeit Renunciations be by the style of the Inhibitions prohibit, yet they are but as Discharges of heretable debts or annualrents, against which Inhibitions operate not, to cause them pay again, july 16. 1667. Eleis contra Keith and Stevart. Inhibition was found to extend to Lands acquired after the publication thereof lying in the Shire where it was published, February 27. 1667. inter eosdem. Inhibition on a Dependence was found to take no effect wh●re no judicial Sentence followed, but a Transaction on arbitrament, December 16. 1668. Frazar contra Keith. An Inhibition was found to reduce a disposition, though its date was anterior to the Inhibition as to some Creditors, whose Names and sums were filled up in it by another hand, which was presumed to have been blank, and filled up a●ter ter Inhibition, unless the contrary were proven by Witnesses above exception. january 15. 1670. Lady Lucia Hamiltoun contra Creditors of Montcastle. An Inhibition was found null, because the Executions thereof bear not a Copy to have been left at the Mercat Cross where it was published, February 12. 1670. Naper contra Gordoun of Grange. Inhibition of Teinds was found not to give Right to draw the Teind without Sentence, where the Here●or had any colourable Title, january 27. 1665. Barefoord and Bennistoun contra Lord Kingstoun. Inhibition was found Relevant to Reduce the Rights of Creditors, albeit there was a Disposition to two Parties for themselves and for the behoof of other Creditors under-written, after which there was a large blank filled up with an other hand, in which the Creditors in question were insert, which blank so filled up, was holden as after the Inhibition, and a prior communing to take in these Creditors, and undertaking their debts by the persons to whom the Disposition was made, was not Sustained to be proven by their oaths, or by the oaths of Witnesses, but only by Writ or oath of knowledge of the Pursuer, july 8. 1670. Lady Lucia Hamiltoun contra Boyd of Pitcon and others. Inhibition being pursued upon to Reduce, and the Pursuer offering to accept the Sums in the Inhibition cum omni causa, albeit there was an expired Compryzing led upon the Sums, the Defender craving that the Pursuer would assign the Sums; The Lords found that the Pursuer could not be compelled to assign the same, in respect the offer was only to take satisfaction and Renunce, whereby the Cautioner might not be distressed Inter eosdem. Inhibition was found null by Declarator, because the Executions as they were Registrate, did not bear a Copy given to the party inhibit, albeit the publication at the Mercat Cross bear a Copy affixed, and that the Messenger had added upon the Margin the delivery of a Copy, which was found an essential requisite in the Execution, and that not being Registrate with the Execution, the same was null and could not be supplied, by proving by the Witnesses insert, tha● a Copy was truly given, against a singular Successor who had bought the Lands for a just price, july 28. 1671. Keith contra johnstoun. ●INTERDICTION against a Defunct was found only to extend to the Lands lying within the lurisdiction where it was published and Registrate, but not to the other Lands, nor to Heirship movable or other moveables, so that the Heir succeeding therein is liable notwithstanding, February 11. 1662. Ramsay of Torbane contra Mcclella●. Interdiction albeit it be not Sustainable by way of Defense to delay a pursuit, yet it was sustained by way of Reply, seeing the pursuer might delay himself, ●●d that otherwise he behoved to quite the Possession, and then Reduce to recover it again, February 13. 1663. Lockhart contra Kennedy. Interdiction of a Man by ●ond, bearing he should not sell nor dispone without consent of his Wife on the Narrative of his facility whereupon Inhibition was used, was found not to stand as an Interdiction, being inconsistent to bind a man to the direction of his Wife, but that it stood in so far as might be interpret an obligement in the Wife's own favours, for her proper interest to secure her an Aliment according to her quality. February 27. 1665. Laird of Milntoun contra Lady Milntoun. Interdiction was found to give interest to Appryzers or Adjudgers from the Heir of the Person interdicted, to reduce any voluntary Disposition thereupon, albeit they had no special Title to the Interdiction, but had only apprised the Lands of the person Interdicted cum omni jure, and albeit there was an anterior Appryzer▪ the benefit of the Interdiction was found appropriate to neither, but common to both, February 20. 1666. Lord Saltoun contra Laird of Park and Rothemay. Interdiction was found not to have any effect as to Movables, or personal Execution by may of Exception without Reduction, june 20. 1671. Crawfoord contra Hallyburtoun. INTERRUPTION of the Prescription of a common Pasturage was found sufficient by turning off the Parties cattle, without necessity to allege an instrument of Interruption, or keeping them off for a long time together▪ November 14. 1662. Nicolson contra Laird of Balbirnie. Interruption of a possessory judgement, hinders the beginning of a new possessory judgement by seven years' Possession after interruption until prescription, july 22. 1664. Montgomery contra Hume. The like of Decennalis & Tri●nnalis Possession, june 28. 1666. Laird of Phillorth contra Lord Frazer. Interruption by a Summons of Reduction and Citation thereupon was Sustained, albeit the Reasons of Reduction were not filled up within the 40. years, seeing the Reduction was upon Minority and Lesion, which was insinuate by the interest libelled ab initio. viz. That the Pursuer as Heir to his Sister had good Interest to reduce all deeds done to her enorm lesion, july 14. 1669. Earl of Marischal contra Leith of White●augh. Interruption was Sustained by a Citation only at the Mercat Cross, proceeding upon a Warrant to cite at the Mercat Cross, quia non fuit ●utus accessus, which was neither true not instructed, but pas● by Bill of course amongst the common Bills, and the Executions did not bear a Copy le●t at the Cross, the Pursuer adding that to the Execution, july 6. 1671. Mcbrae contra Lord M●d●nald. Interruption was Sustained by a second Summons▪ though the first Summons should be found nul●, and though the Citation was only a day before the forty years complete, Ibidem. INTIMATION of a Right of Reversion was found not necessary, where he that had the Right was Infe●t therein, albeit he used no Diligence, and which preferred him to a posterior assignee, although Redeeming first and possessing, November 1●. 1664. Guthri● contra Laird of Sornbeg▪ INTROMISSION being by many persons promiscuous, was found not to oblige them in solidum▪ but equally prorata, unless a greater part were proven against them, though the Intromission was vicious and had been a Spuilzie▪ but not pursued within three years, january 17● 1667. Captain Strachan contra Morison. Intromission being proven by clear and pregnant Testimonies of Witnesses, though not in Litiscon●esta●ion, but to remain in 〈◊〉, no contrary probation was admitted even ex officio, to prove that others did Intromet, although Tacks and Wodsets granted to them were produced, and the Possession and Intromission conform▪ was offered to be proven, and though the Intromission was more than 40. years since, in respect the alleadgeance was founded super jure ter●ij▪ the Alleadger showing no Right to the Wodsets, or how the same were satisfied▪ and the intromission being proven by removing the common Author, and entering to the Natural Possession by 〈◊〉▪ january ●●. 1671. Kello contra Kin●●●. ●VS MARITI was found to carry the Right of a sum assigned to a Wife while she was clad with ● Husband▪ without necessity to instruct that it was also intimate before his death, january 20. 1663. Scot contra Dickson. Ius mariti was found not to carry the Right to a Provision granted by the Father to the Daughter▪ bearing and Annualrent, though but five per c●nt, the Term of payment of the Annualrent being passed before the Marriage, june 28. 1665. 〈◊〉 contra Edgar. Ius mariti being Renunced▪ was found not to take away the Husband's power of ordering his Family▪ and disposing of duties appointed by the Wife of her former jointure for the use of their Families jointly, which was not found to give the Wife a distinct ●●●are of it, or a power to manage it, but to enjoy her share under the Husband's mannadgement, February. 1667. Ratho and Co●●ng●oun contra Tenants of Infertile and Lady C●llingtoun. Ius mariti was found to be a Legal Assignation, and being complete with the Marriage, a voluntar Right by the Wife of the same da●e, with a Tack relating to the Agreement of Marriage granted by the Wife to her second Son● leaving nothing to her Husband, was found excluded thereby, as not being intimate before the Marriage, and being fraudulent in the Wife, and null even against her Son, though not partaker of the fraud, not being an Acquirer for an onerous Cause, in so far as might prejudge the Husband, December 18. 1667. Auchin●eck contra Williamson and Gillespie. IUS SUPERVENIENS etc. was extended to any Right real accrescing to the Here●or by one who had Right from the Usurpers, though that Right be fallen, seeing it was consequent on the true Here●ors Right, as obtaining Improbation of other Rights, july 13. 1664. Earl of Lawderda●● contra Wolmet. Ius superven●ens authori accrescit successori, was found not to hold where there does not appear a full equivalent Cause onerous of the Successors Right, or absolute Warrandice, here the first Right was Reduced, and the new Right▪ but personal to the Mails and Duties till such a sum were satisfied, july 19 1664. Dowglas and Longformacus her Spouse contra Laird of Wedderburn. Ius superveniens authori accrescens successori, was found to make a gi●t of Ward to the behoof of the Superior accresce to the Vassal, to whom he was bound in absolute Warrandice, they paying a part of the expense, February 15. 1665. Boyd of Pinkill contra Tenants of Cars●leu●●. Ius superveniens authori accrescens successori▪ was found to have their effects that a Tack for a small duty granted for sums of Money with absolute warrandice, was not prejudged, because the ●etter was not then Infeft, nor excluded by a posterior heritable Disposition of the Lands, albeit the Author's supervenient Right was procured by the Acquirer of the said Disposition, who infeft his author and himself, both of the same date, and who alleged that his Authors Right being procured by him, could not accresce to the Tack●●man in his prejudice, june 21. 1671. Nei●son contra Menzeis of Enoch. IUS TERTII was found to exclude an exception upon on Assignation intimate to the Debtor, and a Decreet thereon, seeing there was no payment, but granting Suspension without▪ Caution or Consignation, that the parties might dispute their Rights, june 16. 1665. Bruce contra Earl of Mor●oun. ●us tertii was found not to hinder an Appryzer to quarrel another Appryzers Right as wanting an Assignation to the debt on which the apprizing proceeded, albeit he had no Right from that Cedent, nor any other interest but to exclude the apprizing as informal▪ albeit that Cedents Heir had renewed the Assignation, and declared that there was a prior Assignation by his Father, and that his Right was in Trust, july 22. 1668. johnstoun of Shee●s contra Arnold. THE KING'S PALACE of H●ly-rude-house was found to be exempted from the Regality of Brughtoun, and in the Royalty, and Citations against Parties residing there at the Cross of Edinburgh, were Sustained, january 11. 1662. Lady Carnagie contra Lord Cranburn. KNOWLEDGE though private hinders bonae fidei possessor lucrari fructus, November 20. 166●. Children of Wolmet contra Lady Wolmet and Dankeith her Husband. LAW of Scotland only Regulates Succession of Scotsmen, as to their Lands and Goods in Scotland, though they reside and 〈◊〉 abroad, and no nuncupative Testament there can exclude the nearest of kin h●re, january 19 1665. Schaw contra 〈◊〉. The Law of England was found to reach the manner of probation of a Bond made there by an Englishman to a Scots-man residing 〈◊〉, after the st●le of England, and that payment to the Cedent was probable by the Cedents Oath, and payment also probable by Witnesses, june 28. 1666. Mom●rlane contra Lord Melvil. Yet a Bond by a Scots-man to an Englishman in England, after the stile of Scotland, Registrable there, was found Regulate by the Law of Scotland, and no● taken away by Witnesses Ibidem. A LEGACY of an heritable Right was found null, though in le●ge poustie, February 21. 1663. Wardlaw contra Frazer of Kilmundie. A Legacy le●t of 600. merk●, and in part thereof the Executors ordained to Discharge or give Back-bond of 200. marks due to the Testatrix, which Bond was found to belong ●o the Husband jure mariti, and that being Movable, the Wife had but her half of it, yet the Lords found that the Executors ought to make it up● to the Legata● as l●g●tum rei aliena scienter legat●, for that being a palpable principle in Law, they could not excuse the Wife's ignorance therein, june 16▪ 1664. Murray contra Executors of Rutherfoord. A Legacy being special, was found not to be abated proportionally with ordinary Legacies in case they exceed the Deed's part, july 21. 1665. Spr●●l contra Murray. A Legacy of a Bond in special was sustained▪ though the Executor had an Assignation thereto from the Defunct▪ seeing the same Legacy might be made up of the 〈◊〉 Gear, as being l●gatum rei alien●, seeing it was presumed that the Defunct remembered his own Assignation, june 24, 1664. Fal●●n●r contra Mcd●wgal. LICENCE to pursue was sustained without Confirmation, though granted after the principal Testament was Confirmed, being to a Creditor, Iune ●0, 1665. Stevinson contra Crawfoord. Licence to pursue was sustained after Confirmation of the principal Testament and before Confirmation of Datives ad ommissa, February 21. 166●. Scot of Cl●rkingto●n contra Lady Cl●rkingtoun. AFTER LI●ISCONTESTATION Alleadgeances instantly verified are receivable, june 24. 1663. Bruce contr● Laird of Str●●chan. Litiscont●●●ation being made before the Commissars at a party's instance as Factor, it was found relevant against that party pursuing as Executor Creditor, being instantly verified, February 10. 1663. Crawfoord contra Creditors of Inglis. LOCUS PENITENTIAE was found to have no place in an agreement to take a les● sum, it being as pacts lib●ratori●m, though writ was not interposed, others of the parties Transactors having paid conform, December 12. 1661. H●pburn contra Hamilt●●n of Orbi●●●um. The like in restricting an annualrent to a part of the Lands ●ffected, February ●. 1666. 〈◊〉 contr● Hunter and Tenants of Camb●. Locus 〈◊〉 was found competent to one who had bought Lands, though he had written that he thought he could not be able to keep the Bargain and furnish the Money, yet subjoined that he would not pass from the communing, and albeit he had received the Key● of the House, seeing there was neither Minute nor other W●●t drawn up ●h●reupon, january 28. 1663. M●ntgomry of Sk●lmorly contra Brown. THE LORDS Sallatles, or the Pensions of the King are not arrestable, conform to a Letter of the Kings and Act of Sederunt, February 8. 1662. contra Murray. The Lords found themselves competent to judge the Nullities of the Decreets of the Commission for Plantation of Kirks, which wer● visible and instantly v●rified, and needed no Reduction, as that a Decreet against an Heretor not called was null, january 16. 1663. Earl of Roxburgh contra Kinn●●r. The Lords found themselves competent to judge upon the justice General's Decreet for Assythment, which hath but a civil effect for damnage, December 16. 1664. Inns contra Forb●s of Tolq●●●n●. The Lords gave warrant Summarily upon Supplication to take the person of a Bankrupt, who was unexpectedly and fraudfully fled, Nov●mb●r 30. 1665. Creditors of Masson Supplicants. The Lords albeit they are not judges in Causes Criminal, yet they found themselves co●petent to Advocate a Criminal Cause of Theft, but upon the old Act of Parliament of King Iam●s the second, from ● Sheriff to the justice General, February 21. 1●66 contra Sheri●● of Inv●rn●ss●. The Lords deposed a Writer to 〈◊〉 ●igne● for inserting an Article for possessing a party in Letters of Horning, having no warrant for the said Article, Ianuary ●. 1669. Zeaman contra Monreiff. The Lords upon a Bill for Horning upon Excommunication allowed the party Excommunicate 〈◊〉 object against the Grounds of Excommunication, who having founded upon an appeal to the King and Council, The Lord● having had an account from the Council, that they had Remitted that matter to the bishop, did pass the Ho●●ing, july 6. 1670. Archbishop and Presbytery of St. Andr●w● contra Pittill●. LUCRATIVE SUCCESSOR was not inferred by a Disposition and Infeftment to the behoof of the appearand He●r▪ but only in so far as was Lucrative 〈◊〉 valor●m, january 14. 1662., Harper contra Hume of ●landergast. Lucrative Successor was not inferred by a Disposition by an Uncle to his Nephew the Brother being alive, who was not found alioqui successurus, as in the case of an Oye, November 22. 166●. Sc●● co●tra B●ss●wel of Auchinleck. Lucrative Successor was inferred by an Assignation of an heritable Bond by ● Father to his eldest Son, who would have succeeded him as Heir therein, and that the same was not alike with Bonds of Provision, wherein in Father 〈◊〉 only Debtor to the Son, D●c●mb●r ●. 1665. Edgar contra Colvil. Lucrative Successor was not inferred by accepting of a Tocher, yet so as if the Tocher were exorbitant, both Husband and Wife were found liable to the Father's Creditors for what was above a competent Tocher, December 23. 1665. Burnet contra Lepers. LIFE being presumed, was taken off by the Parties being ●●. years out of the Country, and commonly ●olden an● 〈…〉 There wa● also a Letter produced by a 〈◊〉 in the Wa●▪ bearing that the party was dead, February. 18. 1670. Lowry contra Drummond. LIFERENTERS of an annuaIrent wa● found jyable for public burden with the 〈◊〉, albeit the Act 164●▪ thereanent was Rescinded as being due in jure, june 18. 166● Fleming contra Gillies. A Li●erenter being Infeft in a Liferent of Lands come m●ll●ndini●, was found to have right to a Miln builded thereafter upon the Land by her Husband, but not to the abstracted Multures of his Lands, except the Liferent Lands, February 16. 1666. Lady Otter contra Laird of Otter. A Liferenter being by her Contract infeft in Lands, obliged to be worth such a Rent besides Teinds and Fe●-duties, or at her option, the heir was obliged to accept a Tack of the Lands for the like sum of free Rent (by free Rent) was not only understood free of Feu and Teind Duty, as is expressed in the first part of the Clause, but free of the ordinary public burdens, viz. Taxation, but not of extraordinary public burdens, such as Cess, but in so far as the Tenants relieved the Heretors, February, 22. 1670. Countess of Cassils' contra Earl of Cas●ils. A Liferenter of a Miln surviving Martinmas, her Executors were found to have Right to the whole years ●ent of the Mil●●, in the same way as if it had been Ferm of Lands, and that the Legal Terms thereof were Whi●sunday and Martinmass, albeit the Milns Rent was payable in Money, and that the first conventional Terms payment thereof was at Candlesmass after the separation of each Cropped, and the second, Whitsonday thereafter, and that the Miln Rent was not to be accounted as House-mails, july 20, 1671. Guthri● contra Laird of Mck●rstoun. A Liferenter was found to have Right to the Cro●t of Lands Laboured by her, without payment of any Rent therefore, albe●t she died in April, and neither survived Whitsonday nor Mart●mass● july 25. 1671. Inter cosdem. LIFRENT ESCHEAT of a Wodsetter affects the sum of the Wodset, which being consigned and the Lands Redeemed was ordained to be given up to be Employed de novo to the Redeemer in Fee, and to the Donatar in Liferent, june 29. 1661. Tailzifer contr● Maxiou● and Cunning●ame. Liferent Escheat is complete by Rebellion year and day unrelaxed, and no apprizing led thereafter will prejudge the same, albeit it be before Declarator Ibid●m. Liferent Escheat was found preferable to a base Infeftment, anterior to the Rebellion, not having attained possession in cursu R●b●llionis February 21. 1667. Mil●● contra Clerkson. Liferent Escheat was excluded by the Superiors consent to a Wodset of the Rebel's Land of the same date with the Donatars Gift, seeing the Wodsetter was in Possession, and needed no Declarator, june 19 1669. Scot contra Langtoun. The Liferent Escheat of a Vassal was found 〈◊〉 fall and affect the Ground against the Appryzer thereof, and that the Charge ●gainst the Superior did not so denude the Vassal as to evacuat his Liferent, without disputing whether the Superior was in the fault in not obeying the Charge, june 2●. 1669. D●wglas contra Li●k. Liferent escheat of an annualrenter was found to Exclude an Appryzer of the Annualrent, whereupon there was neither Infeftment or lawful Charge▪ as to the years post cursum R●b●llionis, February 23. 1671. Lord justice Clerk contra Fair●olm. THE LYON was found competent judge to the deprivation of Messengers, and to the Penalties contained in their Bonds of Caution, both against themselves and their Cau●ioners, but not as to the damnage of Party's, either as to the Messenger or Cautioner, February 13. 166●. G●●●son contra M●●lrey Messenger. The same june 27. 167●. H●ri●●● contra C●rb●●. MAGISTRATES were found liable for the debts of a Rebel Incarcerate by Act of Warding escaping, without necessity of calling that person against whom there was De●reet standing, February 7. 1662. B●nnar contra Fouli●. Magistrates were found liable for the debt of a Rebel escaping, though in the time of Richard the Usurper, being before any other Authority was set up, and was not e●●ded because he escaped out at the Roo● of the Tolbooth and brok● it, that being in day light, November ●3. 1664. Hay contra Magistrates of Elgin. A Magistrate, viz. a Sheriff pursued for the debt of a Rebel escaping, was assoilzied because the Rebel escaped Vi 〈◊〉, having wounded these who assisted the Sherist, D●cember 2. 1664. Wilson contra Hum● of Linthil. Magistrates were not found liable for the debt of a Rebel escaping Vi ma●or●, though it was in the Night, and that the Prison Door was opened to let in the Rebel's Supper at the ordinary time, january 25. 1665. Baird contra Magistrates of Elgin. Magistrates were found liable for the debt of a Rebel escaping though he had taken the benefit of the Act of Debtor and Creditor, seeing at his Incarceration he show not his attest of taking thereof and paying his annualrent conform, February 17. 1665. 〈◊〉 contra Magistrates of Elgin. Magistrates were ●ound Lib●ra●e ●●m the deb●● of a Rebel whom they were charged to take, being charged in the Night, and while they were ordering the quarters of the Army, and offering the Towns Officers to concur, and now offering to put the Rebel in Prison in as good case as he was then, which was sustained jointly, albeit the Rebel was in the same House, and did Deforce the Messenger, wherein some of the Town Officers were assistant, but without Warrant, Iune ●3. 1661. Antrobus contra Anderson Provost of Glasgow. A Magistrate Elected Bailli● of a Burgh, Charged on General Letters to accept and exerce the Office, was liberate in respect of the Act of Burrows, that none shall continue in Office above two years, which time he had been bailie, The Reason was found Relevant; january 2. 1668. Wilson contra Magistrates of Queensferry. Magistrates suffering a Rebel to escape, and being discerned for the debt thereupon and paying, and taking Assignation to the debt, were found to have no recourse against the Rebels Ca●tioners, who if they had been distressed by the Creditors, would have had Recourse against the Magistrates, who were liable not only of the Creditor, but to all others having interest ex damno & delicto, and they as Cautioners were interessed that the principal should not escape, seeing his continuing might obtain their Liberation by his payment, but the ca●e was not debated whether the Magistra●e might not pursue the principal Debtor who ●●caped and was chiefly in delicto, and they but accessary, january 24. 1668. Magistrates of contra the Earl of Find●atour. Magistrates of a Burgh were discerned for the debt of a Rebel escaping, though they were not Magistrates the time of his escape, and without necessity to discuss these who were then Magistrates as being in the fault, but prejudice to the Town and present Magistrates, to pursue them ●s accords, january 31. 1668. Paplaw contra Town of Edinburgh. Magistrates of a Burgh of Regality were found liable for a sum where they refused to receive a party taken by Caption, albeit they had no Provost nor common Good, no● were not in use to incarcerate, in respect of the Act 1597. cap. 273. Here the Burgh had a convenient Prison, and the Rebel dwelled in their Burgh, july 7. 1668. Hamiltoun contra Callender. Magistrates were found liable for the debt of a Rebel whom they were required to take, and did not, being within their jurisdiction and the House designed, and they charged by the Messenger, who offered to go in before them, which they were found obliged instantly to do, without waiting to conveen the Neighbours, unless they had been keeped out, or repusled v● major's, july 2. 1669. Farquhar contra Magistrates of Elg●●. Magistrates of the head Burgh of a Stevartrie were found liable for the debt of a Rebel escaping out of the Prison, without disputing whether burgh's within Stevartries, not being Royal Burrows, were obliged to receive Prisoners▪ seeing they had actually received this Prisoner, but their keeping him in a private house ten days, while a Treaty was continued with the Creditor, was found not to infer disobedience of the charge, or payment of the debt, june 8. 1670. Cheap contra Magistrates of Faulkland. Magistrates were not found liable for the debt of a Rebel escaping, who was arrested in their Tolbooth, but the arrestment was not formal, and whereas it bear that upon Caption, the Messenger came to the Tolbooth and comm●nded the Prisoner to continue in Prison, as being arrested for that debt, and that in presence of the jailor, and that intimation was made to the Magistrates, seeing the intimation to the Magistrates was altogether improven, and the arrestment in presence of the jailor contained three Witnesses whereof one affirmed, and the other denied, and a third was dead, and the Messenger was then Excommunicate for Crimes, june 18. 1670. Hay contra Magistrates of Elgin. Magistrates were found liable for the debt of a Rebel escaping out of their Tolbooth, albeit the Tolbooth had ●our locked Doors without one another, and that the Rebel had gotten in some Mason's Tools, and broken up all the Doors in the Night, seeing they had not Chains, and Bonds locked upon the ou●er sides of the Doors, to which the Rebel could not reac●, albeit their custom was very ancient to put on Cat-bonds only upon Prisoners imprisoned for Crimes, February 11. 1671. Will contra Town of Kirkald●●. Magistrates were not found liable for the debt of a Person Incarcerate in their Tolbooth, whom they had suffered to go free up and down their Streets several times, whereupon the Creditor took Instruments and Protestation, seeing the suffering the Prisoner to go out was necessary to mendicat his Bread, being altogether indigent, and that he went once to the burial of a Child of his own, and that he continued in Prison and died there, February 14. 1671. Bain contra Bailies of Culross. Magistrates were not found liable for the debt of a Rebel whom they suffered to come out of Prison with a Guard to go to the Kirk or to the Fields for health, or any other necessary cause, as to time past, in regard of their common custom so to do, but that in time coming they should let none go out except upon great hazard by sickness, and upon Testificates upon Oath, and when other application could not sa●ely and timeously be made to the Council or Session, june 14. 1671. Town of Breichen contra Town of Dundee. MANDATE or Warrant of a Servant taking off Furniture from a Marchand for his Master, and giving his receipt, and bearing that he had received▪ such Furniture in Name of his Master and for his use, was found not to oblige the Servant to pay, nor yet to instruct that he had warrant, but t●e warrant was presumed as known to the Merchant, unless it were proven that the Servant did otherways employ the Furnishing than to his Master's use, and specially in the case where the Master was dead long ago, November 17. 1665. How●eson contra Cockburn. Vide Command. Vide Wi●e, February 4. 1665. Paterson contra Pringle. IN MAILS AND DUTIES the not calling of the De●enders Master was not ●ound Relevant as in a Removing, nor may the Tenants allege peremptorly on their Masters Right, which is jus terti●, but they should have intimate to him to compear for himself, and they may yet Suspend on double poinding, and call the Party and their Master, june 10. 1665. Hume contra In the Mails and Duties of a House, the damnage sustained by the Tennent, by the fall of a Neighbouring house was found to be allowed, january 2. 1667. Hamiltoun contra MAINTENANCE of August and September 1650. being destinate for the provision of the Army, and assigned to these who advanced the provisions, they were not found to be excluded by any subsequent quarterings, july 27. 1665. Rae contra Heretors of Clackmannan. Vide Devastation, here singular Successors were not liberate, july 28. 1665. Inter eosdem. The Maintenance appointed to be uplifted by Bogie by the Act of Parliament 1661. which excepts singular Successors who bought the Lands, was found not to extend to an appearand Heir who brooks by an apprizing, which as to him is Redeemable within ten years for what he paid for it, here it was not alleged that the paid sums equivalent to the worth February 8. 1668. Weyms contra Laird of T●lquhon. Renewed january 20. 1669. Inter eosdem. The Maintenance 1648. to be uplifted by Bogie, was found not to extend to these who had exemption upon consideration of burning by the King and Parliament, 1651▪ though that Parliament was Rescinded; and though all exemptions were excluded by Bogies Commission, seeing by the Act Rescissory private Rights done by that Authority were excepted, july 21. 1668. Weyms contra Campbel of Edenample. Maintenance for the year 1648. was found to burden Lands though they were now in the ●ands of singular Successors, who had acquired the time of the Act, Ia●uary 23. 1669. Weyms contra Frazer of To●lie. MARRIAGE pursued by a Donatar was not excluded because the Pursuer instructed not that the Lands held of that Superior, nor held Ward, seeing he disclaimed not, nor by the Superiors Subscribing Witness in the Vassals Contract of Marriage after the Donatars Gift; it was also found that the Marriage might be pursued both Realiter & personaliter against the Vassal to pay, February 25. 1662. Arbuthnet of Fiddes contra Keith. Marriage being discerned by the Commissar to be solemnised upon a Bond granted by a Man to a Woman, bearing a Child to be gotten under promise of Marriage, and it being alleged that the Woman had been unchaste since, which as it would annul, so much more hinde● the Solemnisation of the Marriage, and it being alleged that the Child born after was presumed to be the same man's who got the first, and so obliged to solemnize the Marriage, The Lords found the presumption held not where there was no formal Marriage, and so the Woman behoved to prove the second Child to be this man's, january 31. 1665. Barclay contra Baptie. Marriage of an Heir was ●ound due as to the single avail, albeit the Heir was Married before his Predecessors death by a fraudulent precipitation to exclude the Superior from the Marriage, he being Married when his Predecessor was moribundus without previous Treaty or Proclamation, the Predecessor dying within some ●ew ●ays, and showing no other sufficient cause of the said precipitation but to exclude the Superior; here were adduced the Testimonies of Skeins explications upon Quonia● atachiamenta de maritagio, bearing that this was praxis for● in his time, and expressing three Decisions thereof, February 20. 1667. Lord Thesau●er and Lord Advocate contra Lord Colv●●. Marriage, vide Contract. Vide Clause, December 20. 1664. Young contra Buchannan. MELIORATION of a Liferenters' House by her was ●ound to oblige the Feear after her death in quantum Itucr●s est by a better Rent, February 23. 1665. jack contra Pollock and Rutherfoord. IN MERCHANTS ACCOUNTS taken off by persons entrusted, and converted to the persons use, was ●ound to make them liable to the Merchand, unless the party prove that they p●yed the price to the Party entrusted, but if they knew the per●on entrusted took off the Ware, not on their own Credit and Name but the Constituents and from what Merchant, than they should have called for the Merchants Discharge, else though they paid the person entrusted if they paid not the Merchant, it is on their peril who knew the Merchant's interest, but not so when they paid and knew not who was Merchant, or in whose Name and Credit the Ware was taken off, February 20. 1669. Bruce Merchant contra Laird and Lady Stanhope. METUS CAUSA was found Relevant thus, That a Wife show her unwillingness at the subscribing by the Witnesses insert and other Witnesses, and that the Husband was a fierce man accustomed to be●t her, and that he did particularly threaten her to consent to quite a part of her Liferent, june 24. 1664. Woodhead contra Nairn. Metus was sustained to take away a Bond given for fear of Caption, the Party being sick when he was taken Prisoner, june 22. 1667. More contra Stevart of Shambelly. A MILN being built by a Husband upon his Wife's Liferent Lands, wherein she was Infeft cum ●olendinis in the ten●●dar, was found to belong to the Wife for her Liferent u●e, but not any Thirl Mul●ures of others of the Defuncts Lands, February 16. 1666. Laird of Otter contra A Miln once going 28. house's may not be Demolished as novum opus, via fact● being a Common-good; but by civil interruption & via jur●s, though it was but a walk-miln, june 24. 1667. Hay of Struie contra Fevers. A Miln was found to be in the same condition as Land in relation to Heirs and Executors, Liferenter and Fe●ar, so that the Heretog surviving Whitsonday, his Executor hath the half, and surviving Marti●mas the whole Rent, though the conventional Terms were Candlesmas for the first, and Whitsonday for the second Term, the Entry being at Whitsonday, july 20. 1671▪ Guthrie contra Mckerstoun. A MINISTER'S Stipend by Decreet of Locality was found not to be understood the measure of Linli●hgow, but the mea●ure of the Shire, where the measure was indefinite, and the Stipend not e●ght full Chalders of Victual, and was usually paid by the measure of the Shire 15. years before, june 27. 1669, Minister of Dalrymple contra Earl of Cas●il●. A MINOR was not restored, who gav● a Bond bearing expressly he was Major, unless it were proven the Minor knew he was Minor, or did induce him to insert that Clause, or that by inspection he might have known him Minor, not being near Majority, February 23. 1665. kennedy of Auch●iford●● contra Weir. A Minor during his Minority having obtained Decreet against his Curator to renunce his Office, the Curator was not ●ound liberate thereby, even of omissions after the Decreet, but it being alleged that the Minor was irregular, and had forcibly intrometted with his Rents; The same was sustained pro tanto, july 21. 1664. Scot of Broad-meadows contra Scot of Thirlestoun. A Minors Bond was found null by Exception, because it was not with his Father's consent as lawful Administrator to him, unless it did appear he had an Estate of his own and managed it apart, December 22. 1665. Leslie contra Sinclar of Dun. A Minors Disposition of Land was found v●lide, unless Lesion appeared, though it wanted the authority of a judge, ●hich is only requisite to the Dispositions of Pupils▪ and though the Minor had no Curators, December 13. 1668. Thomson contra Stevinson. A Minor was restored though he wai●ed on the Tolbooth as a student at Law, but was entertained by his Father, and though the Father Subscribed the same Writ, seeing the Son subscribed as Cautioner for him, and so his Authorising was to his own behoof, Dec●mber 5. 1666. Mckenzei contra Fairholm. A Minors Bond having Curators not authorized by them, was found null and extended to a Son, and a Father as lawful Administrator, as Curator to him, and that his Sons Subscribing with him as Cautioner for him or with him for any other principal Conjunctly and severally, was not thereby sufficiently authorised, neither as Cautioner for his Father, nor the other ●orr●i debendi, his obligation as to both being to the Father's behoof, as giving his Father thereby Relief, and so the Son could not be authorized by the Father to the Fathers own behoof, july 25. 1667. Inter eosdem. A mi●or having▪ Transacted with consent of his Curators for a Right and after his majority, having received the Bonds delivered to the Creditors upon the Transaction, and having discharged the Curators as having Faithfully acted, and having in the Curators' Accounts reserved Reduction of that Transaction upon Minority and Lesion which then was raised, was not found thereby excluded from the Reduction, but 〈◊〉 being doubtful whether that Reservation was in the account when it was first Subscribed, the Writer and Witnesses were appointed to be examined ex officio there●nent, january 26. 1671. Car●● contra Cunninghame. MINOR NON TENETUR PLACITARE▪ was found not Relevant in a Recognition, February 19 166●. Lady Carnagy con●ra Lord Cranburn. Minor non tenetur placitare super heredita●● pa●erna was found to have no place where the Father had only a Disposition and was not Infeft, but if his Infeftment were instructed, the Minor was found not obliged to produce ●a●der, or to Dispute the Reason of Reduction, albeit it was not upon priority or Solemnities of the Rights, but super dolo aut me●●, yet the Pursuer was admitted to produce Witnesses for any point of Fact to remain in re●entis, lest they might die medio temp●re, january 31. 1665. Kello contra Pringle and the Laird of W●dderburn. Minor non tenetur placitare was found not to defend a Liferenter, whom the Minor Feear was obliged to warrant, and that her Right being Reduced, did not accresce to the minor Feear, nor did his tolerance defend her Possession, july 5. 1665. Borthwick contra Skein. Minor non tenetur placitare was found valide, though the Reduction was against the Father's Authors Right as not being infeft, january 18. 1667. Chapman contra W●ite. Minor non tenetur placitare super har●d●ta●● paterna, was found not Relevant to stop a Process of Recognition of Ward Bands upon the Vassals alienation of the major part thereof, although the Sub●vassal who was also cited was minor, seeing the Vassal who was major▪ his Right was principally in question, and the Sub-vassal minor, his Right fell in consequence, February 22. 1668. Cochran contra MINORITY AND LESION was found Relevant to Reduce a Woman's Contract of marriage in so far as it came short of the ordinary conditions in ●avours of such persons in their Contracts of marriage, which was not ●ound to annul the provisions of the Lands and Sums to the Heirs of the marriage, which failing the man's Heirs, nor yet to make any portion thereof to return to the Wife in that case, as not being ordinary, but only to rectify the same as to the Wife's loynture, November 22. 1664. M●gil contra Ruthven of Gairn. Minority and Lesion was found only competent by Reduction, and not by Exception or Suspension, june 28. 1665. Ky●e contra sea●oun. Minority and Lesion was not ●lided, because the money was delivered to pretended Curators, who were liable to the minor without discussing the Curators first, seeing they were not in this Process, and the minor hath his option to Reduce against the Creditor, or pursue his Curators and Intrometters, july 2. 1667. Lord Blantire contra Walkinshaw. Minority and Les●on being insisted in by reduction and majority being alleged in defence, neither party was preferred in probation, but Witnesses allowed hinc inde, February 20▪ 1668. farquhar of Towli● contra Gordou●. Minority and Lesion was sustained to Reduce a Disposition by a Wife to her Husband's Brother, though it had been to her Husbands behoove in contemplation of the marriage, seeing there was no remuneratory provision on the Husband's part, and that the legal Terce was not enough, but that the Husband ought to have acquiesced in his jus mariti, as well as the Wife in ●er Terce, or both had mutual provisions, here the Wife was carried away and married without her Friends consent, july 14. 1669. Earl of Marischal contra Keith of Whitehaugh. A MINUTE disponing Lands with part and pertinent, was found to be extended ●o, as to express common pasturage in a Muire possessed therewith the time of the Bargain, February 14. 1668. Borthwick contra Lord Borthwick. A Minute was ex●ended by the Witnesses insert, as to the manner of payment, which was not so expressed therein, january 15. 1666. Cheap contra Philip. A MISSIVE LETTER by a Merchant to a Factor to send home Wine on such another Factor's credit, with whom the Writer not being acquaint, but upon the Factor's account, was found to oblige the Writer and not that third party, unless he had accepted, neither then did it liberate the Writer, but the third party was expromissor, in this the Lords would not take Examination of Merchants what such Letters did import, February 7. 1665. palate Factor at Bordeaux contra Fairholm. A Missive Letter was found to instruct an account of 100 pound sterling received and Furniture sent, albeit it was not holograph nor amongst Merchants, but betwixt noble persons, being for furniture sent from London to the Writer of the Letter, by the other noble person, being then at London, to whom it was written, the said receiver of the Letter making Faith that this was the true Letter that he received from the other, February 28. 1671. Earl of Northesk ●ntra Viscount of Stormont. Missive vide Clause, july 15. 1662. Wauchop contra Laird of Niddrie, etc. A MOTHER was found obliged by the Law to aliment her Children according to her means, they having no means of their own, or any person representing their Father able to aliment them in their Family, but that the Mother was only obliged to aliment them in her Family, d●d not to pay modification for their Education out of her Family▪ albeit they were ●oble persons and the Mother had miscarried, February 23. 1666. Children of the Earl of Buchan▪ contra Countess of Buchan. A Mother taking a Bond to herself in Liferent, and to her Children in Fee▪ was ●ound not to have powe● to alter or assign that Bond to another, as being presumed to be made by her own means, but the same was presumed to be the children's meanest by their Father, though their Mother was not Tu●rix or Curatrix to them, seeing the Bond did not express it to be the Mothers own means, no● reserved a power to the Mo●●er to Dispone, February 18. 1671. Dundas contra the Lairds of Ardros● and ●ouch. MOVABLES being craved to be restored as being the Pursuers, the Libel was not found Relevant, unless he condescended quomodo des●t ●osildire, and instruct the same, and he having condescended that it was by Loan, it was found probable by Witnesses, 〈◊〉 21. 1665. Scot contra Fletcher. In Movables possession presumes a Title, without necessity to instruct the possessors authors Right● without distinction of ordinary moveables or lewels, unless the presumption be elided by ●●onger probation, that such jewels could not have belonged to him that impignorate the same, who neither had them as a Merchand nor leweler, neither did nor could make use of them for his own wearing▪ Dec●mber 12. 1665. Ramsay contra Wilson. Here the first Author Impignorat them by Writ, and immediately ●ent abroad. NEAREST OF KIN surviving the Defunct, Transmit their share of the deads' part to their ●xecutors, and it doth not accres●o●●● the rest of the nearest of kin or to their Executors, February 1●. 166●. ●ell contra Wilkie. IN NONENTRY the full Rent is due from the citation in the general Declarator, and not from the time of the Sentence only 〈◊〉, and accordingly the special Declarator was sustained▪ july 25. 1666. Harper contra his Vassals Idem. june 12. 1673. Faugh contra Lord Balmerin● and Laird Pourie. NOVITER V●NIENS AD NOT ITIAM was sustained to reduce the Circumduction of a Term, upon the Suspenders making Faith that the Writs now produced to prove what was then ●o have been proven, were found out by her, since the Term was Circumduced, june 29. 1665. Norvil contra Suntar. OATH OF A WIFE never to come in the contrary of her Bond granted 〈…〉, was found not to hinder her to allege that the Bond was null ipso jure, February 18. 1662. contra 〈◊〉. Oath of parties being taken, and they deponing upon the Tenor of a Writ and assoilzied thereupon, were discerned thereafter upon production of the same Writ, as not being contrary to the Oath▪ but being only in so far as the Deponent Remembered the Tenor of the Writ, November 23. 1665. Campbel contra Doctor 〈◊〉. The Oath of an author was found competent against a singular Successor in an apprizing, for proving the ●ame satified by intromission, seeing before this Defenders Right the matter was Litigious, and an Act Extracted, referring the intromission to that Author's Oath, july 14. 1666. Sharp contra Glen. OATH OF CALUMNY was found Competent as to one point of a Libel, where the rest was not to be proven by Oath, but in respect there could be no evident difference as to that point betwixt the Oath of Calumny and Verity, and that the point was no ways probable but by the Oath of Verity, the Oath of Calumny thereanent was refused, February 20. 1667. 〈◊〉 contra 〈◊〉. OATH EX OFFICIO ●nent having of Writs, was found to be given, if at any time the Deponent had them, and how he put them away, that it might appear if fraudulently, but not to depone if he knew who had them, as not being proper, November 1●. 1662. Children and Creditors of Bryson. OATH IN LIGHT ● was admitted for proving of Ware in a Pack given in custody, where the keeper opened the same, though he made Inventary before Witnesses by a Bailies Warrant▪ january 3. 1667. Packman contra Bran. OATH QVALIFIED was not sustained importing a compensation, yet the ●ame was admitted to be proven as an Exception at advising of the cause, December 9 1664. Lermont contra R●ssel. AN OBLIGATION by three persons to cause a Minor releave a sum not bearing conjunctly and severally, was found not to oblige every one in solidum, as being for an indivisible Fact, but resulting in a divisible sum, july 16. 1669. Dennistoun contra Semple of Fulwood. OFFER of the remander of a Sum not being special and not being Consigned, was found not to purge a Failzie, December 19 1661. Devar contra Countess of Murray. Offer conditional to pay a su● for a Mother on condition it were at such a time and place, and were made known whether or not it were accepted, was found not obligatory after the Mother's death, unless the condition had been fulfilled then 〈◊〉, june▪ 24. 1664. Allan contra Colner. Offer of Caution to a Wodsetter that he ought to quite possession, or restrict to the Annualrent, was sustained though made at the parties dwelling House, when he was out of the Country, seeing the Act of Parliament did not require that offer to be by Instrument; and though the instrument of offer did not bear a Procuratory to him that made the offer, the said procuratory being now produced, june 16. 1671. Lord Lovi● contra Lord Mcdonald. THE OFFICE of a Commissar Clerk was found no● to be annulled by his absence for a time out of the Country, and being denunced sine crimine, February 6. 1666, Archbishop of Glasgow contra Logan. An Office of a common Servant, viz. a Town Clerk being given ad vitam▪ was found to imply a tacit condition to be also ad culpam, and that such a fault did resolve the same, as was of knowledge and consequence, February 14. 1665. Town of Edinburgh contra Thomson. OVERSEERS were found liable for nothing, if they intrometted not, january 10. 1665. Swintoun contra Norman. PART AND PERTINENT of Lands disponed by a Minute, was found to extend to a common Pasturage in a Muire possessed as pertinent of the Land in the Bargain, and that the Writes upon the extension of the Minute, aught to bear the ●ame expressly, February 14, 1668. Borthwick contra Lord Borthwick. Part and pertinent cum pascuis & pasturn in a Charter given by the King to the Fevars of his Property, was found to carry common pasturage in the Muire of the Barony, which being now possessed 40. years by the Fevars of the Barony, is presumed to have been so at the time of the Charter, being past memory, and that interruptions of any other Right exclusive of this common pasturage, was sufficient to preserve the same, February 15 166●. Laird of Haining contra Tow● of Selkirk. ●art and pertinent was not excluded, albeit an alleadgeance was proponed on an old Sensine of the Lands in question, as being separatum tenementum, the Seasine being ●ound null, and no Title for Prescription, February 15. 1671. Earl of Argile contra Laird of Mcnauchtoun. ALL PARTIES HAVING INTEREST not necessary to be cited at the M●r●at Cross in the Declarator of the Expyring of a Feu ob non solutum 〈◊〉, though the Summons bear warrant for the citation, December 1. 1664. Earl. of S●therland contra Gordoun. PARIOIDE doth not infer Treason as against the Act of Parliament against murder under Trust, which is meaned by paction, in respect of the special Act of Parliament against Parricide, which doth not exclude the Parricides Collaterals, but him and his descendants from the succession of the slain, which therefore cannot belong to the Fisk, january 22. 1663. Zeaman contra Oliphant. PASSING FROM A REASON of Suspension pro loco & tempore, was found not to hinder the proponing of the same against that Decreet, and against an apprizing thereon, the matter being yet illiquid, and a singular Successor in the apprizing▪ june 17. 1664. Laird of Tulli●llan contra 〈◊〉 and Bra●foord. Passing from a Reason of Compensation, and taking up a Writ for instructing thereof, was admitted before Extracting of a Decreet, though the Writ was long in the Chargers hand, not being judicially given up to him, and that another emergent exception might now be admitted, july 14. 1664. Lord Balmerino contra the Creditors of Dick. PAYMENT made before the hand, was found Relevant against a singular Successor, the King's Dona●ar of Forefa●lture, because it was but of one Term, and so accustomed by the Barony to pay at the Entry, and be free at the ●sh, january 7. 1662. Earl of Laud●●dail contra Tenants of Swintoun. Payment made b●na fide to Bai●ns of a Sum by a Disponer in ●avours of these Bairns, was sustained though after Reduction raised, unless a Reason had been Libelled against that which was ordained to be paid to Bairns▪ and shown before payment, july 14. 1662. M●ntgomerie of Mack●ichill contra Wallace. Payment made bona fide to a Procurator, was thought to be Relevant, though the Procuratory should be improven, if therein there did appear no ground suspicion to have put the Debtor in ma●● fide, February 1. 166●. Elphingstoun of Selms contra Lord Rollo and Laird of Niddrie. Payment made by Heretors to Ministers of their Stipends during the time they Preached and before any Process against them, was found to liberate the Heretors, notwithstanding they were outed by the Act of Parliament anent these Minister's who entered since the year 1649▪ and had not gotten Presentation and Collation, whereunto the Heretors ●e●e not obliged t● inquire, seeing the Ministers were suffered to Preach without challenge, February 10. 1666. Collector of the vacant Stipends contra the Heretors of May●ole and Gi●van. Payment made b●na fide was found not to extend to payment made by a Tennent before the time, nor to a Sub-Tenent to the Tennent before the Term, February 5. 1667. Lady Traquair contra Howa●son. Payment made of a Decreet by giving Bond of borrowed money, and taking Discharges of the Decreet, was found no Homologation or Transaction, but that after the party might quarrel both Decreet and Bond in consequence, unless abatement were gotten upon Transaction of the Sum in the Decreet, seeing it was not voluntarly done but upon Caption, I●ly 3. 1668. Rew contra Houstoun. Payment of the Rent of a Shop was sustained, being a Ta●k set by a Father to a Tennent for the annualrent of a sum, though the Father had given a Right to his Son, reserving his own Liferent, seeing he set the Tack as Feear, and though the Son after his death warned only by Chalking the Door, without any other intimation, the Tacks-man was Liberate of the Rent for his Annualrent, as bonae fidei possessor by his Tack, till he was cited on the Sons Right, February 16. 1669. Hamiltoun contra Harper. Payment inferred by consecutive Discharges of all years preceding, was found not effectual where a preceding year was acknowledged ●esting by these, who obtained the discharge, and where the Giver thereof had given a Warrant to a third party to li●t that year to his own behoof, albeit that was not intimate to the Tenants, February 18. 1669. Cockburn and Gilespie her Husband contra St●uar● and the Tenants of Lintoun. Payment being proponed by one pursued as Representing, if he deny not the passive Titles, the Pursuer is liberate from proving thereof, November 6. 1669. Scot of Hartwoodmires Supplicant. Payment of a Tocher contracted by a Wife for herself, was inferred by presumption that she lived twenty two years, and that in his Testament he acknowledged his Tocher was paid, which was not esteemed as legatum liberatio●●s to affect the Deads' part only, but with the presumption did import an absolute Discharge, February 16. 1671. Scot contra Dods. A PENSION secular was ●ound only as an Assignation to Mails and Duties, not to affect the Ground against singular Successors, albeit it bear to be paid out of the readiest Fruits of such Lands, and was clad with possession, December 11. 1662. Clapp●rtoun contra Laird of Ed●em. PERIL of a Hous● sold, and thereafter burnt was found to ●e the buyers, though the Disposition bear an obligement to put the buyer in possession▪ seeing he voluntarly took possession and Rebuilt the House, and paid all the price, December 13. 1667. Hunter contra Wilson. PERSONAL OBLIGATIONS of Appryzers to communicate their apprisings, are not effectual against the Appryzers' singular Successors, july 6. 1661. Telzifer contra Max●oun and Cunningh●me. Personal provision by a Back-bond of the same date with a Feu, bearing that the Fevar might Renunce the Feu when he pleased, was found valide against the singular Successor of the granter of the Feu, seeing it did not alter any thing of the real Right of the Feu, but only the personal obligation in the Feudal Contract, obliging the Fever and his Heirs to pay the Feu-duty▪ yearly, February 12. 1669. Brown contra Sibbald. POSSESSION of stolen Goods by using them in the Pleugh four months, was found not to secure the possessors, but that they might be recovered summarily by the Sheriffs warrant without citation, but if the Possessors did acquire Right by an onerous Title, they were not to be Restored, but prejudice to the Owner to recover the same by Process, yet so as the Sheriffs warrant did exclude from violent profits, july 6. 1671. Strachan● contra Gordouns. POSSESSOR BONAE FIDEI facit fructus consumptos suos, was found not to extend to a Mother, who by several presumptions appeared to have known the Right of her Children, wherein private knowledge was enough, November 20. 1662. Children of Wolmet contra Lady Wolmet and Dankeith her Husband. Possessor bon● fidei, etc. albeit his authors Right was Reduced in Parliament, whereto he having but a Tack needed not be called, and so he had no standing Title, his Tack falling in consequence, seeing nothing was done to interrupt his possession, july 19 1664. Dowglas and Sinclar her Spouse contra Laird of Wedderburn. Possessor bon● fidei, etc. was extended to one who had a second Right to a Reversion, and had first Redeemed and possessed thereby, and was not found liable to the other pursuing upon his prior Right as to bygones before Citation, although he had not acquired the benefit of a possessory judgement by possessing 7. years, November 18. 1664. Guthrie contra Laird of Sornbeg. Possessor bon● fidei, etc. was found not to take effect to one who had obtained a Decreet to Removing, for not payment of ●he duties in absence, and produced not his Infeftment, but 〈◊〉 infeftment of another person of that same Name, which being a fraudulent deed, he could not thereby have a Title cum bona fid●, june 21. 1671. Neilson contra Menzies of Knock. A POSSESSORY ●IVDGEMENT was not sustained upon five or six years' possession, or less than seven years, December 13. 1669. Hamiltoun contra Tenants of Vppersheils and Rowan. A possessory judgement was found not competent upon seven years after interruption, but that the Interruption continued till prescription, july 22. 1664. Montgomerie contra Hume. Here the interruption was by a Decreet of Removing, which gave the other civil possession. A possessory judgement was not admitted against an annualrent, which is debitum fundi, june 25. 1662. Adamf●nt contra Lord Balmerino. A possessory judgement was found not competent to a Wife by her Husband's possession, against another deriving Right from him, the wife's infeftment not being onerous, or upon her Contract, but gratuitous, December 7. 1664. Lady Craig and Green-head her Husband contra Lord Louvre. Possessory judgement is not competent upon Possession of Warrandice Lands against Recourse upon Eviction, which may be without Reduction, january 9 1666. Brown contra Sco●. A possessory ludgement on 7. years' possession was found valide to a party infeft, though entering by the Conjunct feuar as Heir to her who was not F●●ar but Li●erenter, February 20. 1667. Cranstoun contra Wilkison. A possessory judgement was not found competent upon seven years' possession, by virtue of an apprizing, on which there neither followed Infeftment nor Charge against the Superior to Infeft, February 6. 1668. johnstoun contra Erskin. A Possessory judgement upon a public Infeftment, and seven years' possession, was ●ound not Relevant against a Pursuit for Recourse upon Eviction by Infeftment of warrandice, unless there were seven years' Possession after the Eviction, February 20. 1668. Forbes contra Inns. A Possessory judgement was Sustained upon seven years' possession peaceably before intenting of the Cause, albeit there was interruption by Citation before these seven years, and albeit there was ●urceals of justice during the last seven years, and that the Pursuer was Minor, july 15. 166●. Earl of Wintonn contra Gordoun of Letter●urry. A Possessory judgement was sustained on an Infeftment on a voluntary Disposition against an appryzer, who had denunced the Lands before that Disposition, who●e Denunciation was not found to render the matter so litigious as to exclude a possessory judgement by seven years' uninterrupted Possession thereafter, july 17. 1668. Stevart contra Murrayes. poinding OF THE GROUND for an annualrent dehorned was found to take effect, not only against the Master and Tenants therein called, but all others coming in after, though singular Suncessors, and not to be abated by vastation as a Feu-duty, and to have access against the whole, or any part of the Ground, though now belonging to several Heretors, but so as the payer should have Assignation to the debt, and a time to recover relief o●● the rest, neither was the Decreet excluded by 20, or 30. years' possession of a singular Successor as a possessory judgement, june 26. 1662. Adamsons contra Lord Balmerino. Poinding of the Ground was found competent against the apparent Heir of the Granter of the Annualrent, without a Charge to enter Heir, january 2. 1667. Elephant contra Hamiltoun. Poinding of the Ground was sustained on an annualrent, although there was no possession thereon for above seven years without Declarator, and though a posterior appryzer was in possession more than seven years, which was not found to give a possessory judgement against a prior annualrent, january 1. 1668. Old Lady Clerkingtoun and the young Lady. A PRECEPT was ●ound to oblige the Granter thereof, it not being answered, albeit it did not bear value received, seeing it was upon an other Precept, direct to the Drawer of the last precept, and so was an acceptance, january 22. 1667. Findlason contra Lord Cowper. A precept of Seasine upon obedience was found not to hinder the Reduction nor improbation, nor to import acknowledgement of the Defenders Right, February 20 1662. Laird of Mochrome contra Laird of Martoun, Ariol and others. PREMONITION by a Procurator was sustained, though it bear not the Procuratory shown, seeing it bear not it was called for, if it now be shown, or proving by the other party's oath that a procuratory was shown, january 18. 1662. Veatch contra Lyel of Bassendoun. PRESCRIPTION was found only to run from the Term of payment of Bonds not from the date, and that the Interruption by Citation upon the first Summons is sufficient to interrupt, though there was no continuation or second summons, February 17, 1665. Butter contra Grace. Prescription on 40. years' silence was found not effectual against a Wife pursuing the Cautioner for her ●u●band in her Contract of Marriage, obliging to employ a Sum to her in Liferent, quia non val●bat agere, during her Husband's life, who would not concur, and therefore the prescription was counted from his death and yet the other obligement in the same Contract, in favours of the Husband obliging the Wife's Father to pay the Tocher, was found to prescribe from the date, july 5. 1665. Mckie contra Stevart. Prescription was ●ound interrupted by a citation, albeit not so legal but that the Defender might have excluded the pursuit upon informality, especially being in re antiqua, and where the custom of the Regality did not appear, Novem. 25. 1665. White contra Horn. Prescription was ●ound ne●er to extend to exclude any person to serve themselves to any of their predecessors, if no other hath been served before, in which case the Retoure cannot be quarrelled, but within 40. years, if deduced after the year 1617. or if before, than it must be quarrelled within forty years, or else it must prescribe by the general Act of prescription, November 28. 1665. Young contra johnstouns. Prescription by not paying Teind for forty years, was found not to take away the Right of the Teind totally, having been once paid, but only as to years preceding the forty years, February 7. 1666. Earl of Pa●mure contra Parochioners. Prescription non c●rcit contra non valentem agere, which is understood of Actions, which might have attained possession, and not of Declarators or Reductions, February last 1666. Earl of Lauderdail contra Viscount of Oxenfoord. Prescription was found interrupted by a Decreet of poinding the Ground, though therein the Heretor was not Called, july 15. 1666. Sinclar contra Laird of H●rdmanstoun. Prescription of an oblation of a Cautioner, bound conjunctly and severally with the principal, was not inferred by the Creditors not getting payment, or pursuing the Coutioner for forty years, which did not presume he passed from him, but his getting annualrent from the principal within the forty years, was ●ound sufficient to preserve the Bond as to both, December 18. 1667. Gairns contra Arthure. Prescription of a Tack of Teinds not clad with possession for more than 40. years from its date, was ●ound not to annul that Tack, but as to years before possession, and a prorogation of the Tack, was sustained as to times coming, january 19 1669. Earl of Athole contra Laird of Strowan. Prescription was not sustained upon 40. years' uninterrupted possession, and one single Seasine as the Title of prescription, unless according to the Terms of the Act of Parliament singular Successors produce as their Title, not only a Seasine but a Charter or Precept as the warrant thereof, and that universal Successors produce one or more Seasines upon Retoures or Precepts or clare constat continuing and standing together by the space of forty years; which standing together was not understood of standing unreduced, but standing not fallen in the hands of the Superior by Noi●-entry, so that either the obtainer of the Seasine behoved to live after the ●ame and possess 40. years, in which case one Seasine were sufficient; or if he died within the forty years, his Heirs possession were not sufficient by that Seasine, b●t behoved to be renewed, and so to continue Seasines as well as possession for forty years from the beginning of the first Seasine; but no necessity was found to produce the Retour or Precept, where Possession was by Seasines one or more, the Seasines as well as Possession being continued for forty years, February 15. 1671. Earl of Argile contra Laird of M●naughtoun. Prescription of an annualrent constitute indefinitely out of two distinct Tenements, was found not incurred as to the one, in respect of the annualrenters uplifting the whole annualrent out of the other in the same manner, as payment of annualrent by the principal Debtor preserves the obligement of the Cautioners, though they paid no annualrent for forty years, and the Heretor distressed was found to have proportionable relief out of the other Tenement, though both were now in the hands of different singular Successors, and required different Seasines, july 22. 1671. Lord Balmerino contra Hamiltoun of Litle-prestoun. Prescription of annualrent mortified to an Hospital, was sustained by freedom there from forty years without consideration of the pious use, or that the Poor had yearly Overseers chosen, and were not esteemed as Minors, or without any abatement of the time of the Troubles when there could be no Process, june 30. 1671. Beadmen of the Magdalen▪ Chapel contra Drysdail. Prescription of the annualrent of a Bond was elided, because the principal sum was paid to the Feear, and it was sufficient that the annualrent was due within forty years preceding that payment, which annualrent was due to the Executors of a Liferenter this was stopped and altered as to this, that it was not found relevant to preserve the annualrents that were within forty years before the last payment, but that they were within forty years before the intention of the Cause, all annualrents or actual prestations preceding that forty years prescribe, because every years' payment is a several obligation, and that hath no effect as to the rest, the first interlocutor was, july 22. 1671. And the second, February 7. 1672. Blair of Balhead contra Blair of Denhead. PRESUMPTION of allowance was sustained to take away public burdens paid by a Tennent, though his Tack bear to be relieved thereof, and he produce Discharges of his Rent, and also Discharges of public burdens, unless by writ or his Master's Oath he prove they were not allowed, December 2. 1664. Veatch contra Paterson. Presumption that Tickets of public burdens were allowed to Tenants in their Rent, was sustained to elide the Tenants' pursuit thereon for payment thereof, albeit his Tack bear a clause to relieve him of all public burdens, Here the Tennent left the Land several years before the pursuit, and never did any diligence to get these allowed, but it was sustained by the Master's Oath, that these were not allowed, December 20. ●664. Paterson contra Veatch. Presumption of a Wife's Warrant to borrow a small sum and impignorat a Bond therefore, was sustained, she having the Bond in her custody, February 4. 1665. Paterson contra Pringle. PRIVILEGE of burgh's to arrest persons of find Caution of answer as Law will, was found to extend to the Pear of Leith as a part of the Burgh Royal of Edinburgh its privilege, and if done by the Water bailie, but not if in the Burgh of Batony of Leith, or by the Baron bailie, january 18. 1663. Hamiltoun contra Mitchel and Keith. Privilege of Burgh was ●ound not to extend to Incarcerat unfreemen found within their Burgh till they find Caution as Law will, albeit by a former Decreet they were Discerned to desist from Merchandise competent to free Burrows, and that thereby they might only seize upon these Goods by the Act of Parliament, january 30. 1663. Town of Lin●●thgow contra Borrowstounness. PROBATION of immemorial possession or Custom, was not found instructed by a Decreet mentioning a former Decreet wherein the same was proven, unless the Testimonies were extant or produced, December 13, 1664. Bishop of the Isles contra Hamiltoun. Probation of a Disposition being onerous to exclude lucrative Succession and absolvitor thereon in a Process, was not found sufficient as repeated from another Decreet, not being the recent●, except it had been after a long time when Witnesses were dead, and in that case their Testimonies if extant, behoved to be seen again, january 6. 1665. contra Edmonstoun of Carden. Probation of a Defense was admitted partly by Oath what was the Cause of the Bond, and partly by Witnesses, that the condition thereof was contraveened, june 15. 1665. Aikman contra Probation of the Delivery of a great bargain of Victual, was not inferred from the Declaration of a person entrusted by the Debtor to receive it, seeing there was a time limited to obtain his Declaration, after which his condition and trustiness might change, and could not perpetually oblige the Intruster, july 18. 1667. Executors of the Earl of Dirletoun contra Duke of Hamiltoun, Earl of Crawfoord and others. Probation was found to be according to the most pregnant Testimonies, though others Witnessed a greater quantity, this was in a matter old, and in the estimation of ●osse, November 23. 1667. Lord justice Clerk contra Laird of Lambertoun. Probation by one Witness and the Oath of the Pursuer in supplement, in favours of a party who had been absent ●ut of the Country in the King's Service, pursuing for his share of a Ship and Goods against the remnant Owners meddled with by them in Anno 1638. was sustained by the Admiral, but Reduced by the Lords, and the Pursuer ordained to adduce farther probation, February 12. 1668. Captain Strachan contra Morison. PROCESSES' being Dispute to the full in present●a, The Lords by Act of Sederunt, ordained the Clerks not to give up the same, or any Process Dispute at full, though there were no Interlocutor thereon; But ordained it to be keeped till the Dispute were advised and Interlocutor pronounced, june 6. 1665. Town of Edinburgh contra Thomson. PROMISE to relieve a Cautioner who relieved the promisers Goods of poinding, was found not probable by Witnesses, though within an hundred pounds, where the promiser was dead, july 3. 1668. Don●ldson contra Harrower▪ A Promise by a Wife after her Husband's death, never to quarrel a Tack of Liferent Lands which was in Writ for several years, was found to exclude her, and not to be as a verbal Tack valide only for a year, but as pactum de non repugnando, january 8. 1670. Scot contra Murray. A PROTUTOR being an Overseer intrometting with the Pupils Bond●, was found only liable for the whole Bonds received by him, though he uplifted the annualrent of a part of them only, and for the annualrent thereof, but not for any other means or Estate of the Defunct, because there was no antecedent Law or Rule to oblige him, but an Act to Sederunt was ordained to be made and published, that all persons ●edling so in the future should be liable both for intromission and omission as Tutors, june 10. 1665. Swin●oun contra. A PRIZE Ship was found not justly taken, belonging to a Prince holding of the King's Enemies, unless he contribute to the War, january 4. 1667. Harison contra Laird of Lud●uhurn. A Prize Ship was liberate belonging to Neuters, not the King's Enemies nor Allies, albeit carrying Counterband-Goods, unless it were proven that the War was known at the place they ●o●sed from when they loused, and that Acts of Hostility, and declaring Prizes in Neighbouring places was not sufficient without publication of the War, or knowledge thereof, july 23. 1667. jurgan contra Captain Logan. A ●rize Ship was found justly adjudged as carrying Counterband-Goods, albeit a Swedish Sh●p, and by the Swedish Treaty, such Counterband-Goods were allowed to the Swedes, which was only understood, (they being the growth of their own Country) july 27, and 31. 1667. and November 6. 1667. Packman contra Captain Allan. A Prize being taken pursued by two Privateers, was ●ound equally to be divided betwixt both, and not according to the proportion of their Guns, seeing the least and lightest of the Frigates did Seize when the other was at a considerable distance, and his concourse and consortship, though made without consent or special Commission from the Owners, being both in precincts belli and profitable for the security of either party, February 7. 1668. Cuningskie contra Captain Mastertoun. Prise Ships being Questioned as having in them the product of Co●nterband-Goods carried in to the King's Enemies in the same Voyage, from which the Ship was returning, was found not sufficient by the Tenor of the Admiral of Scotland's Commission, bearing Warrant to seize if the product of Counterband-Goods in that Voyage were found, but by the Law and Custom of Nations, and therefore the Lords granted Commission to ●ry the Custom of Holland, France, England and Spain, February 21. 1668. Packman contra Allan. A Prize being taken upon probable grounds, and adjudged by the Admiral, the King's tenth part, and Admiral's fifteenth part, being paid, and the Goods sold, the Decreet of Adjudication being Reduced, the privateer was found liable but for the value that the Goods might have given by rouping, if they had been preserved and sold when and where they were adjudged, February 24. 1668. Captain Mastertoun contra Strangers of O●●end, but the King's 10th part, and Admiral's 15th part, were not allowed. A Prize Ship of Hamburgh taken as carrying Counterband-Goods to the Da●es, after Acts of Hostility betwixt the King and them, was liberate, because she was taken before the Proclamation of the War against the Danes, but the Captain was found to have probable Ground to Seize, and was found only liable for what profit he had made of the Ship and Goods, unless he had been th● culpa by the spoiling or mis-appryzing thereof, February 25. 1668. Merchants of Hamburgh contra Captain Dis●ingtoun. A Prize Ship belonging to the Swedes, was found Warrantably taken, because she was Navigat with Hollanders the King's Enemies, contrary the King's Proclamation of War, albeit they h●d a pass conform to the Swedish Treaty, wherein it is permitted to the Swedes to make use of Hollanders as Masters, he becoming a sworn Burges of their Town, without mention of what Nation the remnant company might be of, February 25. 1668. Owners of the Ship called the Castle of Riga contra Captain Sea●oun. A Prize Ship was found justly adjudged, because a great part of the company were Hollanders, in respect of the King's Proclamation of War, ordaining Ships to be taken that had in them any number of men, or goods belonging to Enemies, albeit the Ship was a Swedish Ship, and had a pass conform to the Swedish Treaty, which bear that such a pass being found there should be no further inquiry in men or goods ●isi gravis suspiti●o subsit, seeing that Treaty bear a liberty to the S●eds to have a Holland's Master becoming a sworn Burges of any Town of Sweden, and had no such privilege for the mariners, june 30. 1668. Paterson contra Captain Anderson. A prize Ship was found justly taken being insisted against on several grounds, as having a number of the King's Enemies the Hollanders Sailors, being only proven to be three, and the company nine, as having been two years with the King's Enemies Merchandizing, but not in the War, and by having a small parcel of Tar, as Counterband in the same Voyage, upon all jointly, the Lords declared but not upon any point alone, july 9 1668. Capta●● Allan contra Parkman. In prize Ships competent and omitted as a particular custom of Scotland, was not sustained against the strangers, but they were found to have the benefit of the Law of Nations, june 15. 1669. Loyson contra Laird of Lud●uhar● and Captain Wilson. A prize Ship declared as carrying Counterband, having on Board Oak cutted at three foot and an half for making Barrels, in respect the Admiral's Commission bear Clapboard as counterband▪ though Testimonies from the Admiralities of England, Holland, and Flanders were produced, that such Timber was not accounted counterband, a great number of the Lords being of a contrary judgement, june 29. 1669. Captain contra A prize Ship being in question, which being alleged to be fraughted from Norway to London with Timber, by the King's proclamation, warranding Ships even of his Enemy's Countries to be employed for bringing Timber for the Rebuilding of London, they getting certificates and passes from the Duke of York, the Ship having on Board 1500. Dails not belonging to the London Merchants, the same was found sufficient to confiscate the Ship and these Dails, but not to confiscate the Cargo belonging to the English Merchands▪ if he could produce a pass conform to the Proclamation and the King's Letter, bearing that he was sufficiently informed that this Ship had a valide pass, and therefore ordering her to be restored, was not found Relevant to liberate the Ship, or Merchants Cargo without production of the pass; but the Letter was understood to be ●alvo jure, not proceeding upon the hearing of parties, albeit the Duke of York did asset that he had formerly given a pass to that Ship, july 13. 1669. Captain Wood contra Ne●lson, here the Skippers Testimony alon● was received to prove against the Owners. A prize Ship being adjudged by the Admiral and the Decreet being quarrelled, because the Skipper had a pass declaring the Ship and Goods wholly belonging to the Swedes the Kings Allies, the pass was conform to the Swedish Treaty, which clears expressly that where such passes are, ●eq●id ampl●s exigatur in bon●, aut homines nullo modo inquiratur, The adjudication was sustained, in respect that the pass by the oath of the Skipper and company was found to be a contrivance, and there was no sufficient probation that the Ship and Goods belonged to the Swedes, and that the Treaty bears si qua gravis susp●●io subsit, that seazure may be made, june 29. 1671. Burrow contra Captain 〈◊〉. A PUPIL'S person was found to be keeped by her Mother who was Widow, till her age of eleven years, and then by a Friend of her Father's side, but not by the Tutor who was nearest to succeed. February 6. 1666▪ Laird of D●ry contra Relict and Daughter of his Brother. RATIHABITION Vide Clause january 9 1663. Mason contra Hunter. RECOGNITION committed by a Defunct's alienation was not stopped upon the privilege of Minority quo minor non tenetur placitare, etc. February 19 1662. Lady Carnagy contra a Lord Cranburn. Recognition was not clided, because as importing ingratitude which is criminal, it was purged with the death of the Committer, but was sustained against his Successor, Ibidem. Recognition was found to be incurred by alienation of Ward Lands, albeit the Seasine taken was without the Acquirers Mandate subscribed, but by a general Mandate out of the Chancellary, seeing it was taken by his Grandfather, giver of the Alienation, and albeit the Disposition bear only (●ailing of the Disponers Heirs of his Body) seeing it had a Warrant for seizing this party de prese●ti nominatim; nor was it reduced upon Minority to annul the Seasine and shun the Recognition, january 30. 1663. Inter eosdem. Recognition was incurred by giving an Infeftment base to a Grand child, not being then alioqui successuru● of Ward Lands, though Taxed Ward, and though granted to Heirs and Assigneys, which was only understood that the Disposion, Charter or Precept before Seasine might be assigned but not after, nor was it respected that the Seasine as not Confirmed was null, nor that it employed a tacit condition that the Superior consented, nor that the Giver was an illiterate person, and the case dubious, here the case was favourable for the Donatar, who was the Disponers eldest Daughter, and who was passed by, and the second Daughter's Heirs, though strangers, were preferred in all, February 5. 1663. Inter eosdem. A Donatar of Recognition granting a Precept to a Vassal in the Lands falling in Recognition, acknowledging that Vassals predecessors Right and his own in the ordinary Terms of a precept of clare constat, albeit the precept did also bear in obedience of Precepts out of the Chancellary, yet the same with the Seasine following thereon, was found to exclude the Donatat and all deriving Right from him thereafter, june 24. 1668. Grace contra Howison and Grace. Recognition was found not to be incurred by an Infeftment taken upon a Tutor's Precept, being no Act of lawful Administration, and done under the Usurpation when Recognitions were not allowed on that ground, july 15. 1669. jack contra lack. Recognition was found not in●erred by a Disposition not subscribed, nor delivered till the granter was on deathbed, and that deathbed was competent by exception against the Recognition, as not being a possessory but a pe●itory judgement, july 20. 1669. Barclay contra Barclay. Recognition was found inferred by Infeftment of Ward Lands, when the Disposition contained a Precept of Seasine and was delivered in liege poustie, without reservation, albeit the Seasine was taken when the Disponer was on deathbed, Ibidem. Recognition was incurred by Alienation of Ward Lands holden of the King, though done when the Superiors consent was not required before the King's Restauration, seeing neither after the Vestal nor Sub-vas●al ●ought Confirmation, not being refused by the King to these who sought it, December 15. 1669. Ma●tland of P●●trichi● contra Gordoun of Geight. In a Recognition the Donatar was found only obliged to produce the King's Gift as his Title, without necessity to instruct that the King was Superior of the Lands Ward, Law presuming these if the contrary be not proven, and a Term was assigned for obtaining the Infeftment to be produced, whereby Recognition was incurred, February 17. 1671. contra M●●ulloch. DECLARATOR OF REDEMPTION was not stopped, because the Reversion was not produced, the Pursuer being an appryzer, and offering to pr●ve by the De●enders oath that it was in his own hand, February 18. 1662. Children of Wolmet contra Ker. Redemption was sustained at the instance of a singular Successor, albeit he showed not the Reversion at the time of the order, nor now, but offered to prove that it was in the defenders own hands, February 14. 1663. Colonel Montgomery contra Halyburton. In a Redemption the sums were not ordained to be given up till a Wodsetters apparent Heir was Infeft as Heir, and that the Declarator without Resignation was not sufficient, February 10. 1665. Campbel contra Bryson. Redemption was sustained upon Consignation of a liquid debt due by the Wodsetter to the Reverset, upon a Clause in the Contract of Wodset, january 2. 1667. H●g contra Hog. REDUCTION of a Retour was found sufficient to reduce a Decreet against the party as Heir, albeit the Decreet was obtained before the Reduction of the Retour, and the obtainer of the decreet was not called to the said Reduction july 24. 1661. Mitchel contra Hutches●n. Reduction of a Decreet upon the Reduction of the Retour, whereupon the Decreet proceeded was sustained, albeit the Obtainer of the Decreet was not called to the Reduction, though after his Decreet as not being a party necessary, Ibidem. Reduction of a Decreet obtained against Infants charged to Enter Heir, was sustained, though not raised inter anno● utiles, seeing it lay over and was not insisted in all that time, since it was not known till anni utiles were passed, july 17 1661. Fleming contra Forrester. Reduction was not found necessary where all was produced that was craved to be annulled, and the rest only in consequence, but that a Libel by Declarator of nullity was competent, February 26. 1662. Viscount of Stormont contra Creditors of Annandail. In a Reduction and improbation, the Defender was allowed to propone his Defences upon the Writs produced by him as sufficient to exclude the Rights produced by the Pursuer before certification contra non producta, without necessity to the De●ender to declare that he would make use of no more writs, December 20. 1662. Laird of Mochrom contra Laird of Martoun and others. In a Reduction of a Valuation no need was found of calling a Wodsetter publicly Infeft, being an improper Wodset, and seeing the Obtainer of the Decreet his Heir having the reversion and possession was called, Iuly ●3. 1664. Earl of Landerdail contra Laird of Wolmet. Reductions take ●away all consequent Rights that need no several Reasons as falling in consequence, albeit the parties interressed therein were not called to the Reduction of the principal right, july 1●. 1664. Dowglas and her Husband contra the Laird of Wedderburn. Reduction of a Decreet of Exoneration was sustained against the Executor without calling the Creditors or Legators, january 11. 1665. Arnot contra Arnot. Reduction of an heritable Right was sustained on an apprizing on the pursuers own Bond assigned to himself and a charge thereon, without Infeftment, and the general Clause thus limited, against all Writs granted by the Pursuer and his Predecessors to whom he doth succeed jure sanguin●s or his authors, whose Rights and Pogresses thereto he produces, or to the Defender or his Predecessors to whom he may succeed jure sangu●nis or his authors, who, or some to represent them are called, january 20. 1665. Little contra Earl of N●thisdail, In a Reduction no Process was sustained for reducing an heritable Right till the Defender● authors were called, though the Pursuer declared he insisted not against that authors right being common author, but against the Defenders right from that author, seeing that author was bound in Warrandice, and therefore behoved to be called, january 30. 1665. Lord Borthwick contra Ker. In a Reduction ex capite inhibitionis, the Defender producing a sufficient Right to exclude the Pursuer, being before the inhibition, the Defender being indigent, the Lords ordained the parties to dispute their Rights as if it had been in a general Reduction, january 2. 1666. Brown contra Wilson, and Callender. Reduction was ●ound to extend to a Term before Sentence February 16. 1666. Borthwick contra Skein. In a Reduction the authors being cal●ed, one dying a●●er conclusion of the Cause, the same was not advised ●il one representing him were called, though the reasons were only against the first authors Right, and ●o the rest would fall in consequence, seeing all were interressed in the Warrandice to Defend the first authors right, july 14. 1666. L●ith contra Lesmore and others. Reduction of a Bond was not sustained against the Creditor who was denuded by Assignation intimate to the Pursuer before the Citation, july 2. 1667. Lord Blantire contra Walk●●●haw. In Reductions of Rights of Lands without improbation, The Lords declared they would grant two Terms to produce, N●vem●er 26. 1667. H●y of Hay●●●un contra Drummond and hepburn. Reduction ex capite inhibitionis, was sustained though the inhibition was only on a Clause of Warrandice, and there was yet no actual distress, only to take effect when the distress should take place as a Declarator of Right, December 10. 1667 ●og contra Countess of Hume. In a Reduction ex capite inhibitionis, the Defender was admitted to exclude the Pursuers Title and Right by other rights 〈◊〉 to the Inhibition, which the Lords would not reserve, but received them by way of Defense, December 11. 1667. Inter eosdem. A Reduction on deathbed was sustained at the instance of the Creditors of the apparent Heir on this interest, that the debts of the apparent Heir might affect the Estate disponed, if the Disposition were Reduced, February 16. 1669. Creditors of my Lord Balmerino and Lord Cowper contra Lady Cowper. Reduction was found necessary to take away a Decreet of Double poinding, and that a second Suspension of Double●poynding ●aised by a party who compeared not in the first instance, was not sufficient, though in Decreets in absence Suspension without Reduction is sufficient, February 4. 1670. Watson contra Sympson. REGALITIES' cannot be prejudged by the Bloodwits or Amerciaments of the justices of Peace within the Regality, but that ●uch only belong to the Lord of ●egality as was ●ound july 22. 1664. Earl of Sutherland contra M●●tosh of C●nadge. Regalities' having Chapel and Chancellary, general services need not be retoured to the King's Chancellary, january 19 1667. Reid contra RELIEF amongst persons bound conjunctly and severally, was found to follow, where one is distressed for all, though there be no clause of relies expressed, Relict of the Minister of Ednem contra Laird of Wedderburn. The like june 19 1662. Wallace contra Forbes. The like june 28. 1665. Mont●ith contra Anderson, Vide Clause, Ibidem. A RELICT was found neither to have share of stock nor Terce of Annualrent of a sum bearing Annualrent without Infeftment, june 24. 1663. S●ry●zeour contra Murrayes. A Relics third of moveables was found not to be abated by the Husband's heritable debts, as bearing annualrent, whether they exceeded the heritable sums due to the Defunct or not, july 19 1664. Inter eosdem. REMOVING cannot be stopped by alleging the De●ender is Tennent by payment of Mails and Duties to such a man who is not warned, unless it be alleged he hath infeftment, or Tacks for Terms to run after the warning, but tacit relocation sufficeth not, january 30. 1663. Rl●●art contra Removing was sustained on a warning on 40. days, albeit the party was out o●f the Country, being now cited upon 60. days, without necessity to warn him by Letters of Supplement on 60. days, February 20. 1666. M●●ra●r contra Crichtoun. Removing was not sustained by a warning made by the Feear before the Liferenters' death, no not to take effect at the next whitsunday without a new warning, june 30. 1669. Agnew contra Tenants of Dronlaw. RENUNCIATION to be heir was admitted, and a Decreet thereupon reduced, obtained against the Renuncer as charged to Enter heir, albeit they had raised no Reduction thereof intra annos utiles, because the Decreet was obtained at the Uncle's instance, in her infancy, and not insisted in within the anni utiles, july 17. 1661. Relict of Fleming contra Forrester. A Renunciation of a Fe● was sustained to liberate the Vassal from the Fe● duty, albeit the Feu was constitute by a mutual Contract obliging the Feear and his heirs to pay the Feu duty yearly, ●eing there was a Back-bond of the same date, that the Fevar might renunce when he pleased, February 12. 1669. Brown contra Sibbald. Renunciation of all Right and interest was found only to extend to all right the Renuncer had, and not to any future right or rights, to which the Renuncer might succeed unless it had been mentioned, july 27. 1671. bailie contra bailie. REPARATION of a Kirk was found in no part to affect the Titular of the Teinds, but the Heretors of the Land only, january 16. 1663. Relict of the Minister of Ednem contra Laird of Wedderburn. Reparation of Manses done by the Incumbents before 1649. was found not to burden the Heretors for t●e value of 1000 marks conform to the Act 1649▪ renewed 1661. but only for 500 marks, which was the Quota before these Acts, and that not against singular Successors, january 8. 1670. Charters contra Parochioners of Currie. REPROBATURES were sustained though not protested for at the Examination of the Witnesses, against whose Testimonies the Reprobature was now used, being protested for before Sentence, july 30. 1668. Laird of Milntoun contra Lady Milntoun. Reprobature was not admitted to be added after a Reduction was filled up and discussed in a Devorce, but reserved to a special Action of Reprobature, February 25. 1669. Inter eosdem. Reprobature for annulling a Decreet of Divorce of the Commissars, was sustained at the instance of one who had bought the Liferent from the Husband, and which would fall back to the Wi●e by the Divorce, who compea●ing before the Commissars to object against the Witnesses, and interrogate th●m was not admitted, and having in a Reduction before the Lords obtained the Witnesses to be reexamined, their own Testimonies of corruption were not admitted to enervate their former Testimonies, but Reprobatures were reserved, and being insisted in, it was not found relevant that they were viles & pauperes, the principal cause being Adultery which is a latent crime, neither that they were infamous by common report, unless they had been declared infamous by a judge, or found culpable of a Crime or Fact, that the Law declares to infer infamy, january 31. 1671. Inter eosdem. Reprobature were found relevant being libelled upon instructing or prompting of Witnesses, without necessity to allege that the Witnesses undertook or deponed conform, and that in odium corrumpentis, without inferring any blemish upon the Witnesses of prompted, who consented not or swoar falsely, Ibidem. Reprobatures were found relevant upon libelling of corrupting of Witnesses, upon giving or promising of good deeds more than would be suitable for their Charges, Ibidem. Reprobatures upon corrupting of Witnesses, by giving or promising bribes, or prompting Witnesses to depone, was ●ound only Probable by writ or oath of the parties who adduced the Witnesses after Decreet, and not by Witnesses, unless the Reprobatures had been pursued before Decreet proceeding upon the Testimonies of the Witnesses quarrelled, this was stopped till the further hearing and was recalled, and Witnesses above exception were found competent whether before or after Sentence, and the Witnesses were ordained to be condescended upon; The first Interlocutor was the 14. of july 1671. and the second the 20th. of February 1672. Inter eosdem. REQVISITION of a sum was sustained though it mentioned not the Procutatory produced, seeing it bear that the same was known to the Nottar and Witnesses, and thereupon the Defunct party did appryze, january 10. 1665. Stevart contra Stevarts. A Requisition was sustained though it bear not a Procuratory produced, seeing it was not called for then, and is now produced, and the Procurator show Writs whereupon the Requisition was to be made, as the Instrument bears, I●ne 28. 1671. Hume contra Lord justice Clerk. A RETOUR was found reduceable without the solemnity of a Summons of Error in Latin calling the Inquest, seeing the point in question was that point of the Brieve, that the party's Grandfather died last Vest and Seized, whereas the Seasine of an Uncle and Father were now produced, which inferred ●o Error in the Inquest, who behoved to serve to the last they saw infeft, and therefore the Lords reduced, july 7. 1663., Mow contra Duchess of Balcleugh. A Retour being called for to be reduced as proceeding without warrant or probation, and nothing being produced but the Brieve, Executions and Service, but no Witnesses having deponed on the propinquity of Blood, and none of the Inquest having declared so on proper knowledge, The Lords would not therefore annul the Service, but ordained the Inquest to be cited, to give their oaths on what ground they served, February 24. 1665. Mercer of Aldie contra Cowan. Retoures of Heirs are not reduceable unless they be quarrelled within 20. years by the special Act Parl. 1617. thereanent, which was only found to relate to Retoures deduced since that Act, but by the general Act of Prescription 1617. the action of Reduction of Retoures quando ecunque deduced, prescribes if not quarrelled within 40. years, November 28. 1665. Young contra johnstouns, Vide Heir. A Retour of five years' possession of a Fo●efaulted person, was not sustained to be Reduced by way of ordinary Action, but by a Summons of Error in Latin under the Quarter-Seal, though such Reduction were oft time● allowed before, june 28. 1667. Hume contra Creditors of Kell●. A REVERSION granted by a person obliging a buyer to dispone to the Seller, was found to extend to the Disponers Heirs, though not expressed, seeing the ordinary Clause of paying the sum in the Disponers own time, was not ad●ected, and it was held but as an omission non dedita opera, that Heirs were not expressed, january 9 1662. Earl of Murray contra Laird of Grant. A Reversion was not ●ound thursdays, not being Registrate before 1617. by the Act 1555. which was found in desuetude, july 5. 1666. Earl of Hume contra his Wodsetters. A Reversion bearing payment at the Wodse●●ers House at London, was ●ound satisfied by Consignation at Edinburgh where his Successor dwelled, February 1. 1667. Creditors of Murray contra Murray. A Reversion to a person and the Heirs of his Body, was found ●ufficient to redeem by that person, albeit he had before assigned the Reversion, and disponed the Land to another, February 1. 1667. Earl of Tillibardin and Sir john Drummo●d contra Murray of Ochter●yre. A RIGHT REAL of Lands was found not burdened with a provision in the Disposition, that the Lands should be affected with such a sum, against an Appryzer or singular Successor, january 25. 1664. Colquhoun contra Adamson; But thereafter this case being considered and the Clause for payment in the Infeftment, the Father who granted it being in possession, it was ●ound relevant against the singular successor till it were performed, November 7. 1606. Inter eosdem. SALMOND FISHING in a River was found not to impede the letting out of a Loch into that River, though hurtful to the fishing as was the Lord's opinion, but because it was a reference from the Parliament, who might make a Law thereanent, The Lords granted Commission to visit before answer, july 1. 1661. Mayor of Bervick contra Laird of Hayning. Salmond fishing by C●uives was found valide by an Infeftment to a Burgh cum piscationibus & piscariis, without special mention of Salmond fishing or Cruives, clad with immemorial possession, and which Cruives the Burgh was suffered to change from one part to another within their own bounds, being without prejudice of the other fishings above, or putting them in worse condition than they were before with the former Cruives, and being but one Cruive Dyke, whereof the Lords would not determine the height, or whether it should be stopped or not, but seeing they possessed immemorially the former Dike, this was to be made conform in all points, and found that the Hecks ought to be three inches wide and not five, and that the Act of King 〈◊〉 the 4th. bearing five, was an Error in relating a former Act of King david's, there being no such Act amongst his Acts, but there being one Act of King Alexander's amongst his Acts for three inches, it was ●ound that that should have been related, as the Rule, and that Saturndays slop should be keeped of all the Cruives, and not of one only in the middle stream by opening an eln in each Cruive, pulling up the Hecks thereof, and that from Saturnday at six a Clock till Monday at Sun rising, and ordained the common custom, to be proven the hinc inde concerning a constant open middle stream, which was not repeated in King, la. 6. his Act; nor had the Lords respect ●o the Ratifications of these Acts purchased in the Parliament 1661. being impetrate by private parties, not Printed or passed the Articles, or done in the stile of a general Law, january 26. 1665. Heretors of Don contra the Town of Aberdene. SATISFACTION of an apprizing, and of the sums whereupon the same proceeded, was admitted by Exception upon what sums the apparent Heir, to whose behoof the right returned paid out therefore, and that by intromission and present offer of what remained after count and reckoning, albeit the pursuit was not upon the apprizing, but a Reduction on an Inhibition upon the Bond whereupon the apprizing proceeded, june 28. 1671. Forbes of Watertoun contra Shein, Vide apprizing. A SEASINE on an apprizing within Burgh was sustained, though not given by the Bailies but by the Provest, nor by the Town Clerk, but by another Nottar, because the Bailies and Clerk were excluded by the English for the Tender, july 3. 1663. Thomson contra Mckitrick. A Seasine not registrate of a Liferent to a Wife, was found valide against the apparent Heir of the Granter, though brooking by a prior Disposition, seeing it contains a power to the Father to dispone and grant annualrents, February 27. 1667. Countess of Carnwath contra Earl of Carnwath. A Seasine propriis manibus of a Husband to a Wife who had no Contract of Marriage nor other provision, and had disponed a former Liferent to the behoof of the Husband, was found a sufficient Title without a warrant or Adminicle in writ, in respect of the Marriage and Duty of the Husband to provide his Wife, june 19 1668. Relict of Garigs contra Wallace of Garigs. A Seasine within Burgh under the Clerk's hand was sustained without necessity to 〈◊〉 it was registrate in the Town Books, in respect of the Exception in the Act anent Registration of Seasines within Burgh not requiring them to be registrate in the Towns Books, june 30. 166●. Bur●et contra Swan. The ●ike though the Seasine was by the Sheriff Clerk, there being no Town Clerk in Office, july 21, 1666. Thomson contra Mcki●rick. A Seasine propri●s manibus, albeit sustained to a Wife without one Adminicle, who had no Contract of Marriage, and had at that time quite her loynture by a former Husband to the Husband's Creditors, yet two of the Witnesses being positive that they were never Witnesses to any Seasine given to her, a third deponing he remembered not, a forth abiding by the Seasine, but deponed it was in Summer, where the Seasine bear in Winter, was improven, though the Nottar offered to abide by it, but the Lords refused to Examine him or any extrinsic Witness, in respect the Seasine had no Warrant in writ, january 9 1669. Wallace of 〈◊〉 contra ●l●kerrel. A Seasine propriis manibus by a Father to his Son, reseving his Father's Liferent, was found valide against a second Wife's Infeftment in the same Lands, though granted for a competent Tocher, albeit the Seasine had but two Witness, and had no Disposition or Precept to Warrant it, but an Adminicle, viz. a Bond by the Father of the same date, obliging him to warrant the Seasine, and that it was not a fraudulent ●atent deed, it being Registrate, nor was it alterable by the Father as a Bairns portion, February 11. 1669. Buchan contra Taits. SERVICE of Harrage and Carriage in a 〈◊〉 was ●ound not due but when demanded within the year, june 27. 1662. Watson contra Eleis. SERVITUDE of Fail and Divot, Clay and Stone granted in a Muire definitely, where there was no pasturage therewith, was found not to hinder the Proprietar of the Muire to Plew and rive out a par●, where there was more le●t than was like to serve the use of the Servitude ●or ever, yet so as if it should happen at any time thereafter not to suffice, a part of that riven out should be laid ●ee for the same purpose, in this, respect was had to the public utility, the whole Muire being otherways improfitable▪ and the restriction was not allowed till the Muire was actually riven out and ploughed, june 21. 1667. Watson contra Fevers of Dunkeir A Servitude of putting over a Miln Damn upon other men's ground was ●ound not constitute without his consent, though he show no detriment to him thereby, june 22. 1667. Hay of Strowi● contra Fevers. A Servitude of common pasturage, though if ordinarily carry Fail and Divot, yet if by custom Fail and Divot be excluded and hindered, it is ●ot excluded, February 15. 1668. Laird of Haining contra Town of Se●kirk. SIMULATION of a Gift of E●cheat was inferred upon the Act of Parliament 1592. because the Rebel was suffered to possess four or five years, in which 〈◊〉 were patent, albeit the Donatar obtained general declarator long before, and was himself a lawful Creditor, and that the Lands were apprised before the Rebellion, seeing the Appryzer possessed not but the Rebel, january 9 1666. Oliphant contra Drummond. Simulation of a gift of Liferent Escheat, was ●ound probable by the Superior and Witnesses insert in the gift their oaths, that it was to the Rebels behoove, june 19 1669. Scot contra Langtoun. Simulation of a gift of Liferent taken by a party who had bought Lands for securing himself, in respect the Sellers Escheat was ●●llen, was not inferred by allowing the Expenses of the Gift in the price of the Land, which the Seller was obliged to warrant, seeing he did not extend the gift any further than to the Lands bought to himself, unless it were proven he knew of the other party competing his Right, that it was perfected before he took the other Disposition of the same Lands, and thereby was particeps fraudis with the Seller who granted double Dispositions, 22. 1669. Hamiltoun of Corsse contra Hamiltoun and Viscount of Frendraught. Simulation of a Gift of Escheat and Liferent was not inferred, because it was granted to the Rebel's Son, who was not in his Family, but had means of his own, nor that the Father continued in possession for sometime after Declarator, nor were the members of Exchequer admitted to prove that the Gift was procured by the Father's means and moyen, seeing the Son gave Back-bond, that being satisfied of the debt in the Horning, his own debt and expenses of the gift, there should be place to the Rebel's Creditor's, and did make Faith at the passing of the Gift, that it was to his own behoof, December 4. 1669. ●●ffrey contra Doctor 〈◊〉. Simulation of a Gi●t of Liferent was inferred from the Rebels obtaining the gift b●ank in the Donatars Name, which being in his hand and delivered to a Creditor for security of a just debt, the same was found null even as to him, December 17. 1670. Langtoun contra Scot, A SINGULAR SUCCESSOR was not found liable for public burdens imposed by Committees of Parliament, Ratified in Parliament, july 13. 1664. Grahame of Hiltoun contra Heretors of Cla●kmannan Shire. SLANDER, Vide Commissaries. IN A SPECIAL DECLARATOR of Escheat▪ the payment of the debt before denunciation, was ●ound relevant upon the Creditors Oath, but Nullity of the Horning upon informality of Process was found not relevant, seeing these purged not the Contempt and Disobedience, in not paying or suspending, February 10. 1663. Montgomrie contra Montgomrie and Lawder; in this case the alleadgea●ce on the Back-bond granted to the Thesaurer by the Donatar, in favours of the Creditors, was not found relevant without a second gift or warrant from the Thesaurer. SP VILZIE was elided by Disposition and Instrument of possession, though it was omnium bonorum, and no natural possession ●ollowed for two years, seeing there was no forcible resistance, january 29. 1662., Irwing contra M●kartnay. In a spuilzie many persons being called as accessary, there being on others whereby the Defender might prove his Defense, The Lords declared if the pursuer insisted against them all, they would ordain him first to insist against the accessories, that such as were assoilzied might be Witnesses, February 24. 1662. Inter eosdem. Spuilzie of Teinds was not elided by their 15, and 17. Acts of Parliament 1633. Declaring the Teinds to be the fifth part of the Rents, and that every Heretor shall have their own Teind until valuation be intented, December 18. 1662. Lord Balmerino contra the Town of Edinburgh. Spuilzie no● being pursued within three years can only be pursued thereafter as wrongous' intromission, and the parties are not liable in solidum, but if all be proven intromettors, they are liable equally, as being all presumed to have equally intrometted, unless the greater intromission of some of them be prove m, january 17. 1668. Strachan contra Morison. A Spuilzie was not elided by a poinding, though one offered to make Faith the Goods were another's then the debtors, not being offered by himself, his Servant, or by his Commission, seeing that party had a Disposition with an instrument of possession, and several Acts alleged o● his natural possession, from whom the Goods were poinded, july 6. 1666. Corbet contra Stirling. Spuilzie of Oxen the Pursuers had in the Pleugh four months was elided, because the Defenders had intrometted with them by an order of the Sheri●●, execute by his Officers, as being stolen Goods, though there was no citation of pa●●ies for obtaining the warrant, which might be summarily used for recovering of Goods, notwithstanding of 4. months peaceable possession, unless with the possession the pursuer should instruct a lawful and onerous Title, as having bought the Oxen in which case Sentence was found necessary before the possessors were dispossessed, Iu●y 7. 1671. Strachans contra Gordouns. STIPENDS of Ministers affect the Teinds as a real burden, and all intrometters even these who buy, as Merchands buying the whole. Teind of a Man's Land for a year▪ so that they cannot pretend payment made to the Heretor bona fide, seeing they should know that real burden, june 24. 1662. Vernor contra Brown. Stipends quoad Intrants were found to divide in two Terms, that the Intrant before Whitsond●y hath ●oth Terms, but after Whitsonday and before Michalmass only one Term, july 24. 1662. Whims contra Cunninghame. Stipends were not found to burden and Heretor where there is a Liferenter living, june 24. 1663. Menzeis contra Laird of Glen●rchie. Stipend of a Minister reponed shortly after Michalmass as having Presentation, Collation and Possession before, and wrongously put out, was found not to prefer him to that years stipend against the lncumbent possessing and serving the Cure 〈◊〉 Michalmas bona fide, july 9 1663. Kirkaldy contra Balcanquel. A Stipend whereto a Stipendiar was presented at Lambass, and served from thence, and was admitted shortly after Michalmass, reached not the whole stipend, but the half, though the Presentation was before Michalmass and the actual service, seeing the Admission was shortly after, june 7. 1664. Hay contra Collector of Vaccand stipends. A stipend was found to affect the whole Teinds unbought where there was not a Locality, and so the Minister might take himself to any Here●or for his whole free Teind, and not pro rata without prejudice to him to pursue for Relief, December 3. 1664. Hutcheson contra Earl of Cas●●ls. A Stipend was found instructed by seven years' possession without any Title in Writ, so as to give a possessory judgement, November 25. 1665. Petrie contra Mitchelson. A stipend was found to belong to a Minister Transported in january, who continued preaching till April, and not to his Successors, who was presented before Whitsonday, but not admitted till L●mbass, none compearing for the Collector of the vaccand stipends, january 26. 1670. Mcqu●en contra Marquis of Dowglass and Purves. STOLEN GOODS were ●ound recoverable by the owner, by warrant from the Sheriff summarily without citation of the possessors, though they had peaceably possessed the goods four months in that pleugh, unless they had acquired possession by an onerous Title, july 7. 1671▪ Strachan● contra Gordoun● and others, Vide Spuilzie. SUBMISSION betwixt Commissars to the Bishop without any determinat Ish, or time determined to be filled up, or blank, but generally referring all controversies that should arise to the Bishop was found valide and not determined by a year, but a Term was affixed to determine what differences are now occurring, February 3. 1669. Bosewel contra Lindsay of Wormis●oun. SUBSTITUTION, Vide Clause. SUCCESSOR LUCRATIVE was not inferred by a Disposition by a Father to a Son having an elder Brother living, or so presumed, as lately before gone out of the Country, and so not then alioqui successurus, February 28. 1662. Hamiltoun contra M●farlane of Kirktoun. Successor lucrative being alleged by a Disposition of Land by a Father to his Son in his contract of Marriage for a Tocher paid to the Father, and debts and Bairns Portions far within the value of the Land, he was not found liable in solidum, nor yet the pursuer put to a Reduction, but the passive Title was sustained personaliter in so far as the onerous Cause was less than the ordinary price at that time, with annualrent since the intenting of the Cause, june 17. 1664. Ly●n of Mu●resk contra 〈◊〉. Successor Lucrative was not inferred by a Disposition, being only to a Nephew, the brother being alive who was not ●ound alioqui successurus, as in the case of an Oye, November 22. 1665. Scot contra Bos●w●l of Auchm●eck, Vide Lucrative Successor. A SUMMONS whereof the Executions appeared visibly new, and the user would not abide by it, was found not to be transferred, but whether an Inhibition raised on that summons, would thereby fall, or if warrant might be granted to use new Executions on that Summons, though year and day was past, and that by special privilege to validate the Inhibition, was not decided, january 12. 1665. Wilson and Callender her Spouse contra Summons not being execute within year and day from the date thereof, no process was sustained thereon, july 22. 1665. Row contra Viscount of Stormont. Summons on an Assignation libelled at the Assignays' instance was not sustained, seeing the date of the Assignation was posterior to the date of the summons, albeit the Cedent concurred, Novemb●r 15. 1666. Ab●rcromb●e contra anderson's. A SUPERIOR not being called to a Cognition of Marches by Arbiters, or legally cited, doth not annul the same, but it is but prejudice to the superior when the Fee shall be in his hand, February 8. 1662. Lord Torphichan contra A Superior by receiving an Appryzer was found not to deerogate from the Right of Ward in the Superior, though he made no reservation, seeing it was a necessary Act for him to receive, july 19 1664. Hospital of Glasgow contra campbel. A Superior bound in absolute warrandice against Ward, having a gift of his own Ward to his own behoof, was found not to distress his Vassals thereby farther than for a proportional part of the composition and expenses, February 15. 1665. Boid of Penkil contra Tenants of Cars●uth A Superior was discerned to receive an Adjudger, though the superior himself had apprised and alleged a better right, but the Infeftment to be salvo jur● 〈◊〉 & s●o, july 4. 1667. Chein contra Christie. A Superior giving a disposition of his Vassals superiority, reserving their property, and which disposition bear that the A●quirer should hold of the superior himself; The said disposition with the Infeftment thereon was found null, as interponing the Acquirer betwixt the superior and his vassal, but was sustained as a gift of Nonentry, in respect it bear an assignation to all the casualties of the superiority, and the general declarator thereon was found to extend to the fe●-duties after citation, january 30. 1671. Dowglas of K●●head contra his Vassal. A Superior being charged to receive an Adjudger, was ●ound to have his option either to receive him for a years rend, or to pay his sums getting assignation to the adjudication, but ●o that the Land should be redeemable from the superior for the sums, principal and annualrent contained in the adjudication, without any sum for composition of Entry, and that the adjudication was in this as an apprizing by the 36. Act King james 3d. june 10. 1671. Scot of Thirl●stane contra Lord Dru●la●rig. SUPERIORITY of Kirk Lands annexed to the Crown Anno 1633. reserving the Feu-duties to the Lords of Erection who consented to the surrender, was ●ound not to be a ground for the Vassal to force the superior to instruct his consent, but that it is presumed, july 27. 1662. Watson contra El●is ●▪ Here Ha●●age and Carriage were excepted to the King. Superiority and property of the same right coming in the same persons by distinct means, and they infeft in the superiority, and supplicating the Lords that they would ordain precepts out of the Chancellary to infeft them in the property, seeing they could not infeft themselves; The Lords thought that they might be either infeft upon the King's precept or their own precept; or both, November 26. 1668. Daughters of Mo●●oun supplicants. IN A SUSPENSION a reason of payment by another Co-principal, was not found requisite to be instantly verified, nor the Defender put to find better Caution, though it was alleged he was in hazard of breaking, but only to give his oath de calumnia, july 15. 1665. Vrquhart contra Blair. Suspension of a Minister was found not to take away his stipend he not being deposed, july 26. 1661. Ker contra Minister and Parochioners of Carrin. Suspension granted on supplication of all Hornings that should be condescended on, for Relaxation only and to give personam standi in judgement, without stopping any other execution, December 7. 1669. Vrquhart supplicant. TACIT RELOCATION was found to endure for more years, during which it was not quarrelled, not the beneficed person could expre●ly set together, january 16. 1663. Earl of Errol c●ntra parochioners of Vry. Tacit Relocation of a Tennent warned, cannot defend ●he subtennent against singular successors, who would only warn natural Possessors, january 30. 1663. Rickart contra Hear the subtennent had required th● Tennent to give his Tack for his defence. Tacit Relocation after an expired Tack of Teinds was sound interrupted by inhibition, though not used by the setter of the Tack, but by a third party on a distinct Right, unless the alleadger of the tacit relocation could condescend upon a right in the setter of the Tack, that might exclude this pursuit, and he condescending that the ●etter of the Tack was presented as parson, and had seven years peaceable possession thereby, the same was ●ound sufficient to maintain his Tennent by tacit relocation, until the Parson took assignation from the pursuer, and so acknowledged his right, which was found to take away the Tacit Relocation of the De●ender from that time, though it could not have taken away an unexpyred Tack, july 18. 1671. Earl of Hume contra Laird of Riselaw. A TACK set by a debtor to his creditor for seven years for such a Tack-duty expressed, with a clause to retain his annualrent in the first end, and not to be removed till the principal were paid, was found valide against an appryzer subsequent as to the endurance of the Tack, having a definite Ish, and not during the non-redemption, and that there was a superplus of the Tack-duty above the annualrent, for which superplus alone the Heretor might have set it, but was not sustained as to the clause not to remove, which was found personal not effectual against a singular Successor, june 15. 1664. Thomson contra Reid. A Tack was found to be no such real Right, as the Back-bond of the receiver thereof did not oblige his singular Successor, but that the Back-bond being of the same date, was relevant to qualify the Tack against the singular successor, which Back-bond bear a Reversion, which was not found needful to be Registrate, neither was it intimate before to that singular successor, january 8. 1●68. Forbes contra A Tack of Land was found to give the Tennent no right to any Minerals under the ground, as to Clay for making of Pipes, and that the Tennent could give no Licence to any to dig the same, but de natura rei, it was reserved to the Heretor, with a power to open the same, satisfying the Tenants' damnage, February 15. 1668. Colquhoun contra Watson. A Tack of Teinds set without consent of the Patron for more than three years, was not found null simply by the Act 1621., but was valide as to the three years, july 1●. 1668. johnstoun contra Parochioners of H●●●oun. A Tack for four years, and ay and whi●e sum were paid, was found valide against the Liferenters assignee, December 18. 1668. Swintoun contra Brown; Here the assignee was not found as a singular successor▪ as in Rights passing by Infeftment. A Tack of Teinds set for more than three years without consent of the Patron, was found valide by his tacit consent and homologation, by taking Right to the Tack, and obtaining prorogation thereon, january 19 1669. Earl of Ath●l contra Robertson of Strowan. A Tack of Teinds for several nineteen years and several lives, was found not to be passed from by the Tacks-mans' taking Assignation to another posterior Tack for a greater duty, or for greater endurance, seeing he did not take the second Tack originally himself, but purchased it from a powerful party to prevent his trouble, and did not brook by it, nor pay a greater duty than was in his first Tack, june 24. 1669. Kenn●dy and More contra jaffray. A Tack of Teinds set by an University for a definite space, with an obligement to renew the same in all time thereafter, was found not effectual after the said definite time, nor obligatory upon the University, unless it had proceeded upon a sufficient cause onerous, and albeit the same duty was received by the University after the 〈◊〉 time, It was found no homologation of the obligement, but as brooking per racitam relocationem, july 13. 1669. Old College of Aberden● contra the Town of Aberdene. A Tack of a House by word for a year being fourteen days before the Term, was found not to admit locum penitentia by giving over within forty eight hours after the taking, but that the Setter setting again to another, imported acceptance of the overgiving, though that other possessed not, and the possessor not removing precisely at the Term, did not liberate the Taker, in respect of the custom of Edinb●rgh not to remove till six weeks after the Term, january 7. 1670. Ker contra Dawnie. A Tack granted by a Tutor in security of a sum borrowed for the Pupils use, having no special Ish, but to endure while the Money 〈◊〉 paid, was sustained, February 21 1671. Armour contra Lands. A Tack ●o the Tack● man during his le●e and the life of his first Heir, was not understood to be his Heir entered, but that his eldest son having survived him who might have been Heir, he needed no service for the benefit of a Tack, but that part thereof was fulfilled, though he never possessed conform, june 17. 1671. Lord Lovat contra Lord M●donald. Tack Vid● Clause, December 10. 1661. K●nrosi contra Laird Hunthil. November 23. 1664. Scot contra Laird Barefoot, etc. TAXATION 1633. was ●ound sufficiently discharged by the discharge of one who was held and repute Collector, without showing any commission, or being a person in Office, December 14. 1665. Duke of Hamiltoun contra Laird of Clackmannan. Taxation by a stint Roll, was found only valide as to the Taxation itself imposed, but without power to add any thing for future expenses by the stint, but that the Taxation behoved to be ●ifted gratis, if paid without a charge, and if there were a charge, the Lords would modify competent Expenses, but did not allow an Imposition to be added to the Taxation, December 15. 1666. Lord Colvil contra Fevers of C●●lross. Taxation 1633. was found discharged by a general discharge to the Sheriff in the Clerk of Taxations Books, without showing the Sheriffs Discharge to the particular Heretors, December 6. 1667. Duke of Hamiltoun contra Taxation was found to affect these contained in the stint Roll, seeing they conveened not and were stented, albeit if they had convened they could have freed themselves, their interest being Teinds wholly allocat to the Kirk, 〈◊〉 17. 1668. Stevart contra A●cheson. Taxation was found not to be due for ●nclosed ground conform to the Act of Parliament, 1661. and that the Act of Convention could not derogate therefrom, February 29. 1668. Duke of Hamiltoun contra Maxwel of Mur●ith. Taxation and l●an burden not singular successors, june 25. 1668. Inglis contra Balfour. Taxation was ●ound not to be due by the Director and Writers in the Chancellary as Dependants on and Members of the College of justice, january 22. 1669. Collector general of the Taxations contra the Director of the Chancellary. The Officers of the Mint were also found free by a late exemption eodem di●. Taxation appointed to be uplifted by Magistrates of Burglis was found only to oblige these who were Magistrates of the Burgh for the time personally by their office, and that the Town nor subsequent Magistrates were not liable for what they uplifted and made not count for▪ june 2●. 1669. Pearson of Balmadie contra Town of Mountress. Taxation imposed Ann● 1665. giving abatement of a third to the temporality of the Westeth Shires, was found to extend to the King's Property there, july 14. 1669. Duke Hamiltoun contra the Fevers of the King's property. TEINDS though valide were found not to be debitum fundi affecting singular successors, 〈◊〉 20. 1662. Earl of Callander contra Monro. Teinds were found not to affect the Heretor where there was a Liferenter, june 24. 1663. 〈◊〉 contra Laird of Glenrchie. The privilege of being Teind free competent to the Cyst●rtian order, and the like to Templars and Hospitallers as to Lands in their own Labourage, was ●ound competent not only to the Temporal Lords of Erection; but to their Vassals, july 15. 1664. Crawfoord contra Laird of Prestoungrange. Teind fish was found due by the Merchants who bought the fish immediately as they were taken in whole Boatfuls, in the same way as if they had intrometted with the whole cropped upon the ground, they would be liable for the Teind, December 13. 1664. Bishop of the Isles contra Merchants of Edinburgh. Teinds were found due paroch● notwithstanding of the King's Gift, unless Mortification or Possession thereof were proven, june 27. 1665. Ferguson contra Stevart of A●heog. Teinds may not be drawn summary upon Inhibition, where they were in Tack, and not drawn immediately before, but a Decreet must preceded the drawing, and therefore parties having a colourable Title, the Teinds being so drawn, obtained Restitution, january 21. 1665. Lairds of Bairfoot and Bei●stoun contra Viscount of Kingstoun. Teind being by long custom paid only as to the half Teind, Viz. the 20t●. Lamb, the Heretor or Possessor was not found liable ●s to bygones for any more, February 11. 1665. Scot of Thirlestoun contra Scot of ●roadmeadow. Teind of Herring, Killings and Ling taken in and about the Isles, as the patrimony of the Bishop of the Isles, was ●ound not to extend to Killing and Ling, taken by the inhabitants betwixt Arran and Hesay, they proving immemorial possession free of any Teind, November 24. 1665. Bishop of the Isles contra fishers of Greenock. Teinds were found not taken away by a Decreet of Parliament, ordaining the Titular to ●ell upon payment of such a price, it never being offered, so that the Teinds remained due till it were paid or offered, and upon refusal consigned, February 2●. 1669. Earl of Kin●ardin contra Laird of Ros●yth. Teinds of a Paroch were found to belong to the Prebendats of the Chappel-Royal, without any other Title but the Books of assumption, and three Presentations by the King, and that forty years' possession by the Minister did not infer Prescription against the King's Chapel in respect of the King's interest and Act of Parliament, declaring the King's interest not to be prejudged by the neglect of His Officers, but the said long possession was found sufficient to the Minister for all years preceding the citation, February 1. 1671. Ferguson contra Parochioners of Kingarth. THE TENOR of an interdiction being pursued, the production of the Letters of Publication was found a sufficient adminicle, seeing such Writs use not to be retired as Bonds, july 26. 166●. Laird of Milntoun contra Lady Milntoun. Tenors of Writs proven before inferior judges was found null, january 28. 1663. Laird of Balnagoun contra Mackenzie. Tenor of a Registrate Bond admitted to be proved by reply, was not found sufficiently instructed, by an Extract under the English hands that keeped the Registers at London, though his Oath was taken Anno 1658. That it was a true Extract, july 27. 1665. Captain Muire contra Frazer. Tenor of a Contract of Marriage containing Clauses extraordinary, as that the half of the Man's money should befall to the Wife in case there were no Heirs betwixt them, was not sustained without Adminicles in Writ, albeit the Tenor of it was insert in the stile Book of him that Wrote it, and the Tenor was offered to be proven by the Writer and Witnesses insert, and though it was offered to be proven that the Husband's whole means came by the Wife, june 13. 1667. ●arrower contra Hartlay. TERCE was found not to extend to a Bond bearing a clause of Annualrent without Infeftment had followed, june 24. 1663. Scrymzeor contra Murrayes. A Terce was not found taken away by an Infeftment in Liferent, not bea●ing in satisfaction of the Terce, albeit the Liferent was competent and suitable to the party's condition, and there was never a Contract extended betwixt them but a Minute▪ january 27. 1666. Cri●●toun and Eleis her Spouse contra Maxwel of Kirkhouse. A Terce was found not to extend to Teinds not constitute by Infeftment, but was found to extend to a grass yard let to Tenants, it not being a Garden or Orchyard, as pertinent of a Tower or Fortalice, February 9 1667▪ Moncreif contra Tenants of N●wtoun and Zeaman. Vide base Infeftment, Bell of Belfoord contra A Terce was found to be excluded by a Wife's acceptance of Land in satisfaction of her Terce, albeit a part of the Lands accepted proved ineffectual to her, her infeftment by her Husband, not having been confirmed by the Superior, who was preferred to her, and the acceptance was found a simple Renunciation, competent to the Superior to exclude the Terce, and that she could brook no part ●f the Land by virtue of her Terce, and that the Superiors founding upon the clause accepting Lands in satisfaction of the Terce, did not import his approbation of her Right to the Lands accepted, seeing she wanted the Superiors consent, as being an essential requisite to her Infeftment of Ward Lands, and so could admit of no Homologation more than if she had only the contract without any Infeftment▪ This was stopped to be farther heard, whether the Relict might brook, at least a third of the Ward Lands accepted as a Ter●e of these Lands, though she could not brook the whole Ward Lands accepted, being within a Terce of all her Husband's Ward Lands especially since the Clause bear that she accepted the Liferent Lands in satisfaction of all farther Conjunct fees, but should be repulsed a Terce as being in lieu of all farther Terce▪ whether in that case she renunced only the Terce of any other Lands, bu● not the Terce of the Lands accepted, june 23. 1671. Lady Ba●●●agan contra Lord Drumlanrig. THE TERM OF PAYMENT of Bairn● p●rtions 〈◊〉 at such a●● age, the same was found as dies 〈◊〉 qui pro conditione habetur, and they not attaining that ●ge thei● nearest of Kin had no right, january 17. 1665. Edgar contra Edgar. A TESAMENT Nuncupative by a Scotsman made in England or abroad where he resided, was found null as to the nomination of Succession, notwithstanding the Law of the place, which rules only as to the Solemnities of Writs, but not to Substantials or appointing of Successors, january 19▪ 1665. Schaw contra Lennox. A Testament containing a Legacy of a Wodset was sound void, though it was done 〈◊〉 pr●●inctu bel●i, February 21. 1663. Wardlaw contra Frazer of Kilmundy. A Testament confirmed, bea●ing persons to be nominate Tutors, and that they compeared judicially, accepted, made Faith, and found Caution, was found not sufficient to defend against a Reduction, without production of the Tutor's Subscription, as the warrant to make the Tutor liable for the Pupils means conform to the Inventary, unless there were other adminicles to astruct the same, albeit the confirmation was thirty seven years since, seeing the acceptance was no ordinary act of process, nor no process was moved upon the confirmation till of late, Ia●uary last 1665. Kirktoun contra Laird of Hunthil. A Testament confirmed was found to be execute at the Executors instance by a Decreet, though he had not obtained payment, an● though he was Executor dative and a mee● stranger, so that after the Executors death, the sums in the Decreet could not be confirmed by an Executor ad non executa of the first Defunct, November 17, 1666. Doun●e contra Young. A Testament was reduced because the Testator being alleged not to be compos ment●s, the Nottar, Write● and Witness insert, and other extraneous Witnesses deponed, that about the time of the Testament and thereafter the Testator was not▪ in his right mind, and to every question that was proposed, answered always yea, yea, although they were not present at the making of the Testament, and were contrary to the Witnesses insert, this was stopped to be further heard, june 9▪ 1668. Meall●xander contra Dalrymple. A Testament beginning in the ordinary stile of a Testament, and then disponing Land, thereafter containing a blank, wherein by another ink and hand▪ the Defuncts eldest daughter was named universal Legatrix and Executrix, but after all the moveables were disponed to the eldest Daughter, which Testament being quarrelled by reduction, was found null as to the disposition of the Lands, and as to the nomination of the Executor and Legatar, the same was not sustained though filled up before the Defuncts death, albeit it was offered to be proven by the Nottar and Witness insert, that the Defunct gave warrant so to fill it up, but it was sustained as to the disposition of the moveables as a Legacy, in so far as the Defunct could Legat, which may subsist though the nomination of the Executor be wanting or void, july 13. 1670. Daughters of So●ityay contra the eldest daughter. Testament Vide clause December 15, 1668. Windrham contra El●is▪ THIRLAGE was found constitute by long custom of payment of Intown Multure in mollendino reg●o, but was not extended to the Te●nds of that Barony though possessed promiscu● far above fou●ty yea●s, without more than custom, and was not excluded by the Fevers of the Barony their Feus' granted by the King cum mollendini● & mul●uri● in the tene●das only, which was thought but past in the Exchequer of course without observation▪ january 8. 1662. Stevart contra the Feua●s of Aberledno; The like without allowing any part of the cropped multure free for expenses of labour, and Hinds-corn, but only the Seed, Horse-corn and Teind, january 14. 1662. Nicolson contra F●uars of Tillicutrie. Thirlage was sound constitute by an old Decreet against the Tenants' possessors, without a calling their Master, and long possession conform thereupon, albeit the Heret●r was Infe●t cum mollendi●●●●▪ and that Witnesses being examined hinc inde concerning the possession and interruption, by going sometimes to other Mi●ns were proven, yet not so frequently as might not be Olandestine, june 24▪ 1665. Colonel Montgomerie contra W●lla●e and R●ie. Thirlage was inferred where the Fever of the Miln was Infeft in the Miln with the mul●ures of the Lands in question per expressum, and was in possession of insucken Multure thereof forty years, albeit the Defende● was infeft before, without the burden of astriction, and did sometimes go to other m●●ns, which being frequent in all astrictions, was found not to be a competent interruption Iune ●9, 1665. Heretog of the Miln of K●thick contra Fevars. Thirlage was inferred by infeftment of a miln with the multures etc. generally, with a precept from a Bishop then Heretor of the Lands in question, ordaining his Tenants to pay their multu●es to that miln, which with long possession was found sufficient▪ albeit it had no consent of a Chapter, December 7▪ 166●, V●●tch contra Duncan. Thirlage being constitute by an infeftment from him who 〈◊〉 〈◊〉 of Land and Miln, was found no to be prejudgeed upon the alleged insufficiency of the Miln, unless the insufficiency were alleged to be through the fault of the Heretog of the Miln, February 9, 1666. Heretors of 〈◊〉 contra Fe●ars. Thirlage was not Inferred by an infeftment of ●ands with such a miln and the multures used and wo●t, which was not extended to L●nds of another Barony ●olden of another Superior, though they then belonged to the Dispone●, and were in use to come to that miln, December 11▪ 1666. Earl of Cassils' contra Tenants of Dalmortoun. Thirlage though constitute by a Vassal, hath no e●●ect against the Superior during the Vassals Ward, unless the superior consented, neither is his consent inferred by his receiving an Assignay to the apprizing with reservation of the multures in the assignation, unless that reservation had been in the Charter, Ibidem. Thirlage in a Vassals Charter to the Superiors miln, was ●ound not to infer multures upon the Vassal, though he mov●d his Tenants to come to his own miln, and got a g●ea●er duty therefore, but that the Tenants were only liable personally for abstracting, December 10, 1667. Earl of Cassils' contra sheriff of ●alloway and Tenants of A●●hn●troch. Thirlage constitute by infeftment bea●ing mult●res and sequels, was found that the ordinary miln-se●vices to the miln damn and miln sto●●es was included in the right, unless by paction or prescription the same was taken away, February 27▪ 1668. Mai●land contra L●●●y. TOCHER being proportionable and suitable to the parties, was ●ound a cause o●erous ad 〈…〉 December 23▪ 1665. Burnet contra Lepers. TRADESMEN in Suburbs were ●ound not to be simply excluded from working in Suburbs of Burg●●s by the ●54▪ Act Par. 1592., but that they should not work to the inhabitants of the Burgh▪ December 4. 1669. Weavers of Pearth contra Weavers of the Bridgend of Pearth. TRANSACTON was not inferred by giving a Bond for the same sum in the Decreet and Chap●●on thereupon, se●ng there was no abatement obtained, july 3. 1668. Row contra Houstoun. TRANSFERENCE of an old Summons w●s stopped, where the first Executions were new and not abidden by, january 12▪ 1665. Wilson a●d Chalmers contra Transference of a Cau●e that had lain long over, was found sufficient to give Process in the principal Cause and not to require any other Walkning, February 20. 1666. Lord Saltoun contra Saltoun and Rothimay. TRVST of an assignation to the Cedents behoove, was found proven by Witnesses ex officio upon presumptions, the matter having lain long over, and it being instructed that the assignation was never delivered to the assignee, but in the hands of the Writer, and some missives were adduced to instruct the Trust, though not proven holograph but by comparison of some o●her writs, February 22▪ 1665. Viscount of King stoun contra Colonel Eull●rtoun▪ Trust instructing a Bond to be to another party's behoof by presumption was sustained, january 12, 1666. Executors of Stevinson contra Crawfo●rd. Trust in a disposition of Lands being to prevent the rigour of Creditors, the person entrusted was found to have no power to receive more of the debts componed for than he truly paid, albeit there was no express Trust as to componing or paying of su●s, November 15. 1667. Maxwel contra Maxwell. Trust of an Assignation to the behoof of a third party, was found where the assignay acknowledged that he received the assignation from that party on their Terms, that what ●●e should get by it should be allowed in a Decreet due to him by that party, which therefore was found to make the assignation to the parties behoove, though ●t was not acknowledged that that party had the Assignation blank, and therefore an obligement by that party to relieve the Debtor of the deb●, was found equivalent to a Discharge and to exclude the Assignay, December 7▪ 1666. Mont●●●th ●ontr● Laird of Glorre●. Trust Vide Diligence, December 18. 1666. Casse contra Wa●t. Trust was found probable not only by Writ or Oath of party, but also by Evidences and Adminicles, whereupon Witnesses ex officio were Examined, February 6. 1669. Ru●e contra Rule. Upon Trust of an Assignation to an apprizing, Witnesses, ex officio were Examined on all Circumstances, February 24. 1669. Earl of Annanda●l contra Hume and other Creditors of Hume. Trust in Bonds and personal Rights were found not ●o constitute the sums in bonis defuncti in the entrusted people, but that the Trust might be proven by Writ against the nearest of kin of the entrusted person, and against the debtor for making payment, without necessity of confirming th● Bond that was in the name of the entrusted person, Iu●e 9▪ 1669▪ Street contra Hume of Br●●●field. Trust of a Gift of Escheat to be to the behoof of the Vassal, was ●ound probable by the Witnesse● inser● in the Gift and the Superiors o●th june 19 1669. Scot contra Langt●●n. Trust of a Disposition of Land for payment of the entrusted person, and then of the intruste●s Creditors, some of whom had apprised from him and were infeft, the person entrusted was not found in capacity to pay other Cieditors, and prefer them to these who had done more timely Diligence, though the Inhibition and apprizing was not against the Entrusted person, july 24. 1669. Crawfoord contra Anderson. A TUTORS oath was found not relevant to prove a condi●ion or agreement with the Defunct against the Pupil, though there were concurring probabilities and Testifica●es December 7. 166●. Ecles' contra Ecles. Tutor Vide Assignay, Ramsay contra Earl of Wintoun. A Tutor or his Assignay was found to have no process against his Pupil 〈◊〉 his Tutor counts were ended, ex presumptione juris, that the Assignation was procured by the Pupils means and to his behoof, Iu●y 24. 1662. Cranstoun contra Earl of Wintoun. A Tutrix her Assignation though not formal, bearing the Tutrix as taking burden for the Pupil and not the Pupils name also Assigning, yet was sustained, june 17. 1664. justice contra Earl of Queen●berry. A Tutor was not found liable for annualrent of his Pupils annua●rent of considerable sums from the several years they were due, but that once in his Tutory he was obliged to uplift the same, though in secure Creditors and great men's hands, and that he was obliged to pay or reimploy them at the end of his Tutory, and so was found liable for the annualrent of the annualrent a finita tutela, though it was not uplifted, january 21. 1665. Kintor contra Boyd. A Tutory was found not to be instructed by a confirmation bearing, that the Tutor accepted and made Faith, without Warrant under his hand, or some Adminicles to astruct it, though the Confirmation was thirty seven years since, january 31. 1665. Kirktoun contra Laird of Hunthill. A Tutor was not found proven by his discharging as Tutor Testamentar, where by the Testament it was evident he was but Overseer, june 10. 1665. Swintoun contra Notman. A Tutor's oath was found valide against the Pupil, as to the Tutor's intromission in name of the Pupil, yet so that the Tutor deponing that he did not remember the quantity and price, he was not holden as con●est as if he were a party, but might be compelled by Horning and Caption to Depone as a Witness, june 27. 1665. Cant contra Lock. A Tutor was found liable to uplift his Pupils annua●rents, and to re-imploy them sometime during the Tutory, and therefore was sound liable for annualrent of the same post 〈◊〉 tutelam, but if he died within the Tutory, he was not found liable for annualrents of annu●lrents, being in secure hands but not uplifted, july 4. 1665. Boyd contra Kintore A Tutor pursuing a Mother for delivery of her Daughter his Pupil to be Educate with some of her Father's Friends, having a great portion out of his Estate, that she might not be abused in her Marriage by her Mother or her Friends; the same was sustained after the Pupils age of eleven years, though the Mother was unmarried and the Daughter vali●udinary, February 6. 1666. Laird of Dury contra Lady Dury. A Tutor was found to have a year to employ sums not bearing annualrent, and not to be obliged to uplift sums where the Pupil was fully secured, or where on a sudden the Debtor break, but was found liable for all Diligence according to the Debtors condition by Horning, Caption, Arrestment, Poinding and apprizing of the Debtors Estate, which should be known to him, and not for Horning only, july 9 1667. Ste●in contra Boyd. In a Tutor count the Tutor was not found liable for the Services he got to the Pupils Tenants in kind, and that where he was super-expended, a Decreet might be at his instance against the Pupil on the Pupils own Process, january 11 1668. Grant contra Grant. A Tutor was found liable to count as Tutor and not as Protutor, on production of a Writ under his hand, designing himself and acting as Tutor Testamentar, without necessity to the Pursuer to produce the Testament, December 2. 1668. S●atoun contra S●atoun. A Tutor was found liable for the Annualrent of his Pupils sums, which were in responsal Debtors hands, but not to re-imploy the same upon annualrent, in respect the Tutor died durante tutela, and that what annualrents he had received, his Successors were only liable for the same, and the annualrent thereof from the time the Pupil past pupillarity, it being sufficient to lift and employ the annualrents of Pupils sums at any time during the ordinary course of the Tutory, af●er the Pupils passing pupillarity, july 9, 1669. Kintor contra the Heirs and Successors of Logan of Coatfi●ld▪ This was stopped on the Pursuers Bill, till it were further heard upon the grounds of the first Decision. A Tutor having cited his Pupils Friends on both sides, that ●t might be declared by the Lords that the Pupils Lands were ●racked above the true value, and that they w●re not able to pay their Rents without casting the Land waste, no party appearing, the Process being considered by the Lords, they granted Commission to Gentlemen in the Country to try the matter of Fact and report, February 5. 1670. Tutor of colz●an contra nearest of kin of the Pupil. A Tutory granted to two, and bearing them to be jointly, was found void by the death of either, january 17. 1671. Drummond of Riccartoun contra Fevars of Bothkenneth. TUTOR DATIVE of a furious person was found not to exclude the nearest Agnat as Tutor of Law to be served quandocunque, though the Idiot was necessitate to pay upon the Tutor's citation to make forthcoming, january 21. 1663. Mr. james Stevart and Robert his Tutor Dative contra Spreul. V●●●MUS HAERES being gifted, was found to have no effect till there be be a declarator thereupon in the same way as in Bastardy, july 30. 1662. Laird of Balnagoun contra Dingwall, The like july 31. 1666. Crawfoord contra Town of Edinb. USE OF PAYMENT of a duty to a Minister for Teinds, and his discharge for the whole Teinds for a long time, was found sufficient against him who had the Tack and Prorogation of these Teinds, until interruption by Citation or Inhibition, though the duty was very small, & the Minister was but stipendia● having that quantity allocat out of these Teinds, january 19 1669. Earl of Athol co●tra Robertson of Strowan. VSURY was not inferred by a Creditors taking a Tack for his further, security, for so much Victual, or 20. shilling less than the 〈◊〉, at the setters option, that abatement being for the setters pains and hazard in getting in the price, November 23. 1664. Scot contra Laird of Barefoord. VICCARAGE was not found due out of Yeards which were apar● of the Canons' Portions, which had never paid Viccarage, june 30. 1668. Minister of Elgin contra his Pa●ochioners. THE VIOLENT PROFITS of an Ox Sp●ilzied in Labouring time, was found to be 5. shilling every day during the Labouring time, February 28. 1668. Lord justice Cle●k contra Hume of Linthil. VITIATION of a Contract of Marriage diminishing the Tocher and jointure by the Husband and Father after the marriage, was found not to prejudge the Wife who consented not, but her Right was extended as before the Vitiation, in prejudice of the Husband's Creditors infeft by him, albeit the Contract being Registrate, the Vi●●ation could not not appear to the Creditors when they lent their Money, june 11. 1670. Hunter contra The Creditors of Peter. VICIOUS INTROMISSION was not ●lided because the Defunct died Rebel at the Horn, and so there was nothing in bonis defuncti, unless the Defender alleged he had the gift of Escheat ante motam litem, February 17. 1662. Grace contra Dalgarno. Vicious Intromission was retrenched to single avail, because the Defender entered in possession by a disposition of the moveables, though no delivery or possession was in the Defuncts life, February 27. 1662. Chalmers contra Dalga●no. Vicious Intromission was purged by the Intrometters confirming within year and day after the Defuncts death, the Executry being his Wives, albeit after intenting of the pursuers cause, january 28. 1663. Stevinson contra Ker and others. Vicious Intromission was purged by a Disposition and Instrument of Possession in the Disponers' Life-time, though the Defender judicially acknowledged there was no natural possession, july 6. 1664. Brown contra Lawson. Vicious Intromission was not sustained after the Intrometters death, against any representing him, where there was nothing done to instruct it in his Life, further than Quo ad val●rem, but not as an universal passive Title, july 10. 1666. Cranstoun contra Wilkison. Vicious Intromission was elided, because the Intrometter had warrant from the Donator of the Defuncts Escheat▪ though there was no Declarator, seeing the Warrant and Intromission was ante notam litem. july 4. 1665. Inns contra Watson. Vicious Intromission was not inferred by intrometting with 50. pound, the Intrometter having after his Intromission confirmed himself Executor, and omited that sum, but was only found liable for the sum itself, February 26. 1668. R●oth contra Cowan. Vicious Intromission was found not receivable by Defense against an Assignay, viz. That the Cedent who was Creditor to a Defunct, was vicious Intrometter with his goods and so Debtor, the Assignation being for an onerous cause, january 20. 1671. Captain Ramsoy contra Henrison. WARD was found not to fall by the death of an Appryzer who had Charged, unless he had put the Superior in culpa, by presenting a Charter to be subscribed by him, and offering a Sum with a Bond, and Caution for what more the Lords should modify for that years Rend, and that therefore the Ward fell by the death of him against whom the apprizing was led, February 9 1669. Black contra French. Ward being gifted by the King, the Donator was found to have interest to call for production of the Defender her Sister ●●d Father's Retoures only, for instructing of what was Ward, and not their other Evidents, December 20. 1669. Earl of Rothes contra Tutors of Buccle●gh. Ward was found to take no place where the Defunct was denuded by an apprizing and the Appryzer infeit, albeit the apprizing was on a Bond granted to his Mother, to the be●ove of her Son, which was not found to be a fraudulent precipitation to exclude Ward, it being granted in the Defuncts liege pouftie, but so soon as the apprizing was satisfied either in the Defuncts time or after his death, the Ward of the Defunct's Heir took effect, july 20. 1671. Lindsay of Mount contra Maxwel of Kirkonnel. A Ward was not found to give Right to the Donatar, to cause an Appryzer Restrict to as much of the Rent as will satisfy his ann●alrent, that the Donator might have the superplus, by the Clause in the Act of Parliament 1661. betwixt Debtor and Creditor, which was only found proper and personal to the Creditor and his Heir, Inter eosdem. Ward and Marriage of a party killed in the late War, was found not to be taken off by the Act of Parliament 1640. Declaring the Ward and Marriages of these that should die in that Service not to fall, which Service was found to terminate by the next Pacification Ann● 1641. here parties were agreed, so that it was not acuratly debated, or determined whether the salvo in the Act rescinding these Parliaments during the Troubles, except as to private Rights acquired thereby, would reach to the exemption of Ward and Marriage by the Act 1640. being held an exemption during all the Troubles, should be so interpret now, which was not proposed, july 28. 1671. Hadden contra Laird of Glenegi●s. WAKNING was not ●ound necessary, where upon hearing parties Decre●ts were pronounced, though it was sto●ed upon a Bill, and lay several years over▪ which stop imports not a recalling of the D●creet, but a stoping the Extracting of it till the parties might be heard upon the grounds of the Bill, july 1. 1671. Brodit of L●th●m and the La● of Ri●cartoun contra the Lord Kenmuire. WARNING was sustained at an old Kirk, albeit Divine Worship was at a new Kirk not Erected by Parliament, or though Erected, if Hornings and Inhibitions used to be at the old Kitk, january 24▪ 1667. Earl of Arg●le contra Campbel. Warning not bearing that it was read at the Kirk door in ordinary time of Divine Service, was admitted to be so mended at the Bar, january 25. 1667. Inter eosdem. Warning at the Kirk and House was sustained on fourly days, though the party warned was out of ●he Country, the Act of Parliament anent Warning requiring no further, February 20. 1666. Mcbrair contra. WARRANDICE was ●ound employed of a Legacy in realiena scienter legata, june 18. 1664. Murray contra Executors of Rutherfoord. Absolute Warrandice was ordained to be contained in assignations of Bonds for an equivalent Cause, as the price of goods, and that it should bear expressly, not only that the debts were due, but that the debtor was solvendo, june 24. 1664. Moffat contra Black. Warrandice being absolute in an Assignation by a Creditor to a Cautioner, that he might get his relief, bearing (against all deadly as Law will) was found not to extend to the Debtors being solvendo, june 26. 1664. Hajcontra Nicols●n. Absolute Warrandice was found employed in a Contract of Marriage, wherein a Mother as Executor gave such a sum in full satisfaction of a Daughter's interest, and that only to warrant against the Defuncts seperveening Debt, as to the superplus above the sum accepted by the Daughter, but simply for all the portion, unless the Mother would count for all her Daughter's share, November 16. 1664. Fleming contra Fleming and her Spouse. Warrandice was found to give recourse, though th●re could be no present distress, seeing there was a clear ground of further distress by the warranders own deed, granting double dispositions, july 1●. 1666. Bur●et contra Iohnsto●●. Warrandice absolute in a disposition of Lands, was found to extend to warrant Lands designed for a Horse and Cow's Grass by a subsequent Law, albeit the Law extended in self as if it had been of a former date with another abroga● Law, seeing these Laws did differ from the former▪ and did not revive it, july 12. 1667. Watson contra Law. Warrandice being special by Infe●tment, though base and ex intervallo, and after the principal Infeftment, is effectual for recourse, without declarator, and being clad with possession of the principal Lands, and can only be excluded by a possessory judgement upon 7▪ year after the eviction, but by no possession how long soever before the eviction, February 20, 1668. Forbes contra Inns. Warrandice in a Disposition bearing the seller holds Ward, that therefore he should warrant the buyers, who were to ●old Few of him, and to relieve them of any Ward that should thereafter fall, which was ●ound to be effectual against the Sellers Heir, tho●gh denuded of the Superiority, and not to burden the present Superior, july 18. 1668. Colquhoun contra St●uart of Bars●ub. Warrandice in whatsoever Terms conceived, was found to extend no further than t●e sums paid out, and the expenses of the party▪ january 26. 1669. Boyl of Kelburn contra Wilkie. A WIFE'S Contract of marriage was found a debt 〈◊〉 to other personal Creditor's of the Defunct, Febru●ry 8. 1662. Crawfoord contra Earl of Murray. A Wi●e and her friends at whose instance execution of her Contract was provided, was admitted to pursue a Reduction of a deed done by the Husband in prejudice thereof du●ing ●is life, February 12. 166●. Leck●● contra 〈◊〉. A Wife was found conveenable without calling the Husband, he being 20. years out of the Country, and she repute widow, june 19 1663. Hay contra Corstorphin. A wife's oath was found to prove against the Husband, where the matter was litigious, by a process against the Wife before her marriage, july 19 1663., Edgar contra Murray. A Wife's infeftment was found valide till her Tocher were repaid, albeit the Marriage was dissolved within year and day, Iu●y 20. 1664. Petrie contra Paul. A wife's furnish even for her mournings for her husband's funerals, being of that quality that should have mourning, was found not to be the wife's debt but the husband's executors, November 2. 1664. Murray contra Ne●lson. A wife's infeftment Stant● martrimonio being 〈◊〉 and beside her Contract, was found not to be validat by her husband possession, that his Creditors might not quarrel it by exception, it being anterior to the infeftment, December 7. 1664. Lady Craigie and Greenhead contra Lord Lour, Vide Clause, December 20. 1664. Young contra Buchannan. A wife having her husband's bond in her hand, and impignora●ing in 〈◊〉 100 pound, it was sustained against the husband, upon presumption of her having warrant by having the bond, February 4. 1665. Paterson contra Pringle. A w●●es infeftment in liferent was sustained by her Seasine, adminiculat by her Contract of Marriage, albeit the sealine was not immediately on the Contract but related a bond granted for the same cause, which was not produced, I●ne 29. 1665. Norvel contra Stevart. A wi●e was ●ound not to be excluded from her liferent, because her To●lier was not paid, she not being obliged therefore, albeit the Contract bear, that the Tocher being paid it should be so applied upon security, july 5. 1665. Mack●● contra Stevart. A wife was not found liable to her husband's creditors apprizing his j●s meri●●, for the Rent of Houses possessed by herself for their aliment, as to years preceding the intenting of the Ca●se, December 7. 1665. Smith and Duncan c●ntra Robertson. Here the Creditors had access to the wifes other Tenements, though the husband shortly after his marriage left the Country, and the wife had obtained Decreet of adherence and was proceeding to divorce. A wife's obligation with her husband for a firm obliging them to pay conjunctly and severally, and also obliging to 〈◊〉 an annualrent out of either of their Lands▪ was found null as to the obligement to infeft even as to the wife, De●●mber 15. 1665. Bleis contra Keith. A wife's renunciation of a part of her jointure after her contract of marriage and first proclamation, was reduced as being done without consent of her husband, albeit the husband knew of the 〈◊〉 and yet went on in the marriage, and albeit he was an unsuitable match to her, and that not only as to t●e husband's interest and during his life, but also simply as to the wife, Ia●●ary 5. 1666. Lady Bu●e and her husband contra Sheriff of 〈◊〉. A wife was found not to have interest to pursue the Defuncts Debtors for her half, but only the Executors▪ December 15. 1667. Lady Cranburn contra Lord Bu●ley and others. A wife's account of furniture for her person subscribed by her, was found valid●, albe●t she was then married and a ●●i●●or, without instructing the goods received and just price, she being p●rsona illustris, and the account not great for her own furniture, February 20. 1667. 〈◊〉 contra Duchess of Monmouth. A wi●e clad with a husband was found liable for drugs furnished to her and her children at her command, ●he having a peculiar Estate, wherefrom her husband was excluded, a●d he being ou● of the country, December 19 1667. Gairn● contra Arthur. A wife acquiring Lands, was found not to presume that the same were acquired by the husband's money, and to belong to him and his heirs, unless it were instructed that she had heretables or other sum● exempted a commun●one 〈◊〉, especially seeing the wi●e dispo●ed her Lands to another, and her husband as bailie of the Burgh gave Seasine thereon, january 29. 1668. Brown contra Nappi●land. A wife predeceassing, her third of her husband's moveables was found not ●o comprehend the best of ilk kind, but that it ●el●oved to be l●● aside as heirship movable, wherein the wife had no interest, December 8. 1668. Go●●●et contra N●ir●, though the husband was alive and could then have no heir. A wife in he● contract of marriage having discharged and renu●ced 〈◊〉 heretable sum due to her in favours of her debtors, who gave a new heritable security of the same date to her ●uture spouse, the wif● having made her husband her Executor and Lega●ar, a●d dying within year and day, the discharge and renunciation granted in favours o● a third party, was found not ●o be 〈◊〉 by the dissolution of the marriage, but that the old security continued i●●ovar by the new security granted to the husband, who was only obliged to restore the ●um in that security to his wife's Ex●u●ors, as a movable obligation▪ and not to her heir, and that so it belonged to the husband himself as Executor, Dec. 11. 1668. Scot con. Ai●on. A wi●e was found to be burdened with her husband's her●table deb●s, December 23. 1668. Mckenz●e ●ontra Rober●son. A wi●e pursuing for her provision by her con●ract of marriage▪ which bear, her to be provided to the annualrent of her Tocher and as much more, the same was sound effectual, and that the wife was not obliged to instruct that her Tocher was paid, seeing she was no● obliged for payment thereo● in the contract, an● the husband having only a ●um provided to himself and his wi●e in liferent, and after their deceasses to the man's 〈◊〉 daughters by a former marriage, the wife having confirmed the same for implement of her contract, was preferred to the daughters, and their substitution was ●ound nu●l by the Act of Parliament 1621. without▪ reduction, january 5. 166●. Syms contra Brown. The like before, February 22. 1665. Campbel contra Campbel. A ●ifes infe●●ment upon her contract of marriage was sustained, though it bear that the husband should employ the Tocher & an equivalent sum for the wife in liferent, albeit the Tocher was never paid by the Father, not by the husband's neglect, but by the father's insolvency from the time of the con●ract, seeing the husband did not object t●● same, but granted infeftment, jan, 11. 1670. Hunter c●ntra Creditor's of Pet●r. WITNESSE● were admitted to prove setting down of Marches by Arbiters, February 8. 1662. Lord Torph●hen cont●a. Witnesses were admitted to prove a Warrant and Command, being the Messenger's Domestics and so 〈◊〉 persons, january, 4. 1663. Ma●●o●n contra Hunter. Witnesses were admitted to prove the Loan of Books, ●hough far above 100 pound, january 21. 1665. Scots contra Fl●●cher. Witnesses were ●ound to prove a bargain of Victual a●●er 1●. years' time, july 14. 1665. Ma●●h●son contra Gib. Witnesses Testimonies taken by the Commissars in a Divorce craved ●o be Reduced, was found not to be published, but the Clerk was ordained to give a Note of their Names, Designation, Age and purging of partial Council and the like, b●t not of the particulars in the cause, january 4. 1666. Laird of Mil●toun contra Lady Mil●toun. Witnesses were not admitted to prove a Bond blank in the Creditors Name, delivered to a Desender, to infer an obligement to redeliver the same, February ●0. 1667. johnstoun contra johnstoun. Witnesses were found to prove Adultery, albeit their Testimonies were not of the same individual Act at the same time and place, Adultery being crimen genericum inferred by re●●erable Acts, and though neither of the Witnesses knew the Woman with whom the Adultery was committed, but heard her named at the time they saw the Acts by the Adulterers servant, and that some other Witnesses knew that she was not the Adulterers Wife, February 25. 1667. Lady Milntoun contra Laird of Milntoun▪ Witnesses Testimonies were found not to be infringed upon theirown re-examinaton in a second instance, as being suborned or corrupted post ●us acquisi●un● by the first sentence▪ albeit in the first Testimonies they were not purged of partial Council, Ibidem. Witnesses were found sufficient to prove a bargain to have been anterior to a Writ, and that Writ was reduced upon that Sentence as posterior and prejudicial to the bargain, january 21. 1669. Creditors of Pollock contra Pollock. Witnesses were admitted to prove a Merchant count as to Articles more than three years preceding the Citation, it being a current account, though begun by the Defunct and continued af●er h●● deceass by his Funeral provision, and by the Chamber●●●● of his Heir then a Pupil, seeing three years interv●e●ed not in any part of the account, February 26. 1670. Grahame contra Laird of Stan●byres. Witnesses were admitted to prove the v●●iation of a Contract of Marriage, and not to annul it but to extend it as it was before the vitiation, june 11. 1670. Hunter contra Creditors of Peter. Witnesses were admitted to prove intromission with Mails and Duties of Tenants, though silver Rent, intrometted by one who was infe●t in an annualrent out of the Tenements, albeit by the intromission, the principal sum for which the annualrent was constitute, would be satisfied, and the infe●tment extinct, February 4. 1671. Wishart contra Arthur. Witnesses were admitted to prove an apprizing to be to the behoof of the apparent Heir, in respect of this concurrent presumption, that the apprizing was assigned to the appear and Heirs brother, February 22, 1671. Gordo●n contra Mcculloch. Witnesses were admitted to prove● Ministers possession of ●ands to be by tolerance of an Her●●or, and ●o not ●o be a Gleib belonging to the Kirk, where the Ministers possession was decen●●lis & trien●alis, but that writ was necessary (if his possession ha●t been for 40. years) to prove the tolerance, june 22. 1671. Minister of contra Duke of ●al●leugh. WITNESSES EX OFFICIO were received for proving the delivery of a Bond blank in the Creditors name▪ the matter being betwixt brother and sister where Trust was very presum●able, February 21. 1667. johnstoun contra johnstoun. Witnesses were examined ●x officio to prove Warrant or Command to a deed done in prejudice of him, who had the Commission to do the same deed, and could have hindered others, February 21. 1667. Lord R●●toun contra Laird of Lambertoun. Witnesses and the writer of a disposition were examined ex officio on th● Terms of the Treaty, and whether when th● writ was read, being an absolute disposition, it was not read as being redeemable, july 2. 1667. Allan contra Fairy. Witnesses ex officio being admitted hinc inde, not the greatest quantity proven by two, but the quantity proven most pregnantly, was followed, November 23. 1667. Lord justice Clerk contra Laird of Lambertoun. Witnesses ex officio were examined to instruct the cause of a Bond to be by arbitrament and exorbitant, it being 37. years' dorment without annualrent, and the sum filled up with a different hand, February 6. 1668. Chis●holm contra Witnesses taken ex officio proving the employing of a Wright in his wo●● in a Lodging possessed by the employer, and his frequent direction anent the work, were found to prove against his Heir, though above 100 pound, and though direction alone without sensible acts is only probable by writ or oath, july 21. 1668. Thomson contra Earl of Glencairn. Witnesses ex officio 〈◊〉 ●●de examined in a Reduction on death bed, albeit the day of compearance was not come, to prevent the death or collusion of the most necessary Witnesses, February 16. 1669. Creditors of my Lord Balmerino and Cowper contra Lady Cowper. Witnesses ex officio were ordained to be examined before answer▪ for clearing a Trust of the right of ●n apprizing▪ upon divers probabilities hinc inde alleged, February 24. 1669. Earl of Annandail contra 〈◊〉 and Creditor's of Hume. A Witness examined ex officio prevaricating in his oath, first denying and then acknowledging the same thing, was declared in famous and set on the Pillory with a Paper on his ●ace, signifying his Fault, Iu●y 6. 1669. Barclay contra B●rclay. Witnesses ex officio being examined were admitted to take away a Bond wholly blank, or blank in the Creditors name, F●bruary 2, & 3. 1670. jack contra Boyd of ●●nkil, and the Earl of K●ng●orn con●ra Laird of P●●arro. Witnesses ex officio were examined anent the being of a Bond amongst the Writs of a Creditor or his Factor, that thereby the debtor might be liberat of the Bond as being retired, but was not admitted to prove payment or satisfaction thereof, though it was an old Bond, without any diligence or payment of annualrent for a long time, February 14. 1671. N●●peir contra Earl of Eg●●toun. Witnesses ex officio were examined in a circumvention for annulling a disposition made by a simple per●on of his whole Estate, without reservation, on these points, whether the writ was read to him when he subscribed, whether he was drunk, so that rea●on and judgement was disordered, and what motives were used to make him subscribe, july 11. 1671. Stev●ns contra Ne●lson. WITNESSES INSERT in a writ and the Writer were ●ound to have accession as users of that writ as false, yet was examined, though they were socij crimin●s, and Forgers by their own confession, being in an imporbation▪ january 26. 1670. Lady To●vi● contra Captain Barclay. A WODSETTER was found to comp● for the superplus above his ●en●, though the Wo●set wa● before the Act of Parliament, 1661. betwixt Debtor and Creditor, albeit therein the Usurper's Act, and all such Acts made or to be made were ●enunced, january 29. 1662. Laird of Laming●oun con●ra Che●slie. A wodset bearing in the Reversion a Tack ●a● within the worth of the Land to be given after Redemption, was sustained as not Vsur●ry, but the Wod●etter was at a great loss by a Liferent med●o ●●mpore, june 21. 1662. Laird of Polwar● contra Hu●●. A Wodsetter pursuing for his money, was found not to have access thereto tilll he recovered the Possession taken from him by a third party intruding, seeing he did not the recenti intimate the intrusion, and demand his money, February 17. 1665. Hopringle of Torsonce contra Ker of S●nderland-hill. A Wodset being redeemed● upon an Order used, though without citation of all parties having interest at the Mercat Cross on the declarator, albeit thereby the Wodsetters' Wi●e, who had a base subaltern infeftment from him in Liferent, was excluded, and the Redeemer was not found obliged to know the same, albeit registrate in the Register of Seasines, july ●7. 1665. Hamiltoun contra her Tenants. A Wodset by a Father to a Son redeemable by the Father during his Li●e from his Son on a Rosenoble, being craved to be declared, the Son having apprised, and thereupon alleging that he had right to the Reversion a● and while his A●pri●ing were Redeemed, and till that, his Father could not Redeem. which at first was sustained, the case of the Son being favourable, the Father having disponed the whole right to a second Wi●e, but being thereafter deba●ed in presentia, the Lords were of different judgements and decided not, in respect the case seemed to hinder Debtors to Redeem anterior Compryzing, till they Redeemed all pestelor Compryzing, December 5. 1665. Reg contra ●eg. A Wodset containing a Clause of Reversion for granting a Tack for certain years after the Redemption, was found not to be deerogate from by the Act betwixt Debtor and Creditor, but that it might be quarrelable by the Act 19 Parliament 1449. If the Tack were set but about the half of the true Rent as it was worth the time of granting the Wodset, and so being Vsu●ary, ● February 15. 1666. Lord L●y contra Porteo●s. Wodsetters having Wodset before the Act of Parliament 1661. were found comptable for the super●lus more than pays their Annualrent, not from the date of the Act betwixt Debtor and Creditor, but from the o●●er made to give them security upon quiting their Wodsets, and that notwithstanding there was in the Wodset a Clause Renuncing the Vsurpets Act, suspending the payment of principal sums, and ordaining Lands to be taken in satisfaction thereof, and all Acts of that nature, and albeit there be an exception in the said Act, when the benefit of such Acts are Renunced, which was not found to relate to the Clause anent Wodsets, which is posterior to that exception, February 21. 1666. Lord Borthwick contra his Wodse●ters. Wodsetters before the Act 1661. choosing to retain the possession, were found comptable for the superplus, not from the Summons, but from the date of the offer to find Caution, which was admitted after the Citation, but it was found that the Wodsetters were not bound to declare their option, whether to quite the Wodset or restrict till Caution were offered, February 12. 1666. Ogilbie contra A Wodsetter by his Wodset being obliged upon payment to Renunce, and by his missive Letter acknowledging payment, his Son and apparent Heir having received a disposition of his other Estate without a Cause onerous after the Wodset, but before the missive Letter, was found liable as lucrative Successor to enter to the Wodset Right and to Renunce, january 15. 1668. Earl of Kinghorn contra Laird of Vdn●y. A Wodsetter was found comptable for the superplus after o●●er to find Caution, though he had a posterior Ratification and ●ik after the Act 1661. june 19 1669. Scot contra Langton. A WRIT ●iz▪ a Bill of Exchange by a Drover subscribed only by a mark, and another hand writing such a man's mark, The Lords did not allow it as probative, but before answer ordained the writer and witnesses to be examined ex officio, February 26. 1662. Brown contra johnstoun of Clacharie. A Writ was sustained though subscribed but by one Nottar, being a Contract of Marriage, whereon Marriage followed, july 19 1662. Breadi● contra Breadie and Murie. A writ was found not to prove, being the Act of a Town Council without Citation or Subscription of the party, bearing consent to a penalty imposed upon unfree-men. February 13. 1663. Town of Linli●hg●w contra unfree-men of Borrowstownness. A writ was sustained though not delivered being in ●avours of the granters Son though a Bastard, February 25. 1663. Aik●nhead contra Aik●nhead. A writ wanting witness designed, was not sustained simply on designation being a very old writ without other adminic●es to astruct, seeing the improbation by such witnesses being dead, was not competent as in recenti, july 15. 1664. Colvil contra Executors of the Lord Colvil. A writ viz. a Bond was found not taken away by witnesses offering to prove payment▪ though the Bond was made in England to Englishmen, where that probation is competent, being made by Scots-men residing in Scotland and registrate here, and so to be regulat by the Law of Scotland, December 8. 1664. Scot contra Anderson and Neilson. A writ was not found null as wanting Writer and Witnesses insert, being made secundum consuetudinem loc● in Ireland, Fe●uary 1. 1665. Elphing stoun of Psalms contra Lord Rollo. A writ quarrelled as thursdays▪ the witnesses not being designed, was not sustained, unless living witnesses were condescended on, or adminicles to astruct the verity of the debt, February 3. 1665. Falco●er contra Earl of King●orn. A writ alleged null because the writer was not designed▪ was sustained upon designing the writer, albeit the writ was old and appeared to have been blank in the sum, Creditor, and Debtor Decem. 5. 1665. Cunninghame contra Duke of Hamiltoun. A writ viz. a Bond was taken away by this manner of probation by oath that it was for a Prentice-see, and by witnesses that the Apprentice was put away within a year and an half after the entry, as to a proportional part of the Prentice-see to the time thereafter, june 15. 1665. Aikman contra A writ being no count Book but some louse Scheduls, was found not probable to instruct a debt against the writer of it, who deponed that he wrote the same, but declared also that he had paid the sum, july 1. 1665. Nasmith contra Bower. A writ wanting witnesses being offered to be proven holograph, albeit it cannot instruct its own date, or that it was subscribed before the Defunct was on deathbed, yet the alleadgance on deathbed was not sustained by way of exception or duply, january 11. 1666. Sea●on and the Laird of Touch contra Dunda●. A writ being an assignation to an apprizing, was taken away partly by the assigneys' oath, and partly by witnesses ex officio, proving that the apprizing with the assignation blank in the assigneys' name was retired, and lying by the assigneys' father who was debtor in the sums and amongst his writs the time of his death, February 27. 166●. Creditors of the Lord Grace contra Lord Grace. A writ was not sustained as having but one witness to that subscription, though another witness generally designed, deponed he saw not that party subscribe, but that the subscription was his hand-writ to the best of his knowledge. and several other subscriptions were adduced to as●ruct the same comparatione l●terarum, seeing there were not two witnesses insert to this subscription, january 4. 1667, Dow of Ar●ho contra Ca●pbel of Calder. A writ being a discharge by a Master to his Tenants was sustained, though without witnesses and not holograph, and without necessity to prove the truth of the Subscription in respect of the common custom to take such discharges, july 4. 1667. S●haw contra Tenants. A writ being a bond was found not probative, having only the clause of Registration and Subscription on the one side▪ and all the rest on the other side with another hand, unless it were astructed with other evidences and adminicles, july 16. 1667. Hamil●oun contra Symontoun. A writ subscribed by Nottars was sound null because the Nottars subscription said that he subscribed for the party, but bear not at his command, which was not allowed to be astructed by the witnesses insert, july 26. 1667. Philip contra Cheap. A writ being a Bond subscribed with initial Letters was sustained, it being found proven the debtor was accustomed so to subscribe, and there being three Witnesses and the Writer examined, whether the facto he subscribed the Bond, two affirmed, and two denied their subscriptions, the Creditor's oath being taken ex officio, affirmed the truth of the debtors subscription, who being a person of good fame and credit, and no improbation insisted in, the Bond was sustained, Novomber 16. 1667. Laird Cultural contra Chapman. A writ having lain 33. years' dormient, witnesses and arbiters were examined ●x officio, whether or not the writ was put blank in the arbiters hands, and being found by the party filled up with five times so much as was their mind, though there was no adminicle in writ to evidence the cause thereof, upon consideration of the long latency of it and the necessity of money the party was in who had it, january 6. 1668. Chis●h●lme contra Rennies. A writ subscribed by a principal party and certain cautioners, bearing the day, place and witnesses of their subscription, and af●er the witnesses names bearing as subscribed by another party as Cautioner at blank, without any thing following either of the date or witnesses; The Bond was not sustained against that Cautioner upon the Creditors condescending on the date and witnesses to be the same with these of the principal and the other Cautioners, but the Lords ex officio ordained the witnesses to be examined whether they saw the Cautioner in question subscribe with the principal and other Cautioners, reserving to their own consideration what the Testimonies ●hould operat, january 24. 1668. Magistrates of contra Earl of Findlator. A Writ wanting witnesses being pursued on against the subscribers Heir, and being offered to be proven holograph, he was admitted to allege that though holograph it could not prove itself to be of the da●● it bear, but was presumed to be subscribed in l●cto, which was sustained being thus proposed without a Reduction, seeing the Bond was not sufficient of itself but needed probation, and the alleadgeance of deathbed was instantly verified by the presumption of Law, that the writ instructed not itself to be before the Defuncts sickness, November 14. 1668. Calderwood contra johnstoun. A writ requiring two Nottars, subscribed but by one was found to be valide, if the verity of the subscription were proven by the subscribers oath, and that it might not be resiled from, but that the oath might not be taken in prejudice of an Assignay for an onerous cause, December 18. 1668. Swintoun contra Brown. Writ cannot be taken away by witnesses, was ●ound not to infer that witnesses cannot be admitted to prove a Bargain anteriour to the writ, upon which bargain the writ may be reduced as posterior in prejudice of Creditors, seeing the payment or discharge of the writ is not proven by the Witnesses, january 21. 1669. Creditors of Pollo●k contra Pollock▪ A writ being a Bill of Exchange subscribed only by a mark and not initial Letters was found to prove, there being some witnesses who deponed they saw the mark put to, and others that the party being a Merchant Drover was accustomed so to subscribe Bills of considerable sums, which were ordinarily accepted, and answered by him, but this being the first writ sustained by a mark, was only approven by all the circumstances and not to be drawn in example, many of the Lords being contrary to the allowing this or any such, February 1. 1669. Brown contra johnstoun of Clacharie. A writ being a Tac●● was found null, as not being subscribed by two Nottars, though it was subscribed by one and a judicial act of Ratification thereof in a Baron Cou●t, which was not found to supply the want of the other Nottar, seeing the first Nottar was Clerk of the sam● Court, and all was but one assertion, December 18. 1668. Swintoun contra Brown. FINIS.