DECISIONS
OF
THE
LORDS
OF
COUNCIL
and
SESSION
,
In
some
Weighty
and
Important
Affairs
before
them
.
Beginning
the
7.
of
December
1665
,
and
ending
the
29.
of
June
1677.
Decision
1st
.
Veatch
contra
Duncan
,
7.
December
1665.
THE
Clause
cum
molendinis
&
multuris
,
importeth
freedom
from
astriction
,
though
it
be
only
in
the
Tenendas
.
Me
referente
.
D.
2.
Burnet
contra
Leys
,
12.
Decemb.
1665.
THe
said
Mr
Robert
Burnet
Son
to
Alexander
Burnet
of
Leys
being
provided
by
his
Grand-Father
Sir
Thomas
Burnet
of
Leys
(
his
Father
having
deceased
before
)
To
the
Sum
of
10000.
Merks
,
to
be
payed
after
his
age
of
25.
Years
;
with
Annualrent
after
that
time
conform
to
a
bond
;
pursued
his
Nephew
Leys
for
the
Annualrent
of
that
Sum
;
at
least
for
an
Aliment
until
he
should
attain
to
that
age
:
Upon
that
ground
,
That
he
could
not
starve
;
and
that
his
Grand-Father
,
whom
the
Defender
represents
as
Heir
having
provided
him
,
as
said
is
,
to
the
foresaid
Sum
to
be
payed
at
the
time
foresaid
,
did
acknowledge
that
he
was
obliged
to
provide
him
being
his
Grand-Child
:
and
that
until
the
time
his
provision
should
be
payable
,
he
and
his
Heirs
were
lyable
to
his
Entertainment
being
Debitum
Naturale
.
The
Lords
this
day
did
Demurre
:
And
the
case
being
of
consequence
as
to
the
preparative
,
thought
fit
it
should
be
further
thought
upon
.
D.
3.
Ferguson
contra
More
.
Eodem
die
.
IN
the
case
Ferguson
contra
More
,
the
Lords
Found
That
Compensation
should
not
be
granted
against
an
Assigney
upon
a
Debt
of
the
cedent
Assigned
to
the
Suspender
;
unless
intimation
had
been
made
to
the
Cedent
,
before
the
Chargers
intimation
of
the
Assignation
made
to
him
by
the
Cedent
.
D.
4.
Inter
Eosdem
,
eod.
die
.
IN
the
same
case
,
two
Persons
being
obliged
Conjunctly
and
severaly
as
principal
Debitors
,
to
pay
a
Tocher
,
without
a
clause
of
relief
pro
rara
,
It
was
found
that
de
Jure
inest
.
D.
5.
Pringle
contra
Cranston
.
eod.
die
.
IN
the
case
Pringle
of
Greenknow
contra
Cranstoun
,
Found
that
a
subvassal
being
infeft
by
a
Baron
cum
Curiis
&
Bloodwitis
,
may
hold
Courts
and
unlaw
for
Blood
.
D.
6.
Eleis
contra
Keith
and
Wiseheart
,
15.
Decemb.
1665.
IN
the
case
betwixt
Mr
John
Eleis
and
Mr
Alexander
Keith
and
Wiseheart
,
It
was
Found
That
Elizabeth
Keith
Spouse
to
Mr
William
Wiseheart
Minister
at
Leith
,
having
by
Bond
,
granted
by
her
Husband
and
her
,
obliged
her self
to
pay
to
the
said
Mr.
John
,
the
Sum
of
6000.
merks
:
and
for
his
further
suretie
to
infeft
him
in
certain
Lands
pertaining
to
her
;
which
bond
contained
a
procuratory
of
resignation
:
The
said
bond
though
null
as
to
the
obligement
to
pay
the
said
Sum
,
was
valide
as
to
the
Right
of
the
Lands
:
And
that
the
said
Elizabeth
,
having
thereafter
disponed
the
said
Lands
in
defraud
and
prejudice
of
the
said
Mr
John
,
was
lyable
to
the
said
Mr
John
,
and
upon
that
ground
,
The
Lords
found
the
said
Mr
John
as
Creditor
to
the
said
Elizabeth
,
might
question
any
fraudulent
Rights
made
by
her
to
his
prejudice
.
D.
7.
Grants
and
Row
contra
Visc
.
of
Stormont
,
eod.
die
.
DAvid
Viscount
of
Stormont
having
obtained
a
Decreet
of
Reduction
against
_____
Grants
,
of
their
Right
of
certain
Lands
,
for
not
production
.
_____
Grants
and
_____
Row
,
did
reduce
the
said
Decreet
against
_____
now
Viscont
of
Stormont
,
upon
production
of
the
Rights
called
for
in
the
first
Decreet
:
And
in
this
Reduction
,
The
Lords
did
suffer
and
admit
the
said
Viscount
to
insist
in
the
said
first
Reduction
,
he
produceing
the
said
David
Viscount
of
Stormont
his
Right
and
instructing
that
he
represents
him
;
Though
the
said
first
Process
was
not
transferred
in
the
Person
of
the
said
Viscount
active
;
and
against
the
Pursuers
of
this
Reduction
passive
;
and
the
summonds
of
Reduction
,
whereupon
the
first
Decreet
,
proceeded
was
not
produced
:
Which
The
Lords
allowed
to
be
supplyed
by
production
of
the
Decreet
,
and
a
paper
containing
such
reasons
of
Reduction
,
as
Stormont
thought
fit
to
give
in
:
And
that
in
respect
it
was
the
fault
of
the
Defenders
in
the
first
Reduction
,
that
the
Writs
were
not
then
produced
:
And
they
and
these
having
Right
from
them
being
reponed
,
it
was
just
that
Stormont
and
his
Heirs
should
be
likewise
reponed
.
D.
8.
McLeod
contra
Young
.
19.
Decemb.
1665.
WAlter
Young
,
Harie
Hope
and
_____
having
Written
to
the
Lord
McDonald
,
that
they
had
commissionated
_____
Donaldson
to
buy
Cows
for
their
use
;
and
that
for
such
as
should
be
bought
from
him
they
obliged
themselves
to
pay
all
such
Bills
as
should
be
drawn
upon
them
:
and
the
said
Donaldson
having
drawn
a
Bill
upon
the
saids
Persons
and
any
of
them
:
Found
,
that
in
respect
they
were
partners
and
socii
as
to
the
bargain
,
and
the
Lord
McDonald
had
upon
their
letter
trusted
and
sold
the
Cows
to
the
said
Donaldson
,
they
ought
to
be
lyable
in
solidum
conjunctly
and
severaly
.
D.
9.
Dickson
contra
Sandilands
.
21.
Decemb.
1665.
IN
the
case
betwixt
_____
Dickson
of
Killoch
and
Sandilands
his
Mother
and
her
present
Husband
:
It
was
Found
,
that
a
Husband
being
obliged
by
Contract
of
Marriage
,
to
provide
the
liferent
of
such
Lands
as
he
should
acquire
during
the
Marriage
,
to
his
Wife
in
liferent
;
and
to
the
Heirs
of
the
Marriage
:
and
his
Heir
being
pursued
for
implement
,
and
for
resigning
certain
Lands
acquired
by
the
Husband
for
a
liferent
to
the
Relict
;
The
Relict
her
liferent
and
Right
should
be
with
the
burden
of
a
Sum
of
Money
borrowed
by
the
Husband
,
for
making
the
said
purchass
;
as
to
the
Annualrent
of
the
said
Debt
during
the
Relicts
Lifetime
.
The
Lords
considered
,
that
though
,
in
order
to
other
ends
and
effects
,
and
in
special
to
determine
the
Succession
in
favours
of
an
Heir
of
conquest
,
whatever
Lands
are
acquired
by
any
person
titulo
singulari
are
esteemed
Conquest
:
yet
in
Contracts
of
Marriage
such
obligements
anent
conquest
,
are
to
be
understood
of
what
is
acquired
by
the
Husband
with
his
own
means
and
Moneys
;
seing
what
is
acquired
otherwayes
(
the
Price
or
a
part
of
it
being
borrowed
,
and
the
Husband
being
Debitor
for
the
same
)
upon
the
matter
,
and
in
effect
,
is
not
conquest
and
a
free
accession
to
the
Husbands
Estate
;
in
so
far
as
the
Price
is
a
burden
upon
the
Husbands
Estate
:
and
as
the
Husband
,
if
he
had
been
charged
himself
,
might
have
satisfied
the
obligement
by
giving
an
Infeftment
with
the
foresaid
burden
,
so
the
Heir
may
do
the
same
.
D.
10.
Lepar
contra
Burnet
.
23.
Decemb.
1665.
IN
the
case
betwixt
Lepar
and
Dam
Rachel
Burnet
and
the
Laird
of
Prestoun
her
present
Husband
;
these
questions
were
agitated
and
decided
.
1.
If
a
Husband
get
,
in
Tocher
with
his
Wife
being
an
Heretrix
,
more
than
an
ordinary
and
competent
Tocher
,
which
he
might
have
gotten
with
another
;
The
Husband
and
his
Heirs
will
be
lyable
,
after
the
Marriage
is
dissolved
by
the
Wifes
decease
,
in
quantum
lucratus
est
,
for
the
Wifes
Debt
:
And
the
lucrum
will
be
considered
,
to
be
the
benefit
he
has
gotten
above
an
ordinary
Tocher
.
2.
The
Lords
inclined
to
think
,
That
though
a
decreet
of
registration
was
obtained
against
the
Wife
and
her
Husband
for
his
interest
;
The
Husband
will
not
be
lyable
,
the
Marriage
and
his
interest
ceasing
:
And
that
an
ordinary
Tocher
being
ad
sustinenda
onera
,
is
not
lucrum
.
3.
Heirs
portioners
are
lyable
for
their
own
part
;
reserving
action
in
case
any
of
them
become
irresponsal
:
and
if
the
Creditor
having
done
diligence
cannot
recover
their
parts
,
he
may
have
recourse
against
the
rest
.
4.
It
was
moved
(
but
not
decided
)
whether
the
others
being
non
solvent
,
The
responsal
Heir
should
be
lyable
for
their
proportion
in
solidum
?
Or
only
for
What
he
has
gotten
of
the
defuncts
Estate
?
D.
11.
Bryand
contra
Grhame
.
3.
January
1666.
IN
the
case
betwixt
Mr
Andrew
Bryand
and
George
Grhame
,
The
said
George
being
constitute
assigney
to
a
Bond
granted
by
the
said
Bryaend
to
Thomas
Iack
:
And
having
charged
thereupon
,
The
Suspender
offered
to
improve
the
Bond
;
and
urged
the
charger
to
bide
by
the
same
,
which
he
was
content
to
doe
in
these
terms
.
Viz.
That
he
did
abide
by
the
said
Bond
as
truely
assigned
and
delivered
to
him
by
the
cedent
:
And
that
the
cedent
would
compear
and
abide
by
the
same
as
a
true
Bond.
The
Suspender
answered
,
that
the
cedent
was
lapsus
,
and
had
come
out
of
Prison
upon
a
Bonorum
;
and
therefore
he
ought
to
find
Caution
to
compear
all
the
dyets
of
the
Process
.
The
Lords
found
,
that
the
cedent
should
abide
by
the
said
Bond
;
with
certification
,
that
if
he
should
not
appear
when
the
Lords
should
think
fit
,
for
clearing
the
question
anent
the
falsehood
of
the
Bond
by
his
oath
or
Examination
;
the
Bond
should
be
declared
to
be
void
;
and
to
make
no
faith
both
as
to
cedent
and
assigney
.
D.
12.
Falconer
contra
E.
of
Kinghorn
.
4.
January
1666.
THe
Laird
of
Drum
as
Principal
,
and
the
Earl
of
Kinghorn
and
others
as
Cautioners
,
being
Debitors
to
Robert
Falconar
by
a
Bond
granted
in
anno
1640
;
And
the
said
Robert
having
pursued
this
Earle
of
Kinghorn
(
as
representing
his
Father
)
upon
the
said
Bond
:
It
was
alledged
,
the
Bond
was
null
as
to
the
Earl
of
Kinghorn
,
in
respect
there
was
no
witness
designed
to
his
subscription
:
And
it
being
Replyed
,
that
two
of
the
name
of
Lyon
were
subscribing
witnesses
;
and
tho
they
were
neither
designed
witness
to
Kinghorn
his
subscription
,
but
subscribed
witness
indefinite
;
and
albeit
they
were
not
otherwise
designed
,
as
they
ought
to
be
conform
to
the
Act
of
Parliament
by
their
Dwelling
or
otherwise
;
yet
they
were
truely
witnesses
;
and
the
pursuer
may
and
doth
now
design
them
:
and
this
Defender
had
no
prejudice
,
one
of
the
witnesses
being
yet
on
life
:
So
that
if
he
thought
fit
to
improve
,
the
means
and
direct
manner
of
Improbation
was
yet
competent
.
The
Lords
allowed
the
Pursuer
to
design
,
which
they
would
not
have
done
,
if
both
the
witnesses
had
been
deceased
.
D.
13.
Lady
Bute
contra
Sheriff
of
Bute
.
5.
January
1666.
THe
Lady
Bute
Dam
Grissel
Campbel
being
Contracted
and
Proclaimed
with
Mr.
James
Grahame
;
in
the
interim
before
her
Marriage
,
was
induced
(
and
as
she
pretended
forced
)
to
grant
a
Disposition
,
and
Discharge
of
a
part
of
her
Joynture
in
favours
of
her
Son
the
Sherrif
of
Bute
;
he
having
,
after
the
first
Proclamation
of
their
Bannes
,
stopped
any
further
proceding
until
he
extorted
the
said
deeds
.
The
Lords
(
in
a
Reduction
of
the
saids
deeds
at
the
instance
of
the
Lady
and
her
Husband
)
found
,
that
post
Sponsalia
and
Banna
,
she
was
not
sui
juris
;
and
could
doe
no
deed
in
prejudice
either
of
her
Husband
or
her self
without
his
consent
:
And
that
she
was
in
the
same
condition
,
as
if
she
were
Marryed
.
And
therefore
the
Lords
found
the
reasons
relevant
,
for
reduceing
the
saids
Rights
,
both
as
to
her
Husband
and
her self
.
It
was
alledged
,
that
the
Husband
had
consented
,
in
so
far
as
after
the
saids
deeds
were
done
,
he
knew
the
same
;
and
yet
proceeded
to
Marry
:
The
Lords
repelled
the
Alledgance
.
D.
14.
Oliphant
contra
Drummond
.
6.
January
1666.
IN
a
special
Declarator
,
at
the
instance
of
Sir
James
Drummond
of
Machany
having
Right
by
Assignation
,
to
the
Escheat
of
the
Lord
Rollo
,
and
his
Brother
Sir
John
Rollo
of
Bannockburn
;
from
Walter
Stuart
Donatar
to
the
same
:
Sir
Laurence
Oliphant
and
Gavin
Drummond
,
Who
were
also
Donators
to
the
Escheat
and
liferent
of
the
said
Rebells
,
and
had
recovered
a
general
Declarator
;
and
had
intented
a
special
;
having
compeared
and
desireing
preference
,
alledging
that
the
pursuers
gift
was
null
and
simulate
;
in
respect
by
the
Act
of
Parliament
1592.
cap.
149.
Praesumptio
juris
&
de
jure
,
is
introduced
:
And
it
is
statute
,
that
it
shall
be
a
relevant
exception
against
any
pretending
Title
by
Assignation
or
Gift
of
Escheat
of
the
Rebel
,
to
alledge
,
that
the
Rebel
his
Wife
and
Bairns
remained
in
possession
;
and
it
was
subsumed
,
that
the
Pursuer
and
his
Cedent
had
suffered
the
Rebel
to
continue
in
possession
,
since
the
date
of
the
Gift
in
Anno
1658.
The
Lords
found
,
that
the
Rebels
having
been
in
possession
a
considerable
time
by
the
space
of
five
years
or
thereabout
;
the
Gift
,
by
the
Act
of
Parliament
,
is
presumed
to
be
simulate
.
2.
That
though
the
Donatar
Walter
Stuart
was
a
Creditor
,
it
doth
not
alter
the
case
;
Seing
he
might
be
(
and
Law
presumeth
he
was
)
satisfied
;
and
Gifts
being
ordinarly
affected
with
Back-bonds
,
it
was
his
fault
that
he
was
not
satisfied
:
And
that
he
should
not
by
his
negligence
and
collusion
prejudge
other
Creditors
,
who
would
have
Right
after
he
had
been
satisfied
.
3.
That
the
Pursuer
having
assigned
his
Right
,
the
assigney
is
in
no
better
case
,
&
utitur
jure
Authoris
.
4.
That
the
reply
,
that
the
Lands
were
comprysed
,
is
not
relevant
;
unless
it
were
alledged
,
that
the
Pursuer
or
his
Cedent
had
done
diligence
to
attain
possession
,
but
was
excluded
by
the
compryser
.
Jo.
Hay
Clerk
.
D.
15.
Brown
contra
Veatch
and
Scot.
9.
January
1666.
IN
the
case
Broun
contra
Veatch
and
Scot
,
It
was
found
,
after
contentious
debate
in
Praesentia
,
At
the
Barr
,
and
betwixt
the
Lords
;
That
an
Infeftment
of
Warrandice
base
,
to
be
holden
of
the
granter
,
should
be
preferable
to
a
publick
Infeftment
of
property
granted
thereafter
holden
of
the
Superior
,
and
cled
with
possession
diverse
years
:
And
that
the
possession
of
the
Principal
Lands
should
be
interpreted
the
possession
of
the
Warrandice
Lands
.
Some
of
the
Lords
were
of
another
Iudgment
upon
these
grounds
.
1.
By
the
Act
of
Parliament
Ja.
5.
par.
7.
cap
150.
(
Entituled
provision
and
pains
of
them
committand
fraud
in
alienation
and
otherwise
)
a
publick
Infeftment
is
preferable
to
a
base
not
cled
with
possession
though
anterior
:
And
both
the
verba
and
Ratio
Legis
,
do
militate
in
favours
of
the
Heretor
by
a
publick
Infeftment
;
The
intention
and
end
of
the
Law
being
to
obviat
fraud
and
prejudice
by
latent
Infeftments
:
And
it
being
all
one
,
as
to
the
interest
and
prejudice
of
the
party
who
acquireth
Lands
,
whether
the
privat
and
latent
Infeftment
be
a
Right
of
property
or
Warrandice
,
Seing
an
Infeftment
of
Warrandice
,
when
the
principal
Lands
are
evicted
,
becometh
an
Infeftment
of
Property
.
2.
The
Act
of
Parliament
foresaid
of
K.
Ja.
5th
.
is
not
taken
away
by
the
Act
of
Parliament
K.
James
6.
Par.
17.
anent
Registration
of
Seasins
;
in
respect
,
an
Infeftment
of
property
being
base
,
though
Registrate
and
Anterior
,
will
be
null
in
prejudice
of
a
party
,
who
has
acquired
a
Right
by
a
posterior
publick
Infeftment
:
And
both
the
saids
Acts
of
Parliament
,
being
remedia
quae
tendunt
ad
eundem
finem
,
though
the
hazard
be
not
so
great
as
to
the
prejudice
by
latent
and
private
Infeftments
,
since
the
Act
of
Parliament
anent
Registration
of
Seasins
:
The
said
Act
of
Parliament
1617.
doth
not
derogate
to
the
Act
of
Parliament
,
K.
Ja.
5.
3.
As
to
that
pretence
,
That
the
possession
of
the
principal
Lands
is
the
possession
of
the
Warrandice
fictione
Juris
,
It
was
Answered
,
That
there
is
no
such
fictio
warranted
by
any
Law
:
and
so
it
is
Fictio
,
but
not
Juris
.
2do
.
It
is
a
Fictio
contra
Jus
,
&
cui
Jus
resistit
;
in
respect
the
Heretor
by
the
publick
Infeftment
of
property
being
in
possession
,
no
other
person
can
be
said
to
be
in
possession
,
seing
there
cannot
be
two
Domini
in
solidum
,
nor
two
Possessores
by
distinct
Rights
,
having
no
subordination
or
dependance
one
upon
another
,
as
Liferenter
and
Fiar
,
Superior
and
Vassal
,
Master
and
Tennent
;
or
such
like
.
4.
It
is
clear
,
that
the
possession
of
the
principal
Lands
cannot
be
thought
the
possession
of
the
Warrandice
;
Seing
if
after
Fourty
Years
the
principal
Lands
should
be
evicted
;
and
a
pursuit
for
Warrandice
and
recourse
should
be
in
ented
upon
the
Right
of
Warrandice
,
though
Prescription
cannot
be
obtruded
,
yet
if
there
be
any
defect
in
the
Infeftment
of
Warrandice
,
as
v.
g.
The
Disposition
is
subscribed
by
one
Notar
,
or
such
like
;
The
same
may
be
alledged
:
Whereas
,
if
that
Infeftment
were
cled
with
Fourty
Years
Possession
,
the
Right
would
be
prescribed
,
and
could
not
be
questioned
upon
any
Ground
whatsoever
,
but
Falsehood
.
In
this
Process
,
It
was
Questioned
whether
the
Heretor
,
who
had
the
publick
Infeftment
,
having
been
in
Possession
above
Seven
Years
,
should
have
the
benefite
of
a
possessory
Judgement
,
until
a
Declarator
and
a
Decreet
in
petitorio
.
Some
of
the
Lords
thought
,
that
in
the
case
of
Warrandice
,
the
Heretor
should
not
have
the
benefite
of
a
Possessory
Judgement
against
the
Pursuer
upon
an
Infeftment
of
Warrandice
;
quia
non
valebat
agere
:
But
the
question
was
not
decided
.
D.
16.
Cranston
contra
Wilkison
,
14
July
1666.
BEtwixt
Cranston
and
Wilkison
,
It
was
Found
(
Newbyth
Reporter
)
That
a
Person
being
conveened
as
representing
his
Father
,
who
was
alledged
to
be
vitious
Intrometter
to
the
Pursuers
Debitor
;
the
Title
being
passive
and
penal
could
not
be
a
Ground
of
Action
against
the
Defender
to
make
him
Lyable
to
the
whole
Debt
;
But
only
in
so
far
as
should
be
proven
the
Defunct
did
Intromet
,
and
was
Locupletior
:
quia
actio
poenalis
non
transit
inhaeredem
:
And
the
Defunct
if
he
had
been
pursued
in
his
own
Life
,
might
have
purged
the
said
Title
.
D.
17.
Burnet
contra
Johnston
17.
July
1666.
JOhnston
of
Frosterhil
having
Disponed
his
Lands
with
absolute
Warrandice
in
favours
of
Gordon
of
Birsemoir
;
Reserving
his
own
and
his
Wifes
Liferent
:
and
thereafter
having
Disponed
the
same
Lands
in
favours
of
Mr.
William
Johnston
;
who
did
obtain
the
first
Infeftment
:
And
being
charged
at
the
instance
of
Alexander
Burnet
,
having
Rght
by
Assignation
to
the
Disposition
in
favours
of
Birsemoir
;
The
Letters
were
found
orderly
proceeded
;
notwithstanding
the
Suspender
alledged
the
Charger
had
no
interest
dureing
the
Suspenders
Life
;
Seing
he
never
did
nor
could
possess
;
by
reason
of
the
Reservation
foresaid
.
And
the
Lords
found
a
difference
,
when
Warrandice
is
craved
upon
a
deed
of
the
Party
obliged
,
and
upon
any
other
ground
:
And
that
as
to
his
deed
he
may
be
charged
to
purge
it
,
without
necessity
to
alledge
a
Distress
.
D.
18.
Wedderburn
contra
Scrimzeour
,
18.
July
.
1666.
A
Father
having
left
a
Legacy
,
thinking
his
Wife
was
with
Child
;
in
these
terms
,
That
if
his
Wife
should
have
a
Male
Child
the
Legatar
should
have
the
Sum
of
4000
Merks
:
And
that
if
she
should
have
a
Daughter
,
the
Legatar
should
have
the
Sum
of
5000
Merks
.
The
Lords
Found
,
That
though
she
had
no
Child
,
the
Legacy
should
be
effectual
ex
praesumpta
voluntate
Testatoris
;
seing
it
cannot
be
thought
,
but
that
he
rather
intended
a
Legacy
for
him
,
if
he
had
no
Child
;
Than
in
the
case
she
should
bring
forth
a
Child
:
Et
in
conditionibus
primum
locum
obtinet
voluntas
Defuncti
,
eaque
regit
conditiones
.
L.
19.
ff.
de
conditionibus
.
Newbyth
Reporter
.
D.
19.
Steill
contra
Hay
.
Eeod
.
die
.
A
Tennent
being
Ejected
,
Ejection
was
sustained
at
the
Masters
instance
;
though
the
Tennent
did
not
concur
:
But
it
was
not
sustained
quoad
omnes
effectus
,
viz.
As
to
violent
profits
,
Juramentum
in
litem
;
but
only
that
the
Master
should
be
in
the
same
condition
he
was
before
the
Ejection
;
and
should
have
the
same
manner
of
possession
as
if
the
Land
were
not
void
;
and
to
uplift
the
duties
;
and
to
put
in
and
remove
Tennents
.
And
for
the
Bygone
ordinary
Duties
,
in
the
same
Process
,
it
was
Found
,
that
the
pursuer
,
though
he
was
not
Infeft
,
but
only
Appearand
Heir
to
the
Pursuer
who
was
Infeft
,
might
pursue
the
said
Action
,
to
recover
his
Possession
,
having
been
in
possession
before
.
D.
20.
Hedderwick
contra
Wauch
.
Eod.
die
.
THE
Commissioners
for
the
Borders
,
upon
the
Verdict
of
the
Inquest
that
the
Pannel
was
guilty
of
Receipt
of
Theft
,
having
ordained
the
Pannel
to
pay
100
lib.
Sterl
.
within
a
short
time
;
and
if
he
should
faill
to
be
sent
to
Barbadoes
and
loss
his
Escheat
.
The
Lords
Found
,
That
by
that
Verdict
,
there
did
arise
to
his
Majesty
,
the
Casuality
of
his
Escheat
:
Whereof
there
being
Jus
quaesitum
;
The
King
and
his
Donator
could
not
be
prejudged
by
a
Doom
which
is
contrary
to
Law
:
And
that
in
such
cases
of
Capital
Crimes
,
the
Law
having
determined
the
pain
,
and
especially
the
loss
of
the
Escheat
;
no
Judge
(
even
the
Justice
General
)
could
moderate
or
lessen
the
samen
.
D.
21.
Bisset
contra
Broun
.
19
July
.
1666.
IT
was
Found
nemine
contradicente
;
That
a
Stranger
residing
in
Holland
,
animo
morandi
or
elsewhere
:
Though
by
the
Law
of
the
place
,
his
nearest
of
Kin
,
without
confirmation
,
has
Right
to
all
Goods
or
Debts
belonging
to
him
:
Yet
if
the
Debt
or
Goods
be
due
by
Scots-men
,
or
be
in
Scotland
,
they
cannot
pursue
for
the
same
,
unless
the
Right
thereof
be
setled
upon
them
,
according
to
the
Law
of
Scotland
,
by
confirmation
if
they
be
Moveables
:
Or
by
a
Service
if
they
be
Heretable
.
Hay
Clerk
.
D.
22.
Thomson
contra
McKitrick
.
Eod.
die
.
FOund
,
that
a
Comprysing
may
be
deduced
upon
an
Heretable
Bond
,
whereupon
Infeftment
had
followed
,
the
same
being
payable
without
requisition
;
albeit
a
Charge
of
Horning
do
not
preceed
;
seing
there
may
be
poinding
upon
such
a
Bond
:
And
there
is
Eadem
Ratio
as
to
Comprysings
;
and
the
Denounciation
is
a
sufficient
Intimation
,
that
the
Compryser
intendeth
to
have
his
Money
.
Hay
Clerk
.
In
the
same
Cause
,
The
Lords
having
sustained
a
Seasin
of
burgage
Lands
,
whereto
the
Sheriff-clerk
was
Notar
,
there
being
no
Town
Clerk
for
the
time
,
by
reason
in
the
time
of
the
English
Usurpation
,
The
Magistrates
and
Clerk
refused
the
Tender
.
The
Lords
Found
,
That
the
said
Seasin
being
within
Burgh
,
though
not
under
the
hand
of
the
Clerk
,
was
not
null
upon
that
Ground
that
it
was
not
Registrate
;
Because
though
the
reason
of
the
Act
of
Parliament
for
Registration
of
Seasins
,
and
the
exception
of
Seasins
within
Burgh
,
be
,
that
Seasins
within
Burgh
are
in
use
to
be
Registrate
by
the
Clerks
in
the
Towns
Books
;
yet
the
said
reason
is
not
exprest
in
the
Act
of
Parliament
:
and
the
Act
of
Parliament
excepting
Burgal
Seasins
,
the
Party
was
in
bona
fide
to
think
that
there
was
no
necessit
of
Registration
.
D.
23.
Eleis
contra
Wiseheart
Eod.
die
.
A
Wife
being
obliged
with
her
Husband
to
pay
a
Sum
of
Money
,
and
to
Infeft
a
Creditor
in
her
Land
:
Though
the
Bond
was
not
sustained
as
to
the
personal
obligement
to
pay
,
yet
it
was
found
valid
as
to
the
obligement
to
Infeft
,
and
the
Procuratorie
of
Resignation
contained
in
the
Bond
:
And
the
Wife
notwithstanding
,
having
Disponed
her
Land
,
she
was
found
Lyable
for
the
Sums
as
Damnage
and
Interest
.
This
Decision
seemeth
hard
,
In
respect
albeit
a
Woman
may
Dispone
her
Land
with
consent
of
her
Husband
;
yet
she
cannot
bind
to
pay
a
Sum
of
Money
;
And
in
the
case
foresaid
,
non
agebatur
that
she
should
Dispone
her
Lands
;
But
that
she
should
be
Lyable
to
the
Creditor
,
and
for
surety
he
should
be
secured
in
her
Land
,
And
the
principal
obligation
being
void
,
the
accessory
of
surety
could
not
subsist
.
D.
24.
Eodem
Die
.
IT
was
debated
but
not
decided
,
whether
the
Tenor
of
a
Comprysing
may
be
proven
;
there
is
an
Act
of
Parliament
.
Ja.
6.
Parl.
6.
That
the
Tenor
of
Letters
of
Horning
should
not
be
proven
;
and
there
is
Eadem
if
not
more
Ratio
as
to
Comprysings
,
the
Solemnities
being
greater
and
more
:
And
if
a
Comprysing
,
which
is
in
effect
the
Execution
of
a
Messenger
,
may
be
made
up
by
a
probation
of
the
Tenor
;
a
paritate
rationis
,
Poindings
,
and
Interruptions
of
Prescription
by
Citations
,
and
Executions
,
and
Intimations
of
Assignations
,
may
be
made
up
by
Witnesses
;
and
Arrestments
and
Decreets
.
D.
25.
Minister
of
Moram
contra
Bairfoot
.
Eodem
die
.
THE
Minister
of
Moram
having
pursued
a
Reduction
of
a
Tack
,
set
by
his
predecessor
;
upon
that
Ground
that
it
was
above
three
years
,
without
consent
of
the
Earl
of
Buccleugh
Patron
for
the
time
:
The
Tack
was
sustained
,
in
respect
Francis
Stuart
had
consented
,
in
whose
Favours
Buccleugh
,
by
a
Decreet
Arbitral
,
was
obliged
to
denude
himself
of
the
Patronage
.
This
Decision
seemeth
to
be
hard
;
seing
Buccleugh
was
full
Patron
,
and
was
not
denuded
by
the
said
Decreet
:
And
the
Right
of
the
Patronage
might
either
have
been
Comprysed
from
him
,
or
Disponed
by
him
effectually
,
notwithstanding
of
the
said
Decreet
,
which
did
not
settle
the
Right
of
the
Patronage
in
the
said
Francis
his
person
;
but
was
only
the
Ground
of
a
personal
Action
against
Buccleugh
,
for
denuding
him
of
the
Right
of
the
Patronage
:
And
as
Francis
could
not
present
,
so
he
could
not
consent
as
Patron
to
Tacks
:
Upon
these
considerations
diverse
of
the
Lords
were
of
the
contrair
Opinion
.
D.
26.
McKenze
contra
Fairholme
24.
July
.
1666.
IN
the
case
of
Mckenzie
against
Mr.
John
Fairholme
:
Sir
George
Mckenzie
,
having
by
way
of
Reduction
questioned
a
Bond
granted
by
his
Father
,
and
himself
as
Cautioner
,
as
null
ipso
facto
:
Upon
that
Ground
that
he
was
Minor
when
he
Signed
the
Bond
:
And
his
Father
being
Administrator
of
the
Law
,
and
in
effect
Curator
to
him
,
had
not
Authorized
him
as
Cautioner
;
and
could
not
be
author
in
Rem
suam
,
the
Pursuer
becoming
Cautioner
in
Rem
,
and
at
the
desire
and
in
behalf
of
his
Father
.
The
Lords
did
not
this
day
decide
the
Question
;
some
being
of
Opinion
,
That
a
Father
,
though
if
his
Children
be
Impuberes
and
Pupils
,
be
the
Tutor
and
Administrator
of
Law
,
ye
he
is
not
Curator
to
his
Children
being
Puberes
:
Seing
a
Son
if
he
should
desire
other
Curators
to
be
given
him
,
his
desire
could
not
be
refused
:
Et
habenti
Curatorem
Curator
non
datur
.
Vide
infra
26.
July
1666.
And
7.
Decemb.
1666.
D.
27.
Petrie
contra
Richart
.
eod.
die
.
RIchart
of
Auchnacant
having
a
Wadset
of
12000.
Merks
from
Buchan
of
Portlethem
;
did
thereafter
enter
in
a
second
Contract
with
Buchans
Son
and
Heir
who
had
Right
to
the
reversion
;
and
diverse
years
Back-tack-duties
being
accumulated
and
made
a
Principal
Sum
,
it
was
agreed
that
there
should
be
no
Redemption
but
by
payment
of
the
Sum
contained
in
the
said
second
Contract
,
made
up
as
said
is
of
the
Sum
contained
in
the
said
second
Contract
,
and
the
Back-tack-duties
;
and
by
payment
of
the
Annualrents
so
accumulated
:
Mr
Petrie
Provest
of
Aberdeen
having
acquired
the
Right
of
reversion
,
and
having
used
an
Order
of
Redemption
,
and
thereupon
having
intented
Declarator
,
it
was
alledged
,
that
he
should
have
consigned
the
Sum
contained
in
the
said
second
Contract
,
which
he
could
not
misken
,
by
reason
as
he
not
only
knew
of
the
said
second
Contract
before
he
acquired
the
said
Right
,
but
acted
in
relation
to
the
said
Contract
and
in
effect
homologate
the
same
:
In
so
far
as
,
1.
By
the
said
second
Contract
he
and
certain
other
persons
being
named
and
appointed
to
determine
the
question
,
betwixt
Richart
and
Buchan
,
what
should
be
paid
to
Buchan
for
the
charges
he
had
been
at
in
prosecuting
his
Right
against
Richart
,
The
said
Petrie
had
accepted
a
submission
relating
to
the
said
second
Contract
,
whereupon
a
Decreet
arbitral
did
follow
,
ordaining
300
merks
to
be
paid
to
Buchan
for
his
charges
.
2.
By
the
second
Contract
,
Buchan
was
obliged
to
cause
Petrie
(
being
his
friend
)
to
give
bond
that
he
shovld
engage
for
Buchan's
performance
of
the
said
second
Contract
:
and
accordingly
Buchan
being
charged
to
fulfill
that
head
of
the
said
Contract
,
had
procured
a
Bond
from
the
said
Petrie
and
produced
it
in
Judgment
the
time
of
the
discussing
of
the
suspension
.
3.
Petrie
had
assigned
the
300.
Merks
of
charges
modified
by
himself
;
and
the
instrument
of
intimation
of
the
Assignation
mentioned
the
said
Sum
to
have
been
modified
by
the
Decreet
arbitral
;
proceeding
upon
the
said
Contract
:
From
these
Acts
it
was
urged
,
that
knowing
and
having
homologate
the
said
Contract
in
manner
foresaid
,
he
was
in
pessima
fide
to
take
a
Right
in
prejudice
of
the
Defenders
,
and
to
pretend
to
be
in
better
case
than
his
Author
.
The
Lords
notwithstanding
Found
that
the
said
second
Contract
not
being
Registrat
in
the
Register
of
Reversions
,
he
was
not
obliged
to
take
notice
of
it
;
and
might
redeem
by
payment
of
the
Sums
contained
in
the
first
Contract
.
It
was
acknowledged
by
some
of
these
who
were
for
the
decision
,
that
these
Acts
imported
an
Homologation
,
But
the
second
Contract
though
by
our
Law
valid
,
was
not
favourable
,
and
was
against
the
common
Law
;
in
so
far
as
the
accumulating
Annualrents
to
be
a
principal
Sum
,
is
usura
usurarum
〈◊〉
〈◊〉
〈◊〉
〈◊〉
〈◊〉
.
I
have
often
urged
that
favour
is
not
nomen
juris
,
and
Law
ought
to
be
uniform
,
and
not
Lesbia
Regula
plyable
and
variable
upon
pretences
of
favourable
or
not
favourable
:
Sed
nunquam
credita
Teucris
Cassandra
.
D.
28.
Harper
contra
Hamilton
.
25.
July
1666.
IN
the
case
Mr
John
Harper
contra
Hamilton
his
Vassal
;
It
was
decided
,
that
after
the
intenting
a
general
Declarator
of
Non-entry
,
the
Vassal
should
be
lyable
not
only
for
the
retoured
dutie
,
but
for
the
ordinary
mails
and
duties
of
the
Land
:
Though
some
were
of
the
opinion
,
that
before
Sentence
the
Vassal
should
only
be
lyable
for
the
retoured
dutie
.
D.
29.
Wilkie
contra
eod.
die
.
SIr
John
Wilkie
of
Foulden
having
intented
a
Reduction
of
a
voluntar
Interdiction
made
by
him
to
some
of
his
friends
.
The
Lords
appointed
some
of
their
number
to
conferr
with
him
:
and
,
upon
their
Report
that
he
was
rational
and
intelligent
;
and
,
for
any
thing
appeared
by
his
discourse
and
deportment
,
Rei
suae
providus
;
The
Lords
Reduced
in
absence
;
there
being
no
compearance
or
opposition
for
the
Interdicters
.
D.
30.
The
Lyon
contra
26
July
1666.
BY
the
Act
of
Parliament
Ja.
6.
Parl.
11.
cap
46.
It
is
ordained
,
that
Officers
of
Arms
should
find
suretie
to
the
Lyon
,
for
observation
of
their
Injunctions
,
under
the
pain
of
500.
Merks
,
with
the
damnage
and
interest
of
the
party
greived
by
the
malversation
,
negligence
,
or
informality
of
the
Officer
.
In
a
process
betwixt
the
Lyon
and
_____
It
was
controverted
,
whether
the
Cautioner
might
be
pursued
before
the
Lyon
for
payment
of
the
Debt
,
as
damnage
and
interest
,
by
reason
of
the
malversation
of
the
Officer
of
Arms
in
a
poynding
.
It
was
alledged
,
that
the
Lyon
was
a
criminal
Judge
,
and
most
competent
as
to
the
Question
,
whether
the
Messenger
had
committed
iniquity
,
and
malversed
in
his
Office
,
and
whether
he
should
be
deprived
;
and
he
and
his
Cautioner
had
incurred
and
should
be
lyable
to
the
pain
aforesaid
:
But
as
to
the
civil
action
against
the
Cautioner
,
there
might
be
a
good
ground
of
action
against
the
Cautioner
,
upon
the
act
of
caution
before
the
competent
Judge
;
But
the
Lyon
,
being
Judex
pedaneus
,
was
not
Judge
of
actions
of
that
nature
and
consequence
,
In
respect
they
may
be
of
great
difficulty
and
importance
:
For
if
the
Cautioner
should
be
pursued
for
payment
of
the
Debt
,
being
supposed
to
be
1000
merks
,
upon
pretence
of
the
malversation
of
the
Officer
,
and
that
he
had
not
done
his
dutie
in
poynding
and
comprysing
;
It
were
hard
and
dangerous
,
that
the
Lyon
and
his
Bretheren
should
be
Judges
in
a
matter
of
that
consequence
:
And
it
will
not
follow
,
that
because
the
Messenger
had
not
done
his
dutie
in
a
Caption
or
comprysing
,
that
his
Cautioner
should
be
lyable
for
the
Debt
as
damnage
and
interest
;
Seing
the
Caption
and
Comprysing
might
have
been
ineffectual
,
and
the
Creditor
could
not
thereby
have
gotten
payment
:
And
it
appears
by
the
said
Act
of
Parliament
,
that
the
Lyon
is
only
Judge
to
the
penal
Conclusion
of
deprivation
of
the
Officer
,
and
payment
of
the
pain
.
The
Lords
notwithstanding
Found
the
Lyon
Judge
competent
to
the
action
against
the
Cautioner
,
for
damnage
and
interest
;
Me
inter
minimos
reclamante
.
Gibson
Clerk
.
Newbyth
Reporter
.
D.
31.
McKenzie
contra
Fairholm
.
eod.
die
.
THe
Lords
Found
in
the
case
before
mentioned
,
(
24.
July
Mckenzie
contra
Fairholme
)
That
a
Father
is
loco
Curatoris
to
his
Son
being
in
familia
;
and
that
a
bond
granted
by
the
Son
without
his
consent
is
null
ipso
jure
;
as
if
it
had
been
granted
by
a
Minor
having
Curators
without
their
consent
.
D.
32.
Wedderburn
contra
Scrimzeour
.
ead.
die
.
IN
the
case
Scrimzeour
and
Wedderburn
of
Kingennie
(
mentioned
before
18.
July
.
)
A
legacy
being
to
be
effectualin
that
case
only
,
If
the
Testators
Wife
should
not
be
brought
to
bed
of
a
Man
Child
;
It
was
Found
,
that
a
Male
Child
should
be
understood
a
living
Child
:
and
that
Homo
Mortuus
and
a
dead
Child
is
nullus
in
Law
:
And
that
the
legacy
should
be
effectual
,
though
she
had
been
brought
to
bed
of
a
Male
Child
,
but
dead
.
D.
33.
Menzeis
contra
Burnets
.
eod.
die
.
IN
the
case
Menȝies
contra
Burnets
,
It
was
Found
,
that
a
Relict
being
provided
to
a
Liferent
of
all
the
Goods
belonging
to
her
Husband
;
ought
to
sell
and
make
Money
of
the
Horse
,
Oxen
,
and
such
Goods
as
may
perish
;
to
the
effect
she
may
Liferent
the
Money
and
make
the
Sum
forth-coming
after
her
decease
;
but
cum
temperamento
,
That
a
competent
time
should
be
allowed
to
that
effect
:
And
if
the
Goods
should
perish
in
the
mean
time
,
she
should
not
be
lyable
for
the
same
.
In
that
same
case
it
was
Found
,
that
a
Relict
should
not
have
both
a
Liferent
and
Third
;
but
should
have
her
choice
or
option
of
either
.
Some
of
us
were
of
the
opinion
,
that
seing
it
appeared
by
the
Contract
,
that
the
Goods
were
not
to
be
in
Communion
,
but
that
she
was
to
have
a
Liferent
of
the
same
,
she
had
not
a
choice
to
have
a
Third
or
Liferent
.
Hay
Clerk
.
Lord
Lie
Reporter
.
D.
34.
contra
Blantire
.
27
July
1666.
_____
Having
intented
a
Reduction
of
an
Interdiction
,
upon
that
reason
,
that
Blantyre
was
rei
suae
providus
;
And
that
the
Pursuer
had
lent
him
the
Money
due
to
him
,
when
he
was
in
England
,
and
in
necessity
;
and
being
a
stranger
and
a
Creditor
,
he
ought
not
to
be
prejudged
by
such
a
voluntar
Interdiction
;
being
upon
a
Bond
granted
by
the
Debitor
without
a
previous
Sentence
,
finding
Blantyre
to
be
prodigus
,
or
such
a
person
as
should
be
interdicted
.
The
Lords
Thought
The
Case
of
that
Consequence
,
that
they
would
not
decide
upon
a
Report
,
but
Ordained
it
to
be
debated
in
praesentia
.
Lord
Castlehill
Reporter
.
D.
35.
contra
eod.
die
.
IT
was
decided
,
That
an
Executor
Creditor
was
lyable
to
do
diligence
as
other
Executors
;
and
tho
there
was
a
difference
betwixt
him
and
other
Executors
,
upon
that
account
that
he
was
confirmed
in
order
to
his
own
interest
,
and
to
the
effect
he
might
be
payed
of
his
Debt
,
and
had
preference
before
other
Creditors
;
yet
as
to
the
Duty
and
Office
of
ane
Executor
there
was
no
Difference
:
And
having
accepted
the
Office
which
was
Voluntatis
,
it
became
Necessitatis
,
and
he
was
obliged
to
Execute
it
.
Reidie
Reporter
.
D.
36.
L.
Borthwick
contra
Ker.
eod.
die
.
AN
Inhibition
being
raised
upon
the
dependence
of
a
pursuit
for
maills
and
duties
,
for
three
years
preceeding
the
Summonds
and
in
time
coming
during
the
defenders
possession
:
It
was
Thought
,
that
the
inhibition
relateing
only
to
the
Summonds
as
to
the
three
years
preceeding
,
without
mention
of
the
subsequent
years
;
could
not
be
a
ground
of
Reduction
Ex
capite
Inhibitionis
;
in
respect
the
defender
in
that
pursuite
was
assoiled
as
to
the
years
before
the
Summonds
,
as
being
bona
fide
Possessor
:
And
albeit
the
Summonds
was
not
only
for
these
years
,
but
for
the
time
to
come
as
said
is
;
and
the
Defender
was
decerned
to
pay
maills
and
duties
for
certain
years
after
the
Summonds
,
yet
the
Leidges
were
not
obliged
to
take
notice
of
the
Summonds
,
but
as
it
was
related
in
the
Inhibition
.
The
Lords
were
of
this
opinion
:
But
the
case
was
not
decided
,
the
Pursuer
having
desired
up
his
process
that
he
might
be
better
advised
.
Advocat
,
Oliphant
.
and
Sir
Robert
Sinclair
.
D.
37.
E.
Newburgh
contra
Stuart
.
eod.
die
.
SIr
William
Stuart
being
Creditor
to
the
Earl
of
Newburgh
,
in
a
great
Sum
,
upon
an
Infeftment
in
the
said
Earls
Lands
:
after
his
Majesties
Restauration
,
he
was
induced
(
tho
there
was
no
Question
as
to
the
Debt
)
to
make
a
Reference
and
Submission
to
the
Laird
of
Cochran
and
Sir
John
Fletcher
;
upon
no
other
account
,
but
that
he
apprehended
that
Newburgh
might
trouble
him
and
cause
him
be
fined
;
which
was
the
ordinary
and
Ignoble
practice
of
Noblemen
at
that
time
against
their
Creditors
:
These
Arbiters
did
take
from
the
said
Sir
William
a
discharge
of
the
Debt
and
renunciation
of
his
Right
,
and
from
Newburgh
a
blank
bond
as
to
the
Sum
;
and
the
said
Debt
then
amounting
to
40000
merks
,
they
did
give
to
the
Earl
of
Newburgh
the
Renunciation
;
and
to
Sir
William
,
Newburgh's
simple
bond
filled
up
with
6500.
Merks
only
:
Newburgh
pretending
that
Sir
Alexander
Durhame
(
then
Lord
Lyon
)
was
owing
him
Money
,
did
by
way
of
letter
give
a
precept
to
the
Lord
Lyon
in
these
terms
,
That
he
desired
him
to
pay
that
Sum
to
the
bearer
upon
sight
,
and
that
he
should
retire
his
bond
:
This
letter
being
presented
to
the
Lyon
,
he
in
a
scornful
and
jeering
way
subjoyned
to
the
letter
,
My
Lord
,
I
am
your
Humble
Servant
:
the
Earl
of
Newburgh
,
not
satisfied
to
have
payed
Sir
William
in
manner
foresaid
as
to
3400.
Merks
,
did
intent
a
pursuit
against
Sir
William
,
That
he
might
be
free
of
the
Residue
and
get
back
his
Bond
of
6500.
Merks
,
upon
that
pretence
that
the
said
Sir
William
had
got
from
him
a
Bill
of
Exchange
,
which
had
been
accepted
by
the
deceast
Sir
Alexander
Durham
;
at
the
least
in
case
of
not
accepting
,
he
should
have
protested
and
intimated
to
Newburgh
,
that
it
was
not
accepted
nor
satisfied
,
that
he
might
have
recourse
against
the
said
Sir
Alexander
in
his
own
time
,
whereof
he
is
now
prejudged
.
Upon
a
Debate
in
praesentia
,
It
was
Found
,
that
the
said
letter
was
not
a
Bill
of
Exchange
but
a
precept
;
and
that
the
receiving
of
such
precepts
upon
Chamberlanes
and
others
,
being
for
the
Creditors
further
suretie
,
do
not
oblige
them
to
the
formalities
of
presenting
,
protesting
,
and
intimating
:
which
are
in
use
in
the
matter
of
Exchange
and
Trade
betwixt
Merchant
and
Merchant
.
Advocats
Lockhart
,
Wallace
.
contra
Wedderburn
and
Chalmers
.
D.
38.
Crawfurd
contra
the
Town
of
Edinburgh
.
last
of
July
1666.
A
Donator
,
by
a
Gift
of
Vltimus
Haeres
,
having
Pursued
for
a
movable
Debt
due
to
the
Defunct
;
The
pursuit
was
not
Sustained
,
because
the
Gift
was
not
declared
.
D.
39.
Gray
contra
Gordon
.
eod.
die
.
A
Bond
being
granted
to
Sir
Robert
Farquhar
,
and
bearing
the
term
of
payment
to
be
diverse
years
after
the
date
of
the
same
;
and
Annualrent
to
be
payed
in
the
interim
,
termly
and
yearly
:
Was
found
to
be
Heretable
quoad
Fiscum
,
Though
Sir
Robert
Farquhar
had
deceast
before
the
term
of
payment
of
Annualrent
;
And
the
assigney
was
preferred
to
a
Donatar
.
D.
40.
Halyburton
contra
Halyburton
.
eod.
die
.
A
Son
having
intented
a
Reduction
of
a
disposition
made
by
his
Father
,
for
provision
of
the
rest
of
the
Children
,
In
lecto
aegritudinis
.
The
Lords
found
the
Defence
relevant
,
that
the
Pursuer
had
consented
;
in
so
far
as
the
Son
had
Subscribed
as
Witness
,
and
knew
and
heard
the
disposition
;
so
that
he
was
not
ignorant
of
the
tenor
of
it
:
And
it
was
remembred
by
the
Lords
when
they
were
voting
,
that
they
had
found
the
alledgance
relevant
,
That
a
Son
and
appearand
Heir
that
Subscribed
as
Witness
to
his
Fathers
deed
in
lecto
,
without
that
addition
,
that
he
heard
it
read
;
in
the
case
of
Stuart
of
Escog
:
It
being
to
be
presumed
,
that
the
appearand
Heir
being
of
age
,
would
not
be
Witness
to
such
deeds
,
unless
he
inquired
and
knew
what
they
were
.
D.
41.
Cuming
contra
Johnston
.
7.
Novemb.
1666.
SOme
Lands
in
Dumbar
being
disponed
by
one
Adamson
in
favours
of
Johnstoun
;
with
a
provision
contained
in
the
disposition
and
Infeftment
,
that
a
Sum
of
Money
should
be
payed
by
the
receiver
of
the
disposition
,
to
him
or
any
he
should
name
:
And
in
case
it
should
not
be
payed
the
Right
should
be
void
:
And
the
saids
Lands
being
thereafter
apprysed
,
It
was
found
,
against
the
compryser
,
that
the
said
clause
and
provision
was
real
:
And
that
the
person
named
,
and
having
Right
to
the
Sum
and
benefit
of
the
said
clause
,
Though
before
declarator
he
could
not
pursue
a
removing
,
yet
he
has
good
interest
to
pursue
for
the
mails
and
duties
for
payment
of
the
said
Sum
;
and
being
in
possessorio
,
to
retain
the
mails
and
duties
for
payment
of
the
said
Sum
pro
tanto
:
And
that
the
said
provision
,
and
such
like
,
are
effectual
against
singular
Successors
.
It
was
urged
by
some
,
That
all
,
that
could
be
done
upon
that
Clause
,
was
,
that
a
Reduction
of
the
Right
might
be
pursued
thereupon
;
But
it
was
answered
,
that
it
being
actum
,
that
the
Lands
should
be
burdened
with
that
Sum
,
and
if
nothing
more
had
been
exprest
,
but
that
it
is
provided
that
the
said
Sum
should
be
payed
;
the
said
provision
being
real
,
would
have
furnished
the
said
action
and
exception
,
for
payment
of
the
said
Sum
out
of
the
maills
and
duties
:
And
therefore
,
the
subjoyning
the
resolutive
clause
,
being
ad
majorem
Cautelam
,
could
not
be
prejudicial
nor
retorted
in
prejudice
of
the
disponer
nor
his
Assigney
.
This
Question
was
hinted
at
but
not
decided
in
the
said
Debate
,
viz.
If
the
Declarator
should
be
pursued
,
upon
the
said
clause
for
annulling
the
Right
,
if
it
should
operate
in
favours
of
the
Assigney
,
the
Lands
not
being
disponed
to
him
in
case
of
contraveening
;
being
to
appertain
to
the
disponer
and
his
Heirs
,
in
case
the
Right
should
be
rescinded
.
It
s
thought
,
that
the
provision
being
assigned
,
the
whole
benefit
and
consequence
of
the
same
are
disponed
:
and
consequently
the
assigney
,
in
the
case
foresaid
of
annulling
the
Right
,
may
pursue
the
Heirs
of
the
Disponer
and
receiver
of
the
Right
,
and
his
Successor
to
denude
themselves
of
the
Right
of
the
saids
Lands
.
Newbyth
Reporter
.
D.
42.
Hay
contra
Magistrates
of
Elgin
.
eod.
die
.
IN
the
case
Colin
Hay
against
the
Magistrats
of
Elgin
;
Improbation
being
proponed
against
the
Executions
of
Messenger
,
bearing
that
he
had
intimated
to
the
Magistrats
,
that
he
had
arrested
a
prisoner
at
the
instance
of
the
said
Colin
:
And
the
Magistrats
and
Witnesses
compearing
and
urging
to
be
examined
,
It
was
alledged
for
Colin
,
that
they
should
not
be
examined
;
Because
the
Messenger
who
was
also
cited
was
not
present
;
and
that
if
he
were
present
he
might
condescend
upon
circumstances
,
and
remember
the
Witnesses
that
they
had
been
Witnesses
;
it
being
otherewise
incident
to
them
to
have
forgotten
,
though
they
had
been
truely
Witnesses
to
the
Execution
.
It
was
answered
for
the
Magistrats
,
that
they
had
cited
both
Witnesses
and
Messenger
;
that
they
had
done
all
that
was
incumbent
to
them
;
and
his
not
appearance
,
ought
neither
to
prejudge
them
nor
the
Witnesses
:
And
that
having
come
in
obedience
to
the
citation
,
they
should
not
be
troubled
to
come
here
again
,
their
Residence
being
at
such
a
distance
.
The
Lords
indulged
so
far
to
Colin
,
as
to
delay
the
Examination
of
the
Witnesses
until
further
diligence
should
be
done
to
bring
here
the
Messenger
,
Me
Refragante
:
but
ordained
Colin
to
pay
the
expences
:
And
if
it
had
been
desired
,
that
if
the
Witnesses
should
die
,
they
should
be
holden
as
improving
;
The
Lords
would
have
granted
the
desire
.
D.
43.
Carse
contra
Carse
.
8.
Novemb.
1666.
DOctor
Carse
having
taken
a
Right
of
Annualrent
out
of
Sir
David
Cuninghams
Lands
,
in
the
name
and
persons
of
Mark
Carse
of
Cockpen
and
Adam
Watt
Writer
;
and
a
comprysing
thereafter
deduced
in
their
name
to
the
behoof
of
the
Doctor
,
for
some
arrears
of
the
said
Annualrent
,
not
only
out
of
the
Lands
out
of
which
the
Annualrent
was
due
,
holding
blench
or
feu
;
but
of
other
Lands
holding
Ward
.
Charles
Carse
Son
and
Heir
to
the
said
Doctor
,
pursued
the
said
Mark
Carse
and
the
Heir
of
Adam
Watt
,
to
denude
themselves
of
the
Right
of
the
saids
Lands
,
conform
to
a
Backbond
granted
by
the
said
Mark
Carse
,
and
the
said
Adam
Watt
,
declaring
the
trust
:
In
that
trust
it
was
alledged
for
the
Defenders
,
that
they
were
content
to
denude
themselves
,
they
being
releeved
of
all
hazard
they
might
incur
upon
occasion
of
the
said
Trust
,
and
having
that
Right
in
their
Person
;
and
to
that
purpose
did
offer
a
Disposition
,
bearing
a
provision
that
the
Right
should
be
burdened
with
the
relief
of
Wards
,
Marriages
,
and
Ministers
Stipends
,
Cess
,
and
other
such
hazards
.
It
was
Answered
,
that
the
said
Disposition
ought
not
to
be
clogged
with
such
a
provision
,
which
would
fright
Buyers
from
purchasing
the
saids
Lands
;
and
the
pursuer
was
necessitat
,
and
had
presently
an
occasion
to
sell
the
saids
Lands
:
And
as
to
the
incumberances
,
and
hazards
,
which
the
Defenders
should
condescend
upon
they
should
be
purged
:
But
as
to
the
Marriage
of
Adam
Watts
Heir
(
which
was
condescended
upon
)
there
could
be
no
hazard
upon
that
account
,
In
respect
the
comprysing
at
the
instance
of
Mark
Carse
and
Adam
Watt
was
the
fourth
comprysing
,
which
did
only
import
a
Right
of
reversion
;
The
first
comprysing
,
whereupon
Infeftment
had
followed
,
carrying
the
Right
of
property
:
It
was
Duplyed
,
that
if
it
should
appear
that
the
former
apprysings
are
either
null
or
informal
or
satisfied
,
the
fourth
Apprysing
would
carry
the
Right
of
property
,
and
consequently
the
Marriage
.
The
Lords
Found
,
that
the
Pursuer
should
accept
the
Disposition
with
the
burden
of
the
said
relief
:
Or
in
his
option
should
secure
the
Defenders
by
a
Bond
with
a
Cautioner
,
to
releive
them
.
D.
44.
Bowie
contra
Hamilton
.
10.
Novemb.
1666.
HAmilton
of
Silvertounhill
having
Disponed
to
James
Bowie
certain
Lands
,
whereto
he
had
Right
by
Comprysing
;
and
the
said
James
being
removed
at
the
instance
of
a
Wadsetter
;
and
having
Pursued
upon
the
Warrandice
contained
in
the
Disposition
;
It
was
alledged
by
Silvertounhill
,
that
though
the
Disposition
did
bear
absolute
Warrandice
;
yet
by
a
Margine
subcribed
,
it
was
restricted
to
warrand
only
the
formality
of
the
Comprysing
,
and
the
truth
of
the
Debt
,
and
the
Executions
.
It
was
Answered
,
that
the
Warrandice
being
absolute
in
the
Body
of
the
Disposition
,
was
indeed
qualified
by
the
Margine
,
that
it
should
only
be
extended
to
the
Warrandice
of
the
Lands
,
in
so
far
as
concerns
the
Apprysing
and
Sums
thereinmentioned
(
which
are
the
words
of
the
Margine
)
and
that
the
said
Warrandice
imports
that
the
Disponer
should
not
warrand
simply
,
but
as
to
the
Sums
contained
in
the
Comprysing
;
so
that
in
case
of
eviction
Silvertounhill
should
only
refound
the
same
;
and
the
Pursuer
was
content
to
restrict
the
Warrandice
to
the
Sums
payed
by
him
:
It
was
urged
,
that
there
being
Three
kinds
of
Warrandice
viz.
Either
absolute
;
or
only
that
the
Comprysing
was
formal
,
and
the
Debt
just
;
or
a
restricted
Warrandice
to
refound
the
price
in
case
of
eviction
;
the
Last
was
Medium
inter
extrema
,
and
most
equitable
;
and
in
obscuris
magis
aequa
interpretatio
,
est
contra
Disponentem
facienda
,
qui
potuit
Legem
apertius
dicere
:
And
if
it
had
been
intended
,
that
he
should
warrand
only
the
formality
,
and
validity
of
the
Comprysing
,
and
reality
of
the
Debt
,
it
had
been
so
exprest
.
Yet
The
Lords
,
by
plurality
of
Voices
,
Found
,
that
the
Warrandice
should
be
interpret
,
to
warrand
only
the
validity
of
the
Comprysing
,
and
the
reality
of
the
Debt
:
That
being
the
most
ordinary
in
Rights
of
Comprysing
.
Sinclar
,
alteri
Harper
.
D.
45.
Cheine
contra
Christie
.
15.
Novemb.
1666.
GEorge
Cheine
Pursued
Adjudication
against
David
Christie
of
a
Right
of
Annualrent
,
which
pretained
to
James
Christie
the
said
Davids
Brother
the
Pursuer's
Debitor
.
James
Cheislie
Writer
compeared
and
alledged
he
had
Right
to
the
Lands
(
craved
to
be
adjudged
)
by
an
expired
Comprysing
of
the
property
of
the
same
against
the
said
David
Christie
,
who
had
Right
to
the
saids
Lands
;
and
that
the
said
James
his
Right
of
Annualrent
was
null
,
being
base
,
and
never
cled
with
Possession
.
The
Lords
Found
,
that
the
alledgance
was
not
competent
hoc
loco
against
the
Adjudication
;
and
that
the
said
debate
would
only
be
competent
after
the
Adjudication
,
when
he
should
pursue
a
poynding
of
the
ground
.
The
Lords
Found
the
contrare
before
,
in
an
Adjudication
Pursued
by
Sornbeg
contra
the
Lord
Forrester
,
which
practique
was
obtruded
and
not
respected
;
Because
the
Lord
Forresters
Right
in
that
Case
was
clear
;
And
this
the
Lords
thought
hard
,
Forrester
being
content
to
dispute
his
Right
,
that
a
Right
to
his
Lands
should
be
established
in
the
Person
of
another
to
trouble
him
.
But
it
were
fit
our
Practiques
were
uniform
:
And
it
appears
hard
,
that
a
Creditor
who
is
a
stranger
,
and
has
not
the
papers
in
his
hands
,
and
is
not
in
a
Capacity
to
pursue
for
them
before
he
get
a
Title
by
Adjudication
,
should
be
forced
to
Dispute
his
Debitors
Right
.
Newbyth
Reporter
.
D.
46.
Abercrombie
contra
eod.
die
.
FOund
,
that
a
Pursuit
upon
an
Assignation
after
the
Summonds
execute
;
should
not
be
Sustained
,
though
the
Cedent
concurred
;
the
Pursuit
not
being
at
his
instance
.
Newbyth
Reporter
.
D.
47.
Kennedy
contra
Hamilton
.
eod.
die
.
THe
Lords
Found
a
Comprysing
upon
a
charge
to
enter
Heir
,
null
;
Because
the
person
,
at
whose
instance
the
charge
was
,
had
no
Right
to
the
Debt
the
time
of
the
Charge
;
the
Assignation
,
whereby
he
had
Right
,
being
acquired
thereafter
;
so
that
the
Charge
was
Inanis
,
and
without
ground
.
Me
referente
.
D.
48.
Binning
contra
Farquhar
.
Eod.
die
.
A
Disposition
being
made
by
a
Father
in
favours
of
a
Son
;
And
thereafter
the
same
Lands
being
Disponed
by
the
Son
in
favours
of
his
Brother
in
Law
:
The
said
Rights
were
questioned
by
a
Creditor
,
as
being
fraudulent
;
being
Disponed
by
the
Sons
Contract
of
Marriage
;
which
though
Onerous
,
as
to
Provisions
in
favours
of
the
Wife
,
is
not
so
as
to
the
Son
,
whom
the
Father
could
not
advance
,
or
provide
in
prejudice
of
the
Creditors
:
But
it
was
alledged
,
that
the
Disposition
made
by
the
Son
,
was
for
an
Onerous
Cause
;
and
by
the
Act
of
Parliament
,
though
a
Right
should
be
found
fraudulent
,
yet
a
third
party
acquiring
bona
fide
,
by
the
Act
of
Parliament
is
secured
;
and
his
Right
cannot
be
questioned
,
unless
he
be
particeps
fraudis
,
or
acquire
the
same
without
an
Onerous
Cause
,
which
by
the
Act
of
Parliament
,
is
only
probable
Scripto
vel
Juramento
.
Yet
the
Lords
enclined
to
reduce
the
Right
granted
by
the
Son
,
unless
it
were
offered
to
be
proven
,
that
it
was
for
an
Onerous
Cause
;
in
respect
of
several
presumptions
alledged
and
informed
by
the
Pursuer
:
And
before
Answer
,
as
to
the
Relevancy
ordained
both
Parties
to
condescend
upon
their
presumptions
hinc
inde
;
of
Fraud
or
the
Cause
Onerous
for
the
granting
of
the
said
Right
,
and
to
prove
the
condescendence
.
I
have
ever
thought
,
that
the
practice
of
the
Lords
to
ordain
Parties
to
prove
before
Answer
,
as
it
is
late
,
is
accompanied
with
many
inconveniencies
;
seing
by
such
Acts
,
which
are
not
of
Litiscontestation
,
Processes
are
still
keeped
loose
;
and
after
that
irregular
way
of
probation
,
the
debate
of
Relevaney
is
again
resumed
;
to
the
great
vexation
,
both
of
Parties
,
and
Lords
:
and
after
the
Lords
Interloquitor
of
Relevancy
,
there
may
be
again
Litiscontestation
;
So
that
upon
the
matter
there
are
two
Litiscontestations
in
one
Cause
.
Newbyth
Reporter
.
It
being
again
debated
,
What
the
Certification
should
be
in
such
Acts.
viz.
Whether
the
Alledgance
should
be
holden
as
not
proponed
;
or
that
the
Lords
should
advise
:
Which
in
effect
is
no
certification
.
The
Lords
were
not
clear
to
detetmine
;
which
is
a
great
Informality
,
and
a
pressing
reason
against
that
anomolous
way
.
D.
49.
Reid
contra
Tailzifer
.
16.
Novem.
1666.
IN
the
case
,
William
Reid
contra
Tailzifer
and
Salmond
.
It
was
Found
,
That
a
Testament
is
to
be
thought
execute
,
so
that
,
thereafter
,
there
is
no
place
to
a
non
Executa
,
when
a
Decreet
is
recovered
against
the
Debitors
;
though
the
Executor
decease
before
he
get
payment
:
Because
the
Right
of
the
Debt
is
fully
established
in
his
person
by
the
Decreet
;
and
he
having
done
diligence
,
it
ought
not
to
be
imputed
to
him
,
that
the
Debitor
is
in
mora
as
to
the
payment
of
the
Debt
:
And
there
being
Jus
quaesitum
by
a
Decreet
,
and
Execution
having
followed
thereupon
by
Horning
;
after
which
Annualrent
,
though
not
due
ex
pacto
,
yet
becometh
due
ex
lege
;
or
by
Comprysing
at
the
instance
of
the
Executor
,
and
Infeftment
thereupon
;
It
were
absurd
,
that
all
these
Rights
should
evanish
;
which
would
necessarly
follow
,
if
there
were
place
to
a
non
Executa
:
Seing
the
Decreets
and
Rights
foresaid
following
thereupon
,
could
not
be
transferred
or
settled
in
the
person
of
the
Executor
ad
non
Executa
;
who
doth
represent
the
Defunct
only
,
and
not
the
Executor
,
at
whose
instance
the
Decreet
is
obtained
and
Execute
.
D.
50.
Purves
contra
Blackwood
.
Eod.
die
.
ADam
Purves
having
pursued
Reduction
and
Improbation
of
a
Comprysing
,
and
the
Grounds
and
Warrands
thereof
,
against
Blackwood
.
The
Lords
,
In
respect
the
Comprysing
was
deduced
Twenty
four
Years
before
,
did
refuse
to
grant
Certification
,
against
the
Letters
ad
Executions
;
and
against
one
of
the
Bonds
being
Registrate
when
the
principal
Bonds
were
given
in
to
the
Clerk
Register
to
ly
in
publica
custodia
;
In
respect
of
the
Troubles
of
the
Time
,
and
the
loss
and
disorder
of
the
Registers
;
and
that
the
Extract
was
produced
,
and
the
Defender
was
content
to
abide
at
the
Truth
thereof
.
Hay
Clerk
,
And
Newbyth
Reporter
.
D.
51.
Govan
contra
Paip
.
24.
Novem.
1666.
IN
the
case
,
Govan
contra
Paip
,
The
Lords
Found
,
That
an
Assignation
not
being
intimated
in
the
Cedents
time
(
and
consequently
the
Debt
being
in
bonis
Defuncti
)
ought
to
be
confirmed
:
But
the
Lords
in
consideration
that
the
Debt
was
small
,
Found
Process
at
the
Assigneys
instance
,
he
finding
Caution
for
the
Quot
effeirand
thereto
.
D.
52.
contra
Miln
.
Eod.
die
.
An
Order
being
used
for
Redeeming
a
Wadset
;
the
Executor
Creditor
of
the
Wadsetter
pursued
the
person
in
whose
hands
the
Consignation
was
made
for
payment
of
the
Sum
Consigned
;
And
in
the
Process
the
user
of
the
Order
was
called
,
and
Decreet
was
obtained
;
but
before
it
was
Extracted
he
deceast
;
and
there
was
debate
upon
the
Oath
of
the
Consignator
.
The
Lords
Found
,
That
the
user
of
the
Order
being
a
person
having
interest
and
called
ab
initio
,
nothing
could
be
done
until
the
Process
was
transferred
against
some
person
representing
him
.
In
the
same
Process
,
it
was
argued
amongst
the
Lords
,
whether
a
Sum
being
consigned
upon
an
Order
of
Redemption
,
the
user
of
the
Order
may
pass
from
it
,
and
lift
the
Sum
without
consent
of
the
Wadsetter
?
And
it
was
remembered
by
some
of
the
Lords
,
That
upon
an
Instrument
of
Consignation
Process
was
sustained
at
the
instance
of
the
Wadsetter
against
the
Depositar
,
in
whose
hands
the
Sum
due
upon
the
Wadset
was
consigned
,
for
making
the
Sum
forthcoming
.
But
in
this
case
nothing
was
done
.
It
appeareth
,
that
after
Consignation
,
Jus
is
Quaesitum
to
the
Wadsetter
;
so
that
the
Sum
,
being
consigned
and
sequestrate
to
his
behoof
,
cannot
be
uplifted
without
his
consent
.
D.
53.
Lesly
contra
Bain
.
6.
Decem.
1666.
IN
a
pursuit
to
make
forthcoming
,
after
serious
deliberation
and
debate
amongst
the
Lords
as
in
a
case
daily
occurring
,
and
wherein
the
Decision
would
be
a
preparative
and
practique
,
It
was
Found
,
That
a
pursuit
to
make
forthcoming
a
Sum
of
Money
due
to
a
Debitor
,
is
in
effect
Execution
;
and
equivalent
to
a
poinding
:
Seing
Money
being
in
nominibus
,
and
not
in
specie
,
could
not
otherwayes
be
affected
and
poinded
;
and
therefore
could
not
follow
,
but
upon
a
Decreet
,
and
not
upon
a
Bond
not
Registrate
.
2.
It
was
Found
,
that
an
Arrestment
is
but
an
Inchoat
and
incompleat
Diligence
:
and
notwithstanding
thereof
the
Sum
Arrested
remaineth
in
bonis
of
the
Debitor
:
Seing
notwithstanding
thereof
,
Goods
belonging
to
a
Debitor
may
be
poinded
:
As
also
Arrestment
being
a
Negative
Diligence
,
whereby
a
Sum
Arrested
is
secured
,
so
that
the
Debitor
cannot
uplift
;
and
the
person
,
in
whose
hands
the
Arrestment
is
made
,
cannot
pay
or
give
away
the
same
,
in
prejudice
of
the
Arrester
;
and
as
in
immobilibus
,
Inhibition
doth
not
establish
a
Right
in
the
person
of
the
Creditor
;
unless
he
deduce
a
Comprysing
;
but
doth
affect
the
same
,
so
that
the
Debitor
cannot
prejudge
the
Creditor
,
and
his
Diligence
if
he
Compryse
:
There
is
Eadem
Ratio
in
Arrestments
in
mobilibus
.
Upon
these
Grounds
it
was
Found
,
That
the
Debitor
deceasing
,
the
Sums
Arrested
being
in
ejus
bonis
,
ought
to
be
confirmed
;
and
that
the
Creditor
could
not
have
Action
against
the
person
in
whose
hands
the
Arrestment
was
made
;
and
the
Appearand
Heir
of
the
Debitor
called
for
his
interest
;
but
should
confirm
himself
Executor
Creditor
.
D.
54.
Monteith
contra
E.
Calender
and
Gloret
.
7.
Decem.
1666.
THE
Laird
of
Parkley
Hamilton
as
principal
,
and
Hamilton
of
Kinglassie
and
certain
others
his
Friends
as
Cautioners
,
being
Debitors
in
Two
Bonds
;
Kinglassie
,
in
consideration
that
Parkley
had
Disponed
to
him
a
Right
of
Wadset
which
he
had
to
the
Lands
of
Touch
,
by
a
Contract
did
oblige
himself
to
satisfy
and
pay
the
Sums
contained
in
the
saids
Bonds
;
and
to
procure
Discharges
from
the
Creditors
to
Parkley
and
his
Cautioners
:
And
nevertheless
having
payed
the
said
Sums
,
he
did
not
take
Discharges
but
Assignations
to
the
saids
Bonds
,
which
he
filled
up
in
the
name
of
Sir
Mungo
Stirling
of
Gloret
his
own
Creditor
;
who
did
thereupon
Arrest
a
Sum
due
by
the
Earl
of
Callender
to
Parkley
:
Thereafter
Captain
Monteith
having
Right
to
Callendars
Debt
by
Assignation
from
Parkley
,
obtained
a
Decreet
against
the
Earl
;
which
being
Suspended
upon
double
poinding
,
It
was
alledged
for
Gloret
,
that
he
ought
to
be
preferred
,
in
respect
of
his
Assignation
and
Arrestment
;
whereunto
it
was
Answered
,
that
Kinglassie
being
obliged
(
as
said
is
)
to
pay
the
saids
Sums
had
payed
them
;
and
whereas
he
should
have
taken
Discharges
,
he
had
taken
an
Assignation
Blank
in
the
Assigneys
Name
,
and
had
filled
up
Glorets
Name
in
the
same
;
So
that
Assignation
being
procured
by
him
,
and
lying
by
him
,
and
he
being
Master
of
it
,
it
was
in
effect
his
;
and
he
was
in
the
same
case
,
as
if
the
Assignation
had
been
granted
to
himself
,
and
he
had
made
a
Translation
to
Gloret
;
in
which
the
Exception
upon
the
obligement
foresaid
to
relieve
Parkley
;
as
it
would
have
been
competent
against
Kinglassie
,
would
have
secluded
also
Gloret
his
Assigney
by
Translation
:
In
this
Process
Gloret
his
Oath
being
taken
;
and
he
having
declared
,
that
the
Assignation
was
procured
by
Kinglassie
;
and
by
him
delivered
to
Gloret
,
and
that
he
payed
nothing
to
the
Cedent
,
but
that
the
Assignation
was
given
to
him
by
Kinglassie
,
that
he
might
be
satisfied
of
certain
Sums
due
to
him
be
Kinglassie
,
which
he
was
to
Discharge
if
he
recovered
payment
,
by
vertue
of
the
said
Assignation
.
The
Lords
upon
a
Debate
in
praesentia
,
preferred
Monteith
;
and
found
the
Exception
,
which
was
competent
against
Kinglassie
,
if
the
Assignation
had
been
to
him
and
transferred
by
him
to
Gloret
,
is
competent
against
Gloret
;
and
that
he
is
in
the
same
case
,
as
if
he
had
Right
by
Translation
from
Kinglassie
.
This
is
most
just
,
and
founded
upon
Law
and
Equity
,
seing
otherwayes
Fraud
cannot
be
obviate
;
And
,
in
Law
plus
valet
quod
agitur
,
quam
quod
simulate
concipitur
aut
exprimitur
:
And
,
Fictione
brevis
manus
,
Though
it
appear
that
it
is
but
one
Act
,
viz.
The
Assignation
made
to
Gloret
;
yet
in
construction
of
Law
,
there
is
two
Acts
,
viz.
The
granting
the
Assignation
blank
to
Kinglassie
,
which
in
the
interim
before
it
was
delivered
to
Gloret
was
his
evident
;
and
an
Assignation
immediatly
made
to
himself
,
and
thereafter
the
filling
up
Glorets
Name
,
and
the
delivery
of
the
Assignation
to
him
,
which
upon
the
matter
is
a
Translation
.
Spotswood
for
Monteith
.
Lockheart
,
Cuninghame
,
Maxwell
,
and
Weir
for
Gloret
.
D.
55.
Mckenzie
contra
Fairholm
.
Eod.
die
.
SIR
George
Mckenzie
having
intented
Declarator
and
Reduction
of
a
Bond
Subscribed
by
him
as
Cautioner
for
his
Father
;
Ex
eo
capite
;
that
it
was
null
ipso
jure
;
in
respect
he
was
Minor
for
the
time
,
and
his
Father
was
loco
Curatoris
to
him
,
and
had
not
Authorized
him
,
at
least
could
not
be
Author
to
him
in
rem
suam
:
It
was
alledged
,
that
he
had
not
intented
Reduction
within
the
quadriennium
utile
:
And
as
to
the
Declarator
of
Nullity
,
the
reason
was
not
Relevant
,
In
regard
Bonds
granted
by
Minors
,
having
Curators
,
without
their
consent
are
Null
;
they
being
interdicted
eo
ipso
that
they
do
choise
Curators
,
that
they
do
nothing
without
them
;
But
Bonds
granted
or
other
Deeds
done
by
Minors
wanting
Curators
,
are
not
Null
in
Law
;
but
the
Minors
lesed
by
the
same
may
crave
to
be
Reponed
Debito
tempore
by
way
of
Reduction
:
And
that
the
Father
,
though
he
be
Tutor
in
Law
for
the
Children
being
Pupils
,
he
is
not
Curator
being
puberes
and
of
that
Age
that
they
may
choise
their
their
own
Curators
.
The
Lords
notwithstanding
Found
the
Reason
relevant
;
and
declared
the
Bond
Null
as
to
the
Pursuer
:
Quibusdam
refragantibus
,
inter
quos
Ego
;
upon
these
Grounds
,
that
there
is
a
great
difference
betwixt
Tutors
and
Curators
,
Pupills
,
and
Puberes
,
the
Father
haveing
by
the
Law
power
to
name
Tutors
,
and
consequently
being
Tutor
of
Law
himself
,
and
having
that
Authority
which
may
be
derived
,
and
given
by
him
to
others
;
whereas
he
has
no
power
to
name
Curators
to
his
Children
,
when
they
are
of
that
Age
that
they
may
choise
themselves
:
And
though
he
should
name
Curators
in
a
Testament
,
his
Nomination
could
not
bind
his
Children
.
And
2.
If
Children
being
Puberes
should
choise
any
other
persons
to
be
their
Curators
,
they
would
exclude
and
be
preferred
in
that
Office
to
the
Father
;
Whereas
habenti
Curatorem
Curator
non
datur
.
3.
If
a
Child
should
have
an
Estate
aliunde
,
and
the
Father
(
his
Son
being
pubes
)
should
cessare
and
be
negligent
in
the
Administration
of
his
Estate
,
there
could
be
no
Action
against
him
for
his
omission
;
which
might
be
competent
against
him
and
his
Heirs
if
he
were
Curator
.
Gibson
Clerk
,
Sinclair
for
Fairholme
,
the
Defender
;
Wedderburn
and
Lockheart
for
the
Pursuer
.
D.
56.
Vrquhart
contra
Frazer
.
Eod.
die
.
A
Wadset
being
granted
by
Sir
Thomas
Vrquhart
Elder
and
Younger
of
the
Lands
of
Brae
to
Sir
James
Frazer
,
for
24000
Merks
;
and
the
Granters
of
the
Wadset
,
being
obliged
to
warrand
the
Rental
(
besides
Custumes
)
to
be
Twenty
Chalders
of
Ross
bear
;
and
to
furnish
Tennents
,
and
to
cause
them
pay
the
said
Duty
;
and
for
each
Boll
undelivered
Ten
Merks
:
Sir
Alexander
Vrquhart
of
Cromarty
,
Donatar
to
the
Escheat
of
the
said
Sir
Thomas
Elder
and
Younger
,
pursues
the
Heir
and
Executor
of
the
Wadsetter
,
for
the
superplus
of
the
Rent
of
the
said
Lands
,
exceeding
the
Rent
of
the
foresaid
Sum
for
diverse
Years
;
In
respect
the
Contract
was
usurary
:
It
was
alledged
,
by
the
Act
of
Parliament
247.
Anno
1597.
The
Creditor
cannot
pursue
for
the
superplus
of
the
Annualrent
but
by
way
of
Reduction
of
the
usurary
Bond
,
or
Contract
,
with
Concourse
of
his
Majesties
Advocate
.
It
was
Replyed
,
That
Rei
persecutoriâ
he
had
interest
to
pursue
for
what
was
indebite
payed
.
The
Lords
Found
,
That
the
Process
could
not
be
sustained
,
without
concourse
of
His
Majesties
Advocate
;
The
Act
of
Parliament
being
express
,
that
the
Creditor
cannot
repeat
the
excrescence
above
the
Annualrent
;
unless
he
concurr
with
the
Advocate
to
reduce
:
which
appeareth
to
be
provided
,
of
purpose
to
oblige
the
Creditor
to
inform
and
concurr
with
the
Advocate
,
for
reduceing
so
unlawful
pactions
.
D.
57.
Vrquhart
contra
Cheyne
.
Decemb.
8.
1666.
SIR
Thomas
Vrquhart
of
Cromarty
having
disponed
to
Mr.
William
Lumisden
a
Tenement
of
Land
and
Salmond-fishing
,
for
Surety
of
4000.
Merks
borrowed
from
Lumisden
;
the
abovementioned
Sir
Alexander
Vrquhart
having
Right
by
Comprysing
to
the
saids
Lands
and
Fishing
,
and
reversion
of
the
said
Wadset
;
pursued
a
Compt
and
Reckoning
against
Walter
Cheyne
having
Right
to
the
said
Wadset
,
and
to
hear
and
see
it
Found
,
that
the
Sum
due
upon
the
Wadset
was
satisfied
and
payed
by
the
said
Walter
and
his
Authors
Intromissions
:
It
was
alledged
,
that
the
Wadset
being
a
proper
Wadset
without
a
Back-tack
,
the
Defender
was
not
Lyable
to
Compt
;
and
tho
he
were
,
he
was
not
Lyable
to
Compt
but
since
the
date
of
the
Right
,
and
for
his
own
Intromission
.
It
was
Replyed
that
it
was
a
Right
granted
for
security
,
and
that
by
the
Contract
of
Wadset
and
the
Eik
to
the
Reversion
thereafter
,
the
Right
was
redeemable
upon
payment
of
the
principal
and
Annualrents
that
should
be
unsatisfied
;
whereas
in
proper
Wadsets
,
there
is
an
Antichresis
,
and
the
Rents
of
the
Land
belongs
to
the
Wadsetter
in
lieu
of
the
Annualrents
,
whereto
the
Debitor
is
not
Lyable
.
The
Lords
Found
,
That
though
the
Right
was
not
clear
and
express
,
that
the
Wadsetter
should
have
Right
for
surety
,
and
until
he
be
satisfied
by
Intromission
or
otherwayes
;
yet
the
Reversion
being
in
the
Terms
foresaid
,
it
was
Actum
,
and
intended
that
the
said
Wadset
should
not
be
a
proper
Wadset
,
but
only
for
surety
as
said
is
.
D.
58.
E.
Cassils
contra
Whitefoord
.
Eod.
die
.
THe
Lands
of
Damertoun
being
a
part
of
the
Barony
of
Cassils
and
formerly
holden
Ward
by
the
Lairds
of
Blairquhan
Kennedies
,
of
the
Earl
of
Cassils
;
and
now
being
in
Ward
through
the
Minority
of
the
present
Heritor
,
who
had
Succeeded
in
the
Right
of
the
saids
Lands
being
acquired
from
the
Laird
of
Blairquhan
.
The
Tennents
of
the
saids
Lands
Pursued
a
multiple
poynding
against
the
E.
of
Cassils
and
Whitefoord
now
of
Blarquhan
,
and
the
Heretor
of
Dalmertoun
;
all
pretending
Right
to
the
multures
of
the
saids
Lands
.
The
E.
of
Cassils
alledged
,
that
during
the
Ward
they
should
bring
their
Corns
to
his
Miln
of
the
Barrony
of
Cassils
,
there
being
no
Milns
upon
the
Lands
of
Dalmertoun
.
The
Laird
of
Blarquhan
alledged
,
that
he
was
infeft
in
the
Lands
of
Blarquhan
and
in
the
Miln
of
Dalhovan
,
upon
a
Right
granted
by
Kennedy
of
Blarquhan
cum
astrictis
multuris
&
usitatis
;
at
such
a
time
as
Blarquhan
had
Right
to
Blarquhan
and
Dalhovan
and
to
the
Lands
of
Damertoun
:
And
that
before
the
said
Right
granted
by
Kennedy
of
Blarquhan
to
John
Whitefoord
of
Ballach
Author
to
this
Laird
of
Blarquhan
,
the
Tennants
of
Damertoun
were
in
use
to
come
to
the
said
Miln
,
and
to
pay
the
like
multure
and
service
as
the
Tennants
of
Blarquhan
did
;
and
since
the
Right
,
have
been
in
use
to
come
constantly
to
the
said
Miln
.
It
was
Answered
for
Cassils
,
that
unless
there
were
an
express
Constitution
of
Thirlage
,
the
said
Lands
of
Dalmertoun
(
being
a
distinct
Tenement
from
the
Lands
of
Blarquhan
,
which
hold
of
the
King
)
cannot
be
alledged
to
be
astricted
to
the
said
Miln
of
Blarquhan
:
And
if
it
had
been
intended
that
the
Lands
of
Dalmertoun
should
have
been
astricted
,
It
would
have
been
exprest
:
And
when
the
same
did
belong
to
Kennedy
of
Blarquhan
,
it
cannot
be
said
that
it
was
astricted
to
his
own
Miln
with
the
foresaid
Servitude
,
quia
res
sua
nemini
servit
;
and
he
having
Disponed
his
Miln
,
it
cannot
be
presumed
that
he
would
have
Burdened
his
own
Lands
with
a
Servitude
:
And
though
it
were
clear
Kennedy
had
astricted
the
saids
Lands
of
Dalmertoun
,
yet
he
could
not
Constitute
a
Servitude
without
the
Superiors
consent
in
his
prejudice
,
when
the
Lands
should
Ward
in
his
hands
.
It
was
replyed
by
Whiteford
of
Blairquhan
,
that
the
Superior
had
consented
to
the
Thirlage
,
in
so
far
as
John
Gilmor
and
one
Bonar
,
having
Comprysed
the
saids
Lands
of
Dalmertoun
from
Kennedy
of
Blarquhan
,
and
having
Assigned
their
said
Comprysing
to
John
Whitefoord
;
the
said
Whitefoord
by
Contract
did
Assign
the
same
to
Kilkeren
,
with
a
Reservation
of
the
multures
thereof
to
the
Miln
of
Dalhovan
:
And
the
said
E.
had
granted
a
Charter
to
Kilkeren
upon
the
foresaid
Right
.
The
Lords
thought
,
That
these
Words
Cum
multuris
usitatis
,
do
relate
only
to
the
quantity
of
the
multures
as
to
such
Lands
,
as
can
be
shown
to
be
astricted
:
But
before
Answer
to
the
Debate
upon
the
said
Charter
and
Reservation
,
They
ordained
the
Charter
and
Contract
containing
the
Reservation
to
be
produced
,
That
they
might
consider
,
Whether
it
be
in
the
Charter
,
and
how
it
is
conceived
;
and
what
it
should
operate
if
it
were
only
in
the
Contract
.
The
Lords
enclyned
to
think
that
a
clear
Reservation
,
though
there
were
not
a
preceeding
Thirlage
,
should
import
a
Constitution
,
as
to
these
who
accept
or
consent
to
such
a
Reservation
.
D.
59.
Leslie
contra
Leslie
.
eod.
die
.
PAtrick
Leslie
of
Balquhoyn
pursued
a
general
Declarator
of
the
Single
and
Liferent
Escheat
of
John
Leslie
of
Balquhoyn
,
against
James
Leslie
and
his
Spouse
as
nearest
of
Kin
to
the
said
John
.
It
was
Alledged
,
that
the
Horning
was
prescribed
,
the
Declarator
being
raised
fourty
years
after
the
Horning
.
It
was
Replyed
,
That
though
Prescription
should
run
against
the
King
(
which
was
denyed
)
yet
in
this
case
it
could
not
;
The
King
being
Minor
the
time
of
the
Prescription
diverse
years
,
and
the
Government
being
interrupted
;
So
that
there
was
not
Tempus
utile
during
the
Usurpation
:
And
the
King
is
not
in
use
to
dispose
of
Escheats
,
until
application
be
made
to
his
Majesty
:
And
by
the
Act
of
Parliament
,
it
is
provided
,
that
the
negligence
of
his
Officers
should
not
prejudge
him
.
The
Lords
Found
,
That
the
Horning
did
not
prescribe
,
in
respect
of
the
Kings
Minority
,
and
Interruption
foresaid
.
It
may
be
asked
,
If
that
reply
of
his
Majestie
's
Minority
and
Interruption
,
were
not
competent
?
And
if
the
Escheat
were
gifted
by
a
Lord
of
Regality
,
or
a
Superior
,
Quid
Juris
?
And
it
seemeth
,
that
a
Horning
being
poena
,
and
once
execute
,
it
doth
not
prescribe
;
Seing
the
Rebel
,
if
he
should
survive
fourty
years
,
his
Liferent
would
fall
to
the
Superior
;
and
there
is
no
reason
that
he
should
Lucrari
,
and
be
in
better
case
ex
culpa
,
and
by
the
continuance
of
his
Rebellion
for
so
long
a
time
.
D.
60.
Hume
contra
Creditors
of
Kello
.
12.
Decemb.
1666.
IN
a
Process
betwixt
Hary
Hume
,
and
the
Donator
of
the
Forefaulture
of
John
Hume
of
Kello
,
and
certain
others
his
Creditors
;
It
was
Found
,
That
a
Comprising
being
deduced
before
January
1652
,
and
being
the
first
effectual
Comprysing
,
ought
to
be
preferred
to
the
posterior
Comprysings
;
so
that
they
should
not
come
in
together
pari
passu
:
In
respect
tho
they
were
within
year
and
day
of
the
compleating
,
and
the
making
effectual
the
first
Comprysing
by
Infeftment
or
Diligence
,
yet
they
were
not
within
year
and
day
of
the
deduceing
the
said
Comprysing
:
and
the
said
Comprysing
being
before
the
year
1652.
doth
not
fall
under
the
compass
of
the
Act
of
Parliament
concerning
Debitor
and
Creditor
;
which
bringeth
in
pari
passu
Comprysings
led
since
January
1652
;
and
being
Correctoria
Juris
Communis
,
ought
not
to
be
extended
.
D.
61.
Thomson
contra
Stevenson
.
eod.
die
.
IN
a
Reduction
of
a
Right
and
Disposition
of
certain
Houses
;
being
pursued
ex
capite
minoris
aetatis
;
It
was
alledged
that
the
Disposition
did
bear
500
merks
,
to
be
payed
,
and
the
Defender
was
content
to
quite
the
right
being
payed
of
the
Sum.
It
was
Found
,
That
the
Alledgance
was
not
relevant
,
unless
he
should
offer
to
prove
it
really
payed
,
and
profitably
employed
for
the
use
of
the
Minor
.
In
this
Process
the
Lords
would
not
sustain
the
Reason
per
se
,
unless
Lesion
were
joyned
and
libelled
,
viz.
That
the
Lands
were
disponed
sine
Decreto
Judicis
.
D.
62.
Shaw
contra
13.
Decemb.
1666.
SHaw
being
confirmed
Executor
to
his
Brother
a
Factor
at
London
;
and
diverse
Decreets
being
recovered
against
him
,
at
the
instance
of
the
Defuncts
Creditors
;
He
desired
a
Suspension
upon
that
Reason
,
That
he
had
done
Diligence
to
recover
the
Defuncts
Debts
and
Goods
;
and
that
he
could
not
satisfie
the
Decreets
obtained
against
him
,
until
he
should
recover
the
Defuncts
Estate
:
and
that
he
was
content
it
should
be
divided
amongst
the
Defuncts
Creditors
,
according
to
their
Diligences
;
and
therefore
craved
a
Suspension
without
Caution
;
being
content
to
make
Faith
that
he
could
not
get
a
Cautioner
.
The
Lords
past
a
Suspension
as
to
personal
Execution
only
.
D.
63.
Hamilton
contra
Brown
.
15.
Decemb.
1666.
HAmilton
of
Grange
being
pursued
as
representing
his
Father
,
upon
the
Title
of
Behaving
and
Gerens
pro
Haerede
,
for
payment
of
a
Debt
of
his
Fathers
:
It
was
alledged
,
that
this
Condescendence
,
viz.
That
he
had
behaved
as
Heir
,
in
sua
far
as
he
had
granted
Dispositions
of
Land
belonging
to
his
Father
.
And
2ly
.
That
he
had
consented
as
appearand
Heir
to
some
Right
of
Lands
apprysed
from
his
Father
,
Is
not
relevant
;
unless
it
were
said
and
alledged
,
that
he
had
done
these
Deeds
before
the
expyring
of
the
Comprysing
;
seing
he
could
have
no
Right
after
the
expyring
of
the
same
;
and
neither
could
be
Heir
,
nor
Gerens
pro
Haerede
as
to
such
Lands
:
And
as
to
his
consent
,
it
was
not
sufficient
unless
he
had
disponed
.
The
Lords
inclined
to
be
of
this
Judgement
,
That
his
consent
being
as
appearand
Heir
,
should
import
Behaviour
;
and
that
though
the
Comprysings
were
expyred
,
he
might
have
an
interest
to
question
the
same
,
as
not
formal
or
Null
,
or
satisfied
by
Intromission
,
or
by
some
other
Ground
:
and
that
by
his
consent
he
was
denuded
of
that
Interest
;
and
therefore
such
Dispositions
should
import
Behaving
:
Yet
in
respect
the
Writes
which
were
to
be
used
to
prove
the
Passive
Title
were
not
produced
,
and
much
may
depend
upon
the
wording
and
conception
of
the
same
.
The
Lords
thought
fit
to
ordain
before
Answer
,
the
Writes
to
be
produced
,
and
assigned
a
Term
to
that
effect
:
But
declared
,
that
their
Act
should
be
Litiscontestation
quoad
hoc
,
That
the
Pursuer
,
after
the
Term
is
run
upon
the
said
Act
,
should
not
get
others
,
as
if
there
were
not
Litiscontestation
,
Lockhart
for
Grange
,
and
Birnie
for
the
Pursuer
.
D.
64.
Hartshaw
contra
Hartwoodburn
.
eod.
die
.
SCot
of
Hartshaw
pursued
a
Declarator
of
Property
within
the
Bounds
libelled
,
and
that
he
had
been
in
Possession
by
pasturing
,
and
doing
other
Deeds
of
Property
,
and
debaring
the
Defender
Hartwoodburn
and
his
Predecessor
:
In
this
Process
there
was
an
Act
of
Litiscontestation
;
whereof
a
Reduction
was
intented
,
upon
that
Ground
,
that
the
Defender
was
absent
,
and
was
Minor
and
indefensus
,
wanting
Tutors
and
Curators
for
the
time
,
his
Tutor
being
dead
:
and
that
he
had
a
defence
Minor
non
tenetur
placitare
.
The
Lords
Found
,
If
the
Summonds
had
concluded
the
possessorie
of
Molestation
:
And
if
that
had
been
lybelled
,
that
the
Pursuer
,
the
time
of
the
intenting
the
Pursuit
,
was
in
Possession
;
would
have
repelled
the
Defence
(
that
non
Tenetur
)
against
the
molestation
:
But
because
a
Declarator
of
Right
was
only
lybelled
,
they
reponed
the
Minor
;
And
Found
that
non
tenetur
placitare
.
Longformacus
for
Hartwoodburn
,
and
Sir
George
McKenze
for
Hartshaw
.
D.
65.
L.
Colvil
contra
Feuars
of
Culross
.
eod.
die
.
THe
Lotd
Colvil
being
Baillie
of
the
Regality
of
Culross
,
and
lyable
to
uplift
the
Taxation
of
that
Abbacy
;
And
having
charged
certain
of
the
Vassals
to
pay
their
Taxation
;
They
suspended
upon
that
Reason
,
That
a
fifth
Part
more
than
the
Taxation
was
stented
upon
them
,
on
pretence
,
and
in
consideration
of
Charges
.
The
Lords
Found
,
That
they
could
not
be
stented
to
more
than
the
Taxation
;
tho
the
Sheriff
and
Baillies
of
Regality
be
lyable
to
uplift
the
Taxation
.
Yet
it
seems
hard
,
that
they
should
be
at
the
Charges
of
raising
of
Letters
,
and
Registration
of
Hornings
,
and
such
like
:
And
albeit
the
Vassals
,
who
are
content
to
pay
their
Proportion
,
should
not
be
lyable
to
more
;
yet
it
may
appear
,
that
it
is
reason
,
that
when
the
Sheriffs
or
Baillies
give
in
what
they
have
uplifted
,
their
Charges
should
be
allowed
.
D.
66.
Hay
contra
Littlejohn
.
16.
Deeemb
.
1666.
LIttlejohn
having
comprised
the
Liferent
Right
of
a
Tenement
in
Leith
;
the
said
Tenement
became
ruinous
;
and
by
the
fall
of
a
part
of
it
,
did
crush
a
part
of
the
next
house
adjoining
to
it
,
belonging
to
_____
Hay
of
Knockondie
.
In
a
Pursuit
Knockondie
against
Littlejohn
,
for
Damnage
and
Interest
.
The
Lords
sustained
Process
;
The
Pursuer
proving
that
the
House
was
manifestly
ruinous
;
without
necessity
to
lybel
or
reply
that
the
Pursuer
had
required
the
Defender
to
repair
his
House
:
It
being
sufficient
that
the
case
of
the
House
was
such
as
did
really
require
and
call
for
Reparation
,
in
order
to
his
own
Interest
,
and
for
preventing
his
Neighbours
:
So
that
it
being
his
Fault
,
that
he
did
not
repair
the
same
,
he
was
lyable
to
refound
the
Pursuers
Damnage
:
And
albeit
by
the
Act
of
Parliament
,
Liferenters
may
be
urged
to
find
Caution
to
keep
their
Liferent
Lands
Sarta
tecta
,
and
in
the
condition
they
found
them
at
their
Entry
:
And
by
the
Civil
Law
,
Neighbours
may
be
urged
to
find
Caution
Damni
infecti
:
the
said
Remedies
are
not
privative
,
in
case
any
Prejudice
be
done
before
they
be
taken
.
D.
67.
Allan
contra
Campbel
.
eod.
die
.
EDinample
Campbel
being
pursued
as
representing
his
Father
,
upon
the
Title
of
behaving
as
Heir
:
It
was
alledged
,
that
he
intrometted
with
the
Duties
of
the
Lands
condescended
upon
,
by
a
Right
to
two
Comprysings
against
his
Father
:
It
was
replyed
,
The
Comprysings
were
not
expired
the
time
of
his
Fathers
Decease
,
so
that
in
effect
he
was
Heretor
.
The
Lords
Found
,
That
Gestio
being
magis
animi
quam
facti
;
The
Defenders
Intromission
by
vertue
of
a
Title
,
did
not
infer
Behaving
.
D.
68.
Menʒies
contra
Burnet
.
Decem.
18.
1666.
A
Relict
being
provided
to
the
Liferent
of
the
conquest
dureing
the
Marriage
,
and
pursueing
for
the
same
;
It
was
alledged
,
that
the
Money
in
question
,
which
the
pursuer
pretended
to
be
conquest
dureing
the
Marriage
,
did
belong
to
the
Defunct
before
the
Marriage
;
and
that
the
Bond
was
renewed
after
it
:
The
Question
was
,
what
way
the
said
Alledgance
,
tending
to
take
from
the
Pursuer
the
benefite
introduced
in
her
favours
by
Write
,
and
by
her
Contract
of
Marriage
,
could
be
proven
?
Yet
the
Lords
enclined
to
find
it
probable
by
the
Debitor
,
and
the
Witnesses
in
the
Bond
;
But
before
Answer
,
They
Ordained
the
Defender
to
use
such
Probation
as
he
thought
fit
,
for
proving
the
Alledgance
;
Reserving
to
themselves
to
determine
what
it
should
import
.
D.
69.
contra
18.
Decem.
1666.
IN
a
Process
against
an
Heir
of
Provision
:
It
was
Alledged
,
that
the
Heir
of
Line
ought
to
be
first
discust
:
It
was
Replyed
that
the
Heir
of
Line
was
conveened
and
Renounced
:
And
it
being
duplyed
,
That
the
Estate
belonging
to
the
Heir
of
Line
,
and
whereto
he
should
have
Right
if
he
were
served
Heir
,
ought
to
be
discussed
.
The
Lords
Found
,
No
Process
against
the
Heir
of
Provision
,
until
the
Heir
of
Line
was
discussed
;
and
that
the
Renounciation
of
the
Heir
of
Line
was
not
sufficient
;
but
that
the
Creditor
behooved
to
proceed
to
Adjudication
contra
haereditatem
Jacentem
,
belonging
to
the
Heir
of
Line
.
D.
70.
Deacon
of
the
Weavers
contra
the
Magistrates
of
Edinburgh
.
1.
June
.
1667.
THE
Deacon
of
the
Weavers
being
imprisoned
by
the
Magistrates
of
Edinburgh
,
because
he
had
disobeyed
their
Order
,
anent
the
putting
in
their
Hand
a
Box
for
the
Poor
of
the
Journey-men
;
until
some
Questions
betwixt
the
Masters
of
the
Trade
and
the
Journey-men
of
the
same
should
be
decided
;
did
crave
by
a
Bill
to
be
enlarged
,
upon
that
reason
,
that
the
Craft
had
intented
a
Reduction
of
the
Contract
betwixt
their
Predecessors
and
their
Journey-Men
,
concerning
the
keeping
and
having
a
Box
for
the
Poor
of
the
Journey-men
:
And
that
until
the
Decision
of
the
Process
,
the
Box
ought
to
be
keeped
by
their
Deacon
.
The
Lords
Ordained
the
Complainer
to
be
enlarged
,
by
Consigning
the
Box
in
the
Clerks
Hands
.
Upon
occasion
of
the
said
Process
,
it
was
agitated
amongst
the
Lords
,
Whether
there
could
be
a
Contract
and
Transaction
betwixt
the
Craft
and
Journey-men
,
who
are
not
an
Incorporation
,
and
cannot
oblige
their
Successors
?
Seing
there
can
be
no
Successors
but
of
a
Person
or
Incorporation
:
But
the
Lords
,
without
giving
Interloquitor
upon
that
point
,
Ordained
the
Reduction
to
be
heard
summarly
.
Gibson
Clerk
.
Mckenzie
alter
Lockheart
.
D.
71.
Young
contra
Young
.
4.
June
.
1667.
IN
the
case
Young
contra
Young
;
It
was
agitated
,
Whether
a
Husband
be
Lyable
for
his
Wifes
Debt
before
the
Marriage
,
being
proven
no
otherways
but
by
her
Oath
dureing
the
Marriage
:
If
the
Husband
declare
he
does
not
distrust
her
,
and
believeth
she
hath
declared
Truth
.
The
Lords
did
not
decide
the
point
;
but
some
were
of
the
opinion
,
That
if
the
Husband
Declare
upon
Oath
,
that
he
believeth
she
did
Declare
Truth
,
he
will
be
Lyable
;
in
respect
that
by
the
Law
,
the
Husband
is
Lyable
for
the
Wifes
Debt
being
Legally
proven
:
And
the
Question
is
only
,
whether
the
Wife
may
declare
in
prejudice
of
her
Husband
;
which
she
cannot
do
,
because
otherwayes
it
may
be
in
the
power
of
an
untoward
Wife
to
undoe
her
Husband
:
which
inconveniency
ceaseth
when
the
Husband
declareth
,
he
hath
no
reason
to
distrust
the
Wife
,
and
that
he
believeth
she
hath
told
Truth
:
The
great
Question
will
be
,
Whether
the
Husband
may
be
urged
to
give
such
an
Oath
of
Credulity
?
Seing
whatever
a
Husband
thought
,
yet
having
an
Imperious
Woman
,
he
should
be
forced
to
comply
with
her
,
and
to
declare
that
he
believeth
her
,
otherwayes
he
would
have
a
miserable
Life
.
Scot
Clerk
.
D.
72.
Thomson
contra
Stevenson
.
Eod.
die
.
IN
the
case
Thomson
contra
Stevenson
,
The
Lords
Found
,
that
the
Extract
out
of
the
Kirk-Session
Books
,
is
not
a
sufficient
Probation
of
Age
to
infer
Reduction
Ex
capite
minoritatis
:
But
the
case
being
difficilis
probationis
after
a
considerable
time
;
They
Found
,
that
aliqualis
probatio
ought
to
be
received
,
with
the
Adminicle
foresaid
.
Norvel
.
alt.
Wallace
,
Hamilton
Clerk
.
D.
73.
Zinzian
contra
Kinloch
.
Eod.
die
.
ZInzian
having
poinded
;
pursued
a
Spuilyie
against
Kinloch
,
having
meddled
with
some
of
the
poinded
Goods
:
The
time
of
the
adviseing
the
Cause
,
the
Defender
offered
to
improve
the
Poinding
in
data
.
The
Lords
Repelled
the
Defence
in
hoc
statu
,
Reserving
Action
:
In
respect
the
Poinding
was
produced
ab
initio
;
notwithstanding
it
was
alledged
,
that
the
Defence
was
noviter
veniens
ad
notitiam
;
which
the
Lords
did
not
respect
;
because
the
Poinding
being
produced
ab
initio
(
as
said
is
)
The
Defender
should
have
tryed
and
might
have
had
the
same
Information
,
which
he
has
now
of
the
same
:
In
the
same
Process
,
though
the
prices
of
the
Goods
Spuilyied
were
not
proven
,
because
it
is
to
be
presumed
that
the
prices
contained
in
Poindings
are
not
too
high
;
And
the
Lords
having
considered
the
poinding
,
Found
the
prices
low
.
Haystoun
Clerk
.
D.
74.
Mitchel
contra
Mitchel
.
12.
June
.
1667.
THE
Lords
upon
a
Bill
ordained
Witnesses
to
be
received
before
Litiscontestation
;
and
their
Depositions
to
ly
in
Retentis
;
Because
they
were
in
Town
for
the
present
;
and
were
to
go
to
Zetland
and
senes
valetudinarii
and
peregre
profecturi
:
And
upon
such
like
considerations
,
others
may
be
received
Witnesses
in
hoc
statu
.
Scot
Clerk
.
D.
75.
Lumisden
contra
Summers
.
Eod.
die
.
IN
a
Declarator
of
Escheat
,
it
was
alledged
,
that
the
Goods
Lybelled
were
Disponed
to
the
Defender
:
It
was
Answered
,
that
the
Disposition
was
stante
Rebellione
:
It
was
Replyed
,
That
in
Fortification
of
the
Disposition
,
it
was
offered
to
be
proven
,
that
the
Disposition
was
made
for
the
price
of
Corn
,
and
Straw
,
and
other
Goods
disponed
to
the
Rebel
;
and
whereby
His
Majesty
,
and
his
Donator
had
benefite
;
in
respect
the
same
was
employed
for
the
Entertainment
of
the
Beasts
,
and
Sowing
the
Ground
,
whereof
the
Encrease
fell
under
Escheat
.
The
Lords
Repelled
the
Defence
:
And
Found
that
the
Rebel
being
Lyable
only
personally
,
for
the
price
of
the
Goods
alledged
Disponed
;
and
the
property
of
the
Goods
in
Question
being
his
;
the
same
belonged
to
the
King
:
And
the
King
and
his
Donator
was
not
obliged
to
debate
upon
what
account
and
occasion
the
Rebel
was
Debitor
to
the
Defender
:
Or
what
use
he
made
of
the
Goods
Disponed
to
him
by
the
Excipient
,
And
is
in
no
worse
case
than
a
Creditor
poinding
,
or
Arresting
;
or
any
other
person
acquiring
Right
to
the
property
of
Goods
;
who
would
be
preferred
notwithstanding
such
pretences
;
there
being
no
such
Hypotheck
that
can
be
pretended
by
the
Law
of
Scotland
.
Diverse
instances
were
adduced
by
me
to
this
purpose
;
not
only
in
behalf
of
the
King
,
but
of
other
Superiors
and
Heretors
,
as
V.
G.
If
a
Superior
should
pursue
Declarator
of
a
Liferent
,
and
it
should
be
alledged
that
after
Rebellion
the
Rebel
had
Disponed
a
part
of
his
Lands
;
And
that
it
should
be
offered
to
be
proven
,
that
the
Money
for
which
the
Disposition
was
given
,
was
lent
,
for
acquiring
the
Right
of
the
Lands
;
So
that
thereby
the
Superior
had
benefite
thereby
:
Or
if
the
Master
were
pursueing
by
vertue
of
the
legal
and
tacite
Hypotheck
competent
to
him
,
and
it
should
be
alledged
that
the
Tennant
was
Debitor
to
another
,
for
the
price
of
Corns
furnished
for
Sowing
the
Ground
;
In
which
cases
the
Superior
and
Master
could
not
be
frustrate
upon
any
such
pretences
.
Birnie
,
alter
Thoirs
&
Frazer
,
Hamilton
Clerk
.
D.
76.
Dalrymple
contra
Eod.
die
.
A
Reduction
of
a
Testament
being
pursued
,
Ex
eo
capite
,
that
the
Defunct
was
fatuus
&
incompos
mentis
:
And
the
Relevancy
being
questioned
;
because
no
Act
or
Circumstance
,
or
qualification
was
Libelled
,
inferring
the
Defunct
to
be
in
that
condition
.
The
Lords
Ordained
the
Pursuer
to
condescend
.
Wallace
alt.
Hog
.
D.
77.
Harroway
contra
Haitly
.
14.
June
.
1667.
JAnet
Harroway
pursued
the
Heirs
of
Alexander
Haitly
her
Husband
,
to
hear
and
see
the
Tenor
of
her
Contract
of
Marriage
with
her
said
Husband
proven
,
being
lost
,
as
was
pretended
,
the
time
of
the
Troubles
:
It
was
alledged
,
that
no
Adminicle
in
Write
was
Lybelled
or
produced
;
And
whereas
it
was
Lybelled
,
that
John
Nicol
was
employed
as
Writer
for
drawing
of
the
Contract
,
the
double
of
it
was
insert
and
extant
in
his
Servants
Stile-Book
;
The
said
Stile-Book
being
neither
a
Write
under
the
Defuncts
hand
,
nor
a
Minute
nor
a
Record
Extant
in
any
Register
,
could
not
be
sustained
as
any
Adminicle
.
The
Lords
,
Albeit
it
was
offered
to
be
proven
by
the
persons
alledged
to
be
Writer
and
Witnesses
to
the
Contract
;
that
it
was
subscribed
,
and
of
the
Tenor
Lybelled
,
and
other
probabilities
were
urged
;
Yet
they
did
not
sustain
the
Summonds
without
an
Adminicle
,
upon
that
consideration
in
special
,
that
our
Law
,
ob
Lubricam
fidem
of
ordinary
Witnesses
,
against
whom
there
is
possible
no
legal
exception
,
deferring
so
little
to
their
Testimony
,
That
Transactions
,
Agreements
,
or
Promises
above
the
value
of
100
pounds
cannot
be
proven
by
Witnesses
;
If
such
pursuites
should
be
sustained
,
without
Adminicles
of
Writ
;
Contracts
of
greatest
importance
might
be
made
up
,
and
proven
by
Witnesses
;
It
was
remembred
by
some
of
the
Lords
,
that
in
the
Process
,
Corsar
contra
Durie
,
The
Lords
were
so
tender
,
that
upon
a
contentious
debate
,
a
Seasin
was
found
not
to
be
an
Adminicle
.
D.
78.
Antrobus
contra
Anderson
.
Eod.
die
.
GEorge
Antrobus
English-man
,
pursues
William
Anderson
Provost
of
Glasgow
for
234
lib.
13.
shillings
Sterling
,
due
by
John
Herbertson
,
sometimes
Baillie
of
Glasgow
;
upon
that
ground
,
that
being
charged
to
take
the
Debitor
upon
Letters
of
Caption
,
he
had
refused
to
concur
with
the
Messenger
:
It
was
alledged
,
that
the
Defender
was
not
in
sight
of
the
Rebel
;
and
though
it
be
pretended
,
that
it
was
shown
to
the
Defender
,
that
the
Rebel
was
in
the
same
House
,
in
another
Room
for
the
time
,
yet
the
Defender
being
chief
Magistrate
and
Provost
of
the
Town
,
he
was
not
obliged
to
go
himself
to
seek
the
Rebel
;
and
it
was
sufficient
he
was
willing
to
send
his
Officers
;
and
did
send
them
to
that
effect
:
Especially
it
being
considered
,
that
the
Provost
was
charged
about
Nine
of
the
Clock
under
Night
;
and
the
Army
having
come
that
same
Night
to
Glasgow
,
he
was
the
very
time
that
the
Messenger
charged
,
with
the
Quarter-Master
,
and
other
Officers
,
about
the
business
of
quartering
the
Forces
:
All
which
amounteth
to
a
Relevant
Defence
to
free
the
Defender
of
an
odious
pursuit
;
the
pursuer
having
no
prejudice
;
in
respect
the
Rebel
was
,
and
is
notourly
Bankrupt
,
and
was
imprisoned
a
few
dayes
after
,
and
continued
a
long
time
Prisoner
in
Glasgow
.
The
Lords
Found
the
Alledgance
Relevant
.
The
Lords
are
in
use
to
sustain
such
Actions
in
subsidium
against
Magistrates
for
payment
of
the
Debt
,
when
they
suffer
the
Debitor
to
escape
out
of
Prison
;
But
when
a
Magistrate
is
charged
with
Letters
of
Caption
,
bearing
no
Certification
,
but
Horning
,
it
appears
hard
to
me
,
that
the
Law
having
defined
and
prescribed
the
pain
and
certification
,
that
the
Lords
should
sustain
any
other
penal
Action
without
the
warrant
of
an
Act
of
Parliament
;
And
that
the
Magistrates
for
a
Culpa
or
neglect
,
should
be
Lyable
to
the
whole
Debt
,
which
may
be
a
great
Sum.
If
the
Action
be
considered
,
not
as
a
penal
Action
,
but
for
Damnage
and
Interest
,
it
should
be
only
sustained
,
in
so
far
as
the
Creditor
is
prejudged
;
so
that
the
Debt
being
either
recoverable
,
and
the
Debitor
in
alse
good
case
as
before
,
or
being
Bankrupt
the
time
of
the
Charge
,
the
Magistrates
may
be
denounced
upon
the
Caption
,
or
censured
for
their
Contempt
,
but
ought
not
to
be
Lyable
for
the
Debt
in
solidum
.
Scot
Clerk
.
D.
79.
Davidson
contra
the
Town
of
Inverness
.
Eod.
die
.
THere
being
a
Decreet
of
the
Dean
of
Gild
of
Innerness
against
an
Unfreeman
,
Unlawing
him
in
Three
Hundred
Pounds
,
for
Trading
:
and
a
Suspension
and
Reduction
being
raised
of
the
same
,
upon
that
reason
.
viz.
That
the
Suspender
dwelt
without
the
Towns
Jurisdiction
:
And
that
by
the
Acts
of
Parliament
,
Unfree-Traders
may
be
charged
to
desist
,
and
to
find
Caution
to
that
effect
;
But
the
Town
or
Dean
of
Gild
cannot
proceed
to
process
or
unlaw
them
;
there
being
no
such
Act
of
Parliament
to
warrand
it
;
but
only
to
Charge
(
as
said
is
)
and
to
confiscate
the
Goods
.
D.
80.
Forbes
contra
Blair
.
Eod.
die
.
DOctor
Forbes
and
his
Spouse
,
having
recovered
a
Decreet
against
David
Edgar
;
The
said
David
did
grant
a
Disposition
in
favours
of
his
Mother
;
whereof
the
Doctor
and
his
Spouse
did
intent
Improbation
and
Reduction
;
and
after
long
dependence
,
Certification
was
granted
and
Extracted
;
But
the
Defender
having
given
in
a
Bill
,
craved
to
be
Reponed
,
pretending
that
the
Certification
was
granted
in
Winter
,
when
the
Defender
being
an
Aged
Woman
,
and
attending
one
of
her
Children
being
Distracted
,
could
not
come
in
the
time
of
a
Storm
;
and
within
five
or
six
dayes
after
the
Certification
was
granted
,
she
came
and
produced
the
Disposition
;
The
Lords
before
Answer
,
whether
they
would
repone
against
the
Certification
,
Ordained
them
to
dispute
upon
the
Reasons
of
Reduction
.
viz.
That
the
Disposition
was
inter
conjunctas
personas
,
without
an
Onerous
Cause
;
and
that
the
Condescendence
was
not
relevant
,
viz.
That
the
Disponer
had
granted
Bond
for
Aliment
and
Entertainment
of
him
and
the
other
Children
to
his
Mother
,
and
for
her
Terce
;
In
respect
the
said
Pretences
were
only
patched
up
to
colour
the
said
fraudulent
Disposition
:
And
that
the
said
Disponer
,
pendente
lite
and
after
Sentence
,
could
not
in
prejudice
of
the
Pursuer
give
a
Bond
,
to
be
the
ground
of
the
said
Disposition
;
But
if
there
were
any
ground
of
the
said
pretended
Debts
,
the
Defender
should
have
recovered
Decreet
for
the
same
:
and
though
the
Debt
were
without
question
,
the
common
Debitor
,
contrare
to
the
Act
of
Parliament
,
could
not
make
a
voluntar
Disposition
,
in
prejudice
of
the
Pursuers
Diligence
;
to
gratify
and
prefer
another
Creditor
.
It
was
Answered
,
That
by
the
Act
of
Parliament
,
the
Reason
,
(
viz.
That
the
Right
was
granted
without
an
Onerous
Cause
)
is
only
probable
Scripto
vel
Juramento
:
and
that
the
Disponer
not
being
inhibited
,
the
Defender
might
lawfully
sibi
vigilare
,
and
take
a
Right
for
a
just
Debt
:
And
by
the
Act
of
Parliament
,
the
Diligence
,
that
disableth
a
Debitor
to
give
,
and
a
Creditor
to
take
a
voluntar
Right
,
is
not
a
Dependence
or
a
Decreet
,
but
Inhibitions
and
Hornings
,
which
are
so
publick
,
that
the
Leidges
may
and
ought
to
take
notice
of
them
.
The
Lords
were
tender
to
repone
against
the
Certification
:
and
yet
they
thought
not
good
to
take
away
the
Disposition
upon
the
Certification
;
seing
the
Write
was
produced
,
and
not
suspected
nor
questioned
to
be
false
;
and
the
Defender
did
excuse
and
purge
her
negligence
(
as
said
is
:
)
and
the
Disposition
being
in
her
favours
,
who
was
sub
potestate
Mariti
,
and
should
be
defended
by
him
,
having
her self
in
Law
neither
velle
nor
nolle
,
his
negligence
should
not
undo
her
:
And
therefore
the
Lords
having
considered
also
the
Difficulties
in
the
Debate
,
upon
the
Reason
,
they
reduced
the
Disposition
in
manner
aftermentioned
,
by
reserving
to
the
Defender
to
pursue
for
the
said
pretended
Debts
:
and
declared
,
that
if
she
recovered
Decreet
,
(
the
Pursuer
always
being
called
,
that
there
be
no
collusion
)
the
Defender
shall
come
in
pari
passu
with
the
Pursuer
:
and
that
the
Disposition
shall
stand
to
that
effect
only
:
Both
the
Parties
acquiesced
to
the
Decision
.
D.
81.
Cheap
contra
Philp.
eod.
die
.
MR.
Cheap
pursued
a
Reduction
of
a
Disposition
made
by
_____
Philp
,
in
favours
of
Mr.
John
Philp
,
upon
these
Reasons
;
That
it
was
subscribed
by
two
Notars
,
and
their
Subscriptions
did
not
bear
de
Mandato
;
and
because
one
of
the
Notars
was
known
to
be
of
so
great
Age
,
that
he
had
not
been
for
a
long
time
employed
as
a
Notar
,
and
that
he
had
only
subscribed
his
Name
;
The
rest
of
the
Solemn
Words
used
by
Notars
when
they
subscribe
in
subsidium
,
being
writen
by
the
other
Notar
;
Therefore
another
Notar
had
been
also
used
,
besides
the
two
Notars
;
And
that
no
respect
ought
to
be
given
to
his
Subscription
,
by
reason
it
was
ex
Intervallo
,
and
not
uno
contextu
.
2.
That
the
Disposition
was
in
lecto
.
The
Lords
,
When
the
case
was
reported
,
debated
upon
the
first
Reason
,
and
in
special
upon
these
Points
.
1.
Whether
in
Subscriptions
in
subsidium
by
Notars
,
it
be
essential
it
should
be
exprest
,
That
they
subscribed
ex
mandato
;
and
if
that
solemnity
may
be
supplied
,
by
offering
to
prove
that
the
Notars
were
Rogati
:
It
was
urged
,
that
Minuts
and
Abbreviations
of
Seasins
might
be
extended
and
transumed
,
though
none
of
the
ordinary
Solemnities
be
exprest
,
and
therefore
such
Defects
and
Omissions
may
be
supplyed
:
It
was
Answered
,
That
in
Abbreviations
,
Omnia
praesumuntur
solenniter
acta
;
But
when
an
Instrument
is
compleat
,
or
any
other
Write
,
if
it
want
the
Ordinary
Solemnities
,
they
cannot
be
supplyed
;
&
solennitas
non
praesumitur
;
And
being
only
probable
by
the
Write
it self
,
it
cannot
be
made
up
by
Witnesses
.
2.
It
was
debated
,
Whether
a
Father
or
Grand-father
could
be
Notar
,
in
a
Write
or
Right
in
favors
of
the
Son
or
Grand-child
.
The
Lords
did
demurr
upon
these
Points
,
and
thought
fit
,
that
before
Answer
as
to
these
,
the
Reason
founded
on
Lecto
should
be
discussed
.
D.
82.
Watt
contra
Halyburton
.
eod.
die
.
JAmes
Halyburton
being
infeft
upon
a
Comprysing
,
in
some
Acres
in
Dirleton
,
did
grant
a
Disposition
of
the
same
to
Adam
Watt
,
whereby
he
was
obliged
to
infeft
him
by
two
Infeftments
;
whereupon
the
said
Adam
Watt
his
Son
,
having
Right
by
Assignation
from
his
Father
,
pursued
William
Halyburton
as
Heir
to
the
Disponer
,
for
implement
and
obtaining
himself
infeft
,
and
thereafter
to
infeft
the
Pursuer
:
It
was
Answered
,
That
the
Disposition
was
in
the
hands
of
Adam
Watt
by
the
space
of
twenty
years
,
and
that
he
had
made
no
use
thereof
:
and
that
the
Defenders
Father
had
done
all
that
he
could
,
for
denuding
himself
of
the
said
Right
,
the
said
Disposition
bearing
a
procuratory
of
Resignation
:
and
that
the
Lands
holding
Ward
,
if
the
Defender
should
enter
,
his
Ward
and
Marriage
would
fall
;
so
that
unless
the
Pursuer
would
warrand
him
as
to
that
hazard
,
he
cannot
be
obliged
to
infeft
himself
.
The
Lords
decerned
,
reserving
Action
to
the
Defender
for
Damnage
and
Interest
as
accords
.
D.
83.
Key
contra
Fleming
.
15.
June
1667.
GEorge
Fleming
,
having
an
Infeftment
of
Annualrent
out
of
the
Lands
of
Cambo
,
and
thereafter
having
comprysed
for
his
Principal
Sum
:
It
was
Found
,
in
a
double
Poinding
and
Competition
betwixt
the
said
George
and
Gilbert
Key
another
Creditor
of
Cambo
,
that
the
said
Gilbert
should
be
preferred
;
in
respect
of
the
said
Gilbert
his
Infeftment
in
an
Annualrent
:
That
Decreet
being
suspended
,
Fleming
craved
to
be
preferred
,
in
respect
his
Right
of
Annualrent
was
before
Key's
Right
:
It
was
Answered
,
That
this
Infeftment
was
extinct
and
taken
away
by
the
Comprysing
;
and
that
he
could
not
now
have
recourse
to
it
,
after
a
Decreet
of
Preference
in
foro
contradictorio
:
It
was
Replyed
,
That
Decreets
of
double
poinding
preclude
as
to
bygones
;
but
as
to
the
future
,
all
are
qualified
,
for
any
thing
that
was
then
seen
.
The
Lords
were
clear
,
that
notwithstanding
of
the
Comprysing
,
he
might
have
recourse
to
his
former
Right
:
But
the
great
Question
was
,
Whether
Decreets
of
Poinding
the
Ground
,
against
a
Party
compearing
,
did
include
him
,
so
that
he
could
not
be
heard
against
Competent
and
Omitted
?
which
the
Lords
did
not
decide
;
but
recommended
to
the
Reporter
to
settle
the
Parties
.
Gibson
Clerk
.
D.
84.
Home
contra
the
Countess
of
Murray
.
18.
June
.
1667.
JAmes
Home
of
Beaprie
having
Assigned
to
the
Countess
of
Murray
the
Gift
of
Escheat
of
Sir
John
Kininmouth
,
and
certain
Debts
due
by
the
said
Sir
John
;
The
Lady
,
by
her
Bond
,
granted
that
she
had
got
the
said
Right
,
and
obliged
her self
either
to
make
payment
to
the
said
James
of
the
foresaid
Sums
,
or
to
Repone
him
to
his
own
place
:
The
Lady
being
pursued
upon
the
said
Bond
,
alledged
that
it
was
null
,
being
granted
by
her
during
her
Marriage
without
her
Husbands
consent
:
It
was
Answered
,
that
the
desire
of
the
Summonds
was
alternative
;
either
to
pay
or
Repone
the
Pursuer
;
Et
deceptis
non
decipientibus
succuritur
.
The
Lords
having
debated
amongst
themselves
upon
the
reason
of
the
Law
annulling
Deeds
,
stante
Matrimonio
done
by
Wives
;
and
some
argued
,
that
Women
Married
are
not
in
the
condition
of
Pupils
who
have
not
judicium
,
nor
Minors
who
have
not
Judicium
firmum
;
and
that
they
are
Lyable
Ex
delicto
vel
quasi
,
and
ex
dolo
.
The
Lords
,
before
Answer
to
the
Debate
,
whether
her
Assertion
in
the
Bond
,
viz.
That
she
had
received
the
Writs
mentioned
in
the
same
,
should
be
Obligatory
,
at
least
so
far
as
to
Repone
the
Pursuer
;
They
Ordained
her
to
be
Examined
anent
the
cause
of
granting
the
Bond.
Gibson
Clerk
.
D.
85.
Johnstoun
contra
Cuninghame
.
19.
June
.
1667.
A
Bond
being
granted
to
a
Husband
and
his
Wife
,
and
the
Heirs
of
the
Marriage
;
which
failyiening
their
Heirs
;
was
Found
to
pertain
to
the
Husband
after
the
Death
of
the
Wife
in
solidum
:
And
that
these
words
(
their
Heirs
)
ought
to
be
understood
Civiliter
of
the
Heirs
of
the
Husband
,
as
being
persona
dignior
.
D.
86.
Watson
of
Dunnykier
contra
his
Vassals
.
21.
June
.
1667
THE
said
Watson
having
Feued
certain
Crofts
;
with
a
servitude
in
his
Muir
of
Path-head
to
Winn
Divots
and
Clay
,
for
Building
and
Repairing
the
Houses
Built
,
and
to
be
Built
by
the
Vassals
;
pursued
Declarator
that
it
should
be
lawful
to
him
to
improve
the
Muir
,
leaving
alse
much
as
would
be
sufficient
for
the
use
foresaid
:
It
was
Alledged
,
that
the
Servitude
did
affect
the
haill
Muir
;
and
that
their
Right
flowing
from
himself
could
not
be
restrained
;
&
sibi
imputet
who
did
grant
it
in
the
Terms
of
the
said
Latitude
.
The
Lords
considering
that
it
was
intended
that
the
said
Servitude
should
only
be
for
the
end
foresaid
,
and
it
would
be
a
prejudice
both
to
the
publick
interest
which
is
concerned
,
that
the
Country
should
be
improven
,
and
waste
unprofitable
Grounds
Laboured
;
and
to
the
pursuer
also
;
without
the
least
advantage
to
the
Defenders
:
They
therefore
Ordained
alse
much
Ground
to
be
set
apart
,
as
might
more
nor
sufficiently
serve
for
the
use
foresaid
;
and
allowed
the
pursuer
to
labour
and
improve
the
rest
,
without
prejudice
to
the
Defenders
to
make
use
even
of
the
rest
dureing
the
time
it
continueth
in
the
present
condition
and
not
laboured
;
And
it
case
it
should
happen
upon
any
occasion
,
that
what
should
be
set
apart
for
the
Feuers
use
foresaid
,
should
prove
short
and
not
sufficient
for
that
use
,
they
reserved
Liberty
to
them
,
to
have
recourse
to
the
residue
;
and
granted
visitation
to
the
effect
foresaid
.
In
praesentia
,
Lockheart
and
Cheap
alter
McKenzie
.
D.
87.
Hay
of
Stravan
contra
Oliphant
.
22.
June
.
1667.
IT
was
Found
,
That
a
Miln-dam
could
not
be
drawn
from
one
side
of
a
Burn
to
another
,
without
a
Servitude
or
consent
of
the
Heretor
having
Lands
on
the
other
side
;
and
that
the
Heretor
is
not
obliged
to
debate
,
whether
he
had
prejudice
or
not
;
The
Lands
on
the
other
side
being
hisand
the
Burn
medio-tenus
.
2.
It
was
also
Found
,
that
he
might
lawfully
demolish
the
Dam
;
unless
it
were
alledged
,
that
the
Miln
had
gone
the
space
of
Fourty
eight
Hours
;
So
that
it
might
have
come
to
his
knowledge
that
it
was
a
going
Miln
.
Haystoun
Clerk
.
D.
88.
L.
Blantyre
contra
Walkinshaw
.
2.
July
.
1667.
IN
a
Reduction
the
Lord
Blantyre
contra
Walkingshaw
,
Ex
capite
minoritatis
;
It
was
Found
that
the
granting
of
a
Bond
though
with
consent
of
Curators
,
being
persons
above
all
exceptions
,
was
Lesion
;
and
that
it
was
not
sufficient
to
alledge
that
the
Money
was
actually
delivered
to
the
Curators
;
or
to
the
Minor
in
their
presence
;
unless
it
were
also
alledged
that
it
were
converted
to
his
use
.
This
seemeth
hard
,
for
the
borrowing
of
Money
by
the
Minor
whose
Affairs
may
require
the
same
,
was
not
Lesion
;
but
the
misemploying
of
it
,
which
is
the
fault
of
the
Curators
.
D.
89.
contra
Eod.
die
.
AN
Assignation
being
made
to
Mails
and
Duties
of
a
Tenement
of
Land
,
for
the
Year
in
which
it
was
granted
,
and
in
time
coming
without
Limitation
:
The
Lords
Found
,
That
the
Heir
of
the
Cedent
ought
to
have
a
formal
and
valid
Disposition
of
the
Land
,
wherupon
the
Assigney
may
be
Infeft
;
Seing
otherwayes
he
could
not
be
secure
as
to
a
perpetual
Right
to
Maills
and
Duties
against
a
Singular
Successor
:
Et
concesso
Jure
conceduntur
omnia
sine
quibus
explicari
non
potest
.
D.
90.
Mebrae
contra
Melaine
.
8.
July
.
1667.
IN
the
Process
Mcbrae
contra
Melaine
,
being
for
removing
a
Tutor
suspect
;
upon
many
Grounds
,
and
in
special
,
that
the
Tutors
Father
had
been
Tutor
to
the
Pupils
Father
and
had
not
compted
;
and
that
the
Tutor
and
his
near
Relations
had
Questions
and
Actions
of
great
importance
with
and
against
the
Pupil
.
The
Lords
inclined
,
That
another
Friend
should
be
joined
to
the
Tutor
;
But
no
Answer
was
given
by
the
Lords
to
the
Dispute
:
only
the
pursuers
Procurators
got
a
time
to
condescend
upon
a
person
fit
to
be
joined
.
D.
91.
Crie
contra
E.
Finlator
.
9.
July
.
1667.
A
Creditor
having
obtained
a
Decreet
in
subsidium
,
for
payment
of
his
Debts
,
against
the
Magistrates
of
Dundee
;
and
having
Assigned
the
Bond
wherupon
the
Debt
was
due
to
the
Magistrates
,
they
pursued
the
Cautioners
in
the
Bond
;
who
alledged
,
that
the
Debt
and
Bond
being
satisfied
by
the
principal
or
Town
of
Dundee
,
who
was
Lyable
loco
Rei
ex
delicto
,
the
Cautioners
were
liberate
.
The
Lords
did
demurr
and
delay
to
give
Answer
.
Vide
infra
24.
January
.
1668.
D.
92.
Grange
Hamilton
contra
Smith
.
Eod.
die
.
THe
Lords
Found
,
That
as
the
payment
of
Annualrents
,
so
the
payment
of
Feu-duties
may
be
proven
prout
de
Jure
.
Hay
Clerk
.
D.
93.
Watson
contra
Law
.
15.
July
.
1667.
IN
the
Process
Watson
contra
Law
,
It
was
Found
,
That
Kirklands
being
Disponed
with
absolute
Warrandice
;
The
Disponers
are
obliged
to
warrand
from
the
Designation
of
a
Gleib
:
Though
it
was
alledged
,
that
ex
natura
rei
,
and
not
ex
defectu
Juris
,
The
said
Gleib
was
evicted
.
Thereafter
it
was
Found
in
the
same
Cause
;
That
the
Designation
being
as
to
Cows
,
and
Horse
grass
;
and
upon
a
Law
supervenient
after
the
Disposition
:
viz.
An
Act
in
the
late
Parliament
;
The
Disponer
ought
not
to
warrand
from
a
Supervient
Law
.
D.
94.
contra
Eod.
die
.
EXhibition
being
pursued
by
an
Appearand
Heir
,
to
the
end
he
may
advise
,
not
only
as
to
the
Writes
in
favours
of
the
Defunct
,
but
such
as
were
granted
by
him
.
The
Lords
superceeded
to
give
Answer
as
to
the
last
Member
,
until
they
should
consider
the
Act
of
Sederunt
:
It
being
alledged
,
by
some
of
the
Lords
,
That
by
an
Act
of
Sederunt
it
was
ordained
,
that
no
person
should
be
forced
to
exhibite
Writes
granted
by
Defuncts
,
in
favours
of
himself
or
his
Authors
,
Except
Writes
granted
by
Parents
;
Or
Husbands
in
favours
of
Wives
and
Children
.
D.
95.
Hamilton
contra
Symenton
.
16.
July
1667.
IT
was
Found
,
That
the
Mother
,
being
Liferenter
of
all
that
could
belong
to
the
Daughter
as
Fiar
and
Heir
to
her
Father
,
was
obliged
to
entertain
her
;
and
de
facto
having
entertained
her
,
could
crave
nothing
for
her
aliment
,
though
the
time
she
was
entertained
,
she
was
only
appearand
Heir
,
and
thereafter
was
about
to
renounce
to
be
Heir
.
Hamilton
Clerk
.
D.
96.
Elleis
contra
Keith
.
eod.
die
.
THE
Lords
,
upon
debate
and
deliberation
,
Found
,
That
a
Person
addebted
in
payment
of
a
Sum
upon
a
Wadset
,
may
pay
his
Debt
,
and
take
a
Renunciation
,
tho
the
Creditor
granter
be
inhibited
;
and
that
Inhibitions
do
not
affect
Renunciations
.
The
Reasons
that
moved
these
that
were
for
the
Decision
,
are
.
1.
That
Inhibitions
do
hinder
the
Liedges
to
purchass
from
Persons
inhibited
,
but
not
to
borrow
Money
from
them
;
and
as
they
may
lawfully
pay
the
Sums
they
borrow
,
so
they
may
take
Discharges
and
Renunciations
.
2.
When
a
Person
does
grant
a
Renunciation
of
a
Wadset
,
he
doth
not
grant
a
Voluntar
Right
,
but
only
a
Discharge
upon
the
matter
,
which
in
Law
he
might
be
forced
to
give
,
upon
an
Order
of
Redemption
.
3.
A
Person
inhibite
might
take
Payment
and
grant
Discharge
of
an
heretable
Bond
,
even
before
Sums
due
upon
such
Bonds
became
arrestable
.
4.
If
Inhibitions
should
affect
Renunciations
of
Wadsets
,
then
they
could
not
be
granted
without
consent
of
the
Creditor
who
had
inhibited
,
even
after
an
order
of
Redemption
.
5.
The
Inhibition
,
where
it
mentioneth
and
prohibiteth
Renunciations
,
is
to
be
understood
of
Voluntar
Renunciations
,
which
the
Party
inhibite
is
not
obliged
to
grant
;
As
v.
g.
An
Heretor
having
a
Base
Right
irredeemable
,
should
after
Inhibition
renounce
the
same
.
6.
If
a
Wadset
had
been
granted
before
the
Inhibition
,
the
Creditor
may
renounce
,
because
in
Law
,
and
by
the
Contract
he
is
obliged
upon
payment
to
renounce
,
so
that
it
is
not
a
voluntar
Deed
;
And
there
is
eadem
Ratio
in
Wadsets
after
Inhibition
;
seing
the
Right
is
granted
with
that
condition
that
upon
payment
the
Creditor
should
renounce
;
And
as
I
may
grant
a
Right
to
a
Person
inhibited
,
so
I
may
grant
it
with
that
Quality
,
that
he
should
be
obliged
to
re-dispone
,
in
which
case
he
may
lawfully
dispone
back
again
,
notwithstanding
of
the
Inhibition
.
D.
97.
Ker
contra
Ker.
eod.
die
.
THe
Lords
Found
,
That
an
Executor
,
notwithstanding
of
the
Oath
given
upon
the
Inventar
,
the
time
of
the
Confirmation
,
may
be
urged
to
declare
upon
Oath
,
whether
since
the
Confirmation
,
it
is
come
to
his
Knowledge
,
That
some
Goods
and
Debts
were
omitted
,
which
he
did
not
know
the
time
of
the
Confirmation
,
and
whether
he
has
gotten
greater
Pryces
than
are
contained
in
the
Inventar
.
Gibson
Clerk
.
D.
98.
Sir
James
Keith
contra
Lundie
.
eod.
die
.
A
Decreet
being
obtained
against
Sir
James
,
as
charged
to
enter
Heir
of
Tailzie
to
his
Brother
Alexander
,
in
foro
,
for
payment
of
a
Debt
due
to
Lundy
;
Two
Exceptions
being
proponed
and
admitted
,
and
the
Term
circumduced
;
he
craved
to
be
reponed
against
the
said
Decreet
,
Alledgeing
that
the
Procurator
,
who
pretended
to
compear
for
him
in
the
Decreet
,
had
no
Warrand
,
and
was
sick
for
the
time
.
The
Lords
inclined
to
repone
him
as
to
personal
,
but
not
as
to
real
Execution
:
and
desired
the
Reporter
to
deal
with
the
Party
to
consent
.
Hamilton
Clerk
.
D.
99.
Hermiston
contra
L.
Sinclair
.
17.
July
1667.
HErmiston
being
bound
to
pay
to
the
Lord
Sinclair
his
Brother
,
out
of
the
first
and
readiest
of
the
Rents
of
the
Estate
of
Sinclair
,
a
certain
Annuity
.
The
Lords
Found
,
That
he
ought
to
pay
the
said
Annuity
entire
;
tho
he
pretended
he
was
not
obliged
simply
,
but
out
of
the
Rents
;
and
that
the
said
Rents
,
in
respect
of
the
real
burdens
upon
the
Estate
,
and
the
low
Rates
of
Victual
,
would
not
extend
to
satisfie
the
same
:
Seing
he
was
obliged
to
pay
out
of
the
first
and
readiest
.
D.
100.
Lady
Burgie
contra
Strachan
.
eod.
die
.
A
Base
Infeftment
given
by
a
Husband
to
a
Wife
,
was
sustained
after
the
Husbands
decease
,
as
publick
and
cled
with
Possession
,
albeit
the
Husband
was
not
in
Possession
the
time
of
granting
the
Right
:
In
respect
,
either
he
,
or
others
by
redeemable
Rights
and
Tacks
given
by
him
,
came
in
Possession
thereafter
.
D.
101.
Fyffe
contra
Daw
in
Perth
.
6.
Novemb.
1667.
A
Burgess
in
Perth
,
having
put
his
Son
with
a
Neighbour
to
be
his
Prentice
,
and
the
Boy
having
diverted
from
his
Service
,
the
Father
was
pursued
for
Damnage
and
Interest
sustained
by
the
Master
,
who
did
referr
to
the
Fathers
Oath
his
absence
and
diverting
:
In
which
Process
,
the
Father
having
declared
with
a
Quality
,
That
the
Master
had
beaten
and
put
away
his
Son
.
The
Lords
Found
,
The
Quality
being
super
facto
alieno
,
did
resolve
in
an
Exception
,
which
he
should
have
proponed
,
and
cannot
be
proven
by
his
own
Oath
:
And
yet
though
the
Process
was
a
Suspension
,
wherein
there
had
been
Litiscontestation
,
as
said
is
;
The
Lords
,
did
give
a
Term
to
prove
the
said
Quality
.
Procurators
Fyffe
alter
Chambers
.
D.
102.
Duke
and
Dutchess
of
Monmouth
contra
Scot
of
Clarkingtoun
.
12.
Novemb.
1667.
REquisition
being
made
by
the
Duke
of
Monmouth
and
his
Lady
,
to
Sir
Laurence
Scot
of
Clarkingtoun
,
for
a
Sum
of
Money
;
But
the
Notar
having
deceased
before
his
Instrument
of
Requisition
was
extended
▪
and
there
being
only
a
Minut
of
the
same
unsubscribed
,
the
said
Duke
and
Dutchess
pursued
Clerkingtoun
for
extending
and
making
up
the
Instrument
;
and
craved
that
Clerkingtoun
and
the
Witnesses
might
be
examined
to
that
purpose
:
and
that
upon
Probation
,
that
the
Requisition
had
been
made
conform
to
the
said
Minut
,
an
Instrument
under
the
Clerk
Registers
hand
should
be
equivalent
to
an
Instrument
.
The
Lords
Refused
the
said
Desire
,
in
respect
the
said
Minute
was
neither
subscribed
by
the
Notar
,
nor
in
his
protocal
.
Lockheart
alter
Spotswood
.
And
that
Requisition
and
such
Actus
Legitimi
cannot
be
proven
but
by
Instruments
perfected
as
to
all
necessary
Solemnities
,
at
least
the
Minutes
of
the
same
under
the
Notars
hand
.
And
tho
the
Debitors
or
Party
concerned
may
know
such
Deeds
were
done
de
facto
;
they
may
be
ignorant
and
are
not
obliged
to
declare
,
whether
they
were
Legally
done
or
not
.
D.
103.
Allanus
Henderson
contra
14.
Nov.
1667.
QUia
facti
species
(
quae
sequitur
)
dubia
&
perplexa
,
&
de
ea
disceptatio
in
apicibus
Juris
est
,
eam
&
argumenta
ultro
citroque
adducta
ex
Jure
Civili
,
Juris
istius
Idiomate
,
Latine
visum
est
subjicere
.
Sequitur
species
facti
.
Ninianus
Henderson
nauta
&
incola
villae
,
quae
vulgo
nuncupatur
Salinae
Praestonianae
,
peregre
profecturus
;
nec
immemor
periculorum
,
quibus
nautae
&
navigantes
obnoxii
sunt
;
de
rebus
suis
&
patrimonio
(
quod
exile
satis
erat
)
in
praediis
urbanis
,
&
quibusdam
tenementis
in
villa
ista
sitis
,
disponere
statuit
:
quod
fecit
Chirographo
seu
Instrumento
,
sed
adeo
informi
&
Styli
ancipitis
&
dubii
,
ut
acerrimae
Disputationi
ansam
praebuerit
,
utrum
Testamenti
&
Donationis
mortis
causa
,
an
inter
vivos
Jure
censeri
debeat
:
Ejus
Clausulas
&
tenorem
breviter
perstringam
:
Cum
esset
coelebs
,
nec
liberos
,
nec
fratres
haberet
,
sed
sororem
unicam
,
eam
praeteriit
nulla
de
ea
mentione
facta
:
&
praefatus
de
profectione
sua
&
de
morte
;
quod
haud
Ignarus
esset
ea
nihil
esse
certius
;
nec
minus
hora
&
tempore
quo
esset
obeunda
nihil
esse
incertius
:
Ideo
amore
&
gratia
ductus
,
quo
prosequitur
Allanum
Henderson
Nimani
Patrui
sui
filium
,
nominat
(
ipsa
verba
)
&
constituit
dictum
Allanum
haeredes
Executores
&
Assignatos
suos
,
ejus
haeredes
&
Successores
&
Donatarios
in
rem
suam
irrevocabiliter
;
In
&
ad
sua
Tenementa
domos
et
terras
arabiles
jacentes
in
villa
dicta
;
&
ad
omnes
alias
terras
haereditates
&
bona
quae
in
posterum
ad
sese
pertinere
contigerint
;
cum
plena
potestate
dicto
Allano
suisque
praedictis
,
si
ipsum
mori
nec
in
patriam
redire
contigerit
,
intrare
&
confirmationem
obtinere
a
Domino
directo
&
superiore
,
in
&
ad
dictas
terras
&
Tenementa
,
iisque
frui
&
possidere
;
Transferendo
in
dictum
Allanum
ejusque
praedictos
,
omne
jus
suum
tam
proprietatis
quam
possessionis
;
&
excludendo
agnatos
&
necessarios
suos
,
&
proximos
cognatos
quoscunque
;
cum
cessione
omnium
Instrumentorum
&
Evidentiarum
dicta
Tenementa
&
Terras
concernentium
:
Reservando
tamen
(
ipsissima
verba
,
quae
notanda
)
sibi
ipsi
tantummodo
,
post
suum
in
patriam
reditum
,
revocare
,
rescindere
,
irritare
,
&
annullare
praesentes
literas
tanquam
nunquam
fuissent
;
&
dictis
Terris
aliisque
uti
&
pro
arbitrio
&
libitu
suo
de
iis
disponere
:
cum
Clausula
Registrationis
.
Ninianus
ex
profectione
Redux
in
patriam
,
diem
obiit
.
Ex
eo
Instrumento
egit
ad
implementum
praedictus
Allanus
,
adversus
sororem
&
haeredem
dicti
Niniani
;
Excipiebat
Soror
,
&
pro
ea
Advocati
arguebant
,
eam
non
teneri
sed
absolvendam
his
argumentis
;
Testamentis
,
Legatis
,
&
mortis
causa
Donationibus
,
res
mobiles
tantum
disponuntur
,
nec
eae
omnes
sed
quae
Executoribus
Relictae
&
liberis
cedunt
;
libata
&
subducta
ea
parte
mobilium
,
quae
Jure
haereditatis
haeredi
,
moribus
nostris
,
relinquitur
:
Nec
satis
esse
aliquem
tum
velle
tum
posse
de
rebus
suis
disponere
,
nisi
accedat
modus
habilis
;
forma
enim
in
civilibus
&
concessionibus
dat
esse
rei
:
cum
igitur
tenore
Instrumenti
perpenso
;
in
comperto
sit
,
Testamentum
,
saltem
ei
affinem
donationem
mortis
causa
esse
;
sequitur
eo
Testamento
de
praediis
suis
frustra
nec
modo
habili
disposuisse
,
&
donationem
inanem
&
inefficacem
esse
:
Quod
autem
Instrumentum
&
Donatio
in
eo
contenta
,
Testamenti
&
Donationis
mortis
causa
Jure
censeri
debeat
,
facile
evinci
,
tum
ex
praefatione
&
verbis
narrativis
;
tum
ex
clausula
dispositiva
,
nec
non
&
ex
clausula
&
verbis
Executionis
:
Ex
praefatione
liquet
,
donationem
concessam
non
tantum
contemplatione
verum
etiam
commemoratione
mortis
,
&
verbis
in
Testamentis
&
ejusmodi
donationibus
Testamentariis
solennibus
;
nec
non
ex
ipsis
concessionis
verbis
constare
,
donatorem
voluisse
testari
vel
mortis
causa
donare
;
nominat
siquidem
dictum
Allanum
ejusque
praedictos
,
suos
haeredes
&
successores
;
nominare
autem
&
constituere
haeredes
&
Successores
sunt
verba
penitus
Testamentaria
;
Et
in
Donationibus
inter
vivos
nec
apta
nec
usurpata
:
Accedit
,
quod
cum
definitio
Donationis
mortis
causa
sit
,
Cum
aliquis
vult
se
magis
quam
Donatarium
,
eumque
potius
quam
haeredem
rem
suam
habere
;
eam
disponentis
voluntatem
fuisse
certum
est
ex
clausula
executiva
,
&
potestate
dictis
bonis
&
terris
fruendi
post
mortem
suam
;
aliis
cognatis
&
proximioribus
submotis
&
exclusis
:
Cum
Donatio
aliqua
conceditur
metu
&
intuitu
periculi
imminentis
,
eo
cessante
,
&
donante
incolumi
&
superstite
,
cessat
&
evanescit
donatio
;
Donatio
autem
,
de
qua
agitur
,
facta
est
metu
periculi
ex
navigatione
periculosa
,
imo
sub
conditione
si
Disponentem
mori
contigerit
;
cum
igitur
in
patriam
redierit
,
nec
conditio
exstiterit
,
consequens
est
Donationem
inanem
&
irritam
esse
.
Dato
Donationem
inter
vivos
,
&
puram
esse
ab
omni
conditione
suspensiva
;
extra
omnem
Quaestionis
aleam
est
,
eam
factam
sub
conditione
Resolutiva
;
Siquidem
potestate
concessa
ex
donatione
,
Terris
aliisque
donatis
fruendi
&
possidendi
,
si
Donantem
sine
reditu
in
patriam
mori
contigerit
;
a
contrario
sensu
sequitur
,
sin
in
patriam
incolumis
redeat
,
rebus
donatis
nec
frai
nec
possidere
licere
;
sed
donationem
nullam
,
existente
conditione
sub
qua
resolvitur
Donatio
ista
:
Et
si
supponatur
inter
vivos
nec
sub
conditione
suspensa
nec
resoluta
;
sine
dubio
a
Donatore
revocari
potuit
;
&
Revocata
est
post
reditum
;
&
probaturos
recipiebant
Rei
,
Instrumentum
donationis
penes
donantem
repertum
fuisse
:
Instrumentum
autem
penes
Debitorem
aut
concedentem
repertum
,
censetur
liberatum
aut
revocatum
.
Quod
nunc
sit
penes
actorem
,
non
sequi
,
ei
rursus
a
donante
traditum
,
&
iterata
Traditione
donationem
Reviviscere
;
nisi
doceatur
quando
&
quommodo
ad
eum
pervenerit
;
fieri
enim
potest
ut
tempore
mortis
penes
donantem
fuerit
,
&
actoris
dolo
substractum
.
Pro
Actore
Replicabatur
,
Instrumentum
dispositionis
&
donationis
,
inter
vivos
Jure
censendum
;
&
actionem
ex
eo
efficacem
esse
;
mentem
donantis
fuisse
donationem
concedere
irrevocabilem
si
peregre
mori
contigisset
;
sin
rediisset
revocabilem
;
hoc
casu
potestatem
revocandi
retinuisse
,
sed
ea
haud
usum
;
nec
enim
Instrumentum
aut
scriptum
exstare
quo
Testatus
sit
donationem
revocari
:
menti
exprimendae
verba
haud
defuisse
satis
apta
,
&
dispositioni
inter
vivos
idonea
;
donasse
sc:
irrevocabiliter
&
Jus
suum
omne
tam
possessionis
quam
proprietatis
transtulisse
,
cum
potestate
fruendi
&
possidendi
:
&
cessio
evidentiarum
,
&
Registrationis
clausula
sunt
naturae
penitus
Heterogeneae
&
a
Testamentis
alienae
.
Si
Donator
revocatione
facta
peregre
decessisset
revocationem
Actori
minime
obfuturam
;
Si
Actor
superstite
donatore
mortuus
fuisset
donationem
haud
inanem
,
sed
haeredibus
Actoris
efficacem
fore
:
Ea
argumenta
concludere
donationem
,
Testamenti
naturam
haud
sapere
;
cum
in
Testamentis
ambulatoria
sit
voluntas
&
praemoriente
donatario
aut
legatario
evanescunt
Legata
&
Donationes
:
haud
diffiteri
donationem
istam
quibusdam
clausulis
,
donationi
mortis
causa
affinem
videri
:
Sed
quod
de
Hermophrodito
Jure
cautum
est
,
haud
inepte
&
hic
accomodari
,
&
quod
praevalet
inspiciendum
.
Ad
argumenta
pro
Reo
Respondebatur
:
Ad
primum
,
haud
incongruum
esse
mentis
&
valetudinis
compotem
,
&
in
legitima
potestate
constitutum
,
uno
&
eodem
Instrumento
,
de
rebus
suis
tam
mobilibus
quam
immobilibus
disponere
posse
;
si
quis
enim
peregre
profecturus
Testamentum
condat
,
&
Executores
instituat
,
et
eodem
Testamento
de
terris
suis
disponat
per
verba
formalia
&
idonea
,
addito
mandato
de
Resignatione
facienda
,
&
Sasinae
praecepto
:
Sasinâ
&
Resignatione
secuta
,
eo
casu
,
si
dicas
nec
Testamentum
nec
Dispositionem
valere
,
absurdum
erit
quae
seorsim
licitae
sunt
rerum
suarum
donationes
,
illicitas
fieri
,
quod
simul
uno
Instrumento
celebratae
sunt
:
Si
dicas
Testamentum
tantum
valere
,
ratio
reddi
non
potest
,
cur
Testamentum
&
mobilium
donatio
magis
valeat
,
quam
Dispositio
&
rerum
immobilium
Donatio
,
cum
in
hac
non
minus
concurrant
potestas
&
voluntas
,
&
modus
&
conceptio
,
idonea
&
solennis
:
Superest
igitur
utrumque
valere
.
Praeterea
respondetur
,
falsum
esse
quod
asseritur
,
donationibus
mortis
causa
de
terris
&
rebus
immobilibus
disponere
haud
licere
;
cum
nihil
frequentius
sit
contractibus
&
donationibus
,
quibus
,
proximioribus
exclusis
,
haeredes
alii
(
&
ut
loqui
solemus
)
Taliae
&
Provisionis
instituuntur
.
Accedit
,
quod
Donator
Actorem
Donatarium
constituerit
;
&
verbum
istud
proprium
sit
donationis
inter
vivos
;
nec
officit
quod
etiam
haeredem
&
successorem
nominarit
,
cum
utile
per
inutile
non
vitietur
.
Ad
Secundum
Respondetur
;
Dato
,
Donationem
esse
mortis
causa
,
non
sequitur
invalidam
esse
;
superius
enim
dictum
est
in
contractibus
&
obligationibus
de
successione
Talliata
,
de
rebus
immobilibus
&
praediis
nos
quotidie
disponere
:
eas
autem
donationes
esse
mortis
causa
,
patet
ex
praedicta
Definitione
mortis
causa
donationis
;
&
quod
omnes
de
successione
contractus
,
mortis
contemplatione
&
plerumque
non
sine
mortis
commemoratione
fiant
,
&
effectum
post
mortem
sortiantur
,
&
in
iis
ambulatoria
sit
voluntas
,
nisi
accedat
pactum
de
non
revocando
.
Ad
Tertium
Respondetur
,
falsam
esse
Propositionem
;
nec
enim
cessante
causâ
impulsiva
cessat
effectus
;
nec
qui
periculo
imminente
mortalitatis
admonitus
,
Testamentum
condidit
;
si
periculum
effugerit
aut
eluctatus
fuerit
,
eo
minus
in
voluntate
eadem
perseverasse
censebitur
;
&
testatus
discedit
nisi
revocasse
constiterit
.
Ad
Quartum
Respondetur
,
Dispositionem
reditu
eveniente
,
haud
nullam
aut
irritam
esse
,
sed
revocabilem
,
id
ex
eo
demonstrari
;
Quod
sibi
soli
&
tantummodo
reservarit
,
si
domum
rediret
,
potestatem
revocandi
;
si
enim
inanis
&
caduca
fieret
Donatio
,
in
casu
reditus
,
quorsum
ista
potestas
&
sibi
soli
reservata
,
revocandi
donationem
,
quoad
omnes
,
ipso
conditionis
eventu
extinctam
&
revocatam
.
Ad
Quintum
&
Sextum
Respondetur
,
&
Negatur
,
instrumentum
post
Donatoris
reditum
penes
eum
esse
;
&
penitus
supervacuum
disceptare
an
penes
eum
fuerit
,
cum
nunc
penes
actorem
sit
,
&
sibi
a
donatore
traditum
,
nec
necesse
est
docere
quomodo
&
quando
ad
se
pervenerit
.
Senatus
Interlocutus
est
,
Donationem
istam
Testamenti
naturam
haud
sapere
,
sed
validam
&
efficacem
esse
:
Sed
si
constiterit
&
probatum
fuerit
,
penes
donantem
instrumentum
post
ejus
reditum
fuisse
,
tuno
revocatum
&
irritum
esse
.
An
autem
,
eo
quod
penes
actorem
nunc
sit
,
a
revocatione
discessum
sit
&
reviviscat
Donatio
,
interloqui
sustinuit
:
&
ulterius
inquirendum
censuit
quando
&
quomodo
ad
actorem
pervenerit
.
D.
124.
Whitehead
contra
Straiton
.
14.
Novemb.
1667.
RObert
Whitehead
of
Park
pursued
John
Straiton
Tacksman
of
the
Park
of
Holy-rood-house
,
for
the
price
of
a
Horse
put
in
the
said
Park
,
to
be
pastured
for
4.
shil.
per
night
;
which
after
search
cannot
be
found
:
It
was
Alledged
,
That
by
a
Placad
affixed
upon
the
Gate
of
the
Park
,
It
was
intimated
,
that
the
Keeper
of
the
Park
would
not
be
answerable
for
any
Horses
put
therein
,
although
they
should
be
stolen
,
or
break
their
Neck
,
or
any
other
Mischief
or
Hazard
should
overtake
them
.
It
was
Replyed
,
That
by
the
Law
Nautae
,
Caupones
,
&c.
the
Keeper
ex
conducto
is
lyable
;
unless
it
were
alledged
,
That
it
had
been
expresly
agreed
,
that
he
should
not
be
lyable
;
or
at
the
least
,
that
it
was
known
to
the
Pursuer
,
that
such
a
Placad
was
affixed
,
when
he
put
in
his
Horse
.
The
Lords
,
Before
answer
,
ordained
the
Reporter
to
enquire
,
and
hear
the
parties
upon
the
terms
of
the
Agreement
,
when
the
horse
was
put
in
:
whether
it
was
told
or
known
to
the
pursuer
,
that
the
keeper
would
not
be
answerable
.
Castlehill
Reporter
.
D.
105.
Gardiner
contra
Colvil
.
16.
Novemb.
1667.
IN
an
action
Gardiner
contra
Colvil
;
the
pursuer
being
ejected
during
her
Husbands
absence
out
of
the
countrey
,
and
when
it
was
supposed
he
was
dead
.
The
Lords
sustained
the
pursuite
;
Though
the
time
of
the
adviseing
the
probation
,
It
was
offered
to
be
proven
that
he
was
living
:
and
did
declare
,
that
albeit
the
Husband
were
at
the
Barr
,
they
would
give
the
Wife
the
benefite
of
Juramentum
in
litem
,
in
respect
of
the
wrong
done
by
the
Defender
,
and
the
particulars
and
quantities
could
not
otherwise
be
proven
.
Actor
Longformacus
alter
Wallace
.
Castlehill
Reporter
.
D.
106.
Trotters
contra
Lundy
.
20.
Novemb.
1667.
THE
Children
of
George
Trotter
in
Fogorig
being
confirmed
Executors
to
their
Sister
Isobel
Trotter
,
pursued
James
Lundie
Cautioner
in
a
Bond
for
James
Trotter
of
the
East-end
of
Fogo
,
for
the
Sum
thereinconteined
:
It
was
Alledged
,
that
the
said
James
being
Heir
to
his
Grand-father
Alexander
Trotter
in
the
East-end
of
Fogo
,
and
the
said
George
Son
to
the
said
Alexander
and
Executor
to
him
,
they
did
transact
together
that
the
Movables
belonging
to
the
said
George
as
Executor
should
remain
with
the
Heir
;
and
the
said
James
and
the
Defender
as
Cautioner
did
for
the
cause
foresaid
grant
the
said
Bond
blank
in
the
Creditors
name
wherein
the
said
George
filled
up
the
name
of
John
Trotter
in
Chester
his
Brother
;
and
procured
from
him
an
Assignation
for
the
said
Isobel
his
Daughter
;
And
that
thereafter
upon
a
Submission
betwixt
the
said
George
and
Alexander
Trotter
Son
to
the
said
James
granter
and
principal
Debitor
in
the
said
Bond
,
The
Arbiters
ordained
the
said
George
to
give
back
to
the
said
Alexander
the
said
Bond
,
and
Assignation
,
with
a
Discharge
thereof
;
and
therefore
the
said
Isobel
being
in
familia
paterna
,
and
the
said
Bond
and
Assignation
being
taken
and
procured
as
said
is
,
by
the
said
George
the
Father
in
favours
of
the
Daughter
who
hath
no
visible
Estate
or
means
to
acquire
any
such
Right
,
he
was
still
master
of
the
same
:
And
it
being
ordained
to
be
Discharged
(
as
said
is
)
the
said
Debt
is
Extinct
.
It
was
Answered
,
that
the
Bond
being
filled
up
and
Registrat
in
the
name
of
the
said
John
Trotter
,
and
the
samen
being
Assigned
,
and
the
Assignation
in
favours
of
the
said
Isobel
intimat
;
and
after
her
decease
,
her
Executors
having
confirmed
the
said
Debt
;
all
before
the
said
Submission
;
her
Father
could
not
by
the
Submission
or
any
other
deed
of
his
,
Evacuat
the
said
Right
Established
in
the
person
of
the
said
Isobel
and
her
Executors
:
And
as
to
the
Practique
betwixt
Monimusk
and
Pittarro
,
whereupon
the
Defenders
alledge
;
it
doth
not
quadrate
to
the
Bond
in
question
,
it
being
never
delivered
but
depositat
in
the
Uncles
hand
,
Mother
Brother
to
the
Child
;
and
in
the
same
case
It
was
Found
,
That
the
Father
could
not
retract
a
reall
Right
made
in
favours
of
his
Child
and
Heir
:
And
here
there
is
Eadem
Ratio
.
The
Lords
Found
,
That
the
Father
being
Master
of
a
Bond
or
Right
,
whereupon
nothing
followed
,
being
granted
by
himself
;
may
throw
it
in
the
fire
,
and
may
consequently
Discharge
it
:
But
the
said
Right
being
made
publick
,
and
compleated
by
the
delivery
,
and
which
is
equivalent
,
by
some
publick
deed
,
by
Infeftment
if
it
be
Heretable
;
or
by
Assignation
intimated
,
or
confirmed
Testament
,
if
it
be
Movable
;
he
could
not
thereafter
Retreat
or
prejudge
the
same
:
And
repelled
the
Defence
in
Respect
of
the
Answer
.
Hackertoun
Lord
Reporter
.
Mr
Thomas
Hay
Clerk
.
D.
107.
Pollock
contra
Pollock
.
eod.
die
.
JOhn
Pollock
having
granted
a
Bond
of
5000
Merks
to
James
his
second
Son
of
the
first
Mariage
;
The
said
James
intented
and
pursued
for
payment
both
Robert
eldest
Son
of
the
same
Marriage
,
Heir
of
Line
,
and
John
eldest
Son
of
the
second
Marriage
,
and
Heir
of
Provision
,
as
charged
to
Enter
Heir
respective
:
It
was
alledeged
for
the
Heir
of
the
first
marriage
,
that
he
offered
to
renunce
:
And
for
the
Heir
of
Provision
,
that
the
Heir
of
Line
ought
to
be
first
discussed
by
adjudication
;
and
condescended
upon
movable
Heirship
,
which
might
be
adjudged
:
It
was
Answered
for
the
Heir
of
Line
,
that
his
Father
,
having
provided
him
,
had
taken
from
him
a
Renunciation
of
all
that
could
belong
to
him
as
Heir
,
So
that
he
could
have
no
Right
to
the
movable
Heirship
,
which
,
in
respect
of
his
Renunciation
,
would
be
considered
as
other
movables
and
fall
under
Executrie
:
It
was
Replyed
for
the
Heir
of
provision
,
that
by
the
Renunciation
,
the
Heir
of
Line
had
renunced
his
kindness
,
to
the
effect
his
Father
might
have
power
to
dispose
of
the
Heirship
;
but
his
Father
not
having
disposed
thereof
,
the
Right
returned
to
the
Heir
of
Line
again
,
the
Renounciation
being
in
favours
of
him
and
his
Heirs
;
as
in
Renounciations
of
that
nature
as
to
Lands
,
if
the
Father
does
not
dispose
of
the
same
,
they
will
notwithstanding
belong
to
the
Heir
.
Some
of
the
Lords
thought
,
there
should
be
a
difference
betwixt
Lands
and
Movable
Heirship
;
In
respect
the
Right
of
Lands
,
whereof
the
Father
died
infeft
,
cannot
be
Setled
in
the
person
of
any
other
but
the
Heir
,
who
therefore
ought
to
have
Right
notwithstanding
of
the
Renunciation
:
But
the
Movables
which
should
fall
under
Heirship
by
the
Renunciation
of
the
Heir
,
cease
to
be
Heirship
;
and
may
be
confirmed
as
other
Movables
:
Others
Thought
,
that
the
Effect
of
such
Renunciations
should
be
the
same
as
to
Movables
and
Lands
;
the
Fathers
intention
being
one
and
the
same
for
both
;
and
therefore
,
as
the
Right
in
the
construction
of
the
Law
returneth
to
the
Heir
of
the
Father
,
who
doth
not
otherwise
dispose
of
his
Lands
;
there
is
the
same
reason
as
to
movable
Heirships
:
And
as
to
the
pretence
foresaid
,
it
is
of
no
weight
,
seing
if
it
were
the
Intention
of
the
Father
,
that
by
such
Renunciations
the
Son
should
be
denuded
,
without
Return
,
though
the
Father
should
not
dispose
of
his
Lands
;
the
Son
may
be
pursued
and
forced
to
denude
himself
,
that
his
Renunciation
may
be
effectual
,
in
favours
of
the
nearest
of
Kin.
The
Lords
before
answer
ordained
the
Renunciation
to
be
produced
,
that
they
might
consider
the
Tenor
of
it
.
D.
108.
Tacksmen
of
the
Custumes
contra
Greenhead
.
Eod.
die
.
THe
Custums
of
the
Borders
being
set
in
Subtack
to
Greenhead
and
others
,
by
the
Tacksmen
of
the
haill
custumes
of
the
Kingdom
:
Greenhead
is
pursued
as
representing
his
Father
one
of
the
Subtacksmen
,
for
the
dutie
the
year
1650.
It
was
alledged
,
That
the
Subtack
was
altogether
unprofitable
,
upon
the
occasion
of
the
English
Invasion
;
so
that
Beasts
and
other
Goods
were
not
imported
,
nor
Exported
that
year
,
as
they
had
been
in
use
formerly
:
It
was
Answered
,
that
albeit
in
praediis
Rusticis
,
in
case
of
Sterilitie
,
Vastation
,
and
such
other
Calamities
that
cannot
be
avoided
,
There
may
be
abatement
craved
&
Remissio
Canonis
;
yet
in
this
case
the
Subject
being
conductio
rei
periculosae
&
Jactus
Retis
,
the
Subtacksmen
ought
to
have
no
abatement
,
and
are
in
the
same
case
as
Tacksmen
of
Salmond
fishing
,
who
will
be
lyable
for
the
duty
,
albeit
no
profit
arise
to
them
.
The
Lords
Found
,
That
Subtacksmen
should
have
abatement
:
But
the
Question
being
most
,
Quatenus
,
and
concerning
the
proportion
;
because
,
though
the
Subtacksmen
had
undoubtedly
loss
,
yet
it
was
not
Total
;
there
being
some
Commerce
betwixt
the
Kingdoms
for
that
year
,
some
Moneths
.
It
was
Found
in
end
,
upon
hearing
of
Parties
,
that
the
half
of
the
Dutie
should
be
abated
.
Actores
Lockhart
&
Cuninghame
Alteri
Sinclair
.
Mr
Thomas
Hay
Clerk
:
The
Law
is
very
clear
ff
Locati
;
and
the
Doctors
upon
that
Title
;
not
only
in
praediis
but
in
conductione
vectigalium
,
and
the
like
;
in
case
of
an
insuperable
Calamity
,
remittitur
Canon
&
merces
;
but
they
are
not
so
clear
as
to
the
Quatenus
and
proportion
of
the
abatement
,
when
the
detriment
is
not
Total
:
But
it
is
just
,
the
abatement
should
be
proportionable
to
the
loss
:
And
accordingly
The
Lords
decided
.
D.
109.
Justice
Clerk
contra
Lambertoun
23.
Nov.
1667.
IN
the
case
,
the
Justice
Clerk
contra
Lambertoun
,
the
probation
anent
the
value
and
worth
of
the
Woods
pertaining
to
the
Justice
Clerk
,
and
cutt
and
intrometted
with
by
Lambertoun
,
being
advised
;
It
was
considered
and
represented
by
some
of
the
Lords
,
that
had
been
Commissionated
to
examine
the
Witnesses
adduced
by
both
parties
,
being
allowed
to
have
a
joynt
probation
,
that
the
probation
was
dubious
;
the
Witnesses
for
the
Pursuer
declaring
too
highly
,
and
the
Witnesses
for
the
Defender
too
low
as
appeared
:
And
that
the
Subject
of
the
Question
not
being
de
re
which
is
the
proper
Object
of
Sense
,
but
de
rei
valore
qui
cadit
sub
Judicium
&
Intellectum
;
The
Testimonies
of
the
Witnesses
are
not
de
rei
veritate
but
de
credulitate
&
opinione
;
and
therefore
are
not
numeranda
sed
ponderanda
,
according
to
the
circumstances
both
of
their
oun
quality
and
the
quality
of
the
Declaration
,
whether
they
have
declared
verisimilia
,
and
whether
animose
and
such
like
;
and
whether
they
have
given
a
probable
reason
of
their
knowledge
:
That
in
this
case
,
the
Witnesses
that
have
deponed
most
to
the
advantage
of
the
Pursuer
are
his
own
Tennants
;
and
one
of
them
a
Smith
&
his
Officer
:
that
they
give
the
reason
of
their
Knowledge
,
that
they
dwelt
in
the
bounds
,
which
is
not
sufficient
,
unless
they
had
been
periti
and
Conversant
about
the
matter
of
Woods
,
and
the
Buying
and
the
Selling
and
the
valuing
of
the
same
:
That
some
Witnesses
for
the
Defender
had
given
their
Judgment
upon
oath
as
strongly
and
pregnantly
as
they
,
though
they
be
not
so
many
:
So
that
the
probation
at
best
is
but
dubious
,
and
in
dubiis
minimum
sequendum
;
at
the
least
the
Lords
have
a
latitude
to
found
their
Judgment
upon
the
Testimonies
of
both
cum
temperamento
,
and
without
adhering
percisely
to
either
.
The
Lords
Found
nevertheless
by
plurality
,
That
they
should
have
respect
to
what
had
been
proven
by
the
most
part
:
And
accordingly
Decerned
.
D.
110.
Rankin
contra
Skelmorlie
and
Dunlop
.
eod.
die
.
IN
a
double
poinding
at
the
instance
of
the
Lord
Melvil
;
there
being
a
Competition
betwixt
two
Creditors
of
Antonia
Broun
Daughter
and
Heir
to
Sir
John
Broun
:
The
Lords
preferred
Skelmorly
the
first
Arrester
,
Though
Rankin
had
obtained
a
Decreet
to
make
forthcoming
,
and
had
compleated
his
Diligence
;
and
alledged
,
that
an
Arrestment
is
but
an
inchoate
Diligence
,
and
doth
not
hinder
any
other
Creditor
to
compleat
,
and
do
more
exact
diligence
by
poinding
,
or
by
a
Decreet
to
make
forthcoming
,
which
in
Debts
,
and
in
nominibus
are
equivalent
.
The
reason
of
the
Decision
was
,
that
Skelmorly
had
not
only
Arrested
but
had
intented
a
pursuite
before
the
Lords
to
make
forthcoming
before
Rankin
;
But
Processes
before
the
Lords
being
more
tedious
,
and
the
Pursuer
not
Master
of
Calling
,
Rankin
had
taken
advantage
by
obtaining
a
Decreet
before
the
Sheriff
,
in
the
interim
.
D.
111.
Hay
contra
Drummond
.
26.
Novem.
1667.
IN
a
Reduction
Hay
of
Haystoun
contra
Drummond
and
Hepburn
;
A
Seasin
being
called
for
;
The
Defenders
having
alledged
,
that
the
same
being
Registrate
,
and
they
condescending
upon
the
Registration
,
the
pursuer
should
Extract
it
himself
.
The
Lords
did
debate
amongst
themselves
,
whether
the
Defender
should
be
obliged
to
Extract
and
produce
the
Seasin
:
Some
were
of
the
opinion
,
that
there
is
a
difference
betwixt
Decreets
and
Registrate
Bonds
and
such
like
;
and
betwixt
Seasins
and
Charters
,
which
being
the
Defenders
own
Evidents
and
the
principals
not
being
in
the
Registers
,
they
are
presumed
to
have
them
;
and
if
they
have
them
not
,
ought
to
Extract
them
:
Others
thought
,
that
seing
Extracts
do
satisfie
the
Production
in
Reductions
;
If
the
Defenders
have
neither
Principals
nor
Extracts
,
and
be
content
to
make
Faith
thereupon
,
it
were
hard
they
should
be
at
the
Charge
to
Extract
them
,
in
order
to
a
Process
against
themselves
.
The
Lords
did
nothing
upon
the
Debate
.
The
Lords
did
resolve
,
and
caused
intimate
to
the
Advocates
,
That
hereafter
they
would
only
give
two
Terms
in
Reductions
,
and
three
Terms
in
Improbations
.
D.
112.
Dalziel
contra
eod.
die
.
THE
Minister
of
Prestonhaugh
,
Mr.
John
Dalʒiel
,
pursued
for
the
Teinds
of
Lanton
,
upon
his
presentation
to
the
said
Kirk
and
Teinds
Parsonage
and
Viccarage
:
It
was
Alledged
,
no
process
,
unless
he
were
presented
to
be
Prebendar
,
seing
the
said
Kirk
is
a
Member
of
the
Collegiate
Kirk
of
Dumbar
;
and
cannot
be
made
appear
to
be
dissolved
,
and
Erected
in
a
several
Rectory
.
The
Lords
Found
,
That
being
presented
to
be
Minister
at
the
said
Kirk
,
and
to
the
Teinds
,
which
are
the
patrimony
of
the
Prebendar
;
it
is
equivalent
,
as
if
he
were
presented
Prebendar
:
As
when
there
is
a
presentation
to
a
Kirk
,
which
is
a
Parsonage
,
and
to
the
Teinds
,
the
Minister
will
have
Right
,
though
he
be
not
presented
to
be
Rector
or
Parson
.
D.
113.
E.
of
Lauderdale
contra
Vassals
of
Musselburgh
.
5.
Decem.
1667.
IN
a
Reduction
and
Improbation
at
the
instance
of
the
Earl
of
Lauderdale
,
against
the
Vassals
of
Musselburgh
,
and
in
special
Major
Biggar
and
others
Heretors
,
and
possessors
of
the
Lands
of
Hill
.
The
Lords
Found
,
That
the
Major
having
produced
a
more
eminent
progress
,
and
which
he
alledged
would
exclude
the
pursuer
;
no
Certification
could
be
granted
contra
non
producta
;
The
Defender
not
being
obliged
to
show
any
other
Writes
,
untill
these
which
are
produced
be
discussed
.
The
Lords
Found
also
,
That
the
Defenders
are
not
obliged
to
declare
,
that
they
will
use
no
other
Writes
than
these
which
are
produced
:
The
only
difficulty
being
,
that
the
reason
of
Reduction
could
not
be
disputed
,
until
the
Production
be
closed
;
and
if
the
Writes
produced
should
be
improven
or
reduced
,
the
Pursuer
would
be
put
to
a
new
process
of
Improbation
;
or
return
and
crave
Certification
after
Dispute
in
Causa
,
which
is
incongruous
in
Form
.
The
Lords
were
of
Opinion
,
that
in
the
same
Process
the
Pursuer
after
the
discussing
of
the
Writs
produced
,
might
thereafter
crave
Certification
contra
non
producta
.
D.
114.
Fountain
contra
Maxuel
.
eod.
die
.
ALbeit
the
Lords
are
tender
in
Exhibition
of
Writs
;
unless
it
be
proven
,
that
the
Defenders
had
the
same
the
time
of
the
intenting
of
the
Cause
;
or
had
fraudfully
put
the
samen
away
before
;
which
is
difficilis
probationis
;
Yet
in
an
Exhibition
at
the
instance
of
_____
Fountain
against
Maxuel
of
Nethergate
,
they
decerned
to
exhibite
,
albeit
it
was
not
proven
that
the
Defenders
had
the
Writes
,
at
,
or
since
the
intenting
of
the
Cause
:
In
respect
it
was
proven
,
the
Defender
had
medled
with
the
Writs
being
in
a
Charter
Chest
;
and
had
offered
to
Transact
concerning
the
same
;
and
so
was
presumed
to
have
put
them
away
fraudulently
:
There
being
a
great
difference
betwixt
a
transient
having
of
Writes
,
and
a
down
right
medleing
and
Intromission
;
which
,
being
proven
,
though
it
be
before
the
intenting
of
the
Exhibition
,
doth
oblige
the
Intrometter
to
be
answerable
for
the
same
.
D.
115.
Collector
of
the
Taxation
contra
the
Parson
of
Oldhamstocks
.
6.
Decem.
1667.
IN
the
Case
,
The
Collector
of
the
Taxation
contra
the
Parson
of
Oldhamstocks
;
a
Question
was
moved
,
whether
the
Successor
in
the
benefice
be
Lyable
for
the
Taxation
due
by
his
Predecessors
,
his
Patrimony
consisting
most
of
Teinds
:
But
was
not
decided
at
this
time
.
D.
116.
Mr.
Rodger
Hog
contra
The
Countess
of
Home
.
11.
Decemb.
1667.
AN
Inhibition
being
served
upon
an
Obligement
to
warrand
;
A
Reduction
was
thereupon
sustained
,
though
it
was
alledged
there
was
neither
Decreet
of
Eviction
,
nor
Liquidation
of
distress
;
the
pursuit
being
only
a
Declarator
,
and
the
Decreet
being
only
effectual
after
Eviction
and
Liquidation
;
which
accordingly
was
declared
by
the
Lords
.
D.
117.
Inter
Eosdem
.
eod.
die
.
BEtwixt
the
same
Parties
:
It
was
alledged
,
that
the
Defenders
Right
was
ratified
by
a
Creditor
,
who
had
a
Comprysing
expired
;
so
that
the
pursuer
had
no
interest
to
question
the
Defenders
Right
:
It
was
Answered
,
That
the
pursuer
desired
only
such
Right
as
was
after
the
Inhibition
to
be
reduced
,
without
prejudice
of
any
other
,
which
he
could
not
nor
was
obliged
to
debate
hoc
loco
.
The
Lords
,
notwithstanding
Found
the
Alledgance
Relevant
.
D.
118.
Hamilton
contra
Lord
Belhaven
.
13.
Decem.
1667.
RObert
Hamilton
Clerk
,
pursued
the
Lord
and
Lady
Belhaven
to
hear
and
see
it
declared
,
that
a
Minute
betwixt
him
and
them
concerning
the
Tenor
and
Articles
Lybelled
,
is
null
;
the
clause
irritant
therein
mentioned
being
committed
.
The
Lords
refused
to
sustain
the
pursuit
;
unless
the
Minute
were
produced
:
Albeit
it
was
alledged
there
could
be
no
prejudice
,
in
respect
a
Minute
of
another
Tenor
could
not
be
prejudged
:
and
a
Minute
of
that
Tenor
Lybelled
,
should
be
declared
void
upon
the
reason
Lybelled
.
D.
119.
Rioch
contra
Eod.
die
.
AFter
Litiscontestation
upon
an
Exception
of
payment
;
the
Defender
,
who
was
pursued
as
Lawfully
charged
to
enter
Heir
,
Desired
to
be
admitted
to
renunce
;
which
was
refused
;
because
by
the
proponing
the
Defence
,
Gesserat
se
pro
haerede
:
And
Litiscontestation
is
a
judicial
Contract
.
D.
120.
Rannolph
Davidson
contra
Richardson
Eod.
die
.
A
Ship
being
declared
pryse
,
Because
the
Loadning
of
Salt
belonged
to
a
Frenchman
;
the
Skipper
and
Steersman
having
declared
upon
oath
that
the
Loadning
was
taken
in
at
the
Rotchel
upon
the
account
of
the
said
Person
.
The
adjudication
was
quarrelled
by
a
Reduction
,
upon
diverse
reasons
;
and
in
special
these
,
that
the
Deposition
of
the
Skipper
and
Steersman
were
forced
and
extorted
from
them
;
and
that
it
was
offered
to
be
proven
and
that
it
did
appear
by
diverse
Letters
,
Certificats
,
and
Documents
produced
,
that
the
Loadning
did
belong
to
the
Owners
of
the
Ship
who
were
Citizens
of
Dantzick
and
Hamburg
,
and
were
not
the
Kings
Enemies
.
The
Lords
in
this
Process
Found
,
that
the
Owners
may
be
heard
to
reduce
the
Sentence
upon
reasons
omitted
by
the
Skipper
.
2.
It
being
debated
amongst
the
Lords
whether
the
Skippers
Declaration
should
so
prejudge
and
conclude
the
Owners
,
that
they
should
not
be
heard
thereafter
to
prove
that
the
Loadning
belonged
to
them
:
Some
thought
it
hard
,
that
the
Skippers
fraud
or
mistake
should
prejudge
the
Owners
:
But
because
in
the
case
,
there
was
no
ground
to
persume
that
the
Skipper
and
Steersman
did
intend
to
prejudge
or
wrong
the
Owners
;
and
the
Writs
and
Certificats
produced
were
all
after
the
Seizure
;
and
the
Letters
,
which
were
of
anterior
dates
might
have
been
made
up
,
and
were
all
from
Persons
concerned
;
and
there
were
Documents
found
in
the
Ship
that
could
clear
that
the
Loadning
did
belong
to
the
Owners
.
The
Lords
Sustained
the
Sentence
,
unless
the
Pursuer
would
qualifie
Foroe
and
Violence
,
and
that
the
Depositions
were
Extorted
.
Hay
Clerk
.
D.
121.
Homes
contra
Paterson
17.
Dec.
1667.
IT
was
Found
,
that
the
Attester
of
the
sufficiencie
of
a
Cautioner
,
being
pursued
for
the
Debt
,
the
Cautioner
being
distrest
and
discust
and
not
Solvent
;
and
the
Attester
having
alledged
that
he
offered
to
prove
that
the
Cautioner
was
then
the
time
he
became
Cautioner
,
habitus
&
reputatus
Responsal
&
idoneus
as
to
the
Debt
:
The
alledgance
is
relevant
,
and
the
Attester
no
further
lyable
.
D.
122.
Sir
Thamas
Nicolson
contra
the
Laird
of
Philorth
.
18.
Dec.
1667.
PHilorth
elder
,
being
pursued
as
representing
his
Grand-Father
for
payment
of
a
Debt
due
upon
Bond
granted
by
the
Earl
Marischal
and
his
Grand-Father
as
Cautioner
:
It
was
Alledged
,
that
the
Bond
being
Dated
above
fourty
years
ago
was
perscribed
:
It
was
Replyed
,
that
interruption
had
been
made
by
payment
of
the
Annualrents
by
the
principal
Debitor
:
It
was
Answered
it
was
prescryved
as
to
the
Cautioner
,
there
being
no
interruption
by
any
Document
or
pursuit
against
him
,
or
payment
by
him
.
The
Lords
repelled
the
Defence
in
respect
of
the
Reply
:
and
Found
that
the
ground
of
prescription
as
to
personal
actions
being
odium
and
negligentia
non
petentis
,
that
it
doth
not
militate
in
this
case
,
the
Creditor
haveing
gotten
Annualrent
;
so
that
he
cannot
be
said
to
be
negligent
.
Lockhart
,
alter
Cuninghame
.
D.
123.
Gilespie
contra
Auchinleck
.
Eod.
die
.
MAry
Williamson
Lady
Cumblidge
,
having
Right
not
only
of
Liferent
but
also
to
the
Fee
of
the
said
Estate
by
Comprysing
;
and
being
about
to
Marry
with
Patrick
Gilespie
her
second
Husband
:
for
settling
and
preventing
Questions
betwixt
her
Children
and
her
Husband
,
she
did
Dispone
the
Fee
of
the
Lands
to
her
eldest
Son
with
the
burden
of
5000.
Merks
to
be
payed
to
her
second
Son
at
his
age
of
Twentie
one
years
;
and
to
Entertain
him
in
the
Interim
:
And
at
the
same
time
her
eldest
Son
did
grant
and
sett
a
Tack
to
the
said
Patrick
,
for
a
year
after
his
Mothers
decease
if
he
should
survive
her
,
of
her
Liferent
Lands
reserved
in
the
Disposition
,
mentioning
their
purpose
of
Marriage
,
And
that
he
was
to
stock
the
saids
Lands
,
and
that
his
Wife
might
die
before
him
;
upon
which
considerations
the
said
Tack
is
sett
:
At
the
same
time
,
the
said
Mary
did
privatly
dispone
her
Liferent
in
favours
of
her
second
Son
John
Auchinleck
,
who
intented
a
pursuit
against
her
and
her
said
Husband
for
the
Maills
and
Duties
of
the
Lands
for
diverse
years
:
It
was
Alledged
;
that
the
said
Right
being
a
privat
latent
Right
,
the
Defender
ought
to
be
free
of
bygones
as
being
bona
fide
Possessor
,
by
virtue
of
his
Wife's
Infeftment
,
and
his
Jus
mariti
:
It
was
Answered
,
That
he
and
his
Wife
are
Eadem
persona
,
and
she
being
his
author
,
cannot
pretend
that
they
possessed
bona
fide
in
prejudice
of
a
Right
made
by
her self
.
The
Lords
Found
the
alledgances
relevant
.
It
was
further
alledged
,
that
the
Disposition
made
to
the
Pursuer
was
most
fraudfully
granted
in
prejudice
of
the
Defender
after
Treatie
of
the
Marriage
,
and
the
said
publick
Transactions
in
order
thereto
;
Which
were
Equivalent
to
,
and
to
in
lieu
of
a
Contract
of
Marriage
;
the
Wife
having
no
other
thing
besides
to
dispose
of
besides
her
Liferent
,
to
which
the
Husband
has
Right
Jure
mariti
;
so
that
a
Contract
was
not
necessary
as
to
that
:
And
that
the
said
Right
was
retained
by
the
Mother
,
and
not
delivered
until
she
was
Married
;
at
which
time
she
could
not
prejudge
her
Husband
,
and
that
the
Defender
had
a
Reduction
depending
upon
the
reasons
foresaid
.
The
Lords
Found
the
alledgance
relevant
:
And
found
that
an
Assignation
not
intimat
and
not
being
made
for
an
onerous
Cause
,
could
not
prejudge
the
Husband
,
having
by
his
Marriage
a
publick
Right
Equivalent
to
an
Assignation
,
and
therefore
assoiled
.
It
was
not
considered
whether
the
Right
was
delivered
or
not
,
being
found
latent
as
said
is
.
D.
124.
Wilson
contra
the
Magistrates
of
Queensferry
2.
January
.
1668.
ARchibald
Wilson
being
charged
to
accept
the
Office
of
a
Baillie
of
the
Town
of
Queensferry
,
Suspended
upon
the
Act
of
Parliament
,
Jam.
3.
Parl.
5.
Chap.
29.
whereby
it
is
statute
,
that
Magistrates
within
Burghs
should
not
be
continued
longer
than
a
Year
;
and
subsumed
that
he
had
served
the
preceeding
two
Years
.
This
case
being
Reported
,
The
Lords
Found
,
the
Reason
Relevant
.
And
albeit
the
Act
of
Parliament
be
not
in
observance
,
specially
in
Edinburgh
,
The
present
Provost
having
been
in
that
place
diverse
years
,
yet
the
Ambition
and
unwarrantable
practice
of
those
who
violate
the
said
Act
,
and
others
made
to
that
purpose
;
ought
not
to
prejudge
others
who
are
most
sober
,
and
claim
the
benefite
of
the
same
,
D.
125.
contra
3.
January
.
1668.
A
Wife
provided
to
an
Annualrent
in
Victual
out
of
certain
Lands
by
her
Contract
of
Marriage
,
did
renounce
the
same
;
and
thereafter
was
Infeft
in
an
Annualrent
out
of
other
Lands
:
And
upon
the
said
last
Infeftment
a
Process
being
intented
for
poinding
of
the
Ground
:
It
was
Alledged
,
that
the
Seasin
was
null
being
alledged
to
be
given
by
a
Husband
propriis
manibus
,
and
the
Assertion
of
a
Notar
without
any
precept
or
warrand
in
Writ
:
It
was
Answered
,
That
the
Marriage
with
the
Relicts
Renounciation
of
her
former
Right
,
and
her
Contract
of
Marriage
,
being
all
produced
,
are
sufficient
Adminicles
to
sustain
the
same
.
The
Lords
enclined
to
favour
the
Relict
,
yet
they
found
it
of
a
dangerous
consequence
,
that
a
real
Right
should
depend
upon
the
Assertion
of
Notars
and
witnesses
:
And
the
Question
not
being
whether
the
Husband
might
or
ought
to
have
given
his
Wife
the
said
Right
,
in
recompence
of
of
her
former
;
But
whether
de
facto
he
did
the
same
,
Seing
the
foresaid
Writes
having
no
relation
to
the
Seasin
,
either
as
given
or
to
be
given
,
could
not
be
Adminicles
to
warrand
or
sustain
the
same
:
And
therefore
before
Answer
,
it
was
thought
fit
to
enquire
,
if
there
had
been
any
Decision
in
the
like
case
;
as
was
informed
.
D.
126.
Sir
John
Home
contra
The
Feuars
of
Coldinghame
.
7.
January
.
1668.
IN
a
Process
at
the
instance
of
Sir
John
Home
of
Rentoun
Justice
Clerk
contra
The
Feuars
of
Coldingham
:
The
Defenders
offered
to
improve
the
Executions
:
It
was
Answered
,
They
could
not
be
heard
,
unless
they
would
propone
the
said
Alledgance
peremptorie
;
but
that
the
same
should
be
reserved
by
way
of
Action
.
The
Lords
for
avoiding
the
multiplying
of
Processes
,
obliged
them
to
propone
the
exception
of
Improbation
peremptorie
:
But
the
same
being
prior
natura
,
and
competent
to
be
proponed
before
any
other
in
meritis
causae
;
And
yet
being
now
proponed
peremptorie
in
form
of
Process
,
being
the
last
of
Exceptions
:
The
Lords
admitted
the
Defenders
to
propone
their
other
Exceptions
,
and
reserved
that
to
the
last
place
.
D.
127.
Eodem
die
.
THE
Lords
upon
debate
amongst
themselves
,
Thought
that
the
Abbay
being
His
Majesties
House
,
should
not
Exempt
or
protect
any
person
against
His
Majesties
Laws
,
and
the
Execution
of
Letters
of
Caption
,
and
therefore
Recommended
to
the
Keeper
of
the
Abbay
,
to
put
him
out
and
not
to
shelter
him
there
.
D.
128.
Forbes
contra
Innes
.
8.
January
1668.
IN
the
Case
,
Forbes
contra
Innes
and
Dalgarno
;
The
Lords
Found
,
That
a
Wife
having
no
Right
for
the
time
to
Lands
Disponed
by
her
Husband
;
and
having
at
the
desire
of
the
Buyer
consented
and
sold
her
Right
;
if
she
thereafter
acquire
from
another
person
a
Right
to
the
saids
Lands
,
is
not
by
her
consent
concluded
,
but
may
pursue
and
evict
the
Lands
upon
her
Right
;
Her
consent
operating
only
,
that
upon
any
Right
from
her
Husband
,
or
then
in
her
person
,
she
cannot
question
the
Right
whereto
she
hath
consented
;
And
the
Brocara
that
Jus
superveniens
accrescit
,
being
to
be
understood
of
Jus
superveniens
Authori
;
whereas
a
Consenter
is
not
Author
.
Lockheart
alteri
Wedderburn
&
Thoirs
.
D.
129.
Laird
of
Glencorse
contra
his
Brethren
and
Sisters
.
9.
January
1668.
ALexander
Bothwel
of
Glencorse
,
having
Disponed
his
Lands
to
his
Eldest
Son
by
Contract
of
Marriage
betwixt
his
Son
and
his
Wife
,
with
absolute
warrandice
;
And
by
the
Contract
the
Tocher
being
payable
to
the
Father
,
he
did
notwithstanding
deliver
Bonds
of
Provision
to
his
other
Children
,
which
were
of
a
date
before
the
Contract
,
but
not
delivered
diverse
years
after
his
Sons
Marriage
:
The
Eldest
Son
pursued
a
Reduction
of
the
said
Bonds
,
in
so
far
as
they
may
affect
his
Estate
,
or
be
the
ground
of
a
pursuit
against
him
,
as
Successor
Titulo
lucrativo
post
contractum
debitum
:
The
Reasons
of
Reduction
were
,
that
the
Bonds
were
not
delivered
the
time
of
the
Right
granted
to
the
Son
;
and
that
he
could
not
thereafter
do
any
Deed
in
his
prejudice
,
and
consequently
,
could
not
deliver
the
said
Bonds
,
the
delivery
and
not
the
granting
being
that
which
doth
animate
,
and
make
the
same
effectual
:
It
was
Answered
,
That
the
Father
being
Tutor
of
Law
to
his
Children
,
he
having
●he
Bonds
for
their
use
,
is
equivalent
as
if
the
Children
had
them
,
or
that
they
had
been
delivered
to
them
:
And
whatever
may
be
as
to
a
Singular
Successor
,
they
ought
to
be
effectual
against
his
Eldest
Son
,
who
is
universal
successor
.
It
was
Answered
,
That
Contracts
of
Marriage
,
being
not
only
in
favours
of
the
Son
,
but
in
the
behalf
of
the
Wife
and
Children
,
and
with
the
Friends
,
are
most
solemn
and
favourable
Transactions
;
Et
bona
fides
is
in
them
exuberant
;
so
that
upon
no
pretence
,
no
Deed
ought
to
be
done
by
any
of
the
Contracters
in
fraudem
;
And
that
the
Father
,
if
he
had
intended
to
have
burdened
the
said
Lands
,
should
have
burdened
the
Fee
expresly
with
the
same
;
that
Provisions
granted
by
Parents
to
their
Children
before
they
be
delivered
may
be
revocked
;
and
that
the
Father
by
granting
the
Disposition
in
favours
of
his
Son
,
had
revocked
the
Bonds
in
question
,
in
so
far
as
they
may
trouble
him
.
The
Lords
,
in
respect
it
was
proven
,
That
the
Bonds
were
not
delivered
till
after
the
Contract
,
Found
they
could
not
be
effectual
against
the
Son
,
and
Reduced
.
Sinclair
and
Wallace
,
alteri
Wedderburn
&
Lockheart
.
D.
130.
Earl
of
Kinghorn
contra
The
Laird
of
Vdney
.
14
January
.
1668.
THE
Earl
of
Kinghorn
did
Wadset
to
the
deceast
Laird
of
Vdney
the
Barony
of
Balhaves
,
and
the
Sum
due
upon
the
Wadset
being
payed
to
Vdney
,
he
did
by
his
Letter
to
the
said
Earl
promise
a
Renounciation
of
the
said
Wadset
to
be
granted
by
him
:
The
Earl
of
Kinghorn
as
Heir
to
his
Father
having
pursued
the
now
Laird
of
Vdney
as
representing
his
Father
upon
the
passive
Titles
,
and
especially
upon
that
,
as
Successor
Titulo
Lucrativo
;
in
so
far
as
he
was
Infeft
in
the
Lands
condescended
upon
acquired
by
his
Father
to
himself
in
Liferent
,
and
to
the
Defender
in
Fee
;
with
power
to
the
Father
or
his
Assigney
to
redeem
the
same
upon
payment
of
three
Pounds
;
And
to
Set
,
Wadset
and
dispone
without
his
consent
.
It
was
Alledged
,
the
Sons
Right
was
prior
to
the
said
Letter
,
and
that
the
Father
did
not
make
use
of
the
said
power
:
It
was
Replyed
,
That
the
Wadset
was
prior
to
the
Defenders
Right
;
yet
this
Right
being
qualified
(
as
said
is
)
the
Father
might
have
contracted
Debts
,
and
granted
obligements
after
the
said
Right
;
and
the
Defender
would
be
lyable
to
the
same
;
seeing
the
Lands
and
the
Fathers
interest
in
the
same
being
upon
the
matter
a
Fee
and
power
to
redeem
and
dispone
,
might
have
been
comprysed
for
his
Debt
contracted
after
the
said
Right
.
There
being
two
questions
in
the
case
viz.
Whether
the
Defender
be
lyable
as
Successor
Titulo
lucrativo
,
If
it
should
be
found
that
the
Wadset
was
Anterior
?
2ly
.
If
the
obligement
shall
be
found
to
be
after
the
Defenders
Right
,
whether
he
would
be
notwithstanding
Successor
Titulo
lucrativo
,
in
respect
of
the
quality
and
condition
foresaid
of
the
said
Right
.
The
Lords
repelled
the
alledgance
,
and
Found
,
the
Defender
would
be
lyable
as
Sucessor
,
the
pursuer
proving
that
the
Wadset
was
Anterior
:
As
to
the
second
question
,
the
Lords
thought
it
not
necessar
to
decide
,
being
of
very
great
consequence
,
and
deserving
hearing
In
praesentia
,
seing
it
was
notour
that
the
Wadset
was
before
the
Defenders
Right
:
Yet
we
inclined
for
the
most
part
to
think
,
that
when
such
Rights
are
granted
or
Purchased
by
Parents
to
their
appearand
Heirs
,
they
should
be
lyable
to
all
the
Debts
due
and
contracted
thereafter
;
at
least
secundum
vires
&
in
quantum
Lucrantur
:
And
beside
the
abovementioned
reasons
,
these
may
be
urged
1.
the
Father
having
by
such
a
reservation
,
not
only
a
reversion
but
in
effect
a
Right
of
propertie
,
In
so
far
as
he
has
power
to
Dispone
and
wadset
as
if
he
were
Fiar
;
if
he
should
discharge
the
said
Reservation
his
Discharge
would
inferr
against
his
Son
the
passive
title
of
Successor
titulo
lucrativo
;
having
gotten
thereby
an
absolute
and
irredeemable
Right
which
he
had
not
before
;
And
therfore
he
not
useing
the
power
competent
to
him
by
the
said
Reservation
,
being
equivalent
as
if
he
had
discharged
the
same
,
ought
to
operate
the
same
effect
.
2.
Such
a
Right
is
in
effect
Praeceptio
Haereditatis
cum
of
effectu
only
the
time
of
the
Fathers
decease
,
seeing
before
that
time
it
is
in
his
power
to
Evacuat
the
same
;
and
therefore
the
time
of
the
Fathers
decease
is
to
be
considercd
so
as
the
Son
cannot
be
said
to
have
Right
or
to
Succeed
effectualy
before
that
time
,
and
so
ought
likewise
to
be
lyable
to
the
Debts
contracted
at
any
time
before
his
Fathers
decease
.
D.
131.
Balmedie
contra
the
Baillies
of
Abernethie
.
15.
Jan.
1668.
A
Decreet
at
the
Procurator
Fiscal's
Instance
of
the
Regality
of
Abernethie
before
the
Baillie
of
the
Regality
,
against
the
Weavers
in
the
Town
of
Abernethie
,
for
contraveening
the
Act
of
Parliament
1661
Anent
the
breadth
and
bleetching
of
Linnen
Cloath
;
was
suspended
upon
that
reason
,
that
the
Bailies
within
the
Town
of
Abernethie
,
were
only
Judges
competent
to
the
Inhabitants
within
the
Burgh
.
The
Lords
Found
,
that
the
Town
being
only
a
Burgh
of
Regality
had
jurisdiction
within
the
same
:
And
the
Baillies
jurisdiction
is
Cumulative
and
not
Privative
;
unless
they
had
it
expresly
by
their
Infeftment
Privative
,
and
that
in
such
cases
Locus
est
Praeventioni
.
D.
132.
Parkman
contra
Allan
.
Eod.
die
IN
the
late
War
betwixt
his
Majestie
and
Holland
and
Denmark
,
a
Swedish
Ship
being
taken
by
a
Scots
Caper
and
adjudged
Pryze
:
A
Reduction
of
the
Admirals
Decreet
was
pursued
,
upon
diverse
reasons
;
and
in
special
this
,
That
by
the
Treatie
betwixt
his
Majestie
and
the
Crown
of
Sweden
,
the
Subjects
of
Sweden
may
traffique
with
their
Alleys
,
though
Enemies
to
his
Majestie
with
freedom
;
and
carry
in
their
Ships
Counterband
Goods
,
Except
such
as
are
contained
in
an
Article
of
the
said
Treaty
,
being
for
the
most
part
Armes
,
and
Instrument
a
Bellica
;
and
that
the
Goods
in
question
which
they
had
carried
in
their
Ships
to
Holland
,
viz.
Tarr
and
stock
fish
were
not
of
that
nature
.
2.
That
when
the
said
Ship
was
taken
,
there
was
none
of
the
saids
Goods
aboard
;
and
that
it
could
not
be
declared
Pryze
upon
pretence
That
immediatly
before
they
had
carried
the
said
Goods
to
Holland
;
seing
it
is
not
unlawful
not
a
breach
of
Treatie
betwixt
his
Majestie
and
Sweden
,
that
the
Subjects
of
Sweden
should
continue
the
same
intercourse
and
freedom
of
Trade
they
had
formerly
with
their
friends
,
though
now
the
Kings
Enemies
:
and
if
they
carrie
counterband
Goods
,
the
only
hazard
is
that
if
they
be
deprehended
carrying
the
same
,
They
may
be
confiscat
;
conform
to
the
Treatie
with
Sweden
,
bearing
si
Deprehendantur
;
which
is
Consonant
to
the
custom
of
all
Nations
,
and
of
the
Admirality
of
England
.
It
was
Alledged
,
that
the
Ship
in
Question
should
not
have
the
benefit
of
the
Treatie
,
having
Served
the
Danes
the
Kings
Enemies
,
and
being
fraughted
and
loaded
with
Tarr
from
Noraway
upon
the
account
of
Danish
Merchants
,
and
with
stock
Fish
which
they
had
carried
to
Amsterdam
:
That
it
was
expresly
provided
by
the
Treatie
with
Sweden
,
that
they
should
not
carry
bona
hostium
;
and
that
tho
the
Danes
were
not
the
Kings
Enemies
,
yet
Tarr
and
Stock-fish
are
Counterband
,
Tarr
being
a
Material
so
useful
and
necessary
for
a
Naval
Warr
;
and
that
by
the
Treatie
,
Commeatus
is
counterband
and
Stock-fish
falleth
under
the
notion
of
Commeatus
:
and
that
by
the
Commission
given
by
the
Admiral
to
the
Capers
,
they
are
empowered
expresly
to
seize
on
Ships
,
not
only
while
they
have
counterband
Goods
caryeing
to
his
Majesties
Enemies
,
but
upon
the
return
having
sold
and
disponed
upon
the
same
.
It
was
Replyed
,
1.
That
by
the
Law
of
Nations
(
which
is
clear
from
Grotius
de
Jure
Belli
)
Goods
that
are
usus
promiscui
both
in
Warr
and
Peace
are
not
vetita
and
counterband
;
and
two
Nations
being
engaged
in
Warr
with
others
that
are
at
friendship
with
both
are
allowed
libertie
of
Trade
with
either
as
to
such
Goods
:
And
that
Tarr
is
of
that
same
nature
,
and
Commeatus
,
except
in
the
case
of
portus
clausus
,
or
Civitas
obsessa
,
and
from
which
deditio
may
be
expected
if
not
supplied
.
2.
His
Majesties
Declaration
of
Warr
with
Holland
,
bears
,
that
Ships
carrying
counterband
to
Holland
,
if
they
be
mett
with
carrying
the
same
,
may
be
seized
;
and
that
his
Majesties
Declaration
,
Emitted
of
purpose
in
relation
to
other
Nations
,
should
be
considered
as
lex
Belli
,
and
not
a
privat
and
unwarantable
style
of
a
commission
given
periculo
petentis
.
In
this
,
many
Points
being
debated
,
It
was
Found
by
the
Lords
,
that
Tarr
is
Counterband
.
2.
As
to
that
Point
,
whether
a
Ship
having
carried
counterband
Goods
to
Enemies
,
may
be
seized
upon
in
her
return
home-ward
,
having
sold
and
vented
the
same
to
the
Enemies
and
not
deprehended
carrying
the
same
;
They
thought
fit
to
know
his
Majesties
pleasure
,
and
the
custom
of
England
;
and
a
Letter
was
writen
to
my
Lord
Secretary
to
that
purpose
.
3.
The
Ship
in
question
,
having
carried
counterband
Goods
to
Holland
,
and
having
thereafter
made
a
Voyage
to
France
;
and
there
having
taking
a
new
Loading
of
Salt
upon
the
account
of
the
Owners
;
and
being
taken
upon
her
comeing
from
France
,
If
it
should
be
found
that
she
might
have
been
seized
upon
pretence
that
they
had
carried
the
said
Goods
to
Holland
;
It
was
Debated
whether
the
Return
should
be
understood
of
the
immediat
Voyage
from
Holland
to
France
;
or
until
they
should
return
to
Sweden
?
And
as
to
this
part
,
the
Lords
thought
good
to
take
advice
of
Merchants
:
In
praesentia
,
Lockhart
&
Wedderburn
,
alt.
Wallace
.
vide
,
feb.
4.
1668.
D.
133.
Mckitrick
contra
_____
Eod.
die
.
THE
Prescriptions
of
Reversions
and
Expiring
of
Legals
,
and
the
taking
advantage
of
the
same
are
so
odious
;
That
the
Lords
inclined
to
find
,
that
necessary
Depursments
upon
reparation
of
Houses
should
not
be
allowed
to
a
Compryser
;
in
a
Declarator
to
hear
and
see
it
found
,
that
he
was
satisfied
by
intrommission
;
reserving
action
to
him
for
the
same
:
But
before
answer
,
they
ordained
the
Reporter
to
consider
the
Depursments
;
and
to
Report
whether
they
were
absolutely
necessary
.
This
is
hard
in
the
point
of
Law
;
intromission
being
to
be
understood
civiliter
&
cum
effectu
of
that
which
is
free
,
all
charges
deduced
.
Hay
Clerk
.
D.
134.
Trotter
contra
Trotter
Eod.
die
.
THE
Lords
Found
,
that
a
Wadsetter
having
comprised
for
his
principal
Sum
;
may
,
in
competition
with
another
Compryser
,
pass
from
his
Comprysing
,
and
return
to
his
former
Right
of
Wadset
.
Gibson
Clerk
.
D.
135.
Anderson
dean
of
Guild
of
St.
Andrews
contra
James
Tarbat
.
16.
January
.
1668.
WIlliam
Tarbat
having
granted
Bond
for
300
pounds
to
his
Son
James
and
other
Children
;
the
said
Bond
was
Reduced
at
the
instance
of
a
Creditor
,
Because
it
was
subscribed
only
by
one
Notar
,
being
a
matter
of
importance
:
Though
it
was
alledged
,
that
it
resolved
in
three
several
Bonds
;
and
it
was
Equivalent
as
if
the
three
Bonds
had
been
granted
for
100
pounds
respective
.
For
the
Lords
considered
,
that
the
Bond
being
one
and
individual
;
the
importance
,
as
to
the
interest
of
the
debitor
,
is
the
same
whether
it
be
granted
to
one
or
to
diverse
Persons
.
D.
136.
Binnie
contra
Binnie
.
17.
January
1668.
MArgaret
Binnie
being
induced
to
grant
a
Bond
obliging
her
to
resign
some
Tenements
of
Land
in
favours
of
herself
and
the
Heirs
of
her
Body
;
which
Failyieing
,
in
favours
of
her
Brother
Alexander
Binnie
;
and
to
do
no
deed
in
prejudice
of
his
Succession
;
She
did
thereafter
Marry
and
Dispone
to
her
Husband
the
said
Tenements
.
In
a
pursuit
at
the
instance
of
her
Brother
against
her
and
her
Husband
for
his
Interest
,
upon
the
said
Bond
and
for
implement
thereof
,
The
Lords
Found
,
that
she
with
consent
of
her
Husband
ought
to
Resign
.
Some
of
the
Lords
thought
,
that
the
import
of
such
obligments
is
only
,
that
the
Granter
should
not
alter
such
Tailʒies
in
favours
of
other
Heirs
:
And
that
they
are
not
restrained
to
sell
or
Dispone
for
onerous
Causes
if
they
should
have
occasion
;
otherwise
they
should
cease
to
be
Fiars
:
The
very
Essence
of
Fee
and
Propertie
consisting
in
a
liberty
to
Dispone
.
It
may
be
questioned
,
how
far
the
Husband
may
be
lyable
to
his
Wifes
obligments
before
the
Marriage
?
For
there
being
a
Communion
betwixt
them
only
as
to
mobilia
,
it
may
appear
that
he
should
only
be
lyable
to
Movable
and
Personal
Debts
:
Seing
penes
quem
Emolumentum
,
penes
eundem
Onus
;
but
this
point
was
not
Debated
.
D.
137.
Straquhan
contra
Morison
.
Eod.
die
.
A
pursuit
for
Spuilyie
being
restricted
to
wrongous
Intromission
:
It
was
Alledged
,
that
the
Defenders
are
only
lyable
for
their
intromission
respective
;
in
so
far
as
it
should
be
proven
that
each
of
them
had
intromitted
at
least
pro
virili
and
conjunctly
:
It
was
Replyed
,
that
the
Defenders
being
conveened
Ex
delicto
,
they
are
lyable
in
solidum
as
Correi
;
being
all
accessorie
to
the
wrong
:
And
the
pursuit
,
as
it
is
Restricted
,
is
not
for
Intromission
simply
,
but
wrongous
Intromission
:
And
though
the
Pursuer
,
by
restricting
the
Pursuit
,
as
said
is
,
has
precluded
himself
as
to
violent
profits
and
juramentum
in
litem
,
and
other
consequences
of
spuilyie
;
he
has
not
prejudged
himself
as
to
that
benefit
,
that
all
who
are
accessory
to
the
wrong
should
be
lyable
in
solidum
,
which
the
Law
has
introduced
upon
just
ground
;
seing
it
is
impossible
,
in
such
cases
,
where
diverse
Persons
do
intromett
,
to
distinguish
and
prove
their
intromissions
.
The
Lords
Found
,
the
Defenders
lyable
Conjunctly
.
Wedderburn
,
Sinclair
&
Straquhan
.
Alteri
Lockhart
&
Thoirs
.
D.
138.
Pollock
contra
Pollock
.
Eod.
die
.
THe
Lords
having
considered
the
Renunciation
mentioned
above
.
20
of
Novem.
1667
;
Found
,
that
it
being
in
favours
of
the
second
Marriage
and
in
Effect
an
Assignation
,
could
not
accresce
to
the
Granter
.
D.
139.
Birnie
contra
_____
Eod.
die
.
MR
Andrew
Birnie
having
granted
a
Bond
blank
in
the
Creditors
name
to
his
Good-brother
Short
;
the
Creditors
name
being
thereafter
filled
up
,
Mr
Andrew
Birnie
suspended
upon
double
poynding
against
him
and
another
Creditor
of
Shorts
,
who
had
thereafter
arrested
.
The
Lords
preferred
the
Person
whose
name
was
filled
up
;
In
respect
he
had
shown
Mr.
Andrew
the
Bond
before
the
arrestment
,
and
desired
him
to
satisfie
the
same
,
though
he
had
not
made
intimation
by
way
of
Instrument
.
This
Decision
seemeth
to
justle
with
that
of
the
9.
November
1665.
Jamison
contra
Tealzifer
.
D.
140.
_____
and
the
Laird
of
Innes
her
Husband
,
_____
contra
_____
21.
Jan.
1668
THE
Laird
of
Rosyth
having
provided
his
Daughter
of
the
first
Marriage
with
the
Laird
of
Innes
,
to
10000.
Pounds
,
at
her
age
of
Twentie
years
;
and
there
being
no
obligement
for
Annualrent
The
Lords
,
in
a
Process
at
her
instance
for
her
aliment
,
modified
600.
Merks
yearly
:
Some
were
of
opinion
that
the
said
sum
being
payable
at
the
foresaid
Term
,
the
Annualrent
of
the
same
should
not
have
been
modified
for
the
time
thereafter
,
and
that
she
should
be
in
no
worse
case
than
if
it
had
been
payed
.
D.
141.
Shaw
contra
_____
Eod.
die
.
THE
Lords
Found
,
That
a
Wife
being
provided
in
Lecto
by
her
Husband
,
her
provision
should
be
restricted
and
Sustained
as
to
a
Terce
;
she
being
no
otherwise
provided
before
.
D.
142.
Home
contra
Tailzifer
Eod.
die
.
AN
Exception
of
Improbation
being
proponed
against
a
Writ
;
and
thereafter
,
Tailzifer
of
Harycleugh
being
desired
to
abide
at
it
,
he
declared
,
that
he
had
gotten
it
as
a
true
Evident
,
and
condescended
upon
the
way
he
had
gotten
it
;
and
it
being
alledged
,
that
he
ought
to
be
positive
,
Whether
he
would
abide
at
it
,
or
not
?
The
Lords
declared
,
That
after
probation
they
would
consider
how
far
his
using
and
abiding
at
the
said
Write
should
import
against
him
;
and
if
he
be
in
bona
fide
to
use
the
same
.
D.
143.
Dowglas
contra
Lady
Wamphray
.
22.
Janu.
1668.
THE
Lady
Wamphray
being
provided
in
an
Annualrent
out
of
Lands
without
respect
to
a
Sors
or
Stock
,
and
being
infeft
:
It
was
Found
,
that
she
ought
to
be
lyable
to
Taxations
and
publick
burdens
,
being
onera
patrimonialia
,
though
the
said
Annualrent
was
payable
to
her
alswel
infeft
as
not
infeft
.
D.
144.
Justice
contra
Stirling
23.
Janu.
1668.
IN
the
Case
,
Justice
and
his
Tutors
,
contra
Stirling
and
Cockburne
her
Husband
:
a
Bond
being
granted
to
a
Husband
and
his
Wife
the
longest
liver
,
and
the
Heirs
betwixt
them
;
which
Failyieing
to
the
Heirs
of
the
longest
liver
:
And
the
wife
having
survived
,
there
being
only
one
Child
of
the
Marriage
;
The
Lords
Found
,
that
the
Fee
of
the
said
Bond
belonged
to
the
Husband
as
dignior
persona
:
And
that
the
Child
had
Right
thereto
as
Heir
to
him
;
and
that
the
Heirs
of
the
Wife
could
have
no
Right
after
the
Childs
decease
as
Heirs
of
provision
to
the
Child
:
And
that
the
Wife
had
not
the
Right
of
Fee
,
which
she
pretended
to
be
in
suspence
,
until
it
should
be
determined
by
the
death
of
either
who
should
be
the
last
liver
.
D.
145.
The
Town
of
Glasglow
contra
_____
Eod.
die
.
THE
Town
of
Glasgow
having
a
Right
from
the
Bishop
to
the
parsonage
Teynds
;
pursued
a
Spuilyie
:
It
was
Alledged
,
for
some
of
the
Defenders
,
that
they
possessed
by
Subtacks
from
Blantyre
Tacksman
:
It
was
Answered
,
that
Certification
was
granted
against
the
principal
Tack
,
and
that
the
Subtacks
were
void
in
consequence
:
It
was
Replyed
,
that
the
Defenders
were
not
called
to
the
Improbation
;
and
that
they
being
in
possession
,
the
Collusion
or
negligence
of
their
Author
cannot
prejudge
them
.
The
Lords
,
upon
a
debate
amongst
themselves
,
Thought
,
that
Sub-vassalls
being
in
possession
ought
to
be
called
in
an
Improbation
against
the
Vassal
their
Author
;
because
they
could
not
be
miskenned
being
Heretable
possessors
:
But
as
to
the
Tennants
bruiking
Lands
by
tacks
,
or
Heretors
bruiking
by
Subtacks
their
own
Teynds
;
They
thought
,
that
it
could
not
so
well
be
known
that
they
had
Right
;
and
so
were
not
parties
necessary
to
be
called
:
And
therefore
,
before
Answer
,
they
ordained
to
condescend
upon
the
manner
and
quality
of
their
possession
,
and
whether
it
was
such
as
the
Bishop
could
not
but
know
.
Sinclair
&
Lockhart
.
alter
Cuninghame
.
D.
146.
Simpson
contra
Adamson
.
24.
January
.
1668.
UPon
Report
it
was
Debated
among
the
Lords
,
whether
a
Decreet
of
poinding
the
Ground
should
interrupt
prescription
of
an
Annualrent
right
,
being
only
against
the
Tennants
,
the
Heretor
not
called
:
Some
were
of
the
opinion
,
that
the
Decreet
being
null
,
nullum
sortitur
effectum
:
Others
thought
,
that
Prescriptions
being
odious
,
talis
qualis
and
any
Act
of
Interruption
was
sufficient
:
And
as
Prescription
may
be
interrupted
by
any
Deed
of
Molestation
of
Tennants
,
being
a
natural
Interruption
,
so
it
may
be
interrupted
civilly
by
a
pursuit
against
the
Tennents
.
The
Lords
did
not
decide
the
Question
,
but
thought
fit
to
advise
further
.
D.
147.
Town
of
Dundee
contra
E.
of
Finlater
.
eod.
die
.
THE
Town
of
Dundee
being
pursued
in
subsidium
for
payment
of
a
Debt
due
by
a
Rebel
,
whom
they
had
suffered
to
escape
out
of
Prison
;
after
Decreet
satisfied
the
Creditor
,
and
took
Assignation
to
the
Debt
and
Bond
;
whereupon
they
pursued
the
Earl
of
Finlater
one
of
the
Cautioners
:
It
was
Alledged
,
That
the
Town
ex
delicto
had
come
in
the
place
of
the
principal
Debitor
;
and
payment
made
by
them
did
liberate
the
Cautioners
,
as
if
payment
had
been
made
by
the
Principal
:
It
was
Replyed
,
That
the
Town
was
only
Lyable
to
the
Creditor
,
who
might
pass
from
his
Decreet
against
the
Town
;
and
as
he
might
have
Assigned
the
Debt
to
any
other
person
,
The
Town
as
quilibet
might
have
a
Right
from
him
.
The
Lords
Found
,
That
the
Town
is
not
in
the
case
of
Cautioners
,
or
Expromissores
ex
pacto
,
but
of
Correi
,
being
lyable
in
Law
ex
delicto
for
,
and
in
place
of
the
Principal
.
Vide
9.
July
1667.
D.
148.
_____
contra
_____
25.
January
1668.
THE
Lords
upon
debate
amongst
themselves
,
in
the
case
concerning
Viccarage
;
Thought
that
Yards
,
for
which
Viccarage
was
in
use
to
be
payed
,
being
turned
into
Infield
Land
and
Laboured
,
The
Vicar
has
no
Right
to
the
Teinds
of
Corns
growing
thereupon
,
but
the
same
belongs
to
the
Parson
:
But
they
did
not
decide
this
point
,
being
only
debated
incidenter
.
D.
149.
Keith
contra
Grahame
.
eod.
die
.
IN
the
case
of
Keith
of
Craigie
,
contra
Grahame
of
Creichie
,
The
Lords
,
upon
probation
in
mutual
Declarators
anent
a
Moss
,
Found
,
That
the
Barony
of
Craigie
having
pertained
to
Straiton
of
Lauristoun
;
and
thereafter
a
part
of
the
same
being
Disponed
to
Keith
and
his
predecessors
;
and
another
part
to
the
Authors
and
Predecessors
of
Grahame
of
Creichie
,
extending
the
saids
Two
Parts
to
the
whole
Barony
;
That
both
the
saids
Parties
had
Interest
and
Right
to
the
Moss
in
Question
,
as
to
Community
and
Pasture
,
and
casting
Peats
and
Turff
:
But
as
to
the
property
of
the
Moss
,
they
Thought
that
it
should
belong
to
that
parcel
which
was
last
disponed
by
the
Common
Author
;
seing
he
disponed
the
other
part
only
cum
moris
&
maresus
in
the
Tenendas
and
Executive
Clause
;
no
mention
of
the
Moss
being
in
the
dispositive
part
:
So
that
the
property
of
the
Moss
remained
with
himself
annexed
to
the
other
parcel
.
D.
150.
Lady
Traquair
contra
E.
of
Winton
.
1
Feb.
1668.
THE
Earl
of
Winton
,
having
Right
by
Assignation
to
a
Bond
granted
by
the
Lord
Sempil
,
did
grant
a
Translation
in
favours
of
the
Lady
Traquair
,
and
the
Lady
Jean
another
of
his
Daughters
,
bearing
warrandice
from
his
own
Deed
;
and
thereafter
uplifted
the
Debt
.
The
said
Ladies
pursued
the
Earl
of
Winton
,
as
representing
his
Grandfather
for
payment
of
the
Sum
;
because
the
Earl
his
Grandfather
had
uplifted
it
:
The
Defender
alledged
,
that
the
Translation
being
a
Donation
of
the
Fathers
in
favours
of
his
Children
,
whereof
he
was
Master
,
was
revocable
;
and
that
he
had
revocked
the
same
,
in
so
far
as
he
had
uplifted
the
said
Sum
:
It
was
Answered
,
That
the
said
Translation
was
out
of
his
hands
,
having
delivered
the
same
to
the
Pursuers
Mother
for
their
use
,
and
that
he
was
obliged
to
warrand
the
same
.
The
Lords
thought
,
that
the
Translation
being
in
the
Lady
Winton's
hands
being
in
Law
Eadem
persona
with
the
Earl
,
it
was
equivalent
as
if
it
had
been
in
his
own
hands
;
and
that
he
might
destroy
or
revock
the
same
:
But
the
Parties
being
of
quality
and
of
near
Relation
,
they
did
not
decide
this
case
;
but
recommended
to
some
of
their
number
to
endeavour
an
accommodation
.
D.
151.
_____
contra
Scot
and
Muirhead
her
Husband
.
eod.
die
.
MR.
Hary
Scot's
Daughter
and
her
Husband
Mr.
John
Muirhead
for
his
Interest
,
being
pursued
as
representing
the
said
Mr.
Hary
for
a
Debt
due
by
him
;
The
pursuer
insisted
on
the
Title
of
behaving
as
Heir
by
Intromission
with
his
,
Moveable
Heirship
:
It
was
Alledged
,
That
he
could
not
have
an
Heirship
,
being
neither
Prelate
,
Baron
,
nor
Burgess
:
It
was
Answered
,
That
he
had
acquired
the
Land
condescended
upon
to
himself
in
Liferent
,
and
to
his
Daughter
in
Fee
;
which
was
equivalent
as
if
she
had
succeeded
to
him
in
the
said
Lands
.
The
Lords
Assoilied
from
that
Title
;
In
respect
he
had
no
Right
in
his
Person
,
in
which
she
could
have
succeeded
:
Some
were
of
the
opinion
,
That
if
the
Right
had
born
the
ordinary
Clauses
,
and
a
Power
to
dispone
and
Wadset
,
notwitstanding
the
Fee
in
the
person
of
the
Daughter
,
that
in
Law
he
ought
to
be
considered
and
looked
upon
as
a
Baron
;
being
in
effect
,
and
upon
the
matter
a
Fiar
.
Hay
.
Clerk
.
D.
152.
Paplay
contra
The
Magistrates
of
Edinburgh
.
eod.
die
.
JOhn
Paplay
pursued
The
Magistrates
of
Edinburgh
for
payment
of
a
Sum
of
Money
;
Because
his
Debitor
Hendry
Henderson
had
escaped
out
of
their
prison
:
It
was
Alledged
,
After
six
years
silence
such
a
pursuit
could
not
be
sustained
against
the
Town
;
and
that
these
who
were
Magistrates
for
the
time
ought
to
be
pursued
and
discussed
in
the
first
place
.
The
Lords
sustained
the
Process
,
and
Found
,
that
the
Incorporation
being
persona
quae
non
moritur
;
The
present
Magistrates
may
be
pursued
for
payment
of
the
Debt
out
of
the
Patrimony
of
the
Town
;
without
citeing
these
Magistrates
for
the
time
when
the
Debitor
escaped
;
Reserving
Action
against
the
Delinquent
,
who
suffered
the
Rebel
to
escape
.
D.
153.
Parkman
contra
Allan
.
4.
Feb.
1668.
THE
Lords
Found
,
that
in
the
case
mentioned
15.
January
.
1668.
until
the
Ship
should
return
to
Sweden
,
it
should
be
esteemed
a
Voyage
,
quoad
the
Effect
and
point
in
question
.
D.
154.
Ker
contra
Ker.
5.
February
.
1668.
RObert
Ker
of
Graden
having
Infeft
his
second
Son
Robert
Ker
in
an
Annualrent
out
of
his
Lands
of
Graden
and
others
;
upon
a
Contract
betwixt
them
,
whereby
Graden
for
the
Sum
of
6000
Merks
addebted
by
him
to
his
Son
.
viz.
3000
Merks
of
borrowed
Money
,
and
3000
Merks
for
his
Portion
(
accumulatory
,
and
extending
together
as
said
is
)
was
obliged
to
Infeft
the
said
Robert
in
360
Merks
,
as
the
Annualrent
of
the
said
Sum
of
6000
Merks
;
beginning
the
first
Terms
payment
of
the
half
of
the
said
Annualrent
being
for
borrowed
Money
,
at
the
first
Term
after
the
Contract
:
And
of
the
other
half
being
for
his
Patrimony
,
after
his
Fathers
decease
:
The
said
Robert
the
Son
pursued
a
poinding
of
the
Ground
for
bygones
,
and
in
Time
coming
,
the
Terms
of
payment
being
past
:
Henry
Ker
the
Pursuers
Eldest
Brother
,
compeared
and
alledged
,
his
Ground
could
not
be
poinded
,
and
that
he
was
Infeft
therein
by
a
publick
Infeftment
;
at
least
that
his
Infeftment
was
publick
by
possession
;
and
that
the
Pursuers
Infeftment
is
base
.
It
was
Replyed
.
1.
That
the
said
Hary
his
Infeftment
of
the
Lands
was
posterior
to
the
Pursuers
Infeftment
,
and
granted
not
only
by
a
Father
to
a
Son
a
conjunct
person
;
who
by
the
foresaid
Right
praecepit
haereditatem
;
and
though
he
cannot
be
pursued
upon
the
passive
Title
of
Titulus
Lucrativus
dureing
his
Fathers
Lifetime
;
yet
his
Mouth
is
stoped
,
so
that
he
cannot
question
any
Deed
of
his
Father
preceeding
his
Right
;
and
that
he
is
in
the
same
case
,
as
if
his
Infeftment
had
been
given
with
the
burden
of
prior
Rights
.
It
was
further
urged
by
the
Pursuer
,
That
the
Defender
condescending
upon
his
Entry
and
Initium
possessionis
,
he
offered
to
prove
that
his
Right
was
cled
with
possession
before
that
time
.
It
was
Duplyed
,
That
his
Infeftment
could
not
be
cled
with
possession
,
but
as
to
the
Annualrent
of
the
3000
Merks
of
borrowed
Money
;
so
that
it
is
base
as
to
the
other
3000
Merks
of
his
portion
.
It
was
Triplyed
,
that
the
Infeftment
was
of
an
entire
Annualrent
of
360
Merks
,
as
appears
by
the
Contract
and
Seasin
:
And
that
the
Right
being
of
an
Annualrent
,
though
payment
of
the
half
of
the
same
be
Suspended
,
the
Right
being
a
joint
and
indivisible
Right
could
not
be
ex
parte
private
,
and
ex
parte
publick
.
The
Lords
Found
,
That
the
Infeftment
of
Annualrent
,
if
it
should
be
proven
to
be
cloathed
with
possession
as
to
the
half
,
is
publick
in
solidum
;
and
admitted
the
Reply
of
possession
:
But
as
to
the
second
Reply
,
viz.
That
the
Defender
was
haeres
per
praeceptionem
,
and
could
not
question
any
prior
Right
granted
by
his
Father
.
The
Lords
Found
it
of
difficulty
and
consequence
;
and
reserved
the
Debate
and
Decision
,
until
the
end
of
the
Process
.
Hamilton
Clerk
.
Mr.
Thomas
Lermont
.
alter
Sinclair
.
D.
155.
Mr.
George
Johnston
contra
Sir
Charles
Erskine
.
February
6.
1668.
THE
Lands
of
Knockhil
being
a
part
of
the
Lands
of
Hodam
,
did
belong
to
Richard
Irvine
,
and
were
comprysed
from
Robert
Irvin
Great
Grand-child
to
the
said
Richard
as
charged
to
enter
Heir
to
the
said
Richard
,
at
the
instance
of
Mr.
John
Alexander
Minister
at
Hodam
:
But
no
Infeftment
nor
Diligence
against
the
Superior
having
followed
upon
the
said
Comprysing
,
dureing
the
said
Robert
his
Life
;
The
Lord
Lyon
Sir
Charles
Erskine
comprysed
from
Mr.
James
Alexander
Son
to
the
said
Mr.
John
,
the
Right
of
his
Comprysing
,
and
obtained
Infeftment
upon
the
said
Comprysing
in
August
1666.
The
said
Robert's
Two
Sisters
and
his
Sisters
Children
,
obtained
themselves
Infeft
as
Heirs
to
the
said
Richard
their
Grandsire
and
Fore-grandsire
in
June
1666.
And
upon
a
Right
from
them
,
and
their
Resignation
,
Mr.
John
Johnston
being
Infeft
in
October
1666.
pursued
for
Maills
and
Dueties
:
The
Lord
Lyon
compeared
and
alledged
,
that
he
and
the
Tennents
ought
to
be
Assoilyied
in
this
possessory
Judgement
,
Because
he
and
his
Authors
had
been
in
possession
by
vertue
of
the
Comprysing
at
the
instance
of
Mr.
John
Alexander
,
by
the
space
of
seven
years
,
whereupon
Infeftment
has
followed
.
It
was
Answered
,
That
the
Alledgance
is
not
Relevant
,
unless
he
had
said
that
he
was
in
possession
seven
years
by
vertue
of
a
real
Right
,
which
cannot
be
said
,
the
Infeftment
being
late
and
of
the
date
foresaid
.
It
was
further
Alledged
by
the
Lord
Lyon
,
that
he
ought
to
be
preferred
,
because
he
was
Infeft
upon
the
said
Comprysing
at
Mr.
John
Alexander's
instance
against
the
said
Robert
,
as
charged
to
enter
Heir
to
the
said
Richard
;
and
his
Infeftment
was
anterior
to
the
said
Mr.
George's
Infeftment
upon
the
Resignation
foresaid
of
the
said
Robert's
Sister
and
Nephews
retoured
and
Infeft
as
Heirs
to
the
said
Richard
.
It
was
Replyed
,
That
no
Infeftment
or
Diligence
having
followed
upon
the
said
Comprysing
against
Robert
in
his
Lifetime
;
his
Sisters
and
Nephews
might
have
served
themselves
Heirs
to
the
said
Richard
who
was
last
Infeft
;
and
de
facto
was
Infeft
as
Heir
to
the
said
Richard
,
before
any
Infeftment
upon
Alexander's
Comprysing
;
so
that
his
Authors
Infeftment
being
prior
to
the
Lord
Lyon's
Infeftment
,
the
Pursuer
ought
to
be
preferred
:
and
as
Robert
if
he
had
been
served
special
Heir
to
his
Grandsire
,
if
he
had
not
been
infeft
,
the
next
Heir
might
have
been
Infeft
as
Heir
to
Richard
;
and
an
Infeftment
upon
a
Right
from
them
would
have
been
preferable
to
a
Comprysing
against
Robert
;
so
in
this
case
Mr.
George
ought
to
be
preferred
;
the
special
charge
against
Robert
being
only
equivalent
to
a
special
Service
;
and
no
Infeftment
having
followed
in
the
person
of
the
said
Robert
or
the
Compryser
.
It
was
Duplyed
,
That
by
the
Act
of
Parliament
Ja.
5.
Ch.
106.
Par.
7.
It
is
declared
that
Execution
against
the
Appearand
Heir
being
charged
to
enter
Heir
should
be
equivalent
as
if
he
were
entered
;
which
is
the
Certification
in
the
special
Charge
;
and
upon
a
Comprysing
,
if
Robert
had
been
Infeft
,
Infeftment
being
taken
quocunque
tempore
even
after
his
decease
,
before
any
other
person
had
been
Infeft
upon
a
Comprysing
or
Right
from
a
next
Heir
;
The
Comprysing
against
Robert
would
have
been
preferable
.
The
Lords
Found
,
That
the
benefite
of
a
possessory
Judgement
is
only
competent
by
vertue
of
a
real
Right
;
and
that
a
Compryser
cannot
claim
the
same
,
without
an
Infeftment
or
Charge
against
the
Superior
;
and
repelled
the
first
Alledgance
.
The
Lords
Found
The
second
Alledgance
Relevant
,
and
preferred
the
Comprysing
in
respect
of
the
Infeftment
thereupon
,
before
the
Infeftment
upon
the
Right
from
the
Heirs
of
the
said
Richard
.
D.
156.
Halyburtoun
contra
Scott
17.
Decemb.
1671
A
Provision
granted
by
a
Father
to
a
Daughter
for
love
and
favour
,
being
quarrelled
by
a
Creditor
upon
the
Act
of
Parliament
1621.
It
was
Answered
,
that
the
Father
the
time
of
the
granting
of
the
said
Right
had
an
opulent
Estate
beside
,
out
of
which
the
Creditor
might
have
been
satisfied
:
and
the
Lords
before
Answer
,
having
ordained
that
a
tryal
should
be
taken
of
the
Defuncts
Estate
,
and
Witnesses
being
adduced
to
that
purpose
:
It
was
Found
,
that
the
Defence
was
not
proven
.
It
appears
that
the
Defence
was
not
relevant
;
and
that
a
Creditor
is
not
holden
to
Debate
whether
his
Debitor
had
a
competent
Estate
to
satisfie
his
Debt
aliunde
;
and
that
Debitors
can
grant
noe
Right
without
an
onerous
cause
,
until
the
Debt
be
satisfied
.
Haystoun
Clerk
.
D.
157.
Paton
contra
Stirling
of
Ardoch
.
20.
Dec.
1671.
SIR
Henrie
Stirling
of
Ardoch
did
grant
a
Back-bond
in
savours
of
_____
Paton
his
Sisters
Son
;
whereby
he
obliged
himself
,
that
being
satisfied
of
the
Debts
due
to
him
,
he
should
denude
himself
of
the
Right
of
the
Lands
of
Panholls
which
pertained
to
the
said
Patons
Father
:
Whereupon
a
pursuite
being
intented
against
Ardoch's
Sone
,
as
Heir
and
Executor
to
his
Father
:
It
was
Alledged
,
that
the
Bond
was
granted
in
Lecto
;
and
could
not
prejudge
the
Heir
;
and
that
he
had
a
Reduction
depending
upon
that
reason
:
And
as
Executor
he
could
not
be
lyable
,
the
Bond
being
anent
the
Right
of
Lands
,
and
in
effect
a
reversion
which
is
not
prestable
by
Executors
:
It
was
Answered
,
that
the
said
Bond
tho
on
death-bed
may
and
ought
to
affect
the
Executry
;
seing
in
Lecto
the
Defunct
might
doe
any
deed
to
burden
his
Executry
:
And
his
obligements
at
that
time
are
effectual
as
to
his
Executry
:
And
Loco
facti
imprestabilis
succedit
interesse
,
which
is
prestable
by
Executors
:
And
if
he
had
in
leige
poustie
granted
a
Disposition
of
Lands
,
and
thereafter
having
Infeft
ane
other
in
the
same
;
he
had
become
incapable
to
fulfil
the
obligements
thereof
,
both
his
Heir
and
Executor
would
be
lyable
for
damnage
and
interest
;
and
there
is
the
same
reason
in
this
case
,
the
Defunct
as
to
burdening
and
disposeing
of
his
Executry
,
being
in
the
same
condition
as
if
he
were
in
leige
poustie
.
The
Lords
before
Answer
thought
fit
to
try
,
if
the
Right
was
in
trust
,
and
if
there
had
been
a
former
Back-bond
,
which
the
Pursuers
Step-Mother
had
destroyed
as
was
informed
,
and
certain
other
circumstances
.
Gibson
Clerk
.
D.
158.
Lord
Maxwel
contra
Tennents
of
Duncow
.
16.
Feb.
1672
FOund
that
the
Defence
upon
the
Acts
_____
against
these
,
who
,
during
the
dependence
of
Process
,
invade
or
wound
the
adverse
partie
,
who
by
the
said
Acts
tyne
the
cause
and
forfault
their
interest
in
question
;
being
in
effect
penance
and
founded
upon
delinquency
,
may
be
proven
even
before
the
Lords
prout
de
Jure
,
as
to
Order
and
Ratihabition
:
which
was
alleadged
could
not
be
proven
by
Witnesses
to
import
the
loss
of
Heretage
.
D.
159.
Commissaries
of
Edinburgh
contra
the
Commissaries
of
Breichen
17.
Feb.
1672.
THere
being
a
competition
betwixt
the
Commissars
of
Edinburgh
and
the
Commissars
of
Breichen
,
to
which
of
them
the
confirmation
of
the
Earl
of
Panmures
Testament
should
belong
:
the
said
Earl
having
taken
a
House
and
stayed
a
whole
Session
in
Edinburgh
with
his
Lady
Children
and
Familie
,
in
order
to
the
breeding
of
his
Children
and
other
occasiones
;
and
having
died
there
:
The
Lords
preferred
the
Commissars
of
Breichen
,
being
Commissars
of
the
place
where
the
said
Earl
had
his
principal
dwelling
and
his
interest
and
Estate
.
D.
160.
Lady
Milnetoun
contra
Sir
John
Whytfurd
.
20.
Feb.
1672.
IN
the
Process
at
the
instance
of
the
Lady
Milnetoun
against
Sir
John
Whytfurd
;
the
said
Sir
John
,
after
the
Process
had
depended
long
and
all
endeavours
to
delay
and
prevent
a
Decision
,
having
insisted
upon
a
Reprobator
,
upon
that
head
,
that
the
Ladyes
Wittnesses
were
corrupted
:
It
was
Alledged
and
urged
by
many
arguments
,
that
a
reprobator
upon
the
ground
foresaid
after
sentence
in
foro
contradictorio
,
which
is
the
great
security
of
the
People
,
could
not
be
proven
but
scripto
vel
Juramento
:
And
accordingly
the
Lords
Found
that
it
was
only
probable
that
way
;
and
yet
this
day
the
Lords
having
again
ordained
the
cause
to
be
Debated
,
as
to
the
point
foresaid
anent
the
probation
of
corruption
after
sentence
obtained
;
they
retracted
their
former
Interloquitor
;
and
Found
,
that
Reprobators
upon
the
head
foresaid
are
receiveable
;
and
probable
prout
de
Jure
,
after
Sentence
.
These
arguments
were
urged
both
at
the
Barr
,
and
in
the
Debate
among
the
Lords
,
viz.
That
Sentences
in
foro
are
the
great
Security
of
the
People
;
and
if
these
should
be
convelled
,
upon
pretence
of
such
personal
exceptions
against
Witnesses
,
there
should
not
be
a
period
of
Pleas
and
Process
.
2.
Upon
the
consideration
foresaid
many
exceptiones
,
which
are
admitted
before
sentence
even
after
Litiscontestation
,
are
not
recieved
after
sentence
;
v.
g.
exceptiones
noviter
venientes
ad
notitiam
;
and
ex
instrumentis
noviter
repertis
.
3.
Prescription
being
the
great
security
of
the
People
,
ne
dominia
sint
incerta
,
should
be
weakened
;
if
after
Decreets
in
foro
founded
upon
40.
years
purchase
;
the
same
should
be
convelled
upon
probation
by
Witnesses
;
that
the
Witnesses
upon
whose
Testimonie
the
Decreets
proceeded
were
corrupted
.
4.
There
should
be
progressus
in
infinitum
if
the
Testimonies
of
Witnesses
should
after
sentence
be
reprobated
by
other
Witnesses
:
and
after
sentence
in
the
Reprobator
,
the
Testimonie
of
the
reprobatorie
Witnesses
should
be
reprobated
by
others
;
&
sic
in
infinitum
.
5.
Reprobatores
were
only
in
use
,
when
the
Designation
of
Witnesses
,
before
they
declare
,
from
their
duelling
and
vocation
and
other
circumstances
was
questioned
as
false
;
which
being
obvious
and
easie
to
be
knowen
,
It
is
not
to
be
presumed
that
the
reprobatorie
Witnesses
will
declare
falsely
,
anent
such
points
which
may
be
easily
tryed
:
But
the
Corruption
of
Witnesses
being
ane
occult
and
unwarrantable
practice
,
it
is
not
to
be
presumed
that
witnesses
were
present
and
conscious
:
and
the
reprobatorie
Witnesses
may
be
suborned
and
declare
falsely
impune
.
6.
Our
Law
is
Jealous
of
Probation
by
Witnesses
,
they
being
for
the
most
part
viles
personae
and
yet
habiles
:
and
Writes
cannot
be
taken
away
by
such
probation
;
and
Sentences
in
foro
are
scriptura
publica
&
solennis
.
7.
By
our
practique
dicta
testium
cannot
be
questioned
post
sententiam
,
tho
by
the
comon
Law
and
the
Law
of
other
Nations
they
may
:
and
there
is
less
reason
to
admit
personal
exceptions
contra
testes
to
be
proven
by
Witnesses
:
8.
As
to
the
Incommodum
,
That
a
Door
should
be
opened
to
Corruption
,
if
the
Testimonies
of
Witnesses
after
Sentence
,
should
not
be
questionable
upon
that
head
;
It
is
easily
Answered
:
Seing
Witnesses
may
be
pursued
Criminallie
and
severely
Punished
,
if
they
may
be
discovered
to
have
been
Corruped
or
false
.
Actores
Cuninghame
&
Lermonth
alteri
Mckenzie
&
Harper
.
D.
161.
Mr.
James
Reid
contra
the
Lady
Dundie
.
Feb.
21.
1672.
AN
Infeftment
granted
to
the
Lady
Dundie
by
her
Husband
,
in
recompence
of
a
former
provision
she
had
by
her
Contract
of
Mariage
and
which
she
had
renounced
;
was
questioned
by
a
Creditor
who
also
was
Infeft
:
upon
that
ground
,
that
the
Ladyes
Right
was
base
:
and
tho
Rights
granted
to
Wives
upon
their
Contract
of
Marriage
,
or
after
Marriage
when
they
have
no
provision
,
or
in
recompence
of
former
provisiones
;
are
sustained
albeit
base
;
because
the
Husbands
possession
is
the
Wifes
possession
;
yet
the
Right
in
question
ought
not
to
be
sustained
upon
that
ground
;
In
respect
the
Husband
was
not
in
natural
possession
;
the
Lands
being
lyferented
by
his
Mother
;
and
by
the
Act
of
Parliament
,
the
possession
whereupon
base
Rights
are
sustained
is
only
to
be
understood
of
natural
possession
:
The
Lords
preferred
the
Lady
,
and
repelled
the
said
Defence
;
upon
these
considerations
,
that
Infeftments
given
to
Wives
in
the
cases
above-mentioned
are
construed
to
be
publick
and
are
not
persumed
to
be
fraudulent
:
And
Wives
are
not
in
the
condition
of
other
Creditors
who
may
perfect
and
make
their
Rights
publict
;
whereas
Wives
can
do
nothing
themselves
;
and
it
is
to
be
presumed
that
Wives
are
provided
by
their
Husbands
:
So
that
these
who
are
to
acquire
Rights
from
them
ought
to
enquire
if
their
Wives
be
Infeft
;
specially
seing
,
since
the
Act
of
Parliament
1617
anent
registration
of
seasings
,
they
may
easily
know
the
same
.
Cuninghame
&c.
and
for
the
Lady
,
Lockhart
and
Lermonth
.
D.
162.
Lord
Hattoun
contra
Paterson
.
22.
Feb.
1672.
THE
Lords
of
Exchequer
having
given
the
Escheat
of
the
Laird
of
Craigie
Carnagie
,
to
Andrew
Paterson
:
and
the
Gift
being
assigned
to
the
Laird
of
Aytoun
by
the
said
Andrew
;
a
decreet
was
thereupon
obtained
against
the
Representatives
of
the
Earl
of
Dundie
,
for
his
intromission
with
the
Goods
belonging
to
the
Rebel
,
whereupon
Adjudication
or
Comprysing
followed
of
the
said
Earls
Estate
in
Argyle
,
which
was
Disponed
by
the
said
Laird
of
Aytoun
to
the
Earl
of
Argyle
:
Thereafter
my
Lord
Hattoun
Thesaurer-depute
having
gotten
a
second
Gift
;
pursued
the
the
said
Andrew
Paterson
before
the
Exchequer
upon
that
ground
,
That
by
Acts
of
Exchequer
it
was
ordained
that
no
Gifts
of
Escheat
should
pass
without
Back-bonds
,
and
the
Clerks
are
Discharged
to
give
out
the
same
otherwayes
;
and
nevertheless
viis
&
modis
,
the
said
Andrew
had
surreptitiously
gotten
out
the
said
Gift
;
and
ought
to
give
a
Bond
that
being
satisfied
of
what
he
can
pretend
to
be
due
to
him
by
the
Rebel
,
and
of
the
Expences
in
passing
the
Gift
;
he
should
denude
himself
in
favours
of
the
second
Donator
:
And
that
it
should
be
declared
that
the
said
Gift
should
be
affected
with
the
said
Bond
,
as
if
it
had
been
given
ab
initio
:
And
accordingly
the
Exchequer
did
decern
and
declared
:
Whereupon
the
Thesaurer
deput
pursued
a
Reduction
of
the
said
Apprysing
against
Aytoun
and
the
Earl
of
Argyl
,
upon
that
reason
viz.
That
the
said
Gift
,
which
is
the
ground
thereof
,
is
restricted
and
qualified
,
and
that
the
said
Andrew
Paterson
is
fully
satisfied
of
what
is
due
to
him
.
It
was
Alledged
for
the
Defenders
,
that
the
Gift
was
pure
and
simple
without
any
Back-bond
;
and
therefor
the
Assigney
finding
it
was
such
,
and
there
being
no
Back-bond
upon
record
,
was
in
bona
fide
to
take
a
Right
to
the
same
:
And
the
said
Decreet
of
Exchequer
being
supervenient
,
and
res
inter
alios
acta
,
could
not
be
obtruded
against
a
singular
Successor
,
but
the
Pursuer
may
have
action
against
the
Cedent
:
The
Lords
Repelled
the
Alledgnce
,
and
Found
that
the
Decreet
and
Back-bond
do
qualifie
the
Gift
both
as
to
the
Donator
and
to
his
Assigney
.
The
said
Decision
appears
very
hard
upon
the
grounds
abovementioned
,
and
because
Back-bonds
are
only
personal
obligements
upon
the
Granters
and
do
not
qualifie
Rights
,
being
extra
Corpus
Juris
:
And
his
Majestie
,
in
granting
Gifts
of
Escheat
single
or
Liferent
,
is
in
no
other
case
than
other
Superiors
;
as
Lords
of
Regality
having
Right
to
single
Escheats
,
whose
Gifts
cannot
be
qualified
in
prejudice
of
a
singular
Successor
;
but
by
provisions
contained
in
the
Body
of
the
Right
:
and
the
import
of
Back-bonds
is
only
,
that
the
Granters
being
satisfied
should
be
comptable
for
the
superplus
;
but
there
is
not
thereby
any
tye
upon
them
not
to
dispose
upon
the
same
,
being
comptable
for
the
pryce
or
value
of
that
which
they
dispone
.
Colingtoun
Reporter
:
Having
heard
the
cause
at
the
side
Barr.
D.
163.
Blair
contra
Blair
.
23.
Feb.
1672.
WItnesses
being
examined
before
Answer
ex
Officio
:
It
was
desired
that
seing
ex
facto
oritur
Jus
,
and
the
Lords
being
unclear
to
decide
in
Jure
before
the
point
of
fact
were
cleared
by
probation
;
and
the
point
of
Law
and
ground
of
their
Decision
is
to
arise
out
of
the
probation
;
and
therefore
they
may
see
and
debate
upon
the
same
:
which
was
refused
;
seing
publicatio
Testimoniorum
by
our
Law
is
allowed
in
no
case
but
in
Improbations
ex
quaestione
falsi
.
Mckenzie
alteri
Lockhart
&c.
D.
164.
Neilson
contra
Elizabeth
Arthur
.
Eod.
die
.
ELizabeth
Arthur
being
charged
upon
a
Bond
granted
by
her self
;
suspended
upon
that
reason
,
that
she
was
cled
with
a
Husband
the
time
of
the
granting
thereof
:
It
was
Answered
,
she
had
a
peculium
and
Estate
setled
upon
her
by
her
Father
in
these
Terms
,
that
her
Husband
should
have
no
interest
therein
;
but
that
it
should
be
manadged
by
advice
of
the
Freinds
named
by
him
for
the
behoofe
of
her
and
her
Children
:
And
that
the
Sum
charged
for
was
borrowed
and
employed
for
her
use
.
The
Lords
Found
the
Letters
orderly
proceeded
.
D.
165.
Lady
Lugton
contra
Hepburn
and
Creichton
.
13.
June
.
1672.
A
Decreet
being
recovered
before
the
Commissars
of
Edinburgh
,
at
the
instance
of
the
Lady
Lugtoun
,
against
her
Grandchild
_____
Hepburne
Daughter
to
the
deceast
Laird
of
Aderstoun
;
Modifying
400.
Merks
Yearly
,
for
Aliment
of
the
said
_____
Hepburne
,
by
the
space
of
13.
Years
since
her
Birth
:
The
Lords
in
a
Reduction
and
Suspension
of
the
said
Decreet
,
modified
the
Sum
thereincontained
being
3500
Merks
to
the
Tenth
part
of
the
Sum
of
30000
Merks
;
which
was
mentioned
in
the
said
Decreet
,
and
considered
by
the
Commissars
as
the
Estate
belonging
to
the
said
Hepburne
:
So
that
in
respect
and
upon
supposition
of
the
same
,
they
modified
the
said
Aliment
:
And
by
reason
the
said
Estate
was
intricate
and
litigious
,
and
possibly
could
not
be
recovered
:
The
Lords
ordained
the
Pursuer
to
Assign
the
Tenth
part
of
the
said
Estate
;
not
exceeding
3000
Merks
;
which
was
done
upon
that
consideration
,
that
the
Aliment
was
modified
in
respect
of
the
said
interest
:
And
if
ex
eventu
it
should
be
Found
,
that
it
could
not
be
recovered
,
and
that
she
had
no
Estate
;
it
were
unjust
,
that
she
should
be
Lyable
personally
;
her
Grand-mother
being
obliged
,
at
least
presumed
to
entertain
her
ex
pietate
materna
,
if
she
had
no
Estate
of
her
own
.
Monro
Clerk
.
D.
166.
Grott
contra
Sutherland
.
14.
June
.
1672.
TWo
Owners
of
a
Ship
being
obliged
by
a
Contract
to
Transport
Goods
to
a
certain
part
:
The
Lords
sustained
Action
against
one
of
them
in
solidum
,
for
implement
of
the
Obligements
in
the
Contract
being
facti
which
is
indivisible
;
and
they
being
socii
&
exercitores
,
so
that
the
Fraught
might
have
been
payed
to
one
of
them
;
and
eadem
ratione
any
one
of
them
is
Lyable
,
and
may
be
pursued
in
solidum
.
Gibson
Clerk
.
D.
167.
_____
contra
_____
eod.
die
.
THE
Lords
Found
,
That
a
Declarator
of
Right
,
which
ought
to
be
upon
21
Dayes
,
being
priviledged
by
a
Bill
which
is
periculo
petentis
,
should
not
be
sustained
being
execute
upon
a
shorter
time
:
And
Ordained
that
the
Writers
to
the
Signet
should
nor
insert
in
Bills
and
Summonds
a
priviledge
dispenceing
with
the
Law
,
and
the
solennes
induciae
thereby
introduced
in
favours
of
Defenders
,
under
the
paine
of
100
Merks
for
the
first
fault
;
and
deprivation
for
the
second
;
except
in
cases
which
by
the
Law
are
priviledged
and
named
:
The
President
,
Advocate
,
and
others
of
their
number
,
to
meet
and
consider
what
these
should
be
.
D.
168.
Henderson
contra
Henderson
.
20.
June
.
1672.
A
Bond
being
produced
to
satisfy
the
production
in
an
Improbation
:
The
Lords
without
further
probation
did
Improve
and
Decern
quoad
the
Defender
;
in
respect
he
refused
to
abide
by
the
Truth
of
the
same
.
Gibson
Clerk
.
D.
169.
Gray
of
Haystoun
contra
Forbes
and
Lindsay
.
eod.
die
.
WIlliam
Gray
of
Haystoun
having
granted
Bond
to
Lindsay
;
and
the
said
Lindsay
having
Assigned
the
same
to
his
Daughter
;
The
said
William
Gray
Suspended
upon
a
double
poinding
,
against
the
said
Assigney
and
a
Creditor
who
had
arrested
:
It
was
Alledged
for
the
Creditor
,
that
the
Assignation
was
made
by
a
Father
to
a
Daughter
,
to
defraud
Creditors
:
It
was
Answered
,
That
the
Father
by
Contract
of
Marriage
was
obliged
,
in
case
there
should
be
no
Heirs
Male
betwixt
him
and
the
Assigneys
Mother
,
to
pay
to
the
Heir
or
Bairn
Female
at
her
age
of
14.
years
.
4000.
Merks
;
and
until
then
to
entertain
her
:
And
that
the
Assigney
being
the
sole
Bairn
of
the
Marriage
,
her
Father
had
given
the
Assignation
foresaid
for
implement
of
the
said
obligement
.
The
Lords
,
having
considered
that
the
provision
by
the
Contract
of
Marriage
in
favours
of
the
Daughters
is
only
in
case
there
should
be
no
Heirs
Male
of
the
Marriage
,
and
that
the
Father
should
have
other
Heirs
Male
of
his
Body
;
so
that
the
Daughter
should
not
succeed
to
the
Estate
;
and
that
both
the
Father
and
Mother
are
yet
living
,
and
of
that
age
that
it
was
not
to
be
expected
that
the
Father
would
have
other
Heirs
Male
of
his
Body
by
an
other
Marriage
;
and
his
Daughter
was
his
Appearand
Heir
whatsomever
:
Therefore
they
Found
,
that
the
case
of
the
provision
in
favours
of
the
Heirs
Female
did
not
exist
,
and
preferred
the
Creditor
.
Lock-heart
and
Bannerman
for
Lindsay
.
Bernie
&c.
for
Forbes
.
Gibson
Cl.
D.
170.
Fergusson
contra
_____
21.
June
.
1672.
THE
Lords
Found
,
That
a
Partie
being
within
the
Countrie
,
the
time
of
the
citation
upon
the
first
Summonds
,
and
some
time
thereafter
;
and
goeing
out
of
the
Countrie
before
the
second
Summonds
,
could
not
be
cited
at
the
Pear
and
Shoar
of
Leith
upon
the
second
Summonds
;
without
a
warrand
in
the
said
Summonds
to
that
effect
.
D.
171.
The
Laird
of
Hermiestoun
contra
Cockburn
.
Eod.
die
.
THE
Lords
Found
,
That
in
the
case
,
and
in
all
time
coming
,
where
Witnesses
are
adduced
before
Answer
,
they
will
only
allow
one
Term
:
so
that
upon
any
Diligence
,
they
will
admit
no
Witnesses
,
but
those
who
are
cited
by
the
first
Diligence
.
Mr.
Thomas
Hay
Clerk
.
D.
172.
Ramsay
contra
Carstairs
.
eod.
die
.
A
Father
,
in
his
Contract
of
Marriage
,
being
obliged
to
provide
the
Heir
Female
of
the
Marriage
,
and
to
pay
to
her
20000
lib.
at
her
age
of
15
years
:
and
until
then
to
entertain
her
:
there
being
only
one
Child
and
Daughter
of
the
Marriage
,
she
and
her
Husband
pursued
the
Father
and
his
Curators
,
he
being
furious
,
to
pay
the
said
Sum.
It
was
Answered
,
That
the
said
Provision
being
only
payable
to
the
Heir
Female
,
the
Pursuer
neither
had
nor
could
pursue
upon
that
Quality
and
Interest
dureing
the
Father's
Life
;
specially
seing
both
he
and
his
Wife
the
Pursuers
Mother
,
were
living
,
and
of
that
age
,
that
they
may
have
Heirs
Male
of
the
Marriage
,
or
other
Daughters
:
And
if
they
should
have
Male
Children
,
the
Case
and
Condition
of
the
Provision
would
deficere
,
and
not
exist
;
and
if
they
should
have
moe
Daughters
,
the
Pursuer
could
not
have
Right
to
the
whole
Sum
acclaimed
It
was
Replyed
,
That
the
Father
was
in
effect
civiliter
mortuus
;
and
the
Pursuers
would
find
Caution
to
refound
,
in
either
of
the
said
Cases
.
The
Lords
Found
the
Defence
relevant
,
and
that
such
Provisions
being
settled
upon
Heirs
Female
,
by
reason
,
and
in
case
of
exclusion
of
the
Heirs
Female
of
the
Marriage
,
when
Lands
are
entailed
to
Heirs
Male
,
and
there
are
no
Heirs
Male
of
the
Marriage
;
The
Term
of
Payment
could
not
be
understood
to
be
during
the
Marriage
.
Strathurd
Reporter
.
Gibson
Clerk
.
D.
173.
William
Sandilands
contra
The
Earle
of
Hadington
.
Eod.
die
.
THomas
the
first
Earl
of
Hadington
having
Disponed
certain
Lands
,
with
absolute
warrandice
,
in
anno
1610
:
The
now
Earl
of
Hadington
was
pursued
as
representing
his
Great
Grand-father
,
to
warrand
the
said
Lands
from
Astriction
to
the
Miln
whereunto
they
were
astricted
,
before
the
Earl
of
Hadington
Disponed
the
same
:
It
was
Alledged
,
That
the
Warrandice
doth
not
extend
to
the
case
of
Servitudes
,
such
as
Common
Pasturage
,
Thirlage
,
and
such
like
,
which
are
not
latent
;
and
may
,
and
are
presumed
to
be
known
by
Purchassers
,
who
ought
,
and
do
ordinarly
enquire
and
inform
themselves
concerning
the
condition
and
burdens
of
the
Lands
they
intend
to
purchase
:
specially
in
the
case
in
question
,
the
multure
being
not
exorbitant
:
It
was
Replyed
,
That
in
Law
where
praedia
,
either
rustica
,
or
urbana
,
ut
optima
maxima
,
are
Disponed
,
they
are
Disponed
as
Libera
:
And
that
the
Lands
in
question
are
so
Disponed
,
it
is
evident
,
in
respect
the
Warrandice
is
absolute
,
and
they
are
Disponed
cum
molendinis
&
multuris
.
It
was
Duplyed
,
That
the
Romans
were
in
use
to
Dispone
either
simply
,
or
cum
ista
adjectione
,
praedia
ut
optima
maxima
,
the
import
whereof
was
,
servitutem
non
deberi
:
But
where
Lands
are
Disponed
simply
,
it
is
construed
and
presumed
in
Law
,
that
they
are
Disponed
talia
,
and
such
as
they
are
;
And
with
such
accessories
,
either
as
to
burden
or
advantage
as
tacite
veniunt
;
albeit
these
be
not
exprest
;
as
Servitudes
either
Active
or
Passive
:
and
as
to
the
Warrandice
,
it
is
of
the
ordinary
Stile
without
mention
of
Servitudes
;
and
it
appears
from
the
stile
and
conception
of
the
ordinary
clause
of
Warrandice
,
and
the
speciality
thereinmentioned
,
viz.
Wards
,
Non-entries
,
Inhibitions
,
Apprysings
,
&c.
That
such
Incumberances
are
only
intended
,
whereby
the
Right
or
Possession
of
Lands
,
or
the
Mails
and
Duties
,
or
any
part
of
them
are
evicted
:
Whereas
in
the
case
of
Astriction
the
Heretor
doth
enjoy
his
Lands
and
Duties
of
the
same
entire
;
and
seing
his
Corns
must
be
grinded
,
it
is
not
a
material
prejudice
,
that
they
should
be
grinded
rather
at
one
Miln
than
an
other
:
and
it
appears
by
the
Disposition
,
that
it
was
not
actum
and
treated
,
that
the
said
Lands
should
be
Disponed
ut
optima
maxima
;
the
Warrandice
being
in
the
ordinary
terms
without
mention
of
Servitudes
:
And
the
Clause
cum
molendinis
is
only
in
the
Charter
and
Tenendas
,
and
is
ex
stilo
,
and
imports
only
freedom
of
Thirlage
as
to
the
Disponer
.
The
Lords
upon
the
foresaid
Debate
,
And
that
the
said
Miln
was
a
Miln
of
the
Barony
of
Torphichen
,
whereof
the
Lands
astricted
are
a
part
;
and
that
the
same
were
astricted
before
the
Earl
of
Hadington
acquired
the
same
;
they
Found
the
Defence
Relevant
and
Assoilyied
.
D.
174.
Creditors
of
Tarsappie
contra
Kilfanes
.
23.
July
.
1673.
THE
Lords
upon
Debate
among
themselves
,
were
of
the
opinion
,
that
a
confident
person
having
got
a
Disposition
from
a
Debitor
;
may
at
the
Debitors
desire
satisfy
such
Creditors
as
he
thought
fit
,
there
being
no
Diligence
done
by
other
Creditors
:
And
as
the
Debitor
might
have
done
so
himself
,
so
the
Trustee
may
do
:
And
that
it
is
provided
so
by
the
Act
of
Parliament
.
1621.
They
Found
that
the
Trustee
,
if
he
got
any
Ease
by
composition
,
should
apply
the
benefite
thereof
,
for
satisfaction
of
the
other
Creditors
.
Item
.
That
he
cannot
make
voluntar
payment
in
prejudice
of
a
Creditor
who
has
done
Diligence
.
Gibson
Clerk
.
D.
175.
Kilbirny
contra
Cuninghame
.
24.
July
.
1673.
IN
an
Adjudication
upon
the
late
Act
of
Parliament
:
The
Lords
modified
the
price
to
be
18.
years
purchase
,
as
to
the
certain
and
constant
Rent
;
and
9.
years
as
to
casual
Rent
of
Coal
.
Gibson
Clerk
.
D.
176.
Murray
contra
The
Tutor
of
Stormount
.
25.
July
.
1673.
BY
a
Contract
of
Wadset
,
the
Wadsetter
being
lyable
to
compt
for
the
excrescence
of
the
Duties
more
than
should
satisfie
the
Annualrent
;
The
Lords
,
in
a
Process
for
Maills
and
Duties
,
Found
the
Exception
Relevant
,
that
the
Pursuer
was
satisfied
of
the
Sum
upon
the
Wadset
,
by
his
Intromission
,
without
Declarator
.
D.
177.
Ker
contra
Ruthven
.
eod.
die
.
THE
Lords
Found
,
That
the
Estate
of
the
Earl
of
Bramford
being
settled
upon
the
Lord
Forresters
Son
by
Act
of
Parliament
,
he
could
not
have
it
but
cum
sua
causa
,
and
the
burden
of
his
Debts
.
Item
,
They
Found
,
That
the
Earl
,
having
entertained
his
Grand-child
the
Pursuer
,
was
to
be
presumed
to
have
done
it
ex
pietate
avita
;
the
Earl
being
a
generous
person
,
and
having
an
opulent
Estate
;
and
his
Grand-child
having
nothing
for
the
time
,
but
the
Debt
in
question
,
whereof
the
Annualrent
was
provided
and
belonged
to
his
Brother
.
Monro
Clerk
.
D.
178.
Creditors
of
Hugh
Sinclair
contra
Annandale
.
26.
July
.
1673.
THE
Lords
Found
,
That
a
Compryser
upon
Debts
anterior
to
the
Debitor's
Rebellion
,
being
Infeft
before
Year
and
Day
,
is
preferable
to
the
Donator
of
the
Liferent
Escheat
.
Mr.
Thomas
Hay
Clerk
.
D.
179.
Mr.
John
Bayn
contra
Caivie
.
eod.
die
.
THE
Lords
Found
,
That
a
Tack
being
questioned
as
antedated
to
obviate
an
Inhibition
,
was
suspect
being
rased
in
the
Date
;
So
that
the
same
seemed
to
be
vitiate
,
and
an
other
year
superinduced
:
And
therefore
was
not
a
valide
and
probative
Writ
in
prejudice
of
the
Inhibition
:
unless
it
could
be
adminiculate
by
some
Adminicle
before
the
Inhibition
.
Mr.
Thomas
Hay
Clerk
.
D.
180.
2.
June
1674.
THE
Kings
Majesty
,
having
by
two
Letters
to
the
Lords
of
Session
,
presented
Mr.
David
Balfour
of
Forret
,
and
Mr.
Thomas
Murray
both
Advocates
,
to
be
Lords
of
the
Session
:
It
was
moved
by
one
of
the
Lords
,
that
seing
by
the
Law
and
Acts
of
Parliament
,
these
who
are
to
be
admitted
to
be
Lords
of
Session
,
should
be
tryed
;
Therefore
the
Tryal
should
be
such
as
is
intended
by
the
Law
;
the
very
Notion
of
Tryal
importing
,
at
least
a
serious
,
if
not
a
strict
and
exact
way
of
Tryal
.
This
was
moved
,
because
the
way
of
Tryal
had
become
of
late
so
perfunctorious
,
and
dicis
causa
,
that
it
was
ridiculous
,
and
in
effect
a
Mock-Tryal
:
Some
of
the
Lords
being
appointed
to
examine
these
who
were
named
by
the
King
,
and
after
they
had
asked
some
trivial
Questions
,
having
made
Report
,
That
they
found
them
qualified
;
albeit
it
was
not
only
known
to
the
Examinators
,
but
to
all
the
Lords
,
and
notour
to
the
World
,
that
they
were
altogether
Ignorant
both
of
Law
and
Practique
;
and
did
acknowledge
it
themselves
,
not
dareing
to
expose
themselves
to
sit
in
the
Outer
house
as
Ordinaries
;
they
prevailing
with
others
of
the
Lords
to
go
out
and
officiate
for
them
as
Curats
.
1.
It
was
urged
,
that
the
Estates
had
considered
the
Interest
of
the
Kingdom
;
all
Estates
being
concerned
in
that
Judicatory
,
that
the
Lords
should
be
Persons
of
great
Abilitie
and
Integrity
,
seing
their
Lands
and
Fortunes
and
greatest
Interests
,
are
the
Subject
of
their
Jurisdiction
and
Decisions
:
and
therefore
it
was
provided
by
diverse
Statutes
and
Acts
of
Parliament
,
they
should
be
qualified
Persons
,
and
found
upon
Tryal
to
be
such
.
2.
His
Majesties
Letter
required
,
that
the
Persons
now
named
,
should
be
examined
effectually
.
3.
By
diverse
Acts
of
Sederunt
,
and
in
special
one
upon
the
Kings
Letter
,
for
the
time
,
the
way
of
Tryal
is
prescribed
,
which
is
most
exact
.
4.
The
Oath
of
Admission
,
that
the
Lords
should
be
faithful
,
has
and
ought
to
have
Influence
upon
all
their
Actions
,
as
Lords
of
the
Session
,
that
they
should
be
done
faithfully
;
and
the
Tryal
of
Lords
for
the
Reasons
foresaid
,
being
an
important
Act
of
Duty
,
ought
to
be
done
faithfully
and
sincerely
,
and
cannot
be
done
otherways
without
breach
of
Oath
.
5.
To
pretend
to
obey
the
Law
,
and
the
Kings
Letter
(
which
requireth
an
effectual
Tryal
)
in
a
way
which
is
superficiary
,
and
evidently
ineffectual
;
it
is
a
Cheat
,
and
Circumventio
Legis
;
which
in
others
is
hateful
;
but
in
Judges
,
who
are
Antistites
Juris
,
is
abominable
,
and
inconsistent
with
the
Honour
and
Integrity
that
should
be
expected
from
the
Judicatory
.
6.
If
there
were
no
Tryal
at
all
,
the
Lords
would
be
passive
,
if
Persons
not
qualified
should
be
named
;
but
being
enjoyned
to
try
effectually
,
if
they
receive
them
without
an
effectual
tryal
,
they
are
not
free
of
blame
;
and
are
accomptable
to
God
,
and
his
Majesty
,
and
to
the
Parliament
.
To
all
these
Reasons
,
It
was
Answered
,
That
at
this
time
the
way
of
Tryal
that
had
been
for
a
long
time
,
should
be
continued
at
this
time
;
and
that
the
Motion
was
upon
some
design
.
The
Mover
did
purge
himself
upon
Oath
,
that
he
had
no
Design
,
but
to
do
duty
;
and
did
attest
the
President
,
that
before
this
occasion
they
had
spoken
often
to
that
purpose
:
and
did
represent
,
that
this
is
the
fit
time
to
put
the
Law
and
Statutes
in
execution
;
The
Persons
named
being
Advocats
,
and
Persons
presumed
to
be
able
to
undergo
the
Tryal
;
so
that
it
cannot
be
thought
that
there
is
any
thing
of
Design
against
their
Persons
:
That
it
cannot
be
denyed
,
but
the
late
way
is
abusive
;
and
antiquitas
erroris
,
or
abusus
,
cannot
be
thought
and
pleaded
to
be
custom
:
That
in
the
Year
1629.
the
Lords
by
an
Act
of
Sederunt
,
had
renewed
and
ratified
all
the
former
Statutes
anent
the
Tryal
and
Admission
of
the
Lords
;
and
ordained
them
to
be
observed
;
That
since
that
time
the
Troubles
interveened
and
continued
long
,
so
that
Prescription
cannot
be
pretended
for
an
abuse
which
had
occasioned
so
great
prejudice
and
clamour
.
It
was
Carryed
,
That
the
Examination
should
be
as
it
has
been
of
late
:
and
upon
the
Report
of
Gosford
and
Craigie
,
(
appointed
to
examine
them
)
they
were
admitted
:
Gosford
was
of
Opinion
that
there
should
be
another
way
of
Tryal
.
D.
181.
Bogie
contra
The
Executors
of
the
Lady
Oxenford
.
4.
June
1674.
THE
Executors
of
the
Lady
Oxenford
,
being
pursued
at
the
instance
of
a
Legatar
,
did
in
the
Compt
before
the
Auditor
,
give
in
an
Article
of
Discharge
,
viz.
That
the
Expences
of
a
Process
at
the
Executors
instance
should
be
allowed
:
It
was
Answered
,
That
if
the
Executor
had
not
pursued
that
Process
,
there
was
as
much
free
Gear
as
would
have
satisfied
the
Legacie
,
and
the
Executor
had
not
prevailed
:
and
if
they
had
prevailed
,
the
benefit
would
only
have
accresced
to
the
Executor
,
and
not
to
the
Legatars
:
and
therefore
penes
quem
emolumentum
,
&c.
and
seing
they
would
have
had
no
benefite
,
they
should
have
no
loss
by
the
event
of
that
Process
.
The
Lords
Found
,
That
the
Executors
,
having
prosecuted
a
Process
intented
by
the
Defunct
,
did
their
duty
;
and
officium
should
not
be
damnosum
:
and
therefore
the
Charges
of
that
Process
should
not
be
upon
their
own
accompt
,
but
should
be
defrayed
out
of
the
Executry
:
but
so
,
that
where
Executors
have
no
benefit
by
the
Confirmation
,
but
are
either
simple
Executors
,
or
universal
Legators
,
as
to
the
superplus
,
particular
Legacies
being
payed
,
if
there
be
as
much
Executrie
as
will
satisfie
such
Expences
,
and
the
Legacies
;
the
Legacies
ought
to
be
payed
intirely
,
before
the
Executors
have
any
benefit
;
but
if
the
Executrie
will
not
amount
to
satisfy
the
Charges
,
and
particular
Legacies
,
the
Charges
are
to
be
satisfyed
,
and
the
Legacies
to
be
abated
proportionally
,
and
the
Executor
is
to
have
no
benefit
:
but
if
he
be
a
particular
Legatar
,
he
is
to
be
considered
with
the
rest
of
the
Legatars
,
and
to
share
with
them
proportionally
.
Mr.
Thomas
Hay
Clerk
.
Concluded
cause
.
D.
182.
Helen
Mure
contra
John
Law
.
6.
June
1674.
A
Relict
being
pursued
,
as
Executor
to
her
Husband
,
for
a
Debt
:
alledged
,
she
was
only
Executor
Creditor
for
payment
of
2400.
merks
,
provided
to
her
by
Contract
of
Marriage
:
It
was
Answered
,
That
the
Debt
was
satisfied
,
at
least
compensed
;
in
sua
far
as
she
was
obliged
by
the
same
Contract
to
give
to
the
Defunct
Goods
and
Gear
,
to
the
value
of
2400.
merks
,
which
she
declared
she
had
in
penny
and
penny
worth
,
and
was
worth
the
same
;
(
which
are
the
Words
)
and
obliged
her self
to
put
him
in
Possession
thereof
.
The
Lords
Found
,
That
the
Husband
having
lived
only
9.
years
after
the
Marriage
;
because
of
the
presumption
that
he
had
been
silent
all
the
time
,
and
had
not
craved
nor
declared
the
said
Sum
to
be
resting
;
It
was
therefore
to
be
thought
,
that
he
had
gotten
the
Goods
,
and
that
the
Obligement
was
satisfied
:
and
yet
they
thought
,
that
there
being
so
much
confidence
betwixt
Husband
and
Wife
,
it
were
hard
to
put
her
to
a
full
Probation
:
They
therefore
Ordained
her
to
give
her
Oath
of
Calumny
,
that
she
had
satisfyed
the
Obligement
;
and
to
adduce
some
Probation
and
Adminicles
to
prove
aliqualiter
.
Mr.
Thomas
Hay
Clerk
.
Concluded
Cause
.
Mr.
Rodger
Hog
alteri
.
In
the
same
cause
,
it
being
further
alledged
,
that
the
Huband
had
payed
for
his
Wife
as
much
Debt
as
would
exhaust
that
which
she
had
brought
with
her
;
and
so
that
she
had
not
payed
it
effectually
.
The
Lords
Found
,
That
if
she
had
put
him
in
Possession
of
the
Goods
conform
to
the
Obligement
;
and
that
they
were
her
own
,
at
least
that
she
had
a
Right
or
coloured
Title
thereto
,
that
she
was
neither
lyable
to
warrand
,
either
as
to
the
eviction
of
the
Goods
,
or
from
any
Debts
;
seing
the
Husband
taketh
his
hazard
,
and
in
Law
is
lyable
to
the
payment
of
the
same
.
Some
of
the
Lords
thought
,
That
albeit
the
Husband
be
lyable
to
the
Creditors
of
the
Wife
,
whether
she
perform
her
part
of
the
Contract
of
Marriage
or
not
,
or
whether
he
got
any
thing
with
her
effectually
or
not
;
yet
it
were
very
fit
to
consider
the
quality
of
the
Debts
of
the
Wife
,
alledged
payed
by
the
Husband
;
for
if
they
were
such
as
the
Wife
could
not
but
know
,
when
she
contracted
Goods
of
the
value
foresaid
,
and
yet
she
did
conceal
them
;
it
were
a
Fraud
and
Cheat
to
oblige
her self
to
be
worth
and
give
to
her
Husband
,
Goods
extending
to
2400.
merks
,
when
she
knew
she
was
not
worth
a
Groat
,
her
Debts
being
so
great
as
to
evict
the
same
.
They
considered
,
that
in
this
case
she
did
not
dispone
any
Goods
in
particular
,
but
was
obliged
to
a
generalitie
,
viz.
That
she
was
worth
Goods
of
that
value
;
and
she
cannot
be
said
to
be
worth
in
Goods
the
said
Sum
,
her
Debt
being
equivalent
:
Seing
Bona
are
understood
debitis
deductis
.
D.
183.
Act
of
Sederunt
.
eod.
die
.
THE
Lords
thought
fit
to
make
an
Act
of
Sede●unt
,
and
to
intimate
it
to
the
Advocats
;
to
the
purpose
following
,
viz.
That
when
an
Alledgance
is
not
admitted
,
but
a
joint
Probation
is
allowed
before
Answer
;
if
there
be
any
other
Alledgance
found
relevant
,
and
admitted
to
either
,
Litiscontestation
should
be
understood
to
be
made
as
to
that
Alledgance
.
2.
And
likeways
as
to
that
effect
,
that
the
Parties
are
concluded
,
and
cannot
be
heard
thereafter
to
propone
any
other
Alledgance
.
3.
The
Terms
being
run
as
to
Alledgance
not
discust
,
they
are
concluded
as
to
the
Probation
of
it
,
as
if
the
relevancy
had
been
discust
by
a
formal
Act
of
Litiscontestation
,
whereas
it
is
remitted
to
be
considered
after
Probation
,
seing
often
ex
facto
oritur
Jus
;
and
upon
consideration
of
the
circumstances
after
Probation
,
the
Lords
have
more
clearness
to
determine
Relevancy
.
D.
_____
184.
contra
Hepburn
.
7.
June
1674.
THE
Apothecary
Patrick
Hepburn
his
Son
,
being
pursued
as
Successor
Titulo
Lucrativo
,
for
a
debt
of
his
Fathers
,
upon
that
Ground
,
that
tho
the
Right
of
Lands
granted
to
him
by
his
Father
,
was
before
the
Debt
;
yet
it
was
revocable
,
and
under
Reversion
to
the
Father
,
upon
a
Rose
noble
,
when
he
contracted
the
Debt
lybelled
.
The
Lords
assoilyied
from
the
Passive
Title
foresaid
;
but
reserved
Reduction
.
It
appears
that
the
case
was
not
without
difficulty
;
and
that
albeit
future
Creditors
in
some
case
may
reduce
Anterior
Rights
ex
capite
fraudis
;
yet
this
is
difficult
and
unusual
:
and
therefore
it
had
been
fitt
to
determine
that
Point
,
viz.
Whether
an
appearand
Heir
,
getting
a
Right
revocable
,
and
of
the
nature
foresaid
,
should
be
lyable
at
the
least
in
quantum
;
seing
if
the
Father
had
discharged
the
reversion
,
he
would
have
been
Successor
,
in
respect
of
the
Discharge
after
the
Debt
;
and
the
Son
was
a
Child
,
and
the
Father
reserved
and
retained
Possession
,
and
upon
the
Matter
the
Father
's
not
redeeming
was
a
Discharge
of
the
Reversion
.
Actor
.
_____
alteri
Hog
.
Concluded
Cause
.
D.
185.
Cuningham
contra
Lees.
9.
June
1674.
THE
Relict
of
James
Deans
,
alledging
that
her
Husband
had
violently
torn
her
Contract
of
Marriage
;
pursued
his
Heir
to
hear
and
see
the
Tenor
of
it
proven
,
and
offered
to
prove
casum
amissionis
,
as
said
is
.
The
Lords
,
albeit
there
was
no
Adminicle
in
write
,
sustained
the
Summonds
;
in
respect
there
is
a
praesumptio
Juris
,
that
there
are
Contracts
of
Marriage
betwixt
Persons
of
any
consideration
,
so
that
the
Marriage
was
an
Adminicle
:
and
the
effect
being
meerly
Civil
and
not
Penal
,
they
had
no
respect
to
that
Alledgance
,
that
the
Process
was
after
the
Husbands
decease
,
and
some
7
or
8
years
after
the
deed
.
D.
186.
Paton
contra
Stirling
.
eod.
die
.
SIR
Hary
Stirling
of
Ardoch
,
on
Death-bed
,
did
by
a
Write
acknowledge
,
that
the
Right
he
had
acquired
from
Doctor
Paton
of
certain
Lands
,
was
under
Trust
,
and
for
surety
of
Sums
,
which
he
had
payed
for
the
Doctor
;
whereupon
Doctor
Paton's
Son
intented
a
pursuit
against
Ardoch's
Heir
to
declare
the
Trust
,
and
for
Compt
and
Reckoning
:
And
before
Answer
,
The
Lords
having
ordained
Witnesses
to
be
Examined
for
clearing
the
Trust
;
They
Found
,
That
by
the
Probation
the
Trust
did
not
appear
,
and
that
the
said
Declaration
in
Lecto
could
not
prejudge
his
Heir
,
unless
there
had
been
some
further
evidence
,
that
the
Declaration
was
emitted
by
the
Doctor
of
his
own
accord
,
and
upon
conviction
and
for
Exonering
his
Conscience
;
which
did
not
appear
by
the
Probation
.
Lockheart
and
Falconer
.
alteri
Long
formacus
and
Cuninghame
.
Gibson
Clerk
.
Concluded
Cause
.
D.
187.
Lady
Spencerfield
contra
Hamilton
.
10.
June
1674.
IN
the
case
of
the
Lady
Spencerfield
contra
Robert
Hamilton
of
Kilbrakmount
,
The
Lords
Found
,
that
the
Alledgeance
,
viz.
That
the
Defender
could
not
be
Lyable
as
Intrometter
,
because
there
was
a
Gift
given
of
the
Defuncts
Escheat
being
Rebel
,
is
not
Relevant
;
unless
the
Gift
were
either
declared
,
or
were
to
the
Defender
himself
,
or
that
he
had
Right
from
the
Donator
:
For
in
the
first
case
,
he
is
in
condition
parallel
with
an
Intrometter
,
in
the
case
of
an
Executor
confirmed
;
and
cannot
be
said
to
be
intrometter
with
the
Goods
of
a
Defunct
,
and
bona
vacantia
,
the
Right
of
the
same
being
in
a
living
person
per
aditionem
,
and
by
confirmation
;
and
a
third
person
Intrometting
where
there
is
no
Declarator
,
who
has
not
the
Gift
himself
,
nor
a
Right
from
the
Donator
,
is
not
in
a
better
case
than
an
Executor
decerned
:
And
in
the
case
of
a
Donator
Intrometting
,
or
the
intromission
of
any
other
having
Right
from
him
,
there
is
the
pretence
and
colour
of
a
Right
in
the
person
of
the
Intrometter
,
which
is
sufficient
to
purge
vitious
Intromission
.
They
Found
in
the
same
case
,
that
a
person
entering
to
the
possession
of
the
Defuncts
House
,
by
warrand
of
the
Lords
:
Their
possession
of
the
Goods
in
the
House
doth
not
infer
Intromission
,
unless
they
make
use
of
such
Goods
as
usu
consumuntur
,
or
dispose
of
such
Goods
,
as
are
not
of
that
nature
;
as
Beds
,
Tables
,
and
such
like
.
Robert
Hamilton
Clerk
.
D.
188.
Freeholders
of
Linlithgow
contra
The
Commissioners
to
the
Parliament
.
12.
June
1674.
IN
a
Suspension
at
the
instance
of
the
Freeholders
of
Linlithgow-shire
,
against
their
Commissioners
to
the
Parliament
.
The
Lords
Found
,
that
if
the
Prorogationes
and
Recesses
of
Parliament
be
for
a
considerable
time
,
so
that
the
Commissioners
do
or
may
go
home
,
the
Commissioners
should
not
have
their
Fies
,
or
Charges
dureing
the
same
.
2.
That
if
the
prorogation
be
for
a
short
time
,
and
the
Commissioners
having
their
Residence
at
a
little
distance
,
in
Edinburgh
,
or
Linlithgow
shire
,
do
or
may
go
home
;
they
ought
not
to
have
Fees
dureing
that
time
.
3.
If
there
be
Articles
sitting
,
dureing
that
time
,
and
they
do
not
go
home
,
tho
they
be
not
upon
the
Articles
;
they
should
have
their
Fees
:
Because
they
are
concerned
to
know
,
and
inform
themselves
,
what
is
in
Agitation
in
the
Articles
.
Newbyth
Reporter
.
Monro
Clerk
.
D.
189.
Bailly
Boid
contra
Store
.
November
7.
1674.
THE
Lords
sustained
a
Discharge
granted
by
a
Master
to
his
Tennent
upon
payment
of
his
Duty
,
tho
it
was
neither
Holograph
,
nor
Subscribed
before
Witnesses
;
but
pretended
to
be
subscribed
by
the
Granter
:
Which
the
Lords
did
in
respect
of
the
Custom
;
and
that
Masters
and
Tennents
are
in
use
to
give
and
take
Discharges
without
Witnesses
.
And
that
in
the
case
of
Writes
,
Letters
,
and
Bills
betwixt
Merchants
,
the
Lords
are
in
use
to
sustain
them
,
tho
they
want
Witnesses
;
and
there
is
the
same
,
if
not
more
reason
in
the
case
of
Tennents
;
by
reason
of
the
great
and
exuberant
confidence
betwixt
them
and
their
Masters
.
Some
of
the
Lords
thought
it
hard
to
recede
from
the
Law
,
there
being
no
limitation
or
exception
in
behalf
of
Tennents
;
&
ubi
Lex
non
distinguit
nec
nos
:
And
that
there
is
a
great
disparity
betwixt
Merchants
and
Tennents
,
Compts
,
Letters
,
and
Bills
of
Exchange
,
and
other
Writs
of
that
nature
;
being
secret
Transactions
betwixt
Merchants
and
their
correspondents
;
whereunto
Witnesses
and
other
persons
,
neither
are
in
use
to
be
,
nor
is
fit
they
should
be
privy
:
Whereas
Discharges
by
Masters
to
Tennents
are
in
use
to
be
,
and
there
is
no
inconveniency
that
they
should
be
subscribed
before
Witnesses
;
and
there
is
no
difficulty
to
get
Witnesses
to
them
;
and
if
they
want
Witnesses
,
and
be
not
Holograph
,
Masters
may
be
prejudged
;
It
being
easy
to
imitate
and
forge
a
single
subscription
,
and
there
being
no
means
of
improbation
of
the
same
.
D.
190.
The
Town
of
Innerness
contra
Forbes
of
Colloden
,
and
Robertson
of
Inches
and
others
.
eod.
die
.
THis
case
having
been
Agitated
,
not
without
some
heat
,
amongst
the
Lords
themselves
;
I
thought
fit
to
give
an
account
thereof
,
at
greater
length
,
than
I
have
used
in
other
Cases
and
Decisions
.
The
Town
of
Inverness
having
Charged
the
said
_____
Robertson
of
Inches
,
and
Colloden
and
other
Feuars
,
who
hold
the
Forrest
of
Drakies
,
and
other
Lands
and
Milns
,
and
Fishings
of
the
said
Burgh
;
for
payment
of
their
proportions
of
a
Stent
imposed
upon
them
,
for
the
use
of
the
Town
.
And
they
having
Suspended
,
upon
that
reason
,
that
the
said
Stent
was
unequal
as
to
their
proportions
,
and
that
the
Town
had
not
an
Arbitrary
Power
to
impose
Stents
upon
their
Neighbours
,
and
Feuars
,
unless
there
were
an
unavoidable
,
at
least
a
pressing
necessity
and
occasion
relateing
to
the
good
and
interest
of
the
Burgh
;
and
in
that
case
,
the
Neighbours
and
Feuars
were
to
be
Lyable
only
in
subsidium
;
In
so
far
as
the
Patrimony
of
the
Town
and
Common
Good
should
be
short
,
and
not
extend
to
defray
the
same
.
The
Lords
(
Sir
John
Gilmour
being
President
for
the
time
)
did
by
their
Decreet
of
Suspension
,
Find
the
Letters
orderly
proceeded
:
But
withall
,
did
regulate
the
way
of
stenting
to
be
according
to
the
method
and
Rules
set
down
by
the
Lords
as
to
the
future
,
which
are
contained
in
the
said
Decreet
,
and
acquiesced
to
by
the
Suspenders
;
the
Decreet
bearing
to
be
of
consent
;
and
containing
only
a
Protestation
,
that
the
Suspenders
should
not
be
Lyable
to
any
Stent
,
for
maintaining
and
prosecuting
Pleas
against
themselves
.
Thereafter
,
the
Feuars
being
charged
upon
another
Stent
,
did
Suspend
upon
that
reason
only
,
that
the
Regulation
and
Method
appointed
by
the
Lords
had
not
been
observed
:
and
did
intent
a
Declarator
,
that
they
should
not
be
Lyable
to
Stents
,
but
such
as
should
be
imposed
,
in
the
way
and
according
to
the
method
foresaid
.
Tho
there
was
no
other
reason
in
the
said
Suspension
,
nor
conclusion
in
the
said
Declarator
,
but
as
is
immediatly
related
;
yet
,
another
reason
was
thereafter
insisted
upon
,
both
in
the
Suspension
and
Declarator
;
and
they
did
plead
,
that
they
were
exempted
,
and
ought
not
to
be
Lyable
to
any
Stent
upon
any
account
or
method
whatsomever
;
by
reason
,
that
their
Lands
,
and
in
special
the
Forrest
of
Drakies
,
were
Feued
to
them
for
a
Reddendo
and
Feu-duty
contained
in
their
Infeftments
pro
omni
alio
onere
.
The
Case
not
being
fully
debated
at
the
Bar
,
Some
of
the
Lords
conceiving
,
that
the
Lands
of
Drakies
were
not
a
part
of
the
Original
and
Ancient
Patrimony
of
the
Town
,
but
that
the
same
had
been
acquired
by
the
Town
;
and
thereafter
had
been
Feued
out
by
them
in
the
Terms
foresaid
for
payment
of
a
Feu-duty
pro
omni
alio
onere
;
they
were
of
the
opinion
,
that
they
could
not
be
Lyable
to
a
Servitude
,
unless
the
same
had
been
constitute
,
either
by
their
Infeftments
or
otherwayes
;
But
specially
in
this
case
,
they
being
free
by
their
Infeftment
,
and
express
Clause
therein
,
of
all
burden
or
Servitude
,
but
their
Feu-duty
:
And
that
they
could
be
in
no
other
case
,
than
if
the
Town
of
Edinburgh
should
Feu
any
of
the
Lands
lately
acquired
by
them
,
for
payment
of
a
Duty
pro
omni
alio
onere
:
And
yet
the
plurality
of
the
Lords
were
of
the
opinion
,
that
if
the
Town
could
prove
and
make
appear
,
that
they
have
been
in
use
,
by
the
space
of
40
years
or
above
,
to
Stent
their
Feuars
for
defraying
their
Affairs
,
and
Burdens
,
and
Works
of
the
Town
,
that
they
ought
to
be
Lyable
,
notwithstanding
of
the
said
Clause
pro
omni
alio
onere
.
And
accordingly
before
Answer
a
Term
is
Assigned
,
for
proving
the
Towns
Possession
.
In
the
interim
,
The
most
Eminent
of
the
Advocates
,
and
in
special
such
as
were
for
the
Town
;
being
discharged
pleading
,
upon
occasion
of
the
Appeals
;
this
case
came
in
Agitation
the
last
Session
;
and
some
of
the
Lords
,
even
these
that
were
of
the
opinion
formerly
that
the
Feuars
should
not
be
Lyable
to
be
stented
,
upon
the
ground
and
mistake
foresaid
that
the
said
Lands
of
Drakes
was
not
a
part
of
the
Ancient
Patrimony
of
the
Town
;
they
were
convinced
,
upon
the
production
of
the
Towns
Evidents
,
that
the
said
Lands
were
a
part
of
the
Ancient
Patrimony
of
the
Town
,
being
Incorporate
and
contained
in
their
Infeftments
with
the
Burgh
it self
,
bearing
one
individual
holding
and
Reddendo
:
And
therefore
conceiving
,
that
est
Judicis
supplere
quae
desunt
Advocatis
in
Jure
,
and
which
arises
upon
production
of
the
Papers
;
they
did
argue
,
that
the
Feuars
ought
to
be
Lyable
for
these
Reasons
.
1
:
That
there
is
a
difference
betwixt
the
Original
Patrimony
of
the
Town
,
which
is
profectitious
,
and
flowes
from
the
Bounty
of
Princes
,
and
is
given
to
Burghs
Royal
,
for
sustaining
and
defraying
their
necessary
burdens
and
occasions
;
and
betwixt
that
,
which
is
adventitious
,
and
acquired
by
Burghs
themselves
,
by
their
own
Moyen
and
Means
.
As
to
the
first
,
The
same
being
given
eo
intuitu
,
and
to
the
end
,
that
it
should
be
a
Stock
for
doing
and
defraying
the
Common
Affairs
and
burdens
,
and
Charges
of
the
Town
,
it
cannot
be
given
away
,
nor
Feued
,
but
cum
sua
causa
;
and
so
that
they
should
be
Lyable
to
Stents
and
Impositions
upon
occasions
requireing
the
same
:
Whereas
the
other
is
acquired
by
Towns
as
quilibet
,
and
the
Feuars
ought
to
be
considered
as
quilibet
,
and
as
in
the
case
of
other
Feuars
.
2.
Upon
the
consideration
foresaid
,
it
is
statute
by
diverse
Acts
of
Parliament
,
and
in
special
by
the
36.
Act.
K.
Ja.
4.
Parl.
3.
And
the
181.
Act.
K.
Ja.
6.
Parl.
13.
That
the
Common
Good
of
Burrows
should
be
observed
and
keeped
to
the
common
profite
of
the
Town
:
And
the
said
Act
of
K.
Ja.
4th
.
bears
,
That
Lands
,
Fishings
,
Milns
,
and
others
belonging
to
the
Burrows
,
should
not
be
set
but
for
3.
Years
allenarly
;
and
if
any
be
set
otherways
that
they
be
of
none
avail
:
And
as
this
is
Law
,
so
it
is
just
,
otherwayes
,
those
who
have
Tenements
within
Burgh
,
and
who
upon
occasions
are
Lyable
to
be
Stented
,
should
be
unjustly
and
heavily
prejudged
,
if
the
Lands
and
Fishings
which
,
being
in
the
Towns
hands
,
would
be
lyable
in
the
first
place
to
such
Burdens
,
may
be
given
away
;
so
that
the
whole
burden
should
be
rolled
over
upon
them
.
3.
The
foresaid
pretence
,
That
the
Feuars
were
Lyable
only
to
the
Feu-duty
pro
omni
alio
onere
;
was
Answered
,
viz.
That
omne
aliud
onus
was
to
be
understood
,
of
any
other
ordinar
duty
payable
to
the
Town
as
Superiors
;
but
does
not
exempt
the
Feuars
from
these
munera
extraordinaria
Patrimonialia
,
for
the
necessar
use
and
preservation
of
the
Town
:
As
in
the
case
of
Lands
disponed
to
be
holden
of
the
Disponer
,
for
payment
of
a
Blensh
or
other
Duty
pro
omni
alio
onere
,
The
Clause
foresaid
will
not
exempt
the
Vasal
from
Taxations
,
and
the
Superiors
relief
of
the
same
against
his
Vasal
:
4.
It
appears
by
a
Ratification
of
Queen
Mary
,
produced
for
the
Town
,
That
the
Town
of
Innerness
had
made
diverse
Acts
concerning
the
setting
the
Lands
,
Milns
,
and
Fishings
,
which
are
ratified
by
the
said
Queen
;
And
which
,
if
they
were
observed
,
would
oblige
the
Feuars
to
be
lyable
to
to
be
Stented
.
The
saids
Lords
,
Who
were
of
the
said
opinion
,
thought
,
That
upon
the
Grounds
and
Production
foresaid
,
the
Feuars
of
Drakies
ought
to
be
lyable
without
any
farther
probation
,
to
Stents
imposed
for
the
use
and
interest
of
the
Town
;
the
same
being
imposed
necessarly
and
equally
according
to
the
method
abovementioned
:
And
yet
the
Town
having
adduced
probation
by
production
of
the
Records
out
of
their
Books
and
Witnesses
;
they
considered
and
thought
,
that
the
possession
of
the
Town
,
by
imposing
their
Stents
by
the
space
of
40.
years
,
was
proven
:
In
respect
,
it
appeared
by
the
Extracts
out
of
their
Books
,
That
from
the
year
1624.
until
1664.
they
have
been
in
use
to
impose
Stents
in
case
of
Exigency
,
for
the
private
use
and
concerns
of
the
Town
;
Notwithstanding
of
what
was
alledged
at
the
Bar
,
against
the
said
probation
,
and
in
special
,
that
the
Books
themselves
ought
to
be
produced
;
whereas
there
was
nothing
produced
but
Extracts
of
Acts
,
and
that
the
probation
,
that
the
Town
has
been
in
use
to
Stent
for
repairing
their
Bridge
,
did
not
quadrate
to
the
case
and
point
in
question
;
seing
it
was
to
be
proven
that
Stents
were
imposed
for
the
private
use
and
concerns
of
the
Town
,
and
the
Bridge
and
repairing
of
the
same
is
of
publick
concern
and
interest
,
relating
not
only
to
the
good
of
the
Town
,
but
of
the
whole
Shire
:
And
the
Record
,
anent
Stent
in
relation
to
the
Bridge
being
out
of
the
way
,
and
not
considered
as
a
probation
;
It
was
not
proven
,
that
the
Town
had
been
in
Possession
40.
Years
.
Nevertheless
,
The
plurality
of
the
Lords
did
Find
the
Alledgeance
foresaid
of
Possession
,
by
the
time
foresaid
,
not
proven
;
upon
that
ground
that
the
Bridge
was
not
to
be
considered
as
the
proper
concern
of
the
Town
:
And
did
suspend
and
declare
in
favours
of
Inches
and
other
Feuars
:
Diverse
of
the
saids
Lords
dissenting
upon
the
Grounds
foresaid
;
and
that
it
appears
to
them
,
that
the
Feuars
,
upon
the
account
of
their
Lands
,
were
Lyable
to
be
Stented
,
being
the
ancient
and
proper
Burgal
Patrimony
of
the
Town
:
And
albeit
a
continued
tract
of
Possession
by
the
space
of
40.
years
,
which
hardly
is
to
be
expected
in
servitutibus
,
or
impositions
that
are
discontinue
,
could
not
be
made
out
,
as
they
conceive
it
was
;
yet
the
Feuars
having
homologate
and
consented
,
and
submitted
to
the
said
Impositions
without
repineing
,
until
after
the
Year
1664.
That
they
did
not
so
much
question
the
Town
's
Right
to
impose
upon
them
the
said
Stents
,
as
the
exorbitancy
,
and
frequency
,
and
inequality
of
the
same
as
to
their
proportions
;
they
could
not
be
heard
now
to
plead
and
pretend
exemption
from
the
said
Stents
.
The
Lords
having
Found
as
said
is
,
That
the
Lands
of
Drakies
were
not
lyable
to
the
said
Stents
:
The
said
_____
Roberson
of
Inches
in
behalf
of
himself
and
some
other
Feuars
,
having
only
appeared
in
the
debate
,
and
Forbes
of
Colloden
,
who
thought
himself
concluded
by
the
above-written
Decreet
of
Suspension
,
and
has
consented
to
the
same
;
did
notwithstanding
desire
,
that
he
might
have
the
benefite
of
the
said
Interloquitor
,
and
that
the
parcel
of
Land
,
which
he
had
in
the
Forrest
of
Drakies
,
might
also
be
declared
free
of
Stents
;
seing
there
was
eadem
ratio
,
and
so
there
ought
to
be
idem
Jus
,
as
to
him
and
the
said
other
Feuars
.
It
was
Answered
for
the
Town
of
Innerness
,
That
he
could
not
be
heard
,
in
respect
of
the
said
Decreet
of
Suspension
in
foro
,
and
of
his
express
consent
therein
contained
.
Whereunto
it
being
Replyed
,
that
the
consent
was
only
as
to
the
individual
Stent
thereinquestioned
,
and
did
not
conclude
him
as
to
other
Stents
;
and
that
notwithstanding
thereof
,
it
being
now
Found
,
that
the
Forrest
of
Drakies
,
whereof
his
was
a
part
,
was
free
;
the
immunity
foresaid
could
not
be
denyed
to
him
.
It
was
Answered
,
and
the
said
dissenting
Lords
were
of
the
opinion
,
that
a
Decreet
in
foro
did
bind
him
whatever
others
could
pretend
:
And
it
was
evident
by
the
said
Decreet
,
that
it
was
then
the
Lords
meaning
(
Sir
John
Gilmour
a
person
of
great
Parts
and
Integrity
being
then
President
)
that
all
the
said
Lands
of
the
Forrest
of
Drakies
should
be
lyable
in
all
time
coming
;
and
his
consent
is
most
positive
and
express
to
the
Regulation
of
Stenting
as
to
the
future
:
And
the
said
Consent
being
premitted
to
the
whole
decerniture
of
the
said
Decreet
,
doth
influence
and
affect
all
the
Articles
and
Heads
of
the
same
,
unless
it
had
been
limited
and
special
as
to
an
or
moe
,
and
not
all
:
And
it
was
so
far
from
being
limited
to
the
Stent
then
in
question
,
that
there
is
a
Protestation
subjoined
to
the
decerniture
in
these
Terms
,
That
Colloden
and
the
Suspenders
doe
protest
,
that
they
should
not
be
lyable
to
such
Stents
as
should
be
imposed
,
for
maintaining
the
Plea
against
themselves
;
And
exceptio
&
protestatio
firmat
Regulam
&
Sententiam
in
non
exceptis
,
&
iis
,
contra
quae
non
emissa
est
protestatio
.
The
Lords
notwithstanding
Found
,
That
Colloden
should
be
free
of
Stents
,
as
to
such
Parcels
as
he
had
of
the
Lands
of
Drakies
.
Thereafter
the
Town
of
Innerness
did
alledge
,
that
the
Suspenders
ought
to
be
lyable
as
to
the
Milns
and
Fishings
,
that
they
held
in
Feu
of
the
Town
,
seing
they
are
undoubtedly
the
ancient
Patrimony
of
the
Town
:
and
they
offer
them
to
prove
,
that
they
have
been
in
use
,
past
memory
,
to
stent
the
same
with
the
Burgal
Lands
when
occasion
required
,
not
only
for
Taxations
,
imposed
by
Parliament
,
but
for
the
private
use
of
the
Town
.
It
was
Answered
,
That
the
said
Alledgance
was
not
now
competent
;
seing
the
Debate
,
whereupon
the
Interloquitor
proceeded
,
was
concerning
the
Suspenders
Feues
,
which
they
hold
of
the
Town
,
which
comprehend
both
Lands
,
Milns
,
and
Fishings
:
and
there
is
no
reason
of
difference
,
why
the
Milns
and
Fishings
should
be
in
an
other
case
than
the
Lands
.
It
was
Answered
for
the
Town
,
That
in
all
the
Debate
,
there
had
been
no
mention
of
Milns
and
Fishings
;
and
they
were
content
to
make
Faith
,
that
they
did
not
understand
the
Debate
to
be
concerning
the
Milns
and
Fishings
,
but
only
the
Lands
of
Drakies
;
And
if
they
had
thought
that
they
had
been
concerned
to
prove
their
Possession
as
to
the
Milns
and
Fishings
there
was
that
speciality
that
they
might
have
proven
more
clearly
their
Possession
,
as
to
the
Milns
and
Fishings
,
than
as
to
the
Lands
:
and
now
they
are
able
to
prove
the
same
.
Some
of
the
Lords
thought
,
That
the
Question
being
of
that
Importance
to
an
Incorporation
,
and
they
wanting
the
Assistance
of
their
most
able
Advocats
,
upon
the
occasion
abovementioned
;
and
the
exception
being
undoubtedly
relevant
to
inferr
their
Right
,
and
the
conclusion
of
their
Declarator
,
as
to
the
Milns
and
Fishings
,
that
they
should
be
lyable
to
be
stented
if
it
were
proven
;
It
were
hard
,
that
their
Right
should
be
taken
from
them
upon
a
quirck
,
and
pretence
of
Omission
,
being
upon
a
mistake
,
as
said
is
.
In
end
,
the
Plurality
of
the
Lords
did
Declare
,
by
their
Interloquitor
,
That
if
in
November
the
Town
should
be
able
to
make
appear
by
ancient
Records
,
that
they
had
been
in
Possession
of
stenting
the
Milns
and
Fishings
,
with
the
Tenements
of
the
Town
,
when
Impositions
and
Stents
were
laid
on
by
the
Town
only
(
and
not
by
the
Parliament
)
for
their
private
use
,
that
the
same
should
be
lyable
as
other
Burgal
Lands
.
D.
191.
Hamilton
contra
the
Earl
of
Kinghorn
.
11.
November
1674.
JAmes
Mauld
of
Melgum
,
having
assigned
to
James
Hamilton
two
Bonds
,
and
he
having
intimate
his
Assignation
to
the
E.
of
Kinghorn
granter
of
the
same
,
did
thereafter
write
to
the
said
Earl
,
shewing
him
that
he
had
use
for
the
Sums
contained
in
the
said
Bonds
;
and
that
he
desired
a
course
might
be
taken
to
pay
the
same
:
And
in
Answer
to
his
Letter
,
the
said
Earl
did
Write
and
subscribe
a
Postscript
upon
a
Letter
writen
to
him
by
the
said
James
Mauld
,
to
that
purpose
,
that
the
said
James
Mauld
had
assured
him
,
that
he
had
made
the
Assignation
foresaid
upon
assurance
that
my
Lord
should
not
be
troubled
to
pay
the
said
Debt
,
and
that
he
was
about
to
take
a
course
to
that
effect
:
but
that
notwithstanding
,
if
he
must
be
his
Debitor
,
he
should
take
a
course
to
pay
the
Annualrent
;
but
as
for
the
Principal
Sum
,
it
was
not
foreseen
by
him
,
that
he
should
be
put
to
pay
it
at
that
time
,
and
he
desired
forbearance
.
And
thereafter
being
charged
,
the
said
Earl
suspended
upon
that
reason
,
that
the
said
Bonds
were
granted
by
him
to
Melgum
for
the
price
of
Lands
Disponed
by
him
to
the
Earl
;
and
by
a
Back-bond
of
the
date
of
the
said
Bands
,
Melgum
was
obliged
to
Warrand
the
Rental
of
the
said
Lands
for
two
years
:
and
quatenus
the
Tennents
should
be
short
in
payment
of
their
duties
,
the
time
forsaid
,
he
should
pay
wherin
they
should
be
wanting
,
and
that
the
Earl
might
retain
in
the
first
end
of
the
foresaid
Sums
:
And
that
the
said
Earl
had
got
a
Decreet
against
the
Tennents
of
the
said
Lands
,
for
payment
of
the
Sums
therein
contained
;
and
therefor
that
he
had
ground
of
retention
and
compensation
upon
the
foresaid
Bond
granted
by
Melgum
effeirand
to
the
Sums
restand
by
the
said
Tennents
.
Whereunto
It
was
Answered
,
that
tho
Compensation
competent
against
the
Cedent
is
competent
against
the
Assigney
,
yet
where
there
is
not
only
an
Assignation
which
is
the
deed
of
the
Cedent
;
but
a
delegation
,
and
the
Debitor
doth
accept
and
consent
and
becomes
Debitor
,
as
in
this
case
,
as
appears
be
the
foresaid
Letter
written
to
the
charger
;
compensation
is
not
receivable
.
It
was
Replyed
for
the
Suspender
,
that
the
Letter
is
not
positive
that
the
Suspender
should
become
Debitor
,
but
only
in
these
terms
if
he
must
be
Debitor
to
the
charger
;
and
that
upon
the
matter
he
is
not
Debitor
to
him
,
in
so
far
as
he
has
a
ground
of
compensation
.
Whereunto
It
was
Answered
,
That
these
Words
,
If
he
should
be
Debitor
are
to
be
understood
only
,
in
Relation
to
the
Complement
and
Assurance
contained
in
Melgum's
Letter
,
viz.
If
he
should
not
take
course
himself
with
the
said
Debt
;
and
that
the
Letter
is
positive
,
that
the
Earl
should
pay
the
Annualrent
,
and
also
the
Principal
Sum
,
which
he
could
not
do
presently
:
and
if
the
Earl
had
intended
to
compense
,
he
should
have
told
the
Charger
,
that
he
had
a
Ground
of
Compensation
,
in
which
the
Charger
would
have
had
recourse
against
the
Cedent
,
and
would
not
have
relyed
upon
the
Suspenders
Letter
.
The
Lords
Found
the
Letters
orderly
proceeded
,
in
respect
of
the
said
Answer
and
Letter
.
D.
192.
Gordon
contra
Pitsligo
.
12.
Novemb.
1674.
MR.
Thomas
Gordon
and
his
Father
pursued
the
Lord
Pitsligo
,
upon
a
Promise
to
enter
them
to
certain
Lands
,
which
they
had
acquired
,
holden
of
him
.
It
was
Alledged
,
That
if
there
was
any
such
Promise
,
it
was
to
be
performed
in
write
,
by
a
Charter
to
be
granted
by
the
Defender
;
and
there
is
locus
Poenitentiae
until
the
Charter
be
subscribed
.
It
was
Answered
,
That
the
Promise
was
referred
to
the
Defenders
Oath
:
and
albeit
there
is
locus
poenitentiae
in
Synalagmis
,
and
Contracts
;
yet
where
there
is
a
positive
Promise
to
give
or
do
any
thing
,
the
same
being
verified
,
ought
to
be
fulfilled
;
and
there
is
no
locus
poenitentiae
upon
pretence
that
it
should
be
fulfilled
in
Write
.
The
Lords
repelled
the
Alledgance
,
in
respect
of
the
Answer
foresaid
.
Monro
Clerk
.
Newbyth
Reporter
.
D.
193.
Paton
contra
Ardoch
.
eod.
die
.
WIlliam
Paton
Son
to
the
deceast
Dr.
Paton
,
pursued
Stirling
,
and
Sir
Harie
Stirling
of
Ardoch
,
as
representing
his
Father
,
for
Implement
of
a
Write
,
granted
by
his
Father
on
Death-bed
;
whereby
he
was
obliged
to
denude
himself
of
the
Lands
of
Panholls
,
being
satisfyed
of
such
Sums
of
Money
as
should
be
found
to
be
due
to
him
by
the
said
William
and
his
Father
,
after
Compt
and
Reckoning
.
It
was
Alledged
for
the
Defender
,
That
his
Father
had
acquired
a
Right
to
the
said
Lands
,
from
the
said
Dr.
Paton
,
being
his
Brother
in
Law
,
having
maryed
the
said
Sir
Henrie's
Sister
,
upon
a
Back-bond
,
containing
a
Reversion
in
favours
of
the
said
William
,
the
said
Sir
Harie's
Nevoy
:
and
that
thereafter
the
said
William
being
Major
,
had
discharged
the
Reversion
;
so
that
the
Defunct
,
and
now
his
Heir
has
an
irredeemable
Right
to
the
said
Lands
:
and
that
the
same
pretended
Deed
on
Death-bed
,
could
not
take
away
the
same
.
It
was
Replyed
,
That
the
Defunct
on
Death-bed
did
,
and
might
exoner
his
Conscience
,
by
a
Declaration
,
that
the
Discharge
of
the
Reversion
was
on
Trust
:
And
there
were
other
Adminicles
and
Presumptions
concurring
,
to
evince
that
it
was
a
Trust
;
viz.
The
near
Relation
of
the
Parties
;
the
Defunct
being
the
Pursuers
Uncle
,
and
that
the
Bonds
granted
by
the
Doctor
,
either
to
the
Defunct
himself
,
or
to
other
Persons
from
whom
Ardoch
had
Right
,
were
not
retired
;
which
would
have
been
,
if
the
Right
in
Ardoch's
Person
had
not
been
on
Trust
:
It
being
against
Reason
,
that
Ardoch
should
have
both
Right
to
the
Lands
,
and
to
the
Debts
,
for
which
the
said
Right
was
granted
.
It
was
Duplyed
,
That
the
Defender
being
an
Infant
,
neither
doth
,
nor
is
obliged
to
know
what
was
betwixt
his
Father
and
the
Pursuer
,
unless
there
were
a
Write
to
clear
the
same
;
and
his
irredeemable
Right
by
the
Discharge
of
the
Reversion
,
cannot
be
taken
away
by
Presumptions
:
and
that
a
Write
on
Death-bed
,
upon
what
pretence
soever
,
cannot
prejudge
the
Heir
:
And
it
cannot
be
thought
,
but
that
if
a
Trust
had
been
intended
,
the
Pursuer
would
have
taken
a
Back-bond
as
he
had
done
formerly
;
and
the
Defenders
Father
might
have
given
a
Discharge
of
the
said
Bonds
as
to
personal
Execution
.
The
Lords
Found
,
That
the
Trust
was
not
proven
:
and
that
the
Declaration
on
Death-bed
could
not
prejudge
the
Heir
.
Thereafter
it
was
urged
for
the
Pursuer
,
That
at
least
he
should
have
Action
against
the
Defenders
as
Executors
,
for
affecting
the
moveable
Estate
belonging
to
the
Defunct
,
and
in
Implement
of
the
said
Write
,
at
least
in
subsidium
,
as
to
Damnage
and
Interest
.
Upon
a
Debate
amongst
the
Lords
themselves
,
It
was
urged
,
That
the
said
Writ
,
being
in
effect
a
Reversion
,
was
only
prestable
by
the
Heir
,
who
only
could
denude
himself
of
the
Right
of
the
said
Lands
:
And
persons
on
Death-bed
,
ipso
momento
that
they
become
Sick
,
they
lose
their
legitima
potestas
,
either
as
to
prejudging
their
Heirs
,
or
their
Bairns
and
Relicts
:
And
they
cannot
dispose
of
their
Deads
Part
,
but
by
a
Nomination
,
or
Legacy
,
and
a
Reversion
could
not
be
given
,
by
way
of
Legacy
.
The
Lords
Found
,
That
the
said
Write
could
not
affect
the
Executry
.
Gibson
Clerk
.
D.
194.
The
Executors
of
the
late
Bishop
of
Edinburgh
contra
the
present
Bishop
.
eod.
die
.
THE
Executors
of
the
late
Bishop
of
Edinburgh
,
Pursued
the
Commissars
and
Procurator
Fiscal
,
and
the
now
Bishop
of
Edinburgh
for
the
Quots
of
Testaments
,
that
were
either
confirmed
,
or
had
fallen
by
the
decease
of
Defunct
persons
;
and
were
confirmable
before
the
said
late
Bishops
Death
,
and
fell
under
his
Executry
:
And
also
for
the
Quots
of
all
Testaments
confirmed
,
or
confirmable
for
the
half
year
,
after
the
said
Bishops
decease
,
and
falling
under
the
Ann.
The
Lords
Found
,
That
the
Quots
of
Testaments
,
that
were
not
confirmed
,
did
neither
fall
under
the
Bishops
Executry
,
nor
the
Ann
;
But
only
the
Quots
of
such
Testaments
as
were
confirmed
,
either
in
the
Bishops
Lifetime
,
or
during
the
Ann:
Upon
these
Grounds
,
which
were
debated
at
the
Bar
,
but
more
at
length
among
the
Lords
themselves
;
viz.
1.
The
Quots
of
Testaments
do
not
belong
to
Bishops
,
as
having
a
share
and
interest
in
the
Moveable
Estates
of
Defunct
Persons
after
their
decease
;
which
are
only
divided
betwixt
their
Executors
,
and
Bairns
,
and
Relict
;
but
the
said
Quots
,
are
in
effect
Sentence
,
or
Confirmation
Silver
,
which
is
given
to
the
Bishops
upon
that
account
and
consideration
,
That
by
their
Sentence
or
Confirmation
(
which
is
instar
Sententiae
being
actus
voluntariae
jurisdictionis
)
The
Defuncts
Estate
is
secured
to
be
forth-coming
to
all
persons
concerned
,
both
Creditors
,
Relict
,
Bairns
and
others
:
And
therefore
,
until
that
be
done
,
there
is
no
Quot
,
nor
confirmation-silver
due
.
2.
The
Lords
of
Session
had
,
by
Act
of
Parliament
,
as
a
part
of
their
Sallary
,
Sentence-Silver
,
viz.
Twelve
pennies
of
the
pound
,
until
the
same
was
taken
from
them
by
Act
of
Parliament
their
Sallary
being
enlarged
,
and
settled
upon
them
otherwayes
:
And
,
if
during
the
time
,
the
said
Lords
had
their
Sentence
Silver
,
any
of
them
had
deceased
before
Sentence
,
tho
the
Process
had
been
commenced
and
advanced
beyond
Litiscontestation
;
it
cannot
be
said
,
that
the
Executors
,
of
a
Lord
deceasing
before
the
Sentence
,
could
claim
any
part
of
the
Sentence
Money
,
where
the
Sentence
is
pronounced
after
his
decease
.
3.
By
the
28.
Act
of
his
Majesties
Parl.
1661.
the
Quots
of
Testaments
are
discharged
;
and
yet
the
Bishops
being
restored
to
the
Right
of
Quots
,
the
same
will
be
due
for
any
Testament
confirmed
thereafter
,
notwithstanding
of
the
said
Act
of
Parliament
;
whereas
,
if
Quots
were
due
from
the
time
they
became
confirmable
,
they
could
not
be
claimed
,
tho
confirmed
,
since
the
Bishops
were
restored
as
said
is
,
to
their
Quots
,
as
being
discharged
by
the
said
Act
of
Parliament
.
The
Lords
did
also
Find
,
That
the
Bishops
Relict
and
nearest
of
Kin
had
Right
to
an
Ann
,
even
before
the
late
Act
of
Parliament
(
being
the
13.
Act
of
the
3.
Session
of
His
Majesties
second
Parliament
,
concerning
the
Ann
,
due
to
the
Executors
of
Bishops
and
Ministers
)
In
respect
by
a
Letter
of
His
Majesties
Grand-father
in
anno
1613.
and
Act
of
the
Bishops
thereupon
,
an
Ann
was
Found
to
be
due
to
the
nearest
of
Kin
of
Bishops
:
But
in
regard
by
the
said
Letter
and
Custom
,
before
the
said
late
Act
of
Parliament
,
the
Ann
in
relation
to
Bishops
,
was
,
if
the
Bishop
deceased
before
Michaelmass
,
after
the
Moneth
of
_____
his
Executors
had
the
half
of
that
year
,
as
belonging
to
the
Bishops
Incumbent
Jure
proprio
;
and
the
half
of
the
next
year
as
Ann
;
the
half
of
the
Rent
of
his
Benefice
for
the
half
year
preceeding
Michaelmass
,
the
other
half
being
due
to
him
as
Incumbent
,
and
fallen
under
his
Executry
:
Whereas
by
the
late
Act
,
the
said
Ann
is
so
ordered
,
that
the
Bishop
or
Minister
surviveing
White-sunday
,
the
half
of
that
year
does
belong
to
him
and
his
Executors
upon
account
of
his
Incumbency
;
and
the
other
half
for
the
Ann:
And
the
Incumbent
surviving
Michaelmass
,
he
is
to
have
the
whole
Year
as
Incumbent
,
and
the
half
of
the
next
year
is
to
be
Ann:
Therefore
the
Lords
Found
,
That
the
late
Bishop
having
deceased
before
Michaelmass
,
and
before
the
said
late
Act
of
Parliament
,
the
Ann
should
be
as
it
was
formerly
.
In
the
same
Process
,
It
was
debated
among
the
Lords
more
fully
than
at
the
Bar
,
whether
the
Quots
of
Testaments
should
fall
under
the
Ann
?
And
it
was
urged
by
some
,
that
the
Quots
of
Testaments
are
but
casual
Obventions
;
and
that
they
are
due
as
said
is
,
upon
the
account
foresaid
.
viz.
That
Testaments
are
confirmed
by
the
Bishop
,
or
his
Officials
,
and
ratione
operae
,
and
as
Sentence-Silver
;
so
that
they
cannot
be
due
,
but
to
the
present
Incumbent
,
who
does
a
duty
;
and
that
Compositions
for
entering
of
Vasals
and
Liferent
Escheats
and
Non-entrys
,
and
such
like
casualities
do
not
fall
under
Ann.
Whereunto
It
was
Answered
,
That
by
the
Kings
Letter
,
by
the
Act
of
Parliament
,
and
by
the
Canon
Law
,
the
half
of
the
Rent
of
the
Benefice
,
Stipend
,
and
Living
fall
under
the
Ann
;
and
the
Quots
of
Testaments
are
a
considerable
part
of
the
Bishops
Rent
,
especially
in
Edinburgh
;
and
undoubtedly
is
a
part
of
his
Living
and
Benefice
:
And
the
Rent
of
Milns
which
is
casual
,
and
depends
,
where
there
is
no
astriction
,
upon
the
arbitrary
will
of
Parties
to
come
,
or
not
to
come
to
the
same
,
and
is
likewayes
due
ratione
operae
;
doth
fall
under
Ann:
As
also
the
Rent
of
Fishings
,
and
such
like
which
are
casual
:
And
there
is
a
great
difference
betwixt
Quots
,
which
is
an
ordinary
yearly
Rent
,
and
cannot
fail
so
,
but
there
will
be
still
Testaments
confirmed
;
and
the
casualities
of
Superiority
as
Liferents
&c.
which
are
so
uncertain
;
as
that
it
cannot
be
said
,
they
are
the
Bishops
Living
:
And
the
Argument
,
that
Quots
are
due
ratione
operae
,
and
by
reason
of
actual
confirmation
,
which
cannot
be
due
by
the
Executors
or
Relict
,
is
of
no
weight
;
seing
the
other
constant
Rent
of
Stipends
and
Benefices
is
due
ratione
operae
,
and
because
the
Bishop
or
Minister
serveth
,
which
is
not
prestable
by
Executors
or
Relicts
.
The
Lords
,
notwithstanding
,
enclined
to
Find
,
That
the
Quots
do
not
fall
under
the
Ann:
but
upon
the
motion
of
some
of
their
Number
,
that
the
Interloquitor
,
being
to
be
a
preparative
,
should
be
further
considered
,
they
thought
fit
not
to
proceed
to
the
Voting
.
Gibson
Clerk
.
Forret
Reporter
.
D.
195.
Craig
contra
Edger
.
20.
Novemb.
1674.
THE
Lords
Found
,
That
a
Bond
bearing
Annualrent
,
being
Assigned
by
a
Woman
,
to
her
former
Husband
by
her
Contract
of
Marriage
;
and
the
Assignation
not
being
intimate
,
a
Retrocession
did
settle
again
the
Right
of
the
said
Bond
in
the
Person
of
the
Wife
;
Quia
unumquodque
dissolvitur
,
eo
modo
quo
contrahitur
:
And
the
said
Bond
being
thereafter
assigned
in
favours
of
the
second
Husband
,
he
and
his
Executors
had
Right
to
the
same
;
and
that
it
was
not
in
bonis
of
the
first
Husband
,
though
the
Retrocession
was
not
intimate
until
after
his
decease
.
Lord
Glendoick
Reporter
.
Mr.
John
Hay
Clerk
.
D.
196.
Thoirs
contra
Tolquhon
.
eod.
die
.
MR.
David
Thoirs
,
in
an
Improbation
at
his
Instance
,
against
Tolquhon
,
of
a
Bond
,
did
crave
Certification
,
because
the
Principal
was
not
produced
,
but
an
Extract
out
of
the
Commissars
Books
of
Aberdeen
.
The
Lords
,
upon
a
Report
,
having
debated
amongst
themselves
,
what
was
fit
to
be
done
in
the
said
Case
,
seing
it
appeared
that
the
said
Pursuite
was
intented
,
not
of
design
to
question
the
Bond
,
upon
evident
and
probable
Grounds
of
Falsehood
,
but
only
to
have
it
produced
;
and
it
appeared
by
many
Presumptions
,
that
the
Bond
was
a
true
Deed
,
and
never
questioned
by
the
granter
ex
capite
falsi
,
tho
he
had
suspended
upon
other
Reasons
;
And
there
had
been
much
diligence
by
Decreets
,
Horning
and
Comprysing
upon
the
same
;
and
yet
the
Bond
being
of
an
ancient
Date
,
beyond
40
years
,
there
was
no
person
living
that
could
prove
the
Tenor
thereof
,
and
declare
that
they
knew
the
same
to
be
a
true
Deed
:
And
on
the
other
part
,
the
Lords
could
not
refuse
to
grant
Certification
,
seing
an
Extract
does
not
satisfy
in
an
Improbation
,
where
the
Principal
was
not
produced
.
It
was
moved
by
some
of
the
Lords
,
That
if
the
Pursuite
was
not
intented
within
the
years
of
Prescription
,
that
it
should
not
be
sustained
;
seing
albeit
causa
falsi
doth
not
prescrive
,
where
the
Paper
or
Subject
craved
to
be
improven
is
produced
;
and
the
Pursuer
offers
to
improve
and
make
it
appear
that
the
same
is
false
;
yet
when
the
Improbation
is
only
to
try
the
condition
of
the
Defenders
Right
,
and
in
order
to
a
Certification
,
if
the
Principal
cannot
be
exhibit
,
it
is
not
properly
causa
falsi
:
And
the
effect
of
the
Certification
is
only
that
the
Write
for
not
production
should
be
holden
as
false
praesumptive
,
and
fictione
Juris
:
And
upon
the
matter
it
is
but
a
Reduction
for
not
Production
.
The
said
Point
being
of
great
Concernment
,
and
the
Debate
being
upon
a
Bill
,
and
the
Process
not
produced
,
that
it
might
appear
whether
it
was
intented
within
the
40
years
or
not
,
it
was
not
decided
.
D.
197.
Cranston
contra
Brown
.
21.
Novemb.
1674.
A
Testator
having
left
by
Testament
a
Sum
of
Money
,
due
upon
an
Heretable
Surety
;
and
having
named
his
Sister
as
Executor
and
universal
Legator
,
she
was
pursued
for
payment
of
the
said
Legacy
;
at
the
least
,
that
being
likeways
Heir
,
she
should
denude
her self
of
the
Right
of
the
said
Sum.
It
was
Alledged
for
her
,
That
the
Subject
being
Heretable
,
the
Defunct
could
not
bequeath
the
same
in
Testament
.
It
was
Replyed
,
That
when
res
aliena
is
left
in
Legacy
,
the
Executor
in
Law
tenetur
luere
,
and
ought
to
redeem
the
same
,
or
pay
the
value
;
and
multo
magis
in
this
case
,
the
Testator
having
in
effect
left
res
sua
,
though
upon
the
matter
res
aliena
as
to
the
power
of
disposing
of
the
same
on
Death-bed
,
or
by
Testament
:
And
therefore
the
Executrix
,
if
she
be
Heir
,
(
as
she
is
in
this
Case
)
ought
to
give
the
same
:
and
if
she
were
not
Heir
,
ought
to
redeem
the
same
,
as
said
is
.
The
Lords
,
upon
the
debate
amongst
themselves
,
considered
,
that
in
Law
,
legatum
rei
alienae
is
effectual
if
the
Testator
sciebat
rem
alienam
;
whereas
si
nesciebat
,
it
is
to
be
persumed
he
would
not
have
left
that
which
was
not
his
own
;
and
tho
the
Testator
upon
mistake
was
ignorant
that
it
was
res
aliena
,
yet
if
the
Legator
was
of
so
near
Relation
that
it
was
probable
he
should
have
left
the
legacie
,
at
least
the
value
,
if
he
had
knowen
it
was
res
aliena
,
the
Legacy
was
effectual
:
And
that
in
the
case
in
question
,
the
Legator
was
the
Defuncts
Nevoy
by
his
Brother
,
and
the
Sum
that
was
left
was
his
own
,
tho
Heretable
as
said
is
;
and
the
Testator
either
knew
that
he
could
not
dispose
of
the
same
being
Heretable
,
and
was
presumed
and
obliged
to
know
the
Law
;
and
if
he
was
ignorant
in
point
of
Law
,
ignorantia
Juris
nocet
:
and
therefore
the
Lords
inclined
to
sustain
the
Legacy
.
But
one
of
their
Number
having
desired
,
that
the
Decision
might
be
delayed
while
the
next
day
,
that
he
might
have
his
thoughts
upon
the
Case
,
the
same
was
delayed
.
Strathurd
Reporter
.
Mr.
John
Hay
Clerk
.
D.
198.
Pilton
contra
the
Creditors
of
the
Lord
Sinclair
.
30.
November
1674.
THE
deceast
Lord
Sinclair
,
having
maryed
his
Daughter
with
John
Sinclair
younger
of
Hermiston
,
did
dispone
to
him
his
Estate
,
with
the
Burden
of
his
own
proper
Debts
,
mentioned
in
the
Right
;
and
took
a
Bond
for
an
Annuity
of
8000
merks
,
first
in
the
name
of
John
Watt
,
and
thereafter
the
said
Bond
being
given
back
,
he
did
take
another
Bond
,
for
the
said
Annuity
during
his
Lifetime
,
in
the
Name
of
George
Cockburn
of
Pilton
:
Whereupon
the
said
George
did
diligence
by
Comprysing
and
otherways
,
against
the
said
John
Sinclair
of
Herdmanston
;
and
did
also
take
the
said
John
Sinclair's
Liferent
Escheat
.
And
upon
the
Grounds
foresaid
,
and
a
Suspension
of
double
Poinding
against
him
,
diverse
Creditors
of
the
Lord
Sinclair
did
question
Pilton's
Interest
upon
the
foresaid
Bond
,
as
being
fraudulent
,
and
a
contrivance
to
frustrate
Creditors
,
and
to
secure
so
considerable
an
Interest
for
the
use
of
the
Debitor
,
contrare
to
the
Act
of
Parliament
,
1621.
The
Lords
,
notwithstanding
,
preferred
the
said
George
Cockburn
,
as
having
Right
to
the
Duties
of
Herdmanston's
Estate
,
by
vertue
of
the
said
Gift
of
Escheat
;
reserving
to
the
Creditors
their
Declarator
of
Trust
,
or
Reduction
upon
the
said
Act
of
Parliament
:
And
accordingly
the
whole
Estate
of
Herdmanston
being
set
in
Tack
thereafter
,
the
Tack-duty
is
payable
to
Pilton
,
and
the
other
Creditors
in
order
,
conform
to
the
said
Decreet
.
The
Tacks-men
being
charged
at
the
instance
of
Pilton
,
Did
Suspend
upon
double
poinding
,
pretending
they
were
troubled
by
other
Creditors
of
the
Lord
Sinclair
:
And
the
said
Creditors
compearing
,
did
alledge
,
that
they
ought
to
be
preferred
to
Pilton
,
in
respect
his
interest
ab
initio
by
the
said
Bond
for
the
Annuity
foresaid
of
8000
Merks
,
was
a
fraudulent
contrivance
,
in
prejudice
of
the
Lord
Sinclair's
Creditors
;
that
the
foresaid
Annuity
might
be
secured
to
him
in
the
Person
of
Pilton
his
Friend
and
Relation
;
and
thereupon
might
live
plentifully
,
his
Creditors
being
defrauded
,
and
suffering
in
the
mean
time
:
And
that
the
Gift
of
Escheat
of
Herdmanstons's
Liferent
,
being
granted
intuitu
,
and
upon
account
of
the
said
interest
;
laborat
eodem
vitio
,
and
was
in
effect
to
the
behoof
of
the
Lord
Sinclair
.
It
was
Answered
for
Pilton
,
That
tho
the
said
Bond
was
granted
to
him
,
without
an
Onerous
Cause
;
yet
intuitu
of
the
same
,
and
thinking
that
he
was
thereby
secured
,
he
had
bona
fide
alimented
my
Lord
Sinclair
,
and
had
payed
to
himself
,
and
had
engaged
to
others
for
him
,
to
pay
diverse
Sums
of
Money
,
before
any
interruption
made
by
the
Creditors
;
So
that
before
any
Diligence
done
by
them
,
his
Right
became
Onerous
,
and
the
Gift
of
Escheat
of
Herdmanston's
Estate
was
taken
by
him
,
to
secure
himself
as
to
his
relief
:
And
that
the
King
and
Exchequer
did
,
and
might
give
the
said
Gift
to
him
upon
the
consideration
foresaid
;
and
thereupon
,
in
the
former
Decreet
of
multiple
poinding
,
he
was
preferred
to
all
other
Creditors
:
And
that
his
Majesty
had
also
gifted
the
Liferent
Escheat
of
the
said
Lord
Sinclair
,
to
Mr.
George
Gibson
,
upon
a
Back-bond
,
that
thereby
he
and
the
other
Creditors
thereinmentioned
being
satisfied
,
the
superplus
and
benefite
of
the
said
Escheat
should
be
applyed
for
the
Aliment
of
the
said
Lord
Sinclair
:
And
therefore
,
tho
Pilton
should
not
have
Right
as
he
had
to
the
said
Tack-duty
,
the
foresaid
Annuity
and
Gift
of
Escheat
of
Herdmanston's
Liferent
would
accrue
to
Mr.
George
Gibson
Donator
,
to
the
uses
foresaid
;
and
fall
under
his
Gift
.
It
was
Answered
for
the
Creditors
,
That
they
were
content
the
Lords
should
modify
an
Aliment
for
the
Lord
Sinclair
:
And
that
Pilton's
interest
should
be
sustained
effeirand
thereto
;
the
Superplus
being
applyed
,
as
it
ought
to
be
,
for
their
satisfaction
.
The
Lords
,
for
the
most
part
enclined
to
Find
,
that
George
Cockburn's
Right
to
the
said
Annuity
was
Onerous
,
In
sua
far
as
he
could
instruct
,
that
he
had
payed
to
,
or
for
the
use
of
my
Lord
Sinclair
,
any
Sums
of
Money
before
the
Creditors
Diligence
.
Yet
some
were
of
the
opinion
,
That
the
Laird
of
Hermanston
having
Married
my
Lord
Sinclair's
Daughter
,
and
having
given
the
said
Bond
for
the
Annuity
,
dureing
my
Lord
Sinclair's
Lifetime
,
was
a
down-right
contrivance
,
contrare
to
the
Act
of
Parliament
1621.
to
the
end
that
the
Right
to
the
said
Annuity
,
which
if
it
had
been
taken
in
the
person
of
my
Lord
Sinclair
himself
would
have
been
lyable
to
his
Creditors
,
might
be
so
conveyed
in
the
person
of
another
,
that
it
should
not
be
lyable
to
the
said
Lord
Sinclair's
Debts
;
and
being
ab
initio
fraudulent
,
it
continued
still
:
And
Pilton's
applying
any
part
of
the
same
,
for
the
use
of
my
Lord
Sinclair
,
was
so
far
from
purgeing
the
Fraud
,
that
by
the
Act
of
Parliament
,
it
was
a
clear
evidence
and
probation
of
the
same
.
And
yet
they
thought
,
That
Pilton
having
out
of
respect
to
his
Friend
lent
his
name
inconsideratly
,
he
might
thereafter
for
his
security
take
,
and
the
Exchequer
might
give
Herdmanston's
Liferent
Escheat
,
upon
the
account
foresaid
;
and
the
same
cannot
be
thought
to
be
to
the
behoof
of
my
Lord
Sinclair
,
unless
it
had
been
either
procured
by
my
Lord
Sinclair
,
or
granted
expresly
for
his
use
:
And
as
to
my
Lord
Sinclair's
own
Liferent
,
His
Majesty
and
Exchequer
might
qualify
the
Gift
as
they
they
thought
fit
;
and
His
Majesty
might
have
been
concerned
upon
many
considerations
,
that
my
Lord
Sinclair
should
not
want
an
Aliment
;
and
might
either
have
detained
his
Liferent
in
his
own
hands
,
in
order
to
his
Aliment
,
or
given
the
same
sub
modo
,
and
with
the
Burden
thereof
:
And
the
said
Gift
was
given
as
to
the
Superplus
foresaid
,
for
the
Lord
Sinclair's
Aliment
,
not
to
be
modifyed
by
any
other
,
but
by
the
Exchequer
,
and
at
their
sight
and
direction
,
as
the
said
Gift
bears
.
Upon
the
Grounds
foresaid
the
Lords
did
prefer
Pilton
conform
to
the
former
Decreet
.
Sir
David
Falconer
and
others
for
the
Creditors
alteri
Dalrymple
.
D.
199.
Auchintoul
contra
Innes
.
10.
Decem.
1674.
THE
Lords
Found
,
That
a
person
being
pursued
as
representing
his
Father
or
other
Predecessors
,
and
denying
the
passive
Titles
,
the
same
ought
to
be
proven
;
and
that
the
Defender
,
by
proponing
a
Defence
in
Jure
,
as
in
the
case
in
question
,
that
Annuities
were
discharged
by
the
late
Proclamation
,
does
not
confess
the
passive
Titles
:
But
if
he
should
propone
a
defence
founded
upon
a
Right
in
the
person
of
his
Predecessor
,
it
would
conclude
him
;
so
that
he
could
not
pretend
that
the
passive
Titles
should
be
proven
.
Newbyth
Reporter
.
Vide
20.
January
1675.
Carfrae
contra
Talzifer
.
D.
200.
Stuart
contra
McDuff
.
11.
Decem.
1674.
IN
a
pursuit
for
payment
of
a
Sum
of
Money
,
It
being
Alledged
,
That
the
Pursuer
had
intrometted
with
Moveables
and
Goods
,
to
the
value
of
the
Debt
Lybelled
pertaining
to
the
Defenders
Father
,
for
whose
Debt
he
was
pursued
;
and
that
it
was
to
be
presumed
,
that
he
had
got
the
saids
Goods
in
satisfaction
of
the
same
Debt
,
unless
he
should
alledge
and
prove
an
other
Cause
.
The
Lords
Found
,
That
if
the
Defence
should
be
proponed
in
these
Terms
,
that
the
Pursuer
had
got
the
saids
Goods
in
satisfaction
,
and
that
they
were
data
in
solutum
;
the
Defence
ought
to
be
positive
,
and
that
the
delivery
of
the
Goods
was
probable
by
Witnesses
;
but
the
quality
foresaid
could
not
be
proven
otherwayes
,
but
by
the
Pursuers
Oath
:
But
if
the
Exception
was
proponed
,
so
as
to
infer
compensation
,
viz.
That
the
Pursuer
had
Intrometted
with
the
saids
Goods
to
the
value
of
the
Debt
;
that
it
ought
to
be
verifyed
instanter
by
Write
or
Oath
.
Castlehil
Reporter
.
Hamilton
Clerk
.
D.
201.
Home
and
Elphingston
contra
Murray
of
Stenhop
.
eod.
die
.
IN
a
Competition
betwixt
an
Assigney
and
an
Arrester
;
It
was
Alledged
,
That
the
Assigney
should
be
preferred
,
because
the
Assignation
was
anterior
to
the
Arrestment
;
and
tho
it
was
not
intimate
,
yet
the
equivalent
was
done
,
in
sua
far
as
,
the
Debitor
being
desired
to
make
payment
to
the
Assigney
,
and
shewing
his
Assignation
,
did
promise
to
pay
the
same
,
which
upon
the
Matter
,
was
like
a
Bond
of
Corroboration
,
which
certainly
would
prefer
the
Assigney
,
notwithstanding
he
had
not
intimate
his
Assignation
.
The
Lords
Found
,
That
if
the
said
Promise
were
verifyed
by
Writ
,
it
should
exclude
the
Arrester
;
but
that
it
could
not
be
proven
by
the
Debitors
Oath
,
in
prejudice
of
the
Arrester
:
And
even
as
to
the
Debitor
,
the
said
promise
could
not
bind
him
,
being
made
in
contemplation
of
a
Right
supposed
to
be
in
the
person
of
the
Assigney
;
Which
being
Found
,
not
to
be
a
valid
Right
,
there
were
no
reason
that
the
Debitor
should
pay
twice
.
And
whereas
it
was
pretended
,
That
if
the
Debitor
had
not
accepted
the
Debt
,
and
promised
payment
,
the
Assigney
would
have
done
Diligence
,
so
that
he
would
have
been
preferable
to
the
Arrester
;
The
Lords
thought
,
that
sibi
imputet
that
he
had
not
perfited
his
Right
,
as
was
Found
before
in
the
case
of
Pitfoddels
contra
Donaldson
.
Forret
Reporter
,
Gibson
Clerk
.
D.
202.
Moubray
contra
Arbuthnet
.
12.
Decem.
1674.
IN
a
Process
for
the
single
avail
of
a
Marriage
;
The
Lords
modifyed
9000
Merks
,
the
Rent
of
the
Lands
being
proven
to
be
3000
Merks
:
and
it
was
thought
,
that
the
avail
of
the
Marriage
should
be
in
all
cases
of
that
nature
,
3.
Years
Rent
.
D.
203.
Lord
Balmerinoch
contra
The
Tennents
of
Northberwick
.
13.
Decemb.
1674.
THE
deceast
Sir
William
Dick
having
charged
the
Lord
Balmerinoch
for
payment
of
a
great
Sum
of
Money
due
by
a
Bond
,
granted
by
his
Father
,
and
diverse
other
Noblemen
,
who
were
Actors
in
the
late
times
;
and
did
borrow
the
said
Sums
for
the
use
of
the
publick
(
as
they
called
it
)
and
the
said
Lord
Balmerinoch
having
Suspended
upon
diverse
Reasons
,
and
also
upon
a
Reason
of
Compensation
Founded
upon
a
Bond
granted
by
the
said
Sir
William
to
Sir
John
Smith
;
whereupon
the
said
Sir
John
had
a
Right
to
the
Lands
of
Northberwick
;
and
had
Assigned
and
Disponed
the
said
Debt
and
Right
in
favours
of
the
Lord
Balmerinoch
,
by
a
Disposition
and
Assignation
Blank
in
the
name
of
the
Assigney
;
and
no
Decreet
being
Extracted
upon
the
said
Process
;
and
the
Act
of
Parliament
anent
publick
Debts
,
that
no
Execution
should
be
for
the
same
,
having
interveened
;
The
Lord
Balmerinoch
having
filled
up
the
said
Assignation
,
in
the
name
of
James
Gilmour
,
did
intent
in
his
Name
,
a
Process
for
Mails
and
Duties
,
against
the
Tennents
of
Northberwick
.
The
Creditors
of
the
said
Sir
William
Dick
pretending
Right
to
the
said
Lands
by
diverse
Infeftments
,
did
compear
in
the
said
Process
,
and
alledged
,
that
the
said
Right
,
whereupon
the
pursuite
was
Founded
,
was
extinct
and
satisfied
,
In
sua
far
as
,
the
said
Lord
Balmerinoch
had
Founded
a
Reason
of
Compensation
upon
the
same
,
against
Sir
William
Dick
,
which
was
sustained
;
and
whereupon
there
was
a
Minut
of
a
Decreet
Suspending
the
Letters
against
Sir
William
Dick
for
the
Debt
above-mentioned
:
And
that
the
said
Assignation
granted
by
Sir
John
Smith
had
been
given
up
to
Sir
William
Dick
,
or
his
Son
Sir
Andrew
,
as
their
Evident
;
for
Exonering
the
said
Sir
William
of
the
Debt
compensed
upon
.
It
was
Answered
,
That
there
was
no
Decreet
in
that
Process
of
Suspension
,
against
Sir
William
Dick
:
And
as
to
the
said
pretended
Minute
it
was
not
produced
:
And
whereas
it
was
desired
,
that
William
Dounie
,
who
was
Clerk
for
the
time
,
should
be
examined
upon
Oath
concerning
the
said
Minut
;
and
the
giving
up
the
said
Assignation
to
Sir
William
Dick
or
his
Sons
;
It
was
urged
,
that
the
Minutes
and
Acts
of
Process
could
not
be
made
up
by
Witnesses
,
Et
non
creditur
Clerico
nisi
quatenus
constat
ex
Actis
.
And
2.
That
there
neither
was
,
nor
could
be
a
Decreet
in
the
said
Process
,
In
respect
,
the
said
Suspension
was
upon
other
reasons
that
were
Relevant
;
and
compensation
being
in
effect
satisfaction
,
and
the
last
exception
,
the
said
Reasons
ought
to
have
been
first
discust
.
viz.
That
there
were
diverse
Arrestments
at
the
instance
of
Creditors
,
which
should
have
been
purged
;
and
that
Sir
William
had
Assigned
the
Debt
whereupon
he
had
charged
,
and
the
Assignation
was
intimate
;
So
that
the
Suspender
could
not
be
in
tuto
to
pay
;
unless
the
consent
of
the
Assigney
were
obtained
,
and
that
the
said
Sir
William
was
at
the
Horn
and
his
Escheat
gifted
,
and
that
the
Donator
did
not
concur
nor
consent
.
3.
Tho'
there
could
have
been
a
Decreet
,
and
the
Arrestments
had
been
purged
,
and
the
Assigney
and
Donator
consented
;
yet
the
samen
not
being
Extracted
,
the
Suspender
might
pass
from
his
Reason
of
compensation
,
seing
res
was
integra
before
Extracting
;
and
the
Suspender
may
eike
and
verify
any
other
reason
that
is
emergent
:
And
there
had
arisen
a
most
relevant
Reason
and
Defence
to
him
upon
the
said
Act
of
Parliament
anent
publick
Debts
;
of
which
he
ought
to
have
,
and
may
plead
the
benefite
,
in
regard
Acts
of
Litiscontestation
and
Decreets
are
Judicial
Transactions
and
Contracts
:
and
as
in
other
Contracts
there
is
locus
poenitentiae
before
they
be
perfited
in
Write
,
so
in
Acts
and
Decreets
,
before
they
be
Extracted
,
Parties
are
not
concluded
:
as
verb.
g.
even
after
Litiscontestation
before
the
same
be
Extracted
,
a
Defence
may
be
proponed
;
and
in
Declarators
concerning
Clauses
irritant
,
tho
Parties
will
not
be
admitted
to
purge
after
Sentence
,
yet
before
Extracting
they
will
be
heard
:
And
even
by
the
Common
Law
,
albeit
ubi
res
transit
in
rem
Judicatam
,
sententia
non
retractatur
ex
Instrumentis
noviter
repertis
;
yet
before
Extracting
of
the
same
,
if
Writes
be
Found
which
will
elide
the
Pursuers
Lybel
,
they
will
be
received
.
It
was
Answered
for
the
Creditors
,
That
in
this
case
res
was
not
integra
,
because
the
Suspender
had
so
far
acquiesced
,
that
in
effect
he
had
payed
the
Debt
,
Compensation
being
equivalent
;
And
if
before
extracting
,
he
had
made
actual
payment
,
there
would
have
been
no
necessity
of
extracting
the
same
;
and
in
this
case
not
only
there
was
solutio
ipso
Jure
,
in
respect
of
the
said
Compensation
sustained
;
but
de
facto
the
Lord
Balmerinoch
had
payed
3
or
4000
merks
in
satisfaction
of
the
Debt
charged
for
;
the
Compensation
being
so
far
short
:
and
the
Creditors
had
intented
exhibition
of
a
Discharge
granted
by
Sir
William
Dick
to
the
said
Lord
Balmerinoch
,
of
the
foresaid
Sum
of
4000
merks
;
and
a
Declarator
,
that
in
respect
of
the
said
Compensation
,
the
said
Right
granted
by
the
said
Sir
John
Smith
was
extinct
.
The
Lords
,
at
the
desire
of
the
saids
Creditors
,
having
examined
diverse
persons
anent
the
said
Minut
,
and
the
giving
up
of
the
said
Assignation
,
and
anent
the
having
of
the
said
Discharge
,
granted
by
Sir
William
Dick
to
Balmerinoch
,
the
Creditors
at
length
did
pass
from
their
Compearance
.
And
now
the
Cause
being
again
advised
,
the
Lords
did
adhere
to
their
former
Interloquitor
in
Anno
1664.
And
did
Find
,
That
before
extracting
,
Balmerinoch
might
pass
from
his
Reason
of
Compensation
:
and
decerned
in
the
said
Process
at
Balmerinoch's
instance
,
against
the
Tennents
of
Northberwick
;
Reserving
to
the
Creditors
their
Action
of
Exhibition
and
Declarator
as
accords
.
D.
204.
Kinloch
contra
Rate
.
15.
Decemb.
1674.
THE
deceast
Mr.
Robert
Kinloch
Portioner
of
Luthrie
,
having
granted
,
after
he
was
married
,
a
Liferent
Right
to
his
Wife
,
by
Infeftment
in
some
of
his
Lands
;
in
satisfaction
of
any
further
Provision
:
did
thereafter
give
her
an
additional
Jointure
and
Infeftment
in
other
Lands
;
after
which
he
did
give
a
Right
of
Annualrent
,
forth
of
the
Additional
Lands
,
to
his
Daughter
Janet
Kinloch
.
The
Daughter
and
her
Husband
Mr.
John
Dickson
,
did
intent
a
Poinding
of
the
Ground
,
upon
the
said
Right
of
Annualrent
;
in
which
Process
Jean
Rate
Relict
of
the
said
Mr.
Robert
compeared
,
and
defended
upon
her
foresaid
Rights
,
being
anterior
to
the
said
Infeftment
of
Annualrent
.
It
was
Replyed
for
the
Pursuer
,
That
as
to
the
first
Right
for
Provision
of
the
Wife
,
she
did
not
make
question
,
but
that
being
in
Satisfaction
of
any
other
Provision
,
as
said
is
;
the
additional
Right
granted
thereafter
was
for
Love
and
Favour
,
and
Donatio
inter
virum
&
uxorem
;
and
revocked
tacitely
by
the
Pursuers
Infeftment
of
Annualrent
.
The
Lords
Found
accordingly
,
That
the
said
posterior
Right
was
revocked
by
the
Right
of
Annualrent
pro
tanto
;
without
prejudice
to
the
Relict
of
the
Superplus
if
any
be
,
the
Annualrent
being
satisfied
.
Newbyth
Reporter
.
Gibson
Clerk
.
D.
205.
George
Drummond
contra
Menȝies
of
Rotwell
.
16.
December
1674.
IN
the
Process
at
the
instance
of
George
Drummond
for
payment
of
a
Sum
due
by
Alexander
Menȝies
of
Rotwel
,
as
intrometter
with
the
Debitors
Goods
:
It
was
Found
(
as
in
diverse
Cases
before
)
That
the
pretence
,
that
the
Defunct
was
Rebel
,
and
his
Escheat
gifted
;
doth
not
purge
vitious
Intromission
;
unless
it
be
alledged
,
that
the
Defuncts
Escheat
was
gifted
and
declared
before
intention
of
the
cause
;
or
that
the
Defender
did
intromet
,
either
by
vertue
of
a
Gift
to
himself
,
or
by
Warrand
and
Right
from
the
Donator
for
the
Defenders
Intromission
,
tho
the
Gift
was
not
declared
before
the
intention
of
the
Cause
;
In
respect
if
there
was
a
Gift
declared
before
the
intention
of
the
Cause
,
the
Defender
is
in
the
same
case
,
as
if
there
were
an
Executor
confirmed
,
before
the
intenting
of
the
Cause
;
and
if
he
had
either
the
Gift
himself
,
or
a
Right
from
the
Donator
before
he
did
intromet
,
his
Possession
ab
initio
,
being
by
vertue
of
a
Title
,
tho
not
perfected
,
cannot
be
said
to
be
vitious
;
and
quivis
Titulus
etiam
coloratus
,
purges
the
vitiousness
of
the
intromission
.
Strathurd
Reporter
.
Gibson
Clerk
.
D.
206.
Kelhead
contra
Irving
and
Borthwick
.
eod.
die
.
JOhn
Irving
Merchant
in
Drumfries
,
having
furnished
Mournings
,
Winding-sheet
and
others
necessary
for
the
Funerals
of
the
deceast
Earl
of
Queensberry
;
did
take
a
Bond
for
the
Sum
of
1424
merks
from
the
Countess
Dowager
,
Relict
of
the
said
Earl
;
which
,
tho
it
did
bear
only
that
Narrative
,
that
the
Lady
was
addebted
to
the
said
John
,
without
relation
to
the
Cause
foresaid
,
yet
it
appeared
it
was
for
that
Cause
;
In
swa
far
as
,
the
said
Countess
,
being
confirmed
Executrix
to
her
Husband
,
had
obtained
an
Exoneration
;
and
the
foresaid
Debt
,
contracted
for
the
Funerals
,
was
one
of
the
Articles
of
the
same
.
The
said
Countess
having
deceased
,
the
Earl
of
Queensberry
her
Son
was
confirmed
Executor
to
her
;
and
a
Decreet
being
obtained
against
him
at
the
instance
of
the
said
John
Irving
,
for
the
foresaid
Debt
,
he
suspended
upon
multiple
Poinding
against
the
said
John
Irving
,
and
the
Laird
of
Kelhead
,
and
James
Borthwick
,
and
certain
other
Creditors
.
The
said
Laird
of
Kelhead
alleadged
,
that
he
ought
to
be
preferred
as
to
the
Goods
confirmed
by
the
said
Earl
,
as
Executor
to
the
said
Countess
,
because
the
said
Countess
was
his
Debitor
in
the
Sum
of
5000
merks
;
and
to
the
effect
he
might
be
satisfied
of
the
said
Debt
,
had
disponed
to
him
her
Moveables
if
he
should
not
be
satisfied
in
her
own
Lifetime
;
and
that
he
had
done
Diligence
upon
the
Disposition
of
the
said
Moveables
by
arrestment
,
and
by
taking
Possession
after
the
Ladies
decease
;
and
thereby
had
right
to
the
Moveables
confirmed
by
the
Earl
,
and
thereupon
ought
to
be
preferred
.
Whereunto
It
was
Answered
,
That
the
said
Disposition
did
not
give
Right
to
Kelhead
,
unless
Tradition
had
followed
upon
the
same
in
the
Ladies
lifetime
:
and
the
Lady
had
not
only
retained
Possession
,
but
by
the
Conception
and
Nature
of
the
Right
,
Kelhead
could
not
have
Possession
,
seing
he
was
to
have
Right
to
the
Moveables
after
the
Ladies
decease
,
if
he
were
not
satisfied
dureing
her
lifetime
;
so
that
he
was
in
the
case
only
of
other
Personal
Creditors
,
and
must
come
in
according
to
his
Diligence
:
and
Irving
and
Borthwick
were
not
only
prior
in
Diligence
,
having
obtained
Decreets
,
but
were
priviledged
and
preferable
before
all
other
Creditors
,
in
respect
the
said
Irving's
Debt
was
of
the
Nature
foresaid
,
for
the
defraying
of
the
Funerals
,
and
James
Borthwick's
Debt
was
for
Drugs
.
It
was
Duplyed
for
Kelhead
,
as
to
Irving
,
that
any
Priviledge
he
pretended
to
,
did
cease
;
In
sua
far
as
the
Debt
was
innovat
,
and
was
not
a
Debt
upon
the
Executry
of
the
Earl
of
Queensberry
,
but
became
a
Debt
of
the
Countess
her self
,
who
had
given
Bond
(
as
said
is
)
without
any
Relation
to
the
Cause
foresaid
:
And
as
to
James
Borthwick
,
there
being
two
Debts
due
to
him
,
one
by
Bond
,
and
the
other
by
an
Accompt
,
the
Bond
did
bear
borrowed
Money
and
Annualrent
,
and
was
not
a
priviledged
Debt
.
The
Lords
Found
,
That
Kelhead
had
no
Right
to
the
Moveables
,
by
the
Disposition
foresaid
,
and
was
only
a
Personal
Creditor
:
whereupon
They
Found
also
,
that
Debts
of
the
nature
foresaid
,
upon
the
account
of
Funerals
,
and
of
Drugs
furnished
the
time
of
the
Defuncts
sickness
,
are
priviledged
;
so
that
the
Creditors
,
tho
they
be
not
Creditores
Hypothecarii
,
are
Privilegiati
,
and
preferable
to
other
Personal
Creditors
.
They
Found
also
,
That
Irving's
Debt
was
still
Priviledged
,
notwithstanding
that
the
Countess
had
given
Bond
for
the
same
;
seing
it
did
not
bear
borrowed
Money
,
but
only
that
she
was
addebted
;
and
it
appears
by
the
Testament
and
Exoneration
,
that
she
was
addebted
upon
no
other
account
,
but
for
the
Cause
foresaid
.
They
also
did
Find
,
That
the
foresaids
Debts
being
Priviledged
,
as
to
the
Countess
,
they
are
Priviledged
also
as
to
her
Executor
:
and
that
James
Borthwick
should
come
in
with
the
said
Irving
,
as
to
his
Accompt
;
but
not
as
to
his
Bond
:
and
as
to
it
,
was
to
come
in
with
the
rest
of
the
Creditors
.
Craigie
Reporter
.
Gibson
Clerk
.
D.
207.
Captain
Gordon
and
Ludquharne
contra
17.
December
1674.
CAptain
Gordon
a
Privateer
,
having
taken
a
Ship
,
named
the
Wine-Grape
,
and
brought
the
same
to
Leith
;
It
was
found
a
free
Ship
,
and
not
a
Prize
,
by
a
Decreet
absolvitor
of
the
Admiral
;
in
respect
it
appeared
by
the
Pass
,
and
other
Documents
,
and
the
Declaration
of
the
Company
and
Skipper
,
that
it
was
a
Sweddish
Ship
:
And
albeit
the
Skipper
was
a
Hollander
,
yet
he
was
received
Burgess
of
Stockholme
,
and
since
the
War
he
had
transported
his
Domicile
there
:
This
Decreet
being
questioned
by
a
Reduction
before
the
Lords
,
upon
that
Reason
,
that
the
Admiral
had
committed
Iniquity
in
giving
the
said
Absolvitor
,
in
regard
the
said
ship
was
not
a
free
ship
;
And
it
did
appear
from
the
Declarations
of
the
Skipper
and
Company
,
that
the
Skipper
was
a
Hollander
;
and
a
Partner
of
an
eight
part
of
the
said
ship
:
And
after
a
long
Debate
,
The
Lords
granted
a
Commission
to
the
magistrates
of
Stockholme
in
Sweden
,
to
examine
such
witnesses
as
either
Party
should
desire
,
for
clearing
the
point
of
Fact
;
and
to
examine
the
Sweds
that
were
alledged
to
have
interest
in
the
said
Ship
and
Loadning
;
and
the
Skippers
wife
who
was
then
at
Stockholme
:
And
diverse
persons
and
Witnesses
being
examined
upon
the
said
Commission
,
at
the
Instance
of
the
Skipper
and
Defenders
in
the
Reduction
;
and
a
Report
being
returned
and
advised
:
The
Lords
,
in
July
last
,
did
Find
,
That
the
said
Report
was
a
sufficient
presumptive
Probation
,
that
the
Skipper
had
fixed
his
Domicile
at
Stockholme
,
and
that
the
Ship
and
Goods
were
free
and
did
not
belong
to
the
Kings
Enemies
;
The
Swedes
by
the
Treaty
betwixt
Sweden
and
our
King
being
allowed
to
make
use
of
Hollanders
to
be
Naucleri
and
Skippers
,
dummodo
sint
Cives
&
Incolae
:
and
therefore
decerned
;
superseeding
the
extracting
of
the
Decreet
until
September
:
and
if
the
Pursuers
should
shew
,
that
they
had
done
Diligence
upon
the
said
Commission
,
the
Lords
declared
they
would
grant
a
new
Commission
.
And
thereafter
an
Agent
Matthew
Colvil
,
having
gone
to
Stockholme
,
in
behalf
of
,
and
for
the
Pursuer
the
Privateer
;
and
having
urged
,
that
some
Witnesses
should
be
examined
by
the
Magistrates
there
,
upon
the
Points
contained
in
the
former
Commission
;
upon
that
consideration
,
that
no
person
was
present
for
the
Privateer
,
when
the
Witnesses
were
examined
at
the
instance
of
the
Defenders
;
and
it
was
not
the
Pursuers
fault
,
that
he
was
not
there
himself
or
his
Procurator
,
seing
the
said
Mr.
Colvil
going
there
,
and
pursueing
the
said
Commission
,
had
made
Ship-wrack
by
the
way
,
and
was
forced
to
return
back
.
The
saids
Magistrates
did
refuse
to
proceed
upon
the
said
Commission
to
examine
the
said
Witnesses
,
that
had
been
formerly
examined
,
or
others
pretending
that
the
Commission
was
execute
,
and
that
they
had
examined
both
Parties
and
Witnesses
upon
the
same
:
and
did
write
a
Letter
to
the
Lords
,
shewing
the
Reasons
whereupon
they
had
refused
.
This
Session
,
the
Cause
being
called
in
praesentia
;
the
Pursuers
did
object
against
the
said
Report
,
whereupon
the
foresaid
Interloquitor
had
proceeded
;
and
in
special
,
that
the
Depositions
of
the
Witnesses
examined
at
Stockholm
were
not
transmitted
;
and
that
they
were
not
so
much
as
named
in
the
Report
:
and
that
the
Owners
had
refused
to
declare
upon
that
Interrogator
,
viz.
whether
their
Name
was
only
borrowed
for
the
use
of
the
Kings
Enemies
,
to
colour
and
continue
their
Trade
;
pretending
that
they
had
given
their
Oaths
already
to
that
purpose
,
upon
their
obtaining
of
the
Pass
:
and
it
was
desired
for
the
Pursuers
that
the
Lords
would
proceed
,
without
respect
to
the
Report
and
Interloquitor
foresaid
;
and
advise
and
give
their
Sentence
,
whether
,
upon
what
was
before
them
,
the
Reason
of
Reduction
was
proven
.
Upon
Debate
among
the
Lords
,
It
was
urged
,
that
they
had
given
a
Decreet
already
,
but
the
Extracting
was
superseeded
(
as
said
is
)
conditionally
,
in
order
to
the
granting
a
new
Commission
:
And
the
most
that
the
Pursuer
could
desire
in
reason
,
was
,
that
a
New
Commission
should
be
granted
:
And
all
that
was
before
the
Lords
being
formerly
advised
,
and
a
Decreet
given
thereupon
,
and
the
same
standing
,
there
was
nothing
now
to
be
advised
;
but
the
Decreet
ought
to
be
Extracted
,
or
at
the
most
a
new
Commission
should
be
given
to
the
Pursuer
.
The
Lords
notwithstanding
,
without
respect
to
the
said
former
Decreet
,
did
proceed
to
advise
and
Vote
,
whether
there
was
alse
much
proven
,
as
to
condemn
the
said
Ship
.
It
was
urged
by
some
of
the
Lords
,
That
tho
res
were
integra
,
and
there
were
no
Decreet
;
there
is
no
Ground
to
adjudge
the
said
Ship
upon
the
pretences
foresaid
,
seing
the
Skippers
Oath
being
a
Party
had
been
taken
upon
the
same
;
and
he
had
declared
upon
Oath
,
that
he
had
changed
his
domicile
,
and
his
Residence
was
at
Stockholme
;
and
his
Oath
being
taken
,
they
needed
no
other
Probation
,
specially
seing
his
Oath
is
adminiculate
with
the
Depositions
of
his
Wife
,
and
others
taken
upon
the
Commission
foresaid
at
Stockholme
;
being
positive
,
that
he
had
Transported
his
Domicile
there
;
and
no
other
Probation
was
adduced
to
the
contrary
.
It
was
farder
urged
,
That
the
Skipper
being
a
Burgess
,
and
being
for
the
time
in
Sueden
with
his
Wife
and
his
Child
;
The
Suedish
Owners
were
in
bona
fide
to
think
,
that
he
was
such
a
person
,
as
by
the
Treaty
they
might
make
use
of
as
Skipper
:
And
what
ever
could
be
pretended
against
him
for
his
own
interest
,
ought
not
to
militate
against
them
.
It
was
also
urged
,
That
His
Majesty
had
written
a
Letter
in
favours
of
the
Strangers
,
recommending
them
to
the
Lords
Favour
and
Justice
;
and
it
would
be
thought
a
strange
Return
,
that
the
Lords
should
condemn
both
the
said
Ship
,
and
the
Admirals
Decreet
absolvitor
,
and
their
own
former
Decreet
.
It
was
nevertheless
Voted
and
Found
by
plurality
,
that
the
Ship
ought
to
be
adjudged
upon
the
said
pretences
,
that
the
Kings
Enemie
had
the
interest
foresaid
,
both
as
Skipper
and
as
Owner
:
diverse
of
the
Lords
dissenting
.
D.
208.
23.
Decemb.
1674.
inter
easdem
.
THE
Sueds
having
given
in
a
Bill
,
desireing
that
seing
they
offered
to
prove
positive
,
that
the
Skipper
had
changed
his
Domicile
,
they
might
have
a
Commission
to
what
Judges
the
Lords
pleased
,
for
proving
the
said
Alledgance
;
Some
of
the
Lords
were
of
Opinion
,
That
the
Alledgance
being
unquestionably
Relevant
was
yet
competent
,
In
respect
the
Lords
had
by
their
Interloquitor
Found
,
that
they
had
already
proven
presumptively
,
that
the
Ship
in
question
did
not
belong
to
the
Kings
Enemies
;
and
alse
long
as
that
Interloquitor
stood
,
they
needed
not
prove
any
farther
;
the
onus
probandi
of
the
contrair
lying
upon
the
Caper
:
And
the
said
Interloquitor
being
since
reversed
and
taken
away
(
as
said
is
)
It
was
neither
needful
nor
competent
until
now
,
to
offer
to
prove
positive
the
said
Alledgance
.
The
Lords
notwithstanding
,
Found
by
plurality
,
and
by
one
Vote
only
,
that
the
Alledgance
was
not
now
competent
;
the
President
being
of
a
contrair
opinion
;
but
being
carryed
by
one
Vote
before
it
came
to
him
,
he
could
not
Vote
.
Je
me
suis
estendu
trop
sur
cet
Arrest
,
a
cause
que
les
plus
habiles
&
scavans
des
Senateurs
opinoyent
pour
les
Estrangers
,
&
Maistre
du
Navire
:
&
aucuns
des
ceux
qui
estoyent
de
l'
autre
coste
,
estoyent
parens
ou
aliez
de
Luthquharne
,
qui
estoyt
Partie
;
&
gagnoit
par
l'
Arrest
2000
Livres
Sterl:
ou
environ
:
&
l'
emportoit
par
une
voix
seulement
.
D.
209.
Pitmedden
contra
Seatones
.
eod.
die
.
IT
was
Found
in
the
case
Sir
Alexander
Seaton
of
Pitmedden
,
contra
Seaton
of
Blair
,
That
Pitmeddens
Brother
,
tho
he
was
Appearand
Heir
to
a
Baron
,
he
could
not
have
a
Moveable
Heirship
;
because
he
was
not
actual
Baro.
Some
were
of
opinion
,
that
as
to
that
Advantage
and
priviledge
of
having
a
Moveable
Heirship
,
it
was
sufficient
that
the
Defunct
was
of
that
quality
,
that
he
was
one
of
these
Estates
;
seing
a
person
once
Baro
,
tho
he
be
denuded
is
semper
Baro
as
to
the
effect
and
interest
foresaid
:
And
a
Prelate
,
tho
for
Age
he
should
become
unable
to
serve
,
and
dimit
,
yet
is
still
a
Prelate
as
to
that
effect
:
And
the
Appearand
Heir
of
a
Baron
,
who
has
Right
and
in
potentia
proxima
to
be
a
Baron
,
and
is
Peer
to
Barons
,
and
may
be
upon
the
Assize
of
Noblemen
and
Barons
;
if
he
should
be
prevented
with
Death
before
he
be
Infeft
,
it
were
hard
to
deny
him
the
priviledge
foresaid
,
that
his
Heir
should
have
his
Movable
Heirship
:
And
if
his
Heir
would
have
the
benefite
as
to
a
Moveable
Heirship
,
his
Intromission
with
the
same
ought
to
import
a
Behaviour
.
Lord
Forret
Reporter
.
D.
210.
Mr.
David
Thoirs
contra
Tolquhon
.
2.
Jan.
1675.
MR.
David
Thoirs
,
having
acquired
from
John
Forbes
the
Lands
of
Craigfintry
,
did
pursue
an
improbation
against
the
Laird
of
Tolquhon
of
a
Bond
and
Comprysing
deduced
thereupon
of
the
said
Lands
against
John
Forbes
of
Gask
,
the
said
John
Mr.
David
Thoirs's
Authors
Great
Grandfather
:
And
Certification
being
granted
,
and
being
urged
that
it
should
be
Extracted
;
It
was
Alledged
,
that
it
could
not
be
Extracted
,
but
ought
to
be
stopt
;
because
the
said
Bond
,
whereupon
the
Comprysing
was
deduced
,
and
whereunto
,
and
to
the
Comprysing
thereupon
,
Tolquhon
has
Right
by
progress
,
was
granted
to
the
deceast
Mr.
William
Forbes
Advocate
,
and
Registrate
in
the
Commissar
Books
of
Aberdeen
in
Anno
1632
;
And
the
Extract
was
now
produced
;
which
after
so
long
time
,
and
the
time
of
Troubles
,
the
Registers
being
all
in
such
disorder
,
ought
to
satisfy
the
production
;
being
not
only
adminiculate
,
but
also
homologate
in
manner
aftermentioned
,
by
Patrick
Forbes
Grand-child
and
Successor
to
the
Granter
,
and
the
said
John
Forbes
the
said
Patrick's
Son
;
In
sua
far
as
the
said
Bond
was
granted
to
the
said
Mr.
William
Forbes
a
person
above
all
exception
;
and
all
possible
Diligence
,
both
real
and
personal
had
been
used
thereupon
by
Horning
,
Comprysing
,
and
Caption
:
and
that
the
Granter
had
Suspended
the
said
Bond
upon
diverse
Reasons
,
and
did
never
question
the
truth
of
the
same
;
and
Disponed
his
Estate
to
Patrick
Forbes
his
Appearand
Heir
,
with
the
burden
of
his
Debts
;
and
it
cannot
be
thought
,
but
that
he
understood
the
Debt
in
question
,
to
have
been
comprehended
under
the
general
of
Debts
,
having
been
so
much
distressed
for
the
same
:
And
that
the
said
Patrick
did
homologate
the
truth
of
the
said
Bond
;
In
sua
far
as
by
a
Minute
of
Contract
betwixt
him
and
Tolquhon
,
he
had
taken
a
Right
from
Tolquhon
to
the
said
Bond
and
Comprysing
;
and
was
obliged
to
pay
for
the
same
the
Sum
thereinmentioned
:
And
the
said
Patrick
having
Disponed
to
his
Eldest
Son
William
his
Estate
,
the
said
John
was
served
Heir
to
the
said
William
his
Brother
;
and
had
homologat
also
the
said
Bond
by
Contract
betwixt
him
and
Tolquhon
,
whereby
he
dispones
the
Lands
Comprysed
of
new
again
to
Tolquhone
,
and
ratifies
the
said
Apprysing
and
Grounds
thereof
:
Which
Contract
,
albeit
when
the
said
John
was
Minor
,
was
made
with
consent
of
his
Friends
and
Lawyers
most
deliberately
;
the
said
Mr.
David
Thoirs
being
one
of
his
Lawyers
;
And
therefore
,
tho
it
might
be
questioned
upon
Minority
,
as
to
any
prejudice
or
disadvantage
the
Minor
may
pretend
to
have
by
the
same
,
yet
it
will
stand
as
an
Homologation
of
the
said
Bond
as
to
the
truth
of
the
same
;
unless
it
were
offered
to
be
improven
,
by
a
positive
qualification
of
Falsehood
.
The
Lords
having
considered
the
Inconvenients
on
either
side
,
if
certifications
for
not
production
of
principals
should
be
loosed
,
being
the
great
surety
of
the
People
:
And
on
the
other
part
,
if
they
should
be
Snares
,
and
Parties
should
pursue
maliciously
Improbation
,
having
viis
&
modis
got
the
principal
Writes
out
of
the
Register
,
or
known
they
had
miscarryed
:
They
Found
,
In
respect
that
Mr.
David
Thoirs
having
taken
a
Right
,
after
the
matter
was
litigious
by
a
Charge
and
Suspension
of
the
Minute
,
betwixt
Tolquhone
and
the
said
John
Forbes
the
Great
Grand-child
;
so
that
the
said
Mr.
David
was
in
the
same
case
,
as
if
the
said
John
were
Pursuer
,
and
was
content
to
state
himself
in
that
case
;
And
in
respect
of
the
Specialities
of
this
Cause
,
and
Adminicles
and
Homologations
foresaid
,
that
therefore
the
said
Extract
ought
to
satisfy
the
Production
,
and
the
Certification
ought
not
to
be
Extracted
.
D.
211.
Pittarro
contra
E.
Northesk
.
5.
January
1675.
THE
Earl
of
Northesk
having
taken
an
Assignation
to
a
Bond
,
granted
by
the
deceast
Laird
of
Craige
and
Earl
of
Dundee
to
Margaret
Carnagie
,
and
her
Children
for
1000
Merks
,
and
having
Comprysed
thereupon
Craigs
Estate
;
he
did
after
the
Comprysing
give
a
Bond
to
the
said
Margaret
Carnagie
and
her
Children
,
that
in
case
he
should
recover
payment
,
he
should
make
payment
to
them
of
the
foresaid
Sum
:
Sir
David
Carnagie
of
Pittarro
,
being
Debitor
to
the
said
Earl
in
the
Sum
of
2000
Merks
,
Suspended
upon
that
Reason
,
that
the
said
Margaret
and
her
Children
had
Assigned
to
him
the
said
Back-bond
granted
by
Northesk
;
and
that
the
said
Earl
had
Disponed
the
Right
of
the
said
Apprysing
to
the
Lord
Hattoun
;
And
therefore
became
Lyable
to
pay
the
said
Sum
to
the
Suspenders
Cedent
,
and
the
Suspender
may
and
does
compense
upon
the
said
Bond
pro
tanto
.
It
was
Answered
by
the
Charger
,
That
the
Comprysing
did
neither
belong
to
the
Suspenders
Cedent
,
nor
was
to
their
behoof
;
the
said
Bond
granted
by
the
Laird
of
Craig
being
Assigned
ab
initio
,
without
any
Back-bond
:
And
the
Comprysing
being
deduced
before
Northesk
granted
the
said
Bond
:
And
by
the
said
Back-bond
he
was
obliged
only
to
pay
the
said
Sum
in
case
he
should
get
payment
,
and
he
was
so
far
from
getting
payment
of
the
said
Sum
,
that
having
comprysed
not
only
upon
the
said
Bond
granted
to
Margaret
Carnagie
,
but
for
other
Debts
exceeding
far
the
said
Debt
due
to
her
;
yet
got
payment
of
neither
.
It
was
Replyed
by
the
Suspender
,
That
he
was
not
concerned
to
Dispute
,
whether
he
got
payment
or
not
;
but
the
Charger
having
Disponed
the
Comprysing
as
to
the
said
Sum
,
without
the
consent
of
the
said
_____
Carnagie
and
her
Children
;
and
without
the
Burden
of
the
said
Back-bond
,
it
was
equivalent
as
if
he
had
got
payment
;
it
being
all
one
upon
the
matter
as
to
the
interest
of
_____
Carnagie
,
whether
Northesk
had
got
payment
of
the
said
Sum
,
or
had
disponed
the
Comprysing
in
sua
far
as
concerns
the
same
.
The
Lords
,
In
Respect
of
the
conception
of
the
Bond
granted
by
Northesk
,
Found
,
That
either
he
should
procure
a
Retrocession
of
the
said
Bond
and
Comprysing
thereupon
pro
tanto
;
or
that
he
should
pay
the
Damnage
and
Interest
sustained
by
the
Suspenders
Cedent
,
through
Northesks
granting
of
the
Right
of
the
said
Bond
and
Comprysing
to
Hattoun
:
And
in
that
case
,
that
the
Damnage
and
Interest
should
be
presently
liquidate
;
and
being
liquidate
should
be
a
ground
of
compensation
.
Glendoich
Reporter
.
Monro
Clerk
.
D.
212.
Eod
die
.
IT
was
debated
this
day
among
the
Lords
,
whether
a
Bond
being
granted
by
a
principal
and
two
Cautioners
bound
conjunctly
and
severally
;
and
the
Cautioners
not
bound
to
relieve
one
another
;
if
one
of
the
Cautioners
should
take
Assignation
to
the
Bond
and
should
pursue
the
other
,
the
said
other
Cautioner
will
have
a
defence
upon
that
Ground
,
That
albeit
they
be
not
oblidged
to
relieve
one
another
pro
rata
,
yet
that
the
said
obligement
inest
,
in
sua
far
as
,
they
are
bound
conjunctly
and
severally
:
Most
of
the
Lords
enclined
to
find
,
that
the
pursuer
ought
to
relieve
the
Cocautioner
pro
rata
,
and
had
not
action
but
for
his
own
part
.
But
some
of
the
Lords
were
of
another
opinion
;
that
there
being
no
obligement
upon
any
of
the
Cocautioners
to
relieve
one
another
;
one
of
the
Cautioners
paying
entirely
and
getting
an
Assignation
,
in
effect
emit
nomen
:
And
tho
both
the
Cautioners
be
oblidged
conjunctly
and
severally
in
relation
to
the
Creditor
,
yet
there
is
no
Transaction
or
obligement
betwixt
the
Cautioners
themselves
;
every
one
having
actio
mandati
as
to
the
principal
for
their
relief
,
which
inest
,
tho
the
principal
were
not
bound
to
relieve
them
expresly
:
but
ought
to
be
considered
as
quilibet
,
and
Strangers
one
to
another
.
But
because
the
Lords
were
divided
,
and
it
was
alledged
on
either
hand
,
the
case
was
formerly
decided
;
the
Decision
was
delayed
this
day
;
Vide
infra
28.
January
1675.
D.
213.
Laird
of
Hempsfield
contra
Bannantine
.
eod.
die
.
THE
Laird
of
Hempsfield
with
certain
Cautioners
for
him
,
having
granted
a
Bond
of
6000
Merks
to
the
deceast
James
Bannantine
and
his
Wife
,
the
longest
liver
of
them
two
;
and
after
their
decease
to
John
Bannatine
their
Son
;
whereupon
Inhibition
was
execute
against
the
principal
and
Cautioners
:
And
the
said
John
Bannantine
did
pursue
a
Reduction
and
Improbation
against
these
who
had
acquired
Rights
,
after
the
Inhibition
.
It
was
Alledged
,
That
the
Pursuer
had
no
interest
,
because
the
said
Bond
was
Blank
in
the
name
of
the
substitute
,
and
the
pursuer
could
not
be
understood
to
be
the
Bairn
to
whom
the
Sum
is
to
be
payable
after
the
decease
of
his
Father
and
Mother
,
seing
he
was
not
born
the
time
of
the
granting
of
the
Bond
:
And
as
to
the
Inhibition
it
was
not
at
the
instance
of
the
Pursuer
,
but
of
his
Father
and
Mother
.
It
was
Answered
,
That
the
Bond
was
opponed
,
bearing
the
Pursuers
Name
;
and
tho
the
Bond
had
been
Blank
,
and
the
Pursuer
not
born
when
it
was
granted
,
the
Father
might
have
filled
up
any
of
his
Bairns
Names
as
he
thought
fit
:
And
as
to
the
Inhibition
,
it
was
at
the
instance
of
the
Father
James
Bannantine
who
was
Fiar
;
and
did
accresce
to
the
Pursuer
,
being
substitute
in
the
Fee
after
his
decease
.
The
Lords
Repelled
the
Alledgance
.
It
was
thereafter
Alledged
,
That
the
Pursuer
was
satisfied
of
the
Debt
,
in
sua
far
as
either
the
Debitor
or
Cautioners
had
payed
the
same
,
at
least
a
part
thereof
,
and
did
satisfy
pro
tanto
;
or
some
other
persons
,
having
acquired
their
Lands
after
the
Inhibition
,
had
given
Money
to
the
Pursuer
or
his
Father
,
to
pass
from
the
Inhibition
as
to
them
,
which
ought
to
be
allowed
as
payment
pro
tanto
.
It
was
Answered
,
That
the
Alledgance
is
not
Relevant
,
unless
it
were
in
these
Terms
,
that
the
Pursuer
or
his
Father
had
accepted
what
was
payed
by
the
saids
persons
in
satisfaction
of
the
Debt
pro
tanto
;
otherwayes
,
that
there
is
no
solutio
,
but
only
a
Transaction
betwixt
the
persons
foresaid
,
and
the
Pursuer
,
to
free
themselves
from
Trouble
and
of
a
Plea
;
and
what
was
given
,
was
not
in
satisfaction
of
the
Debt
in
whole
or
in
part
,
but
upon
the
account
foresaid
:
And
seing
the
Creditor
having
inhibite
;
so
that
his
Inhibition
did
affect
diverse
Lands
,
or
having
diverse
persons
bound
to
him
as
Cautioners
,
might
warrantably
pass
from
his
Inhibition
as
to
some
of
the
Lands
,
and
discharge
such
of
the
Cautioners
as
he
thought
fit
;
he
might
also
take
a
consideration
for
doing
the
favour
foresaid
.
The
Lords
thought
,
That
if
it
should
be
allowed
to
Creditors
to
make
such
Transactions
;
and
what
they
should
get
upon
account
of
the
same
should
not
be
allowed
in
payment
,
they
might
get
more
nor
the
double
of
their
Debt
;
at
least
more
than
Principal
and
Annualrent
;
and
that
it
would
be
the
occasion
of
usury
.
They
Found
the
Defence
Relevant
,
that
what
should
be
proven
to
be
given
eo
nomine
should
be
imputed
in
satisfaction
.
Gibson
Clerk
.
D.
214.
Innes
contra
Innes
.
7.
January
.
1675.
BY
a
Contract
of
Marriage
a
Sum
being
provided
to
the
Husband
and
his
Wife
,
and
to
the
Heirs
Male
of
the
Marriage
;
whilks
Failyieing
to
the
Fathers
Heirs
Male
whatsomever
:
An
Inhibition
upon
the
said
Contract
,
at
the
instance
of
the
Eldest
Son
of
the
Marriage
,
and
Reduction
thereupon
was
not
sustained
;
because
the
Father
was
living
,
and
the
Son
neither
was
,
nor
could
be
Heir
to
him
,
In
respect
the
Father
was
living
:
And
tho
he
were
dead
the
Son
could
have
no
Right
,
unless
he
were
Heir
,
in
which
case
he
would
be
obliged
to
warrand
.
Glendoich
Reporter
.
D.
215.
Laird
of
Luss
contra
E.
of
Nithsdale
.
eod.
die
.
A
Bond
being
alledged
to
be
granted
by
the
Earl
of
Nithsdale
,
in
anno
1621
,
to
one
Colquhone
and
his
Wife
,
for
6000
Merks
:
And
a
pursuit
being
intented
thereupon
;
It
was
Alledged
,
That
the
Bond
was
most
suspicious
,
being
so
Ancient
and
nothing
done
thereupon
;
and
in
respect
of
other
great
presumptions
,
viz.
the
quality
and
condition
of
the
said
Adam
when
the
said
Bond
was
granted
,
being
designed
the
Earl's
Servant
:
And
that
it
was
improbable
,
he
could
have
so
much
Money
to
lend
his
Master
,
or
that
he
and
his
Heirs
should
have
so
long
wanted
the
same
:
And
that
it
appears
,
that
the
Bond
has
been
Blank
ab
initio
,
the
Creditors
Name
being
filled
up
with
another
Ink
:
And
the
said
Adam
being
designed
to
have
been
the
Writer
of
the
Bond
;
and
yet
where
it
bears
that
he
is
Writer
,
it
does
not
bear
the
said
Adam
,
which
it
would
have
born
if
his
name
had
been
filled
up
from
the
beginning
:
And
it
appears
,
that
the
Earl
being
known
to
be
a
person
negligent
,
and
being
at
London
for
the
time
,
and
having
to
do
with
Money
,
might
have
given
the
Bond
to
the
said
Adam
his
Servant
for
raising
of
Money
,
and
that
he
forgot
to
call
for
it
.
The
Lords
Found
,
That
the
said
Bond
could
not
be
taken
away
upon
the
presumptions
foresaid
;
unless
it
were
either
prescrived
,
or
the
Defenders
would
offer
to
improve
it
.
Gibson
Clerk
.
D.
216.
Mcintoish
contra
Frazer
.
9.
January
.
1675.
McIntoish
pursued
Frazer
of
Streichen
,
for
payment
of
a
Sum
due
upon
Bond
;
In
which
Pursuite
two
Defences
being
proponed
,
viz.
Prescription
and
Payment
;
and
a
Reply
made
to
the
first
,
viz.
Interruption
by
a
pursuit
;
and
Litiscontestation
being
made
upon
the
Defence
of
payment
and
the
said
Reply
;
It
was
Alledged
,
when
the
Cause
was
to
be
advised
contra
producta
,
viz.
That
the
Summonds
and
Execution
thereupon
produced
,
for
proving
Interruption
,
did
not
prove
the
same
;
In
respect
the
Summonds
were
never
called
,
nor
any
Document
taken
in
Judgment
thereupon
.
And
as
to
the
Discharge
produced
,
It
was
Alledged
,
That
it
was
granted
by
the
persons
thereinmentioned
as
Curators
to
the
Pursuer
,
and
was
not
subscribed
by
the
Pursuer
himself
as
it
ought
to
have
been
;
there
being
a
great
difference
betwixt
Tutors
and
Curators
;
In
respect
Tutors
must
act
for
the
Minor
,
and
are
Authors
as
to
all
deeds
done
by
them
;
but
Curators
do
only
concurr
and
ought
to
advise
and
consent
to
the
deeds
of
their
Minor
,
which
otherwayes
are
not
valid
.
The
Lords
did
Find
the
Discharge
did
not
prove
;
and
it
could
not
be
obtruded
to
the
Pursuer
who
had
not
subscribed
the
same
;
and
did
also
Find
that
the
Summonds
and
Execution
did
sufficiently
interrupt
.
Concluded
cause
.
Actor
Falconer
alteri
Seaton
.
Monro
Clerk
.
D.
217.
Town
of
Edinburgh
contra
Earl
of
Loudoune
.
eod.
die
.
THE
Lady
Yester
having
Mortified
a
certain
Sum
of
Money
for
the
Poor
in
certain
Paroches
in
the
South
;
and
having
employed
to
the
End
foresaid
the
foresaid
Sum
upon
Bond
or
Contract
,
granted
by
the
Town
of
Edinburgh
:
The
Ministers
of
the
said
Paroches
did
pursue
the
Town
of
Edinburgh
,
to
hear
and
see
the
Tenor
of
the
said
Write
to
be
proven
;
and
that
being
done
,
that
they
should
be
decerned
to
pay
:
And
did
sufficiently
prove
the
Tenor
of
the
same
.
In
the
Process
against
the
Town
,
There
was
a
Defence
proponed
,
viz.
That
my
Lord
Loudoune
,
who
had
Interest
in
the
said
Mortification
,
had
got
payment
of
the
said
Sum
from
the
Town
of
Edinburgh
,
which
they
offered
to
prove
by
his
Oath
.
The
Lords
having
Ordained
his
Oath
to
be
taken
before
Answer
;
And
he
being
Summonded
to
that
effect
,
he
was
holden
as
confest
:
And
having
thereafter
upon
a
Bill
,
Desired
to
be
Reponed
to
give
his
Oath
,
and
being
Reponed
,
he
was
holden
as
confest
the
second
time
:
And
in
respect
that
the
said
Defence
was
not
proven
by
his
Oath
,
The
Lords
proceeded
and
decerned
against
the
Town
.
The
Town
of
Edinburgh
having
intented
Process
against
the
Earl
of
Loudoune
,
for
refounding
the
said
Sum
;
upon
that
medium
,
that
the
same
was
formerly
payed
to
him
;
and
that
he
had
confessed
,
at
least
was
holden
as
Confest
,
which
is
equivalent
as
to
the
payment
of
the
said
Sum.
It
was
Alledged
,
That
his
being
holden
as
Confest
,
in
the
Process
foresaid
did
operate
only
that
the
Defence
referred
to
his
Oath
was
not
proven
,
but
could
not
be
a
Ground
of
pursuite
against
himself
,
unless
it
were
proven
by
his
Oath
,
that
the
said
Sum
was
payed
to
him
;
and
he
desired
to
be
Reponed
to
his
Oath
;
It
was
Answered
,
That
he
being
twice
holden
as
Confest
,
there
was
no
reason
to
Repone
him
,
and
his
being
holden
as
Confest
doth
operate
in
Law
alsemuch
,
as
if
he
had
confessed
the
said
Sum
;
Seing
through
his
Contumacy
the
Pursuers
are
prejudged
:
And
he
cannot
pretend
,
that
he
was
not
a
Party
in
that
Process
,
seing
he
was
holden
as
Confest
,
and
in
the
same
Process
craved
to
be
Reponed
,
and
was
Reponed
as
said
is
:
And
tho
he
had
not
been
called
ab
initio
in
that
Process
,
yet
being
called
incidenter
for
proving
of
an
Alledgance
;
by
the
certification
foresaid
he
became
Partie
therein
:
And
as
when
an
incident
Diligence
is
raised
against
a
haver
of
Writes
,
for
proving
of
an
Alledgance
;
and
the
having
thereof
is
referred
to
the
Oath
of
the
Defender
in
the
incident
;
if
he
be
holden
as
confest
,
tho
the
Alledgance
be
not
proven
,
the
Pursuer
of
the
Incident
will
have
Execution
against
him
as
Haver
;
and
for
the
Damnage
and
Interest
sustained
through
his
Contumacy
;
so
it
ought
to
be
in
this
case
.
The
Lords
,
Tho
the
Earl
of
Loudoun's
presumptive
Confession
(
being
holden
as
confest
as
said
is
)
be
a
convinceing
evidence
,
that
the
said
Money
was
payed
to
him
;
yet
they
had
that
respect
to
him
both
as
to
his
quality
and
integrity
,
that
they
would
have
Reponed
him
,
if
he
had
compeared
himself
;
or
had
written
to
the
Lords
,
that
he
desired
to
be
Reponed
;
and
did
intimate
alse
much
to
his
Procurators
:
and
to
that
effect
did
give
some
time
,
but
no
Return
being
made
,
they
proceeded
,
and
sustained
the
pursuite
at
the
instance
of
the
Town
of
Edinburgh
,
upon
the
medium
foresaid
.
Monro
Clerk
.
D.
218.
Letter
by
the
Lords
of
Session
to
the
King
.
12.
January
.
1675.
MY
Lord
Lauderdale
His
Majesties
Secretary
,
having
writen
to
the
President
,
concerning
the
abovementioned
Process
betwixt
Captain
Gordon
and
the
Suedes
,
anent
the
Ship
called
the
Wine
Grape
,
That
the
Suedish
Envoy
had
made
Application
to
his
Majesty
,
and
had
represented
,
That
the
Decreet
against
the
Strangers
,
was
caryed
but
by
two
Votes
;
and
had
given
in
a
List
to
his
Majesty
,
of
those
that
were
for
,
and
against
the
said
Decreet
,
with
diverse
Reasons
against
the
same
.
It
was
thought
fit
,
that
a
Letter
should
be
drawen
to
His
Majesty
,
containing
the
Grounds
,
whereupon
the
said
Decreet
proceeded
;
which
being
done
by
those
who
were
appointed
by
the
Lords
;
some
of
the
Lords
did
object
against
the
same
,
That
they
did
mention
the
Lords
indefinitly
to
have
given
the
said
Decreet
;
Whereas
His
Majesty
was
informed
of
the
contrary
,
and
the
Information
was
true
;
and
therefore
it
was
desired
it
should
bear
,
That
,
upon
the
Votes
of
the
major
part
,
which
is
usual
in
all
Cases
,
the
Decreet
was
pronounced
:
Specially
,
seing
the
said
Letter
did
containe
the
Grounds
of
,
and
did
assert
the
Justice
of
the
said
Decreet
:
So
that
these
,
who
had
voted
against
the
same
,
could
not
belye
themselves
,
and
put
under
their
hand
the
contrarie
of
what
they
had
voted
.
And
albeit
in
all
Judicatories
,
even
in
Parliament
,
what
is
done
by
the
plurality
doth
overrule
and
conclude
the
Dissenters
,
so
as
to
submitt
to
the
same
:
Yet
they
are
not
obliged
to
maintain
or
assert
the
Justice
of
a
Sentence
and
Act
,
that
they
had
been
against
in
their
Judgment
and
vote
.
It
was
,
notwithstanding
,
carryed
by
plurality
,
That
without
the
amendement
foresaid
the
Letter
should
be
subscribed
by
all
the
Lords
;
the
President
having
promised
to
write
to
my
Lord
Lauderdale
,
what
was
truly
res
gesta
,
when
the
said
Decreet
was
given
:
And
upon
that
assureance
,
some
of
the
Lords
declared
when
they
subscribed
,
that
they
subscribed
not
their
oun
sense
,
but
the
sense
of
the
Court
:
And
though
they
were
concluded
,
as
said
is
,
yet
they
were
not
convinced
.
D.
219.
Glendyning
contra
the
Earl
of
Nithsdale
.
13.
January
.
1675.
WIlliam
Glendining
having
pursued
the
now
Earl
of
Nithsdale
as
Heir
to
Robert
the
late
Earl
of
Nithsdale
his
Father
,
for
fulfilling
a
Minute
betwixt
the
said
Robert
Earl
of
Nithsdale
and
William
Glendinning
of
Lagan
,
from
whom
the
Pursuer
had
Right
:
and
for
payment
of
the
half
of
the
duty
of
the
Lands
of
Douphingstoun
,
conform
to
the
said
Minut
:
and
Litiscontestation
was
made
in
the
cause
:
and
for
proving
the
rent
of
the
saids
Lands
of
Douphinstoun
,
It
was
craved
,
that
the
Depositions
of
witnesses
,
that
had
been
adduced
in
the
like
process
,
intented
against
the
said
Earl
,
as
representing
his
Father
for
implement
of
the
said
Minute
,
should
be
received
in
this
Process
:
But
the
Lords
having
considered
,
that
the
said
Earl
did
not
represent
his
Father
active
,
but
was
pursued
only
upon
the
passive
Titles
;
and
that
this
process
against
the
now
Earl
,
is
not
against
him
as
representing
the
last
Earl
;
neither
was
it
alledged
that
he
represents
him
;
Therfor
they
Found
;
that
the
said
Depositions
could
not
be
repeated
in
this
process
;
Seing
res
was
inter
alios
acta
;
and
acta
in
uno
judicio
non
probant
in
alio
,
nisi
inter
easdem
personas
;
or
these
who
represent
him
.
D.
220.
Edmiston
contra
Mr.
John
Preston
.
eod.
die
.
WAuchope
of
Edmiston
and
his
Lady
,
as
Executors
to
the
deceast
James
Raith
of
Edmiston
,
pursued
Mr.
John
Preston
lately
of
Haltrie
Advocate
,
for
payment
of
the
Tack
duty
for
a
Seam
of
Coal
,
belonging
to
Edmiston
,
and
set
to
him
for
certain
Years
.
It
was
alledged
for
the
Defender
,
That
he
ought
not
to
be
lyable
for
the
Years
in
question
;
because
,
having
entered
to
the
Possession
of
the
said
Coal
,
and
having
payed
the
Duty
for
the
time
he
possessed
;
he
was
forced
to
cease
from
working
,
in
respect
the
said
Coal
came
to
be
in
that
condition
,
that
it
could
not
be
wrought
,
partly
by
reason
of
the
defect
of
Roof
,
so
that
the
Coalyars
neither
would
nor
could
work
without
hazard
;
and
partly
by
reason
of
bad
Air
It
was
Replyed
,
That
the
Defender
having
accepted
a
Tack
of
a
Subject
,
lyable
to
such
hazards
,
eo
ipso
he
had
taken
his
hazard
;
and
was
in
the
case
,
as
if
he
had
acquired
a
Right
to
jactus
retis
.
It
was
Duplyed
,
That
alea
and
jactus
retis
,
and
spes
in
venditione
,
may
be
,
and
is
understood
to
be
sold
;
but
in
Locatione
,
spes
and
alea
is
not
thought
to
be
set
,
unless
it
appear
by
the
Contract
,
that
the
Conductor
should
take
the
hazard
;
seing
it
is
de
natura
of
Contracts
of
Location
,
that
fruitio
is
understood
to
be
given
and
set
;
and
that
merces
should
be
payed
ex
fructibus
.
And
where
the
Conductor
cannot
frui
,
upon
occasion
of
an
insuperable
impediment
,
which
does
not
arise
,
either
from
his
dole
,
or
culpa
,
or
negligence
,
as
in
this
case
;
remittitur
merces
:
as
is
clear
,
not
only
when
the
thing
that
is
set
is
a
subject
,
not
lyable
to
so
much
hazard
,
but
when
it
is
contingent
,
as
when
Gabells
or
Custums
are
set
,
or
Fishings
,
or
Milns
,
or
Coals
,
if
there
fall
out
such
an
impediment
,
as
doth
interrupt
the
fruition
and
perceptionem
fructuum
,
as
if
there
be
Pest
and
War
in
the
case
of
Custums
;
or
if
Herring
should
not
be
got
at
all
;
or
if
upon
occasion
of
inundation
,
Milns
should
be
unprofitable
;
or
Coal-heughs
should
be
drowned
or
burnt
.
The
Lords
,
before
Answer
,
Thought
fit
,
that
there
should
be
conjunct
Probation
allowed
to
both
Parties
,
anent
the
condition
of
the
Coal
;
and
the
Defenders
desisting
and
ceasing
from
working
thereof
,
and
the
Occasion
of
his
desisting
:
and
if
the
impediment
was
insuperable
.
Craigy
Reporter
.
D.
221.
eod.
die
.
APPlication
being
made
to
the
Lords
by
a
Bill
given
in
by
a
Widow
,
Desireing
,
that
she
may
be
allowed
to
intromet
with
the
Cropt
and
Goods
pertaining
to
the
Defunct
,
without
hazard
of
vitious
Intromission
:
The
Lords
thought
,
That
such
Warrands
being
Voluntariae
Jurisdictionis
,
and
the
Commissaries
being
entrusted
,
for
securing
the
Estate
of
Defunct
persons
to
the
nearest
of
Kin
,
and
Creditors
,
and
other
persons
having
interest
;
did
Remit
the
Petitioner
to
the
Commissars
of
the
place
.
Sir
David
Falconer
Younger
was
for
the
Petitioner
and
subscribed
the
Bill
.
D.
222.
Meldrum
contra
Tolquhone
.
20.
January
1675.
IN
a
Declarator
of
Escheat
at
the
instance
of
Meldrum
contra
Tolquhone
:
It
was
Alledged
,
That
the
Horning
was
Null
,
because
the
Party
was
Charged
only
upon
six
days
,
albeit
he
dwelt
benorth
the
Water
of
Dee
:
And
by
the
Act
of
Parliament
1600.
cap.
25.
All
Charges
of
Horning
against
persons
dwell
and
benorth
Dee
,
should
be
upon
15.
dayes
at
the
least
:
And
by
the
138
Act
Parl.
12.
K.
Ja.
6.
It
is
statute
,
that
in
case
any
Denounciations
of
Hornings
should
be
at
the
Mercat
Cross
of
Edinburgh
,
upon
Charges
,
upon
unlawful
and
impossible
Conditions
;
the
same
,
and
Horning
thereupon
should
be
Null
:
And
that
there
was
a
Decision
in
Duries
Book
in
Anno
1625
,
that
Hornings
even
upon
Bonds
against
persons
benorth
Dee
were
Null
.
It
was
Answered
,
That
the
Act
of
Parliament
in
Anno
1600
,
was
only
in
the
case
of
Hornings
upon
Citations
or
Charges
to
find
Law
borrowes
,
or
for
compearing
before
the
Council
,
as
appears
by
the
narrative
of
the
said
Act
which
doth
interpret
and
regulate
the
dispositive
Words
of
the
Act.
And
that
the
Act
of
Parliament
in
Anno
1592.
doth
not
militate
in
the
case
of
Hornings
upon
a
Clause
of
Registration
,
seing
after
that
Act
until
the
said
Act
1606
,
such
Clauses
that
Hornings
should
be
upon
6
dayes
,
were
not
thought
,
and
de
facto
are
not
impossible
.
And
as
to
the
practique
,
It
was
Answered
,
that
there
was
a
late
practique
in
Anno
1664
,
upon
a
Debate
in
the
Innerhouse
,
in
the
case
of
Philorth
contra
Frazer
;
Whereby
it
was
Found
,
That
the
Act
of
Parliament
1600.
is
to
be
understood
,
in
the
case
foresaid
,
where
Hornings
are
upon
Charges
of
the
nature
foresaid
,
for
appearing
before
the
Council
,
and
such
like
;
but
not
in
the
case
in
question
and
others
of
that
nature
,
where
Hornings
are
upon
Bonds
,
and
Clauses
of
Registration
therein
contained
,
which
do
bind
,
and
cannot
be
questioned
by
those
who
do
oblidge
themselves
.
The
Lords
considered
,
that
the
narrative
of
the
said
Act
doth
clear
the
meaning
of
the
dispositive
words
;
and
there
needed
not
to
be
a
Law
and
remedy
as
to
Hornings
upon
Clauses
of
Registration
,
seing
Parties
could
not
help
themselves
as
to
Charges
to
compear
before
the
Council
,
and
others
of
that
nature
without
a
Law
:
But
they
were
Arbiters
,
and
could
make
a
Law
to
themselves
,
as
to
Clauses
contained
in
Contracts
or
Writes
,
if
they
thought
them
grievous
or
impossible
:
And
that
there
appeared
to
be
a
singularitie
in
the
case
mentioned
by
Durie
,
seing
the
Charge
was
given
in
Orkney
upon
6
dayes
,
which
could
not
well
be
satisfied
:
And
therefore
the
Lords
,
for
the
reasons
foresaid
,
did
sustain
the
Horning
.
Actor
Hog
and
Thoirs
:
alteri
Falconer
and
Forbes
.
In
praesentia
.
D.
223.
Carfrae
contra
Telzifer
.
eod.
die
.
A
Person
being
pursued
as
representing
a
Debitor
,
upon
that
passive
Title
,
that
he
had
behaved
himself
as
Heir
to
the
Defunct
;
In
sua
far
as
being
conveened
at
the
instance
of
another
Party
,
he
had
proponed
a
peremptor
Defence
:
The
Lords
Found
,
That
the
proponing
of
a
Defence
upon
payment
or
such
like
,
was
not
such
a
Deed
as
could
infer
the
Passive
Title
of
Behaving
;
unless
it
were
adminicled
with
Intromission
or
otherwayes
.
Nevoy
Reporter
.
Hamiltoun
Clerk
.
Vide
10
December
1674.
D.
224.
Chalmers
contra
Ferquharson
and
Gordon
.
22.
January
1675.
THE
Lords
Found
,
That
a
Person
being
Pursued
as
Intrometter
;
and
having
Alledged
,
that
before
the
intention
of
the
cause
she
had
obtained
a
Gift
of
her
Husbands
Escheat
,
the
said
Defence
is
Relevant
:
And
that
after
Intromission
,
there
being
a
Donator
confirmed
before
intention
of
the
Cause
,
or
the
Intrometter
obtaining
a
Gift
tho
not
declared
,
there
being
no
necessity
to
declare
the
same
against
her self
;
that
the
same
doth
purge
even
Intromission
before
the
Gift
.
Some
of
the
Lords
were
of
another
opinion
,
upon
that
Ground
,
that
ipso
momento
that
the
parties
intromet
,
there
is
a
Passive
Title
introduced
against
them
;
which
doth
not
arise
upon
the
intention
of
the
Cause
,
but
upon
their
own
Act
of
behaving
;
and
Jus
being
semel
quaesitum
to
Creditors
cannot
be
taken
from
them
,
except
in
the
case
of
an
Executor
confirmed
before
the
intention
of
the
Cause
;
against
whom
the
Creditor
may
have
Action
:
And
that
there
is
a
difference
betwixt
a
Donator
having
declared
,
and
an
Executor
having
confirmed
;
In
respect
the
Executor
is
lyable
to
Creditors
but
not
a
Donator
;
and
an
Appearand
Heir
having
become
lyable
by
intrometting
with
Moveable
Heirship
,
and
behaving
as
Heir
,
his
Intromission
is
not
purged
by
a
supervenient
Gift
;
seing
his
immixing
is
Aditio
facto
;
and
there
is
eadem
ratio
as
to
Intrometters
,
who
are
Executors
a
tort
(
as
the
English
Lawyers
speak
)
and
wrongously
:
And
in
effect
,
by
their
Intromission
adeunt
passive
,
and
are
lyable
to
Creditors
.
Strathurd
Reporter
.
D.
225.
Jean
Maxuel
contra
Mr.
William
Maxuel
.
eod.
die
.
MR.
William
Maxuel
Advocate
,
being
pursued
at
the
instance
of
Jean
Maxuel
natural
Daughter
to
Sprinkel
,
for
5000
Merks
Alledged
due
to
her
by
Bond
,
granted
by
the
said
Mr.
William
,
which
she
did
refer
to
his
Oath
;
did
give
in
a
qualified
Oath
,
Declaring
that
he
had
granted
a
Bond
to
the
Pursuer
at
the
desire
of
her
said
Father
,
but
the
same
was
never
delivered
;
and
was
so
far
from
being
effectual
,
that
by
the
express
order
of
Sprinkel
,
he
was
not
to
deliver
the
same
to
the
Pursuer
without
his
warrand
;
and
that
he
had
given
him
order
to
destroy
the
said
Bond
,
in
consideration
that
he
was
not
satisfied
with
the
Pursuers
carriage
;
and
that
he
had
left
her
a
Legacy
,
which
the
Defender
had
payed
.
This
quality
was
thought
to
be
so
intrinsick
,
that
his
Declaration
could
not
be
divided
,
so
as
to
prove
the
granting
of
the
Bond
,
and
not
the
Quality
;
Specially
seing
the
said
Quality
was
adminiculate
with
Letters
,
which
the
said
Mr.
William
did
produce
,
which
were
written
by
Sprinkel
to
the
same
purpose
:
Yet
by
plurality
,
It
was
Found
,
that
his
Oath
proved
the
Lybel
;
and
Decreet
was
given
against
him
.
Thereafter
the
said
Mr.
William
obtained
a
Suspension
upon
that
Reason
,
that
the
Decreet
was
Extracted
by
favour
of
the
Clerks
,
not
without
precipitation
;
after
that
he
had
applyed
to
the
Lords
,
and
desired
that
the
case
might
be
reconsidered
:
And
that
the
Lords
had
Ordained
the
Decreet
to
be
brought
back
;
and
because
the
party
refused
,
they
past
a
Suspension
.
The
case
being
debated
in
praesentia
;
The
Decreet
in
foro
was
obtruded
,
and
that
it
was
just
upon
the
matter
;
seing
as
to
not
delivery
,
It
appeared
by
his
Oath
,
that
he
was
trusted
to
the
behoof
of
the
Pursuer
,
and
was
in
effect
a
Depositar
,
so
that
he
could
not
cancel
the
said
Bond
without
consent
of
the
Pursuer
:
To
which
It
was
Answered
,
That
the
Decreet
was
Extracted
as
said
is
,
and
that
immediatly
upon
the
pronounceing
of
the
same
,
he
had
applyed
to
the
Lords
to
the
effect
foresaid
;
And
it
cannot
be
said
,
that
he
had
any
Trust
from
the
Pursuer
,
but
only
from
her
Father
:
And
tho
he
could
be
thought
to
be
a
Depositar
;
the
manner
and
quality
and
terms
of
the
Depositation
,
could
not
be
proven
otherwayes
,
but
Scripto
or
Juramento
.
The
Lords
notwithstanding
,
Thought
they
were
concerned
to
adhere
to
the
Decreet
being
in
foro
;
least
their
Decreets
should
be
obnoxious
to
that
prejudice
that
even
when
they
are
in
foro
,
they
may
be
questioned
and
altered
;
Some
of
the
Lords
were
of
the
opinion
,
that
the
great
consideration
the
Lords
should
have
,
is
to
do
Justice
,
and
that
the
party
having
omitted
nothing
upon
his
part
,
neither
before
nor
after
pronounceing
of
the
same
;
and
upon
the
matter
the
reason
of
Suspension
as
to
the
point
of
Justice
and
Law
being
unanswerably
Relevant
,
It
was
hard
that
a
Party
should
be
grieved
upon
a
pretence
of
form
;
there
being
a
singularity
in
this
case
upon
which
the
Honour
of
the
Lords
may
be
salved
,
viz.
That
the
said
Decreet
was
Extracted
with
too
much
precipitation
.
D.
226.
Joynt
Petition
of
the
Advocates
,
26.
January
1675.
A
Joint
Petition
was
presented
by
the
Advocates
that
had
withdrawen
;
whereby
they
did
not
expresly
desire
,
that
they
should
be
readmitted
,
but
did
hold
forth
that
they
were
free
of
,
and
hated
the
very
thought
of
Sedition
,
and
that
the
Lords
who
did
best
know
the
Reasons
of
their
withdrawing
would
vindicate
them
to
His
Majesty
;
and
that
they
were
willing
to
serve
with
that
freedom
which
their
predecessors
had
formerly
,
and
which
they
conceived
was
no
more
than
was
necessary
for
these
of
their
station
,
in
order
to
the
interest
of
the
People
,
that
they
acknowledge
and
were
willing
to
submit
to
the
just
Power
of
the
Lords
,
as
their
predecessors
had
enjoyed
the
same
,
and
desired
that
the
Petition
should
be
transmitted
to
His
Majesty
as
satisfactory
.
Some
of
the
Lords
thought
,
that
the
Petition
was
altogether
dissatisfactory
,
and
should
be
thrown
over
the
Barr
,
being
as
to
the
manner
,
in
a
joint
and
Factious
way
;
And
as
to
the
matter
,
no
ways
satisfactory
,
insinuating
a
qualification
of
the
Lords
Power
,
and
their
Submission
;
and
that
the
Lords
pretended
to
a
Power
which
their
Predecessors
had
not
,
and
that
was
not
just
.
Others
of
the
Lords
were
of
the
opinion
,
That
whatever
mistakes
there
might
be
as
to
the
manner
,
It
was
hard
upon
that
account
to
reject
it
:
and
that
if
the
time
was
not
so
pressing
(
that
which
was
appointed
for
Addresses
being
to
Elapse
the
very
next
day
)
it
might
have
been
helped
as
to
the
manner
,
by
giving
Intimation
to
the
Advocates
,
that
it
would
not
satisfy
;
But
there
being
no
time
for
that
,
and
the
certification
being
so
high
and
heavy
,
viz.
utter
and
perpetual
incapacity
;
it
might
be
justly
said
,
as
it
is
Reported
,
a
Judge
in
England
had
said
in
the
case
of
a
person
accused
of
Theft
,
whom
he
enclined
to
favour
by
reason
of
the
meanness
of
the
value
of
the
thing
that
was
stollen
,
being
a
Watch
of
Brass
only
,
and
the
matter
of
the
Watch
being
beneath
that
value
which
the
Law
of
England
requires
for
punishing
Theives
Capitally
;
And
it
being
Alledged
,
that
the
Fashion
with
the
Matter
did
exceed
the
value
foresaid
,
It
is
said
,
that
he
Answered
,
That
he
would
take
no
Mans
Life
for
the
Fashion
,
and
it
were
hard
,
for
the
Fashion
and
modus
,
and
the
way
of
Address
to
take
from
so
many
persons
their
Livelyhood
,
and
from
the
Countrey
their
Service
,
that
was
so
necessary
to
them
.
And
that
the
Advocates
fault
being
a
Joint-withdrawing
,
they
might
conceive
that
the
expiation
of
the
same
should
be
by
a
joint
Address
;
And
yet
the
Petition
was
not
joint
as
to
all
the
Advocates
concerned
,
many
having
given
in
and
being
to
give
in
several
Petitions
:
And
as
to
the
matter
it
was
Represented
,
that
though
the
Petition
is
general
,
yet
the
generals
therein
contained
do
imply
the
particulars
that
would
be
satisfactory
,
seing
the
Lords
did
not
pretend
to
any
power
,
but
that
which
was
just
,
and
no
violation
was
intended
of
their
Liberties
,
neither
was
any
innovation
introduced
or
obtruded
upon
them
or
their
carriage
in
their
station
.
Upon
all
which
,
It
was
thought
,
that
the
Petition
should
be
transmitted
simply
,
to
the
effect
it
might
import
Interruption
of
the
Prescription
and
Certification
;
any
Acts
of
Interruption
even
quales
quales
being
sufficient
:
And
the
more
short
that
the
Prescription
be
,
and
the
higher
the
Certification
and
prejudice
of
Prescription
,
as
in
this
case
;
the
Interruption
being
the
more
favourable
.
The
Lords
notwithstanding
,
Found
,
that
the
Petition
not
being
satisfactory
,
could
not
be
transmitted
to
any
effect
.
And
yet
did
declare
,
that
albeit
the
Proclamation
was
conceived
in
these
terms
,
viz.
That
if
the
Advocates
should
not
give
satisfaction
betwixt
and
the
28.
day
;
if
they
should
apply
upon
the
28.
day
,
their
Application
should
be
thought
to
be
within
the
time
contained
in
the
Act
:
And
that
in
stile
of
Law
,
these
words
,
betwixt
and
a
certain
Term
,
does
not
exclude
the
day
of
the
Term.
They
declared
also
,
That
the
Petition
being
dissatisfactory
upon
that
account
amongst
others
,
viz.
That
they
did
not
offer
satisfaction
,
nor
desire
to
be
readmitted
,
That
Petitions
being
given
in
severally
,
and
bearing
that
they
desired
to
Re-enter
,
and
were
willing
to
give
satisfaction
conform
to
the
Kings
Letter
and
Proclamation
,
should
be
received
and
transmitted
as
satisfactory
.
D.
227.
Eod.
die
.
UPon
a
Bill
,
the
Lords
Found
,
That
Parties
having
a
joint
and
equal
Interest
in
Lands
and
Tenements
;
both
,
as
to
the
Right
it self
,
being
disponed
to
them
jointly
,
and
as
to
the
respective
Proportion
and
Parts
of
the
said
Tenements
;
the
principal
Writes
should
be
keeped
by
such
as
offered
Caution
to
the
other
Portioners
;
and
that
Transumpts
should
be
given
to
the
other
Persons
concerned
upon
the
Common
Charges
of
them
all
.
D.
228.
27.
January
1675.
IN
the
case
abovementioned
,
5.
January
instant
,
concerning
Con-cautioners
obliged
conjunctly
and
severally
for
the
Principal
,
without
a
clause
of
mutual
Relief
:
The
Lords
Found
,
That
one
of
the
Cautioners
having
payed
and
taken
Assignation
,
the
others
had
a
good
Defence
against
him
for
his
own
part
,
notwithstanding
of
the
Reasons
there
abovementioned
;
and
that
it
was
urged
,
that
the
Co-cautioner
could
not
be
forced
to
relieve
the
Defender
if
he
had
payed
the
whole
;
seing
he
had
neither
actio
mandati
,
there
being
none
given
by
either
of
the
Cautioners
to
others
;
nor
was
obliged
to
relieve
the
other
Cautioners
by
an
express
Clause
,
which
is
ever
insert
,
when
mutual
relief
is
intended
:
And
that
this
is
clear
Law
,
it
appears
from
the
Title
of
the
Civil
Law
de
Fidejussoribus
ff.
lib.
46.
Tit.
1.
leg
.
39.
Et
leg.
36.
ibid.
Et.
Leg.
11.
Cod.
eod.
Tit.
The
Lords
Decided
,
as
said
is
,
In
respect
of
a
Practique
produced
betwixt
_____
in
anno
_____
relating
to
a
former
Practique
in
anno
_____
D.
229.
The
Minister
of
Tulliallane
contra
Colvill
of
Larg
and
Kincardne
.
28.
January
1675.
IT
was
Found
by
the
Lords
Commissioners
for
Teinds
,
That
the
Heretors
of
Lands
,
having
Right
cum
decimis
inclusis
were
not
lyable
to
the
Augmentations
of
Ministers
Stipends
;
and
that
no
Locality
could
be
given
out
of
their
Teinds
,
the
saids
Infeftments
being
before
the
Year
1587.
And
that
the
Feu-duty
payable
to
Church-men
for
Stock
and
Teind
in
Victual
,
was
not
lyable
thereto
;
because
the
Teinds
not
being
separate
from
the
Stock
,
and
the
Heretors
having
Right
to
the
Lands
free
of
Teinds
,
in
effect
there
were
not
decimae
:
And
by
the
Acts
of
Parliament
,
and
the
Kings
Decreet
Arbitral
,
Teinds
are
lyable
to
Ministers
Feu-duties
,
in
consideration
that
the
Lords
of
Erection
and
Titulars
,
had
Right
thereto
from
the
King
since
the
Act
of
Annexation
:
And
that
the
King
,
who
might
have
questioned
their
Rights
,
was
pleased
by
the
said
Acts
of
Parliament
,
and
Decreet
Arbitral
,
to
affect
them
with
the
burden
of
Ministers
Stipends
;
whereas
such
Rights
cum
decimis
,
were
granted
by
Church-men
,
and
did
not
flow
from
the
King
,
but
from
them
,
at
such
time
as
by
the
Law
then
standing
,
they
might
have
granted
the
same
.
D.
230.
Doctor
Hay
contra
Jamieson
and
Alexander
.
eod.
die
.
GEorge
Steuart
Advocate
,
having
comprised
from
_____
Con
,
the
Lands
of
Artrochie
and
others
;
did
dispone
the
said
Lands
and
his
Right
of
Compriseing
to
_____
Neilson
:
and
thereafter
the
said
Neilson
failing
in
payment
of
the
price
,
the
said
George
Steuart
did
Comprise
back
from
the
said
Neilson
the
said
Lands
:
and
Andrew
Alexander
did
also
comprise
from
the
said
Neilson
the
said
Lands
,
and
his
Right
foresaid
.
Doctor
Hay
,
Having
also
comprised
from
_____
Con
the
foresaid
Lands
,
pursued
an
Improbation
of
the
said
first
Comprysing
,
at
George
Steuart's
Instance
;
and
having
called
thereto
the
said
George
Steuart
and
Neilson
,
and
Marjorie
Jamison
,
who
pretended
Right
to
the
said
Lands
;
he
did
obtain
a
Certification
against
two
Bonds
,
which
were
the
Ground
of
the
said
Comprising
;
upon
Compearance
,
and
a
long
Dependance
,
and
long
Terms
assigned
for
produceing
the
said
Bonds
:
And
thereafter
the
Doctor
pursued
a
Removing
from
the
said
Lands
,
against
the
said
Andrew
Alexander
and
others
:
And
it
was
Alledged
for
the
said
Alexander
,
That
he
had
Right
to
the
said
Lands
,
and
was
in
Possession
upon
a
Right
from
George
Steuart
,
who
had
Right
thereto
,
(
as
said
is
)
by
a
Comprising
against
_____
Con
the
common
Debitor
:
Whereunto
It
was
Answered
,
That
the
Defenders
could
not
found
a
Defence
upon
George
Steuart's
Comprising
,
Because
the
saids
Bonds
,
being
the
Grounds
thereof
,
were
false
and
improven
:
To
which
It
was
Duplyed
,
That
the
Certification
against
the
said
Bonds
,
was
only
granted
against
George
Steuart
;
and
that
the
said
Andrew
Alexander
was
not
called
,
and
that
now
there
is
produced
the
foresaids
Bonds
;
And
that
the
Extracts
of
the
same
out
of
the
Register
of
the
Commissariot
of
Aberdene
had
been
formerly
produced
;
but
the
Principals
,
which
were
in
publica
custodia
,
as
the
warrands
of
the
same
,
could
not
be
then
found
by
reason
of
the
disorder
of
that
and
many
other
Registers
,
upon
occasion
of
the
late
Troubles
;
and
the
same
being
now
found
aught
to
be
received
and
sustained
as
the
Grounds
of
the
said
Comprysing
;
Seing
they
are
not
improven
and
found
false
by
a
Decreet
of
Improbation
upon
tryal
of
the
Falsehood
;
But
a
Certification
is
only
given
against
the
same
for
not
production
;
which
at
the
most
doth
amount
only
to
a
presumptive
Falsehood
,
which
is
now
taken
away
(
as
said
is
)
by
production
of
the
saids
Bonds
:
seing
praesumptio
cedit
veritati
.
It
was
Answered
for
the
Pursuer
,
That
all
Persons
,
whom
he
was
obliged
to
take
Notice
of
,
and
to
call
to
the
Improbation
of
the
first
Apprysing
,
were
called
;
viz.
The
said
George
Steuart
,
at
whose
Instance
the
said
Comprising
was
deduced
;
and
who
had
also
Comprised
from
Neilson
the
Right
thereof
,
as
said
is
;
and
Neilson
himself
:
and
that
he
needed
not
call
the
said
Alexander
,
who
had
only
a
subaltern
Right
,
and
was
not
infeft
:
and
albeit
he
had
comprised
from
Neilson
,
yet
by
that
Comprising
he
had
not
such
an
interest
as
the
Pursuer
was
obliged
to
know
;
in
sua
far
as
,
the
Right
of
the
Lands
in
question
,
was
settled
in
the
Person
of
the
said
George
Steuart
,
by
the
Comprising
against
Neilson
:
after
which
Neilson
had
only
a
Reversion
:
and
the
said
Neilson
was
called
himself
,
as
said
is
:
And
the
said
Alexander's
Right
by
his
Comprising
against
Neilson
,
being
only
a
Right
of
the
Legal
of
George
Steuart's
Comprising
against
Neilson
,
the
Pursuer
was
not
holden
to
take
notice
of
the
said
Right
:
and
the
said
Reversion
is
not
only
now
expired
,
but
was
expired
the
time
of
the
obtaining
of
the
said
Certification
,
no
Order
being
used
thereupon
:
And
albeit
the
said
Andrew
Alexander
was
not
called
,
yet
he
did
compear
in
the
said
Improbation
;
and
albeit
he
pretends
,
that
his
right
was
reserved
,
the
said
pretence
is
of
no
weight
;
seing
it
was
reserved
only
as
accords
:
And
Certifications
being
the
great
Security
of
the
People
,
and
specially
where
the
same
are
obtained
upon
compearance
,
and
after
diverse
termes
are
assigned
;
and
after
Certification
granted
,
the
samen
stopt
for
a
long
time
,
upon
expectation
that
the
Writes
may
be
got
,
as
in
this
Case
;
the
samen
cannot
be
canvelled
and
loosed
,
praetextu
Instrumentorum
noviter
repertorum
.
The
Lords
,
For
the
Reason
foresaid
,
thought
hard
to
loose
the
said
Certification
;
but
specially
in
this
case
,
seing
the
said
Alexander
will
have
and
take
the
advantage
of
Stuarts
expired
Comprysing
;
and
exclude
the
Doctor
who
was
a
true
and
real
Creditor
,
to
whose
prejudice
the
said
George
Stuart
and
the
other
Defenders
had
patched
up
,
not
only
the
said
Comprysing
for
small
Sums
,
but
other
Rights
;
which
the
Donator
had
been
forced
,
after
he
had
Comprysed
,
to
question
by
a
Reduction
,
and
had
prevailed
after
a
long
dependence
,
and
after
they
had
possest
the
Lands
for
a
long
time
:
And
on
the
other
hand
,
the
said
principal
Bonds
being
now
produced
;
they
thought
it
hard
,
that
the
Doctor
should
take
advantage
of
the
same
,
to
exclude
the
Defenders
altogether
;
and
therefore
they
proposed
to
the
Doctor
,
that
he
should
grant
a
Reversion
to
the
said
Alexander
,
upon
payment
of
what
was
justly
due
to
him
,
within
the
space
of
two
Years
:
And
the
Doctor
acquiesceing
,
they
decerned
in
the
Removing
with
the
quality
foresaid
,
Lord
Glendoick
Reporter
.
Gibson
Clerk
.
Actor
Chalmers
alteri
Thoirs
.
Vide
17.
February
1676.
inter
eosdem
.
D.
231.
contra
Maxuel
.
29.
January
.
1675.
A
Bill
of
Exchange
being
drawn
upon
three
Merchants
,
without
mentioning
that
it
was
drawn
upon
them
,
either
severally
or
conjunctly
;
and
one
of
the
persons
upon
whom
it
was
drawn
,
being
pursued
for
the
whole
Sum
in
the
said
Bill
,
being
accepted
by
them
all
simply
,
without
mentioning
that
they
had
accepted
the
same
only
for
their
own
Parts
;
It
was
Alledged
,
That
they
were
only
lyable
for
their
own
Parts
,
being
correi
debendi
;
which
is
understood
in
Law
,
that
they
should
not
be
lyable
in
solidum
,
unless
it
were
so
exprest
,
especially
seing
the
Pursuer
cannot
say
,
that
they
were
either
Partners
,
or
that
each
of
them
had
provision
extending
to
the
whole
Sum.
The
Lords
,
having
thought
fit
to
try
the
custom
of
Merchants
,
and
to
take
the
opinion
thereupon
of
certain
Merchants
in
Edinburgh
;
and
the
Report
being
positive
,
that
it
was
the
custom
of
Merchants
,
both
in
the
place
where
the
Bill
was
drawn
and
here
,
that
there
should
be
Action
in
solidum
upon
such
Bills
,
when
they
are
drawn
and
accepted
simply
in
manner
foresaid
;
Found
the
Defenders
lyable
in
solidum
.
D.
232.
McKintoish
contra
McKenze
.
29.
January
.
1675
A
Decreet
,
against
a
person
holden
as
Confest
before
the
Lords
of
Session
about
20
Years
agoe
,
was
questioned
as
null
;
upon
that
pretence
,
that
it
did
not
bear
,
that
the
Party
,
against
whom
it
was
given
,
was
personally
apprehended
,
but
only
that
he
was
lawfully
cited
.
The
Lords
Found
,
That
after
so
long
time
,
the
said
Decreet
could
not
be
declared
null
and
void
,
upon
pretence
of
an
intrinsick
Nullity
;
In
regard
the
said
Decreet
did
bear
,
that
the
Defender
was
lawfully
cited
to
give
his
Oath
;
and
he
could
not
be
thought
to
be
lawfully
cited
,
unless
he
had
been
personally
apprehended
;
and
praesumitur
pro
sententia
,
and
that
omnia
are
solenniter
acta
;
unless
it
were
made
appear
by
production
of
the
Execution
,
that
the
Defender
was
not
personally
apprehended
:
And
therefore
the
said
Reason
of
Nullity
was
Repelled
;
Reserving
Action
of
Reduction
as
Accords
.
Monro
Clerk
.
D.
233.
Scrimzeor
contra
Kingheny
.
2.
February
.
1675.
MAjor
Scrimzeour
having
named
in
his
Testament
in
Anno
1650.
Sir
John
Carnagie
,
and
the
Tutor
of
Purie
Fodringhame
and
Alexander
Wedderburne
of
Kinghenie
to
be
Tutors
to
his
two
Daughters
:
Margaret
Scrimzeour
one
of
the
said
Daughters
pursued
the
said
Alexander
Wedderburne
for
Compt
and
Reckoning
and
Payment
;
and
an
Auditor
being
appointed
,
and
that
Question
being
started
before
him
,
viz.
Whether
the
Tutor
should
be
Lyable
for
Negligence
,
from
the
time
that
he
accepted
;
or
before
,
after
he
knew
that
he
was
named
Tutor
:
And
upon
the
Auditors
Report
,
It
was
Found
by
the
Lords
,
that
he
should
be
lyable
only
from
the
time
of
his
accepting
;
and
yet
the
Pursuer
having
desired
and
got
a
Hearing
in
the
Innerhouse
,
It
was
again
urged
for
her
,
that
the
Tutor
should
be
lyable
,
after
he
knew
that
he
was
named
,
and
did
cease
to
do
that
Diligence
that
was
incumbent
to
him
;
and
diverse
Citations
were
adduced
from
the
Civil
Law
,
and
the
Titles
of
the
ff.
&
Cod.
De
Tutela
&
Tutoribus
;
And
De
Administratione
&
periculo
Tutorum
;
which
ought
to
militate
in
this
case
,
especially
in
respect
the
said
Defender
was
not
only
named
Tutor
,
but
was
a
Legator
;
a
considerable
Sum
being
left
to
him
by
the
said
Testament
,
which
Law
presumes
was
left
to
him
in
contemplation
of
the
burden
of
Tutory
put
upon
him
;
so
that
having
accepted
the
said
Legacy
,
and
having
confirmed
himself
Executor
Legator
,
he
could
not
decline
the
Office
,
not
to
be
Lyable
as
Tutor
or
ut
Protutor
.
And
it
was
farder
urged
,
that
as
Executor
Legator
,
he
was
lyable
to
do
Diligence
:
To
which
It
was
Answered
,
That
the
former
Interloquitor
was
opponed
being
just
,
and
upon
Relevant
Grounds
of
Law
,
in
respect
the
Civil
Law
is
not
received
by
us
altogether
in
the
case
of
Tutors
;
the
Office
of
Tutorie
by
the
Civil
Civil
Law
being
munus
publicum
&
necessarium
,
which
no
person
can
decline
,
unless
he
have
and
alledge
a
just
Ground
of
Excuse
,
within
the
time
limited
by
that
Law
;
whereas
by
our
Law
and
Custom
,
when
any
person
or
persons
are
named
Tutors
,
they
are
at
liberty
to
accept
the
said
Office
or
not
;
so
that
a
person
named
Tutor
until
he
accept
,
neither
is
,
nor
is
obliged
to
do
the
Duty
of
a
Tutor
:
And
albeit
by
the
Civil
Law
,
a
Legacy
being
left
to
a
Tutor
,
is
presumed
to
be
left
eo
intuitu
and
upon
condition
,
that
he
should
accept
to
be
Tutor
,
yet
by
the
Civil
Law
,
if
the
person
named
Tutor
do
not
actually
get
the
said
Legacy
,
nisi
consecutus
sit
,
which
are
the
words
of
the
said
Law
,
he
is
not
obliged
to
accept
the
said
Office
;
and
it
is
not
,
nor
can
it
be
said
,
that
the
Defender
got
the
said
Legacy
before
he
did
accept
:
And
as
to
that
other
Ground
,
that
the
Defender
being
Executor
Legator
was
obliged
to
do
Diligence
;
It
was
Answered
,
That
by
late
Decisions
,
an
Executor
Creditor
is
only
lyable
to
intromet
,
in
order
to
his
own
satisfaction
;
and
an
Executor
qua
Legator
is
in
the
same
case
as
an
Executor
Creditor
;
seing
a
Legacy
is
a
Debt
payable
out
of
the
Executry
;
and
the
Legator
has
no
interest
to
confirm
,
but
to
the
effect
he
may
be
payed
of
the
same
.
The
Lords
Found
,
That
a
Tutor
is
lyable
only
from
the
time
that
he
did
accept
:
and
that
the
leaving
to
him
,
and
his
accepting
of
a
Legacy
did
not
alter
the
Case
;
unless
before
his
accepting
of
the
said
Office
,
he
not
only
had
owned
,
but
got
the
said
Legacy
:
And
this
Pursuit
being
only
actio
Tutelae
,
and
for
Compt
and
Reckoning
against
the
Defender
as
Tutor
,
they
did
not
determine
the
said
Question
,
How
far
an
Executor
Legator
should
be
lyable
?
but
reserved
the
same
,
until
the
Defender
should
be
pursued
as
Executor
.
The
Lords
,
in
the
Debate
amongst
themselves
,
some
of
them
did
urge
these
Arguments
;
That
a
Tutor
being
lyable
only
ratione
Officii
,
he
cannot
be
lyable
before
he
accept
the
said
Office
;
it
being
inconsistent
with
Law
,
that
he
should
be
lyable
to
the
Duty
of
an
Office
before
he
have
it
,
which
would
be
Filius
ante
Patrem
.
2.
In
Law
,
a
Tutorie
is
quasi
Contractus
;
and
as
in
all
Contracts
,
it
is
required
that
there
should
be
the
mutual
Deeds
of
both
Parties
contracters
;
and
the
Nomination
(
which
is
the
Deed
of
the
Defunct
)
did
not
bind
the
Tutor
,
until
he
bind
himself
by
accepting
,
which
is
his
own
Deed.
3.
That
a
Tutor
,
having
a
Legacy
,
should
be
obliged
to
accept
it
,
is
only
provided
by
the
Civil
Law
;
which
is
the
Municipal
Law
of
the
Romans
;
and
is
not
of
force
with
us
,
until
it
become
our
Law
,
either
by
a
Statute
,
or
Custom
authorizing
the
same
;
and
even
by
the
Civil
Law
,
praesumitur
only
that
the
Legacie
left
to
the
Tutor
is
upon
the
account
foresaid
,
but
that
Presumption
is
only
in
the
case
,
where
it
cannot
be
thought
,
that
the
Defunct
would
have
left
the
Legacie
upon
another
account
,
viz.
of
Relation
or
any
other
Consideration
;
Whereas
,
in
this
case
,
it
cannot
be
thought
,
that
the
said
Legacy
was
left
to
the
Defender
,
upon
the
account
that
he
was
Tutor
,
in
respect
he
being
the
last
named
of
the
three
Tutors
,
there
were
no
Legacy
left
to
them
;
and
he
was
Nephew
to
the
Defunct
,
who
had
a
great
kindness
for
him
:
and
the
said
Legacy
was
not
left
to
him
simply
,
but
in
case
his
Wife
,
whom
he
thought
to
be
with
Child
,
should
not
be
brought
to
bed
of
a
Son
.
4.
The
Defender
could
not
accept
the
said
Office
of
Tutor
Testamentar
,
Because
he
and
the
other
two
Tutors
were
named
conjunctly
,
and
the
other
two
living
,
he
could
not
be
Tutor
alone
.
Actor
Dalrymple
,
alteri
Falconer
.
Monro
Clerk
.
D.
234.
3.
February
1675.
A
Removing
being
pursued
from
some
Lands
of
the
Estate
of
Collarnie
;
the
Lady
Collarnie
compeared
,
and
alledged
,
that
the
Tennent
could
not
be
removed
without
her
consent
,
seing
the
had
right
to
a
Terce
by
the
Law
,
and
was
not
excluded
by
her
Contract
of
Marriage
,
tho
she
was
provided
thereby
to
a
Jointure
,
but
not
in
satisfaction
of
her
Terce
,
or
what
else
she
could
pretend
:
Whereunto
It
was
Answered
,
That
she
was
not
served
nor
kenned
to
a
Terce
;
and
until
then
,
she
had
no
interest
to
compear
to
stop
the
Removing
.
The
Lords
Repelled
the
Defence
,
and
Found
she
had
no
Interest
:
Reserving
her
Right
of
Terce
,
when
she
should
be
served
and
kend
,
as
accords
.
Craigie
Reporter
.
D.
235.
Oliphant
of
Provostmains
contra
_____
eod.
die
.
A
Bill
was
given
in
,
desiring
,
that
a
Comprising
being
deduced
,
and
the
Messenger
having
deceased
in
the
interim
,
before
he
subscried
the
same
;
Therefore
an
other
Messenger
who
was
his
Collegue
might
be
allowed
and
Warranted
to
subscribe
the
said
Comprising
.
The
Lords
considered
,
That
the
Messenger
that
was
on
life
,
tho
he
had
been
employed
to
execute
the
Letters
of
the
Comprising
,
by
denounceing
and
citeing
,
yet
he
did
not
sit
and
was
Collegue
to
the
deceast
Messenger
and
was
Judge
with
him
,
the
day
and
time
of
the
deduceing
of
the
said
Comprising
:
and
that
a
Comprising
being
Processus
Executivus
,
consisting
of
the
Executions
,
and
of
the
Process
and
Sentence
of
Comprising
,
upon
the
day
that
the
Debitor
was
cited
thereto
;
tho
diverse
Messengers
may
act
severally
as
to
Citation
and
Denunciation
,
yet
none
of
them
could
be
looked
upon
as
the
Judge
and
the
Pronouncer
of
the
Sentence
,
who
ought
to
subscribe
the
same
,
but
the
Messenger
that
did
actually
sit
as
Judge
,
and
upon
the
verdict
of
the
Inquest
,
did
Decern
and
Adjudge
.
D.
236.
Cranston
contra
Mr.
Mark
Ker
of
Moriston
.
4.
February
,
1675.
UPon
a
Bill
,
it
was
desired
,
that
Witnesses
should
be
examined
in
relation
to
a
Process
,
that
their
Depositions
should
lye
in
retentis
:
But
The
Lords
Found
,
That
tho
Summons
were
raised
,
that
the
samen
not
being
execute
,
there
was
not
a
Dependence
:
and
that
it
was
a
streatch
great
enough
,
to
receive
Witnesses
before
Litiscontestation
in
a
depending
Process
,
which
the
Lords
are
sometimes
in
use
to
do
:
but
that
Witnesses
should
be
received
upon
a
Bill
,
without
the
Foundation
of
a
Process
,
it
is
inconsistent
with
Form
.
It
is
to
be
Regrated
,
That
of
late
,
the
time
of
the
English
,
that
Abuse
having
creept
in
,
that
there
are
so
many
Bills
given
in
,
and
sometimes
past
through
inadvertencie
in
a
hurrie
;
the
said
custom
should
be
yet
retained
;
so
that
Bills
do
justle
out
Process
and
the
hearing
of
Causes
;
Especially
it
being
considered
,
that
they
are
oft
times
offered
in
the
very
time
,
when
after
pleading
in
other
Causes
,
Parties
and
Advocates
are
removing
;
which
is
the
Occasion
that
oft
times
most
of
the
Lords
are
not
advertent
when
the
same
are
offered
:
And
it
is
a
Practice
not
suteable
to
the
gravity
of
the
Court
,
and
not
without
a
dangerous
Consequence
;
seing
Bills
may
be
anent
Matters
of
great
importance
,
which
ought
to
be
offered
to
the
Lords
in
a
decent
way
,
and
should
be
considered
by
them
deliberatly
.
D.
237.
_____
contra
_____
eod.
die
.
THE
Ship
called
the
Wine-Grape
,
mentioned
in
the
Case
aboverelated
Num.
207
;
Being
Found
by
a
Decreet
of
the
Admiral
not
to
be
a
Prize
:
and
thereafter
the
said
Decreet
being
reduced
upon
a
contentious
Debate
in
foro
:
A
Bill
of
Suspension
was
given
in
,
making
mention
,
that
the
Lords
having
thought
fit
,
during
the
dependence
,
the
Value
of
the
Ship
being
liquidate
,
the
Price
thereof
should
be
sequestrate
in
the
Complainers
hands
,
upon
a
Bond
to
pay
the
Sum
therein
contained
to
the
Caper
and
his
Owners
,
if
they
should
prevail
in
the
Reduction
foresaid
:
And
that
he
was
charged
to
pay
the
said
Sum
,
the
Process
being
now
at
a
period
by
the
said
Decreet
Reductive
,
at
the
instance
of
an
Assigney
:
And
that
he
could
not
pay
the
same
until
an
Arrestment
made
in
his
Hands
,
at
the
instance
of
the
Swedes
the
former
Owners
of
the
said
Ship
,
should
be
purged
;
which
Arrestment
was
upon
the
Dependence
of
a
Reduction
,
intented
at
the
Strangers
instance
,
for
reduceing
of
the
said
Decreet
Reductive
:
It
was
debated
upon
the
Bill
,
and
amongst
the
Lords
,
that
the
said
Decreet
being
in
foro
contradictorio
,
was
of
that
nature
,
that
it
could
not
be
reduced
:
and
it
were
of
a
dangerous
Consequence
,
that
after
Decreets
in
foro
,
the
People
should
not
be
secure
,
but
upon
pretence
of
the
dependance
of
Reductions
of
the
same
,
that
which
was
found
to
belong
to
them
by
such
Decreets
,
should
be
again
lyable
to
Arrestment
and
to
questioning
:
And
upon
the
other
hand
,
It
was
considered
and
alledged
,
That
there
being
Arrestment
and
Warrand
for
the
same
upon
the
dependance
,
the
Debitor
was
not
concerned
to
dispute
what
the
Issue
of
the
same
may
be
,
but
there
being
de
facto
an
Arrestment
,
the
same
ought
to
be
purged
;
which
could
not
be
in
forme
,
but
either
by
lousing
the
Arrestment
,
or
by
refusing
the
Bill
upon
the
reason
of
Arrestment
;
the
Defender
in
this
Reduction
finding
Caution
to
make
forthcoming
,
if
the
Pursuer
should
prevail
.
The
Lords
,
notwithstanding
Found
,
That
in
respect
the
matter
was
already
decided
by
a
Decreet
in
foro
,
that
the
Bill
should
be
refused
,
notwithstanding
of
the
said
Arrestment
upon
the
dependance
foresaid
;
which
was
hard
as
to
the
Debitor
,
who
could
not
be
formally
secured
,
but
in
manner
foresaid
:
And
likeways
hard
as
to
the
Strangers
,
seing
by
the
said
Deliverance
,
the
Lords
did
in
effect
predetermine
the
Reduction
now
depending
;
and
upon
the
matter
did
Find
,
That
the
Pursuer
could
not
have
Interest
to
pursue
,
before
the
Pursuer
was
heard
in
the
said
Reduction
.
D.
238.
Vanse
Jaylor
of
the
Tolbooth
of
Edinburgh
,
5.
February
1675.
MR.
Vanse
Jaylor
of
the
Tolbooth
of
Edinburgh
,
did
give
in
a
Bill
,
complaining
that
the
Jaylor
of
the
Canongate
was
in
use
to
enlarge
Prisoners
being
put
in
for
debt
,
upon
the
Warrand
and
consent
of
the
Creditor
at
whose
instance
they
were
imprisoned
;
whereas
the
Complainer
did
not
enlarge
any
such
Prisoners
,
without
Warrand
of
the
Lords
Letters
:
and
therefore
desired
,
that
either
he
should
be
allowed
to
have
the
same
liberty
,
or
that
it
should
be
denyed
to
other
Jaylors
.
The
Lords
did
consider
what
was
fit
to
be
done
in
all
such
like
Cases
;
and
in
end
,
the
plurality
did
resolve
,
that
where
the
Sums
were
small
,
not
exceeding
200.
merks
,
the
Jaylor
might
enlarge
Prisoners
for
debt
,
without
any
other
Warrand
but
the
consent
of
the
Parties
,
at
whose
instance
they
were
imprisoned
;
which
they
did
upon
that
consideration
,
that
Poor
People
,
if
they
should
be
forced
to
suspend
and
relax
,
with
a
Warrand
to
put
them
out
,
would
be
sometime
put
to
more
Charges
,
than
the
Debt
doth
amount
to
.
Five
of
the
Lords
did
dissent
,
being
of
the
Opinion
,
That
the
Prison
being
His
Majesties
Prison
,
no
person
could
be
put
in
upon
Letters
of
Caption
,
unless
the
same
were
under
the
Signet
;
and
no
person
put
in
by
Warrand
of
the
said
Letters
,
could
be
enlarged
without
Letters
to
that
effect
;
nam
unumquodque
dissolvitur
,
eo
modo
quo
contrahitur
:
And
the
Prisoner
being
put
in
for
his
Rebellion
,
could
not
be
enlarged
,
unless
he
were
relaxed
:
And
if
Parties
did
suffer
themselves
to
be
taken
and
incarcerat
for
small
Sums
,
it
was
their
own
fault
,
and
more
unexcusable
the
less
the
Sum
be
;
and
majus
&
minus
non
variant
speciem
:
And
it
being
acknowledged
by
the
Law
,
they
being
Prisoners
for
greater
Sums
,
they
could
not
be
enlarged
,
without
a
Warrand
to
put
them
to
liberty
;
and
the
Law
making
no
distinction
of
greater
and
less
Sums
,
the
Lords
had
not
a
Legislative
Power
to
alter
or
qualifie
the
same
,
without
an
Act
of
Parliament
.
D.
239.
Burnet
contra
Lutgrue
.
eod.
die
.
A
Commission
being
directed
for
taking
the
Oath
of
a
Stranger
residing
in
Holland
;
the
Report
was
questioned
upon
that
pretence
,
that
the
Strangers
Deposition
was
not
subscribed
,
albeit
the
Commission
did
bear
,
that
he
should
subscribe
the
same
:
and
yet
it
was
sustained
,
because
of
the
Custom
of
Holland
,
that
the
Judges
only
subscribe
,
and
the
same
was
subscribed
by
them
;
And
it
was
adminiculate
with
a
Letter
from
him
,
bearing
,
that
he
had
declared
before
the
Commissioners
,
and
that
he
would
adhere
to
what
he
had
declared
.
Gibson
Clerk
.
D.
240.
Marion
Binnie
contra
Gilbert
Scot
,
eod.
die
.
THE
deceast
William
Scot
of
Bonington
having
three
Sons
,
William
the
eldest
,
and
Robert
,
and
Gilbert
:
The
said
William
by
his
Contract
of
Marriage
,
had
the
Lands
and
Estate
of
Bonington
disponed
to
him
by
his
Father
Mr.
James
Scot
;
but
was
not
infeft
therein
:
and
after
his
decease
his
Brother
Robert
having
succeeded
to
him
,
did
renew
a
Bond
granted
by
the
said
William
,
in
favours
of
Robert
Riddel
;
and
having
retired
the
said
William's
Bond
,
did
grant
a
new
Bond
for
the
Sum
therein
contained
:
And
the
said
Robert
having
also
deceased
,
before
he
was
infeft
in
the
Estate
,
or
served
Heir
to
the
said
William
;
and
the
said
Gilbert
the
third
Son
having
succeeded
:
a
Pursute
was
intented
,
at
the
instance
of
the
Relict
and
Executrix
of
the
Creditor
,
against
the
said
Gilbert
,
as
representing
the
said
William
and
Robert
his
Brothers
;
at
least
to
hear
and
see
it
found
and
declared
,
that
the
said
Bond
granted
by
Robert
,
was
granted
by
him
in
contemplation
and
lieu
of
the
said
William's
Debt
and
Bond
;
and
that
it
ought
to
affect
any
Estate
that
did
belong
to
the
said
William
;
and
in
special
the
benefite
of
the
said
Contract
of
Marriage
,
and
disposition
therein
made
in
favours
of
the
said
William
.
It
was
Alledged
for
the
Defender
,
That
he
did
not
Represent
Robert
nor
William
,
upon
any
Passive
Titles
;
and
tho
he
should
represent
William
,
neither
he
nor
the
Estate
would
be
Lyable
to
the
said
Debt
,
In
respect
the
samen
was
extinct
,
and
innovate
by
a
new
Bond
granted
by
the
said
Robert
;
whom
neither
he
did
nor
would
Represent
:
And
the
said
Bond
being
granted
only
by
Robert
,
could
not
affect
any
thing
belonging
to
William
;
and
he
was
not
concerned
to
debate
upon
what
account
the
said
Bond
was
given
by
Robert
.
The
Lords
did
encline
to
sustain
the
Declarator
,
upon
that
head
,
that
the
said
Innovation
was
only
to
the
effect
,
the
Creditor
might
be
the
better
secured
and
satisfied
;
the
said
Robert
being
Appearand
Heir
for
the
time
;
and
who
if
he
had
lived
would
have
perfited
his
Right
,
and
obtained
himself
served
Heir
to
William
;
but
being
prevented
by
Death
,
so
that
the
said
Bond
was
altogether
ineffectual
,
the
Pursuer
had
condictionem
causa
data
causa
non
secuta
,
to
be
Reponed
against
the
said
Innovation
:
and
the
Defender
was
in
dolo
pessimo
to
question
the
same
,
seing
nemo
debet
locupletari
cum
aliena
jactura
;
And
he
ought
not
to
have
William's
Estate
without
payment
of
his
Debt
:
And
some
of
the
Lords
did
urge
and
instance
the
case
aftermentioned
,
viz.
If
the
Younger
of
two
Brothers
,
the
Elder
having
gone
Abroad
,
and
thought
to
be
dead
,
should
obtain
himself
served
as
Heir
to
his
Father
;
and
the
Creditors
of
the
Father
conceiving
that
he
had
Right
should
renew
their
Bonds
,
and
give
back
these
that
they
had
from
the
Father
,
and
thereafter
the
Elder
Brother
should
return
and
should
be
served
Heir
to
his
Father
,
whether
in
that
case
the
Creditors
might
have
Action
against
the
Elder
Brother
and
Estate
,
notwithstanding
of
the
said
Innovation
?
But
because
the
case
was
New
,
and
not
without
Difficulty
,
The
Lords
before
Answer
thought
fit
to
try
,
what
way
it
could
be
made
appear
that
the
said
Bond
was
in
lieu
of
a
Bond
granted
by
William
.
Newbyth
Reporter
.
Gibson
Clerk
.
D.
241.
Broun
contra
Ogilvie
.
eod.
die
.
A
Person
being
pursued
for
an
Annuity
of
Money
,
did
claim
the
benefite
of
Retention
conform
to
the
late
Act
of
Parliament
:
But
the
Lords
Found
,
that
albeit
Retention
was
granted
for
relief
of
Debitors
of
their
Taxation
,
and
that
the
Debitor
was
alike
concerned
as
to
the
end
foresaid
,
whether
he
payed
the
Annualrent
as
the
usura
and
profite
of
a
principal
Sum
,
or
as
Annuity
due
upon
a
personal
Bond
;
yet
the
Act
of
Parliament
,
mentioned
only
Annualrents
:
And
being
,
as
all
Acts
of
Parliament
,
stricti
Juris
,
specially
such
as
are
correctoriae
Juris
communis
;
it
could
not
be
extended
beyond
the
Letter
of
the
Law
.
Nevoy
Reporter
.
Gibson
Clerk
.
D.
242.
Collonel
Fulertoun
contra
The
Laird
of
Boyne
.
eod.
die
.
THE
deceast
Laird
of
Towie
having
named
his
Relict
now
Lady
Boyne
Tutrix
to
his
Daughter
;
and
in
case
of
her
Marriage
Collonel
Fulertoun
:
The
said
Collonel
pursued
the
Laird
of
Boyne
for
delivery
of
the
said
Pupil
:
It
was
Alledged
,
That
her
Mother
and
her
Husband
would
entertain
the
Pupil
gratis
.
It
was
Answered
,
That
Boyne
being
her
Step
Father
,
and
having
no
other
Relation
,
but
that
of
Vitricus
,
which
in
Law
is
not
favoured
;
his
offer
to
entertain
is
not
Relevant
against
the
Tutor
,
who
has
the
Trust
both
of
the
Pupils
person
and
Estate
:
And
it
is
to
be
presumed
,
that
the
offer
of
the
Step-Father
is
upon
a
design
upon
the
Pupill
her
Person
and
Fortune
;
and
that
the
case
had
been
determined
in
terminis
4.
July
1649.
Langshaw
contra
Mure.
The
Lords
Repelled
the
Defence
,
and
Ordained
the
Pupil
to
be
delivered
to
the
Tutor
.
Strathurd
Reporter
.
Gibson
Clerk
.
D.
243.
_____
contra
_____
eod.
die
.
THE
Lords
Found
,
That
a
Warrand
could
not
be
given
to
cite
at
the
Mercat
cross
with
certification
pro
confesso
;
seing
no
person
could
be
holden
as
confest
who
is
not
personally
apprehended
.
Mr.
Thomas
Hay
Clerk
.
D.
244.
Duke
of
Monmouth
contra
Earl
of
Tweeddale
.
eod.
die
.
THere
being
a
Transaction
betwixt
the
Duke
and
Dutchess
of
Monmouth
,
and
the
Earl
of
Tweeddale
,
whereupon
a
Discharge
was
granted
by
the
said
Duke
and
Dutchess
to
the
said
Earl
,
with
consent
of
their
Curators
,
which
was
also
superscribed
by
his
Majesty
taking
burden
for
the
Duke
and
Dutchess
;
with
an
obligement
,
that
they
should
ratify
after
Majority
:
The
said
Duke
and
his
Lady
pursued
a
Reduction
of
the
said
Discharge
,
upon
a
reason
of
Minority
and
Lesion
;
It
was
Alledged
,
That
all
Parties
haveing
Interest
were
not
called
,
viz.
The
Officers
of
State
for
His
Majesties
Interest
;
seing
His
Majesty
was
so
much
concerned
,
that
if
any
thing
were
evicted
from
the
Defender
,
His
Majesty
would
be
Lyable
for
the
same
.
The
Lords
Repelled
the
Defence
:
Without
prejudice
to
His
Majesties
Advocat
to
appear
for
his
interest
,
if
he
thought
fit
.
Stathurd
Reporter
.
Gibson
Clerk
.
D.
245.
Irving
contra
Caruther
.
6.
February
1675.
THE
Summonds
being
referred
to
the
Defenders
Oath
,
who
having
declared
that
as
to
what
was
referred
to
his
Oath
he
could
not
remember
nor
be
positive
;
It
was
debated
amongst
the
Lords
,
whether
the
Oath
did
prove
or
not
:
Or
if
the
Defender
should
be
holden
as
Confest
,
In
respect
he
was
to
declare
de
facto
proprio
&
recenti
;
and
in
such
a
case
the
pretence
of
non
memini
is
neither
excuseable
nor
relevant
:
And
so
it
was
Found
by
the
Lords
,
tho
some
were
of
the
Opinion
,
that
a
person
compearing
and
declareing
upon
Oath
,
that
to
his
knowledge
he
did
not
remember
,
could
not
holden
as
confest
,
seing
he
cannot
be
said
to
be
contumacious
;
and
to
want
Memory
is
not
a
fault
:
And
after
a
party
has
declared
,
it
is
only
to
be
considered
,
whether
the
Oath
proves
or
not
.
Mr.
John
Hay
Clerk
.
D.
246.
Burnet
contra
McClellane
.
eod
die
.
A
Father
being
pursued
,
as
Behaving
himself
as
Heir
to
his
Son
,
and
Litiscontestation
being
made
,
and
Witnesses
adduced
;
the
time
of
the
Adviseing
,
It
was
Alledged
,
That
the
Father
could
not
represent
his
Son
as
behaving
,
because
the
Defunct
had
a
Brother
who
was
produced
,
and
at
the
Barr
:
Whereto
It
was
Answered
,
That
in
hoc
statu
the
Defence
was
not
receivable
;
and
it
could
not
be
said
to
be
noviter
veniens
,
seing
the
Father
could
not
be
ignorant
that
he
had
another
Son
.
The
Lords
,
in
respect
of
the
State
of
the
Process
,
would
not
receive
the
Defence
,
tho
verified
instanter
,
unless
the
Son
would
suscipere
judicium
,
and
be
content
that
the
Process
should
proceed
as
against
him
:
which
appears
to
be
hard
;
seing
that
which
was
to
be
proven
,
was
not
only
that
the
Defender
intrometted
,
but
that
he
was
appearand
Heir
;
and
in
casu
notorio
,
no
probation
was
to
be
respected
to
the
contrary
:
and
tho
the
Father
could
not
but
know
that
he
had
a
Son
,
yet
he
might
be
ignorant
that
his
Son
would
be
preferred
to
himself
,
as
to
the
Succession
of
his
own
Son
:
and
in
damno
vitando
,
ignorantia
Juris
is
excusable
.
Mr.
J.
Hay
Clerk
.
D.
247.
_____
contra
Captain
Martine
and
others
.
9.
February
.
1675.
A
Ship
being
taken
by
a
Caper
,
and
being
found
by
a
Decreet
of
the
Admiral
to
be
a
Prize
:
Thereafter
,
upon
a
Decreet
of
the
Lords
,
reductive
of
that
of
the
Admiral
,
being
found
to
be
a
free
Ship
,
the
Stranger
did
urge
payment
against
the
Captain
and
the
Owners
of
the
value
;
And
It
was
Alledged
,
That
the
Decreet
of
the
Lords
,
Ordaining
Restitution
,
was
against
them
as
correi
debendi
,
and
not
in
solidum
,
and
that
they
are
only
lyable
for
their
own
parts
:
Whereunto
It
was
Answered
,
That
though
it
was
found
,
That
the
Captain
had
probable
Reasons
for
bringing
up
the
said
Ship
,
yet
upon
the
matter
,
the
Stranger
was
wronged
by
the
taking
of
his
Ship
;
and
in
casu
delicti
,
by
spuilyie
or
wrongous
intromission
,
or
otherways
,
Decreets
against
the
Persons
therein
contained
are
construed
to
be
in
solidum
:
and
the
Stranger
cannot
know
,
what
the
respective
Interests
and
Parts
of
the
Owners
are
;
and
ought
not
distrahi
,
and
to
be
put
to
Process
against
every
one
of
them
,
for
declaring
of
their
Parts
.
The
Lords
Found
,
That
they
were
lyable
in
solidum
;
Reserving
their
Debate
and
Relief
amongst
themselves
,
as
to
their
several
Interests
and
Proportions
.
Lord
Forret
Reporter
.
Gibson
Clerk
.
D.
248.
Burd
contra
Reid
.
eod.
die
.
THE
Lords
having
formerly
Found
,
That
the
Cedents
of
Personal
Bonds
,
are
lyable
only
to
warrand
debitorem
esse
,
but
not
esse
locupletem
;
It
was
pretended
,
That
there
being
a
Question
concerning
Warrandice
of
a
Right
of
Annualrent
out
of
Land
,
the
same
should
be
warranded
no
other
way
:
But
The
Lords
Found
,
That
the
Warrandice
of
Lands
,
or
of
such
real
Rights
,
upon
or
out
of
Land
,
are
absolute
,
unless
they
be
expresly
limited
and
qualified
by
their
Right
.
Hamilton
Clerk
.
D.
249.
Vetch
contra
the
Creditors
of
James
Ker
and
Peter
Pallat.
eod.
die
.
SIR
Robert
Stewart
in
Ireland
and
his
Son
,
being
Debitors
by
Bond
in
the
Sum
of
800.
lib.
starl
.
to
the
deceast
James
Sanderson
;
which
Bond
being
conceived
in
the
Form
of
English
Bonds
,
did
not
bear
Annualrent
:
The
said
James
did
assign
the
said
Bond
in
Favours
of
Ronald
Graham
in
trust
,
and
to
his
own
behoof
,
upon
a
Back-bond
;
and
thereafter
did
assign
the
said
Back-bond
in
favours
of
James
Ker
and
Robert
Broun
Merchants
;
as
to
two
Parts
to
the
said
Ker
,
and
the
third
part
to
Broun
.
Sir
George
Maxuel
of
Pollock
being
Trustee
,
and
acting
in
name
of
the
said
Stewarts
,
did
grant
a
Bond
to
the
said
Ker
and
Broun
,
making
mention
of
the
said
Bond
granted
by
the
Stewarts
,
and
of
the
Assignation
made
by
the
said
James
Sanderson
to
the
said
Broun
and
Ker
;
and
that
after
Compt
and
Reckoning
,
there
was
only
resting
of
the
said
Sum
300.
lib.
sterl
.
which
the
said
Sir
George
,
in
name
of
the
said
Stewarts
,
is
obliged
to
pay
within
three
Moneths
after
that
Stewarts
Bond
should
be
delivered
to
him
,
with
an
Assignation
or
Discharge
.
The
said
James
Ker
being
deceased
,
his
Executors
did
intent
Action
against
the
said
Sir
George
Maxuel
,
for
his
part
of
the
said
Sum
,
viz.
200.
lib.
In
this
Process
,
William
Vetoh
did
compear
for
his
Interest
,
and
did
alledge
,
that
the
Sum
in
question
due
by
Sir
George
Maxuel
,
did
belong
to
him
,
having
fallen
under
the
Rebellion
of
the
said
James
Sanderson
,
and
the
Gift
of
his
Escheat
,
first
Gifted
to
David
Rodger
,
fra
whom
the
said
William
had
right
,
and
thereafter
to
the
said
William
himself
:
and
tho
the
said
Bond
,
granted
by
Sir
George
Maxuel
,
was
granted
to
the
said
Ker
and
Broun
,
yet
it
was
granted
for
the
same
Sums
,
that
were
due
by
the
said
Stewarts
to
the
said
Sanderson
,
as
appears
by
the
Bond
granted
by
the
said
Sir
George
Maxuel
;
so
that
the
foresaid
Sum
due
to
Sanderson
,
and
the
Bond
for
the
same
,
having
(
as
said
is
)
fallen
and
belonged
to
the
King
,
it
does
still
belong
to
him
and
his
Donator
;
Notwithstanding
the
said
new
Bond
granted
by
Sir
George
Maxuel
in
place
of
the
same
,
seing
Surrogatum
sapit
naturam
,
&c.
It
was
Answered
,
That
the
said
Sanderson
being
Debitor
to
Ker
and
Broun
;
as
he
might
have
payed
his
Debt
after
the
Rebellion
,
or
the
Creditors
might
have
gotten
satisfaction
by
poinding
or
Arrestment
before
the
Rebels
Escheat
,
so
he
might
have
assigned
the
Debt
due
to
him
for
their
satisfaction
.
Whereunto
It
was
Answered
,
for
the
said
William
Vetch
,
That
the
Rebel
cannot
make
assignation
stante
rebellione
,
the
Act
of
Parliament
in
anno
1592.
K.
Jam.
6.
Parl.
12.
cap.
145.
Entituled
,
Anent
the
Escheats
of
Rebels
,
Bearing
expresly
,
That
no
Assignation
shall
be
valid
being
made
by
a
Rebel
at
the
Horn
,
in
defraud
of
the
Creditor
;
if
he
be
at
the
Horn
for
the
same
cause
:
And
therefore
the
said
Assignation
made
by
Sanderson
when
he
was
at
the
Horn
,
in
prejudice
of
Rodger
,
Vetch
his
Cedent
,
at
whose
instance
he
was
at
the
Horn
for
the
same
Debt
,
is
void
:
and
what
may
be
in
the
Case
of
actual
payment
,
or
of
Poinding
,
or
legal
Diligence
,
needs
not
be
debated
in
this
case
;
seing
the
Rebel
did
neither
make
payment
,
nor
was
the
said
Debt
due
by
the
Stewarts
,
affected
with
Legal
Diligence
,
but
a
voluntar
Assignation
was
made
by
the
Rebel
,
which
being
Null
,
for
the
Reason
foresaid
,
and
the
Pursuers
Right
to
the
Sum
in
question
,
being
founded
upon
the
same
,
the
Pursuer
can
have
no
Right
to
the
foresaid
Sum
;
and
the
said
Vetch
having
undoubted
Right
(
as
said
is
)
ought
to
be
preferred
.
The
Lords
by
their
Interloquitor
10
Decenber
last
,
did
find
that
an
Assignation
made
by
a
Rebel
to
his
Creditor
,
albeit
for
a
Debt
preceeding
the
Rebellion
,
and
that
the
Assignation
was
granted
before
the
Gift
of
the
Rebels
Escheat
,
cannot
prejudge
the
King
or
his
Donator
:
But
that
payment
made
by
the
Rebel
,
or
any
other
in
his
name
,
upon
his
Precept
or
Assignation
,
being
before
the
Donators
Gift
,
is
sufficient
to
liberate
the
Creditor
from
Repetition
.
It
was
further
Alledged
for
the
Pursuer
,
that
the
said
Bond
granted
and
due
by
the
Stuarts
was
extinct
and
innovat
;
In
fua
far
as
the
said
Sir
George
Maxuel
had
granted
the
said
other
Bond
to
the
said
Ker
and
Broun
for
the
same
Sum
,
which
was
equivalent
to
payment
.
Whereunto
It
was
Answered
,
That
the
said
Bond
granted
by
Sir
George
Maxuel
was
in
effect
but
a
Bond
of
Corroboration
,
whereby
the
said
Sir
George
became
expromissor
,
and
upon
the
matter
Surety
for
the
said
Sum
;
So
that
the
former
Bond
was
not
innovat
nor
extinct
,
being
neither
Discharged
nor
Retired
;
but
being
only
to
be
Discharged
or
Assigned
upon
payment
made
by
Sir
George
,
which
implyes
that
it
could
not
be
innovat
nor
extinct
,
seing
it
could
not
be
Assigned
if
it
had
been
extinct
.
The
Lords
before
Answer
to
that
Point
,
viz.
If
the
said
Transaction
was
equivalent
to
Payment
,
declared
they
would
take
Sir
George
Maxuel's
Oath
ex
officio
,
at
what
time
the
said
Bond
granted
by
the
Stuarts
were
delivered
up
to
him
,
and
by
whom
;
and
if
any
Discharges
were
granted
to
him
of
the
said
Bond.
Sir
George
Maxuel
having
declared
upon
Oath
,
That
he
had
recovered
the
said
Bond
from
Ronald
Grahame
,
and
that
he
had
not
taken
a
Discharge
of
the
said
Bond
either
from
him
or
from
the
said
Ker
and
Broun
.
This
Day
the
Debate
was
again
resumed
at
the
Barr
,
and
amongst
the
Lords
;
and
these
Arguments
were
urged
by
His
Majesties
Advocat
.
viz.
That
by
the
Rebellion
Jus
quaeritur
Domino
Regi
,
and
that
confiscation
ex
delicto
is
upon
the
matter
a
Legal
Assignation
,
and
equivalent
to
an
Assignation
intimate
:
And
if
there
were
two
Assignations
,
and
the
Debitor
being
out
of
the
Country
,
the
first
Assignation
had
been
intimate
at
the
Mercat
Cross
,
and
Pear
and
Shoar
of
Leith
,
and
the
Debitor
having
returned
,
the
second
Assigney
had
intimate
his
by
way
of
Instrument
,
and
thereupon
the
Debitor
had
bona
fide
made
payment
to
him
,
the
first
Assigney
notwithstanding
would
be
preferable
:
And
tho
the
Debitor
would
be
free
in
respect
of
Payment
bona
fide
,
yet
the
first
Assigney
might
repeat
the
Debt
from
the
second
as
indebite
payed
to
him
who
had
no
Right
;
so
that
the
King
and
his
Donator
having
Right
to
Stuarts
Debt
,
tho
the
Sum
in
question
had
been
payed
to
Ker
and
Broun
(
as
it
is
not
)
a
paritate
rationis
the
Donator
might
repeat
the
same
as
indebite
payed
to
them
;
seing
by
the
said
Interloquitor
,
It
is
Found
,
That
an
Assignation
made
by
a
Rebel
,
albeit
before
the
Gift
,
cannot
prejudge
the
King
or
his
Donator
,
for
the
reason
foresaid
;
It
follows
necessarly
,
that
the
Assigney
by
vertue
of
such
an
Assignation
has
no
Right
to
the
Sum
Assigned
,
and
consequently
,
if
the
Debitor
pay
the
said
Sum
bona
fide
,
tho
he
may
be
liberate
,
yet
the
said
payment
cannot
prejudge
the
King
,
or
his
Donator
,
but
they
may
repeat
the
Sum
belonging
to
them
:
And
if
it
be
not
payed
,
but
a
Bond
is
renewed
for
the
same
,
as
in
this
case
,
the
Donator
ought
to
be
preferred
.
The
Assignation
being
null
,
as
said
is
,
There
can
be
no
Innovation
or
Deed
done
by
the
Assigney
who
has
no
Right
,
in
prejudice
of
the
King
or
his
Donator
;
seing
a
Debt
cannot
be
innovat
but
by
a
person
having
Right
to
the
same
.
The
Law
does
so
far
favour
Legal
Diligence
done
by
the
Creditors
of
Rebels
,
that
there
are
some
Decisions
in
their
favours
preferring
their
Diligence
done
before
the
Gift
be
declared
;
but
voluntar
Deeds
done
by
Rebels
in
prejudice
of
His
Majesty
,
who
has
Jus
quaesitum
,
and
of
the
Creditor
who
has
denounced
,
are
altogether
reprobate
;
And
the
Law
being
clear
,
and
there
being
no
Decision
to
the
contrary
in
favours
of
Creditors
in
the
case
of
payment
upon
such
Assignations
as
are
void
in
Law
;
the
Donator
ought
to
be
preferred
;
Otherways
a
Door
should
be
open
to
prejudge
His
Majesty
of
His
Casuality
,
and
Creditors
of
their
Diligence
,
seing
the
Rebel
may
assign
,
and
upon
such
voluntary
Assignations
payment
may
be
made
:
And
there
should
need
no
Application
to
the
Exchequer
for
Gifts
of
Escheats
,
if
they
may
be
so
easily
evacuate
by
such
practices
:
It
appears
by
Sir
George
Maxuel's
Oath
,
and
by
his
Bond
,
that
the
said
Debt
was
not
extinct
;
seing
Sir
George
did
act
in
the
Affair
as
a
Trustee
and
doer
for
the
Stuarts
;
and
their
Bonds
were
neither
Discharged
,
nor
given
back
by
the
Assigneys
,
who
had
Right
to
the
same
;
but
were
recovered
by
the
said
Sir
George
by
his
own
means
from
Ronald
Grahame
.
The
Lords
did
adhere
to
their
former
Interloquitor
,
and
did
Find
that
Creditors
getting
payment
from
Rebels
,
either
by
poinding
or
by
Assignation
before
Declarator
at
the
Donators
instance
,
doth
secure
the
Creditor
against
the
Donator
;
And
did
also
Find
,
that
in
this
case
the
first
Bonds
were
extinct
;
and
that
the
same
being
delivered
to
Sir
George
Maxuel
,
before
Declarator
at
the
instance
of
the
second
Donator
,
that
the
Assigney
is
preferable
.
Sir
David
Falconer
for
Veatch
alteri
Dalrymple
,
Char●ris
,
&c.
Gibson
Clerk
.
This
Decision
appears
to
be
hard
,
seing
Declaratoria
non
tribuit
Jus
,
but
Declarat
Jus
quod
est
:
And
the
Horning
being
declared
upon
the
first
Gift
,
there
needed
not
a
Declarator
upon
the
second
.
Vide
infra
12.
February
,
and
10.
Novem.
1675.
inter
eosdem
.
D.
250.
Douglass
contra
Jackson
and
Grahame
.
11.
February
.
1675.
THE
Lords
Found
,
that
a
poinding
is
not
lawful
,
unless
it
be
begun
before
the
setting
of
the
Sun
;
and
what
is
to
be
done
at
that
time
,
be
all
done
and
compleat
before
the
Day
light
be
gone
.
D.
251.
Lady
Torwoodhead
contra
The
Tennents
.
eod.
die
.
THE
Lady
Torwoodhead
having
gotten
Aliment
modified
to
her
by
the
Lords
of
Council
of
600
Merks
yearly
;
and
for
surety
of
the
same
having
gotten
the
Gift
of
her
Husbands
Liferent
Escheat
,
did
pursue
the
Tennents
for
Mails
and
Duties
.
It
was
Alledged
for
Florence
Garner
.
That
he
had
Right
to
the
Lands
Lybelled
,
and
Mails
and
Duties
of
the
same
by
Comprysings
and
Infeftments
thereupon
expired
.
It
was
Answered
,
That
the
Mails
and
Duties
of
the
Lands
exceed
the
Annualrents
of
the
Sums
contained
in
the
Comprysing
;
and
by
the
Act
of
Parliament
1661.
for
ordering
the
payment
of
Debts
betwixt
Creditor
and
Debitor
,
where
the
Lands
Comprysed
exceed
the
Annualrents
of
the
Sums
contained
in
the
Comprysing
;
The
Comprysers
are
restricted
to
the
possession
of
such
of
the
Lands
dureing
the
Legal
as
the
Lords
of
Session
should
think
just
:
And
that
the
expireing
of
the
said
Florence
his
Comprysings
was
interrupted
by
an
Order
used
by
Edward
Ruthven
Son
to
the
Lord
Forrester
.
It
was
Answered
for
Gairner
,
That
the
Lord
Forrester
had
no
Right
to
the
Reversion
of
Torwoodhead's
Lands
;
so
that
no
Order
used
by
him
,
as
to
these
Lands
,
could
be
valid
to
interrupt
the
said
Comprysing
:
And
the
said
Order
neither
was
nor
could
be
declared
.
The
Lords
,
In
respect
the
Lord
Forrester
being
principal
and
his
Brother
Torwoodhead
Cautioner
,
both
their
Lands
were
Comprysed
for
the
same
Debt
,
and
that
the
Principal
may
satisfy
the
Debt
,
and
extinguish
the
Comprysing
as
to
both
his
own
and
the
Cautioners
Lands
,
They
Found
that
the
said
Order
did
interrupt
the
Comprysing
as
to
both
.
This
appears
to
be
hard
.
1.
Because
the
said
Act
of
Parliament
indulges
the
favour
foresaid
to
the
Debitors
themselves
,
upon
the
Conditions
thereinmentioned
,
viz.
That
they
should
ratify
the
Comprysers
possession
and
deliver
the
Evidents
;
and
the
same
cannot
be
extended
to
Donators
.
2.
A
Comprysing
cannot
be
interrupted
,
but
either
by
Payment
and
actual
satisfaction
,
or
by
using
and
declareing
an
Order
of
Redemption
:
Until
which
be
done
,
the
Comprysing
cannot
be
thought
to
be
unexpired
.
Craigie
Reporter
.
D.
252.
Kinnier
contra
_____
12.
February
.
1675.
THE
Lords
upon
a
Bill
given
in
by
_____
Kinnier
who
had
obtained
a
Bonorum
,
and
a
Testificat
of
diverse
persons
of
Credit
that
he
had
become
insolvent
upon
occasion
of
loss
and
ill
Debtors
,
and
was
otherwayes
vertuous
;
They
dispenced
with
that
part
of
the
Decreet
anent
the
wearing
of
the
Habit.
D.
253.
Presbytrie
of
Duns
.
eod.
die
.
THE
Presbytrie
of
Duns
having
by
Bill
desired
,
That
Letters
of
Horning
may
be
direct
against
certain
persons
who
had
been
cited
as
Witnesses
;
and
did
not
appear
before
them
.
The
Lords
did
demurr
,
In
respect
Letters
of
Horning
ought
not
to
be
direct
,
but
either
by
consent
of
Parties
,
or
by
Warrand
of
Acts
of
Parliament
;
As
appears
by
Acts
of
Parliament
,
ordaining
Horning
to
be
direct
upon
Sheriffs
and
Commissars
Decreets
,
and
Decreets
within
Burgh
,
and
Admirals
Decreets
.
D.
254.
Cruickshanks
contra
Watt.
eod.
die
.
THE
Lords
Found
,
That
a
Disposition
being
made
after
Inhibition
,
but
before
the
Registration
of
the
same
,
may
be
reduced
ex
capite
Inhibitionis
;
seing
the
Execution
of
the
Inhibition
doth
put
the
Leidges
in
mala
fide
:
And
after
the
same
is
compleat
,
and
thereby
the
Debitor
and
the
Leidges
are
inhibite
to
give
and
take
Rights
,
the
Inhibition
ipso
momento
thereafter
,
is
valide
and
perfect
;
but
resolvitur
sub
conditione
,
if
it
be
not
Registrate
in
due
time
.
Mr.
Thomas
Hay
Clerk
.
D.
255.
Veatch
contra
The
Creditors
of
James
Ker
,
and
Peter
Pallat.
eod.
die
.
IN
the
case
abovementioned
Veatch
contra
The
Creditors
of
James
Ker
and
Peter
Pallat
;
It
was
farther
Alledged
for
the
said
William
Veatch
,
that
he
ought
to
be
preferred
,
because
by
the
Act
of
Parliament
1621.
Assignations
or
other
Rights
granted
by
Bankrupts
in
favours
of
any
of
their
Creditors
,
who
had
not
done
Diligence
,
and
in
prejudice
of
a
Creditor
who
had
done
Diligence
by
Horning
or
otherwayes
,
are
void
:
And
the
Creditor
who
is
partially
preferred
and
gratified
,
if
he
recover
payment
he
is
Lyable
to
Refound
:
And
by
the
Act
of
Parliament
in
Anno.
1592.
anent
the
Escheats
of
Rebels
,
Cap.
145.
Assignations
made
stante
Rebellione
in
prejudice
of
the
Creditor
,
at
whose
instance
the
Cedent
is
at
the
Horn
,
are
Null
;
and
that
the
said
Assignation
made
by
Sanderson
in
favours
of
Ker
and
Broun
,
was
made
by
him
after
he
was
at
the
Horn
at
the
instance
of
David
Rodger
,
Veatches
Cedent
:
And
the
said
Assignation
being
Null
for
the
Reason
foresaid
,
all
that
has
followed
thereupon
is
void
.
It
was
Answered
,
That
the
said
Act
of
Parliament
is
only
to
be
understood
,
in
the
Case
when
any
voluntar
Payment
or
Right
is
made
in
defraud
of
the
lawful
and
more
timely
Diligence
of
another
Creditor
,
having
served
Inhibition
,
or
used
a
Horning
,
Arrestment
,
Comprising
,
or
other
Lawful
Mean
to
affect
the
Dyvors
Land
or
Estate
;
and
that
Horning
is
not
such
a
Diligence
as
does
affect
,
being
only
personal
Execution
against
the
Debitor
;
and
that
the
said
Debt
of
Stuarts
was
many
years
contracted
by
the
Rebel
after
the
said
Horning
;
and
that
the
said
Stewarts
residing
in
Ireland
,
and
their
Bond
being
conceived
after
the
stile
of
English
Bonds
,
did
not
fall
under
Sanderson
the
Creditors
Escheat
.
Whereunto
It
was
Answered
,
That
by
the
said
Act
of
Parliament
,
Bankrupts
,
after
they
are
at
the
Horn
,
cannot
make
any
voluntar
Right
or
Payment
to
gratify
or
prefer
other
Creditors
;
so
that
there
is
no
necessity
to
debate
whether
Horning
doth
affect
or
not
;
And
yet
the
truth
is
,
Horning
is
such
a
Diligence
as
doth
affect
,
seing
thereby
all
the
Escheatable
Goods
are
affected
,
and
do
belong
to
the
King
,
and
to
the
Creditor
at
whose
instance
the
Horning
is
,
who
is
preferable
to
the
King
,
and
has
an
interest
in
the
said
Goods
;
and
that
what
ever
belongs
to
a
Rebel
,
whether
the
time
of
the
Rebellion
,
or
at
any
time
how
long
soever
thereafter
during
the
Rebellion
,
the
same
accrues
to
the
King
,
and
consequently
to
the
Creditor
in
the
Horning
;
and
that
nomina
debitorum
and
Debts
non
habent
situm
,
but
are
personal
Interests
,
and
sequuntur
personam
Creditoris
;
and
if
they
be
moveable
,
do
fall
under
his
Escheat
,
which
is
a
Legal
Assignation
,
as
said
is
.
The
Lords
enclined
to
prefer
Veatch
.
But
because
some
of
the
Lords
in
voting
were
non
liquet
,
the
Business
was
delayed
.
Vide
supra
9.
Febr.
1675.
inter
eosdem
.
And
Vide
infra
10.
Novemb.
1675.
D.
256.
Parishioners
of
Banchrie
contra
Their
Minister
.
16.
February
1675.
IN
the
Case
of
the
Parishioners
of
Banchrie
against
their
Minister
:
The
Lords
Found
,
That
the
Act
of
Parliament
,
3.
Sess.
of
his
Majesties
1st
.
Parl.
cap.
20.
Ordaining
that
ilk
Minister
should
have
Grass
for
one
Horse
and
two
Kine
,
over
and
above
their
Gleb
,
Did
import
,
That
Ministers
should
have
the
said
Grass
,
or
20.
lib.
conform
to
the
said
Act
,
albeit
their
Glebs
which
they
had
formerly
,
did
extend
to
four
Aikers
,
and
much
more
than
would
be
Grass
,
if
the
same
were
left
lee
to
that
purpose
,
for
a
Horse
and
two
Kine
.
Some
of
the
Lords
were
of
a
contrary
Opinion
,
seing
,
by
the
Act
of
Parl.
K.
Jam.
6.
Parl.
18
cap.
Where
there
is
no
arable
Land
,
16.
Soums
Grass
is
to
be
designed
for
the
four
Aikers
which
the
Law
appoints
to
be
designed
for
Glebes
:
and
upon
the
Ground
foresaid
,
Ministers
having
16
Soums
Grass
,
may
pretend
to
have
alse
much
more
Grass
designed
to
them
as
will
keep
a
Horse
and
two
Kine
,
or
20.
lib.
Hattoun
Reporter
.
Hamilton
Clerk
.
D.
257.
Binning
contra
Brotherstanes
.
eod.
die
.
ALexander
Binning
by
Contract
of
Marriage
with
Margaret
Trotter
,
was
obliged
to
resign
a
Tenement
of
Land
in
Favours
of
himself
and
his
Wife
in
Liferent
,
and
the
Heirs
of
the
Marriage
in
Fie
;
and
accordingly
Resignation
being
made
,
Infeftment
was
taken
to
him
and
his
Wife
,
and
their
Heirs
foresaid
.
Thereafter
the
said
Margaret
having
deceased
,
there
being
only
one
Daughter
of
the
said
Marriage
Margaret
Binning
;
the
said
Alexander
married
a
second
Wife
,
and
did
oblige
himself
to
provide
the
Heirs
of
that
Marriage
to
10000
merks
:
And
thereafter
did
induce
the
said
Margaret
his
Daughter
of
the
first
Marriage
,
after
her
Minority
,
to
give
a
Bond
,
obliging
her
to
resign
the
abovementioned
Tenement
to
which
she
was
to
succeed
as
Heir
of
Provision
,
to
her
Father
,
in
favours
of
her self
and
the
Heirs
of
her
own
Body
,
which
failyiening
,
in
favous
of
Alexander
Binning
her
Brother
of
the
second
Marriage
and
his
Heirs
whatsomever
;
and
to
do
no
Deed
to
prejudge
him
anent
the
Succession
.
The
said
Margaret
Binning
being
thereafter
Infeft
as
Heir
of
Provision
to
her
said
Father
in
the
said
Tenement
,
did
by
Contract
of
Marriage
with
William
Brotherstanes
oblige
her self
to
Resign
the
said
Tenement
in
favours
of
her self
and
the
said
William
,
and
the
Heirs
of
the
Marriage
;
whilks
Failyieing
his
Heirs
whatsomever
;
and
upon
the
said
Resignation
,
she
and
her
Husband
were
Infeft
.
Thereafter
the
said
Alexander
Binning
her
Brother
did
obtain
a
Decreet
against
the
said
Margaret
and
her
Husband
for
implement
of
the
said
Bond
;
and
for
granting
a
Procuratory
of
Resignation
for
resigning
of
the
said
Tenement
,
conform
to
the
said
Bond
;
in
favours
of
the
said
Margaret
her self
and
the
Heirs
of
her
Body
,
whilks
Failyieing
in
favours
of
the
said
Alexander
:
And
in
obedience
to
the
said
Decreet
the
said
Margaret
and
her
Husband
did
resign
the
said
Tenement
:
and
Infeftment
was
taken
to
the
said
Margaret
and
the
Heirs
of
her
Body
,
whilks
Failyieing
to
the
said
Alexander
:
After
the
said
Margaret
her
decease
the
said
Alexander
did
obtain
Decreet
against
the
Tennents
of
the
said
Tenement
for
Maills
and
Duties
,
which
being
Suspended
by
the
said
William
Brotherstanes
and
turned
in
a
Lybel
;
It
was
Alledged
for
him
,
that
he
ought
to
be
preferred
being
Infeft
long
before
the
Pursuer
,
and
7.
years
in
possession
:
Whereunto
It
was
Replyed
,
That
the
Defender
was
denuded
of
any
Right
that
he
had
by
the
Infeftment
foresaid
in
favours
of
the
said
Margaret
and
her
Heirs
of
Provision
foresaid
;
and
that
the
Pursuer
had
thereby
Right
as
Heir
of
Provision
to
her
.
To
which
It
was
Duplyed
,
That
being
incarcerat
upon
the
said
Decreet
against
him
and
his
Wife
(
for
Implement
)
he
had
resigned
for
Obedience
as
Husband
,
and
Authorizing
his
Wife
;
but
did
not
intend
,
nor
could
not
be
decerned
to
denude
himself
of
his
own
Right
,
which
he
had
for
so
Onerous
a
Cause
by
his
Contract
of
Marriage
.
The
Lords
,
having
considered
the
Procuratory
of
Resignation
granted
by
the
Defenders
Wife
and
himself
,
did
Find
that
he
had
granted
the
same
,
not
only
for
Obedience
,
and
for
his
Interest
as
Husband
,
but
for
his
own
Interest
,
and
as
taking
burden
for
his
Wife
;
and
so
did
denude
himself
of
any
Right
that
he
had
,
in
favours
of
his
Wife
,
and
the
Pursuer
as
Heir
of
Provision
:
And
therefore
preferred
the
said
Alexander
.
Upon
the
Debate
,
It
was
agitate
amongst
the
Lords
,
whether
such
Clauses
in
Tailʒies
,
viz.
That
no
deeds
should
be
done
in
prejudice
of
the
Heirs
of
Tailzie
and
Provision
and
their
Succession
,
do
import
that
the
Granter
of
such
Obligements
should
not
have
power
to
dispose
of
the
Land
that
is
Tailʒied
,
and
have
that
liberty
which
is
inherent
to
Dominium
?
Or
if
it
should
import
only
,
that
they
cannot
break
the
Tailzie
,
or
provide
the
Lands
in
Tailzie
to
other
Heirs
.
The
President
was
of
Opinion
that
the
Fiar
could
not
dispone
nor
do
any
other
Deed
:
And
that
the
said
Clause
was
not
restricted
to
the
altering
or
breaking
of
the
Tailzie
.
But
this
point
was
not
decided
.
D.
258.
Ratraw
contra
_____
16.
February
1675.
AN
Appearand
Heir
having
,
upon
an
Exhibition
pursued
by
him
to
the
effect
he
might
advise
whether
he
would
be
Heir
,
obtained
the
Writes
to
be
exhibited
in
the
Clerks
Hands
;
did
thereafter
upon
a
Bill
desire
the
samen
to
be
delivered
,
pretending
that
he
had
use
for
the
Writes
for
serving
himself
Heir
;
and
no
other
person
could
have
any
Interest
for
keeping
them
but
himself
.
The
Lords
granted
the
desire
of
the
Bill
:
Albeit
some
of
the
Lords
thought
,
that
the
Writes
could
not
be
delivered
to
him
,
unless
he
were
Heir
,
but
only
such
as
he
should
have
use
of
for
his
Service
upon
a
Ticket
to
the
Clerk
to
redeliver
the
same
,
if
he
should
not
be
served
Heir
within
a
certain
time
:
And
that
the
Creditors
had
Interest
,
seing
the
Appearand
Heir
,
if
he
should
resolve
not
to
be
Heir
,
might
embazle
and
put
the
Writes
out
of
the
way
,
in
prejudice
of
Comprysers
.
D.
259.
Hay
contra
Gray
.
4.
June
.
1675.
A
Merchant
,
having
given
a
Commission
to
a
Skipper
to
carry
a
parcel
of
Salmond
to
Bourdeaux
,
and
upon
the
Sale
of
the
same
there
,
to
bring
home
Wines
and
Prunes
;
pursued
the
said
Skipper
for
the
said
Salmond
and
profite
thereof
,
and
referred
the
Lybel
to
the
Skippers
Oath
:
And
the
Defender
having
qualified
his
Oath
in
these
Terms
,
viz.
That
being
upon
his
Voyage
to
France
,
he
was
forced
to
go
in
to
Holland
by
Storm
of
Weather
;
So
that
he
could
not
go
to
Bourdeaux
;
And
that
he
was
forced
to
sell
the
Salmond
in
Holland
,
and
with
the
price
of
the
same
did
buy
a
parcel
of
Cards
and
other
Goods
mentioned
in
his
Oath
,
for
the
Pursuers
use
;
and
having
embarqued
the
same
to
be
transported
to
Scotland
,
and
in
the
interim
War
having
arisen
,
the
Ship
and
Goods
were
taken
by
the
Dutch
;
and
that
he
had
done
for
the
Pursuer
as
for
himself
,
and
as
other
Merchants
had
done
for
themselves
;
Which
Oath
being
advised
,
It
was
debated
amongst
the
Lords
,
whether
the
Defender
should
be
Assoilied
,
in
respect
of
the
Oath
and
qualification
foresaid
?
And
It
was
Found
,
that
albeit
the
Defender
might
be
excused
upon
the
account
foresaid
,
for
not
going
to
Bourdeaux
and
fulfilling
his
Commission
in
terminis
,
yet
as
to
the
of
the
parcel
of
Cards
with
the
product
of
the
Salmond
,
and
the
embarqueing
of
the
same
for
the
Pursuers
use
,
for
which
he
had
no
order
;
he
was
to
be
considered
as
negotiorum
gestor
,
and
upon
his
own
hazard
;
and
could
not
prejudge
the
Pursuer
by
disposing
of
his
Money
;
unless
he
were
able
to
say
,
that
gessit
utiliter
both
consilio
&
eventu
;
specially
seing
he
might
have
secured
his
Money
in
Factors
hands
,
or
transmitted
the
same
by
Bills
of
Exchange
,
without
employing
or
far
less
hazarding
the
same
without
order
.
Mr.
Thomas
Hay
Clerk
.
D.
260.
8.
June
1675.
THE
Lords
yesterday
did
Order
,
that
in
regard
of
the
great
abuse
in
desiring
and
granting
Advocations
so
frequently
from
Inferiour
Courts
,
to
the
great
prejudice
of
the
People
,
and
the
retarding
and
delaying
Justice
;
that
therefore
the
Ordinary
upon
the
Bills
may
refuse
to
pass
Advocations
,
if
he
find
cause
;
but
that
he
ought
to
report
all
Advocations
before
they
be
past
to
the
whole
Lords
.
D.
261.
Kyle
contra
Gray
.
eod.
die
.
THIS
Day
the
Lords
Found
,
That
Advocations
for
Sums
of
Money
within
200
Merks
,
could
not
be
past
upon
any
reason
of
Iniquity
.
Castlehill
Reporter
.
Some
of
the
Lords
in
the
case
foresaid
were
of
Opinion
,
that
Advocations
should
not
pass
,
tho
the
Process
had
been
for
a
Sum
above
200
Merks
;
Because
Litiscontestation
had
been
made
in
the
Cause
;
and
after
Litiscontestation
there
can
be
no
Iniquity
but
by
a
Decreet
;
which
ought
to
be
Suspended
without
Advocation
.
D.
262.
Grant
contra
Grant
.
10.
June
1675.
IN
the
Improbation
of
a
Bond
;
the
Bond
being
produced
,
and
the
Defender
refusing
to
abide
by
the
same
,
Certification
was
craved
against
the
said
Bond
,
because
the
Defender
did
not
abide
by
the
same
:
And
the
Lords
were
clear
,
that
the
Certification
should
be
granted
for
not
abiding
by
the
said
Bond
,
tho
it
was
produced
;
but
because
the
Witnesses
in
the
Bond
had
been
examined
,
and
there
being
only
two
Witnesses
to
the
same
,
they
both
declared
that
they
were
impuberes
,
the
one
of
8.
and
the
other
of
9.
Years
of
Age
,
the
time
of
the
subscribing
of
the
Bond
;
and
the
Subscription
was
not
like
the
Subscription
now
used
by
them
;
and
to
their
remembrance
they
were
not
Witnesses
to
the
same
;
but
were
not
positive
that
they
were
not
Witnesses
.
The
Lords
,
in
respect
of
their
Declarations
,
and
that
the
Defender
himself
,
did
in
effect
,
at
least
presumptively
,
acknowledge
the
falsehood
of
the
Bond
;
in
sua
far
as
he
did
not
abide
by
the
same
;
Had
an
Impression
that
the
Bond
was
false
;
and
therefore
they
granted
Certification
for
not
abideing
by
the
same
:
and
did
leave
to
the
Pursuer
,
either
to
take
out
the
Certification
,
or
to
insist
in
improving
of
the
Bond
,
or
for
declaring
the
same
Null
,
as
wanting
Witnesses
,
as
he
should
think
fit
:
Seing
without
question
,
tho
the
Witnesses
did
not
fully
improve
it
,
yet
in
respect
of
their
Age
the
time
of
their
pretended
subscribing
the
same
,
and
by
their
Declaration
,
they
did
not
astruct
the
Truth
of
the
same
;
In
which
respect
,
the
Bond
ought
to
be
constructed
,
and
looked
upon
as
wanting
Witnesses
,
and
so
Null
.
Mr.
Thomas
Hay
Clerk
.
D.
263.
Scot
contra
Murray
.
11.
June
.
1675.
A
Suspension
being
raised
of
a
Decreet
;
Arrestment
was
used
at
the
instance
of
the
Creditor
,
after
the
raising
of
the
same
;
and
upon
that
pretence
,
It
was
craved
by
the
Suspender
,
That
the
same
might
be
loosed
;
and
upon
the
Report
of
the
Bill
,
the
Lords
having
debated
,
Whether
the
said
Arrestment
could
be
loosed
,
being
upon
a
Decreet
,
though
suspended
?
The
Lords
Found
,
That
tho
a
Suspension
be
raised
of
a
Decreet
,
yet
it
does
not
cease
to
be
a
Decreet
,
until
it
be
taken
away
by
a
Decreet
in
favours
of
the
Suspender
;
and
that
tho
a
Suspension
sists
execution
,
yet
the
Creditor
may
arrest
;
seing
the
Arrestment
is
no
Execution
,
but
a
Diligence
and
Remedy
to
preserve
the
Debitors
Estate
;
to
the
effect
that
after
discussing
of
the
Suspension
,
the
Creditor
may
have
execution
against
the
same
:
And
therefore
They
Found
the
Arrestment
could
not
be
loosed
.
In
this
case
,
the
Suspender
had
consigned
the
Principal
Sum
,
but
not
the
Annualrents
;
otherwayes
if
he
had
consigned
all
,
the
Lords
would
have
loosed
the
Arrestment
;
seing
the
Consignation
of
the
Money
is
sufficient
Surety
to
the
Creditor
.
Mr.
Thomas
Hay
Clerk
.
D.
264.
Auchenleck
contra
E.
Monteith
.
15.
June
1675.
WIdow
Auchenleck
pursued
the
Earl
of
Monteith
,
for
the
price
of
certain
Ware
for
his
Ladies
Cloaths
,
extending
(
conform
to
an
Accompt
)
to
the
Sum
of
177.
lib.
It
was
Alledged
for
the
Earl
,
That
the
said
Ware
was
furnished
,
after
he
had
served
Inhibition
against
his
Lady
that
she
should
not
contract
Debt
to
his
prejudice
.
Whereunto
It
was
Answered
,
That
the
said
Furnishing
was
necessary
for
the
Ladies
Cloaths
,
and
albeit
after
Inhibition
,
she
could
not
contract
Debt
to
her
Husbands
prejudice
,
yet
the
Earl
being
obliged
to
furnish
her
Cloaths
,
and
other
Necessaries
;
he
will
be
lyable
for
what
is
furnished
to
her
necessarily
.
The
Lords
,
(
upon
the
Report
of
the
Debate
foresaid
)
having
considered
the
Inhibition
,
and
that
the
execution
of
the
same
was
not
registrate
;
were
of
the
Opinion
,
that
the
said
Inhibition
was
Null
:
But
because
it
was
not
questioned
by
the
Defender
,
they
Ordained
that
the
Reporter
should
hear
,
what
Answer
the
Defenders
Procurators
could
make
as
to
the
said
Nullity
,
It
was
thought
hard
by
some
of
the
Lords
,
That
a
Merchant
,
after
Inhibition
at
the
Husbands
Instance
,
furnishing
bona
fide
to
the
Wife
,
should
be
frustrate
upon
the
pretence
of
an
Inhibition
;
unless
either
the
said
Inhibition
had
been
intimate
to
the
Merchant
,
or
it
were
notourly
known
that
the
Wife
was
Inhibited
;
seing
such
Inhibitions
are
granted
without
any
Ground
either
of
Write
,
as
Bond
or
Contract
,
or
the
dependance
of
a
Process
;
but
only
upon
a
Bill
and
Desire
of
the
Husband
,
sine
causae
cognitione
:
And
it
were
hard
,
That
Merchants
,
when
Persons
and
Ladies
of
any
Quality
,
come
to
their
Shops
for
buying
their
Ware
,
should
go
to
the
Registers
and
try
whether
they
be
inhibite
.
but
these
Points
were
not
decided
.
D.
265.
Katharine
McMillan
Lady
Logy
contra
Meldrums
.
16.
June
1675.
A
Disposition
being
granted
by
a
Husband
to
his
Wife
of
Moveables
,
and
she
in
an
Improbation
of
the
same
,
being
urged
to
abide
thereat
;
and
offering
to
abide
at
the
same
as
a
Write
truly
delivered
to
her
by
her
Husband
:
The
Lords
Found
,
That
she
ought
to
abide
at
the
same
simpliciter
,
and
tho
such
a
Qualification
may
be
allowed
to
Strangers
and
singular
Successors
,
who
may
be
in
bona
fide
to
take
Assignations
to
Writs
;
Yet
Wives
and
conjunct
Persons
and
Relations
,
are
in
a
different
condition
,
seing
they
are
presumed
not
to
be
ignorant
of
the
Deeds
and
Transactions
of
their
Husbands
and
Relations
.
Newbyth
Reporter
.
Monro
Clerk
.
D.
266.
Thomson
and
Halyburton
contra
Ogilvie
and
Watson
.
eod.
die
.
DAvid
Thomson
having
,
by
his
Testament
,
nominate
his
Wife
Executrix
and
Tutrix
;
and
having
left
a
Legacy
to
his
Son
of
5000.
lib.
and
having
ordained
his
Relict
to
employ
the
same
upon
Annualrent
,
in
sua
far
as
he
ordained
him
to
be
educate
upon
the
Annualrent
of
the
same
:
In
a
Pursute
for
the
said
Legacy
,
and
the
Annualrent
of
the
same
,
It
was
Alledged
,
That
the
Executrix
could
not
be
lyable
for
Annualrent
:
And
It
being
Replyed
,
That
she
was
also
Tutrix
,
and
Tutors
are
lyable
after
the
first
Term
that
they
embrace
the
Office
,
for
Annualrent
of
the
Pupils
Means
;
and
that
having
confirmed
the
Testament
,
by
the
Nomination
foresaid
of
her
to
be
Tutrix
,
she
hath
accepted
the
Office
of
Tutorie
:
And
the
Point
at
Interloquitor
being
,
whether
by
confirming
of
the
Testament
,
she
had
accepted
of
the
Office
of
Tutorie
?
Some
of
the
Lords
viz.
_____
Were
of
the
Opinion
,
That
by
Confirming
of
the
Testament
,
she
did
not
accept
of
the
Office
:
But
it
was
Found
by
the
Lords
,
That
having
confirmed
without
Protestation
that
she
did
not
accept
of
the
Office
,
eo
ipso
she
did
accept
of
the
same
:
And
tho
she
had
emitted
such
a
Protestation
,
it
could
not
be
allowed
,
seing
she
was
not
only
named
Executrix
,
but
had
a
Legacy
left
her
;
and
she
could
not
accept
the
Office
of
Executry
and
Legacy
foresaid
,
and
repudiate
the
Office
of
Tutory
of
her
own
Child
.
The
Lords
(
in
the
Case
foresaid
)
Thought
,
That
if
the
Relict
were
able
to
make
appear
,
That
having
used
all
possible
diligence
,
she
had
not
recovered
Payment
of
the
Defuncts
Means
;
she
could
not
be
lyable
for
Annualrent
,
but
from
the
time
that
she
recovered
the
same
.
Castlenil
Reporter
.
Monro
Clerk
,
D.
267.
Gray
contra
Cockburn
.
eod.
die
.
THE
Lords
Found
,
In
the
Case
betwixt
the
Laird
of
Cockburn
and
Mr
,
William
Gray
Minister
at
Duns
,
That
Cockburn
,
being
lyable
to
pay
certain
Bolls
of
Victual
betwixt
Yule
and
Candlemass
,
might
have
payed
the
same
upon
Candlemass
day
:
and
that
as
he
might
have
payed
the
same
he
might
have
made
offer
thereof
:
but
that
in
all
cases
of
that
nature
,
Persons
who
are
lyable
,
and
do
make
such
Offers
,
are
not
thereby
liberate
as
to
the
greatest
Pryces
,
unless
the
Partie
be
in
mora
to
receive
the
Victual
;
either
the
time
of
the
offer
,
or
six
days
thereafter
.
Castlehil
Reporter
.
Monro
Clerk
.
D.
268.
Heckford
contra
Ker.
17
June
1675.
MR.
Hugh
Ker
having
granted
Bond
to
_____
Heckfords
,
for
the
Sum
of
1000.
merks
;
and
being
obliged
thereby
to
pay
the
said
Sum
with
Annualrent
at
Martimass
thereafter
;
and
for
the
Creditors
surety
having
wadset
by
the
said
Bond
ten
rudes
of
Land
,
to
be
possest
for
the
annualrent
of
the
said
Sum
,
so
long
as
the
samen
should
remaine
unpayed
:
The
Representatives
of
the
said
Mr.
Hugh
were
pursued
for
6
lib.
as
the
inlake
,
whereof
the
Rent
of
the
Land
did
come
short
of
the
Annualrent
of
the
said
Sum
and
for
publict
burdens
:
who
did
alleadge
,
that
the
said
Right
being
a
proper
wadset
,
and
the
saids
Lands
being
possest
by
the
Creditor
,
the
Debitor
was
not
lyable
,
neither
for
Annualrent
nor
Publick
Burdens
.
The
Lords
Found
,
That
the
Bond
being
of
the
Nature
foresaid
,
and
containing
a
proper
Wadset
;
so
that
if
the
Duties
of
the
Lands
had
exceeded
the
Annualrent
,
the
superplus
would
have
belonged
to
the
Creditor
entirely
;
and
not
been
imputed
in
payment
of
the
Principal
;
the
Debitor
was
not
lyable
either
for
inlake
or
publick
Burdens
:
And
tho
in
the
beginning
of
the
Bond
,
the
Debitor
was
obliged
to
pay
Annualrent
,
yet
the
payment
of
the
same
was
qualified
,
and
to
be
understood
according
to
the
whole
Tract
of
the
Bond
,
viz.
That
the
Duties
should
be
allowed
for
payment
of
the
Annualrent
,
and
that
the
Creditor
should
possess
,
and
have
the
use
and
〈◊〉
〈◊〉
〈◊〉
〈◊〉
〈◊〉
of
the
Land
and
Rents
thereof
for
his
Annualrent
;
which
is
clearly
a
proper
Wadset
.
Newbyth
Reporter
.
Mr.
John
Hay
Clerk
.
D.
269.
Colledge
of
Aberdeen
contra
The
Town
of
Aberdeen
.
eod.
die
.
DOctor
Reid
having
by
his
Testament
left
his
Books
to
the
Colledge
of
Aberdeen
,
to
be
kept
by
a
Bibliothecare
;
and
having
left
for
a
Patrimony
and
Sallary
to
the
Bibliothecare
the
Sum
of
6000
Merks
;
and
having
named
Mr.
Robert
Dounie
his
own
Relation
to
be
Bibliothecare
;
and
in
case
of
his
refuseal
,
having
appointed
another
to
be
chosen
by
the
Colledge
:
And
the
Master
of
the
Grammer
School
,
Mr.
Robert
Paterson
being
presented
to
the
said
Office
by
the
Colldge
,
pursued
a
Declarator
to
hear
and
see
it
Found
and
Declared
,
that
he
has
Right
to
the
said
Office
and
Sallary
.
It
was
Alledged
for
the
Town
of
Aberdeen
;
That
no
Title
was
produced
for
the
Pursuer
but
the
Extract
of
Doctor
Reid's
Testament
,
bearing
the
said
Mortification
;
which
could
not
be
respected
,
seing
the
said
Extract
is
out
of
the
Books
of
the
Commissars
of
Aberdeen
;
and
his
Testament
could
not
be
confirmed
,
but
by
the
Commissars
of
Edinburgh
,
he
having
died
out
of
the
Country
;
and
therefore
the
said
Extract
could
not
be
considered
,
but
as
a
Copy
,
and
the
principal
ought
to
be
produced
;
And
it
appears
,
that
there
was
never
any
Principal
,
bearing
the
Masters
of
the
Colledge
to
have
the
Election
of
the
Bibliothecare
;
seing
the
Town
of
Aberdeen
has
been
in
use
since
the
Mortification
to
present
to
the
said
Office
;
and
by
a
Contract
in
anno
1632.
betwixt
the
said
Mr.
Dounie
and
the
Town
,
he
is
presented
to
the
said
Office
by
the
Town
;
to
which
Doctor
Dun
the
Principal
of
the
Colledge
was
Witness
,
and
the
Executors
nominate
likeways
Witnesses
.
The
Lords
Found
,
There
was
no
necessity
to
produce
the
Principal
,
the
Extract
being
a
sufficient
Title
:
and
as
to
the
pretended
Nullity
,
it
was
not
Juris
;
seing
non
constat
,
that
Doctor
Reid
died
out
of
the
Coutry
:
And
if
there
were
any
Ground
upon
the
pretence
foresaid
,
it
were
only
of
a
Reduction
.
It
was
Found
also
,
That
by
the
said
Testament
,
the
Nomination
of
the
Bibliothecare
did
belong
to
the
Colledge
,
and
the
possession
of
the
Town
without
a
Right
cannot
Found
a
Defence
in
petitorio
:
and
the
Deed
and
Contract
with
Dounie
,
and
the
Subscription
of
the
Principal
,
and
of
the
Executors
of
Doctor
Reid
as
Witnesses
,
could
not
prejudge
the
Colledge
.
The
Lords
having
considered
the
Tenor
of
the
Mortification
,
which
gives
Power
to
the
Colledge
to
Name
in
case
of
Refusal
of
Dounie
;
Found
nevertheless
,
that
the
said
Interest
to
Name
and
choose
a
Bibliothecare
was
not
temporary
and
prima
vice
;
Seing
Wills
of
Defuncts
were
to
be
interpret
benignly
,
Especially
in
favours
of
Colledges
;
and
there
can
be
no
reason
,
why
the
Defunct
should
have
appointed
the
said
Election
to
be
in
manner
foresaid
for
the
first
time
,
and
not
thereafter
:
And
if
the
Colledge
had
not
the
Right
foresaid
,
it
should
not
belong
to
the
Town
,
but
the
Defuncts
Heir
,
who
doth
concur
with
the
pursute
.
Newbyth
Reporter
Robert
Hamilton
Clerk
.
D.
270.
contra
18.
June
1675.
IN
an
Adjudication
,
the
Appearand
Heir
being
called
,
and
his
Advocates
having
compeared
and
desired
to
see
the
Process
;
It
was
Alledged
,
That
he
had
no
Interest
,
having
renounced
,
and
that
his
compearing
was
only
to
retard
the
Pursuers
Diligence
,
that
other
Creditors
might
come
in
.
This
point
of
form
being
reported
,
viz.
Whether
his
Procurators
should
see
:
And
if
they
,
should
see
,
whether
in
communi
forma
or
not
,
or
in
the
Clerks
hands
?
Some
of
the
Lords
were
of
the
Opinion
,
That
being
a
Person
necessar
to
be
called
,
and
being
called
,
his
Procurators
should
see
in
communi
forma
,
the
Law
making
no
distinction
;
and
tho
he
had
Renounced
,
yet
he
had
Interest
to
see
and
object
,
whether
the
Pursuers
Debt
was
the
true
Debt
,
or
satisfied
;
and
if
it
appeared
that
it
was
satisfied
,
he
may
,
notwithstanding
his
Renounciation
,
enter
if
he
thought
fit
:
And
the
Renounciation
may
be
questioned
as
false
.
The
Lords
nevertheless
Found
,
That
he
should
see
only
in
the
Clerks
hands
within
24.
Hours
;
tho
it
was
urged
,
that
if
the
Party
were
in
Town
,
that
course
might
be
taken
;
but
the
Party
being
at
the
distance
of
100
Miles
,
or
any
other
considerable
distance
,
so
that
in
so
short
a
time
the
Procurator
could
not
get
Information
,
it
were
better
that
in
such
cases
the
Processes
should
be
seen
in
communi
forma
:
For
if
Parties
had
prejudice
,
they
would
apply
again
by
Bills
,
which
would
occasion
greater
trouble
and
delay
.
Redford
Reporter
.
D.
271.
E.
Weems
contra
Bruce
.
22.
June
1675.
A
Bond
being
granted
by
the
Earl
of
Weems
to
_____
Bruce
and
his
Wife
Gaw
,
and
the
longest
liver
of
them
two
,
and
to
the
said
Bruce
his
Heirs
:
and
the
said
Gaw
the
Relict
having
intented
a
pursute
for
payment
of
the
Sum
due
thereby
,
It
was
Alledged
,
it
was
prescrived
,
there
being
more
than
40.
Years
Elapsed
since
the
granting
.
It
was
Answered
,
That
the
time
of
the
Husbands
Lifetime
,
the
Bond
did
not
prescrive
against
the
Pursuer
,
being
cled
with
a
Husband
,
and
so
non
valens
agere
.
The
Lords
,
upon
the
Report
made
by
my
Lord
Newbyth
,
Did
ex
tempore
Find
,
That
it
did
not
prescrive
during
the
Husbands
time
:
Tho
some
of
them
were
of
the
opinion
,
that
the
case
was
of
importance
as
to
the
Consequence
;
and
was
to
be
further
thought
upon
and
debated
,
in
respect
it
cannot
be
said
,
but
there
was
a
Person
valens
agere
ever
since
the
date
of
the
Bond
;
the
Husband
dureing
all
this
time
being
valens
agere
;
and
after
his
decease
,
the
Wife
:
and
the
Husbands
silence
,
being
the
Fiar
,
and
the
Person
who
had
Right
for
the
time
,
being
joined
with
the
Relict
her
silence
;
and
both
being
joyned
by
the
space
of
40.
years
;
all
the
reasons
of
Prescription
concurred
in
the
Case
,
viz.
That
Debitors
should
be
secured
after
so
long
a
time
;
and
that
there
is
praesumptio
Juris
,
the
Bonds
may
be
made
up
,
and
nothing
thereon
done
till
all
the
witnesses
were
dead
:
And
that
maxim
contra
non
valentem
agere
,
&c.
is
to
be
understood
in
the
case
,
where
there
is
not
a
person
having
Right
valens
agere
,
by
the
space
of
40
years
:
or
in
the
Case
of
temporary
and
momentary
Prescriptions
,
but
not
in
Prescriptions
longissimi
temporis
:
Otherways
,
Prescription
,
being
the
great
Salvo
and
Security
of
People
,
might
be
eluded
,
and
a
person
acquiring
a
Right
of
Lands
,
possest
by
his
Author
peaceably
,
for
the
space
of
40.
Years
without
any
Interruption
,
should
not
be
secure
;
seing
it
may
be
pretended
,
That
the
Husband
,
having
been
silent
fourty
Years
,
without
any
Interruption
;
his
Wife
,
who
pretends
Right
to
the
Lands
by
Liferent
or
otherways
,
non
valebat
agere
during
the
Marriage
.
D.
272.
Bruce
contra
Bruce
.
23.
June
1675.
DOctor
Arnot
having
disponed
,
to
one
of
his
Nevoys
,
an
Annualrent
out
of
certain
Lands
belonging
to
him
;
and
thereafter
having
disponed
to
another
of
his
Nevoys
,
the
elder
Brother
of
the
Annualrenter
,
the
foresaid
Lands
:
A
poinding
of
the
Ground
was
intented
,
at
the
Instance
of
the
Person
who
had
Right
to
the
Annualrent
:
And
It
was
Alledged
,
That
the
Disposition
of
the
Annualrent
was
never
delivered
by
the
Doctor
,
but
was
beside
him
the
time
of
his
decease
,
and
was
viis
&
modis
gotten
out
of
his
Charter
Chest
,
and
given
to
the
Pursuer
:
To
which
It
was
Answered
,
That
the
Pursuer
had
the
Paper
in
his
Hands
,
and
it
was
presumed
to
be
delivered
:
And
2do
.
Tho
it
should
be
supposed
,
that
the
said
Right
was
amongst
the
Doctors
Papers
the
time
of
his
decease
,
yet
the
Doctor
having
made
the
said
Right
publick
by
an
Infeftment
,
and
Seasin
thereupon
to
the
Pursuer
,
which
was
Registrat
;
albeit
he
might
have
evacuate
the
said
Right
by
destroying
the
Disposition
,
yet
nevertheless
having
keeped
the
same
by
him
undestroyed
,
it
ought
to
be
construed
in
Law
,
that
being
Uncle
to
the
Pursuer
,
and
having
given
the
said
Right
upon
the
account
of
the
said
Relation
,
he
kept
the
same
by
him
to
the
Pursuers
behoove
,
unless
it
could
be
made
appear
,
that
the
Doctor
did
any
Deed
to
recal
and
evacuat
the
said
Right
.
The
Lords
repelled
the
Defence
of
not
delivery
,
in
respect
of
the
Answer
.
Hatton
Reporter
.
Mr.
Thomas
Hay
Clerk
.
D.
273.
Dowglass
of
Kelhead
contra
Carlyle
and
others
.
eod.
die
.
KElhead
pursued
a
Declarator
of
Non-entry
,
pretending
that
he
was
Superior
of
the
Lands
libelled
:
In
which
Process
,
It
was
Alledged
,
That
he
was
not
Superior
of
the
said
Lands
,
In
respect
the
Right
libelled
,
that
he
had
from
my
Lord
Queensberry
,
was
to
be
holden
of
the
Disponer
:
and
Queensberry
being
Superior
to
the
Defenders
,
could
not
interpose
another
betwixt
him
and
them
:
And
upon
the
proponing
of
the
said
Alledgance
,
the
Pursuer
was
forced
to
reply
,
upon
a
Right
to
the
Casualities
granted
by
a
Paper
apart
by
my
Lord
Queensberry
to
the
Pursuer
,
and
thereupon
Process
was
sustained
:
and
decreet
given
for
the
retoured
dutie
before
the
intention
of
the
Declarator
;
and
the
full
Avail
and
Rent
of
the
Land
after
the
intention
of
the
Cause
.
Of
which
,
Suspension
being
raised
upon
these
Reasons
.
1mo
.
That
,
after
Decreet
of
Declarator
was
recovered
,
the
Superior
and
his
Donator
has
Right
to
the
Lands
during
the
Non-entry
;
and
may
remove
Tennents
,
or
uplift
the
Duties
from
them
;
but
before
Declarator
,
there
could
not
be
a
Sentence
for
Poinding
the
Ground
,
for
the
full
avail
.
2do
.
Tho
the
Ground
could
be
poinded
for
the
full
Avail
,
yet
the
Pursuer
has
no
Right
but
to
the
Feu-duties
,
even
after
the
intention
of
the
Cause
,
before
the
Pursuer
did
Found
upon
and
produce
the
Assignation
foresaid
,
as
his
Right
to
the
Casualities
;
seing
there
being
a
question
whether
my
Lord
Queensberry
or
the
Pursuer
had
Right
to
the
Superiority
,
and
the
Libel
being
only
founded
upon
the
Pursuers
Right
as
Superior
,
the
Defender
was
in
bona
fide
,
and
could
not
enter
nor
be
lyable
for
the
full
avail
,
until
the
Question
was
cleared
by
production
of
the
said
Assignation
:
and
therefore
could
not
be
lyable
until
the
same
was
produced
.
The
Lords
,
As
to
the
first
Reason
,
Found
,
That
after
the
intention
of
the
Declarator
of
Non-entry
,
at
the
Instance
of
the
Party
having
Right
,
the
Defenders
are
lyable
in
the
full
avail
;
and
that
the
real
conclusion
of
poinding
the
Ground
for
the
same
may
be
sustained
;
seing
the
Ground
may
be
poinded
for
a
Rent
liquidate
,
as
it
was
in
this
Case
:
and
when
Lands
are
not
retoured
,
the
Pursuer
,
even
before
Declarator
,
may
crave
Right
to
the
Rents
.
As
to
the
Second
,
The
Lords
were
all
clear
,
that
the
Defender
was
not
lyable
for
the
full
avail
,
but
after
production
of
the
Title
,
whereupon
the
Pursute
is
sustained
:
But
it
being
moved
,
that
the
Defenders
having
proponed
the
said
Alledgance
before
the
same
was
repelled
,
and
decreet
given
out
for
the
full
avail
,
after
intention
of
the
Cause
;
some
of
the
Lords
were
of
the
Opinion
,
that
there
was
now
no
Remedy
:
Others
thought
,
That
there
being
a
clear
iniquity
and
prejudice
to
the
Party
,
and
the
Lords
being
convinced
of
the
same
,
they
ought
to
do
justice
to
the
party
:
And
the
question
being
brought
before
them
upon
Suspension
ex
incontinenti
;
and
not
ex
intervallo
,
the
Sentence
non
transivit
in
rem
judicatam
:
Whereupon
some
heat
having
arisen
among
the
Lords
,
while
some
did
plead
the
Credit
of
the
House
,
and
the
Security
of
the
People
,
that
the
Decreets
of
the
Lords
in
foro
should
be
an
ultimate
and
unquestionable
Decision
;
and
others
Thought
and
did
represent
,
that
the
Honour
of
the
House
,
and
Interest
and
Security
of
the
People
consists
in
this
,
that
Justice
should
be
done
,
and
no
evident
Iniquity
should
be
,
without
Remedy
;
Especially
where
a
Decreet
has
not
taken
effect
,
and
become
res
judicata
,
but
is
drawn
in
question
immediatly
by
a
Suspension
.
The
Lords
did
demur
,
and
decided
not
that
Point
.
Castlehil
Reporter
.
Gibson
Clerk
.
D.
274.
Hamilton
of
Munkland
contra
_____
Maxuel
.
eod.
die
.
UPon
the
Report
of
Redford
,
betwixt
Hamilton
of
Munkland
,
and
_____
Maxuel
,
The
Lords
Found
,
That
a
Debt
,
due
by
a
Person
,
who
had
disponed
his
Land
upon
the
account
that
a
Manse
was
built
,
and
that
he
was
resting
his
Proportion
of
the
Charges
,
is
not
debitum
Fundi
.
Hamilton
Clerk
.
D.
275.
The
Colledge
of
Aberdeen
contra
the
Town
of
Aberdeen
.
24.
June
1675.
IN
the
Case
abovementioned
,
of
the
Colledge
against
the
Town
of
Aberdeen
;
The
Lords
,
having
heard
again
a
Debate
in
praesentia
,
Did
adhere
to
what
they
had
Found
formerly
:
and
did
Declare
Jus
eligendi
of
a
Bibliothecare
to
pertain
to
the
Colledge
.
Vide
17.
June
1675.
inter
eosdem
.
D.
276.
Earl
of
Lauderdale
contra
Lady
and
Lord
Yester
.
25.
June
1675.
THE
Duke
of
Lauderdale
having
settled
upon
the
Lady
Yester
his
Daughter
,
his
Estate
:
and
thereafter
by
Contract
of
Marriage
betwixt
the
said
Lady
and
my
Lord
Yester
,
containing
a
Procuratory
of
Resignation
,
whereupon
Infeftment
followed
;
the
said
Estate
is
disponed
and
resigned
by
her
,
with
consent
of
her
Father
,
and
him
for
his
Interest
,
in
favours
of
the
said
Lady
,
and
the
Heirs
of
her
Body
of
that
Marriage
;
and
these
failyiening
,
of
any
other
Marriage
:
With
Provisions
contained
in
the
said
Procuratory
;
And
in
special
,
that
the
said
Lands
should
be
redeemable
by
the
Earl
,
upon
a
Rose-noble
;
and
that
upon
an
Order
used
,
the
said
Right
in
Favors
of
the
Lady
and
her
foresaids
should
be
void
:
and
two
other
Provisions
in
Case
of
Redemption
,
viz.
1mo
.
That
in
Case
the
Duke
of
Lauderdale
should
think
fit
to
redeem
,
that
the
Duke
and
his
Heirs
should
be
lyable
,
and
obliged
to
pay
,
(
likeas
they
bind
themselves
by
the
said
Provision
,
to
pay
)
to
the
Lady
and
her
foresaids
,
besides
the
Tocher
,
7000.
lib.
sterl
.
at
the
first
Term
after
the
Dukes
decease
.
And
2do
.
That
whereas
by
the
said
Contract
,
the
Lady
,
if
the
Estate
had
not
been
redeemed
,
was
obliged
to
pay
all
her
Fathers
Debts
and
Legacies
,
she
should
be
free
of
the
same
,
in
case
of
Redemption
:
Which
Provisions
are
contained
in
the
Infeftments
.
The
Duke
,
having
used
an
Order
,
and
having
intented
thereupon
a
Declarator
of
Redemption
;
concluding
that
the
Lands
should
be
declared
lawfully
redeemed
,
and
that
his
Daughter
should
be
decerned
to
denude
her self
;
and
to
grant
a
Procuratory
for
Resigning
;
since
she
was
infeft
by
publick
Infeftment
.
It
was
Alledged
,
That
as
to
that
Conclusion
,
that
she
should
renounce
;
there
was
no
Warrand
for
the
same
;
seing
there
was
not
a
Reversion
in
these
Terms
,
that
she
should
grant
the
Lands
orderly
redeemed
and
renounce
;
in
which
Terms
,
Reversions
,
which
are
pacta
de
retrovendendo
,
are
ordinarly
conceived
;
but
that
the
Reversion
,
whereupon
the
Order
is
used
,
is
only
a
Provision
contained
in
the
said
Contract
of
the
Tenor
foresaid
;
with
a
resolutive
clause
,
in
case
of
Redemption
,
which
imports
no
Obligement
upon
the
Lady
,
nor
pactum
de
retrovendendo
,
but
only
Jus
Retractus
,
and
a
Faculty
and
Power
to
the
Father
to
Redeem
;
and
in
case
of
Redemption
,
the
expiring
and
Nullity
of
the
Right
.
2.
It
was
Alledged
,
That
tho
the
Lady
were
to
Renounce
;
her
Renounciation
ought
to
be
qualified
and
burdened
with
the
provisions
contained
in
her
Right
;
and
in
special
,
with
the
foresaid
provision
as
to
the
secureing
to
her
7000.
lib.
Sterl
.
and
the
other
Provision
foresaid
for
securing
her
relief
of
the
Debts
.
It
was
Replyed
,
That
as
to
the
said
first
Alledgance
;
that
inest
in
all
Contracts
bearing
Reversions
;
whether
in
the
formal
Terms
of
a
Reversion
;
or
Provisions
upon
the
matter
importing
a
Reversion
:
and
ex
stylo
all
Decreets
of
Redemption
do
contain
the
said
Decerniture
to
Renounce
:
And
the
Duke
being
denuded
in
favours
of
his
Daughter
by
publick
Infeftment
,
the
habilis
modus
to
return
again
to
his
Right
upon
Redemption
,
is
upon
the
Resignation
.
As
to
the
2d
.
It
was
Answered
,
That
the
said
Provisions
are
not
in
the
Reversion
;
and
amount
only
to
a
personal
obligement
upon
the
Duke
and
his
Heirs
;
but
not
to
be
a
real
burden
and
incumberance
upon
the
Right
.
As
to
Debts
,
It
was
Answered
,
That
there
needs
no
other
security
for
the
Lady
her
relief
of
the
same
;
seing
she
was
to
be
lyable
thereto
in
contemplation
of
the
Right
,
if
it
should
stand
effectual
in
her
Person
:
And
it
s
provided
,
in
case
of
Redemption
,
she
should
be
free
thereof
.
It
was
Duplyed
as
to
the
said
provisions
;
That
the
same
,
being
in
the
body
of
the
Procuratory
and
Infeftment
,
are
real
;
and
they
are
insert
unico
contextu
with
the
provision
,
that
the
Lands
shall
be
redeemable
;
and
doe
qualifie
the
same
:
And
that
notwithstanding
that
it
be
provided
,
That
in
case
of
Redemption
she
should
not
be
lyable
to
the
Debts
,
yet
she
may
be
in
hazard
to
be
overtaken
as
Successor
Titulo
Lucrativo
;
In
respect
,
by
the
said
Right
it
is
provided
,
that
in
case
of
Redemption
the
said
7000
lib.
should
be
given
to
her
and
her
foresaids
,
which
being
a
provision
introduced
in
her
favours
,
and
in
effect
in
lieu
of
the
Estate
,
and
being
so
great
,
may
fix
upon
her
a
Passive
Title
;
as
having
gotten
by
her
Father
beside
her
Tocher
so
great
a
Sum
;
which
is
not
payable
to
her
Husband
,
but
to
her
and
her
foresaids
;
and
therefore
could
not
Renounce
,
but
with
the
burden
of
the
said
provision
for
her
Relief
.
The
Lords
Found
,
That
she
ought
to
Renounce
:
Reserving
to
her
the
foresaid
provision
,
as
Accords
.
Castlehill
Reporter
.
Gibson
Clerk
.
D.
277.
Tutor
to
the
Laird
of
Aitons
Daughter
.
eod.
die
.
THE
Tutor
to
the
Daughter
of
the
deceast
Laird
of
Ayton
,
having
craved
by
a
Bill
,
that
he
might
be
warranted
by
an
Order
of
the
Lords
,
to
set
the
Pupils
Lands
for
less
Duties
than
were
payed
formerly
;
seing
the
former
Duty
could
not
be
gotten
.
The
Lords
,
Tho
they
had
granted
the
like
desire
in
favours
of
other
persons
upon
Bills
,
thought
,
upon
better
consideration
,
that
it
was
fit
to
refuse
the
said
Bill
;
seing
upon
such
pretences
Minors
may
be
wronged
by
their
Tutors
Authority
;
and
the
Lords
have
only
a
Jurisdictio
contentiosa
in
relation
to
Processes
or
questions
depending
betwixt
Parties
;
but
not
a
voluntar
Jurisdiction
,
or
power
in
relation
to
Administration
of
private
Estates
:
And
if
the
Tutors
Deed
in
setting
pupils
Lands
were
warrantable
,
the
Law
would
secure
him
:
And
therefore
left
him
to
do
as
he
will
be
answerable
.
Redford
Reporter
.
D.
278.
_____
contra
_____
eod.
die
.
UPon
a
Report
made
to
the
Lords
,
concerning
a
Decreet
of
the
Commissars
which
was
questioned
upon
Iniquity
,
because
it
being
urged
,
that
Caution
should
be
Found
in
an
Improbation
,
the
Commissar
did
not
Order
the
Party
to
find
Caution
.
It
was
Debated
amongst
the
Lords
,
Whether
Caution
should
be
Found
or
Money
should
be
consigned
,
alsewell
in
Actions
as
upon
Exceptions
in
Improbations
?
And
some
were
of
the
Opinion
,
that
Caution
or
Consignation
should
be
in
all
questions
of
Improbation
;
Whether
by
way
of
Exception
or
Action
,
conform
to
the
Act
of
Parliament
,
Q.
Mary
.
7.
Parl.
Cap.
62.
And
some
of
the
Lords
were
of
the
Opinion
,
that
the
Law
being
clear
to
that
purpose
,
Consignation
should
be
wherever
such
Questions
fall
out
either
by
way
of
Action
or
Exception
:
But
the
contrary
was
asserted
by
others
,
and
they
pretended
Custom
;
but
nothing
was
instanced
to
verify
the
custom
;
and
tho
it
were
,
it
ought
not
to
derogate
to
so
clear
a
Law
upon
so
good
Grounds
.
The
Lords
did
not
decide
this
point
at
this
time
.
D.
279.
_____
contra
_____
eod.
die
.
UPon
a
Report
made
to
the
Lords
concerning
an
Advocation
;
upon
that
reason
,
that
there
was
a
Competition
in
the
case
upon
double
Rights
:
It
was
debated
among
the
Lords
,
Whether
the
cause
being
undoubtedly
competent
before
the
Inferior
Judge
,
the
pretence
;
that
there
was
a
competition
of
double
Rights
should
be
a
Relevant
Ground
of
Advocation
:
And
some
of
the
Lords
were
of
Opinion
,
that
in
the
general
to
Advocate
upon
that
Reason
,
it
were
hard
;
seing
Inferior
Judges
their
Jurisdiction
as
to
Causes
competent
before
them
,
is
founded
upon
their
Rights
;
so
that
they
have
alse
good
Right
to
the
same
as
to
any
other
property
:
And
in
Removings
,
and
Actions
for
Maills
and
Duties
,
and
others
such
real
Actions
,
when
a
Defence
is
founded
upon
a
Right
,
or
when
Parties
compear
for
their
Interest
,
and
produce
Rights
,
it
may
alwayes
be
pretended
,
that
the
question
is
anent
double
Rights
;
so
that
the
Jurisdiction
of
Inferior
Judges
may
be
altogether
evacuated
:
And
the
Lords
,
who
have
scarce
time
to
decide
Causes
that
are
proper
before
them
,
should
be
cumbered
with
Processes
that
may
and
ought
to
be
determined
by
an
Inferior
Judge
;
contrar
to
the
Acts
of
Parliament
,
and
in
special
the
39
Act
of
Q.
Mary
her
6th
.
Parl.
And
the
8th
.
Act
of
His
Majesties
1st
.
Parl.
3.
Sess.
Discharging
the
Advocation
of
Causes
,
whereunto
Inferior
Judges
are
expresly
appointed
Judges
:
But
if
it
should
be
represented
and
appear
,
that
there
is
intricacie
in
such
Causes
,
wherein
there
may
be
question
of
double
Rights
,
the
Lords
in
that
case
may
Advocate
:
But
upon
the
pretence
of
double
Rights
,
as
to
which
it
may
be
there
is
no
difficulty
,
there
ought
to
be
no
Advocation
.
Yet
it
was
urged
by
_____
that
the
Lords
were
in
use
to
pass
Advocations
upon
the
reason
foresaid
;
And
albeit
the
pretence
of
custome
not
being
verified
,
and
tho
verified
being
against
Law
,
ought
not
to
be
put
in
the
ballance
with
express
Laws
founded
upon
good
Reason
and
Common
Law
,
yet
the
Bill
was
past
.
Redford
Reporter
.
D.
280.
Gilchrist
contra
Murray
.
26.
June
.
1675.
IN
a
Process
for
payment
of
a
Sum
due
by
the
Defender
,
the
Lybel
being
referred
to
his
Oath
,
and
he
having
declared
with
a
quality
,
viz.
That
as
he
was
Debitor
so
he
had
made
payment
,
partly
in
Money
,
and
partly
in
Commodities
and
Ware
.
The
Lords
,
Upon
Advising
of
the
Oath
,
Found
,
That
the
same
not
being
special
as
to
the
quality
of
Payment
,
viz.
How
much
was
payed
in
Money
,
and
how
much
in
Goods
,
nor
being
special
,
as
to
the
quantity
of
the
several
Goods
;
did
not
admit
the
same
:
but
if
it
were
made
special
,
as
to
Money
payed
by
him
,
it
would
be
sustained
pro
tanto
:
And
as
to
the
delivery
of
Goods
in
satisfaction
of
the
Debt
;
It
resolved
in
an
Exception
,
and
ought
to
be
proven
.
Hamilton
Clerk
.
D.
281.
Livingston
contra
Garner
.
eod.
die
.
A
Bond
being
granted
for
payment
of
a
Sum
,
and
thereupon
the
Granter
having
suspended
in
his
own
time
;
and
a
Decreet
of
Suspension
being
recovered
in
his
favours
:
after
his
death
,
his
Son
being
of
the
same
Name
,
was
Charged
,
Denounced
,
and
taken
with
Caption
for
the
same
Debt
.
The
Lords
upon
a
Bill
,
Did
Find
,
That
the
Son
ought
to
be
free
of
the
said
Debt
:
and
in
regard
of
the
Chargers
trincating
and
fraudful
Practice
,
they
modified
40.
lib.
to
be
payed
by
him
,
the
one
half
to
the
Partie
,
the
other
half
to
the
Poors
Box.
Gibson
Clerk
.
D.
282.
Langlands
Supplicant
.
eod.
die
.
A
Bankrupt
having
obtained
a
Bonorum
,
by
a
Bill
desired
the
Lords
to
dispense
with
his
wearing
the
Habit
,
in
respect
of
an
Attestation
of
two
Persons
,
that
he
had
become
irresponsal
,
upon
the
account
of
Cautionrie
,
and
other
Occasions
mentioned
therein
;
which
the
Lords
did
:
Albeit
some
of
their
Number
were
of
another
Opinion
,
and
did
urge
,
that
by
the
Act
of
Parliament
,
such
Persons
being
infamous
,
and
the
Lords
by
an
Act
of
Sederunt
,
having
Ordained
that
they
should
wear
the
Habit
,
as
is
the
Custom
in
all
other
Nations
,
that
they
may
be
known
to
be
such
Persons
;
the
Lords
neither
could
nor
ought
to
dispence
with
express
Laws
and
Statutes
;
and
that
no
respect
ought
to
be
had
to
the
Attestation
,
being
emitted
by
privat
Persons
having
no
Authority
,
and
not
cited
nor
sworn
to
that
purpose
:
and
the
pretence
contained
in
the
Attestation
was
most
irrelevant
.
Gibson
Clerk
.
D.
283.
Birnie
contra
Montgomerie
.
29.
June
1675.
A
Pursute
for
making
up
the
Tenor
of
a
Comprising
was
sustained
,
in
respect
the
Adminicles
were
most
pregnant
:
and
in
special
the
Executiones
were
yet
extant
and
entire
.
Monro
Clerk
.
_____
It
is
thought
,
that
much
Cautione
and
tenderness
should
be
used
in
Processes
of
the
Nature
forsaid
,
for
proving
the
Tenor
of
Compriseings
;
seing
Compriseings
are
to
be
considered
,
either
as
Decreets
or
as
Executions
;
and
in
effect
,
they
are
both
upon
the
matter
;
In
respect
the
Messenger
Decerns
and
Adjudges
,
and
Dispones
the
Lands
and
others
comprised
;
and
therefore
the
same
ought
to
be
subscribed
,
both
by
the
Messenger
,
who
in
subsidium
doth
that
which
the
Partie
ought
to
do
,
and
doth
dispone
his
Estate
in
satisfaction
of
his
Debt
;
and
by
the
Clerk
of
the
Compriseing
as
a
Decreet
:
and
the
Tenor
of
Decreets
cannot
be
proven
but
by
Extracts
;
And
a
Comprysing
being
(
as
said
is
)
Processus
executivus
,
and
ultimate
execution
;
it
ought
not
to
be
proven
but
per
relationem
Nuncij
,
and
execution
under
the
Messengers
hands
.
And
it
were
hard
that
executiones
should
be
made
up
by
witnesses
,
and
probation
of
the
Tenor
;
Seing
there
may
be
a
nullity
in
the
same
if
they
were
extant
:
And
tho
witnesses
may
remember
they
had
seen
executions
,
they
can
hardly
remember
upon
the
precise
tenor
of
all
the
words
of
the
same
:
And
if
the
tenor
of
the
executions
might
be
made
up
,
there
should
be
no
security
;
Seing
Prescription
,
which
is
the
greatest
Security
of
the
People
,
may
be
evacuated
,
upon
pretence
that
there
was
an
interruption
by
the
execution
of
a
Summonds
;
but
that
the
same
being
lost
is
made
up
by
proving
the
Tenor
:
and
by
an
Act
of
Parliment
K.
Jam.
6.
Par.
6.
cap.
94.
It
s
Ordained
,
That
the
Tenor
of
Letters
of
Horning
,
and
Executions
thereof
,
is
not
probable
by
Witnesses
:
And
there
is
parity
,
if
not
more
Reason
as
to
Comprisings
;
whereby
the
greatest
Estates
may
be
taken
away
,
by
a
Decreet
for
proving
the
Tenor.
D.
284.
Hall
contra
Murray
.
30.
June
1675.
ARrestment
being
upon
a
Decreet
;
and
the
said
Decreet
being
thereafter
turned
in
a
Lybel
;
The
Lords
Found
,
That
the
Decreet
ceased
to
be
a
Sentence
;
and
the
Arrestment
thereupon
,
is
now
of
the
nature
of
an
Arrestment
upon
a
Dependence
,
and
may
be
loosed
.
Gibson
Clerk
.
D.
285.
Dunmure
contra
Lutfoot
.
eod.
die
.
THE
Lords
in
an
Improbation
Found
,
(
as
they
had
done
formerly
in
diverse
Cases
)
That
an
Extract
out
of
the
Books
of
an
Inferior
Court
does
not
satisfie
the
Production
:
the
question
being
of
a
Write
registrate
in
the
Books
of
the
Canongate
.
Newbyth
Reporter
.
D.
286.
Stewart
contra
Riddoch
.
eod.
die
.
JAmes
Stewart
of
Aberlednoch
,
having
obtained
a
Decreet
Cognitions
Causae
,
against
John
Riddoch
,
for
implement
of
a
Disposition
,
granted
by
David
Riddoch
his
Grand-father
:
and
thereupon
having
also
obtained
a
Decreet
of
Adjudication
,
the
same
was
stopt
upon
a
Bill
given
in
by
_____
Campbel
of
Tarririck
;
pretending
that
he
had
a
Right
to
a
Contract
of
Mariage
betwixt
Alexander
Riddoch
and
his
wife
,
as
assigney
constitute
by
the
said
Mr.
Alexander
,
in
whose
favours
the
Granter
of
the
Disposition
to
Stewart
was
obliged
by
the
said
Contract
to
dispone
to
him
the
same
Lands
;
And
the
Assignation
granted
by
the
said
Alexander
Riddoch
,
to
the
said
Campbel
being
questioned
as
false
.
The
Lords
thought
fit
to
hear
both
Parties
on
their
several
Adjudications
;
reserving
Improbation
of
the
said
Assignation
:
and
with
this
Declaration
,
that
if
the
said
Assignation
should
be
improven
,
the
Decreet
and
Adjudication
upon
the
same
should
fall
.
Because
there
was
a
Competition
in
Diligence
,
The
Lords
did
wave
the
Debates
in
the
Improbation
;
being
most
as
to
that
Point
,
who
should
abide
by
the
said
Assignation
as
true
;
seing
the
Assigney
Campbel
declared
,
that
his
Name
was
filled
up
in
the
same
without
his
Knowledge
:
and
was
not
concerned
to
abide
by
the
same
:
and
Mr.
John
Drummond
of
Megginsh
compearing
,
as
having
a
compleat
Warrand
,
and
Commission
from
the
said
Mr.
Alexander
Riddoch
,
who
was
in
Barbadoes
,
to
prosecute
the
said
Action
,
which
had
been
intented
in
Campbel's
Name
,
offered
to
abide
by
the
said
Assignation
only
as
a
Factor
.
Some
of
the
Lords
thought
,
that
a
Write
being
questioned
as
false
,
there
should
be
some
person
to
abide
by
the
same
upon
their
hazard
simply
;
and
not
with
such
qualities
;
seing
the
consequence
and
hazard
of
persons
,
that
abide
by
Writes
questioned
upon
falsehood
,
if
the
same
should
be
improven
,
is
the
great
bulwark
and
security
of
the
people
against
falsehood
,
which
doth
encrease
daily
.
But
this
point
was
not
decided
.
D.
287.
Clerk
contra
Steuart
.
eod.
die
.
A
Husband
,
by
his
Contract
of
Marriage
,
having
got
the
Right
of
the
Fie
of
a
Tenement
of
Land
settled
upon
him
;
his
Wife
having
resigned
the
same
for
Infeftment
to
him
and
her
,
and
the
Heirs
of
the
Marriage
;
whilks
failyiening
his
Heirs
.
He
and
his
Wife
did
thereafter
enter
in
a
Contract
with
another
Sister
of
his
Wifes
,
who
had
Right
to
the
equal
half
of
the
said
Tenement
,
as
Heir
portioner
with
her
Sister
;
by
which
Contract
there
was
a
mutual
Tailzie
with
consent
of
the
Husband
;
and
the
Right
of
Fie
,
that
by
the
former
Contract
was
settled
upon
her
Husband
,
as
said
is
,
was
disponed
to
the
Wife
;
in
sua
far
as
both
the
Sisters
,
with
consent
of
their
Husbands
,
were
obliged
to
resign
their
Respective
parts
,
in
favours
of
their
Husbands
and
themselves
in
Liferent
;
and
the
Heirs
of
the
Marriage
in
Fie
;
whilks
Failyieing
in
favours
of
the
Wifes
Heirs
:
Which
Contract
was
questioned
by
a
Reduction
at
the
instance
of
a
Creditor
of
the
Husbands
;
upon
that
reason
,
that
the
said
Right
of
Fie
granted
by
the
said
Contract
betwixt
the
Husband
and
the
Wife
,
and
her
Sister
,
was
in
defraud
of
the
Husbands
Creditors
,
and
null
by
the
Act
of
Parliament
1621.
In
sua
far
as
the
Husband
had
a
Fie
of
the
said
Tenement
,
by
the
Contract
of
Marriage
betwixt
him
and
his
Wife
;
which
might
have
been
affected
with
Execution
at
the
instance
of
his
Creditors
;
and
the
said
Fie
was
given
,
by
the
said
late
Contract
,
to
the
Wife
,
so
that
the
Husband
had
only
a
Liferent
.
In
this
Process
,
It
was
Alledged
.
1.
That
the
Act
of
Parliament
did
militate
only
in
the
case
of
Dyvors
,
and
Dispositions
granted
by
them
.
And
2.
That
the
said
Act
of
Parliament
doth
only
rescind
Alienations
that
are
made
without
true
just
and
necessary
Causes
;
and
that
the
said
Contract
betwixt
the
Husband
and
his
Wife
,
and
her
Sister
was
made
for
a
true
and
just
Cause
;
and
the
Fie
of
the
said
Tenement
,
which
the
Debitor
had
,
was
given
away
in
respect
of
the
Obligements
of
the
said
Contract
in
favours
of
the
Husband
the
Pursuers
Debitor
;
which
was
as
equal
as
to
advantages
for
the
Pursuers
Debitor
,
as
they
were
for
the
other
party
;
seing
both
the
Sisters
their
parts
of
the
Tenement
were
provided
in
the
same
manner
to
the
Respective
Wives
and
their
Husbands
,
and
the
Heirs
of
the
Marriage
;
whilks
failyiening
the
Wifes
Heirs
;
and
that
the
Pursuers
Debitor
was
a
person
opulent
for
the
time
,
according
to
his
quality
;
and
had
sufficiency
of
Estate
and
Moveables
otherwayes
,
that
might
have
satisfied
the
Pursuers
Debt
the
time
of
the
said
last
Contract
,
and
thereafter
:
So
that
the
said
Contract
being
valide
ab
initio
,
it
could
not
be
taken
away
upon
pretence
,
that
thereafter
the
Husband
became
insolvent
;
seing
it
cannot
be
said
,
that
the
Husband
did
intend
to
defraud
his
Creditor
,
or
that
there
were
any
fraud
upon
his
part
.
It
was
Replyed
,
That
tho
the
case
of
Bankrupts
and
their
fraudful
practices
mentioned
in
the
said
Act
,
being
so
frequent
,
did
give
occasion
and
Rise
to
the
same
;
yet
it
appears
evidently
by
the
said
Act
,
that
it
was
intended
,
that
Debitors
should
not
be
in
a
capacity
to
give
away
any
part
of
their
Estate
,
in
prejudice
of
their
Creditors
,
to
any
person
;
In
sua
far
as
the
dispositive
words
of
the
Act
are
in
these
terms
,
that
in
all
Causes
at
the
instance
of
a
true
Creditor
,
the
Lords
will
decern
all
Alienations
and
Rights
made
by
the
Debitor
,
to
any
conjunct
person
,
without
true
just
and
necessary
Causes
,
and
without
a
just
price
really
payed
;
the
same
being
done
after
Contracting
of
lawfull
Debts
from
true
Creditors
;
to
be
null
without
further
Declarator
:
And
the
said
Act
does
not
bear
,
that
all
Rights
made
by
Bankrupts
should
be
Null
,
it
being
hard
to
give
a
Character
and
definition
of
a
Bankrupt
;
So
that
diverse
questions
may
arise
anent
the
notion
of
Bankrupt
;
and
what
Debitors
should
be
esteemed
Bankrupt
;
and
therefore
for
cutting
off
the
same
,
the
Act
is
conceived
in
the
Terms
foresaid
;
and
annulls
Dispositions
made
by
Debitors
without
an
Onerous
Cause
:
And
the
Lords
,
by
the
Statute
ratified
by
the
said
Act
,
do
declare
,
that
they
intend
to
follow
and
practise
the
Laws
Civil
and
Canon
made
against
fraudful
Alienations
in
prejudice
of
Creditors
:
And
by
the
Civil
Law
,
all
Rights
and
Deeds
made
and
done
in
prejudice
of
Creditors
without
an
Onerous
Cause
,
are
null
,
and
may
be
rescinded
actione
Pauliana
:
And
the
Law
doth
presume
,
praesumptione
Juris
,
that
they
are
fraudulent
,
being
prejudicial
to
Creditors
ex
eventu
&
re
:
who
are
not
obliged
to
say
,
that
they
are
fraudful
consilio
;
which
is
in
animo
and
hardly
can
be
proven
.
As
that
point
,
viz.
That
the
said
Contract
was
upon
valuable
considerations
;
It
is
Replyed
,
That
the
taking
of
the
Fie
from
the
Husband
,
and
giving
the
same
to
the
Wife
;
it
's
a
Donation
as
to
the
Wife
in
prejudice
of
the
Creditor
;
So
that
there
is
no
Onerous
Cause
as
to
the
Husband
.
The
Lords
,
Upon
Debate
at
the
Barr
and
amongst
themselves
,
did
Find
,
that
Debitors
might
dispose
of
a
part
of
their
Estate
by
way
of
Gift
,
and
without
an
Onerous
Cause
;
if
they
retain
alse
much
and
more
than
would
satisfy
their
Creditors
:
And
therefore
they
Found
the
Defence
Relevant
,
that
the
Debitor
had
alse
much
Estate
besides
the
Fie
of
the
said
Tenement
,
as
would
satisfy
the
Pursuers
Debt
.
Actor
Falconer
alteri
Steuart
.
Monro
Clerk
.
Praesentia
.
Some
of
the
Lords
were
of
the
Opinion
,
That
the
case
,
being
of
so
great
consequence
as
to
the
preparative
;
it
was
fit
to
be
thought
upon
:
and
urged
these
Reasons
.
1.
That
the
Words
and
Letter
of
the
Law
appear
to
be
clear
,
against
Deeds
done
by
Debitors
without
an
Onerous
Cause
.
2.
Tho
our
Law
were
not
clear
,
yet
in
cases
of
that
nature
,
when
we
have
not
a
Municipal
Law
,
nor
custom
to
the
contrary
,
we
ought
to
follow
,
tho
not
the
Authority
,
yet
the
Equity
of
the
Civil
Law
,
which
is
received
every
where
,
where
there
is
no
custom
to
the
contrary
:
Specially
,
seing
it
is
declared
by
the
said
Statute
mentioned
in
the
Act
of
Parliament
1621
,
That
the
Lords
are
to
follow
the
Civil
and
Canon
Law
made
against
Deeds
and
Alienations
in
prejudice
of
Creditors
.
3.
It
is
hard
,
to
put
Creditors
to
dispute
the
condition
of
their
Debtors
,
the
time
of
making
Donations
;
and
whether
they
had
effects
and
sufficiency
of
Estate
to
satisfy
their
Debt
,
notwithstanding
the
said
Deeds
;
which
may
be
unknown
to
the
Creditors
:
It
being
sufficient
to
say
,
that
the
Deed
was
without
an
Onerous
Cause
;
and
that
the
Debitor
became
insovent
.
4.
If
a
Debitor
should
become
insolvent
ex
post
facto
,
tho
the
time
of
the
Donation
,
the
residue
of
his
Estate
might
have
satisfied
the
Debt
,
It
is
more
just
and
reasonable
that
a
Donator
,
who
has
a
Lucrative
Title
,
should
rather
suffer
ex
eventu
than
a
Creditor
.
_____
did
argue
to
the
contrair
.
D.
288.
Bonars
Relict
contra
His
Representatives
.
2.
July
.
1675.
A
Bill
of
Advocation
being
Reported
of
a
pursuite
at
the
instance
of
John
Bonars
Relict
,
against
his
Representatives
,
before
the
Town
of
Edinburgh
,
for
payment
of
10000
Merks
,
conform
to
a
Bond
granted
by
him
:
The
Lords
did
Advocate
,
not
so
much
in
respect
of
the
importance
of
the
Cause
,
the
Town
being
competent
Judges
;
but
because
there
was
an
Improbation
depending
before
the
Lords
,
upon
the
same
pursuite
of
the
said
Bond
:
And
contingentia
causa
non
debet
dividi
;
and
doth
Found
the
Lords
Jurisdiction
to
Advocat
to
themselves
all
Questions
concerning
the
said
Debt
.
D.
289.
Earl
of
Dundonald
contra
Glenagies
,
and
the
Earl
of
Marr.
eod.
die
.
A
Tack
of
the
Teinds
of
Kilmaranoch
being
set
by
the
Abbot
of
Cambuskenneth
,
to
Sir
James
Erskine
for
his
Lifetime
;
and
for
the
Life-time
of
his
Heir
Male
;
and
after
the
decease
of
the
Heir
Male
,
for
the
Lifetime
of
his
Heir
Male
;
and
two
19
Years
thereafter
:
The
Earl
of
Dundonald
,
having
Right
by
progress
to
the
said
Tack
,
pursued
a
Spuilyies
of
the
Teinds
.
It
was
Alledged
,
That
the
Tack
is
expired
:
And
if
the
Earl
of
Dundonald
will
condescend
and
prove
that
the
said
Sir
James
had
an
Heir
Male
surviving
;
the
Defenders
will
offer
to
prove
that
two
19
years
had
expired
since
the
decease
of
the
last
Heir
Male.
The
Lords
Found
,
That
the
Pursuer
should
condescend
upon
an
Heir
Male
,
and
prove
that
he
survived
the
said
Sir
James
:
And
if
he
should
condescend
and
prove
,
that
the
Defender
ought
to
prove
(
as
said
is
)
that
the
Tack
was
expired
:
And
did
Assign
to
the
Pursuer
and
Defender
to
prove
Respective
.
D.
290.
Mr.
Henry
Morison
.
3.
July
.
1675.
UPon
a
Bill
against
Mr.
Henry
Morison
;
It
was
desired
,
that
in
respect
he
was
an
Advocate
and
Member
of
the
House
,
he
should
summarly
deliver
certain
Goods
entrusted
to
him
by
the
Complainer
:
And
It
was
Alledged
for
him
,
That
the
Complainer
ought
to
intent
an
Action
in
communi
forma
;
And
the
Interest
,
that
he
had
in
the
House
as
an
Advocate
should
give
him
Right
to
any
priviledge
that
belonged
to
an
Advocate
,
but
ought
not
to
put
him
in
a
worse
case
than
other
Subjects
,
who
could
not
be
forced
to
defend
upon
such
Bills
:
And
the
practice
,
that
the
Advocates
should
Answer
summarly
to
Complaints
against
them
,
is
only
in
relation
to
their
Trust
and
Office
,
if
they
refuse
to
exhibite
or
deliver
Writes
entrusted
to
them
:
And
the
Trust
mentioned
in
the
Bill
was
only
to
him
as
quilibet
,
not
as
an
Advocate
.
D.
291.
_____
contra
_____
eod
die
.
A
Discharge
,
alledged
granted
by
a
Minister
to
one
of
the
Heretors
of
the
Paroch
of
a
part
of
his
Stipend
,
was
quarrelled
as
false
;
and
did
appear
to
be
vitiate
;
in
a
process
at
the
instance
of
the
Minister
for
his
Stipend
:
And
the
user
of
the
same
being
urged
to
abide
by
it
,
did
offer
to
abide
by
it
with
a
quality
,
viz.
That
the
payment
not
being
made
by
the
Heretor
himself
,
(
but
by
his
Tennent
who
took
the
said
Discharge
in
the
Heretors
Name
)
he
did
abide
by
the
same
a
Write
truely
delivered
by
the
Tennent
.
The
Lords
did
not
sustain
the
said
quality
;
Unless
the
Heretor
would
produce
the
Tennent
,
and
abide
by
the
same
as
being
truely
subscribed
and
not
vitiate
;
which
the
Tennent
did
.
D.
292.
Key
contra
Her
Creditors
.
eod.
die
.
THE
Pursuer
of
a
Bonorum
,
having
given
her
Oath
,
that
there
was
no
fraudulent
Deed
done
since
the
Disposition
,
whereby
the
Pursuer
cesserat
and
Disponed
omnia
bona
.
It
was
urged
,
That
the
Pursuer
should
declare
also
,
that
no
fraudulent
Deed
had
been
done
by
her
to
defraud
the
Creditors
,
whether
before
or
after
the
Disposition
;
which
was
refused
by
the
Lords
;
in
respect
that
the
ordinary
Oath
given
by
such
Pursuers
did
run
in
the
Terms
foresaid
,
that
they
had
made
no
fraudulent
Right
since
the
subscribing
of
the
Disposition
:
Some
of
the
Lords
were
of
Opinion
,
that
the
Pursuer
should
have
declared
,
that
she
had
done
no
fraudulent
Deed
at
any
time
;
seing
cessio
bonorum
is
an
extraordinary
remedy
,
indulged
to
persons
who
are
become
lapsi
upon
some
extraordinary
occasion
,
wlthout
their
own
fault
or
fraud
,
and
upon
that
account
deserved
favour
;
which
was
not
to
be
given
to
fraudatores
who
at
any
time
had
taken
indirect
wayes
to
prejudge
their
Creditors
:
And
if
the
Pursuer
,
the
very
day
before
she
subscribed
the
Cession
and
Disposition
,
had
made
an
anterior
Right
to
prejudge
her
Creditors
,
it
were
most
inconvenient
and
absurd
,
that
her
Oath
should
only
be
received
in
these
Terms
,
that
she
had
made
no
Disposition
or
fraudulent
Deed
since
the
granting
of
the
Disposition
in
favours
of
the
Creditors
:
And
as
to
the
pretence
of
custom
and
the
conception
of
the
Oath
;
it
ought
not
to
be
respected
;
seing
it
cannot
be
said
,
that
the
Oath
of
Bankrupts
,
in
the
Terms
that
it
is
now
urged
,
was
desired
and
refused
;
and
if
there
had
been
any
defect
in
the
conception
of
the
Oath
it
ought
to
be
helped
.
D.
293.
Bairdner
contra
Coalyer
.
eod.
die
.
IN
a
Process
for
abstracted
Multures
:
The
time
of
the
advising
of
the
Cause
,
these
points
were
debated
amongst
the
Lords
,
viz.
Whether
or
not
,
the
Right
of
a
Miln
,
being
Feued
by
the
Abbot
,
in
these
Terms
cum
astrictis
multuris
,
did
import
astriction
of
all
the
Grains
growing
;
so
that
these
that
were
astricted
should
be
Lyable
to
bring
all
the
Corns
that
grew
upon
the
Lands
to
the
Miln
;
and
in
case
any
such
be
sold
the
Heretors
and
their
Tennents
should
be
Lyable
for
astricted
Multures
:
And
2.
There
being
Decreets
recovered
at
the
instance
of
the
Feuar
of
the
Miln
,
against
the
Feuars
of
the
Lands
,
for
abstracted
Multures
of
grana
crescentia
,
if
the
same
should
import
Astriction
as
to
all
such
Granes
,
tho
neither
the
Right
of
the
Feuar
of
the
Miln
,
nor
of
the
Heretors
of
the
Lands
be
express
of
grana
crescentia
;
but
only
of
the
Terms
foresaid
cum
astrictis
multuris
.
Some
were
of
the
Opinion
,
as
to
the
first
point
,
That
a
Feu
of
a
Miln
in
the
Terms
foresaid
cum
astrictis
multuris
,
should
import
nothing
else
but
that
they
that
were
within
the
sucken
and
astriction
should
be
lyable
,
only
to
grind
at
the
Miln
all
such
Corns
that
they
should
have
need
and
occasion
to
grind
;
Seing
Thirlages
are
a
most
odious
servitude
and
ought
to
be
taken
strictly
:
And
Multures
being
Moliturae
and
due
for
grinding
,
they
ought
to
be
understood
only
in
the
case
of
Corns
which
the
Feuers
do
bring
to
the
Miln
to
grind
;
or
which
they
have
need
and
use
to
grind
;
and
yet
abstract
and
go
to
other
Milns
:
Otherwayes
there
should
be
no
difference
betwixt
the
Astriction
of
grana
crescentia
,
and
an
ordinary
astriction
.
2.
The
case
in
question
was
of
a
Miln
Feued
by
the
Abbot
of
Culross
,
and
of
Lands
likewayes
Feued
by
himself
after
the
Feu
of
the
Miln
,
and
the
time
of
the
Feu
of
the
Miln
Lands
being
the
Abbots
own
,
either
in
mainsing
,
or
set
to
Tennents
;
It
cannot
be
thought
,
that
the
Astriction
was
in
other
terms
than
such
as
Tennents
are
in
use
to
be
astricted
to
their
Masters
Miln
;
and
beside
the
Teind
and
Seed
,
and
the
Duty
payable
to
the
Master
;
which
being
payable
to
the
Abbot
the
time
of
the
Feu
of
the
Miln
was
free
of
astriction
;
the
Tennent
having
the
residue
of
the
Rent
for
entertaining
of
his
Family
,
and
for
defraying
the
Charges
of
the
Labouring
,
and
Servants
Fies
;
and
other
necessar
Expences
which
could
not
be
defrayed
otherwayes
,
but
by
selling
some
of
the
Corns
growing
:
It
cannot
be
conceived
that
the
Abbot
or
any
other
Master
would
astrict
his
Tennents
in
these
Terms
,
that
they
should
be
lyable
for
dry
Multures
,
except
it
were
exprest
,
and
that
the
Astriction
had
been
granorum
crescentium
.
Yet
the
Lords
did
demurr
as
to
this
point
,
In
respect
it
was
vehemently
urged
by
_____
that
the
Astrictions
in
the
Terms
foresaid
ought
to
be
understood
of
grana
crescentia
;
otherwayes
it
should
be
in
the
power
of
these
who
are
astricted
,
to
sell
all
their
Corns
,
and
to
buy
Meal
for
their
Family
,
and
so
to
elude
the
Thirlage
:
Albeit
It
was
Answered
,
That
it
was
not
to
be
presumed
that
Feuers
or
Tennents
would
do
so
;
and
if
they
did
,
they
ought
to
be
lyable
for
abstracted
Multures
effeirand
to
such
quantities
as
were
necessary
,
and
they
were
in
use
to
grind
for
their
Families
.
Another
point
was
Agitated
and
debate
amongst
the
Lords
,
viz.
That
the
said
Decreets
could
not
be
obtruded
to
the
Defender
;
seing
neither
he
nor
his
Author
was
called
to
the
same
,
and
res
was
inter
alios
acta
:
But
the
Lords
did
not
decide
these
points
,
but
recommended
to
some
of
their
number
to
endeavour
to
settle
the
Parties
.
D.
294.
Oliphant
contra
_____
7.
July
1675.
_____
Oliphant
desired
an
Advocation
from
the
Town
_____
Court
,
upon
these
Reasons
,
viz.
1.
That
the
Lybel
was
to
be
proven
by
the
Defenders
Oath
which
he
was
to
qualifie
.
And
2.
That
the
Defender
was
to
prove
a
Defence
by
the
Pursuers
Sons
Oath
,
who
was
out
of
the
Country
;
and
the
Town
could
not
give
a
Commission
for
taking
his
Oath
:
Both
which
Reasons
were
thought
not
to
be
Relevant
and
the
Advocation
refused
;
In
respect
all
Judges
ought
to
receive
Oaths
with
intrinsick
qualities
,
and
Commissions
may
be
direct
by
any
competent
Judge
.
D.
295.
Lord
Halcartoun
contra
Robison
.
July
1675.
THE
deceast
Lord
Halcartoun
being
oblidged
,
by
Contract
betwixt
him
and
his
deceast
Father
,
to
Infeft
Mistress
Margaret
Falconer
his
Sister
,
in
an
Annualrent
of
the
principal
Sum
of
1000
Merks
out
of
the
Lands
of
Halcartoun
redeemable
upon
1000
Merks
:
And
to
pay
the
principal
Sum
upon
Requisition
.
Sir
Patrick
Falconer
immediat
Younger
Brother
and
Heir
of
Line
to
the
said
Mrs.
Margaret
,
Assigned
the
said
Sum
and
Contract
in
favours
of
Robert
Robertson
;
And
the
said
Robert
having
intended
Action
against
the
now
Lord
Halcartoun
as
representing
his
Father
,
It
was
Alledged
,
That
the
said
Sum
being
conquest
in
the
person
of
the
said
Mistress
Margaret
,
it
did
not
belong
to
the
Heir
of
Line
,
but
to
the
immediat
Elder
Brother
as
Heir
of
Conquest
.
The
Lords
,
having
heard
the
Cause
in
praesentia
;
and
being
resolved
to
decide
the
question
,
betwixt
the
Heir
of
Line
and
Heir
of
Conquest
,
as
to
Heretable
Bonds
,
bearing
such
Obligements
to
Infeft
;
which
had
been
often
before
in
agitation
,
but
never
decided
but
the
time
of
the
English
;
Did
Find
,
that
the
said
Bond
and
Sum
did
belong
to
the
Heir
of
Conquest
,
who
would
have
succeeded
,
in
case
the
Right
had
been
perfected
by
an
Infeftment
.
Some
of
the
Lords
were
of
the
Opinion
,
That
Bonds
of
that
Nature
should
belong
to
the
Heirs
of
Line
,
for
these
Reasons
.
1.
That
the
Heir
of
Line
is
General
Heir
and
Successor
in
universum
Jus
,
tam
active
quam
passive
,
and
is
lyable
to
the
Onus
Tutelae
,
and
other
Burdens
;
and
penes
quem
onus
,
penes
eundem
emolumentum
;
unless
the
benefit
of
Succession
be
provided
otherways
,
either
Provisione
hominis
,
in
the
Case
of
Tailʒies
;
or
Legis
,
and
there
is
no
Law
settling
upon
the
Heir
of
Conquest
,
the
Right
of
Succession
as
to
Heretable
Bonds
,
whereupon
no
Infeftment
has
followed
:
And
the
Law
of
the
Majesty
,
_____
is
only
in
the
Case
of
Terrae
&
Tenementa
&
Feuda
,
as
appears
by
the
very
Words
of
the
said
Ancient
Laws
;
and
by
Craig
and
Skeen
de
Verborum
significatione
,
in
verbo
Conquestus
,
and
verbo
Breve
de
morte
antecessoris
.
2.
As
Bonds
cannot
be
called
Heretage
,
so
they
cannot
be
esteemed
to
be
Conquest
;
Heretage
being
properly
Lands
,
wherein
a
Person
succeeds
as
Heir
to
his
Predecessor
:
and
if
the
Heir
of
Conquest
,
who
is
now
found
to
have
Right
to
such
Bonds
,
should
decease
,
tho
the
samen
would
descend
and
belong
to
the
Heir
of
Line
,
yet
such
Bonds
cannot
be
called
Heretage
:
And
Minors
qui
non
tenentur
placitare
de
haereditate
paterna
,
could
not
plead
the
same
Priviledge
in
the
case
of
Heretable
Bonds
.
3.
Lands
and
Feuda
can
only
be
said
to
be
Heretage
,
or
to
be
Conquest
,
when
Parties
have
a
real
Right
to
the
same
by
Infeftment
;
but
as
to
Bonds
,
they
do
not
settle
Jus
in
re
,
but
at
the
most
,
a
Jus
ad
rem
.
4.
Comprisings
,
Dispositions
,
and
Reversions
,
being
more
of
the
nature
of
Conquest
,
especially
Reversions
,
which
are
real
Rights
,
and
do
militate
,
not
only
against
the
Granters
,
but
singular
Successors
,
do
descend
and
pertain
to
the
Heir
of
Line
,
and
not
to
the
Heir
of
Conquest
.
D.
296.
Veatch
contra
Pallat.
10.
November
1675.
THE
Lords
,
in
the
Case
beforementioned
(
February
9
and
12.
1675
)
Veatch
against
Pallat
,
having
resumed
the
Debate
;
and
it
appearing
upon
Tryal
,
that
the
Common
Debitor
Sanderson
,
the
time
of
the
granting
of
the
Assignation
in
anno
1662
in
favours
of
Ker
and
Brown
,
was
not
only
Rebell
but
was
in
effect
Fallitus
and
Lapsus
:
They
preferred
Veatch
to
Pallat.
D.
297.
Gibson
contra
Rynold
and
Taylor
.
16.
November
1675.
A
Disposition
being
made
by
a
Woman
cloathed
with
a
Husband
,
of
her
Liferent
of
a
Tenement
,
redeemable
upon
the
payment
of
a
certain
Sum
within
a
short
Term
therein
mentioned
allanerlie
:
A
Decreet
of
Declarator
of
the
expireing
of
the
Reversion
was
obtained
;
and
thereafter
a
Decreet
of
Removing
at
the
instance
of
the
Person
Infeft
upon
the
said
Disposition
,
against
the
said
Woman
and
her
Husband
:
Whereof
a
Reduction
and
Suspension
being
raised
,
upon
that
reason
that
the
suspender
was
cloathed
with
a
Husband
the
time
of
the
expiring
of
the
said
Reversion
,
and
of
the
said
Decreets
;
so
that
non
valebat
agere
nor
use
the
Order
of
Redemption
:
and
the
Husbands
Negligence
in
suffering
the
Reversion
to
elapse
,
and
the
said
Decreets
to
be
obtained
,
ought
not
to
prejudge
her
;
seing
she
was
content
yet
to
purge
by
payment
of
the
Sum
contained
in
the
Reversion
.
The
Lords
,
upon
Debate
amongst
themselves
,
had
these
Points
in
consideration
,
viz.
1mo
.
Whether
or
not
a
Redemption
,
being
limited
and
temporary
(
as
said
is
)
in
the
Case
foresaid
;
there
may
be
yet
place
,
after
the
elapsing
of
the
Term
,
to
purge
:
And
some
of
the
Lords
were
of
the
Opinion
,
that
Reversions
being
stricti
Juris
,
there
can
be
no
Redemption
,
neither
in
the
case
of
Legal
nor
Conventional
Reversions
,
after
elapsing
of
the
Term
;
nor
place
to
purge
:
But
this
Point
was
not
decided
.
2.
It
was
agitat
,
whether
a
Woman
cled
with
a
Husband
,
may
be
heard
to
purge
,
upon
pretence
that
non
valebat
agere
:
as
to
which
Point
,
some
of
the
Lords
did
demurr
,
and
it
was
not
decided
:
The
Letters
being
found
orderly
proceeded
upon
an
other
Ground
,
viz.
In
respect
of
the
Decreet
in
foro
contradictorio
:
But
it
is
thought
,
that
such
Reversions
should
expire
even
against
Women
cloathed
with
Husbands
,
seing
it
cannot
be
said
that
they
are
in
the
case
of
Minors
and
non
valentes
agere
,
because
they
are
cloathed
with
a
Husband
;
And
by
the
contrary
,
having
the
assistance
and
advice
of
their
Husbands
,
they
are
more
able
to
go
about
their
Affairs
:
And
if
their
Husbands
refuse
to
concur
,
they
may
apply
to
the
Lords
,
and
desire
to
be
authorized
by
them
.
Strathurd
Reporter
.
Monro
Clerk
.
D.
298.
Halyburton
of
Innerleith
.
17.
November
.
1675.
THE
Lords
,
upon
a
Bill
presented
by
_____
Halyburton
late
of
Innerleith
Prisoner
in
Edinburgh
for
Debt
,
did
permit
,
that
until
January
next
,
he
should
in
the
Day-time
go
out
with
a
Keeper
;
the
magistrates
being
lyable
if
he
should
escape
:
This
was
done
upon
pretence
,
that
he
intended
to
settle
with
his
Creditors
,
which
he
could
not
do
unless
he
were
allowed
the
Liberty
foresaid
:
But
some
of
the
Lords
were
of
the
Opinion
,
that
the
Emprisonment
of
a
Debitor
,
being
the
ultimate
length
of
Execution
;
and
not
only
custodiae
causa
,
but
in
effect
that
taedio
and
foetore
carceris
,
Debitors
may
be
driven
to
take
a
course
with
their
Creditors
;
That
therefore
the
Lords
had
not
power
to
give
any
Indulgence
or
Permission
,
contrare
to
Law
,
and
in
prejudice
of
Creditors
,
without
their
consent
.
D.
299.
Mr.
Vanse
.
18.
November
1675.
CAptain
Martine
being
pursued
before
the
Admiral
,
for
wrongs
done
by
him
in
taking
free
Ships
and
Goods
,
upon
pretence
that
he
was
a
Caper
;
and
that
the
same
belonged
to
the
Kings
Enemies
:
and
having
desired
an
Advocation
,
the
Lords
thought
fit
that
he
should
find
Caution
:
and
because
he
refused
,
and
pretended
he
was
not
able
,
did
commit
him
:
and
thereafter
he
having
escaped
out
of
the
Tolbooth
of
Edinburgh
in
a
disguise
,
and
in
Womens
Cloaths
;
Mr.
Vanse
,
Keeper
of
the
Tolbooth
,
did
give
in
a
Bill
,
representing
,
That
there
being
so
great
a
number
of
Prisoners
,
upon
account
of
Conventicles
,
and
for
Criminal
Causes
,
and
the
said
Captain
being
incarcerate
,
not
for
a
Crime
,
but
for
not
finding
Caution
,
he
was
in
bona
fide
not
to
look
upon
him
as
a
Person
that
would
escape
:
and
there
being
so
many
Persons
who
had
access
to
other
Prisoners
to
furnish
them
Meat
,
and
upon
other
Occasions
,
the
said
Captain
his
Escape
,
in
manner
foresaid
,
was
such
,
as
the
most
faithful
and
diligent
Keepers
might
have
been
surprized
and
imposed
upon
:
and
therefore
did
desire
that
his
Carriage
might
be
tryed
by
the
Lords
;
and
if
they
should
find
him
innocent
,
that
he
may
be
cleared
.
It
was
thought
by
some
of
us
,
That
the
Desire
foresaid
,
resolving
either
in
an
Absolvitor
,
or
a
Declarator
of
his
Innocency
;
The
Lords
could
not
give
a
Sentence
as
to
either
in
Form
;
unless
either
there
were
a
Pursute
against
Mr.
Vanse
,
at
the
Instance
of
the
Persons
concerned
;
or
a
Declarator
at
his
instance
,
against
them
being
called
:
and
any
Sentence
that
the
Lords
should
give
,
the
Parties
concerned
not
being
called
,
will
be
no
security
to
the
Petitioner
:
And
whereas
it
was
pretended
,
that
this
being
an
Incident
,
and
a
Dependance
before
the
Lords
,
they
may
proceed
upon
it
,
as
accessory
to
the
said
Dependence
.
It
was
Thought
,
That
the
suffering
the
Prisoner
to
escape
,
tho
it
had
a
dependence
upon
the
Process
,
yet
could
not
be
called
an
Incident
,
but
a
delictum
,
whereupon
did
arise
a
ground
of
Action
against
the
Petitioner
,
both
at
the
instance
of
the
Town
of
Edinburgh
,
who
were
directly
lyable
to
Creditors
for
the
escape
of
Prisoners
;
and
at
the
instance
of
the
Parties
concerned
:
and
therefore
their
Interest
and
Action
could
not
be
prejudged
in
so
summar
a
way
upon
a
Petition
;
they
not
being
called
:
Whereas
such
Actions
,
being
both
of
importance
as
to
the
matter
,
and
of
difficulty
and
intricacy
,
do
require
not
only
citation
of
Parties
,
but
all
the
ordinary
Solemnities
of
Process
,
both
for
introduceing
and
discussing
the
same
.
Vide
infra
Novemb.
23.
D.
300.
Warden
contra
Berry
.
20.
November
1675.
THE
Lords
Found
,
That
an
Arrestment
upon
a
Decreet
,
after
it
was
suspended
,
may
be
loosed
upon
Caution
.
Done
upon
a
Bill
.
Hamilton
Clerk
.
D.
301.
Vanse
contra
Sandilands
.
23.
November
1675.
IN
the
Case
abovementioned
,
concerning
the
Escape
of
Captain
Martine
,
and
the
Bill
given
in
by
Patrick
Vanss
;
which
was
given
up
to
_____
Sandilands
Commissioner
for
the
parties
concerned
,
and
to
his
Procurators
to
see
and
answer
this
day
:
It
was
Represented
for
Patrick
Vanss
,
That
Keepers
of
Prisons
are
in
effect
Depositarij
;
and
that
Prisoners
are
entrusted
and
depositate
to
be
keeped
by
them
;
And
in
Law
Depositarius
tenetur
only
de
dolo
&
lata
culpa
;
and
the
Petitioner
could
be
charged
with
neither
:
And
the
Prisoners
Escape
,
in
a
disguise
,
is
such
,
as
might
have
surprised
and
imposed
upon
the
most
circumspect
and
diligent
Keeper
:
And
diverse
Instances
,
from
Lawyers
and
Story
,
were
adduced
of
Escapes
of
that
nature
,
of
prisoners
in
disguise
;
and
of
the
Impunity
of
Jaylors
being
free
of
Fraud
,
and
any
accession
to
the
same
:
Whereunto
It
was
Answered
,
That
the
Keepers
of
Prisons
are
not
Depositarij
,
but
publick
Servants
and
Officers
;
and
in
all
cases
of
any
Trust
or
Charge
,
when
the
same
is
not
gratuitous
and
dantis
causa
,
but
likeways
causa
accipientis
,
and
ubi
intervenit
merces
,
these
who
are
trusted
tenentur
praestare
culpam
levissimam
:
And
seing
it
cannot
be
said
,
that
the
Prisoner
escaped
vi
majore
,
which
could
not
be
resisted
;
nor
casu
fortuito
,
which
could
not
be
foreseen
or
prevented
,
the
Keeper
,
and
his
Servants
,
for
whom
he
should
answer
,
cannot
be
said
to
be
free
of
culpa
:
And
albeit
quaevis
causa
excusat
a
poena
,
where
there
is
no
dolus
,
and
the
Instances
adduced
do
militat
only
to
that
purpose
;
it
cannot
be
instanced
either
at
home
or
abroad
,
that
Magistrats
and
custodes
Carcerum
under
them
,
were
found
not
to
be
lyable
in
subsidium
,
for
damnage
and
interest
for
the
escape
of
Prisoners
:
and
yet
the
Lords
enclined
to
free
the
Petitioner
:
and
that
it
may
appear
to
be
done
the
more
warrantably
,
they
ordained
him
and
his
Servants
to
be
examined
concerning
their
Knowledge
of
the
said
Escape
.
Some
of
the
Lords
were
of
the
Opinion
,
That
it
was
to
no
purpose
to
examine
the
Parties
themselves
;
and
tho
they
had
Charity
for
the
Petitioner
,
that
he
was
not
conscious
or
accessory
to
the
said
escape
,
yet
that
he
and
his
Servants
,
for
whom
he
should
answer
,
could
not
be
thought
to
be
free
of
culpa
and
negligence
;
and
that
is
was
hard
,
for
securing
him
from
prejudice
,
to
unsecure
the
People
:
and
if
such
a
preparative
should
be
sustained
,
it
would
be
of
dangerous
Consequence
,
and
not
only
a
prejudice
,
but
a
discouragment
to
the
People
,
if
after
the
extremity
of
Diligence
and
Trouble
,
Prisoners
for
Debt
,
or
upon
other
accounts
,
should
escape
impune
,
upon
such
pretences
:
And
it
was
remembred
,
that
upon
the
Occasion
of
the
Indulgence
,
and
Favour
to
Keepers
of
Prisons
in
Edinburgh
,
there
had
been
of
late
diverse
Attempts
and
Escapes
;
and
in
this
instant
Year
,
one
being
taken
for
a
High-way
Robber
,
and
imprisoned
in
Edinburgh
,
had
escaped
without
any
Censure
or
Punishment
of
the
Servants
of
the
House
.
Vide
supra
November
18.
D.
302.
Mr.
James
Eleis
contra
John
Hall
and
others
.
24.
November
1675.
IN
a
Suspension
of
multiple
poinding
,
at
the
instance
of
Mr.
James
Eleis
of
Stainhopmilns
against
John
Hall
and
the
other
Creditors
of
Mistress
Masterton
and
against
the
Creditors
of
James
Masterton
;
It
was
Found
,
that
Mistress
Masterton
the
Relict
,
not
being
confirmed
Executrix
Creditrix
to
her
Husband
;
her
Husbands
Creditors
are
preferable
as
to
any
Goods
and
Debts
extant
and
undisposed
of
,
which
belonged
to
her
Husband
;
In
respect
albeit
the
Right
of
the
same
was
established
in
the
person
of
the
Executrix
,
yet
they
did
pertain
to
her
as
Executrix
,
and
as
having
a
Trust
and
Office
;
And
to
the
effect
the
Testament
may
be
Execute
;
and
what
is
confirmed
should
be
made
forthcoming
to
all
Parties
having
Interest
;
and
consequently
to
the
Defuncts
Creditors
,
and
not
her
own
:
And
the
Executrix
has
not
an
absolute
property
in
the
Goods
confirmed
,
but
only
qualified
and
for
Administration
,
and
to
the
effect
foresaid
.
2.
It
was
Found
,
That
a
Servant
,
for
his
Fies
,
is
not
priviledged
and
preferable
to
other
Creditors
.
3.
James
Masterton
having
granted
a
Bond
for
payment
of
a
considerable
Sum
,
after
his
own
and
his
Wifes
decease
,
in
case
he
should
not
have
Children
of
his
own
Body
;
It
was
Alledged
,
That
the
said
Bond
,
being
without
an
Onerous
Cause
,
and
not
being
effectual
until
after
his
decease
,
as
said
is
,
and
failyiening
of
Heirs
of
his
Body
;
was
of
the
nature
of
donatio
mortis
causa
,
and
could
not
affect
the
Relicts
part
:
Whereunto
It
was
Answered
,
that
the
said
Bond
being
granted
when
he
was
in
liege
poustie
,
and
had
power
as
Dominus
to
dispose
of
his
Goods
,
or
to
grant
Bonds
which
might
affect
the
same
;
The
Relict
could
have
no
Legitime
,
but
of
the
free
Gear
;
the
said
Bond
and
other
Debts
being
satisfied
.
Some
of
the
Lords
were
of
the
Opinion
,
that
the
Bond
should
affect
the
haill
Goods
:
But
others
thought
that
it
ought
to
affect
only
the
Defuncts
part
;
seing
there
is
a
Commumon
betwixt
Husband
and
Wife
;
and
albeit
the
Husband
is
said
to
be
Dominus
,
and
has
full
Administration
of
the
same
,
so
that
he
may
dispose
thereof
,
and
grant
Bonds
for
Onerous
Causes
;
yet
he
cannot
,
in
prejudice
of
the
Communion
and
the
Wifes
Interest
foresaid
,
dissipate
and
give
away
the
same
by
fraudulent
Donations
,
of
purpose
to
prejudge
either
the
Relict
or
the
Children
of
their
Legitime
:
But
this
point
was
thought
fit
to
be
heard
and
debated
in
praesentia
.
D.
303.
Forbes
of
Colloden
contra
Ross
and
others
.
26.
November
1675.
A
Decreet
,
at
the
instance
of
Forbes
of
Colloden
against
Robert
Ross
and
others
,
before
the
Commissar
of
Ross
;
being
questioned
upon
that
Ground
,
that
the
said
Commissar
had
committed
Iniquity
in
Repelling
Relevant
Declinatures
;
whereof
one
was
upon
the
account
of
his
Relation
to
the
Pursuer
,
being
the
Commissars
Uncle
:
And
an
other
was
upon
account
of
the
nature
of
the
Action
,
Alledged
not
to
be
consistorial
;
and
the
subject
of
the
Process
,
tho
it
had
being
proper
otherwayes
,
yet
being
far
above
the
Sum
of
200
Merks
,
was
such
,
as
by
the
Regulation
,
the
Commissar
could
not
be
Judge
in
:
And
likewayes
in
res●ect
,
that
the
Commissar
did
assume
to
himself
a
Power
to
modify
a
great
Sum
,
extending
to
above
6000.
lib.
for
the
Charges
the
Pursuer
had
been
at
in
pro●ecuting
a
Plea
by
warrand
of
the
Defenders
,
and
wherein
he
and
they
were
concerned
:
And
the
said
Modification
was
upon
no
other
Probation
but
the
Pursuers
Oath
;
and
that
the
modifying
of
so
large
a
Sum
did
belong
ex
nobili
officio
to
the
Lords
of
Session
privative
.
Some
of
the
Lords
were
of
the
Opinion
,
That
the
Commissar
,
notwithstanding
of
the
Relation
foresaid
,
could
not
be
declined
;
seing
there
is
no
statute
that
Judges
may
be
declined
upon
that
account
:
And
by
the
Act
of
Parliament
212.
K.
Ja.
6.
His
14.
Parl.
Anent
the
Declining
of
the
Lords
of
Session
;
There
is
no
other
Relation
that
can
be
a
Ground
of
Declinator
,
but
where
the
Judge
is
related
to
either
of
the
Parties
,
as
Father
,
Brother
,
or
Son
:
And
yet
others
were
of
the
Opinion
,
that
a
Nevoy
,
being
of
so
near
Relation
,
may
and
ought
to
be
declined
;
In
respect
by
the
Common
Law
,
persons
of
that
Relation
are
most
suspect
;
and
cannot
be
Judges
:
And
by
the
said
Law
,
a
Judge
may
be
declined
upon
any
Ground
that
may
decline
a
Witness
;
and
there
is
more
reason
to
decline
Judges
than
Witnesses
,
seing
there
may
be
penury
of
Witnesses
,
and
they
may
be
so
necessary
,
tho
related
to
the
Parties
,
that
others
cannot
be
Found
:
And
the
said
Act
of
Parliament
,
as
all
Acts
of
Parliament
,
especially
such
as
are
correctory
Juris
communis
,
ought
to
be
taken
strictly
;
and
cannot
militate
,
but
in
the
case
therinintended
and
exprest
:
And
the
said
Act
is
upon
special
considerations
,
in
Relation
to
the
Lords
of
Session
,
and
particularly
,
of
the
Eminent
Integrity
that
is
presumed
,
and
ought
to
be
in
the
Supreme
Judicatory
.
The
Lords
,
without
entering
upon
the
Debate
of
the
said
other
points
,
turned
the
Dcereet
in
a
Lybel
.
Forret
Reporter
.
Clerk
.
D.
304.
Anderson
of
Dowhill
contra
Lowes
.
27.
November
.
1675.
William
Gibson
did
Dispone
to
William
Norvel
his
Son
in
Law
and
Elizabeth
Gibson
the
Disponers
Daughter
,
certain
Aikers
near
Glasgow
;
which
thereafter
the
said
William
Norvel
did
Dispone
to
Thomas
Norvel
his
Brother
:
And
by
a
Right
from
the
said
Thomas
thereafter
did
pertain
to
Anderson
of
Dowhill
.
But
John
Lowes
,
having
thereafter
Marryed
the
said
William
Norvels
Relict
Elisabeth
Gibson
;
and
having
,
upon
an
Assignation
to
a
Debt
of
the
said
William
Gibson
,
adjudged
the
said
Williams
Right
from
his
Appearand
Heir
:
And
having
pursued
an
Improbation
and
Reduction
of
Dowhills
Right
;
and
in
special
of
the
foresaid
Disposition
made
by
the
said
William
Gibson
to
the
said
William
Norvel
;
Dowhill
was
forced
to
pursue
forproving
the
Tenor
of
the
said
Disposition
,
which
was
out
of
the
way
;
and
which
he
pretended
to
have
been
in
the
Hands
of
the
said
Elizabeth
Gibson
;
and
to
have
been
abstracted
by
the
said
John
Lowes
her
second
Husband
,
intending
to
patch
up
the
Right
foresaid
;
And
these
Adminicles
bein
Lybelled
,
viz.
That
the
said
Elizabeth
Gibson
being
pursued
at
the
instance
of
the
said
Thomas
Norvel
before
the
Court
of
Glasgow
,
for
Exhibition
of
that
Disposition
;
the
said
Elizabeth
,
for
obtaining
a
Suspension
of
the
Decreet
of
Exhibition
recovered
against
her
,
did
consign
in
the
hands
of
Henry
Hope
the
said
Disposition
and
other
Writes
;
and
that
thereafter
the
said
Thomas
Norvel
,
upon
the
said
Disposition
,
did
obtain
a
Decreet
cognitionis
causa
,
before
the
Baillies
of
Glasgow
;
In
which
the
said
Disposition
is
mentioned
as
produced
:
And
thereafter
the
said
Thomas
did
also
obtain
an
Adjudication
of
the
said
Aikers
,
wherein
also
the
same
was
produced
:
And
that
there
is
an
attested
double
of
the
said
Disposition
,
which
is
written
by
James
Galbraith
Agent
,
and
attested
by
two
famous
Notars
.
The
Lords
admitted
the
Summonds
to
Probation
;
And
diverse
Witnesses
being
Examined
,
and
in
special
the
said
James
Galbraith
,
and
these
who
were
Servants
to
the
Clerk
of
the
Court
of
Glasgow
,
the
time
of
the
obtaining
of
the
said
Decreets
Cognitionis
causa
,
Adjudication
,
and
others
:
After
much
debate
,
before
advising
,
in
praesentia
,
and
amongst
the
Lords
themselves
;
Some
of
the
Lords
were
of
Opinion
,
that
pursuites
,
of
the
nature
foresaid
,
being
of
so
great
importance
,
and
tending
to
make
up
a
Right
to
Lands
which
may
be
of
great
value
;
The
Adminicles
ought
to
be
in
Write
and
most
pregnant
;
and
that
in
this
case
,
tho
there
might
be
ground
of
presumption
,
yet
it
cannot
be
said
,
that
there
are
clear
Adminicles
in
Write
;
In
sua
far
as
the
attested
double
cannot
be
considered
as
an
Authentick
Write
,
and
it
wants
a
date
:
And
as
to
the
Decreet
of
Adjudication
,
tho
it
mention
the
production
of
the
Letters
of
Disposition
,
yet
it
appears
by
the
Depositions
of
the
Witnesses
,
and
it
was
granted
at
the
Barr
,
that
the
principal
Disposition
was
not
produced
,
but
only
an
attested
Double
,
and
needed
not
to
be
produced
;
the
Decreet
cognitionis
causa
being
sufficient
to
instruct
the
Pursuers
Title
in
the
Adjudication
:
And
as
to
the
Decreet
Cognitionis
causa
,
that
it
is
not
a
sufficient
Adminicle
,
seing
both
it
and
the
Decreet
of
Adjudication
,
bearing
the
Production
in
the
same
Terms
,
there
might
have
been
the
same
mistake
in
the
Decreet
Cognitionis
causa
,
that
is
confest
to
have
been
in
the
Adjudication
,
viz.
That
the
Attested
double
being
only
produced
,
yet
the
Production
is
made
to
bear
the
Disposition
;
and
there
being
so
short
a
time
betwixt
the
Decreet
Cognitionis
causa
which
was
the
13.
February
,
and
the
Adjudication
which
was
on
the
24.
of
the
same
Moneth
,
it
is
to
be
presumed
that
the
attested
double
has
been
produced
in
both
:
And
seing
in
such
pursuits
for
proving
of
Tenors
rei
gestae
veritas
ought
to
be
proven
;
yet
it
does
not
appear
,
by
the
Testimonies
of
any
of
the
Witnesses
,
that
they
knew
that
there
was
a
Disposition
truely
subscribed
by
the
said
William
Gibson
to
the
said
William
Norvel
;
and
a
pretended
Disposition
might
have
been
produced
the
time
of
the
obtaining
of
the
said
Decreets
;
and
might
be
truely
doubled
;
and
yet
be
a
false
Write
:
And
it
were
of
a
dangerous
consequence
,
upon
such
pretences
and
Adminicles
,
to
make
up
an
Authentick
Write
,
to
have
the
force
of
a
principal
Disposition
as
to
all
effects
;
especially
it
being
considered
,
that
even
Extracts
do
not
satisfy
in
Improbations
,
tho
out
of
the
Registers
of
the
highest
Judicatories
;
by
reason
that
Parties
concerned
will
be
prejudged
of
the
means
and
indirect
Articles
of
Improbation
,
arising
upon
the
sight
and
production
of
principal
Writes
,
by
compareing
Hand-Writes
and
Subscriptions
and
others
:
And
if
Tenors
,
being
made
up
,
should
be
of
more
force
than
Extracts
,
there
should
be
the
same
Inconvenient
and
hazard
to
the
People
;
and
a
Door
should
be
opened
to
contrivances
,
if
after
Papers
are
produced
in
Judgement
,
they
should
be
destroyed
of
purpose
,
and
the
Tenors
of
the
same
should
be
thereafter
made
up
by
a
Decreet
,
which
should
satisfy
the
Production
in
Improbations
.
The
Lords
thought
fit
again
to
Re-examine
the
said
James
Galbraith
,
before
they
should
proceed
to
Sentence
:
Vide
15.
February
1676.
inter
eosdem
.
D.
305.
Blair
contra
Kinloch
.
30.
November
1675.
MR.
George
Blair
,
being
called
in
an
Adjudication
at
the
instance
of
Kinloch
of
Gourdie
,
as
Superior
of
the
Lands
craved
to
be
Adjudged
;
did
alledge
that
they
could
not
be
Adjudged
,
because
they
did
belong
to
him
by
a
Disposition
and
Resignation
thereupon
ad
remanentiam
:
It
was
Answered
,
That
Adjudications
are
now
in
place
of
Comprysings
;
and
as
such
Debates
were
not
competent
against
Comprysings
the
time
of
the
deduceing
of
the
same
,
so
they
ought
not
to
be
admitted
against
Adjudications
;
seing
Comprysers
and
Adjudgers
do
Adjudge
or
Comprise
upon
their
own
hazard
:
And
if
the
Debitor
has
any
Right
or
Interest
,
it
ought
to
be
Adjudged
;
and
if
he
has
none
,
there
is
no
prejudice
to
any
person
.
The
Lords
Found
,
That
there
being
no
Competition
of
Creditors
,
and
no
hazard
of
retarding
the
Pursuers
Diligence
upon
that
account
;
the
Defender
being
called
might
propone
the
said
Defence
;
and
ought
not
to
be
put
to
Trouble
and
Charges
to
appear
in
any
other
Process
for
Mails
and
Duties
,
or
Removing
;
Especially
seing
he
was
content
,
that
if
the
Pursuer
had
a
Reduction
,
as
he
pretended
,
of
his
Right
,
that
it
should
be
discust
presently
;
and
tho
he
had
no
Reduction
,
that
what
he
could
say
against
his
Right
should
be
heard
and
discust
by
way
of
Reply
.
Forret
Reporter
.
D.
306.
Mr.
Vanss
contra
Sandilands
.
1.
December
1675.
IN
the
case
abovementioned
18.
and
23.
of
November
.
Vanss
contra
Sandilands
.
The
Lords
having
Examined
the
Servants
of
the
Tolbooth
and
Captain
Martines
Wife
,
Found
that
Mr.
Vanss
being
free
of
any
suspition
of
Fraud
,
or
Knowledge
and
accession
to
the
escape
of
Captain
Martin
;
ought
not
to
be
Lyable
to
any
hazard
for
the
same
.
D.
307.
Barclay
contra
Arbuthnet
.
3.
December
1675.
COllonel
Barclay
,
having
produced
in
termino
a
Relaxation
unregistrate
,
for
proving
a
Defence
,
Founded
upon
the
Relaxation
.
It
was
Alledged
before
the
Lord
of
the
Outer-house
,
that
the
Term
ought
to
be
circumduced
:
Whereunto
It
was
Answered
,
That
it
could
not
be
circumduced
,
since
he
had
produced
the
said
Paper
,
and
Avisandum
ought
to
be
made
,
that
the
Lords
might
advise
,
whether
it
proves
or
not
.
The
Lords
Found
,
That
in
such
Cases
,
where
possibly
a
blank
Paper
,
or
a
Paper
of
an
other
nature
than
that
which
was
to
be
produced
,
is
produced
in
termino
;
the
Judge
may
and
ought
to
circumduce
the
Term
;
where
it
is
evident
,
that
such
Papers
are
produced
,
not
to
satisfy
,
but
to
delay
and
abuse
the
Judge
:
But
in
this
case
,
seing
it
was
found
,
That
Collonel
Barclay
had
produced
sufficiently
ad
victoriam
causae
,
so
that
there
may
be
some
ground
of
doubt
and
debate
;
The
Lords
Found
,
That
it
was
competent
only
the
time
of
the
advising
.
Gosfoord
Reporter
.
D.
308.
Lady
Mouswel
contra
the
Creditors
of
Mouswel
.
eod.
die
.
IN
a
Suspension
of
multiple
Poinding
against
Agnes
Rome
Lady
Mouswell
and
her
Children
,
and
Dowglas
of
Dornick
,
and
the
other
Creditors
of
Mouswell
;
The
said
Lady
desired
to
be
preferred
for
an
Annualrent
of
1000.
merks
yearly
,
wherein
she
was
infeft
:
It
was
Answered
by
the
Creditors
,
that
she
had
Right
only
to
an
Annualrent
of
800
merks
yearly
,
having
restricted
her self
to
800.
merks
,
by
a
Contract
and
Agreement
betwixt
her
and
her
freinds
of
Mouswell
:
Whereto
It
was
Replyed
,
That
the
Restriction
was
personal
in
favours
of
the
Heir
of
Mouswell
,
and
intuitu
of
the
Obligements
contained
in
the
said
Contract
;
that
the
Friends
should
undertake
the
Sums
mentioned
in
the
said
Contract
respective
which
they
had
not
done
:
And
albeit
It
was
Duplyed
,
that
the
Minute
does
bear
a
positive
and
absolute
Restriction
,
and
Renounciation
of
200
merks
,
and
that
there
is
no
Provision
or
Clause
irritant
in
the
Minute
,
that
if
the
Obligements
upon
the
other
Contracters
were
not
fulfilled
that
the
Restriction
should
be
void
;
Yet
The
Lords
preferred
her
for
the
whole
Annualaent
,
Notwithstanding
of
the
Restriction
foresaid
:
Which
appears
to
be
hard
,
Seing
some
of
the
Creditors
,
who
did
compete
with
the
Lady
,
were
not
Contracters
and
obliged
by
the
said
Contract
;
And
the
foresaid
Restriction
was
not
in
favours
of
the
Creditors
who
were
obliged
by
the
said
Contract
,
but
in
favours
of
her
Son
the
Heir
;
And
the
benefite
thereof
doth
accrue
to
his
Creditors
who
had
comprysed
;
and
does
in
effect
redound
to
the
advantage
of
the
Heir
and
his
Successors
;
Seing
the
Creditors
will
be
the
more
easily
satisfied
,
the
burden
of
the
Ladies
Liferent
being
restricted
,
as
said
is
:
and
the
other
Creditors
,
who
had
not
fulfilled
their
Obligements
,
may
be
pursued
for
implement
of
the
same
:
And
it
is
a
great
inconsequence
,
that
because
they
had
not
fulfilled
their
part
,
that
therefore
the
Ladies
part
,
which
was
fulfilled
and
execute
,
should
become
void
:
and
the
pretence
,
that
the
Restriction
foresaid
was
causa
data
non
secuta
is
of
no
weight
;
seing
the
causa
was
the
Obligement
of
the
Creditors
,
which
they
might
be
compelled
to
fulfil
.
Hatton
Reporter
.
D.
309.
Cuninghame
contra
Maxwel
.
eod.
die
.
A
Bond
being
suspended
upon
a
Reason
of
Compensation
,
viz.
That
the
Suspender
had
debursed
diverse
Sums
(
conform
to
an
Accompt
)
for
the
Charger
:
and
the
said
Reason
being
referred
to
the
Chargers
Oath
,
and
deferred
back
again
to
the
Suspenders
Oath
;
it
was
debated
among
the
Lords
,
a
quo
tempore
Compensation
should
be
sustained
;
whether
from
the
time
of
the
debursements
,
or
from
the
time
the
same
was
liquidat
and
cleared
by
the
Suspenders
Oath
.
And
it
was
Found
,
That
Compensation
should
be
sustained
from
the
time
of
the
Debursements
:
seing
the
said
Sums
then
grew
to
be
due
.
Debts
being
illiquid
,
either
because
not
constitute
by
Wr●te
or
Decreet
;
or
because
they
are
not
due
in
Money
but
in
Victual
,
or
such
like
;
which
must
be
liquidat
,
as
to
the
Prices
and
Value
,
before
there
can
be
any
execution
for
the
same
;
the
Question
may
be
of
greater
difficulty
as
to
the
last
,
seing
compensatio
is
s●lutio
,
and
ipso
jure
minuit
;
whereas
a
Debt
in
Money
,
cannot
be
said
to
be
payable
,
and
far
less
to
be
payed
in
Victual
,
unless
the
Creditor
be
content
to
be
satisfied
that
way
.
D.
310.
Dalling
contra
McKenze
.
7
December
1675.
A
Woman
is
understood
to
be
praeposita
negotiis
domesticis
;
so
,
that
for
the
Provision
of
her
House
,
she
may
take
from
Fleshers
and
Baxters
and
others
such
Furnishing
as
is
necessary
:
and
her
Declaration
and
Oath
may
be
taken
,
and
ought
to
be
trusted
as
to
the
same
:
and
the
Husband
is
presumed
not
to
know
the
particular
Quantities
:
and
these
who
do
furnish
,
are
not
oblidged
to
enquire
,
whether
her
Husband
has
given
her
Money
sufficient
to
provide
his
House
,
if
she
be
a
Person
that
is
not
inhibite
:
seing
the
Husband
has
a
remedy
,
if
he
has
any
suspition
that
she
may
abuse
and
wrong
him
,
and
may
inhibite
her
.
Glendoick
Reporter
.
D.
311.
Sheriff
of
Perth
contra
_____
eod
die
.
IT
was
Found
,
That
the
late
Proclamation
,
remitting
Fines
due
upon
the
contraveening
of
Penal
Statutes
,
ought
to
be
extended
to
Ryots
and
Fines
,
upon
the
committing
of
the
same
before
the
said
Proclamation
;
the
Persons
being
thereafter
Convict
before
the
Sheriff
.
Glendoich
Reporter
.
D.
312.
Lord
Arnistoun
contra
Patrick
Murray
of
Deuchar
.
8.
December
1675.
WHen
Lands
are
pretended
to
be
thirled
to
a
Mill
,
the
Heretor
has
good
interest
to
pursue
an
Improbation
against
the
Heretor
of
the
Mill
,
of
all
Rights
and
Writes
,
bearing
express
constitution
of
the
said
Servitude
:
But
that
General
,
viz.
That
the
Defender
should
produce
all
Writes
,
which
may
import
Thirlage
,
ought
not
to
be
sustained
;
in
respect
there
may
be
Writes
importing
Thirlage
consequentially
,
which
the
Defender
is
not
obliged
to
know
,
what
the
import
of
the
same
may
be
;
and
it
were
hard
,
that
upon
pretence
of
such
an
Interest
,
the
Defender
should
make
his
Charter
Chest
patent
to
the
Pursuer
:
and
the
Pursuer
has
a
Remedy
,
if
he
apprehend
that
the
Defender
may
trouble
him
,
upon
pretence
of
Writes
,
which
may
import
consequentially
Thirlage
,
he
may
force
him
to
produce
the
same
,
by
intenting
a
negatory
Action
and
Declarator
of
Freedom
.
D.
313.
_____
Laird
of
Wamfray
.
eod.
die
.
THE
Act
of
Parliament
against
Protections
.
3d.
Sess.
of
His
Majesties
1st
.
Parl.
Cap.
3.
giving
Power
to
the
Lords
of
Session
,
and
Exchequer
,
Privy
Council
,
and
Justice
General
,
to
grant
Protections
to
persons
summoned
to
appear
before
them
;
is
only
to
be
understood
in
that
case
,
when
they
are
obliged
to
appear
personally
to
give
their
Oaths
,
or
to
be
Witnesses
;
and
cannot
appear
by
Procurators
:
And
such
Protections
ought
not
to
be
granted
upon
pretext
,
that
Processes
of
Compt
and
Reckoning
and
others
cannot
be
managed
without
their
own
presence
:
And
this
was
Found
upon
a
Bill
given
in
by
Johnstoun
of
Wamfray
;
whereby
he
desired
a
Protection
.
And
yet
it
is
thought
,
that
in
some
cases
,
where
it
is
evident
that
there
is
a
necessity
of
the
Defenders
presence
to
give
Information
in
the
point
of
Fact
,
especially
in
general
Actions
of
Compt
and
Reckoning
,
Protections
ought
to
be
granted
.
D.
314.
Veitch
contra
Hamilton
.
9.
December
.
1675.
A
General
Action
of
Compt
and
Reckoning
,
at
the
instance
of
Pupils
and
Minors
Post
tutelam
&
curatelam
,
against
their
Tutors
and
Curators
,
is
not
consistorial
and
competent
to
be
pursued
before
the
Commissars
;
where
the
import
of
the
Action
exceeds
the
Sum
and
value
to
which
the
Commissars
may
be
Judges
:
And
the
pretence
,
that
there
are
diverse
Articles
,
and
none
of
them
doth
exceed
the
said
Sum
is
of
no
weight
;
seing
the
Reply
of
articulatus
Libellus
is
only
in
the
case
,
where
the
Debitor
is
pursued
for
diverse
Sums
,
which
in
effect
resolves
in
diverse
Actions
:
Whereas
actio
tutelae
is
but
one
general
Action
and
upon
one
Ground
,
viz.
The
Defender
is
Lyable
as
Tutor
and
Curator
,
whatever
and
how
many
soever
the
Articles
of
Intromission
be
:
And
upon
the
Ground
foresaid
,
the
pursuite
before
the
Commissars
was
Advocate
.
Newbyth
Reporter
.
D.
315.
The
Creditors
of
James
Mastertoun
,
and
of
his
Relict
Alice
Thine
.
eod.
die
.
BY
our
Custom
and
the
Custom
of
diverse
other
Nations
,
tho
there
be
a
Communion
betwixt
a
Husband
and
a
Wife
as
to
Moveables
;
yet
the
Husband
dureing
the
Marriage
has
not
only
Administration
,
but
is
Dominus
actu
;
and
may
dispose
of
the
same
,
not
only
for
Onerous
Causes
,
but
by
way
of
Donation
;
and
the
Wife
has
only
a
Right
and
Interest
habitu
;
which
exit
in
actum
after
the
Marriage
is
dissolved
;
as
to
all
the
Moveables
belonging
to
them
,
the
time
of
the
Dissolution
.
And
yet
if
the
Husband
dispose
of
his
Moveables
in
fraudem
,
and
of
purpose
to
prejudge
the
Wife
,
and
to
evacuate
her
Legitime
and
part
of
the
Moveables
;
as
was
Alledged
in
the
case
in
question
;
the
circumstances
being
such
as
did
evince
the
Husbands
fraud
and
purpose
to
settle
his
Estate
upon
his
near
Relations
after
his
Death
;
in
prejudice
of
the
Wifes
Interest
;
such
Donations
will
not
be
sustained
.
The
said
James
Mastertoun
,
having
made
a
Disposition
in
favours
of
his
his
Wife
,
with
the
burden
of
his
Debts
,
so
that
his
Creditors
should
not
be
prejudged
;
but
that
the
said
Right
should
be
affected
with
the
said
Debts
;
It
was
debated
among
the
Lords
,
what
the
import
should
be
of
the
said
Clause
;
and
if
the
Creditors
of
the
Husband
had
thereby
a
real
Interst
in
the
Goods
;
or
only
a
personal
Action
against
the
Receiver
of
the
Disposition
:
And
it
was
thought
,
that
the
Goods
being
extant
and
undisposed
of
;
the
Receiver
of
the
Disposition
with
the
said
quality
,
was
in
the
case
of
a
Trustee
or
Executor
:
And
the
Creditors
of
the
Husband
competing
,
upon
their
Diligence
,
to
affect
the
same
with
these
of
the
Wife
,
would
be
preferable
:
But
if
they
were
disposed
of
by
the
Wife
,
tho
the
price
be
not
employed
for
the
use
of
the
Creditors
,
tho
they
be
extant
the
Husbands
Creditors
has
no
Interest
in
the
same
;
seing
the
Wife
was
Domina
and
might
sell
the
same
;
and
Buyers
finding
her
in
possession
,
are
not
concerned
to
enquire
what
way
she
should
employ
the
price
.
Vide
infra
17.
December
1675.
Thomson
contra
Eleis
.
D.
316.
Scot
contra
Kennedy
.
10.
December
.
1675.
A
Father
,
or
any
other
person
disponing
his
means
,
may
qualify
his
own
Gift
;
and
in
special
with
that
Provision
,
that
if
the
persons
be
Pupils
or
Minors
,
the
same
should
be
Administrate
by
the
persons
named
in
the
said
Disposition
;
and
yet
these
,
in
whose
favours
the
Disposition
is
made
,
may
choose
Curators
,
who
will
have
the
Administration
of
any
other
Estate
belonging
to
them
:
But
if
they
be
Puberes
their
persons
are
free
;
and
neither
of
the
said
Administrators
can
pretend
to
the
keeping
of
them
,
quia
curator
datur
rebus
.
D.
317.
McKneish
contra
Bryce
and
her
Husband
.
eod.
die
.
A
Woman
being
pursued
upon
a
Bond
;
and
having
alledged
,
that
it
it
was
Null
,
because
she
was
vestita
viro
:
The
Reply
,
that
she
promised
payment
after
her
Husbands
decease
,
tho
the
Sum
was
only
100
lib.
Scots
,
was
Found
not
to
be
probable
by
Witnesses
.
Glendoich
Reporter
.
D.
318.
_____
contra
_____
16.
Decem.
1675.
THE
Lords
Found
,
That
a
Merchant
being
in
use
to
furnish
diverse
Years
;
That
a
current
accompt
did
not
prescrive
;
Tho
some
were
of
Opinion
,
that
the
Act
of
Parliament
bearing
no
distinction
;
the
Articles
of
Accompt
ought
to
prescrive
from
their
Respective
Dates
;
Seing
otherways
the
Act
of
Parliament
may
be
eluded
,
both
in
the
case
of
Compts
and
other
cases
,
which
prescrive
by
the
Act.
Nevoy
Reporter
.
D.
319.
Wilson
contra
Deans
.
17.
December
.
1675.
IT
was
Found
,
That
a
Woman
keeping
a
Shop
,
and
Traffiqueing
as
a
Merchant
with
the
knowledge
of
her
Husband
,
he
is
Lyable
for
Debts
Contracted
by
her
,
upon
the
account
of
her
Traffique
,
Actione
institoria
.
Forret
Reporter
.
D.
320.
Thomson
contra
Mr.
James
Eleis
.
eod.
die
.
THE
Lords
Found
,
In
the
case
of
a
Right
of
Moveables
,
granted
by
a
Husband
to
his
Wife
with
the
burden
of
his
Debts
,
and
a
Provision
that
they
shall
be
affected
with
the
same
,
That
the
property
of
the
Goods
is
settled
in
the
person
of
the
Wife
;
so
that
she
may
dispose
of
the
same
:
And
these
who
acquire
Right
thereto
are
not
concerned
to
enquire
,
whether
the
price
be
converted
to
the
use
and
satisfaction
of
the
Creditors
;
who
will
have
a
personal
Action
against
the
Wife
:
So
that
she
will
in
effect
be
in
the
case
of
an
Executor
and
Trustee
:
But
if
the
Goods
so
affected
be
extant
,
the
Creditors
of
the
Husband
will
be
preferable
to
the
Wifes
proper
Creditors
;
her
Right
being
fiduciary
(
as
said
is
)
and
to
the
use
foresaid
.
Praesentia
.
Vide
supra
9.
December
1675.
The
Creditors
of
James
Mastertoun
.
D.
321.
_____
contra
_____
21.
Decem.
1675.
A
Father
having
made
a
Disposition
in
favours
of
his
Son
,
reserving
his
own
Liferent
,
with
power
likewayes
to
dispose
of
what
he
had
provided
;
did
appoint
certain
Persons
as
Curators
,
and
to
have
Administration
of
what
he
had
provided
,
dureing
not
only
the
Pupillarity
,
but
the
Minority
of
his
Son
;
and
nevertheless
his
Son
,
having
chosen
Curators
after
his
Pupillarity
,
there
was
a
Competition
betwixt
the
said
Curators
,
and
the
Person
appointed
by
the
Father
to
Administrate
.
The
Lords
Found
,
That
the
Son
,
as
to
his
Person
,
was
not
in
potestate
of
either
of
the
said
competing
Curators
;
seing
Curator
non
datur
personae
sed
rebus
:
and
as
to
any
other
Estate
,
belonging
to
the
Minor
,
any
other
way
than
by
the
Provision
of
his
Father
,
the
same
was
to
be
governed
by
the
advice
of
the
Curator
,
named
and
chosen
by
himself
.
But
the
Lords
demurred
as
to
that
Question
,
viz.
Whether
the
Father
might
affect
the
Right
granted
by
himself
,
with
the
Quality
and
Provision
foresaid
,
that
the
Person
named
by
him
,
should
have
administration
of
the
Estate
disponed
by
him
:
And
some
were
of
the
Opinion
,
that
there
is
a
difference
betwixt
a
Stranger
and
a
Father
;
in
respect
Strangers
are
not
obliged
to
give
;
and
what
they
are
pleased
to
give
,
they
may
affect
and
qualifie
their
Right
thereof
sub
modo
,
and
with
what
Provisions
they
think
fit
;
whereas
a
Father
has
a
Duty
lying
upon
him
in
nature
,
to
provide
his
Children
;
and
by
the
Law
he
may
name
Tutors
to
his
Children
;
but
after
Pupillarity
,
he
cannot
put
them
under
the
power
of
Curators
,
without
their
own
consent
:
and
if
this
practice
should
be
allowed
,
there
should
hereafter
be
no
election
of
Curators
:
They
did
also
consider
,
that
the
Right
granted
by
the
Father
,
was
in
effect
donatio
mortis
causa
,
seing
the
Father
retained
possession
,
and
a
power
to
revock
:
And
it
seemed
,
that
as
the
Father
could
not
in
Testament
make
Curators
,
so
he
could
not
do
the
same
by
a
Legacy
,
or
any
such
Donation
mortis
causa
.
D.
322.
Mr.
of
Rae
contra
Dumbyth
.
8
February
1676.
IN
a
Spuilyie
,
at
the
Instance
of
the
Master
of
Rae
against
Dumbyth
,
It
was
Alledged
,
The
Pursute
was
prescrived
,
because
not
intented
within
3.
Years
;
so
that
it
could
not
be
sustained
to
give
the
Pursuer
Juramentum
in
litem
and
violent
Profits
.
It
was
Replyed
for
the
Pursuer
,
That
long
within
the
3.
Years
,
a
pursute
for
Depredation
had
been
intented
,
before
the
Justice
;
Which
being
of
a
Higher
Nature
,
and
including
Virtually
,
and
in
consequence
,
the
conclusion
of
Restitution
and
Profits
,
was
a
sufficient
Interruption
as
to
this
pursute
.
The
Lords
,
notwithstanding
Found
,
the
pursute
prescrived
.
Newbyth
Reporter
.
Mr.
Thomas
Hay
Clerk
.
D.
323.
Riccarton
Drummond
contra
_____
eod.
die
.
THE
Lords
Found
,
That
a
special
Service
in
an
Annualrent
,
doth
give
Right
to
Heretable
Bonds
,
and
all
other
Heretable
Estate
,
whereupon
Infeftment
did
not
follow
;
and
includes
a
General
Retour
,
as
Homo
doth
include
Animal
.
Newbyth
Reporter
.
Hamilton
Clerk
.
D.
324.
_____
contra
_____
eod.
die
.
THE
Lords
Found
,
That
when
Creditors
did
compear
in
Adjudications
,
not
being
called
;
they
ought
to
be
admitted
with
that
quality
,
that
since
the
course
of
the
Adjudger
is
stopt
by
their
Compearance
,
the
Adjudger
shall
be
in
the
same
case
as
to
any
Adjudication
at
their
instance
,
as
if
both
Adjudications
were
within
year
and
day
.
D.
325.
Colledge
of
Aberdeen
contra
_____
eod.
die
.
THE
Colledge
of
Aberdeen
,
having
Right
by
Act
of
Parliament
,
to
the
Vacant
Stipends
within
the
Bounds
thereinmentioned
;
pursues
for
a
Vacant
Stipend
:
the
Bishop
of
Ross
compeared
and
alledged
,
That
the
Kirk
was
his
Mensal
Kirk
,
so
that
there
could
be
no
Vacant
Stipend
.
The
Lords
Found
,
That
the
Colledge
should
have
Right
to
any
Stipend
that
belonged
to
the
former
Ministers
,
either
modified
to
them
,
or
of
which
they
have
been
in
Possession
:
and
that
it
was
consistent
,
that
the
Kirk
should
be
Mensal
,
and
yet
the
Minister
should
have
a
Stipend
,
and
that
the
Pursuers
should
have
Right
thereto
,
being
Vacant
.
Craigie
Reporter
.
D.
326.
_____
contra
_____
9.
February
1676.
IN
a
Suspension
,
a
Reason
of
Compensation
is
lybelled
,
viz.
That
the
Charger
was
debitor
to
the
Suspender
upon
account
of
a
Fraught
;
and
it
was
offered
to
be
proven
by
the
Chargers
Oath
,
that
he
was
so
Debitor
;
and
by
Witnesses
what
the
Fraught
extended
to
The
Lords
Found
the
Letters
orderly
proceeded
;
and
that
Compensation
was
de
liquido
in
liquidum
,
and
not
de
liquidando
by
Witnesses
.
D.
327.
_____
contra
_____
eod.
die
.
A
Pursute
was
intented
for
a
Sum
of
Money
,
which
the
Defender
was
obliged
by
his
Promise
to
pay
,
in
case
he
should
be
married
;
having
gotten
from
the
Pursuer
in
the
mean
time
a
Piece
,
which
the
Pursuer
was
to
loose
,
in
case
the
Defender
should
not
be
married
.
The
Lords
sustained
the
Pursute
:
Tho
some
of
their
Number
were
of
the
opinion
,
that
sponsiones
ludicrae
,
of
the
Nature
foresaid
,
ought
not
to
be
allowed
.
Strathurd
Reporter
.
D.
328.
Sir
Patrick
Nisbet
contra
Hamilton
.
eod.
die
.
AFter
the
Lands
of
a
Debitor
were
denounced
to
be
comprysed
;
a
voluntar
Right
was
granted
by
him
,
of
an
Annualrent
out
of
the
samen
Lands
,
for
an
Onerous
Cause
;
whereupon
the
Annualrenter
was
infeft
by
a
publick
Infeftment
,
before
any
Infeftment
upon
the
Comprising
:
and
there
being
upon
the
foresaid
Rights
a
Competition
betwixt
the
Compriser
and
the
Annualrenter
:
It
was
Alledged
,
That
after
the
Lands
were
denounced
,
the
Debitor
could
not
give
a
voluntar
Right
of
the
same
being
litigious
,
and
affected
with
the
Denounciation
:
And
on
the
other
part
,
it
was
debated
,
that
the
Debitor
,
not
being
inhibite
,
might
give
a
voluntar
Right
for
an
Onerous
Cause
,
and
the
first
consummate
Right
ought
to
be
preferred
.
The
Lords
,
In
respect
it
was
pretended
there
were
contrary
Decisions
,
Thought
fitt
,
not
to
give
Answer
,
until
these
should
be
considered
.
D.
329.
Park
contra
Rysly
.
eod.
die
.
A
Tennent
having
sold
Nine
Score
of
Sheep
,
and
the
samen
being
caryed
off
the
Roum
where
he
was
Tennent
;
the
Master
of
the
Ground
,
by
Warrand
of
the
Sheriff
,
as
having
therein
the
Right
and
Interest
of
a
tacite
Hypotheck
,
did
seise
upon
the
same
.
The
Lords
Found
,
That
neither
the
Master
nor
the
Sheriff
,
without
citing
the
Partie
,
could
seise
upon
the
said
Goods
,
not
being
upon
the
Masters
Ground
;
nor
give
Warrand
to
that
purpose
:
And
yet
seing
quaevis
causa
excusat
a
spolio
,
they
restricted
the
Pursute
to
wrongous
Intromission
:
and
allowed
to
the
Master
his
Defence
for
Retention
of
the
Goods
,
until
he
should
be
payed
of
his
Years
Duty
.
Newbyth
Reporter
.
Hamilton
Clerk
.
D.
330.
_____
contra
_____
eod.
die
.
THE
Right
of
a
Wadset
being
comprised
,
the
Compriser
did
require
for
the
Sum
due
upon
the
Wadset
;
and
pursued
the
Representatives
of
the
Debitor
:
It
was
Alledged
,
for
the
Defender
,
That
he
could
not
pay
the
Money
,
unless
the
Pursuer
should
put
the
Defender
in
Possession
of
the
Lands
:
It
was
Answered
,
That
the
Pursuer
not
having
possession
himself
,
and
having
loosed
the
Wadset
by
Requisition
,
he
could
not
put
the
Defender
in
possession
:
and
the
Defender
might
have
taken
possession
by
his
own
Right
:
and
it
was
enough
that
he
was
content
to
renounce
the
Wadset
;
especially
seing
neither
the
Pursuer
nor
his
Author
had
done
any
Deed
to
put
the
Defenders
in
worse
case
as
to
Possession
;
and
the
Possession
was
apprehended
and
still
continued
by
an
Anterior
Compryser
:
and
the
Pursuer
had
obtained
a
Declarator
,
finding
the
said
Comprysing
to
be
satisfyed
and
extinct
,
so
that
the
Defenders
might
easily
recover
Possession
.
The
Lords
notwithstanding
Found
the
Alledgeance
Relevant
,
and
that
the
Pursuers
should
put
the
Defenders
in
possession
.
D.
331.
Grant
contray
Barclay
.
10.
February
1676.
IN
a
pursute
upon
a
Passive
Title
of
Behaving
;
It
was
Alledged
,
that
before
intention
of
the
cause
the
Defender
had
gotten
a
Gift
of
the
Defuncts
Escheat
.
The
Lords
,
Upon
Debate
amongst
themselves
,
Found
,
that
albeit
the
Gift
was
not
declared
,
yet
it
purged
the
Defenders
vitious
Intromission
;
being
before
the
intention
of
the
Cause
;
and
that
the
Defender
,
having
the
Goods
in
his
hands
,
needed
not
a
Declarator
.
This
seemed
hard
to
some
of
the
Lords
,
In
respect
by
our
Custom
there
being
two
wayes
adeundi
haereditatem
,
viz.
either
by
a
Service
or
by
Intromission
was
the
Defuncts
Goods
that
were
in
his
possession
:
The
Appearand
Heir
,
by
medling
with
the
Goods
,
gerit
se
pro
haerede
;
And
so
by
his
Intromission
having
declared
his
intention
alse
fully
as
if
he
were
served
Heir
;
semel
haeres
cannot
cease
to
be
Heir
;
there
being
Jus
quaesitum
to
the
Creditors
as
to
a
Passive
Title
against
him
.
2.
The
pretence
,
that
the
Defender
is
in
the
same
case
,
as
if
there
were
an
Executor
confirmed
before
the
intention
of
the
Cause
,
is
of
no
weight
;
Seing
the
Defence
upon
the
confirmation
is
sustained
;
because
there
is
a
person
against
whom
the
Creditors
may
have
Action
,
which
is
not
in
the
Case
of
a
Donator
.
3.
A
Donator
has
no
Right
without
a
general
Declarator
;
And
tho
,
when
the
Donator
has
the
Goods
in
his
hand
,
there
needs
not
a
special
Declarator
;
yet
,
for
declaring
his
Right
,
there
must
be
a
general
one
.
4.
As
to
that
pretence
,
that
the
Defender
cannot
be
Lyable
as
Intrometter
with
the
Defuncts
Goods
,
because
they
belong
to
the
Fisk
and
not
to
him
;
It
is
Answered
,
That
the
Goods
being
in
the
possession
of
the
Defunct
;
the
Appearand
Heir
thereafter
medleing
with
the
same
eo
ipso
adit
;
and
the
Creditors
ought
not
to
be
put
to
debate
,
being
he
is
in
Possession
:
And
if
a
person
should
be
served
special
Heir
to
the
Defunct
,
tho
the
Defuncts
Right
were
reduced
and
the
Haereditas
could
be
inanis
as
to
the
benefite
,
yet
the
Heir
would
be
still
Lyable
.
Mr.
Thomas
Hay
Clerk
.
D.
332.
Mcquail
contra
Mcmillan
.
eod.
die
.
A
Pursute
being
intented
against
the
Wife
as
universal
Intrometter
to
a
Defunct
,
and
her
Husband
pro
interesse
;
and
the
Wife
having
deceased
:
It
was
Found
,
that
the
Husband
should
not
Lyable
,
unless
it
were
proven
,
that
he
had
Intromission
with
the
same
Goods
;
upon
the
Intromission
with
which
the
former
pursute
was
intented
against
his
Wife
.
This
was
not
without
difficulty
:
And
upon
debate
amongst
the
Lords
,
tho
it
was
not
the
present
case
,
yet
the
Lords
enclined
to
be
of
the
Opin●on
,
that
the
Husband
,
having
gotten
a
Tocher
ad
sustinenda
onera
Matrimonij
;
If
the
Wife
had
any
other
Estate
,
whereunto
the
Husband
had
Right
Jure
Mariti
,
he
should
Lyable
in
quantum
locupletior
.
Nevoy
Reporter
.
Robert
Hamilton
Clerk
.
D.
333.
Alexander
Abernethie
contra
Arthur
Forbes
.
eod.
die
.
THE
Lord
Saltoun
having
given
a
Bond
of
20000
Merks
to
Alexander
Abernathie
,
upon
account
of
his
Service
,
and
of
the
Service
done
by
his
Brother
James
Abernathie
:
Thereafter
the
said
Lord
Saltoun
did
grant
a
Bond
,
making
mention
that
the
Lands
of
Auchincleuch
belonged
to
him
and
his
Authors
,
and
that
the
said
Alexander
had
been
Instrumental
to
obtain
a
Reduction
of
the
Rights
of
the
Estate
of
Salton
,
to
the
behoof
of
the
said
Lord
Salton
;
and
therefore
obligeing
my
Lord
Saltoun
to
Infeft
him
in
the
said
Lands
.
The
Lords
Found
,
That
the
said
Bond
,
being
after
the
former
and
for
the
Causes
foresaid
,
and
having
no
Relation
to
the
said
former
Bond
of
20000
Merks
,
that
it
should
be
in
satisfaction
of
the
same
;
Could
not
be
interpret
to
be
in
satisfaction
thereof
:
And
the
Brockard
Debitor
non
praesumitur
donare
does
not
militate
in
this
Case
;
Seing
the
Lord
Salton
was
in
a
capacity
to
give
both
the
said
Bonds
,
by
way
of
Donation
:
and
the
question
was
not
betwixt
the
said
Alexander
and
the
Creditor
,
but
betwixt
another
person
to
whom
thereafter
he
had
gratuitously
Disponed
his
Estate
.
In
praesentia
.
D.
334.
Gibson
contra
Fife
.
12.
February
1676.
A
Woman
having
lent
100
Merks
,
upon
a
Blank
Bond
;
and
the
same
being
lost
:
The
Debitor
was
pursued
for
payment
of
the
said
Sum
;
and
did
confess
that
he
had
truly
borrowed
the
Money
,
and
granted
the
Bond
Blank
;
and
he
was
willing
to
pay
the
same
,
being
secured
against
any
pursute
,
at
the
instance
of
any
person
,
who
might
have
found
the
said
Bond
,
and
filled
up
his
own
name
therein
.
The
Lords
thought
the
case
to
be
of
great
difficulty
and
import
,
as
to
the
preparative
;
that
practice
of
granting
Blank
Bonds
having
become
too
frequent
:
And
resolved
,
in
this
case
,
to
take
all
possible
Tryal
by
the
Debitors
Oath
,
and
otherwayes
,
of
the
date
and
Writers
Name
and
the
Witnesses
in
the
said
Bond
:
And
thereafter
to
ordain
the
Debitor
to
pay
upon
surety
,
that
the
Pursuer
should
relieve
him
of
any
Bond
that
should
be
found
of
that
date
and
Sum
;
and
writen
and
Subscribed
by
the
Writer
and
Witnesses
that
should
be
found
to
have
been
in
the
said
Bond.
Gibson
Clerk
.
D.
335.
Anderson
contra
Lowes
.
15.
February
1676.
THE
Lords
,
in
the
case
abovementioned
Anderson
contra
Lowes
27.
November
1675.
Found
the
Tenor
of
the
Write
thereinspecified
proven
by
the
Adminicles
thereinmentioned
.
In
praesentia
.
D.
336.
Marshal
contra
Forrest
and
her
Husband
.
eod.
die
.
IN
a
pursute
at
the
instance
of
a
Minor
against
his
Tutrix
:
The
Pursuer
having
referred
to
the
Tutrix
Oath
,
that
she
had
intrometted
with
diverse
particulars
belonging
to
him
:
The
Husband
of
the
Tutrix
Alledged
,
that
she
could
not
declare
in
his
prejudice
:
It
was
Replyed
,
That
the
Pursuer
having
an
Action
and
Jus
quaesitum
competent
to
him
against
his
Tutrix
,
he
could
not
be
in
worse
case
as
to
modum
probandi
,
by
the
Tutrix
her
superinduceing
a
Husband
:
And
that
the
Intromission
of
a
Relict
,
after
her
Husbands
decease
,
being
such
as
to
Money
,
Bonds
,
and
many
other
particulars
,
as
could
not
be
known
to
any
person
,
but
to
her self
;
nor
proven
,
but
by
her
own
Oath
;
It
were
hard
,
that
the
Minor
should
be
prejudged
of
his
Probation
by
her
own
Deed
:
And
the
Husband
is
not
in
the
case
where
a
Debt
is
only
to
be
constitute
by
the
Wifes
Oath
;
seing
the
Ground
of
the
Debt
is
constitute
by
Write
,
viz.
By
the
Nomination
or
Letter
or
Tutory
:
And
when
there
is
a
pursute
against
any
person
,
that
Person
cannot
by
an
Assignation
prejudge
his
Creditor
of
his
Probation
by
Oath
;
and
the
Minor
is
more
priviledged
;
seing
by
the
Common
Law
Minors
have
a
tacite
hypotheck
of
their
Tutors
Estate
;
and
by
our
Law
they
ought
to
be
favoured
,
at
least
so
far
as
it
should
not
be
in
the
power
of
the
Tutrix
to
ruine
them
,
by
convoleing
ad
secundas
nuptias
ante
redditas
rationes
.
The
Lords
thought
the
case
considerable
:
And
Ordained
the
Tutrix
to
declare
;
Reserving
to
themselves
,
to
consider
what
her
Declaration
should
import
.
Forret
Reporter
.
Gibson
Clerk
.
D.
337.
E.
of
Dumfermling
contra
the
Earl
of
Callender
.
16
February
1676.
THE
Earl
of
Dumfermling
,
having
Right
by
Assignation
,
to
the
Obligements
contained
in
the
Contract
of
Marriage
,
betwixt
the
deceast
Earl
of
Callender
and
his
Grand-mother
;
in
swa
far
as
the
same
is
in
favours
of
the
said
Lady
:
pursued
the
said
Earl
of
Callender
for
Implement
of
the
said
Obligements
;
and
the
Lord
Almond
,
now
Earl
of
Callender
,
as
having
gotten
a
Right
to
the
said
Earl
of
Callender's
Estate
,
with
the
burden
of
his
Debts
:
and
the
said
Earl
in
the
interim
having
deceased
,
did
insist
against
this
Earl
of
Callender
:
For
whom
It
was
Alledged
,
That
the
Process
ought
to
be
transferred
against
some
representing
the
said
Earl
of
Callender
,
as
Heir
of
Line
,
or
otherways
:
And
tho
the
Pursuers
Procurators
declared
,
they
insisted
only
against
Callender
for
a
Declarator
,
that
the
Estate
disponed
to
him
should
be
affected
with
the
foresaid
Obligement
:
It
was
urged
for
Callender
,
That
the
said
Earl's
Heirs
ought
to
be
called
;
Seing
the
Declarator
,
against
him
being
a
singular
Successor
,
that
his
Lands
should
be
affected
,
was
only
a
subsidiarie
Conclusion
,
and
could
not
be
sustained
before
the
Debt
was
constitute
:
and
the
Debt
could
not
be
constitute
,
unless
the
pretended
Debitor
,
or
some
representing
him
,
were
called
.
The
Lords
notwithstanding
Found
Process
;
and
that
there
were
no
necessity
of
calling
or
transferring
against
the
Heirs
of
the
Debitor
.
Actor
Sinclar
,
Bernie
and
others
,
alteri
Lockheart
.
Monro
Clerk
.
In
Praesentia
.
D.
338.
Doctor
Borthuick
contra
the
Earl
of
Crawfurd
.
eod.
die
.
THE
Earl
of
Crauford
,
having
borrowed
8000
merks
from
the
Mother
and
Grand-mother
,
and
two
of
their
Children
,
for
themselves
and
in
name
and
behalf
of
their
said
Children
;
he
is
obliged
by
his
Bond
to
infeft
the
said
Mother
and
Grand-mother
in
Liferent
and
the
said
Children
in
Fie
in
an
Annualrent
out
of
certain
Lands
;
but
by
a
mistake
,
the
Precept
of
Seasin
,
contained
in
the
Bond
,
is
in
favours
only
of
the
Mother
and
Grand-mother
,
and
for
infefting
them
as
Fiars
of
the
said
Annualrent
,
and
accordingly
they
are
infeft
:
And
yet
thereafter
the
said
Mother
and
Grand-mother
acknowledging
,
that
the
said
Infeftment
was
so
taken
upon
mistake
,
did
by
a
Disposition
,
bearing
the
Narrative
foresaid
,
dispone
the
Fee
in
favours
of
the
said
Children
:
and
there
was
a
Pursute
intented
at
their
instance
,
against
the
said
Earl
of
Craufurd
,
for
poinding
of
the
Ground
,
Wherein
It
was
Alledged
,
That
the
Mother
and
Grand-mother
,
being
only
Lifrenters
,
could
not
resign
the
Fee
,
which
they
had
not
:
and
if
the
Pursuers
made
use
of
their
Right
from
them
,
the
Defenders
ought
to
be
assoilyied
;
because
the
Mother
and
Grand-mother
,
by
a
Transaction
betwixt
the
said
Earl
of
Crawfurd
and
them
,
had
accepted
the
time
of
the
Englishes
,
a
parcel
of
Lands
in
satisfaction
of
the
said
Debt
.
The
Lords
Found
,
notwithstanding
of
the
said
Alledgance
,
that
the
Pursuers
ought
to
have
process
for
poinding
the
Ground
;
In
respect
the
Mother
and
Grand-mother
had
de
facto
the
Fie
in
their
person
upon
the
said
Precept
and
Seasin
:
And
the
same
being
given
indebite
,
as
said
is
,
they
might
have
been
compelled
to
denude
themselves
thereof
:
and
therefore
might
voluntarly
,
and
accordingly
did
denude
themselves
thereof
,
and
the
said
Transaction
could
not
prejudge
them
,
seing
they
derived
their
Right
from
the
said
Persons
qualificate
,
in
respect
of
their
Interest
and
Error
foresaid
;
and
they
might
have
been
compelled
to
give
the
same
:
and
the
Earl
of
Crawfurd
was
not
in
bona
fide
to
contract
with
them
;
Seing
by
the
Bond
granted
by
himself
,
they
were
only
Fiars
,
and
the
other
but
Liferenters
.
Actor
Lockhart
and
Beaton
,
alteri
Cuningham
and
Suinton
.
Clerk
in
praesentia
.
D.
339.
Doctor
Hay
contra
Alexander
.
17.
Febr.
1676.
DOctor
Hay
his
Case
,
28
January
1675.
supra
,
resumed
and
taken
to
consideration
this
day
;
And
tho
some
of
the
Lords
considered
,
that
it
was
hard
to
canvel
Certifications
in
Pursutes
of
Improbation
after
a
long
Dependence
,
and
diverse
Terms
given
to
produce
,
and
delays
of
Extracting
,
after
Circumduction
of
the
said
Terms
;
and
that
such
Certifications
are
not
only
the
great
Surety
of
these
who
obtain
the
same
,
but
of
these
who
obtain
Right
from
them
,
conceiving
themselves
to
be
secured
with
such
Certifications
:
Yet
the
President
,
and
others
of
the
Lords
enclined
to
repone
Alexander
against
the
Certification
,
the
Writes
being
produced
;
tho
it
was
urged
,
that
beside
the
Security
and
Interest
of
People
,
as
said
is
,
it
was
to
be
considered
,
that
in
this
Case
,
there
were
Advantages
pretended
to
on
both
hands
,
viz.
by
Alexander
of
an
expired
Comprysing
;
and
by
the
Doctor
of
the
said
Certification
:
and
that
Alexander
and
his
Authors
,
by
vertue
of
their
Comprysing
,
had
been
many
years
in
Possession
;
tho
there
was
probability
the
Comprysing
was
satisfyed
;
and
it
seemed
to
be
equitable
that
the
Doctor
should
have
a
Decreet
of
Removing
;
and
should
give
a
Reversion
to
Alexander
,
limited
to
such
a
time
as
the
Lords
should
find
just
,
upon
payment
of
what
should
be
resting
and
unsatisfied
by
his
and
his
Authors
Intromission
,
if
there
there
were
any
part
of
the
Debt
yet
resting
:
But
this
Point
was
not
decided
,
the
Lords
having
recommended
to
some
of
their
Number
,
to
endeavour
an
Accommodation
betwixt
the
Parties
.
D.
340.
Abercrombie
contra
Acheson
and
Livington
.
eod.
die
.
A
Taverner
,
after
she
had
removed
from
her
Masters
Service
,
and
was
Marryed
,
was
pursued
to
Compt
and
Reckon
for
Ale
and
Wine
which
the
Pursuer
offered
to
prove
was
layed
in
in
his
Cellars
.
The
Lords
Found
,
That
the
Pursuer
ought
to
Lybel
and
prove
that
the
Debt
was
yet
Resting
:
Seing
it
was
to
be
presumed
,
that
Servants
of
that
quality
did
Compt
Weekly
with
their
Masters
;
and
the
Pursuer
would
not
have
suffered
the
Defender
to
go
out
from
his
Service
before
she
had
Compted
and
made
payment
:
And
it
appeared
,
that
there
had
been
former
Decisions
to
that
purpose
.
Lord
Justice
Clerk
Reporter
.
D.
341.
Dundass
contra
Turnbul
and
other
Creditors
to
Whitehead
of
Park
.
eod.
die
.
IN
a
Competition
,
betwixt
an
Infeftment
of
Annualrent
and
a
posterior
Infeftment
upon
a
Comprysing
;
the
Lords
enclined
to
find
,
that
the
Infeftment
of
Annualrent
was
made
publick
by
a
pursute
of
poinding
the
Ground
before
the
Infeftment
upon
the
Comprysing
:
But
,
some
of
the
Lords
not
being
clear
,
the
case
was
not
decided
.
Gosford
Reporter
.
D.
342.
Wauch
contra
Jamison
.
eod.
die
.
DOctor
Bonar
,
being
to
go
out
of
the
Country
did
Dispone
a
Right
of
Lands
and
of
an
Annualrent
to
Mr.
John
Smith
his
near
Relation
;
upon
a
Backbond
granted
by
the
said
Mr.
John
,
bearing
that
the
said
Right
was
granted
partly
in
Trust
,
and
partly
for
surety
to
the
said
Mr.
John
for
Sums
due
for
the
time
to
him
by
Bonar
;
and
of
such
Sums
as
Smith
should
advance
to
Bonar
,
or
his
Creditors
:
And
that
the
said
Right
should
be
Redeemable
by
Bonar
or
his
Sister
,
if
she
should
survive
him
,
by
payment
of
the
foresaid
Sums
.
Thereafter
the
Doctor
did
grant
a
Bond
of
5000
Merks
to
the
said
Mr.
John
Smith
,
bearing
no
Relation
as
to
the
said
surety
:
And
bearing
,
as
to
the
conception
,
a
simple
Moveable
Bond
to
the
said
Mr.
John
his
Heirs
and
Executors
:
And
after
the
said
Mr.
John
Smiths
decease
,
there
being
a
Competition
betwixt
Doctor
Jamison
his
Heir
and
the
Executor
,
as
to
the
said
Sum
of
5000.
Merks
:
And
the
question
being
,
whether
it
should
be
thought
to
be
Heretable
,
in
respect
of
the
said
surety
;
or
Moveable
,
In
respect
of
the
conception
of
the
said
Bond.
The
Lords
did
consider
the
case
as
of
great
moment
,
as
to
the
consequence
and
Interest
of
the
People
;
and
upon
debate
at
the
Barr
in
praesentia
and
among
themselves
,
they
came
to
these
Resolutions
;
viz.
That
it
was
consistent
,
that
a
Sum
should
be
Moveable
,
and
yet
that
it
should
be
secured
by
an
Heretable
Suretie
,
as
in
the
case
of
bygone
Annualrents
due
upon
Infeftments
of
Annualrent
;
and
of
bygone
Feu-duties
or
Taxations
;
the
same
being
unquestionably
Moveable
ex
sua
natura
;
And
yet
there
being
a
real
surety
for
the
same
,
and
a
real
Action
for
poinding
the
Ground
even
competent
to
Executors
:
And
likewayes
in
the
case
of
Wadsets
loosed
by
Requisition
,
and
bearing
a
provision
,
that
,
notwithstanding
of
Requisition
,
the
real
Right
should
stand
unprejudged
until
payment
;
in
which
case
the
Sum
would
be
Movable
,
tho
still
secured
by
Infeftment
.
2.
That
,
as
to
these
qualities
of
Moveable
or
Heretable
,
in
relation
to
the
Interest
of
Succession
and
Question
betwixt
Heirs
and
Executors
,
the
design
of
the
Creditor
&
animus
,
was
to
be
considered
principally
:
And
if
Debts
,
either
by
the
conception
,
were
Heretable
ab
initio
,
or
an
Heretable
surety
taken
thereafter
for
Moveable
Debts
,
as
a
Wadset
or
Comprysing
;
It
was
to
be
presumed
,
that
the
Creditor
intended
to
alter
the
quality
of
the
Sums
,
and
that
they
should
belong
to
his
Heirs
:
but
if
Creditors
should
take
an
Heretable
surety
,
without
any
intention
to
alter
the
quality
of
the
Debt
,
or
that
the
same
should
ly
as
bonum
stabile
and
fixt
;
the
Debt
continues
still
Moveable
:
As
v.
g.
If
a
Creditor
,
having
done
exact
Diligence
,
should
take
a
Gift
of
Liferent
Escheat
,
or
Recognition
,
upon
a
Back-bond
,
that
he
should
be
satisfied
in
the
first
place
of
his
Debt
:
Or
if
in
a
Suspension
,
a
Disposition
of
the
Debitors
Estate
should
be
consigned
,
because
he
cannot
find
Caution
:
Or
in
the
case
of
Bonorums
,
a
Disposition
of
an
Heretable
Estate
should
be
made
in
favours
of
his
Creditors
:
Or
if
a
Debitor
should
Dispone
his
Estate
in
favours
of
a
confident
person
with
the
burden
of
his
Debts
:
In
these
and
the
like
Cases
,
Because
the
Creditor
does
not
intend
,
that
his
Money
should
ly
as
an
Heretable
Debt
,
but
upon
the
contrary
has
done
,
and
is
about
to
doe
all
possible
Diligence
,
for
recovery
of
the
same
,
the
Debt
continues
still
Movable
,
notwithstanding
of
the
said
accessory
and
extrinsick
surety
.
3.
Bonds
,
being
taken
after
a
general
Surety
in
the
Terms
foresaid
,
for
Debts
to
be
advanced
,
may
be
Moveable
;
notwithstanding
of
such
Surety
,
if
it
appear
that
the
Creditor
intended
it
should
be
such
:
As
if
such
supervenient
Bonds
should
be
taken
to
Executors
,
Excluding
Heirs
:
Especially
when
such
general
Sureties
,
for
Sums
as
are
to
be
afteradvanced
,
are
not
dispositive
,
but
by
way
of
Provision
containing
Back-bonds
,
and
not
of
the
Right
it self
,
viz.
That
the
Receiver
of
the
Right
should
not
be
lyable
to
denude
,
until
he
get
payment
of
the
Sums
that
should
be
due
to
him
at
any
time
thereafter
;
In
which
case
it
appears
,
that
he
has
not
a
positive
Right
,
and
Surety
for
the
said
Sum
,
but
an
Interest
and
exception
of
Retention
.
The
Lords
in
end
,
In
the
foresaid
Cause
,
Found
that
the
said
Bond
of
5000
M.
In
sua
far
as
it
should
be
made
appear
,
to
be
made
up
of
the
Sum
mentioned
in
the
Back-bond
,
that
was
due
to
Smith
at
that
time
,
should
belong
to
the
Heir
an
as
Heretable
Sum
;
In
respect
,
ab
initio
,
the
said
Surety
was
granted
for
the
same
:
But
,
as
to
the
residue
of
the
said
Sums
,
it
should
belong
to
the
Executors
as
Moveable
;
Seing
the
Defunct
had
exprest
his
Intention
that
it
should
be
such
,
by
the
taking
the
Bond
,
in
the
form
and
conception
of
a
Moveable
Bond.
Cuninghame
and
Kincaid
for
Wauch
,
alteri
Lockheart
and
McKenzie
.
Mr.
Thomas
Hay
Clerk
.
in
praesentia
.
D.
343.
Ogilvie
contra
Buckie
.
22.
February
.
1676.
IMprobation
being
proponed
against
a
Discharge
,
after
the
same
had
been
questioned
as
Null
,
because
it
wanted
the
Writers
Name
,
at
least
he
was
not
designed
.
The
Lords
Found
The
said
Write
Null
and
not
probative
,
unless
the
Pursuer
should
condescend
upon
a
Writer
Living
;
at
least
,
if
he
were
Dead
,
should
produce
Writes
writen
or
subscribed
by
him
,
to
the
effect
the
Pursuers
may
thereupon
have
the
means
of
indirect
probation
entier
.
Actor
.
Mckenzie
alter
.
Thoirs
.
D.
344.
Aerskine
contra
Rynolds
.
eod.
die
.
THE
Lords
sustained
a
Declarator
,
at
the
Instance
of
a
Creditor
,
to
hear
and
see
it
Found
,
That
certain
Sums
provided
by
a
Father
to
his
Children
,
after
the
contracting
of
the
Debt
,
should
be
lyable
and
subject
to
Execution
for
their
Debt
:
and
that
they
should
be
lyable
themselves
in
quantum
lucrati
,
tho
there
was
not
a
Reduction
intented
of
the
said
Rights
upon
the
Act
of
Parliament
1621.
which
the
Lords
were
moved
to
do
,
not
only
because
they
thought
,
that
the
said
Declarator
is
a
Reduction
upon
the
matter
,
but
the
rather
that
the
Summonds
were
offered
to
be
proven
by
the
Defenders
own
Oaths
:
and
in
effect
,
as
to
the
most
of
the
Sums
,
they
were
not
a
Subject
of
Reduction
;
seing
the
Debts
were
not
all
assigned
to
the
Children
;
but
the
Bonds
being
blank
in
the
Creditors
Name
,
the
Father
had
filled
them
up
in
the
Name
of
the
Children
:
and
as
to
such
as
were
assigned
,
for
the
most
part
,
they
were
renewed
in
the
Name
of
the
Children
;
the
former
Bonds
being
given
back
,
with
Assignations
to
the
same
.
Newbyth
Reporter
.
D.
345.
Hilton
contra
L.
Chynes
.
24.
February
1676.
THE
Lady
Cheynes
being
infeft
in
an
Annualrent
,
upon
a
Right
granted
by
her
Husband
:
Her
Seasin
was
questioned
upon
these
Grounds
:
1.
That
it
was
Null
,
in
sua
far
as
the
Baillie
and
the
Actorney
in
the
Seasin
were
one
Person
,
who
could
not
both
give
and
take
the
Seasin
.
And
2.
The
Provision
was
during
Marriage
,
and
after
the
Creditor
that
did
compeat
,
his
Debt
;
and
tho
it
could
be
sustained
,
where
there
was
no
Contract
of
Marriage
,
for
a
competent
Provision
;
yet
it
could
not
be
sustained
for
the
whole
Annualrent
,
being
exorbitant
;
her
Husbands
Estate
and
Debt
being
considered
.
The
Lords
,
In
respect
,
it
did
appear
evidently
,
that
it
was
a
mistake
of
the
Notar
,
that
the
Seasin
did
bear
the
same
Person
to
be
both
Baillie
and
Actorney
,
in
the
Clause
of
Tradition
;
And
seing
by
the
first
part
of
the
Seasin
,
it
was
clear
,
that
there
was
a
distinct
Actorney
,
who
did
present
the
Seasin
to
the
Baillie
;
Did
therefore
encline
to
sustain
the
Seasin
:
but
before
Answer
to
that
Point
,
they
ordained
the
Parties
to
be
heard
upon
the
said
other
Alledgance
:
and
the
Relict
to
condescend
upon
her
Tocher
and
the
Rent
of
the
Estate
:
and
the
Creditor
upon
the
Burdens
.
Newbyth
Reporter
.
D.
346.
Johnston
contra
Cullen
.
eod.
die
.
A
Tack
,
being
granted
by
a
Husband
to
another
Person
,
to
the
behoof
of
his
Wife
;
to
begin
at
the
first
Term
after
the
Husbands
decease
;
was
not
sustained
against
a
singular
Successor
:
because
the
said
Tack
was
but
a
Personal
Right
,
not
being
cled
with
Possession
:
and
the
entry
was
conferred
in
tempus
indebitum
,
to
begin
after
the
Husband
was
denuded
.
Glendoick
Reporter
.
Monro
Clerk
.
D.
347.
Johnston
contra
Orchardtoun
.
eod.
die
.
IN
a
Pursute
upon
a
Bond
of
Corroboration
,
It
was
Alledged
,
That
the
Principal
Bond
ought
to
be
produced
;
which
was
repelled
,
in
respect
,
the
maxim
non
creditur
referenti
,
nisi
constet
de
relato
,
holds
only
in
the
Case
,
where
there
is
only
a
naked
Relation
to
a
Write
,
and
not
when
the
Write
that
relates
thereto
doth
proceed
to
an
Obligement
thereupon
;
and
it
is
not
only
Relative
but
Dispositive
.
Glendoick
Reporter
.
Robert
Hamilton
Clerk
.
D.
348.
Burnet
contra
Swan
.
eod.
die
.
A
Seasin
within
Burgh
being
questioned
,
because
it
was
not
found
in
the
Books
,
was
sustained
;
In
respect
of
the
Act
of
Parliament
,
excepting
such
Seasins
from
necessity
of
Registration
;
it
being
to
be
presumed
,
that
the
Clerks
do
not
faill
to
registrate
the
same
,
and
if
they
do
not
book
them
,
it
ought
to
be
imputed
to
them
,
and
not
to
the
Party
.
Sir
David
Falconer
for
the
Seasin
.
Alteri
Seaton
.
Hay
Clerk
.
In
praesentia
.
D.
349.
_____
contra
_____
eod.
die
.
IN
a
Pursute
against
a
Minor
,
It
was
Alledged
,
Quod
non
tenetur
placitare
,
because
Minor
:
Whereupon
there
did
arise
two
Questions
,
viz.
1.
Whether
the
said
exception
,
being
a
Dilator
,
ought
to
be
verified
instanter
:
As
to
which
,
It
was
Found
by
the
Lords
,
That
Minority
,
being
in
Fact
,
could
not
be
verified
instanter
.
2.
It
being
replyed
,
That
the
Defender
was
Major
,
which
was
offered
to
be
proven
;
and
a
conjunct
Probation
being
desired
by
the
Defender
;
It
was
nevertheless
Found
by
the
Lords
,
That
the
alledgance
of
Minority
being
eleided
by
the
said
Reply
of
Majority
,
which
only
was
admitted
,
the
Pursuer
ought
to
be
allowed
to
prove
his
Reply
,
without
Conjunct
Probation
to
the
contrary
.
Sir
David
Falconer
Actor
.
alteri
_____
Hamilton
Clerk
.
In
praesentia
.
D.
350.
Rig
contra
Rig.
6
June
1676.
THE
Lords
Found
,
as
they
had
done
formerly
in
another
Case
,
that
where
a
person
of
a
near
Relation
stayes
for
any
considerable
time
in
Family
with
another
,
as
in
the
Case
in
question
a
Brother
with
a
Sister
;
and
both
are
Majores
and
of
that
age
that
they
may
agree
,
if
it
be
so
intended
by
either
,
that
the
one
should
be
considered
and
have
a
Fee
and
satisfaction
as
a
Servant
to
his
Sister
,
or
that
the
Sister
should
have
satisfaction
for
the
Aliment
and
Entertainment
of
her
Brother
;
if
they
make
no
such
Transaction
,
that
neither
the
Sister
can
claim
Aliment
,
nor
the
Brother
a
Fee
,
upon
pretence
that
he
did
serve
,
and
did
good
Offices
to
his
Sister
;
and
that
it
ought
to
be
thought
and
presumed
,
that
he
did
the
same
upon
account
of
his
Relation
,
for
his
Entertainment
:
and
that
she
did
entertain
him
in
contemplation
of
the
said
Relation
,
and
that
he
was
useful
.
Hay
Clerk
.
D.
351.
Pittarro
contra
the
Tennents
of
Redmyre
.
7.
June
1676.
THE
Abbot
of
Arbroth
,
by
an
Ancient
Charter
,
having
fewed
the
Miln
of
Conveth
,
in
these
Terms
,
cum
pertinen
cum
multuris
totius
parochiae
de
Conveth
:
The
Feuar
of
the
said
Miln
in
the
Year
1597.
did
obtain
a
Decreet
of
the
Lords
of
Session
,
against
some
of
the
Heretors
of
the
said
Parish
,
in
foro
as
to
some
of
the
Defenders
;
but
in
absence
as
to
others
,
and
in
special
as
to
the
Heretor
of
Redmyre
being
called
.
And
now
_____
Carnegie
Younger
of
Pittaro
,
having
pursued
,
for
abstracted
Multures
,
the
Heretors
and
Tennents
of
Redmyre
;
and
having
founded
both
upon
the
said
Charter
of
the
Miln
,
and
the
said
Decreet
;
It
was
Alledged
,
That
the
Defenders
Right
bears
no
Astriction
:
And
as
to
the
said
Charter
,
it
must
be
understood
of
the
Multures
belonging
to
the
Abbot
;
and
of
the
Lands
pertaining
to
,
or
holden
of
him
;
and
that
the
Lands
of
Redmyre
do
not
hold
of
the
Abbot
,
but
of
the
Laird
of
Drum
,
who
holds
the
same
of
the
King
:
and
that
the
Abbot
could
not
astrict
any
Land
but
his
own
:
and
as
to
the
said
Decreet
,
that
it
was
a
latent
Decreet
,
in
absence
against
the
Defenders
Author
;
and
that
notwithstanding
thereof
,
the
defender
and
his
Authors
,
had
been
in
Possession
of
Liberty
,
in
swa
far
as
,
tho
they
came
sometimes
to
the
Pursuers
Miln
,
being
nearest
and
most
convenient
,
and
the
Multure
being
alse
easie
as
at
any
other
Miln
;
yet
the
going
to
a
Miln
being
facultatis
,
wherein
Astriction
cannot
be
shown
,
they
had
used
and
were
in
Possession
of
the
said
Liberty
to
go
to
other
Milns
.
It
appeared
,
that
the
same
Defence
being
proponed
in
the
foresaid
Decreet
1597.
for
these
who
were
compearing
,
was
Repelled
;
In
respect
the
said
Charter
was
so
Ancient
,
and
was
so
expresly
of
the
Multures
of
the
hail
Parish
;
And
after
so
long
a
time
it
was
not
necessar
to
debate
the
Abbots
Power
to
astrict
the
said
whole
Parish
:
And
the
foresaid
Charter
does
bear
,
that
the
Abbot
did
give
to
the
Feuer
the
said
Miln
,
in
the
same
manner
,
and
alse
freely
as
one
Vmfridus
had
the
said
Miln
and
Multures
,
by
a
Grant
and
Right
from
K.
William
:
And
it
was
presumable
,
that
the
said
King
,
who
might
have
thirled
the
said
Lands
holden
of
himself
,
did
give
the
Miln
and
Multures
.
The
said
Decreet
likewayes
1597.
did
mention
the
Production
of
a
Retour
before
the
Sheriff
;
and
the
verdict
of
an
Inquest
concerning
the
said
Multures
,
The
Lords
having
among
themselves
debated
,
and
considered
,
that
the
said
Decreet
1597
,
tho
in
absence
was
a
valide
Decreet
;
whereby
the
Defenders
Author
is
decerned
,
in
all
time
coming
,
his
Tennents
,
Cottars
and
Successors
to
pay
the
Multure
thereinmentioned
:
And
that
the
said
Decreet
was
a
standing
Decreet
by
the
space
of
40
years
;
and
never
questioned
;
there
was
no
necessity
to
debate
upon
any
other
Grounds
,
than
that
the
Pursuer
had
thereby
a
Right
to
the
said
Multures
;
Seing
the
Defenders
did
not
deny
,
that
they
were
in
use
to
come
to
the
Miln
,
but
pretend
a
Liberty
and
use
to
go
likeways
to
other
Milns
:
And
it
cannot
be
said
,
that
he
had
the
said
Liberty
,
the
contrare
appearing
by
the
said
Decreet
which
never
was
questioned
,
and
now
cannot
be
questioned
being
prescrived
,
and
yet
the
Lords
Assoilyied
fra
Bygones
and
Services
,
not
contained
in
the
said
Decreet
.
It
being
Alledged
that
the
Farm
should
not
be
thirled
:
The
Lords
Found
,
That
the
growing
Corns
being
Astricted
by
the
said
Decreet
,
there
ought
to
be
an
exception
,
but
of
Teind
and
Seed
:
And
that
the
Tennents
were
Lyable
for
such
Corns
as
belonged
to
themselves
;
and
the
Master
for
his
Farm
.
Actores
Sinclair
and
Lermonth
&c.
for
Pittarro
alteri
for
the
Defender
Lockheart
and
Falconer
.
Monro
Clerk
.
In
praesentia
.
D.
352.
Stenhouse
contra
The
Heretors
of
Tweedmoor
.
eod.
die
.
THE
Laird
of
Stenhouse
,
his
Lands
being
designed
for
a
Gleb
;
pursued
some
of
the
Heretors
within
the
Parish
for
his
relief
,
conform
to
the
Act
of
Parliament
:
In
which
case
,
in
respect
the
pursute
was
by
the
space
of
8.
or
9.
years
after
the
Designation
;
And
the
Heretors
were
in
bona
fide
,
and
did
possess
their
own
Lands
,
and
had
made
fructus
suos
;
The
Lords
Found
,
That
the
Defenders
were
not
Lyable
to
pay
the
Annualrent
for
the
Sum
decerned
from
the
time
of
the
Designation
;
Seing
usurae
debentur
only
ex
pacto
vel
mora
.
Albeit
it
may
appear
,
That
that
Relief
that
is
due
ex
lege
is
at
least
alse
effectual
,
as
if
it
were
ex
pacto
:
And
the
very
Notion
of
Relief
imports
that
the
Party
should
be
relieved
of
all
Damnage
sustained
by
him
:
And
the
Pursuer
was
prejudged
,
not
only
by
the
want
of
the
value
of
what
he
was
to
be
Relieved
of
,
but
of
the
Interest
of
it
.
Gibson
Clerk
.
D.
353.
Ramsay
contra
Zeaman
.
7.
June
.
1676.
DOctor
Zeaman
,
By
Contract
of
Marriage
,
betwixt
him
and
Margaret
Ramsay
,
was
obliged
to
employ
10000
lib.
to
himself
,
and
her
in
Liferent
,
and
the
Heirs
of
the
Marriage
:
And
was
also
obliged
to
employ
other
20000
lib.
to
himself
,
and
to
the
Heirs
of
the
Marriage
;
with
a
Provision
,
that
he
should
have
power
to
burden
the
said
Heirs
of
the
Marriage
with
an
Additional
Joynture
to
his
Wife
,
and
the
provisions
of
his
other
Children
;
at
any
time
etiam
in
articulo
mortis
:
Which
Joynture
and
Provision
is
accepted
by
the
said
Margaret
,
in
satisfaction
of
what
else
she
could
claim
of
Terce
or
Moveables
.
And
thereafter
the
Doctor
in
his
Testament
,
having
named
his
Son
and
appearand
Heir
,
to
be
his
Executor
and
universal
Legator
;
and
having
left
in
Legacy
to
his
Wife
the
Annualrent
of
3000
Merks
by
and
attour
her
Joynture
;
and
diverse
Provisions
to
his
other
Children
,
and
Legacies
to
other
persons
:
His
Relict
and
her
present
Husband
pursued
her
own
Son
,
as
Executor
to
his
Father
,
for
payment
of
the
said
Legacy
left
to
her
:
And
it
being
Alledged
,
That
the
Inventar
of
the
Testament
would
not
extend
to
satisfy
all
the
Legacies
;
and
that
there
ought
to
be
a
Defalcation
proportionably
:
It
was
Answered
,
That
she
was
not
to
be
considered
as
an
ordinar
Legator
,
but
in
effect
was
a
Creditor
;
In
respect
of
the
said
Provision
and
Power
reserved
to
the
Doctor
,
as
said
is
:
And
that
he
had
used
the
said
power
and
faculty
.
The
Lords
Found
,
That
the
said
Addition
being
left
to
her
in
Legacy
;
she
was
in
no
better
case
than
the
other
Legators
;
and
had
no
preference
before
them
out
of
the
Executry
.
Yet
it
is
thought
,
That
if
there
be
not
so
much
of
the
Executry
as
to
satisfy
the
Relict
her
Legacy
;
the
Heir
will
be
lyable
for
what
she
wants
;
Seing
,
by
the
said
Provision
,
the
Heirs
of
the
Marriage
are
burdened
with
what
he
should
add
to
her
Joynture
etiam
in
articulo
mortis
:
And
albeit
nemo
potest
facere
ne
leges
habeant
locum
in
suo
Testamento
,
and
no
person
at
any
time
can
reserve
a
Power
to
burden
his
Heirs
,
at
such
a
time
as
in
Law
he
is
not
in
legitima
potestate
;
yet
when
any
person
gives
any
thing
,
or
makes
a
Provision
in
favours
of
any
other
person
,
or
of
his
Heirs
of
Provision
;
he
may
give
and
qualify
the
same
sub
modo
,
and
with
what
burden
he
pleases
;
and
therefore
the
Defender
,
being
not
only
Executor
,
but
the
only
Heir
of
the
Marriage
,
will
be
Lyable
by
the
said
Provision
to
the
said
Addition
and
Provision
in
favours
of
his
Wife
and
Children
,
albeit
left
in
Lecto
:
And
he
cannot
frustrate
the
same
,
upon
pretence
that
he
will
not
serve
himself
Heir
of
Provision
,
but
Heir
of
Line
;
seing
he
is
the
same
person
,
and
is
both
Heir
of
Line
,
and
Heir
of
Provision
:
And
if
need
bees
,
the
Relict
and
Children
,
as
Creditors
by
the
said
Provision
contained
in
the
Contract
of
Marriage
and
in
the
Testament
,
may
get
Decrees
against
him
as
charged
to
enter
Heir
of
Provision
;
and
if
he
renounce
may
adjudge
the
30000
lib.
provided
to
the
Heirs
of
the
Marriage
.
Actor
Sinclair
alteri
McKenze
and
Zeaman
.
Gibson
Clerk
.
In
praesentia
.
D.
354.
Irving
contra
Forbes
.
8.
June
.
1676.
IN
the
case
,
Irving
contra
Forbes
:
It
was
debated
among
the
Lords
,
whether
a
person
should
be
Lyable
,
as
vitious
Intrometter
,
notwithstanding
that
it
was
Replyed
,
that
he
was
confirmed
Executor
:
And
Answered
,
That
as
to
Superintromission
,
beyond
what
was
confirmed
,
he
was
Lyable
as
Intrometter
.
It
was
asserted
by
the
President
and
some
others
,
That
it
was
the
custom
and
daily
practique
,
That
notwithstanding
of
Superintromission
even
before
the
Confirmation
,
the
Executors
ought
not
to
be
Lyable
,
but
secundum
vires
;
and
that
a
Dative
ad
omissa
may
be
taken
;
yet
others
were
positive
of
the
Opinion
,
that
a
Person
,
Intrometting
with
more
nor
is
confirmed
,
was
Lyable
as
vitious
Intrometter
;
Seing
it
could
not
be
denyed
,
but
he
was
Intrometter
;
and
he
could
not
plead
,
nor
pretend
to
be
Executor
,
as
to
what
was
not
confirmed
;
and
if
there
were
no
Confirmation
he
would
without
question
be
lyable
as
Intrometter
;
and
the
Confirmation
ought
not
to
put
him
in
better
case
;
seing
,
notwithstanding
of
the
same
,
as
to
Superintromission
,
he
is
not
only
Intrometter
without
warrand
and
so
vitious
,
but
is
perjured
;
having
made
Faith
,
the
time
of
the
Confirmation
,
that
nothing
was
omitted
;
And
it
is
hard
that
a
custom
,
contrare
to
the
Principles
of
Law
,
and
to
the
Opinion
of
Hope
and
other
Lawyers
,
should
be
obtruded
;
unless
,
upon
a
Debate
in
praesentia
,
there
be
a
Decision
,
which
may
be
the
Foundation
of
a
Custom
.
D.
355.
Burnet
contra
Gib
.
9.
June
.
1676.
THE
Lords
,
in
a
Spuilyie
of
Teinds
,
Pursued
at
the
instance
of
Alexander
Burnet
contra
William
Gib
,
Found
,
That
the
Defender
,
or
his
Author
having
enclosed
a
peice
of
Marish
Ground
to
be
a
Yard
;
and
having
made
no
other
use
of
the
same
since
,
but
for
Carrets
and
Roots
;
he
was
not
Lyable
to
the
Bishop
Titular
,
or
his
Tacksman
of
the
Parsonage
Teinds
,
for
payment
either
of
the
value
of
the
Parsonage
Teind
,
or
for
the
Viccarage
Teind
;
which
was
found
by
plurality
of
one
or
two
Voices
.
These
that
were
for
the
Decision
did
found
their
Opinion
upon
these
Grounds
,
viz.
1.
That
the
Heretor
potest
uti
Jure
suo
;
and
that
the
Titular
has
no
tye
,
nor
Servitude
upon
him
;
but
he
may
either
Labour
,
or
not
his
own
Ground
;
If
he
do
it
not
in
fraudem
or
aemulationem
,
of
purpose
to
prejudge
the
Titular
.
2.
That
the
Defender
,
in
order
to
his
own
Interest
,
having
thought
fit
to
enclose
his
Ground
,
and
to
make
use
of
it
for
Carrets
and
Roots
,
for
which
,
by
the
custom
of
the
Country
,
Teind
is
not
due
,
neither
to
Parson
,
nor
Viccar
;
the
Defender
is
not
Lyable
for
Teind
;
Seing
Viccarage
Teind
,
and
the
payment
of
it
is
regulate
,
according
to
Custom
.
It
was
urged
by
the
Lords
that
were
of
an
other
Opinion
,
That
the
Titular
of
the
Teinds
had
an
interesse
partiarium
as
to
Teinds
;
so
that
albeit
the
Heretor
may
uti
Jure
suo
,
it
is
to
be
understood
,
that
he
should
use
the
same
sine
injuria
,
without
prejudice
of
the
Titular
:
And
if
,
of
purpose
to
prejudge
the
Titular
,
he
should
not
Labour
but
suffer
his
Lands
to
ly
waste
,
he
will
be
Lyable
to
the
Titular
for
the
value
of
the
Teind
that
was
formerly
payable
,
or
might
have
been
gotten
;
As
was
Found
in
the
case
of
the
Laird
of
Polwart
against
the
Minister
of
Polwart
.
For
,
If
he
should
inclose
all
or
a
considerable
part
of
his
Ground
that
was
arable
Land
,
and
whereof
the
Teind
was
either
payed
to
,
or
led
by
the
Titular
,
it
were
hard
that
it
should
be
in
his
Power
to
prejudge
the
Parson
to
the
advantage
of
the
Viccar
;
But
in
that
case
the
small
Teinds
would
be
considered
,
as
great
and
parsonage
Teinds
,
quia
surrogatum
sapit
naturam
surrogati
:
And
far
less
,
it
ought
to
be
in
the
Power
of
an
Heretor
to
prejudge
altogether
the
Titular
or
the
Minister
,
who
is
provided
out
of
the
Teinds
,
as
in
the
case
in
question
,
by
encloseing
Ground
formerly
arable
,
and
making
that
use
of
it
,
that
neither
the
Titular
nor
Parson
can
have
any
benefite
of
Teind
;
It
being
unjust
,
that
the
Titular
should
be
prejudged
,
and
that
the
Heretor
should
advantage
himself
;
and
by
his
own
Deed
should
free
himself
of
Teind
:
And
albeit
,
by
the
custom
in
some
places
,
Teind
is
not
payed
for
Carrets
and
Roots
in
Yards
,
the
same
being
looked
upon
as
inconsiderable
;
and
the
Bounds
,
where
the
same
are
Sowen
or
planted
,
being
small
parcels
of
Ground
,
for
the
private
use
of
the
Heretors
own
Family
;
yet
when
a
considerable
Tract
of
Ground
is
enclosed
and
parked
,
so
that
the
Heretor
has
the
same
if
not
more
profite
than
he
has
of
his
other
Laboured
Ground
,
by
selling
the
Roots
and
Fruits
of
the
same
,
as
about
Edinburgh
,
or
other
great
Cities
where
great
parcels
of
Corn-Land
are
taken
in
,
and
enclosed
to
the
use
foresaid
;
as
by
the
Common
Law
Teind
is
payable
,
even
for
such
Fruits
and
Profits
;
So
by
our
Law
,
the
Titular
ought
not
to
be
prejudged
:
And
the
custom
,
that
Teind
is
not
payable
,
for
Roots
and
such
like
,
ought
to
be
understood
of
such
as
grow
in
Yeards
about
Houses
,
as
said
is
,
for
the
proper
and
domestick
use
of
Heretor
or
Tennent
;
but
not
where
a
great
parcel
of
Ground
is
taken
in
,
and
destinate
for
profite
and
advantage
,
by
Soweing
,
or
Setting
,
and
Selling
Herbs
and
Roots
.
D.
356.
Nairn
contra
Scrymger
.
13.
June
1676.
IN
a
Suspension
,
at
the
instance
of
a
Person
who
had
bought
Lands
,
upon
that
Reason
,
that
the
Seller
who
charged
for
the
Price
was
obliged
by
the
Contract
to
give
him
a
perfect
Progress
,
and
that
the
Progress
exhibited
to
him
was
defective
,
In
swa
far
as
,
the
Lands
did
hold
of
the
Bishop
,
and
the
Original
Right
was
not
produced
,
but
only
a
Charter
of
Confirmation
in
Anno
1611
;
and
the
Charter
confirmed
was
not
produced
;
and
the
Progress
,
since
the
Charter
of
Confirmation
,
was
but
late
;
and
some
of
the
Charters
had
no
Seasin
following
upon
the
same
;
and
some
Seasins
wanted
the
Warrand
of
Charters
and
Precepts
:
And
albeit
it
was
alledged
,
that
the
Charters
would
be
found
Registrate
in
the
Bishops
Register
;
that
defect
was
not
supplyed
thereby
;
seing
the
Bishops
Register
was
not
Authentick
;
and
ought
to
have
no
other
respect
than
a
Register
of
any
other
Lord
or
Baron
,
of
the
Writes
granted
by
them
.
The
Lords
Found
,
That
,
tho
much
may
be
said
upon
the
Progress
foresaid
,
to
defend
against
any
Person
that
will
pretend
Right
to
the
Lands
;
and
to
found
Prescription
upon
them
:
A
Buyer
nevertheless
was
not
Obliged
to
accept
and
acquiesce
to
the
same
as
a
sufficient
Progress
;
seing
the
Buyar
ought
to
have
a
Right
;
and
Prescription
with
40
Years
Possession
doth
not
amount
to
a
Right
,
and
there
may
be
Replyes
upon
Interruption
:
and
at
the
best
,
Prescription
is
not
a
Right
but
exceptio
temporis
.
But
the
Lords
did
allow
,
to
the
Charger
,
a
time
for
making
out
a
better
Progress
:
and
Found
,
That
the
Suspender
could
not
be
forced
to
acquiesce
in
absolute
Warrandice
,
which
was
offered
in
Supplement
of
the
Progress
;
In
respect
the
same
is
only
the
Ground
of
a
Personal
Action
,
and
may
become
ineffectual
;
if
the
Person
,
obliged
to
Warrand
,
should
become
insolvent
.
Actor
Falconer
.
alteri
Stewart
,
&c.
Gibson
Clerk
.
In
praesentia
.
D.
357.
Cornelius
Neilson
contra
_____
14.
June
1676.
COrnelius
Neilson
one
of
the
present
Baillies
of
Edinburgh
,
having
had
notice
that
a
Privateer
had
a
Ship
taken
by
him
lying
at
Stonehyve
,
fraughted
with
Dails
and
other
Timber
,
Did
bargain
with
him
for
a
Parcel
of
Dails
and
Trees
to
the
value
of
200
lib.
sterl
;
And
the
said
person
,
with
whom
he
had
bargained
,
being
found
thereafter
to
be
a
Pirate
,
being
execute
and
hanged
at
London
as
a
Pirate
;
And
the
said
Ship
being
found
,
with
the
Cargo
of
it
,
to
be
a
free
Ship
belonging
to
His
Majesties
Allyes
,
and
unjustly
taken
by
a
Pirate
;
Yet
the
said
Cornelius
had
the
Confidence
to
intent
a
Pursute
against
the
Owners
and
their
Factor
,
to
hear
and
see
it
Found
and
Declared
,
that
he
had
utiliter
,
in
respect
of
their
Interest
,
made
the
said
Bargain
;
seing
otherways
the
Pirate
might
and
would
have
carried
away
the
Ship
and
Cargo
;
or
otherways
,
not
having
men
in
Company
enough
to
navigate
both
his
own
and
the
said
Ship
,
he
might
or
would
have
burnt
and
destroyed
the
same
;
and
the
Owners
ought
to
be
lyable
to
refound
to
him
what
he
had
given
,
for
the
said
Parcel
of
Dails
,
and
some
Anchors
and
Cables
:
And
in
the
dispute
,
the
said
Cornelius
Procurators
did
not
stand
to
hint
and
insinuate
,
that
he
was
not
without
suspition
and
jealousie
,
that
the
said
Person
was
a
Pirate
the
time
that
he
transacted
with
him
;
and
that
the
said
Transaction
was
made
upon
a
principle
of
Generosity
(
as
they
called
it
)
and
Humaanity
,
in
behalf
and
for
the
Advantage
of
the
Owners
.
It
was
Alledged
for
the
Defenders
,
That
the
Ship
and
Goods
being
theirs
,
they
have
rei
vindicatio
of
the
same
,
and
may
claim
and
recover
the
Ship
and
Goods
,
where
ever
they
are
;
and
that
Pirats
are
of
all
Theives
the
greatest
;
and
res
furtiva
non
potest
usucapi
,
and
is
extra
commercium
:
And
by
the
Law
,
even
when
Persons
are
in
bona
side
,
and
do
buy
stollen
Goods
,
and
could
not
probably
know
whether
they
were
stollen
,
yet
the
Owners
may
claim
the
same
,
and
will
not
be
lyable
to
refound
the
Price
;
but
in
this
Case
the
Pursuer
cannot
in
the
least
pretend
,
that
he
was
in
bona
fide
;
seing
by
the
Law
of
all
Nations
,
when
Goods
or
Ships
are
taken
via
facti
,
by
Privateers
or
others
,
they
cannot
break
Bulk
,
or
dispose
upon
Ship
or
Cargo
,
or
any
part
thereof
,
and
if
they
do
,
Law
looks
upon
them
as
Pirates
;
and
these
who
do
buy
,
or
get
any
of
such
Goods
from
them
as
Receptatores
.
And
seing
the
Pursuer
doth
acknowledge
that
he
had
suspition
that
the
seller
was
a
Pirate
,
he
was
in
pessima
fide
to
have
any
dealing
with
him
:
And
he
cannot
pretend
he
was
negotiorum
gestor
,
seing
negotiorum
gestio
is
only
in
the
case
,
where
a
Friend
,
in
absence
of
the
Party
concerned
,
does
him
a
good
Office
,
eo
animo
,
and
upon
no
other
account
,
but
that
his
Friend
should
suffer
no
prejudice
:
and
upon
the
matter
negotiorum
gestor
,
so
circumstantiate
,
contrahit
,
or
quasi
contrahit
with
the
Person
cujus
negotium
gerit
,
which
cannot
be
said
in
this
case
;
seing
the
Owners
were
altogether
unknown
to
the
Pursuer
,
not
only
as
to
their
Person
but
as
to
their
Nation
:
And
the
Pretences
foresaid
of
Humanity
and
Generosity
are
not
presumable
,
the
Pursuer
being
a
Merchant
,
and
who
is
known
to
be
under
the
Character
of
a
person
apt
enough
to
take
the
Occasion
of
advantageous
Bargains
;
and
having
bought
the
sa
d
Goods
at
an
easy
rate
and
great
undervalue
,
and
it
being
evident
,
that
he
did
intend
only
his
own
interest
,
and
not
that
of
the
Owners
,
in
swa
far
as
,
he
did
not
buy
the
haill
Ship
and
Cargo
per
aversionem
,
but
only
the
parcel
foresaid
;
And
it
appears
by
a
Commission
produced
,
that
he
transacted
so
with
the
Pirate
,
that
the
Ship
was
consigned
in
the
hands
of
the
persons
thereinmentioned
,
to
the
effect
he
might
have
alse
many
Dails
and
Timber
at
the
low
rate
he
had
agreed
for
,
as
would
extend
to
the
said
Sum
of
200
lib.
starl
.
and
the
superplus
should
be
compted
for
,
not
to
the
Owners
,
but
to
the
Pirate
:
And
when
the
Ship
was
brought
ashoar
,
he
did
not
give
notice
to
any
Magistrates
,
that
it
should
be
seised
upon
to
be
forthcoming
to
these
who
should
have
Interest
,
there
being
ground
of
suspition
,
that
the
said
person
was
a
Pirate
:
And
as
to
the
Pretence
and
Citations
adduced
,
that
etiam
malae
fidei
possessores
have
necessarias
impensas
allowed
to
them
;
That
is
only
in
the
case
of
Expences
upon
ruinous
Houses
,
which
otherways
would
perish
,
being
debursed
by
a
Person
that
was
in
possession
;
and
without
which
the
House
could
not
be
preserved
from
ruine
,
and
in
other
cases
of
the
like
nature
:
but
not
in
the
case
of
Thieves
,
Pirats
and
Resetters
,
who
cannot
pretend
to
have
Repetition
of
the
Price
payed
by
them
;
the
same
not
being
impensae
but
pretium
.
Tho
some
of
the
Lords
were
of
Opinion
,
That
there
was
no
Foundation
for
the
said
Pursute
;
and
that
there
was
rather
Ground
to
Censure
the
Pursuer
as
a
Receptator
;
that
such
practices
should
have
no
Encouragement
:
Yet
others
being
of
Opinion
,
that
the
Pursuer
was
favourable
,
having
preserved
the
said
parcel
;
and
a
benefite
arising
to
the
Owners
by
his
Transaction
;
The
Lords
Recommended
to
the
Parties
to
settle
:
Actores
Cuninghame
,
Dalrymple
,
&
Falconer
,
alteri
Lockheart
and
McKenzie
.
In
praesentia
.
D.
358.
Doctor
Frazer
contra
Hog
.
16.
June
1676.
IN
anno
1593.
Contractu
Permutationis
seu
Excambii
(
ut
loquimur
)
celebrato
inter
Georgium
Comitem
Mariscallum
&
Menonem
Hog
de
Blaridryn
;
Quia
dictus
Menon
dederat
&
disposuerat
dicto
Comiti
quasdam
terras
villae
Piscatorum
vulgo
of
the
Fishertoun
de
Peterhead
;
Et
villa
de
Peterhead
erecta
fuerat
in
Burgum
Baroniae
;
adeo
ut
terris
istis
dicti
Menonis
commode
Comes
carere
nequiret
:
Et
quia
dictus
Menon
habebat
Jus
ususfructus
&
Locationem
ad
longum
tempus
terrarum
de
Blairidryn
,
Ideo
dictus
Comes
disposuerat
dicto
Menoni
&
suis
haeredibus
praedictas
terras
de
Blairidryn
;
sed
redimendas
a
dicto
Comite
&
suis
successoribus
,
solutione
trium
millium
mercarum
&
locatione
dictarum
terrarum
in
Annos
novemdecem
post
Redemptionem
;
pro
mercede
sedecem
librarum
singulis
Annis
pro
dictis
terris
pendi
solita
;
ut
in
Contractu
asseritur
:
Et
pro
implemento
dicti
Contractus
,
Charta
a
dicto
Comite
&
filio
ejas
concessa
in
anno
1617.
dictus
Menon
investitus
&
ejus
haeredes
,
dictas
terras
possederant
,
donec
Dominus
Alexander
Frazer
Archiatreus
Regius
,
acquisito
Jure
Reversionis
seu
Retractus
in
dicto
contractu
&
Investitura
contento
,
Jacobo
Hog
nepote
dicti
Menonis
praemonito
(
ut
moris
est
)
ut
dictam
summam
reciperet
,
&
praedictas
terras
revenderet
,
Actione
declaratoria
dictas
terras
vendicabat
Jure
Retractus
,
rite
ut
asserebat
redemptas
.
Excipiebat
Reus
Retractum
seu
Pactum
de
retrovendendo
apud
nos
stricti
Juris
esse
&
specifice
implendum
;
eo
autem
pacto
cantum
te●ras
dictas
redimendas
non
solum
solutione
dictae
summae
,
sed
adjectum
eas
esse
relocandas
in
tempus
praedictum
;
Locationem
autem
seu
Assedationem
nec
oblatam
nec
depositam
.
Replicabat
Actor
Pactum
illud
de
Relocatione
injustum
&
usurarium
&
illicitum
esse
;
terras
siquidem
ejus
esse
valoris
ut
merces
Relocationis
tantum
non
imaginaria
sit
;
Colonum
enim
pro
iis
pendere
aut
pendere
posse
quotannis
sexcentas
minas
:
Et
si
Reo
non
solum
dicta
summa
3000
minarum
,
sed
etiam
locatio
adeo
diuturna
&
pro
mercede
adeo
exili
danda
foret
;
specie
Locationis
ipsam
Proprietatem
vel
ejus
Pretium
consecuturum
:
Adhaec
,
Constitutione
Jacobi
2
di.
Parl.
6.
cap.
19.
Statutum
esse
,
in
Contractibus
Hypothecariis
,
quibus
terrae
alienantur
sub
pacto
de
Retrovendendo
,
&
Relocando
post
Redemptionem
;
Conditiones
&
Ass●dationes
istas
haud
servandas
,
terris
redemptis
,
nisi
convenerit
de
justa
mercede
&
pensione
,
saltem
haud
multum
citra
justam
Firmam
,
ut
loquimur
.
Resp●ndebat
Reus
multum
interesse
inter
Contractus
Mutui
&
alios
puta
V●na●ionis
&
Permutationis
&c.
Ubi
enim
pecunia
foeneratur
&
creditu●
,
usurariae
stipulationes
illicitae
sunt
;
&
pacta
alioquin
licita
reprobantur
,
ut
pacta
Legis
Commissoriae
;
ea
ratione
,
quod
debitori
obaerato
&
i●opi
Creditor
nihil
non
exprimet
;
ea
autem
ratio
in
aliis
Contractibus
cessat
;
&
in
hoc
casu
;
nec
enim
in
eo
mutuum
,
&
consequenter
nec
usura
nec
pactum
usurarium
nec
Debitor
inops
,
sed
Contractus
Permutationis
inter
Rei
avum
,
virum
haud
locupletem
&
Comitem
praepotentem
,
cui
terras
suas
ut
sibi
si
non
necessarias
,
saltem
commodas
flagitanti
,
nedum
leges
inquiores
dare
:
Constitutionem
autem
praedictam
Jacobi
2di
.
in
Contractibus
pignoratitiis
locum
habere
,
ubi
terrae
Creditori
impignorantur
,
ut
ex
verbis
Constitutionis
liquet
(
when
Lands
are
Wadset
.
)
In
casu
praedicto
nec
Creditum
nec
Pignus
esse
;
avum
suum
nec
pecuniam
Comiti
dedisse
,
nec
repetere
posse
;
cum
dicto
contractui
Clausula
Requisitionis
(
ut
loquimur
)
non
insit
;
nec
Reus
praedictam
summam
petere
possit
;
nec
Comes
teneatur
persolvere
:
avum
suum
permutasse
terras
suas
cum
terris
de
Blairidryn
,
ea
lege
&
satis
iniqua
,
ut
Reo
haud
liceat
terras
avitas
reluere
;
Cum
penes
Actorem
extraneum
&
singularem
successorem
facultas
sit
redimendi
,
si
ea
uti
velit
conditioni
parendum
;
terras
tempore
Permutationis
incultas
&
forte
steriles
fuisse
,
in
Regione
saltuosa
&
montana
;
si
sua
&
parentum
industria
excultae
&
meliores
sunt
,
id
in
suum
detrimentum
haud
retroquendum
.
Quaestio
ista
,
Domino
de
Castlehill
referente
,
in
domum
interiorem
introducta
;
&
inter
Dominos
disceptata
;
Cum
de
ea
sententiis
variatum
,
visa
est
altiorem
indaginem
requirere
;
&
,
coram
ipsis
,
Partibus
&
Patronis
vocatis
,
audienda
.
Actores
Lockheart
&c.
alteri
Cuninghame
.
D.
359.
Mitchel
contra
Litlejohn
.
20.
June
.
1676.
MR.
Litlejohn
Tailȝiour
,
by
Contract
of
Marriage
with
his
first
Wife
Clerk
,
was
obliged
to
provide
whatsoever
Lands
,
Money
or
other
Moveable
Goods
he
should
acquire
during
the
Marriage
,
to
himself
and
to
the
Heirs
of
the
Marriage
:
And
thereafter
having
Marryed
a
Second
Wife
_____
Mitchel
,
and
having
provided
her
to
an
Annualrent
,
he
did
grant
a
Right
to
her
a
little
before
his
decease
,
when
he
was
on
Death-Bed
as
was
Alledged
,
whereby
he
declared
,
that
,
in
consideration
,
that
his
Wife
had
been
very
dutiful
,
and
it
was
not
reasonable
,
that
,
if
the
Marriage
should
dissolve
before
Year
and
Day
,
she
should
want
altogether
the
benefite
of
her
Joynture
;
therefore
he
wills
,
that
tho
he
should
decease
before
Year
and
Day
,
she
should
have
a
Right
to
the
said
Annualrent
,
as
it
is
restricted
by
the
said
Write
to
less
than
she
was
provided
to
:
And
that
the
Contract
of
Marriage
and
Infeftment
thereupon
should
be
effectual
pro
tanto
in
the
case
foresaid
;
And
is
obliged
to
pay
the
said
Annuity
.
This
Deed
being
questioned
upon
these
Grounds
.
1.
That
he
could
not
do
any
Deed
in
prejudice
of
his
Heirs
on
Dead-bed
.
2.
That
the
Conquest
being
provided
(
as
said
is
)
to
Heirs
of
his
first
Marriage
,
both
as
to
Lands
and
Moveables
,
he
could
not
by
the
foresaid
Deed
,
being
a
meer
Donation
,
prejudge
the
Children
of
the
first
Marriage
.
Upon
occasion
of
the
said
question
,
the
Lords
thought
fit
to
consider
,
what
the
import
of
such
Clauses
of
Conquest
should
be
understood
to
be
;
the
same
being
so
frequent
;
And
there
being
hinc
inde
Angustiae
,
and
difficulties
on
both
hands
;
seing
,
upon
the
one
,
it
may
appear
hard
,
that
a
Husband
should
be
restricted
by
such
Clauses
too
much
;
and
on
the
other
hand
,
that
such
Clauses
should
be
ineffectual
,
and
in
the
power
of
the
Husband
to
evacuate
them
;
seing
all
obligements
ought
to
be
understood
cum
effectu
&
ut
operentur
:
And
in
end
it
was
Resolved
,
that
the
said
Clause
of
Conquest
,
being
conceived
in
the
terms
foresaid
,
in
favours
of
the
Heirs
of
the
Marriage
;
the
Husband
doth
not
cease
to
be
Fiar
,
so
that
for
Onerous
Causes
,
he
may
dispose
of
whatsoever
he
acquires
;
and
the
Heirs
of
the
Marriage
will
be
lyable
to
his
Deeds
and
Obligements
thereanent
.
2.
It
was
thought
,
That
the
Husband
could
do
no
Deed
in
fraudem
of
the
said
Clauses
,
and
of
purpose
to
frustrate
the
same
.
3.
Tho
some
of
the
Lords
were
of
the
Opinion
,
that
the
Husband
could
not
dispose
of
the
Conquest
but
for
Onerous
Causes
,
yet
others
thought
,
that
he
might
dispose
thereof
,
without
fraud
and
for
Rational
Causes
and
Considerations
;
as
in
the
case
in
question
,
upon
the
considerations
abovementioned
,
in
favours
of
a
dutiful
Wife
;
And
it
was
so
sound
by
the
Major
part
;
albeit
others
thought
indeed
,
that
the
Husband
,
notwithstanding
of
the
foresaid
Clauses
,
might
provide
a
second
Wife
and
his
Children
by
her
,
out
of
the
Conquest
dureing
the
first
Marriage
;
if
he
had
no
other
Estate
,
and
the
Provisions
be
competent
;
But
that
in
the
case
in
question
,
the
Deed
foresaid
was
a
Donation
,
which
the
Children
of
the
first
Marriage
,
being
Creditors
by
the
said
Clause
of
Conquest
,
might
question
.
But
the
Lords
Found
,
That
if
the
said
Deed
was
on
Death-bed
,
the
Defunct
having
not
only
granted
an
Heretable
Right
,
but
having
obliged
himself
,
his
Heirs
and
Executors
,
to
pay
the
said
Sum
,
his
Executry
and
Deads
part
would
be
lyable
to
the
said
Obligement
;
even
as
to
Moveables
acquired
dureing
the
first
Marriage
;
which
may
appear
not
to
be
without
difficulty
;
seing
,
as
to
the
Conquest
,
during
the
first
Marriage
,
there
could
be
no
Deads-part
;
the
same
being
provided
to
the
Children
of
the
first
Marriage
,
as
said
is
.
Tho
the
Heir
of
the
Marriage
may
renounce
to
be
General
Heir
,
and
may
take
a
course
to
establish
the
Conquest
,
either
in
his
own
,
or
in
the
person
of
an
Assigney
to
his
behoof
;
and
so
not
be
lyable
to
the
Defuncts
Obligement
,
without
an
Onerous
Cause
.
Yet
it
is
to
be
considered
,
whether
,
if
they
should
be
served
Heirs
of
the
Marriage
,
they
would
be
lyable
to
the
same
;
seing
all
Heirs
represent
the
Defunct
suo
ordine
,
and
are
eadem
per●ona
?
Or
if
they
be
lyable
only
to
the
Defuncts
Deeds
and
Obligements
for
Onerous
Causes
?
Item
,
If
such
Provisions
be
not
in
favours
of
the
Heirs
of
the
Marriage
,
but
only
of
Bairns
;
Whether
the
Bairns
will
be
lyable
to
the
Defuncts
Debts
?
And
if
all
the
Bairns
will
be
lyable
to
the
same
as
Heirs
of
Provision
?
It
is
thought
,
If
Infeftment
follow
in
favours
of
the
Father
and
the
Bairns
of
the
Marriage
,
they
must
be
Heirs
of
provision
to
him
:
and
that
all
the
Bairns
(
if
it
be
not
otherways
provided
)
will
be
Heirs
of
Provision
.
But
these
Points
did
not
fall
under
debate
.
Actores
Cuningham
,
alteri
Dal●ymple
.
Hamilton
Clerk
.
In
praesentia
.
D.
360.
Galbraith
contra
Lesly
.
eod.
die
.
THE
Lords
Found
,
That
a
Bond
being
granted
by
two
Persons
conjunctly
and
severally
,
being
Merchants
;
and
for
the
price
of
Merchant
Ware
:
the
same
could
not
be
questioned
upon
that
pretence
,
that
one
of
them
was
Minor
the
time
of
the
granting
the
same
;
It
being
offered
to
be
pro●en
,
that
he
was
then
,
and
is
since
a
Trafficquing
Merchant
.
Monro
Clerk
.
Sir
David
Falconer
having
reported
the
same
,
in
Order
to
his
Tryal
,
when
he
was
to
be
admitted
a
Lord
of
the
Session
.
D.
361.
Irving
contra
Irving
.
22.
June
1676.
ALexander
Irving
of
Lenturk
raised
Suspension
and
Reduction
against
John
Ross
in
Strathmore
,
and
Francis
Irving
Brother
to
Drum
,
of
a
Decreet
of
Spuilyie
and
wrongous
Intromission
;
upon
these
Grounds
,
that
the
Witnesses
had
declared
falsely
;
In
swa
far
as
,
being
adduced
by
the
Pursuer
before
the
Council
,
they
had
declared
they
knew
nothing
;
and
in
the
Process
before
the
Lords
,
they
declared
fully
and
positively
,
as
to
all
that
was
Libelled
.
And
2.
They
declared
upon
Quantities
so
exorbitant
,
that
the
same
do
amount
to
the
twentieth
Corn
;
Whereas
in
the
Countrey
,
where
the
Cornes
grew
,
they
have
scarce
the
third
Corne.
The
Lords
Found
,
That
the
Decreet
,
being
in
foro
,
could
not
be
questioned
upon
any
Ground
;
and
in
special
upon
the
Testimonies
of
the
Witnesses
as
false
;
seing
there
should
be
no
end
nor
period
of
Pleas
;
and
there
being
no
Protestation
for
Reprobatores
.
Some
of
the
Lords
were
of
Opinion
,
that
as
a
Decreet
founded
upon
a
false
Write
may
be
questioned
,
so
when
the
same
is
founded
upon
false
Testimonies
,
and
the
falsehood
is
evident
,
and
may
be
qualified
sine
altiore
indagine
,
the
same
may
be
likeways
questioned
:
And
the
Remedy
of
a
Reduction
of
Decreets
in
foro
,
being
denyed
,
only
upon
that
pretence
of
Competent
and
Omitted
,
ought
not
to
be
denyed
in
such
cases
;
seing
the
Ground
foresaid
,
that
the
Testimonies
were
false
,
doth
arise
upon
the
Depositions
of
the
Witnesses
;
and
was
neither
known
nor
competent
to
the
Defender
,
who
is
not
allowed
to
see
nor
to
question
dicta
testium
:
And
a
remedie
,
which
in
Law
and
Reason
ought
to
be
allowed
,
is
not
taken
away
,
because
it
is
not
protested
for
by
a
Party
,
who
for
the
time
did
not
know
that
there
were
any
Ground
for
the
same
.
Newbyth
Reporter
.
Gibson
Clerk
.
D.
362.
_____
contra
Sheil
.
eod.
die
.
A
Comprysing
being
deduced
at
the
Instance
of
an
Assigney
,
against
the
Representative
of
the
Debitor
as
lawfully
charged
;
and
the
Compriser
upon
his
Infeftment
having
intented
a
pursute
for
Mails
and
Duties
;
It
was
Alledged
,
That
the
Cedent
was
debitor
to
the
Defunct
,
so
that
the
Debt
due
to
the
Defunct
,
did
compense
the
Debt
due
by
him
;
and
the
Ground
of
the
Comprysing
being
satisfied
,
the
Comprysing
is
extinguished
:
Which
case
being
Reported
to
the
Lords
,
they
had
these
Points
in
debate
,
and
consideration
amongst
themselves
.
viz.
1.
That
Compensation
is
only
of
personal
Debts
,
and
of
Sums
of
Money
,
de
liquido
in
liquidum
;
but
is
not
receivable
in
the
case
of
Real
Rights
and
Lands
,
and
Pursutes
upon
the
same
;
Seing
in
such
processes
there
is
no
Debt
craved
,
but
the
pursute
is
founded
upon
a
Real
Right
:
And
some
of
the
Lords
being
enclined
to
think
,
that
the
Alledgance
is
not
founded
upon
Compensation
,
but
upon
Payment
or
the
Equivalent
,
viz.
That
the
Cedent
habebat
intus
;
and
in
effect
,
and
upon
the
matter
was
satisfied
,
being
Debitor
in
alse
much
as
was
due
to
him
by
the
Defunct
:
And
the
Lords
are
in
use
to
favour
Debitors
,
whose
Lands
are
Comprised
;
and
,
in
order
to
extinguish
Comprisings
,
to
sustain
process
for
Compt
and
Reckoning
;
and
declaring
the
same
to
be
extinct
,
not
only
by
Intromission
but
by
Compensation
:
Others
were
of
the
Opinion
,
that
tho
Compensation
ipso
jure
minuit
&
tollit
obligationem
,
where
it
is
proponed
;
yet
if
the
same
be
not
proponed
before
the
Decreet
,
whereupon
the
Comprysing
proceeds
;
and
when
both
Debts
are
in
finibus
of
a
personal
Obligement
;
the
Debt
contained
in
the
Comprysing
cannot
be
said
to
have
been
payed
before
the
Comprysing
;
and
after
the
Comprysing
is
deduced
,
it
cannot
be
extinguished
but
either
by
Intromission
within
the
Years
of
the
Legal
,
or
by
Redemption
.
2.
Whatever
may
be
pretended
as
to
the
Cedent
,
that
he
could
not
be
in
bona
fide
to
compryse
for
a
Debt
due
to
him
,
having
alse
much
in
his
hand
as
would
satisfy
the
same
,
yet
such
pretences
are
not
competent
against
the
Third
Person
having
bona
fide
comprysed
;
or
having
Jus
quaesitum
;
As
in
the
case
of
a
Horning
upon
a
Decreet
,
it
could
not
be
obtruded
to
the
Donator
,
that
the
Debt
was
satisfied
;
The
Obtainer
of
the
Decreet
being
Debitor
to
the
Defender
:
And
if
this
should
be
sustained
,
expired
Comprysings
and
Infeftments
thereupon
,
being
now
a
most
ordinary
surety
,
may
be
easily
subverted
upon
pretence
,
that
the
Cedent
was
Debitor
,
in
Sums
equivalent
,
to
the
person
,
against
whom
the
Comprysing
is
deduced
:
And
there
is
a
great
difference
betwixt
payment
and
satisfaction
,
either
by
actual
payment
of
the
Debt
,
or
by
Intromission
with
the
Maills
and
Duties
of
the
Lands
comprysed
,
which
is
obvious
and
easie
to
be
known
;
and
betwixt
the
pretence
of
satisfaction
by
Compensation
;
seing
payment
is
exceptio
in
rem
,
and
extinguisheth
Debts
as
to
all
effects
;
and
Intromission
is
so
notour
,
that
the
Buyer
may
and
ought
to
take
notice
of
the
same
;
whereas
Compensation
is
but
quasi
solutio
,
and
it
has
never
effect
,
until
it
be
proponed
.
That
point
was
also
in
consideration
with
the
Lords
,
Whether
Compensation
can
be
proponed
by
any
person
,
but
such
as
has
Right
to
the
Debt
?
And
as
to
this
point
,
there
were
different
Opinions
,
and
some
of
the
Lords
were
of
the
Judgement
,
that
any
person
,
having
interest
to
defend
against
Comprysings
and
pursuites
upon
the
same
,
might
alledge
they
were
satisfied
in
manner
foresaid
:
But
others
were
of
the
Opinion
,
that
no
person
can
pretend
to
compence
,
but
he
that
could
discharge
the
Debt
,
whereupon
he
would
compence
;
and
consequently
must
have
Right
to
the
same
:
And
in
the
case
in
question
,
neither
a
confirmed
Testament
,
containing
the
Debt
due
to
the
Defunct
,
nor
any
Right
to
the
same
was
produced
.
The
Act
of
Parliament
,
K.
Ja.
6th
.
Parl.
12.
Cap.
141.
Being
so
positive
,
that
Compensation
is
only
de
liquido
in
liquidum
,
before
the
giving
of
Decreets
,
and
never
after
the
giving
thereof
;
Some
of
the
Lords
were
of
Opinion
,
that
tho
the
Defender
had
Right
to
the
Debt
due
to
the
Defunct
,
Compensation
could
not
be
received
:
But
some
of
the
Lords
having
desired
,
that
the
advising
of
these
points
,
being
so
considerable
,
should
be
delayed
till
to
morrow
,
they
were
not
decided
.
Thesaurer
Depute
Reporter
.
Gibson
Clerk
.
D.
363.
Lamingtoun
contra
Raploch
.
eod.
die
.
A
Suspension
being
craved
,
Upon
that
reason
,
that
the
Charger
had
been
Curator
,
and
ante
redditas
rationes
could
not
charge
him
with
any
Debt
;
It
was
Answered
,
That
the
Complainer
being
to
be
Marryed
,
he
desired
the
Charger
,
and
some
others
to
be
his
Curators
,
to
the
effect
they
might
authorize
him
to
Contract
;
and
the
Charger
had
never
intrometted
.
Some
of
the
Lords
were
of
Opinion
,
That
if
it
could
be
verified
by
the
Complainers
Oath
,
that
the
Charger
had
no
Intromission
;
and
that
these
that
Intrometted
were
Responsal
;
In
which
case
by
the
Civil
Law
,
there
is
no
actio
tutelae
,
but
against
these
who
intrometted
;
the
others
who
had
not
Intrometted
being
only
Lyable
in
subsidium
,
the
said
reason
should
not
be
sustained
:
But
it
being
pretended
,
that
,
by
our
custom
,
all
Tutors
and
Curators
are
Lyable
,
whether
they
intromet
or
not
without
out
distinction
;
and
that
Pupils
may
take
themselves
to
any
of
them
:
Tho
it
was
not
made
appear
,
that
the
said
point
was
ever
debated
or
decided
,
yet
the
Lords
Ordained
the
Complainer
to
give
in
a
Charge
against
the
Curator
,
and
the
Compt
to
be
discust
upon
the
Bill
.
Glendoich
Reporter
.
D.
364.
E.
Dumfermling
contra
Callender
.
June
1676.
BY
Minute
of
Contract
betwixt
the
deceast
Earl
of
Callender
,
and
Dam
Margaret
Hay
Countess
of
Dumfermling
,
he
was
obliged
to
Infeft
the
said
Lady
in
the
Lands
and
Barony
of
Livingstoun
in
Liferent
and
Conjunctfee
;
and
whatsover
other
Lands
and
Sums
of
Money
should
be
conquest
during
the
Marriage
:
He
is
obliged
likewayes
,
to
grant
surety
of
the
same
,
to
her
in
Liferent
,
in
the
same
manner
as
of
the
former
Lands
:
And
in
case
of
no
Issue
of
Children
,
the
one
half
of
the
said
Conquest
to
be
disposed
upon
,
as
the
Lady
shall
think
fit
:
And
the
Earl
of
Dumfermling
having
intented
a
Pursute
as
Assigney
by
his
Father
,
who
was
Heir
to
the
said
Lady
his
Mother
,
for
implement
of
the
said
Minute
;
for
declaring
what
Lands
,
Sums
of
Money
and
others
were
conquest
by
the
said
Earl
,
dureing
the
foresaid
Marriage
;
and
for
Infefting
the
Pursuer
in
the
half
of
the
said
Conquest
:
It
was
Alledged
,
That
the
said
Obligement
and
Clause
of
the
Minute
as
to
the
Conquest
,
are
conditional
.
viz.
In
case
of
no
Issue
of
Children
;
and
that
the
said
condition
did
not
exist
.
viz.
There
being
an
Child
procreate
of
the
said
Marriage
.
The
Lords
upon
Debate
,
in
praesentia
,
and
among
themselves
;
did
Find
,
that
the
said
Condition
did
exist
,
In
swa
far
as
,
tho
there
were
Children
of
the
Marriage
,
yet
there
was
no
Children
or
Issue
the
time
of
the
Dissolution
of
the
Marriage
,
by
the
Decease
of
the
Lady
.
Albeit
It
was
urged
,
That
these
Conditions
,
si
liberi
non
extiterint
,
vel
non
sint
procreati
;
and
that
Condition
,
si
non
sint
liberi
superstites
,
were
different
in
Law
;
and
in
the
conception
and
import
of
the
same
:
And
in
the
first
case
,
si
non
sint
liberi
,
sine
adjecto
tempore
decessus
vel
dissoluti
Matrimonii
,
deficit
ipso
momento
that
there
is
a
Child
;
And
the
Condition
,
being
in
the
Terms
foresaid
,
in
case
of
no
Issue
,
both
in
Law
and
in
Propriety
of
Speech
,
cannot
be
otherwayes
understood
and
Interprete
:
And
in
Claris
non
est
locus
conjecturae
aut
interpretationi
,
which
is
only
,
where
words
are
Homonymous
or
Ambiguous
:
And
where
a
Clause
is
,
of
it self
,
such
as
may
be
understood
without
addition
;
to
make
any
,
upon
pretence
of
the
intention
of
Parties
,
is
not
interpretari
sed
addere
;
&
intentio
in
mente
retenta
nihil
operatur
:
And
that
if
there
had
been
Children
of
the
Marriage
,
who
had
Lived
to
that
Age
,
that
they
had
been
Marryed
,
and
had
had
Children
,
who
had
all
died
before
the
Dissolving
of
the
Marriage
,
It
could
not
be
said
,
without
absurdity
,
that
there
had
been
no
Issue
;
And
both
in
Law
,
and
by
our
custom
,
when
there
is
any
Advantage
given
or
provided
by
the
Law
,
or
by
Contract
,
in
favours
of
the
Husband
in
case
of
Issue
,
It
is
ever
understood
si
liberi
sint
procrea●i
,
tho
they
do
not
survive
;
As
in
the
case
of
a
Courtesy
of
Scotland
:
And
that
Conditions
ought
to
be
taken
strictly
and
according
to
the
Letter
;
especially
in
this
case
,
the
Provision
foresaid
,
that
the
Lady
,
in
case
of
no
Issue
,
should
have
either
a
Fee
,
or
the
half
of
the
Conquest
;
or
a
Faculty
to
dispose
of
the
same
.
It
was
farder
Alledged
,
That
the
said
Clause
doth
not
import
,
that
the
Lady
should
have
the
Fee
,
or
the
half
of
the
Conquest
,
but
only
a
personal
Faculty
and
Power
to
dispose
of
the
half
of
the
Conquest
;
which
she
had
not
used
:
And
nevertheless
it
was
Found
by
plurality
,
that
the
said
Provision
imported
a
Fee
;
In
respect
the
said
Minute
was
a
short
paper
,
drawn
by
my
Lord
Callender
himself
,
who
was
altogether
ignorant
of
the
stile
and
conception
of
Writes
;
And
,
if
it
had
been
extended
,
as
it
was
intended
,
it
could
not
otherwayes
be
extended
,
but
the
Fee
behooved
to
be
provided
to
the
Lady
,
as
the
half
of
the
Conquest
,
And
,
that
the
half
of
the
Conquest
should
be
disposed
of
by
the
Lady
,
did
import
,
that
she
should
have
a
Fee
and
Dominium
;
the
very
nature
and
essence
of
Property
consisting
in
potestate
Disponendi
.
Some
of
the
Lords
were
of
Opinion
,
that
the
said
Clause
did
import
only
a
personal
Faculty
:
Upon
these
Considerations
.
1.
That
the
Right
of
Dominium
,
being
the
highest
Right
and
Interest
can
be
given
,
it
cannot
be
thought
to
be
given
,
but
when
the
words
are
such
,
as
are
not
applicable
to
any
other
interest
;
whereas
the
said
words
do
quadrate
alse
well
,
if
not
more
,
to
a
Personal
Faculty
,
than
to
an
Heretable
Fee
.
2.
The
said
Clause
is
conceived
per
verba
maxime
personalia
,
viz.
That
the
half
of
the
Conquest
should
be
disposed
by
her
;
and
if
she
should
think
fit
,
which
are
verba
arbitrii
&
facultatis
.
3.
In
dubiis
minimum
is
to
be
understood
&
solitum
;
&
ut
evitetur
absurdum
;
And
Respect
is
to
be
had
to
the
quality
of
the
Person
;
And
albeit
mean
Persons
,
in
their
Contracts
of
Marriage
,
do
sometimes
provide
,
that
the
Longest
liver
may
have
all
,
It
is
not
usual
nor
can
be
instanced
,
that
ever
,
in
a
Contract
of
Persons
of
quality
,
a
Fee
was
provided
to
a
Wife
;
It
being
the
great
design
,
of
the
Marriage
of
such
Persons
,
to
raise
a
Family
to
the
Husband
;
and
it
being
very
ordinary
,
that
a
personal
Faculty
should
be
given
to
the
Wife
.
4.
If
the
Contract
had
been
extended
,
it
might
,
and
ought
to
have
been
extended
in
these
Terms
,
That
the
Lady
should
Liferent
the
haill
Conquest
;
and
,
in
case
of
no
Issue
,
she
should
have
the
Personal
Faculty
foresaid
:
And
tho
the
Conquest
had
been
provided
to
the
Husband
and
her
,
and
the
Longest
liver
of
them
two
,
and
the
Heirs
of
the
Marriage
,
whilks
faiȝieing
the
one
half
to
his
Heirs
,
and
the
other
to
hers
;
her
Husband
would
have
been
Fiar
;
and
,
in
the
case
foresaid
,
her
Heirs
would
have
been
Heirs
of
Provision
to
him
,
as
to
the
half
of
the
Conquest
.
Actores
Sinclair
,
Bernie
,
&c.
alteri
Lockheart
,
&c.
D.
365.
Doctor
Wallace
contra
Symson
.
June
1676.
A
Bill
of
Exchange
being
drawn
by
a
Merchant
in
Edinburgh
,
upon
his
Correspondent
at
London
,
payable
to
a
Merchant
at
Bristol
;
the
person
,
to
whom
the
said
Bill
was
payable
,
was
not
in
England
for
the
time
,
but
had
gone
to
Ireland
;
but
his
Freind
,
having
broken
up
the
Letter
direct
to
him
,
and
having
Found
enclosed
the
said
Bill
of
Exchange
,
did
indorse
the
same
to
be
payed
to
another
person
upon
the
place
;
who
did
accordingly
present
the
said
Bill
to
the
Merchant
,
on
whom
it
was
drawn
;
who
did
accept
the
same
conditionally
,
when
it
should
be
right
indorsed
:
And
thereafter
,
the
person
,
to
whom
the
said
Bill
was
payable
,
having
duely
indorsed
the
same
to
be
payed
,
as
the
Indorsation
did
bear
;
The
Mercant
,
upon
whom
the
said
Bill
was
drawn
,
did
in
the
interim
break
,
before
the
Bill
swa
Indorsed
was
presented
to
him
;
There
having
interveened
betwixt
the
date
of
the
Bill
,
which
was
2
d.
January
,
and
the
Right
Indorsement
of
the
same
,
which
was
about
the
end
of
April
,
about
4.
Moneths
;
So
that
the
Question
was
,
whether
the
Drawer
of
the
said
Bill
should
be
Lyable
to
Refound
the
Sum
thereincontained
?
It
was
Alledged
,
That
he
could
not
be
Lyable
,
In
respect
the
said
Bill
was
not
returned
to
him
protested
,
either
for
not
Acceptance
or
for
not
Payment
:
And
albeit
in
Law
,
and
by
the
custom
of
Merchants
,
the
Drawer
be
Lyable
unless
the
Bill
be
payed
;
yet
that
is
ever
understood
with
a
Proviso
,
that
Diligence
should
be
done
,
and
Protests
should
be
taken
;
unless
the
Person
,
upon
whom
the
Bill
had
been
drawen
,
had
been
evidently
non
solvent
the
time
of
drawing
the
said
Bill
;
which
could
not
be
Alledged
in
this
case
,
seing
the
Defender
had
drawen
upon
the
same
person
after
the
said
Bill
,
to
the
value
of
2000
lib.
sterling
,
which
had
been
Answered
:
And
had
likewayes
Answered
Bills
of
his
,
of
great
value
;
whereas
if
the
Bill
in
Question
had
been
returned
Protested
,
he
would
have
retained
the
Provision
he
had
in
his
Hand
,
or
done
Diligence
,
to
recover
the
value
of
the
said
Bill
;
or
might
have
countermanded
the
said
Bill
,
and
given
an
other
Bill
payable
to
a
person
that
was
upon
the
place
.
The
Lords
notwithstanding
Found
,
That
the
Defender
and
Drawer
of
the
said
Bill
should
be
Lyable
:
But
some
of
the
Lords
were
of
another
Judgement
:
And
the
Defender
Repined
,
and
gave
in
a
Bill
,
desiring
to
be
Heard
.
D.
366.
_____
contra
_____
4.
July
676.
IN
a
Suspension
against
an
Assigney
,
upon
a
Reason
of
Compensation
,
viz.
That
the
Suspender
had
Right
to
the
equivalent
Sum
due
by
the
Cedent
,
by
an
Assignation
prior
to
the
Assignation
granted
by
the
Cedent
to
the
Charger
.
It
was
Answered
,
That
the
Assignation
,
granted
to
the
Charger
,
was
intimate
,
before
the
Intimation
of
the
Assignation
granted
to
the
Suspender
:
Whereunto
It
was
Replyed
,
That
ipso
momento
,
that
the
Suspender
got
the
Assignation
foresaid
,
being
thereby
Creditor
to
the
Cedent
,
he
had
a
Ground
of
Compensation
against
the
Cedent
,
and
consequently
against
the
Charger
as
Assigney
:
And
an
Assignation
,
without
Intimation
,
is
a
sufficient
Right
,
and
Ground
of
Compensation
;
unless
there
were
an
other
Assigney
to
the
same
Sum
,
competing
upon
that
Ground
,
that
he
had
a
better
Right
by
an
Assignation
intimate
.
The
Lords
notwithstanding
did
not
allow
Compensation
,
and
Found
the
Letters
orderly
proceeded
.
Newbyth
Reporter
,
Mr.
Thomas
Hay
Clerk
.
D.
367.
Buchanan
contra
Logie
.
eod.
die
.
THE
Lords
Found
,
That
a
person
out
of
the
Country
,
being
cited
at
the
Mercat-Cross
of
Edinburgh
,
and
Pear
and
Shoar
of
Leith
,
upon
60.
Dayes
warning
,
to
be
holden
as
confest
;
tho
he
was
not
cited
personally
,
and
that
the
Decreet
could
not
be
questioned
upon
that
Ground
as
Null
:
But
if
he
were
Living
and
desired
to
be
reponed
to
his
Oath
,
there
might
be
Ground
to
Repone
him
.
Newbyth
Reporter
.
Mr.
John
Hay
Clerk
.
D.
368.
Lesly
contra
Fletcher
.
5.
July
1676.
SIR
John
Fletcher
being
obliged
,
by
Contract
of
Marriage
,
to
provide
Dam
Marion
Lesly
his
Wife
of
a
second
Marriage
,
to
the
Liferent
of
a
Sum
of
10000
lib.
did
thereafter
Infeft
her
in
the
Lands
of
Gilchristoun
,
being
of
more
value
and
of
a
greater
Rent
:
Whereupon
she
having
obtained
a
Decreet
against
the
Tennents
;
The
Lords
Found
her
Right
,
being
granted
stante
Matrimonio
,
and
thereafter
revocked
,
Null
;
In
swa
far
as
it
exceeded
the
Provision
in
her
Contract
of
Marriage
:
And
sustained
her
Decreet
only
effeirand
thereto
;
and
ordained
her
to
be
Lyable
for
the
superplus
,
until
the
said
Sum
of
10000
lib.
should
be
employed
for
her
Liferent
,
conform
to
her
Contract
of
Marriage
.
Forret
Reporter
.
Mr.
Thomas
Hay
Clerk
.
D.
369.
Cheisly
contra
Edgar
of
Wadderly
.
eod.
die
.
EDgar
of
Wadderly
being
Charged
,
upon
an
Indenture
betwixt
him
and
Samuel
Chiesly
Chirurgeon
,
for
payment
of
the
Sum
thereincontained
,
for
his
Brothers
Prentice-fee
,
and
Entertainment
dureing
his
Prentice-ship
:
And
having
Suspended
the
said
Bond
,
and
intented
a
Reduction
thereof
upon
Minority
and
Lesion
;
The
Lords
Found
,
That
the
Second
Brother
having
no
other
Means
nor
Provision
;
his
Eldest
Brother
,
who
was
Heir
to
his
Father
,
and
had
the
Estate
,
ought
to
Entertain
him
,
and
to
put
him
to
a
Calling
:
And
did
not
sustain
the
Reason
of
Lesion
.
Forret
Reporter
.
Gibson
Clerk
.
D.
370.
Pitrichie
contra
Geight
.
eod.
die
.
SIR
Richard
Maitland
of
Pitrichie
having
obtained
a
Gift
of
Recognition
of
the
Estate
of
Geight
;
There
was
thereafter
a
Minute
,
betwixt
him
and
his
Father
,
and
the
Laird
of
Geight
;
whereby
it
was
agreed
,
that
Pitrichie
,
who
,
and
his
Predecessors
had
an
ancient
Wadset
of
the
Lands
of
Achincreive
and
others
,
being
a
part
of
the
said
Barony
;
should
have
the
Reversion
Discharged
by
Geight
;
and
that
Geight
should
give
him
a
new
Right
of
the
said
Wadset-Lands
,
irredeemable
and
holden
of
the
King
;
and
should
pay
to
Pitrichie
for
the
Charges
in
obtaining
and
declaring
of
the
said
Gift
4000
Merks
:
And
that
,
on
the
other
part
,
Pitrichie
should
Dispone
to
Geight
the
rest
of
the
Estate
,
and
the
Right
he
had
thereto
by
the
said
Recognition
.
Thereafter
Pitrichie
,
having
intented
Declarator
,
for
Nullity
of
the
said
Minute
;
upon
pretence
that
Geight
did
refuse
and
fail
to
perform
his
part
;
did
obtain
a
Decreet
,
and
did
enter
into
a
Bargain
with
the
Earl
of
Aboyn
,
and
did
dispone
to
him
a
considerable
part
of
the
said
Estate
;
that
by
his
Power
and
Interest
in
the
Countrey
,
he
might
be
maintained
,
and
be
able
to
enjoy
the
rest
:
But
,
before
the
granting
of
the
said
Right
to
Aboyn
,
Geight
had
intented
a
Reduction
of
the
said
Decreet
of
Nullity
;
upon
that
Reason
,
That
the
said
Decreet
was
given
,
In
respect
he
had
not
the
Writes
at
that
time
in
hand
to
produce
;
and
to
instruct
,
that
he
was
able
to
give
a
Right
of
the
said
Wadset-lands
to
be
holden
of
the
King
;
and
that
they
were
now
found
upon
search
of
the
Registers
;
So
that
he
had
not
been
in
mora
;
and
the
not
production
of
the
said
Writes
ought
not
to
be
imputed
to
him
,
but
to
the
Confusion
of
the
Times
;
his
Writes
being
scattered
,
and
his
Father
having
been
long
time
a
Sufferer
and
Prisoner
,
for
serving
the
King
.
The
Lords
Found
,
That
the
said
Decreet
,
being
in
effect
upon
a
Certification
for
not
Production
,
and
Geight
condescending
,
and
offering
to
instruct
,
that
he
had
not
been
negligent
,
and
the
occasion
and
manner
that
the
said
Writes
were
not
in
his
Hand
;
and
how
he
had
recovered
the
same
;
he
ought
to
be
reponed
against
the
same
:
And
that
,
by
the
Reduction
,
before
the
granting
of
the
Right
to
Aboyn
,
it
was
res
litigiosa
,
and
Aboyn
ought
to
be
in
no
better
case
than
Pitrichie
.
D.
371.
_____
contra
_____
eod.
die
.
A
Bond
,
granted
by
a
Woman
stante
matrimonio
,
for
payment
of
a
Sum
of
Money
,
being
ratified
judicially
;
It
was
Found
,
That
the
Ratification
did
not
bind
her
:
being
of
a
Deed
null
in
Law
,
tho
it
was
judicial
;
being
likewayes
stante
matrimonio
.
D.
372.
Blair
of
Kinfauns
contra
Mr.
Thomas
Fouler
.
6.
July
.
1676.
IN
the
Case
betwixt
Sir
William
Blair
of
Kinfaunes
and
Mr.
Thomas
Fouler
,
It
was
Found
,
That
an
Action
,
at
the
instance
of
the
Executors
of
a
Minister
,
for
building
a
Manss
,
and
refounding
the
Expences
of
the
same
,
is
competent
against
the
Heritors
for
the
time
and
their
Representatives
;
but
not
against
a
singular
Successor
:
and
that
it
is
not
Debitum
fundi
.
Newbyth
Reporter
.
Gibson
Clerk
.
D.
373.
Rynold
contra
Erskines
.
eod.
die
.
THE
Lords
Found
,
That
,
a
Father
having
assigned
certain
Bonds
for
provision
of
his
Children
,
the
Creditors
have
not
only
an
Action
of
Reduction
competent
to
them
,
but
a
personal
Action
to
refound
the
Sums
uplifted
,
upon
the
Bonds
,
if
the
Assignation
should
be
found
to
be
fraudulent
:
But
did
Reserve
to
the
Defenders
to
debate
,
whether
the
same
was
fraudulent
;
The
Defenders
having
Alledged
,
that
the
same
were
granted
by
their
Father
,
having
a
plentiful
Fortune
for
the
time
,
so
that
he
might
lawfully
provide
his
Children
.
Newbyth
Reporter
.
D.
374.
Crauford
contra
Gordon
.
eod.
die
.
IN
the
Case
,
Alexander
Crauford
contra
Sir
Lodovick
Gordon
,
The
Lords
thought
the
point
in
question
.
viz.
Whether
or
not
,
a
Backbond
being
granted
by
the
Compryser
,
the
time
that
he
did
receive
an
Assignation
,
whereupon
he
Comprysed
;
or
by
a
person
having
gotten
a
Disposition
,
did
affect
the
said
Rights
,
not
only
as
to
the
Granters
of
such
Back-bonds
,
and
their
Representatives
,
but
likewayes
as
to
Singular
Successors
;
And
if
the
same
should
be
Found
to
affect
,
if
it
did
affect
only
while
the
said
Right
was
personal
,
and
before
Infeftment
,
but
not
after
?
The
Lords
thought
the
said
point
,
to
be
of
that
importance
as
to
the
Consequence
and
Interest
of
the
People
,
that
it
was
recommended
,
that
they
should
have
their
thoughts
thereupon
,
to
the
effect
that
the
same
may
be
decided
with
great
consideration
;
And
accordingly
,
this
day
,
the
case
being
fully
debated
among
themselves
,
It
was
carryed
and
found
by
plurality
of
Votes
,
That
such
Back-bonds
do
affect
,
even
as
to
a
Singular
Successor
,
tho
extra
corpus
Juris
;
And
albeit
they
be
granted
after
the
receiving
of
such
Rights
;
And
that
they
affect
Comprysings
,
even
after
Infeftments
has
followed
thereupon
,
during
the
Legal
,
but
not
after
.
Diverse
of
the
Lords
did
Argue
and
Vote
against
the
said
Decision
,
and
in
special
,
A.
I.
C.
N.
B.
S.
T
,
Upon
these
Grounds
.
1.
A
Singular
Successor
does
not
succeed
,
in
universum
Jus
as
an
Heir
,
but
only
in
Jus
Singulare
;
And
if
the
said
Jus
be
simple
and
pure
,
without
any
quality
in
corpore
Juris
;
any
extrinsick
quality
or
Deed
may
bind
the
Granter
and
his
Heirs
,
but
not
the
Singular
Successor
,
who
neither
can
,
nor
is
obliged
to
know
,
and
take
notice
of
any
quality
that
is
not
in
the
Right
.
2.
The
quality
of
a
Right
is
an
Accident
of
the
same
,
and
Accidentis
esse
est
inesse
;
So
that
,
in
Law
,
where
the
same
is
not
in
corpore
Juris
,
it
doth
not
affect
the
Right
as
to
Singular
Successors
.
3.
Upon
the
Considerations
foresaid
,
Reversions
,
and
Bonds
for
Granting
Reversions
,
do
not
militate
against
a
Singular
Successor
,
unless
they
be
in
corpore
Juris
,
or
Registrate
;
And
tho
there
be
an
express
Statute
to
that
purpose
,
yet
it
doth
not
follow
a
contrario
,
where
there
is
no
Statute
,
Back-bonds
should
affect
;
seing
the
said
Statute
is
made
,
conform
to
the
Common
Law
,
and
is
Declaratory
as
to
Reversions
;
being
then
most
in
contemplation
of
the
Parliament
,
but
doth
not
derogate
from
the
Common
Law
in
other
Cases
.
4.
Back-bonds
are
upon
the
matter
Reversions
and
do
oblige
only
to
make
a
Retrocession
in
favours
of
the
Cedent
;
and
cannot
operate
more
,
than
if
a
formal
Retrocession
were
made
in
favours
of
the
Cedent
;
which
could
not
prejudge
a
Singular
Successor
,
unless
it
were
intimate
.
5.
It
would
be
an
irrepairable
prejudice
to
the
People
,
and
to
Singular
Successors
,
who
,
finding
a
Right
pure
without
any
quality
are
in
bona
fide
to
think
,
that
they
may
securely
take
a
Right
thereto
;
And
yet
should
have
no
remedy
,
if
,
upon
pretence
of
Back-bonds
,
and
Deeds
altogether
extrinsick
,
their
Right
may
be
questioned
.
6.
As
to
the
pretence
of
the
prejudice
to
the
People
,
viz.
That
they
are
in
use
to
grant
Assignations
,
in
order
to
the
deduceing
of
Comprysings
thereupon
;
and
may
be
frustrate
,
if
the
Back-bond
should
not
affect
the
same
,
is
of
no
weight
;
Seing
they
trust
the
Assigneys
;
And
it
is
their
own
fault
,
if
they
Trust
persons
that
doe
not
deserve
Trust
;
And
they
have
a
Remedy
by
intimateing
the
Back-bonds
,
which
,
upon
the
matter
are
Translations
;
whereas
a
Singular
Successor
has
none
.
7.
That
such
Back-bonds
should
affect
Comprysings
,
not
only
before
,
but
after
Infeftment
during
the
Legal
;
But
thereafter
should
cease
to
qualify
the
same
;
It
seems
to
be
inconsistent
with
,
and
against
the
principles
of
Law
.
In
praesentia
.
D.
375.
_____
contra
_____
eod.
die
.
THE
Lords
Found
,
That
a
Bishop
and
Executors
,
had
Right
only
to
the
Quots
of
such
Testaments
,
as
were
confirmed
in
the
Bishops
time
,
in
his
own
Right
,
as
Bishop
for
the
time
:
And
the
said
Quots
,
being
in
effect
Sentence-Silver
,
dies
cedit
by
the
Confirmation
;
so
that
whosoever
is
Bishop
then
,
has
Right
to
the
same
.
They
Found
likewayes
,
That
Quots
being
a
part
of
the
Bishops
Patrimony
and
Rent
;
The
Quots
,
of
all
Testaments
confirmed
within
the
half
Year
,
after
the
Bishops
decease
,
did
fall
under
the
Ann
,
and
belong
to
the
Bishops
Relict
and
Executors
.
Vide
Carpzovium
.
lib.
1.
Jurisp
.
Consistorialis
de
Salario
defuncti
Pastoris
semestri
.
D.
376.
Spence
contra
Scot
7.
July
.
1676.
IN
a
pursute
for
payment
of
a
Sum
of
Money
,
It
was
Alledged
,
That
the
Pursuers
Cedent
was
Tutor
to
the
Defender
,
and
had
not
made
his
Accompt
:
Which
Defence
the
Lords
sustained
against
the
Assigney
;
But
it
was
their
meaning
,
that
the
Pursuer
should
not
be
delayed
;
and
and
that
a
competent
time
should
be
given
to
the
Defender
to
pursue
and
discuss
his
Tutor
.
Glendoich
Reporter
.
Mr.
John
Hay
Clerk
.
D.
377.
Johnstoun
contra
Rome
.
8.
July
.
1676.
IN
a
pursute
upon
the
passive
Title
of
Successor
Titulo
Lucrativo
;
In
swa
far
as
the
Defender
had
a
Disposition
from
his
Father
,
without
an
Onerous
Cause
:
The
Lords
sustained
the
pursute
,
albeit
it
was
Alledged
by
the
Defender
,
he
had
made
no
use
of
the
said
Disposition
,
and
was
content
to
renounce
the
same
;
which
the
Lords
Found
he
could
not
do
,
being
delivered
to
him
.
A
Concluded
Cause
Advised
.
Mr.
Thomas
Hay
Clerk
.
D.
378.
Finlaw
contra
Litle
.
11.
July
1676.
A
Legacy
being
left
in
these
Terms
,
viz.
That
it
should
be
payed
out
of
the
Testatrix
her
Household
Plenishing
,
and
Debts
due
upon
Compts
:
The
Lords
Found
,
That
albeit
the
said
plenishing
,
and
Debts
should
not
extend
to
satisfy
the
said
Legacy
,
that
it
was
not
a
limited
Legacy
;
but
ought
to
be
satisfied
out
of
the
other
Executry
;
and
that
the
saids
words
were
only
executiva
,
as
to
the
order
and
way
of
Payment
in
the
first
place
;
and
Interpretatio
should
be
ut
actus
valeat
;
especially
seing
the
Legator
was
the
Defuncts
Relation
:
And
it
is
to
be
presumed
,
that
the
foresaid
qualification
was
only
as
to
the
way
of
payment
;
In
respect
the
Defunct
did
look
upon
her
Plenishing
and
Debts
foresaid
,
as
sufficient
to
pay
the
same
;
And
did
not
declare
that
the
said
Legacy
should
be
only
payed
out
of
the
same
,
and
in
case
it
should
be
short
,
that
she
should
have
no
more
:
And
it
appeared
to
the
Lords
,
that
the
Executors
had
given
up
a
very
inconsiderable
Inventar
of
the
plenishing
,
and
far
short
of
what
a
person
of
the
Defuncts
condition
and
profession
,
being
a
great
Innkeeper
,
behoved
to
have
in
order
to
her
Calling
.
Actores
Dalrymple
&c.
alteri
Hog
.
in
praesentia
.
D.
379.
Bishop
of
Dumblain
contra
Kinloch
of
Gilmertoun
.
eod.
die
.
IN
Anno
1620.
His
Majesties
Grand-Father
did
Annex
the
Deanry
of
the
Chappel
Royal
to
the
Bishoprick
of
Dumblain
:
And
did
mortify
thereto
an
Annualrent
of
Ten
Chalders
of
Victual
out
of
the
Lands
of
Markle
and
Traprane
:
By
vertue
of
which
Right
the
Bishops
of
Dumblane
,
have
eversince
possest
the
said
Annualrent
,
until
1638.
that
the
Bishops
were
supprest
:
And
thereafter
,
Mr.
Alexander
Henderson
,
and
Mr.
Robert
Blair
being
provided
thereto
,
as
his
Majesties
Chaplaines
,
did
continue
in
the
possession
of
the
same
,
till
the
Bishops
were
Restored
in
1661.
and
since
the
Bishop
of
Dumblane
was
in
possession
of
the
same
:
But
Francis
Kinloch
now
Heretor
,
tho
he
had
been
in
use
of
payment
of
8.
Chalders
of
Victual
,
as
a
part
of
the
said
Annuity
,
out
of
his
Lands
,
since
he
acquired
a
Right
to
the
same
,
being
charged
at
the
instance
of
the
said
Bishop
,
did
Suspend
upon
that
Reason
,
viz.
That
the
said
Annualrent
was
Wadset
by
the
Earl
of
Bothwel
in
the
Year
1587.
to
Mr.
Thomas
Craig
for
7000
Merks
:
And
John
Murray
Earl
of
Annandale
having
acquired
the
Right
of
the
said
Annualrent
;
and
having
resigned
the
same
in
savours
of
K.
Ja.
to
the
effect
it
might
be
Mortified
,
as
said
is
;
The
King
,
by
the
said
Mortification
,
could
give
no
other
Right
,
than
what
flowed
from
the
said
persons
his
Authors
,
which
was
redeemable
,
as
said
is
;
and
de
facto
the
said
Right
was
Redeemed
;
In
sua
far
as
,
the
Right
of
Reversion
of
the
said
Annualrent
having
come
in
the
person
of
the
Duke
of
Lennox
,
Donator
to
the
Forefaulture
of
the
Earl
of
Bothwell
,
and
from
him
to
the
Earl
of
Balcleugh
,
and
from
the
late
Earl
of
Balcleugh
to
Sir
John
Scot
of
Seatoun
.
Caetera
desunt
.
D.
380.
Jaffray
contra
Murray
.
8.
November
1676.
A
Party
being
pursued
,
upon
the
passive
Titles
;
and
in
special
upon
that
of
Charged
to
enter
Heir
;
and
having
offered
to
Renounce
,
It
was
Replyed
that
he
could
not
,
Seing
Res
was
not
integra
;
In
Respect
he
had
granted
a
Bond
,
Of
purpose
,
that
thereupon
the
Estate
might
be
Adjudged
;
The
Lords
Found
,
That
albeit
he
had
not
granted
the
Bond
upon
the
designe
foresaid
,
yet
,
the
Estate
being
adjudged
and
incumbered
by
his
Deed
,
he
ought
to
be
Lyable
to
the
Defuncts
Creditors
pro
tanto
,
Or
to
purge
.
Gibson
Clerk
.
It
is
Thought
,
That
if
the
Appeirand
Heir
should
dolose
grant
a
Bond
,
that
the
Defuncts
Estate
might
be
thereupon
adjudged
,
ought
to
be
Lyable
in
solidum
:
But
if
he
grant
a
Bond
which
is
a
lawful
Deed
,
and
thereupon
his
Creditor
adjudge
,
which
he
could
not
hinder
;
It
is
hard
to
sustaine
a
passive
Title
against
him
;
unless
his
creditor
,
having
adjudged
,
were
satisfied
by
that
course
;
In
which
case
,
seing
the
Defuncts
creditors
are
prejudged
,
It
is
Reason
he
should
be
Lyable
pro
tanto
.
D.
381.
Steuart
contra
Hay
.
9.
November
.
1676.
LAnds
being
bought
after
Interdiction
:
A
Reduction
of
the
said
Interdiction
was
pursued
at
the
instance
of
the
Buyer
,
upon
these
Reasons
.
1.
That
Interdictions
,
by
the
Common
Law
,
are
only
of
prodigi
;
And
Interdictors
are
in
effect
given
Curatores
to
them
:
And
,
by
our
custom
,
albeit
Interdictions
are
granted
sine
causae
Cognitione
,
upon
Bonds
granted
by
persons
interdicted
,
upon
that
consideration
and
narrative
,
that
they
are
persons
facile
,
and
not
fit
to
manage
their
Estate
;
whereupon
the
Judge
presumes
,
that
they
are
such
;
and
upon
a
Bill
gives
warrand
to
publish
the
same
;
yet
the
Interdiction
in
question
ought
not
to
be
sustained
,
seing
it
is
not
the
ordinary
stile
of
other
Interdictions
;
and
the
Bond
of
Interdiction
bears
no
narrative
of
Facility
;
but
only
that
the
Granter
,
for
the
standing
of
his
Family
,
being
very
Ancient
,
did
oblige
himself
not
to
Dispone
his
Estate
without
consent
of
the
Persons
thereinmentioned
,
and
Letters
of
Publication
were
not
raised
thereupon
,
but
Inhibition
was
only
used
.
2.
That
Interdictions
are
a
Remedy
,
for
secureing
weak
persons
,
and
ought
not
to
be
a
snare
to
others
:
And
the
Law
favours
,
and
helps
these
that
are
decepti
,
and
not
decipientes
:
And
that
the
Pursuer
was
in
effect
circumveened
,
in
swa
far
as
,
the
said
Interdiction
was
not
Registrate
till
the
Pursuer
was
in
Terms
of
Bargaining
;
and
they
had
searched
the
Registers
,
and
had
not
found
any
such
Interdiction
;
and
the
only
Interdictor
on
Life
,
was
Witness
to
the
Bargain
,
and
got
a
part
of
the
price
;
and
the
rest
of
the
price
was
payed
to
Creditors
anterior
to
the
Interdiction
;
And
the
Pursuer
,
relying
upon
the
Ingenuity
of
the
Disponer
,
tho
he
might
have
secured
himself
by
taking
a
Right
to
the
said
Debts
,
did
extinguish
the
same
,
by
taking
Discharges
and
Renounciatons
.
The
Lords
being
divided
in
their
Opinions
,
The
case
was
not
decided
this
day
.
_____
Hay
Clerk
.
In
praesentia
.
D.
382.
Inter
eosdem
.
10.
November
.
1676.
THE
Lords
sustained
the
Interdiction
abovementioned
,
the
Defenders
offering
to
prove
,
that
the
Person
Interdicted
was
not
rei
suae
providus
:
And
Found
,
That
the
person
interdicted
was
thereby
in
the
condition
of
Minors
;
And
that
he
and
his
Heirs
could
not
question
any
Disposition
or
other
Deed
done
by
him
,
upon
the
naked
head
of
Interdiction
,
unless
they
alledge
and
qualify
Lesion
:
And
that
the
Pursuer
of
the
Reduction
may
prove
that
the
Bargain
was
profitably
made
,
and
that
the
pryce
was
in
rem
versum
:
And
the
Lords
declared
,
they
would
not
be
nice
as
to
Probation
;
but
Reserved
the
consideration
of
it
to
themselves
.
It
was
further
Replyed
,
That
the
Interdiction
is
Null
,
being
Execute
by
a
person
that
was
not
a
Messenger
,
being
deprived
;
which
was
Repelled
,
In
respect
of
the
Answer
,
that
it
was
offered
to
be
proven
,
that
notwithstanding
of
the
Sentence
of
Deprivation
,
he
was
holden
and
tentus
&
reputatus
to
be
a
Messenger
:
Notwithstanding
it
was
Triplyed
,
that
the
Pursuer
,
in
Fortification
of
the
Sentence
of
Deprivation
,
and
his
own
Deposition
;
offered
to
prove
,
that
it
was
the
common
Opinion
of
the
Country
,
that
the
Executor
was
not
a
Messenger
,
then
being
deprived
:
Which
was
thought
hard
by
some
of
the
Lords
;
being
of
the
Opinion
,
that
at
least
habitus
and
tentus
&
opinio
ought
to
have
been
allowed
to
both
Parties
to
prove
;
Reserving
to
the
Lords
,
to
Consider
the
Probation
,
and
to
Judge
,
according
to
that
which
should
be
Found
most
pregnant
.
D.
383.
Paterson
contra
Johnstoun
.
eod.
die
.
IT
was
desired
by
a
Bill
,
That
a
party
,
against
whom
Witnesses
had
been
used
,
and
who
had
declared
,
might
be
allowed
to
qualify
the
Inhability
of
the
Witnesses
;
and
that
a
Terme
should
be
Assigned
to
that
purpose
:
Whereupon
it
was
Agitate
among
the
Lords
,
If
a
Reprobator
should
be
sustained
by
way
of
exception
,
whereupon
there
would
be
a
new
Litiscontestation
:
And
it
was
urged
by
some
of
the
Lords
,
that
if
the
Inhability
of
the
Witnesses
should
be
qualified
upon
the
ordinary
Grounds
,
whereupon
the
Witnesses
themselves
are
interrogate
,
viz.
That
they
are
not
worth
the
Kings
unlaw
,
and
such
like
;
That
Reprobator
ought
not
to
be
sustained
;
Especially
the
Party
being
heard
,
to
object
against
the
Witnesses
:
And
yet
the
Lords
sustained
Reprobator
,
by
way
of
exception
,
and
without
Limitation
;
In
respect
,
the
Oath
of
the
Witnesses
concerning
their
own
Hability
is
only
an
Oath
of
Calumny
;
and
notwithstanding
thereof
,
a
Reprobator
may
be
pursued
,
by
way
of
Action
:
And
the
Objections
,
against
the
Witnesses
,
may
come
to
the
Parties
knowledge
,
after
they
have
declared
:
And
as
there
may
be
Two
Litiscontestations
,
if
an
exception
of
Falsehood
,
or
any
other
,
should
arise
upon
the
Production
of
the
Writes
;
there
is
eadem
ratio
as
to
the
Witnesses
;
seing
the
Objections
against
them
could
not
be
proponed
before
Litiscontestation
:
And
,
if
they
be
Relevant
,
they
ought
to
be
proven
;
And
it
is
the
interest
of
both
Parties
,
that
the
Reprobator
should
be
received
by
way
of
exception
;
ne
lites
protelentur
:
But
the
Lords
Ordained
a
Condescendance
,
to
be
given
in
,
in
Write
,
of
the
Grounds
of
the
Reprobator
;
and
to
be
given
to
the
other
party
,
that
he
might
be
heard
to
debate
,
upon
the
Relevancy
of
the
same
.
Gibson
Clerk
.
D.
384.
Inglis
contra
Boswell
.
14.
Novem.
1676.
A
Father
having
granted
Bonds
of
provision
,
in
favours
of
his
Children
being
in
familia
;
and
having
thereafter
contracted
Debt
;
It
was
Found
,
That
the
Creditors
,
tho
posterior
,
are
preferable
to
the
Children
:
And
tho
,
in
other
cases
,
It
is
presumed
That
Bonds
or
Writes
,
being
in
the
hands
of
these
to
whom
the
same
are
granted
,
were
delivered
ab
initio
;
yet
,
in
the
case
of
Children
,
the
Presumption
lyes
against
them
,
that
they
are
still
in
the
hands
of
their
Parents
,
so
that
they
are
masters
of
the
same
:
And
eo
ipso
,
that
thereafter
they
contract
Debt
,
they
revock
the
said
Provisions
,
In
swa
far
as
they
may
prejudge
their
Creditors
;
unless
it
be
offered
to
be
proven
,
that
they
were
delivered
,
and
were
the
Childrens
Evidents
,
the
time
of
the
contracting
the
said
posterior
Debt
.
Newtoun
Reporter
.
Mr.
John
Hay
Clerk
.
D.
385.
Davidson
contra
Wauchop
.
16.
Novem.
1676.
JOHN
Wauchop
,
one
of
the
Macers
before
the
Lords
,
having
taken
a
Right
,
by
Translation
,
to
a
Bond
of
700
Merks
,
alledged
granted
by
the
deceast
James
Davidson
Jaylor
in
the
Canongate
to
_____
Horseburgh
:
And
a
Reduction
and
Improbation
being
intented
of
the
said
Bond
;
The
Lords
did
decern
in
the
Improbation
;
and
Found
the
said
Bond
to
be
false
and
forged
;
and
remitted
_____
Dumbar
Forger
to
the
Justice
:
Albeit
the
Writer
and
Witnesses
,
and
the
Debitor
and
Creditor
being
all
deceast
,
there
were
no
means
left
for
improving
the
said
Bond
directly
:
Which
the
Lords
did
,
In
respect
of
the
indirect
Articles
aftermentioned
,
and
the
concurrence
,
in
great
number
and
pregnancy
,
of
the
presumptions
and
evidences
of
falsehood
,
arising
intrinsically
upon
the
inspection
of
the
Write
,
and
the
compareing
of
Papers
and
otherwayes
,
viz.
1.
That
the
Debitor
Davidson
was
a
person
most
Responsal
;
and
the
Creditor
Horseburgh
indigent
;
So
that
,
the
Bond
being
of
date
1644.
It
could
not
be
thought
,
that
if
it
had
been
a
true
Bond
,
the
Creditor
,
or
his
Relict
,
would
,
or
could
have
wanted
payment
so
long
;
nothing
being
done
to
recover
payment
until
after
1669.
That
the
said
Bond
,
being
Assigned
to
_____
Laurie
,
was
transferred
in
favours
of
John
Wauchop
,
after
all
the
means
of
Improbation
had
failed
by
the
decease
of
Writer
and
Witnesses
.
2.
The
said
_____
Laurie
and
John
Wauchop
being
examined
upon
Oath
,
It
appears
by
their
Declaration
,
that
the
Assignation
of
the
said
Bond
in
favours
of
_____
Laurie
was
never
delivered
to
him
,
but
was
still
retained
by
_____
Dumbar
,
who
had
Marryed
the
Relict
of
the
said
Horseburgh
;
and
pretended
that
the
said
Assignation
was
made
by
Horseburgh
,
in
favours
of
his
Wife
,
but
left
Blank
;
And
that
Lawries
Name
was
filled
up
to
the
use
,
and
in
behalf
of
the
said
Dumbar
and
his
Relict
,
for
security
of
a
small
Debt
due
to
the
said
Laurie
.
3.
That
John
Wauchop
did
give
to
Dumbar
,
for
a
Translation
from
Laurie
,
only
300
Merks
,
and
did
promise
,
in
case
he
should
recover
the
said
Debt
,
to
pay
200
Merks
more
;
of
which
,
100
Merks
was
to
be
payed
to
the
said
Laurie
;
And
it
cannot
be
thought
,
that
Dumbar
would
have
given
away
so
considerable
a
Sum
,
the
Bond
and
Annualrent
of
the
said
Sum
extending
to
100
lib.
sterl
.
for
300
Merks
presently
,
and
200
Merks
upon
the
condition
foresaid
.
4.
It
appeared
by
the
Bond
and
Assignation
,
that
they
were
writen
with
one
Hand
,
and
the
Witnesses
Subscriptions
appeared
to
be
all
writen
with
one
Hand
.
5.
The
Writer
and
Witnesses
are
obscure
Persons
,
and
not
known
;
and
the
designation
of
them
is
so
general
,
that
they
could
not
be
well
found
;
being
designed
Writers
and
Indwellers
in
Edinburgh
,
and
no
otherwayes
.
6.
It
appeared
,
by
comparing
other
Papers
writen
by
Dumbar
,
both
as
to
the
Character
,
and
the
Spelling
;
that
the
said
Papers
,
being
writen
by
Dumbar
,
are
the
same
Write
,
that
the
Bond
and
Assignation
is
of
.
7.
It
appeared
by
some
Papers
subscribed
by
Davidson
,
produced
by
Wauchop
to
astruct
and
approve
,
that
his
Subscription
to
the
said
Papers
is
not
like
that
of
the
Bond.
Diverse
Papers
were
produced
,
being
alledged
to
be
Forged
by
Dumbar
;
being
Bonds
granted
by
persons
who
were
Dead
;
and
whereof
the
Writer
and
Witness
were
likewayes
Dead
;
which
did
labour
of
the
same
Grounds
of
Suspition
and
falsehood
:
And
albeit
they
were
not
declared
to
be
false
,
yet
being
questioned
and
a
warrand
being
given
by
the
Lords
to
apprehend
Dumbar
,
he
had
escaped
,
and
was
Fugitive
:
And
the
said
Dumbar
is
lookt
upon
,
and
is
pessimae
famae
as
a
Falsary
and
a
Forger
.
The
Lords
were
evil
satisfied
,
That
their
Macer
should
have
taken
a
Right
to
,
and
used
such
a
Write
;
But
as
yet
have
not
Censured
him
.
In
praesentia
.
D.
386.
Paterson
contra
McKenzie
.
22.
Novem.
1676.
THE
Defender
,
in
the
Improbation
of
an
Assignation
,
transferred
in
in
his
favours
,
being
urged
to
abide
by
the
same
;
and
having
offered
to
abide
by
the
same
,
as
given
to
him
for
an
Onerous
Cause
;
and
as
true
for
any
thing
he
knew
:
It
was
Answered
,
That
Certification
ought
to
be
granted
,
unless
the
Defender
would
abide
by
the
same
positively
,
as
a
true
Deed
:
Seing
,
otherwayes
,
false
Writes
might
be
conveyed
through
many
Hands
,
and
the
using
of
the
same
might
escape
impune
;
notwithstanding
of
the
Act
of
Parliament
,
against
the
users
of
false
Writes
;
if
they
should
be
allowed
to
qualify
their
abideing
by
the
same
,
in
manner
foresaid
;
which
is
contrar
,
to
the
very
Notion
of
abiding
by
;
which
imports
a
positive
asserting
the
truth
of
the
same
.
Upon
which
Debate
the
Lords
Considered
the
great
inconvenients
on
either
hand
,
if
a
Right
may
be
taken
to
false
Writes
and
used
impune
;
whereas
before
any
person
take
Right
to
the
same
,
they
ought
to
inform
themselves
concerning
the
same
,
and
the
Condition
and
Quality
of
their
Cedents
.
And
on
the
other
part
,
if
commerce
should
be
obstructed
so
far
as
a
Right
should
not
be
taken
without
hazard
to
Papers
,
having
no
intrinsick
nullity
or
defect
,
that
of
falsehood
being
altogether
extrinsick
,
and
which
cannot
be
known
.
The
Lords
,
in
respect
the
Cedent
,
who
had
made
the
Translation
of
the
Write
quarrelled
,
was
Living
,
Ordained
him
to
abide
by
the
same
simply
:
And
suffered
the
person
,
who
has
now
Right
thereto
,
to
abide
at
the
same
with
the
foresaid
quality
;
But
reserved
to
themselves
,
at
the
advising
of
the
Cause
,
to
consider
what
the
said
qualification
may
import
in
behalf
of
the
User
.
Actor
.
Mckenzie
and
others
,
alteri
Falconer
.
Haystoun
Clerk
.
In
praesentia
.
D.
387.
Weir
contra
E.
Bramford
.
24.
November
1676.
HIS
Majesty
and
the
Parliament
having
rescinded
the
Forefaulture
of
the
late
Earl
of
Bramford
,
who
had
been
Forefaulted
the
time
of
the
Troubles
for
his
Loyalty
;
did
so
qualify
the
Act
of
Rescission
and
Restitution
,
that
albeit
he
had
Daughters
,
who
by
the
Law
would
have
been
Heirs
of
Line
;
yet
the
Estate
was
settled
by
the
Parliament
,
upon
his
Grand-child
,
Son
to
the
Lord
Forrester
,
who
had
Marryed
one
of
the
Daughters
.
Mr.
William
Weir
,
having
Right
by
Assignation
to
a
Debt
of
5000
Merks
.
due
by
the
Earl
of
Bramford
to
Patrick
Ker
,
one
of
the
Grand-children
of
the
said
Earl
;
and
a
Decreet
being
obtained
for
the
said
Debt
,
against
Edward
Ruthven
the
Lord
Forresters
Son
,
as
having
succeeded
in
the
said
Estate
,
and
being
bonorum
possessor
,
and
having
Right
as
said
is
,
to
said
Estate
,
ought
to
be
Lyable
passive
to
the
Burden
.
The
Lords
,
by
the
said
Decreet
,
Declared
,
that
the
Estate
should
be
Lyable
;
and
thereupon
Adjudication
having
followed
against
the
said
Edward
,
of
a
part
of
the
Estate
,
and
Infeftment
upon
the
same
;
the
said
Edward
did
intent
Reduction
of
the
said
Adjudication
upon
that
Reason
,
That
the
said
Decreet
against
Edward
Ruthven
,
whereupon
it
proceeded
,
was
Extracted
wrongously
,
and
not
conform
to
the
Minuts
and
Interloquitor
;
which
were
in
these
Terms
,
that
the
Estate
should
be
Lyable
to
the
Debt
;
but
not
that
the
said
Edward
should
be
decerned
to
pay
;
as
the
Decreet
bears
:
And
that
there
could
be
no
Adjudication
against
the
said
Edward
,
who
was
not
Heir
to
the
said
Earl
:
but
there
ought
to
have
been
a
Decreet
and
Adjudication
,
against
his
Heirs
of
Line
,
being
charged
to
enter
Heir
.
Upon
Debate
among
the
Lords
,
some
were
of
the
Opinion
,
and
did
Represent
,
that
there
could
be
no
Adjudication
against
the
Heirs
of
Line
,
nor
Decereet
Cognitionis
causa
;
seing
they
could
not
be
charged
to
enter
Heir
in
special
to
that
Estate
,
which
,
by
the
Act
of
Parliament
did
not
belong
to
them
;
but
was
settled
upon
the
said
Edward
,
as
said
is
;
And
that
the
said
Decreet
against
Edward
was
Disconform
to
the
Lords
Interloquitor
;
Seing
it
was
not
intended
,
by
the
said
Decreet
,
that
the
said
Edward
or
any
other
Estate
of
his
should
be
Lyable
to
the
said
Debt
;
It
being
expresly
declared
in
the
said
Decreet
,
that
he
should
be
free
of
personal
Execution
:
And
the
said
Decreet
was
,
but
in
effect
,
a
Decreet
Cognitionis
causa
:
And
therefore
behooved
to
bear
the
Decerniture
foresaid
,
that
he
should
be
decerned
to
make
payment
,
which
was
only
dicis
causa
,
to
the
effect
Execution
might
follow
by
Adjudication
:
And
,
by
the
Summonds
,
whereupon
the
Decreet
proceeded
,
it
was
only
craved
,
that
the
Estate
should
be
affected
;
And
,
by
the
Adjudication
,
Bramfords
Estate
was
only
affected
,
and
the
Adjudger
was
content
to
declare
,
that
he
should
affect
no
other
Estate
.
Yet
some
of
the
Lords
were
of
the
Opinion
,
That
the
Decreet
not
being
in
these
Terms
,
that
the
Lords
decerned
Cognitionis
causa
,
to
the
effect
Execution
might
follow
against
Bramfords
Estate
;
It
was
in
Arbitrio
Judicis
,
to
sustain
the
Decreet
to
be
a
Ground
of
Adjudication
or
not
:
And
that
Mr.
William
Weir
,
having
been
accessory
to
the
Appeals
,
at
the
instance
of
Callender
from
the
Lords
of
Session
,
deserved
no
favour
:
And
it
was
carryed
by
plurality
,
that
the
Adjudication
should
be
reduced
.
Newtoun
Reporter
.
Mr.
John
Hay
Clerk
.
D.
388.
Sheill
Minister
of
Prestounkirk
contra
His
Parishoners
.
28.
November
1676.
THE
Lords
Found
,
That
Viccarage
Teinds
are
ruled
by
Custom
,
and
Local
as
to
the
Quota
and
Kinds
,
and
manner
of
payment
of
such
Teinds
as
are
truely
Viccarage
:
So
far
,
that
in
a
pursute
for
Viccarage
Teinds
;
The
Defenders
Alledging
,
that
some
of
them
had
been
in
use
of
paying
only
some
certain
Kinds
by
the
space
of
20.
Years
;
The
Lord
Found
the
said
Alledgance
Relevant
,
to
free
them
of
other
Kinds
;
Albeit
they
d
d
Reply
,
that
the
Pursuer
was
in
possession
of
the
Kinds
in
question
within
the
Parish
;
some
others
of
the
Parish
,
having
been
in
use
to
pay
the
same
:
And
that
Viccarage
is
nomen
universitatis
,
ut
Baronia
,
and
possession
of
a
part
interrupts
Prescription
;
and
is
,
in
Law
,
Possession
of
the
whole
.
Newtoun
Reporter
.
D.
389.
John
Ker
contra
Jean
Ker.
eod.
die
.
IN
a
pursute
at
the
instance
of
a
Donator
:
It
was
Alledged
,
That
the
Debt
pursued
for
,
was
Heretable
quoad
fiscum
:
And
it
being
Replyed
,
That
the
Pursuer
had
Right
thereto
as
Executor
Creditor
:
The
Lords
Found
Process
upon
that
Title
tho
supervenient
;
The
Testament
being
confirmed
after
the
intenting
of
the
Cause
.
In
the
same
Cause
,
It
was
Found
,
That
a
Testament
being
confirmed
,
the
nearest
of
Kin
ipso
momento
has
Jus
quaesitum
to
that
part
of
the
Goods
which
belong
to
them
,
and
do
transmit
the
same
to
their
Executors
,
and
these
who
represent
them
;
tho
the
Testament
was
not
Execute
,
before
the
decease
of
the
nearest
of
Kin
:
And
that
the
said
Interest
and
Action
,
being
in
effect
a
Legitima
,
and
competent
to
them
by
the
Law
and
Act
of
Parliament
,
is
settled
in
their
person
and
doth
transmit
;
tho
the
same
be
not
recovered
in
their
own
time
.
D.
390.
Scot
contra
Toish
.
eod.
die
.
AN
Assignation
,
being
made
in
Holland
,
according
to
the
custom
there
,
by
way
of
Instrument
,
under
the
Hand
of
a
Notar
,
a
Tabellion
having
retained
the
Warrand
in
his
Hands
,
Signed
by
the
Parties
,
was
sustained
,
in
respect
of
the
custom
and
consuetudo
loci
.
Justice-Clerk
Reporter
.
D.
391.
Drumellier
contra
E.
Tweeddale
.
30.
Novem.
1676.
IT
was
objected
against
a
Witness
,
That
he
was
Testis
Domesticus
,
being
Servant
to
the
Defender
;
at
least
having
been
his
Servant
the
time
of
the
Citation
:
Whereunto
It
was
Answered
,
That
he
was
not
presently
his
Servant
;
and
tho
he
was
his
Servant
the
time
of
the
Citation
,
he
might
now
be
a
habile
Witness
:
The
Reason
,
why
Servants
cannot
be
Witnesses
in
behalf
of
their
Masters
,
ceasing
in
this
Case
,
viz.
That
their
Masters
might
have
influence
upon
them
;
and
that
they
may
declare
in
their
Favours
,
out
of
fear
,
to
be
put
out
of
their
Service
:
And
as
to
the
pretence
,
that
it
is
presumed
,
that
the
Defender
put
the
Witness
out
of
his
Service
,
of
purpose
,
that
he
might
used
as
a
Witness
;
the
same
doth
amount
only
to
praesumptio
hominis
,
which
cedit
veritati
;
And
animus
and
design
not
being
probable
,
but
by
the
Oath
of
the
Party
,
the
Defender
and
the
Witness
were
free
to
declare
,
that
he
was
not
removed
out
of
the
Defenders
Service
upon
the
design
foresaid
;
And
it
was
more
strongly
to
be
presumed
,
that
neither
the
Defender
,
being
a
Person
of
Quality
,
nor
the
Witness
would
perjure
themselves
.
It
was
farder
urged
,
That
the
witness
was
to
be
used
upon
a
paper
that
had
been
produced
after
the
intention
of
the
Cause
,
and
for
improving
the
Date
of
the
same
;
And
that
he
was
removed
out
of
the
Defenders
Service
befor
the
production
of
the
said
paper
;
So
that
he
could
not
have
that
prospect
and
design
to
use
him
as
a
witness
,
and
that
he
was
removed
upon
the
account
foresaid
.
The
Lords
,
before
Answer
,
Ordained
,
that
the
Time
of
the
production
of
the
said
paper
might
be
tryed
.
Redford
Reporter
.
Gibson
Clerk
.
D.
392.
Grierson
contra
The
Laird
of
Lagg
.
1.
December
.
1676.
A
Superior
,
having
obtained
the
Gift
of
his
own
Ward
,
did
pursue
his
Subvassal
at
the
instance
of
a
Donator
,
in
Trust
and
to
his
behoof
for
Maills
and
Duties
,
dureing
the
Ward
:
And
the
Defender
having
Alledged
,
That
the
Pursute
was
to
the
behoof
of
the
Superior
himself
;
and
that
he
or
his
Predecessor
had
Disponed
to
the
Defender
his
Lands
with
absolute
warrandice
.
The
Lords
Found
,
That
the
Gift
of
Ward
,
being
given
to
the
Vassal
,
did
accresce
to
the
Subvassal
,
paying
his
proportion
of
the
Composition
:
Albeit
it
was
urged
,
that
as
the
King
might
have
given
the
said
Gift
to
another
,
he
might
have
given
it
to
the
Vassal
himself
;
and
he
could
not
be
in
a
worse
case
than
another
Donator
:
And
that
the
Subvassal
knowing
the
nature
of
the
Right
,
that
the
Superior
held
Lands
ward
;
was
Lyable
to
all
Casualities
arising
ex
natura
rei
,
to
what
Donator
soever
the
same
be
given
.
It
was
controverted
amongst
the
Lords
,
What
should
be
the
Ground
of
the
Decision
in
point
of
Law
:
And
some
were
of
the
Opinion
,
that
it
was
upon
that
Ground
,
that
Jus
superveniens
accrescit
;
the
Lands
being
disponed
to
the
Subvassal
ut
optima
maxima
:
But
it
was
the
Opinion
of
others
,
That
Jus
superveniens
accrescit
,
when
it
is
either
of
the
Property
,
or
of
any
Servitude
,
or
of
Casualities
that
had
fallen
before
the
Right
granted
to
the
Vassal
;
but
not
of
Casualities
arising
thereafter
ex
natura
rei
:
And
therefore
they
thought
,
that
the
Right
should
be
found
to
accresce
to
the
Vassal
,
upon
that
Ground
,
that
the
Relation
betwixt
a
Superior
,
and
his
Vassal
,
and
the
mutual
obligation
&
fides
betwixt
them
,
is
such
and
so
exuberant
,
that
the
Superior
should
not
take
advantage
of
a
Casuality
fallen
upon
account
of
his
own
person
,
and
by
his
Minority
:
And
that
a
Right
of
Ward
,
granted
to
the
Vassal
himself
,
or
to
any
other
to
his
behoof
,
is
upon
the
matter
a
Discharge
of
the
Casuality
,
both
as
to
himself
,
and
as
to
the
Subvassal
,
that
is
concerned
in
consequence
.
Newtoun
Reporter
.
Haystoun
Clerk
.
D.
393.
Home
contra
Scot.
eod
die
.
IN
a
Process
for
Mails
and
Duties
;
It
was
Alledged
,
That
one
of
the
Defenders
was
in
possession
by
the
space
of
7.
Years
,
by
vertue
of
a
Tack
,
and
had
the
benefite
of
a
possessory
Judgement
:
And
it
being
Replyed
,
That
he
ought
to
say
,
that
he
had
a
Tack
from
a
person
having
Right
:
And
neverthess
,
The
Lords
Found
,
That
is
was
sufficient
to
Alledge
,
that
he
had
a
Tack
,
and
by
vertue
thereof
in
so
long
possession
.
This
Decision
seemed
,
to
some
of
the
Lords
,
to
be
hard
;
in
respect
a
Tennent
is
not
properly
in
possession
,
but
detinet
to
the
behoof
the
Setter
;
So
that
he
could
be
in
no
better
case
than
his
Master
,
who
,
notwithstanding
of
his
possession
,
either
in
his
own
person
,
or
in
the
person
of
his
Tennent
,
cannot
plead
the
benefite
of
a
Possessory
Judgement
;
unless
he
had
,
or
should
alledge
upon
,
some
Right
;
And
if
the
Master
were
called
as
de
facto
he
was
in
the
said
process
,
It
were
inconsistent
,
that
his
Tennent
should
have
the
benefite
of
a
Possessory
Judgement
and
not
himself
.
In
praesentia
.
D.
394.
Rutherford
contra
Weddel
.
5.
December
.
1676.
THE
Lords
,
In
a
Suspension
at
the
instance
of
a
Bankrupt
,
who
was
Prisoner
;
did
allow
him
to
come
out
without
the
habite
;
Because
It
was
represented
,
that
the
Debt
was
for
the
most
part
not
contracted
by
himself
,
but
by
his
Father
:
Albeit
some
of
the
Lords
were
of
the
Opinion
,
that
the
Act
of
Sederunt
bearing
no
distinction
,
and
being
made
upon
good
consideration
,
and
conform
to
the
practice
of
all
other
Nations
;
That
Bankrupts
should
be
known
by
a
habite
to
be
persons
,
that
deserved
no
Trust
;
and
that
others
may
be
affrighted
from
contracting
or
under-going
Debts
,
which
they
are
not
able
to
pay
:
And
that
the
pretence
foresaid
was
frivolous
,
it
not
being
presumable
,
that
a
person
would
be
Heir
and
become
Lyable
to
Debts
,
that
he
had
not
Contracted
,
unless
there
were
Effects
and
sufficiency
of
Estate
,
to
pay
the
same
:
And
if
such
pretences
should
be
allowed
;
the
Law
would
be
altogether
elusory
.
Gosford
Reporter
.
Mr.
Thomas
Hay
Clerk
.
D.
395.
The
Town
of
Glasgow
contra
Greenock
.
7.
December
1676.
THE
Town
of
Glasgow
,
having
intented
a
Declarator
against
the
Laird
of
Greenock
,
containing
these
Conclusions
,
viz.
That
it
should
not
be
lawful
to
Greenock
,
or
his
Burgh
of
Barony
,
to
import
any
Goods
from
Abroad
;
which
,
by
the
late
Regulation
,
and
Act
of
Parliament
concerning
the
priviledges
of
Burghs
Royal
,
being
the
5.
Act
of
the
3d.
Session
of
his
Majesties
Second
Parliament
,
belongeth
to
the
Royal
Burghs
;
and
are
to
be
imported
by
them
privative
;
and
in
special
Wine
,
Brandy
;
and
Salt
.
2.
That
if
they
should
be
found
to
contraveen
the
said
Act
of
Parliament
,
that
the
unfree
Goods
deprehended
should
not
only
be
Escheat
;
but
their
whole
Goods
;
conform
to
former
Laws
and
Acts
of
Parliament
against
unfree
Men.
It
was
Alledged
for
the
Defenders
;
That
,
at
least
,
they
ought
to
be
in
the
same
case
as
Strangers
,
and
Unfree-men
of
Forreign
Nations
;
who
may
import
without
limitation
,
making
Offer
to
the
Royal
Burghs
;
and
if
they
do
not
buy
the
same
from
them
,
being
obliged
to
Sell
them
in
whole
sale
,
and
at
the
price
to
be
limited
and
appointed
by
the
Burgh
where
Offer
is
made
;
and
that
the
Burghs
of
Barony
had
been
in
use
of
importing
as
Strangers
,
the
same
being
qualified
as
said
is
;
And
the
said
Custom
was
not
contrary
to
Law
,
but
conform
to
diverse
Acts
of
Parliament
,
and
in
special
the
100
Act
of
K.
Ja.
5th
.
his
_____
Parliament
,
bearing
,
that
if
any
Free-man
,
or
other
Scots-man
dwelling
within
this
Realm
,
should
bring
home
Wines
,
Salt
,
or
Timber
;
That
the
Magistrates
of
Burghs
,
where
the
same
is
entered
,
should
set
a
price
upon
the
same
;
which
imports
that
Unfree-men
may
import
the
same
.
The
Lords
Found
,
That
by
the
said
late
Act
of
Parliament
;
The
matter
of
Trade
is
so
regulated
;
That
as
the
Burghs
of
Barony
their
priviledges
to
import
Goods
and
Commodities
,
that
they
could
not
import
before
,
are
settled
upon
them
;
and
on
the
other
part
,
Royal
Burghs
are
secured
from
the
encroachment
of
Burghs
of
Barony
;
So
that
they
cannot
import
,
but
the
particulars
allowed
to
them
by
the
said
Act
:
Therefore
that
,
upon
no
pretence
,
the
Burghs
of
Barony
and
Unfree-Men
can
import
any
other
Goods
;
and
that
they
are
not
to
have
the
Liberty
that
Strangers
have
;
Seing
Strangers
are
allowed
the
Liberty
of
Trade
and
Commerce
,
being
qualified
as
said
is
:
And
if
the
same
were
denyed
,
there
would
be
no
Trade
betwixt
our
Merchants
and
them
:
Whereas
the
Liberty
of
Trade
,
and
to
import
Forreign
Commodities
,
is
only
lodged
and
settled
upon
Royal
Burrows
,
upon
good
Considerations
;
and
intuitu
of
the
same
they
are
Lyable
to
a
6th
.
part
of
Taxations
,
and
other
publick
Burdens
.
2.
It
was
Found
,
That
,
albeit
in
the
late
Act
of
Parliament
,
there
be
not
mention
of
Salt
as
one
of
the
Commodities
allowed
to
the
Royal
Burrows
,
and
contained
in
the
specification
,
that
the
same
does
only
belong
to
the
Royal
Burrows
;
Seing
they
are
founded
as
to
all
Commodities
,
not
expresly
allowed
by
the
said
Act
to
Burghs
of
Barony
and
Regality
in
Jure
:
And
the
Burghs
of
Barony
are
excluded
,
by
the
said
Act
,
as
to
all
others
except
these
allowed
to
them
expresly
by
the
said
Act
;
and
come
under
that
general
,
viz.
Such
as
are
necessary
for
Tillage
or
Building
,
or
for
the
use
of
their
Manufacture
.
And
whereas
it
was
pretended
by
the
Defenders
,
that
Salt
is
necessary
for
the
curing
of
their
Fishes
.
The
Lords
Found
,
That
Manufacture
,
intended
by
the
Acts
of
Parliament
,
is
only
to
be
understood
of
Works
erected
by
Companies
or
others
for
making
of
Cloath
,
or
such
like
;
about
which
many
poor
People
are
Employed
and
Entertained
:
And
tho
there
be
skill
in
cureing
Herring
,
they
are
not
a
Manufacture
,
but
a
Native
Commodity
,
without
any
alteration
of
the
form
,
and
only
qualified
by
the
cureing
of
the
same
:
And
that
,
upon
that
pretence
,
the
Defenders
ought
not
to
be
allowed
to
import
Salt
:
But
was
Recommended
to
some
of
the
Lords
,
being
also
upon
the
Council
,
to
move
that
a
course
might
be
taken
for
Regulateing
the
price
of
Salt
;
that
it
be
not
Arbitrary
to
the
Royal
Burrowes
,
to
sell
the
same
at
such
Rates
,
as
the
Burghs
of
Barony
cannot
,
without
prejudice
,
buy
the
same
;
So
that
they
may
be
forced
to
desist
from
making
or
exporting
Herring
.
The
Lords
Found
,
That
the
said
Act
having
defined
the
pain
to
be
the
Escheat
of
the
Goods
deprehended
;
And
not
the
Escheat
of
the
Contraveeners
whole
Goods
:
And
that
as
to
Goods
not
deprehended
,
the
pain
ought
not
to
be
greater
:
And
that
these
who
import
unlawful
Goods
,
contrare
to
the
Act
,
tho
they
be
not
deprehended
,
may
be
pursued
for
the
value
of
the
same
,
and
no
farder
.
Some
of
the
Lords
were
of
another
Opinion
,
as
to
this
Point
,
and
thought
,
that
seing
the
late
Act
of
Parliament
,
doth
mention
only
the
case
of
unlawful
Goods
deprehended
;
and
doth
regulate
the
former
Practice
,
as
to
the
attaching
and
affecting
of
the
same
;
and
it
is
inconsistent
,
that
both
the
Goods
deprehended
should
be
escheat
,
and
likeways
the
Contraveeners
other
Goods
should
be
escheat
;
That
therefore
the
former
Laws
are
still
in
vigour
.
Actor
Lockheart
,
&c.
alteri
Cuningham
.
In
praesentia
.
D.
396.
Marshal
contra
Holmes
.
12
December
1676.
AN
Advocation
being
produced
,
after
the
Judge
had
decerned
,
but
before
he
had
cleared
and
dictate
the
minute
of
the
Decreet
;
which
he
did
upon
the
Bench
,
immediatly
after
production
of
the
Advocation
.
The
Lords
Found
the
Decreet
Null
,
as
being
spreto
mandato
:
But
,
in
respect
of
the
Circumstances
,
and
that
the
Judge
had
decerned
before
,
as
said
is
,
they
turned
it
in
a
Lybel
.
Thesaurer-deput
Reporter
.
Gibson
Clerk
.
D.
397.
Durham
contra
Durham
.
eod.
die
.
SIR
Alexander
Durham
having
upon
Death-bed
,
given
Bond
to
the
Lord
Clermount
,
for
20000.
merks
;
and
at
the
same
time
,
having
ordained
his
Nevoy
Mr.
Francis
Durham
his
appearand
Heir
,
to
pay
to
Adolphus
,
natural
Son
to
the
said
Sir
Alexander
,
6000.
merks
;
The
said
Mr.
Francis
did
,
after
the
Defuncts
decease
,
grant
Bond
relative
to
the
foresaid
Bond
,
and
to
the
order
for
Adolphus
his
Provision
;
whereby
he
ratified
the
foresaid
Bond
,
and
was
obliged
to
pay
the
said
Provision
to
Adolphus
,
upon
this
condition
,
that
the
Countess
of
Midleton
should
Warrand
and
Relieve
the
Estate
of
Largo
,
from
all
Inconvenients
,
and
in
special
,
such
as
might
arise
from
his
Uncles
Intromission
,
with
publick
Accompts
;
and
if
the
Estate
should
not
be
free
,
in
manner
foresaid
,
that
the
said
Bond
should
be
void
.
The
said
Adolphus
having
pursued
upon
the
foresaid
Bond
,
It
was
Alledged
,
That
it
was
Conditional
,
as
said
is
;
And
the
Defender
did
condescend
,
that
the
Estate
was
distressed
for
a
Debt
of
20000
Merks
,
for
which
a
Decreet
was
recovered
against
his
Heir
.
The
Lords
Found
notwithstanding
,
That
the
said
Resolutive
Condition
was
to
be
understood
so
,
that
the
Bond
should
not
be
void
altogether
;
but
only
proportionally
effeirand
to
the
distress
.
Newton
Reporter
.
Mr.
Thomas
Hay
Clerk
.
This
Decision
,
tho
it
may
appear
equitable
,
appears
to
be
hard
in
strictness
of
Law
;
the
precise
Terms
of
the
Condition
being
considered
.
D.
398.
Colledge
of
Glasgow
contra
Parishoners
of
Jedburgh
.
eod.
die
.
THE
Lords
Found
,
That
a
Presentation
of
an
actual
Minister
before
the
Term
,
was
not
a
compleat
Right
to
the
Stipend
;
unless
there
had
been
a
Warrand
for
his
Transportation
.
Thesaurer-deput
Reporter
,
Gibson
Clerk
.
D.
399.
Inglis
contra
Inglis
.
13.
December
1676.
MR.
Cornelius
Inglis
,
having
granted
a
Bond
to
Mr.
John
Inglis
,
for
a
Sum
due
to
himself
,
and
for
his
Relief
of
Cautionries
for
the
said
Mr.
Cornelius
;
whereby
he
was
obliged
,
for
his
Surety
,
to
infeft
him
in
certain
Lands
to
be
possessed
by
him
,
in
case
of
not
payment
of
the
Annualrent
due
to
himself
,
and
the
reporting
Discharges
from
the
Creditors
to
whom
he
was
engaged
:
and
whereupon
the
said
Mr.
John
was
infeft
by
a
base
Infeftment
.
The
said
Mr.
Cornelius
,
in
respect
his
Son
Mr.
Patrick
had
undertaken
to
pay
his
Debts
,
did
dispone
to
him
his
Lands
;
whereupon
the
said
Mr.
Patrick
was
infeft
by
a
Publick
Infeftment
.
The
said
Lands
being
thereafter
Comprised
from
the
said
Mr.
Patrick
;
and
there
being
a
Competition
betwixt
the
said
Mr.
John
Inglis
,
and
diverse
other
Creditors
of
the
said
Mr.
Cornelius
and
his
Son
Mr.
Patrick
,
who
had
comprised
the
said
Lands
from
the
said
Mr.
Patrick
:
The
Lords
Found
,
That
Mr.
John
Inglis
was
preferable
to
the
said
other
Creditors
;
In
respect
,
tho
their
Infeftments
upon
their
Comprisings
were
publick
and
the
said
Mr.
John
his
Infeftment
was
holden
of
the
granter
,
yet
the
said
Mr.
John's
Right
was
publick
as
to
Mr.
Patrick
,
in
swa
far
as
,
the
said
Mr.
Patrick
had
corroborate
the
same
;
and
,
before
the
said
Comprisings
,
had
made
payment
to
the
said
Mr.
John
,
of
certain
bygone
Annualrents
,
in
contemplation
of
his
said
Right
;
and
had
taken
a
Discharge
from
him
,
relating
to
the
same
;
so
that
his
Right
,
being
Publick
as
to
Mr.
Patrick
,
was
publick
as
to
those
who
had
Right
from
him
;
and
Infeftments
holden
of
the
Granter
,
being
valid
Rights
by
the
Common
Law
;
and
by
Act
of
Parliament
and
Statute
,
invalid
only
as
to
others
,
who
had
gotten
publick
Infeftments
,
in
respect
of
the
presumption
of
Fraud
and
Simulation
;
the
said
Presumption
cedit
veritati
,
and
in
this
case
is
taken
away
in
manner
foresaid
.
The
Lords
Found
,
That
notwithstanding
that
the
Right
was
granted
to
Mr.
Patrick
,
upon
the
Consideration
foresaid
,
and
for
payment
of
the
Debts
thereinmentioned
,
that
the
Creditors
mentioned
in
the
same
,
had
not
a
real
Interest
in
the
said
Lands
,
but
only
a
personal
Action
against
the
said
Mr.
Patrick
;
in
respect
the
said
Right
was
not
granted
to
him
for
their
use
and
behoof
;
neither
was
it
expresly
burdened
with
their
Debts
:
and
therefore
the
Lords
did
Find
,
That
all
the
Creditors
,
both
of
the
said
Mr.
Cornelius
and
Mr.
Patrick
,
who
had
Comprised
within
Year
and
Day
,
should
come
in
pari
passu
.
D.
400.
Margaret
Nevoy
contra
the
Lord
Balmerinoch
.
eod.
die
.
THE
Lord
Balmerinoch
was
pursued
,
as
Representing
and
Behaving
as
Heir
to
the
Lord
Couper
,
at
the
Instance
of
Margaret
Nevoy
,
and
diverse
other
Creditors
of
the
said
Lord
Couper
;
upon
that
Ground
,
that
he
had
ratified
a
Disposition
,
made
by
the
said
Lord
Couper
,
in
favours
of
his
Lady
on
Death-bed
;
and
was
obliged
to
comprise
the
saids
Lands
,
and
to
give
the
said
Lady
a
Right
to
the
Comprysing
,
to
be
deduced
,
that
should
be
preferable
to
other
Creditors
;
And
that
by
the
Act
of
Sederunt
in
my
Lord
Nithsdales
Case
,
appearand
Heirs
,
granting
Bonds
to
the
effect
their
Predecessors
Estate
may
be
established
in
their
Person
or
in
the
Person
of
some
Confident
to
their
behoof
,
are
lyable
as
Behaving
:
and
It
was
Alledged
for
the
Defender
,
that
Behaving
is
magis
animi
quam
facti
,
and
it
is
evident
that
the
Defender
did
shune
to
be
Heir
;
and
did
of
purpose
take
the
Course
foresaid
,
that
he
should
not
represent
the
defunct
.
The
Lords
Found
,
That
the
Condescendence
was
only
relevant
in
these
Terms
,
viz.
That
the
Defender
,
or
any
Confident
to
his
behoof
,
had
comprised
the
said
Estate
for
Balmerinoch's
own
Debt
;
and
had
possest
by
vertue
of
the
Comprysing
:
Or
that
the
Lord
Balmerinoch
had
communicate
the
Right
of
the
said
Comprysing
to
the
Lady
Couper
;
and
that
she
had
possest
by
vertue
thereof
;
and
could
not
defend
her self
with
her
own
Right
as
being
in
Lecto
,
Or
otherwayes
defective
.
It
was
the
Opinion
of
some
of
the
Lords
,
That
it
was
sufficient
and
Relevant
to
say
,
that
Balmerinoch
had
Comprysed
for
his
own
Debt
;
and
was
obliged
to
Communicate
the
said
Comprysing
;
and
had
ratified
the
Lady
Couper's
Right
:
For
these
Reasons
.
1.
The
Law
considers
quod
agitur
,
and
not
quod
simulate
concipitur
;
And
the
Lord
Balmerinoch
,
by
taking
the
course
foresaid
to
compryse
for
his
own
Debt
,
intends
upon
the
matter
adire
,
and
to
carry
away
his
Uncles
Estate
,
to
frustrate
Creditors
.
2.
Tho
it
be
pretended
,
that
there
is
a
difference
betwixt
Nithsdal's
Case
and
this
,
In
respect
in
that
case
,
the
Adjudication
was
upon
Bonds
granted
by
himself
,
after
his
Fathers
decease
;
And
,
in
this
,
the
Comprysing
is
for
my
Lord
Balmerinoch's
Debts
,
Contracted
before
my
Lord
Couper's
Death
;
The
said
difference
is
not
considerable
,
seing
as
to
that
case
,
there
was
a
design
to
carry
away
the
Defuncts
Estate
,
by
a
Deed
of
the
Appearand
Heir
,
to
the
prejudice
of
Creditors
;
and
there
is
the
same
in
this
.
3.
Tho
my
Lord
Balmerinoch
had
granted
only
a
Ratification
,
without
Communicating
any
Right
;
eo
ipso
he
behaved
as
Heir
;
In
respect
he
had
ratified
the
Ladies
Right
,
for
any
Right
or
Interest
he
had
himself
;
and
he
had
an
Interest
,
as
Appearand
Heir
,
sufficient
to
establish
a
Right
in
the
Person
of
the
said
Lady
,
and
to
prejudge
Creditors
;
so
that
they
could
not
question
the
same
;
Seing
Rights
on
Death-bed
,
being
consented
to
by
the
Appearand
Heir
when
they
are
made
,
or
ex
post
facto
,
become
valid
and
unquestionable
ex
capite
Lecti
,
as
appears
by
the
Law
of
the
Majesty
,
concerning
Rights
on
Death-bed
.
D.
401.
Earl
of
Argyle
contra
The
Lord
Mcdonald
.
14.
December
1676.
THE
Earl
of
Argyle
,
having
pursued
the
Lord
Mcdonald
,
for
Reduction
of
a
Feu
holden
of
the
Pursuer
ob
non
solutum
Canonem
;
It
was
Alledged
,
That
the
Defender
had
a
disposition
of
the
Superiority
from
Lochzeal
before
my
Lord
Argyl's
Right
,
by
a
Disposition
likewayes
from
him
:
And
tho
my
Lord
Argyle
,
having
compleated
his
Right
before
the
Pursuer
by
an
Infeftment
upon
the
same
,
will
have
Right
to
the
Feu-duties
after
his
Infeftment
;
yet
the
Defender
had
Right
to
the
bygones
by
the
foresaid
Disposition
made
to
him
;
which
,
being
of
the
Lands
and
Superiority
and
made
to
the
Vassal
himself
,
was
,
upon
the
matter
,
an
Assignation
to
the
Feu-duties
and
a
Discharge
:
And
farder
,
That
as
to
the
Feu-duties
after
my
Lord
Argyl's
Right
,
he
was
in
bona
fide
,
not
to
pay
the
same
,
having
the
foresaid
Disposition
as
said
is
:
And
my
Lord
Argyle
having
done
nothing
upon
his
Right
to
make
Interruption
;
And
therefore
the
Summonds
ought
not
to
be
sustained
upon
Cessation
and
not
payment
,
before
Intimation
of
the
Pursuers
Right
to
the
Defender
:
Both
which
Alledgances
the
Lords
Found
Relevant
.
In
the
same
Case
,
The
Lord
Mcdonald
having
proponed
an
Alledgance
,
viz.
That
my
Lord
Argyle
was
obliged
by
Bond
to
warrand
Lochzeal
at
the
Hands
of
the
Defender
;
and
of
any
pursute
competent
upon
the
said
Disposition
made
to
the
Defender
,
&
quem
de
evictione
tenet
Actio
,
agentem
repellit
Exceptio
;
And
the
same
being
Found
Relevant
,
the
Defender
giving
his
Oath
of
Calumny
thereupon
;
The
Lords
,
In
respect
the
Defender
being
in
Town
had
refused
,
at
least
had
not
come
to
give
his
Oath
of
Calumny
,
had
decerned
:
But
the
Lord
Mcdonald
having
intented
Reduction
of
that
Decreet
,
upon
offer
to
give
his
Oath
of
Calumny
;
upon
pretence
,
that
it
was
towards
the
end
of
the
Session
,
when
his
Oath
of
Calumny
was
craved
;
and
that
upon
some
occasions
,
he
had
been
forced
to
go
home
,
It
was
Alledged
for
the
Earl
of
Argyle
,
that
upon
Mcdonalds
Refusal
to
give
his
Oath
of
Calumny
,
it
was
,
in
construction
of
Law
,
a
Calumnious
Alledgance
,
and
could
not
now
be
received
;
And
the
greatest
favour
could
be
shown
to
him
,
was
,
that
he
should
be
heard
to
verify
the
same
instanter
.
The
Lords
did
decern
,
superseding
Extracting
,
until
a
day
in
January
;
that
,
in
the
mean
time
,
the
Defender
might
verify
the
said
Alledgance
;
having
taken
his
Oath
of
Calumny
,
that
the
Write
was
not
in
his
own
Hand
.
Actores
Lockheart
and
Bernie
.
alteri
Cuninghame
and
Thoirs
.
In
praesentia
.
D.
402.
Litlejohn
contra
Mitchel
.
eod.
die
.
THE
Lords
Found
,
That
Bonds
granted
on
Death-bed
,
albeit
they
are
Legacies
,
as
to
that
effect
,
that
they
do
affect
only
the
Deads
part
,
yet
they
are
preferable
to
other
Legacies
left
in
the
ordinary
wayes
of
Legacies
;
and
that
the
Defunct
was
in
legitima
potestate
as
to
the
affecting
of
his
part
,
and
granting
of
Bonds
to
that
effect
.
Justice
Clerk
Reporter
.
Gibson
Clerk
.
D.
403.
_____
contra
_____
eod.
die
.
THO
in
Improbations
the
user
of
Writes
,
questioned
as
false
,
ought
to
compear
to
abide
by
the
same
;
yet
a
Commission
was
granted
to
take
the
Defenders
Declaration
that
he
did
abide
by
,
In
respect
he
was
a
person
of
great
Age.
D.
404.
Wallace
contra
Murray
.
eod.
die
.
THERE
being
a
pursute
,
at
the
instance
of
a
Creditor
against
the
Representatives
of
an
Intrometter
with
the
Debitors
Goods
,
The
Lords
Found
,
That
the
Passive
Title
of
Intrometter
could
not
be
sustained
,
after
the
Intrometters
decease
,
to
make
him
Lyable
as
universal
Intrometter
:
And
yet
sustained
the
same
in
quantum
he
was
locupletatus
;
the
Pursuer
for
the
Defenders
farder
surety
,
confirming
before
the
Extracting
of
the
Sentence
,
a
Testament
as
Executor
Creditor
to
his
Debitor
.
Thesaurer
Depute
Reporter
.
Gibson
Clerk
.
D.
405.
Grant
of
Rosollis
contra
L.
Bamff
.
19.
Decem.
1676.
THE
Lord
Bamff
,
having
acquired
the
Lands
of
Craigstoun
from
John
Lyon
,
did
give
three
Bonds
to
the
said
John
Lyon
Blank
in
the
Creditors
Name
,
containing
each
of
them
5000
Merks
;
And
,
at
the
desire
of
the
said
John
,
did
give
a
Letter
with
the
said
Bonds
with
a
Blank
direction
,
bearing
that
the
said
John
Lyon
,
having
Disponed
to
him
the
Lands
of
Craigstoun
,
for
which
he
had
become
Debitor
by
certain
Blank
Bonds
containing
5000
Merks
;
And
therefore
desireing
that
no
person
might
scruple
to
take
the
said
Bonds
;
For
it
should
be
no
dissatisfaction
to
him
,
that
they
took
them
without
acquainting
him
;
but
that
it
should
be
holden
,
as
if
they
had
received
the
Bonds
in
the
beginning
,
and
had
their
Names
filled
up
therein
at
that
time
.
The
said
John
Lyon
did
fill
up
the
Name
of
John
Grant
of
Rosollis
in
the
said
Bonds
;
and
delivered
the
said
Letter
to
him
,
putting
a
direction
upon
the
same
,
for
the
said
John
Grant
:
Whereupon
the
Lord
Bamff
being
charged
did
Suspend
,
upon
that
reason
,
that
he
ought
to
have
Retention
,
because
the
said
Bonds
were
granted
for
the
price
of
the
said
Lands
and
in
contemplation
of
a
valid
surety
,
free
of
all
Incumberances
;
and
the
surety
not
being
valid
,
In
respect
the
Lands
were
affected
with
Hornings
,
Inhibitions
,
and
Comprysings
,
equivalent
to
the
Sums
contained
in
the
Bonds
;
he
had
in
Law
Condiction
,
as
being
ob
causam
non
secutam
.
There
was
also
compearance
for
the
Donator
of
the
said
John
Lyons
Escheat
,
who
did
produce
his
Gift
and
Decreet
of
general
Declarator
;
and
Alledged
,
that
he
ought
to
be
preferred
,
because
he
had
Right
to
the
Sums
due
by
the
said
Blank-bonds
;
In
respect
the
Chargers
Name
was
filled
up
in
cursu
Rebellionis
:
And
the
said
Blanks
,
being
ab
initio
the
Rebells
,
while
they
were
Blank
,
they
fell
under
his
Escheat
;
and
he
could
not
fill
up
,
or
deliver
the
same
,
in
prejudice
of
the
Fisk.
The
Lords
Found
,
That
the
pretence
foresaid
of
Condictio
causa
data
,
tho
competent
against
the
said
John
Lyon
himself
,
if
the
Bonds
had
been
filled
up
in
his
own
Name
,
would
not
be
competent
against
the
Charger
,
if
his
Name
had
been
filled
up
ab
initio
;
Because
if
the
Suspender
had
been
content
to
give
Bond
to
him
,
It
would
have
been
delegatio
,
in
which
case
the
Exceptions
competent
against
delegantem
would
not
have
been
competent
against
the
Person
,
in
whose
favours
the
Delegation
was
made
:
And
that
the
Charger
was
upon
the
matter
in
the
same
case
,
seing
the
Suspender
by
his
Letter
was
content
,
that
the
Bonds
should
be
holden
,
as
if
they
had
been
filled
up
ab
initio
.
The
Lords
also
Found
,
That
the
said
Bonds
being
Blank
,
tho
they
continued
Blank
,
were
the
said
John
Lyons
proper
Bonds
;
and
if
he
had
deceased
before
the
filling
up
of
the
same
,
they
would
have
fallen
under
his
Executry
;
and
consequently
,
he
being
Rebel
and
his
Escheat
gifted
and
declared
,
they
fell
under
his
Escheat
:
And
His
Majesty
,
and
the
Donator
could
not
be
prejudged
by
any
Deed
of
the
Rebel
,
in
filling
up
of
the
same
.
It
was
also
Found
,
That
albeit
the
Lord
Bamff
,
by
his
Letter
,
was
bound
up
,
that
he
could
not
question
the
said
Bonds
upon
the
pretence
foresaid
of
Condictio
,
or
any
other
that
might
have
been
competent
against
the
said
John
Lyon
;
Yet
,
notwithstanding
of
the
said
Letter
,
the
King
might
have
given
,
and
he
might
accept
either
a
Gift
of
Lyons
Escheat
,
or
a
Right
from
the
Donator
,
and
thereupon
might
claim
Right
to
the
said
Sums
.
Thesaurer
Depute
Reporter
.
Mr.
John
Hay
Clerk
.
D.
406.
Tennent
,
Young
,
and
others
,
contra
Sandy
Procurator-Fiscal
of
the
Regality
of
Ogilface
.
eod.
die
.
IN
a
Declarator
of
a
Liferent-Escheat
;
It
was
Alledged
,
That
there
could
be
no
Escheat
upon
the
Horning
Lybelled
;
Because
it
was
upon
Letters
direct
by
the
Secret
Council
,
upon
a
Decreet
of
a
Regality
Court
;
And
by
the
Acts
of
Parliament
,
The
Lords
of
Session
are
only
warranted
,
to
direct
Letters
of
Horning
summarly
,
upon
the
Decreets
of
Sheriffs
,
and
Baillies
of
Regality
,
and
other
Inferior
Judges
.
The
Lords
Thought
,
That
the
Council
could
not
direct
Letters
of
Horning
upon
the
said
Decreet
;
Seing
,
before
the
Acts
of
Parliament
,
Letters
of
Horning
could
not
be
direct
upon
the
Decreets
of
Inferiour
Judges
summarly
,
without
a
Decreet
Conforme
before
the
Lords
of
Session
;
And
Statutes
being
Stricti
Juris
,
the
Council
could
not
direct
Letters
,
unless
by
the
same
Statute
they
had
been
warranted
to
that
effect
;
and
it
appears
,
that
the
said
Statute
was
founded
upon
good
Reason
and
Considerations
,
tho
they
be
not
exprest
,
viz.
That
the
Lords
of
Session
are
always
sitting
in
the
time
of
Session
;
and
in
vacance
,
there
is
some
of
their
Number
appointed
to
receive
and
pass
Bills
of
Suspension
,
if
there
be
cause
;
whereas
the
Council
sitteth
but
once
a
Week
ordinarly
in
Session-time
;
and
in
Vacance
but
thrice
.
2.
The
Lords
do
not
pass
Suspensions
but
upon
good
Reasons
,
and
they
are
to
consider
the
said
Decreets
,
which
is
not
proper
for
the
Council
.
3.
As
Suspensions
are
raised
of
the
said
Decreets
,
so
oft
times
there
is
a
necessity
of
raising
Reductions
;
and
the
Lords
of
Council
are
not
competent
Judges
to
the
Reduction
of
the
said
Decreets
:
But
the
Lords
thought
not
fit
,
that
there
should
be
a
question
betwixt
them
and
the
Council
,
concerning
their
Priviledge
;
and
therefore
did
forbear
to
give
answer
,
until
some
accommodation
should
be
endeavoured
:
And
it
was
proposed
by
some
,
that
the
Decreet
of
the
Regality
Court
,
being
for
keeping
of
Conventicles
;
and
that
practice
,
concerning
so
much
the
Peace
of
the
Countrey
,
that
all
Disturbance
thereby
might
be
prevented
;
and
upon
that
account
,
it
being
recommended
to
the
Council
,
by
Act
of
Parliament
,
that
they
should
see
the
Laws
against
Conventicles
put
effectually
in
execution
;
The
Council
,
as
they
might
conveen
the
Contraveeners
before
themselves
,
may
commissionate
the
Inferiour
Courts
to
proceed
as
their
Delegats
;
and
upon
their
Decreets
given
by
them
as
their
Delegats
,
that
they
may
direct
Letters
of
Horning
.
Thesaurer-depute
Reporter
.
D.
407.
Ker
contra
Hunter
.
20
December
1676.
A
Personal
Action
was
sustained
,
upon
a
Right
of
Annualrent
,
against
the
Tennents
during
their
Possession
,
for
the
Mails
and
Duties
effeirand
to
the
said
Annualrent
.
Thesaurer-depute
Reporter
.
Mr.
Thomas
Hay
Clerk
.
D.
408.
Carnegie
of
Balmachie
contra
Durham
of
Anachie
.
eod.
die
.
THE
Lords
Found
,
That
albeit
by
the
common
Law
,
Annualrent
be
due
for
Tocher
;
yet
,
by
Our
Custom
,
it
is
not
payable
,
unless
it
be
so
provided
by
the
Bond
or
Contract
for
the
same
:
but
in
the
case
in
question
,
They
Found
the
Defender
lyable
to
pay
Annualrent
,
in
respect
the
Debitor
had
been
in
use
of
payment
,
at
the
least
,
had
promised
to
pay
Annualrent
for
certain
years
bygone
:
and
Annualrent
once
payed
,
implyes
a
tacite
Paction
to
continue
the
payment
of
the
same
.
Thesaurer-depute
Reporter
.
_____
Clerk
.
D.
409.
Veitch
contra
Pallat.
eod.
die
.
THE
Lords
Found
,
That
a
Rebel
,
contracting
Debt
after
Rebellion
,
cannot
assign
in
satisfaction
of
the
same
,
any
debt
due
to
him
:
and
tho
the
Assigney
should
transact
with
the
Debitor
of
the
Debt
assigned
,
before
a
Gift
and
Declarator
;
the
Donator
will
be
preferable
.
Lockheart
and
Hog
for
Veitch
,
alteri
Cuningham
and
Seaton
.
Gibson
Clerk
.
In
praesentia
.
D.
410.
Inter
eosdem
.
eod.
die
.
AND
in
the
same
Case
,
It
was
Found
,
That
a
Bond
granted
after
Horning
,
tho
it
did
bear
that
the
same
was
for
Wines
;
yet
being
the
Rebels
assertion
,
could
not
prejudge
the
King
:
but
it
being
alledged
,
and
offered
to
be
proven
,
that
the
said
Wines
were
truely
furnished
before
the
Rebellion
:
The
Lords
Found
the
Alledgance
relevant
to
be
proven
,
only
by
the
Rebels
Compt
Books
,
and
by
Books
of
Entry
;
and
not
simply
by
Witnesses
,
without
such
Adminicles
in
Write
.
D.
411.
Pallat
contra
Veitch
.
eod.
die
.
THE
Lords
likeways
Found
,
That
the
Presumption
introduced
by
the
Act
of
Parliament
,
that
Gifts
of
Escheat
are
simulate
,
in
respect
that
the
Rebel
is
suffered
to
possess
;
is
only
in
that
case
,
where
the
Rebel
has
a
Visible
and
Considerable
Estate
of
Lands
or
Tacks
,
and
is
in
possession
of
the
same
:
but
when
the
Rebells
Estate
is
either
not
considerable
,
consisting
only
of
an
Aiker
or
two
,
(
which
was
the
case
in
question
)
or
in
nominibus
,
and
not
known
to
the
Donator
,
so
that
the
Donator
had
reason
not
to
trouble
himself
,
and
to
look
after
either
that
which
was
inconsiderable
,
or
which
was
not
known
to
him
;
there
is
no
ground
to
presume
that
the
Gift
is
simulate
.
D.
412.
Tait
contra
Walker
.
22.
December
1676.
THE
Children
of
a
second
Marriage
,
having
pursued
the
Son
of
the
first
,
for
Implement
of
their
Mothers
Contract
of
Marriage
,
and
the
Provisions
therein
contained
in
their
favours
:
It
was
Alledged
,
That
they
were
Debitors
themselves
,
in
swa
far
as
,
they
were
Executors
named
and
confirmed
to
their
Father
:
And
It
being
Replyed
,
That
the
Testament
was
given
up
by
the
Mother
,
they
being
Infants
for
the
time
,
and
she
was
not
their
Tutrix
,
and
so
could
not
bind
them
.
The
Lords
Found
,
That
there
was
Difficulty
in
the
case
,
in
respect
the
Pursuers
were
now
past
40
years
,
and
they
had
never
questioned
or
desired
to
be
reponed
against
the
said
Confirmation
:
And
on
the
other
part
,
It
was
hard
,
that
a
Deed
of
their
Mother
,
having
no
Authority
to
do
the
same
as
Tutor
or
Curator
should
bind
them
;
and
there
was
no
necessity
to
be
reponed
against
the
same
,
it
not
being
their
Deed
,
and
being
ipso
Jure
void
:
and
therefore
before
Answer
,
the
Lords
thought
sit
to
try
,
if
the
Pursuers
had
meddled
with
any
part
of
the
Executry
,
or
had
done
any
Deed
that
could
import
Homologation
of
the
said
Testament
.
Newbyth
Reporter
.
D.
413.
_____
contra
_____
eod.
die
.
IT
was
questioned
amongst
the
Lords
,
whether
an
Inhibition
could
be
sustained
,
albeit
the
Execution
did
not
bear
a
Copy
to
have
been
affixt
at
the
Mercat-cross
;
And
it
was
Resolved
as
to
the
future
,
it
should
be
declared
,
that
Executions
of
Inhibitions
should
be
null
,
unless
Copies
were
affixt
;
In
respect
there
can
be
no
Executions
without
giving
of
Copies
,
either
personally
,
or
at
their
dwelling
house
:
And
when
the
Leidges
are
inhibite
at
the
Mercat-cross
in
general
,
so
that
a
Copy
cannot
be
given
to
every
person
,
it
ought
to
be
left
at
the
Mercat-cross
in
subsidium
:
But
,
because
it
was
informed
,
that
many
Executions
did
not
bear
Copies
to
be
left
at
the
Mercat-cross
,
The
Lords
did
forbear
to
give
Answer
as
to
the
Inhibition
in
question
,
until
the
stile
and
custom
should
be
tryed
.
D.
414.
Dick
of
Grange
contra
Sir
Andrew
Dick.
22.
December
.
1676.
SIR
Andrew
Dick
having
obtained
,
upon
a
Petition
to
His
Majesty
,
a
Warrand
to
the
Exchequer
,
to
pay
to
his
Wife
and
Children
130
lib.
sterl
.
Yearly
:
The
said
Annuity
being
Arrested
at
the
instance
of
_____
Dick
of
Grange
;
It
was
Alledged
,
in
a
Process
to
make
forthcoming
,
that
,
being
Alimentary
,
it
could
not
be
Arrested
:
Whereunto
it
was
Replyed
,
that
the
said
Sum
was
not
Alimentary
,
so
that
it
could
not
be
affected
with
Sir
Andrew
his
Debts
;
In
respect
,
whatsomever
belongeth
to
a
Debitor
,
either
on
his
own
Right
or
Jure
Mariti
is
Lyable
to
his
Debts
;
and
it
is
not
in
the
Power
of
a
Debitor
to
make
any
thing
belong
unto
him
Alimentary
,
but
there
must
be
an
express
constitution
to
that
effect
;
which
is
only
in
that
case
,
where
the
King
or
any
other
person
doth
give
any
thing
,
and
doth
qualify
their
own
Gift
with
that
express
provision
,
that
it
should
be
only
for
the
Aliment
of
the
person
gratified
,
that
it
should
not
be
affected
with
any
Debt
or
Execution
for
the
same
;
whereas
His
Majesties
Grant
was
only
in
the
Terms
foresaid
,
and
was
procured
from
His
Majesty
,
not
upon
any
special
consideration
or
respect
to
Sir
Andrew's
Lady
,
but
upon
a
Representation
made
by
Sir
Andrew
,
that
he
had
a
former
Wadset
from
the
Earl
of
Mortoun
of
his
Estate
in
Orknay
,
and
the
same
being
taken
from
him
by
a
Reduction
at
the
instance
of
His
Majestie
of
the
Earl
of
Mortoun's
Right
of
Orkney
;
he
and
his
Family
would
be
in
a
sad
condition
:
And
therefore
the
said
Annuity
being
granted
by
His
Majesty
in
lieu
and
intuitu
of
the
said
former
Right
,
surrogatum
sapit
naturam
surrogati
.
It
was
farder
Replyed
,
That
albeit
the
said
Annuity
were
Alimentary
,
the
Pursuers
Debt
ought
to
affect
the
same
,
being
likewayes
Alimentary
,
In
respect
it
was
for
Money
furnished
for
the
Aliment
and
Entertainment
of
the
said
Sir
Andrew
and
his
Lady
,
&
privilegiatus
non
utitur
privilegio
contra
privilegiatum
.
The
Lords
Found
,
That
the
said
Annuity
was
Alimentary
and
could
not
be
Arrested
,
and
the
Aliment
being
de
die
in
diem
,
the
Debt
due
to
the
Pursuer
could
not
affect
the
same
,
unless
it
had
been
for
Aliment
,
while
the
Annuity
in
question
was
in
cursu
.
Forret
Reporter
.
Mr.
Thomas
Hay
Clerk
.
D.
415.
E.
Argyle
contra
The
Laird
of
M●naughtoun
.
3.
January
1677.
IN
a
pursute
at
the
instance
of
the
Earl
of
Argyle
,
against
the
Laird
of
M●nauchtoun
,
who
held
some
Lands
of
him
Ward
,
for
the
single
avail
of
his
Marriage
;
It
was
Alledged
for
the
Defender
.
1.
That
the
Defender
had
Marryed
the
time
of
the
Usurpation
,
at
which
time
the
Casualities
of
Ward
and
Marriage
were
taken
away
by
an
Act
and
Proclamation
of
the
Usurpers
,
whereby
the
Defender
was
secured
and
was
in
bona
fide
to
Marry
without
requireing
the
Superiors
Consent
.
2.
De
facto
the
Superior
had
consented
to
his
Marriage
,
In
swa
far
as
the
Defender
having
given
notice
to
him
by
a
Letter
,
the
Marquess
of
Argyle
being
then
at
London
,
that
he
was
to
Marry
with
a
Gentle-Woman
,
who
is
now
his
Wife
,
the
Marquess
did
return
a
Letter
(
which
was
produced
)
showing
that
he
could
not
but
approve
his
matching
with
the
said
Gentle-Woman
being
the
Laird
of
Ardkindles
Daughter
;
and
if
they
should
proceed
to
the
Marriage
,
that
he
wished
them
well
.
Whereunto
,
It
was
Replyed
,
That
the
Usurpers
by
their
Act
could
not
prejudge
the
Pursuer
,
or
any
other
Superior
,
but
that
they
might
claim
the
Obventions
and
Casualities
,
that
did
fall
unto
them
,
by
the
nature
of
their
Vassals
Right
;
as
it
was
found
in
the
case
of
Sir
George
Kina●rd
and
the
Master
of
Gray
,
that
Lands
holden
in
Ward
being
Disponed
in
the
time
of
the
Usurpation
,
without
the
Superiors
consent
,
did
recognise
notwithstanding
of
the
said
Act
:
And
as
to
the
said
Consent
,
It
was
Replyed
,
that
the
said
Letter
was
but
a
Civil
Complement
,
without
any
mention
of
the
Marquess
his
Interest
as
Superior
,
and
without
an
express
Licence
to
Marry
,
and
Discharging
any
Interest
,
or
pretence
that
he
had
to
the
Defenders
Marriage
.
Upon
Debate
at
the
Bar
and
among
the
Lords
,
Some
were
of
the
Opinion
,
that
there
being
no
Contempt
that
could
be
alledged
of
the
Superior
;
and
the
Vassal
having
so
much
reason
to
think
,
that
he
needed
not
his
Consent
,
In
respect
the
said
Act
was
a
Law
de
facto
,
and
for
the
time
;
the
whole
Country
being
forced
to
submit
to
the
Usurpers
,
and
to
acquiesce
to
their
Orders
;
That
Communis
error
facit
Jus
,
and
quaevis
causa
excusat
as
to
Casualities
arising
upon
feudal
Delinquency
or
Contempt
:
And
the
Superiors
Interest
,
that
was
intended
of
the
Law
,
was
not
that
he
should
have
a
Sum
of
Money
,
but
that
his
Vassal
should
not
Marry
without
his
Consent
,
and
match
with
Families
either
disaffected
,
or
in
which
the
Superior
could
not
have
confidence
;
and
the
avail
of
Marriage
is
penal
in
case
the
Vassal
should
either
Marry
without
the
Superiors
consent
,
or
should
refuse
to
Marry
a
person
profered
by
the
Superior
to
be
his
Wife
.
Upon
the
foresaid
Considerations
,
they
were
of
Opinion
,
that
the
Defence
was
relevant
;
and
that
there
was
a
great
difference
betwixt
the
case
of
Recognition
and
Marriage
,
in
regard
the
reason
of
the
Decision
in
the
case
foresaid
,
was
,
that
the
Vassal
did
upon
the
matter
contemn
the
Superior
,
after
the
Kings
Restitution
,
seing
he
did
not
apply
for
a
Confirmation
;
Whereas
the
Vassal
,
being
once
married
,
it
were
to
no
purpose
to
desire
the
Superiors
Consent
.
On
the
other
part
,
some
of
the
Lords
argued
,
that
the
single
Avail
is
not
penal
,
but
only
the
double
;
seing
the
Vassal
,
attaining
to
the
age
of
marriage
,
if
he
should
die
unmaryed
,
yet
the
single
avail
would
be
due
:
Whereunto
It
was
Answered
,
That
poena
is
in
Law
,
when
a
Person
is
lyable
to
pay
a
Sum
,
either
for
doing
or
not
doing
a
Deed
;
and
as
the
Vassal
is
lyable
to
the
double
Avail
,
for
refuseing
the
Person
offered
by
the
Superior
,
so
he
is
lyable
to
the
single
for
not
marrying
,
and
tho
matrimonia
are
libera
,
so
that
a
Person
may
marry
or
not
as
he
pleases
,
yet
causative
many
things
are
allowed
,
which
cannot
be
directly
:
And
it
being
the
design
of
the
Feudal
Law
,
and
Superiors
,
in
giving
out
their
Lands
,
to
have
still
Vassals
to
serve
them
and
their
Family
,
the
appearand
Heir
is
obliged
by
the
nature
of
his
Holding
to
marry
,
or
in
poenam
to
pay
the
avail
:
and
if
the
Vassal
should
desire
his
Superior
to
offer
him
a
Person
that
he
might
marry
,
or
to
consent
that
he
should
marry
,
such
a
Person
as
he
thought
fit
for
him
;
and
the
Superior
should
refuse
both
,
it
were
hard
,
that
notwithstanding
the
Vassal
should
be
lyable
to
pay
the
Avail
of
his
marriage
.
The
Lords
nevertheless
Found
,
That
the
single
Avail
of
Marriage
is
not
penal
.
Actores
Lockheart
and
Hamilton
,
alteri
Cuningham
.
Mr.
John
Hay
Clerk
.
In
praesentia
.
Vide
infra
23.
January
1677.
inter
eosdem
.
D.
416.
Mitchelson
contra
Mitchelson
.
4.
January
.
1677.
A
Younger
Brother
,
being
served
,
before
the
Baillies
of
Kirkcaldie
,
Heir
of
Line
to
the
immediate
elder
Brother
:
Thereafter
the
eldest
Brother
did
desire
to
be
served
Heir
of
Conquest
to
the
same
Person
;
and
the
Baillies
not
being
clear
to
proceed
,
in
respect
of
the
former
Service
,
unless
it
had
been
reduced
:
The
Lords
Thought
,
That
,
upon
their
Refusal
,
the
Elder
Brother
may
Advocate
for
Iniquity
;
and
that
the
Brieves
may
be
served
before
the
Macers
:
and
that
the
Eldest
Brother
being
wronged
by
the
foresaid
Service
,
to
which
he
was
not
called
,
so
that
it
was
res
inter
alios
acta
,
he
ought
not
to
be
prejudged
thereby
,
nor
put
to
the
trouble
and
Charges
of
a
Reduction
.
Gibson
Clerk
.
D.
417.
Earl
of
Glencairn
contra
Brisbains
.
5.
January
1677.
FRancis
Freeland
of
that
Ilk
,
having
disponed
to
John
Mcknair
and
Robert
Hamilton
irredeemably
:
and
they
thereafter
having
disponed
the
same
,
with
consent
of
the
said
Francis
,
to
John
Brisbain
:
And
the
said
John
having
granted
a
Reversion
to
the
said
Francis
his
Heirs
of
his
own
Body
allanerly
;
for
payment
of
the
Sum
of
8000
merks
,
and
what
farder
Sums
should
be
debursed
for
improving
the
Lands
,
building
or
repairing
the
Houses
,
with
Annualrent
frae
the
Debursements
,
upon
the
said
John
Freeland
his
own
Declaration
;
and
that
after
the
first
Term
after
the
said
Francis
his
decease
:
The
Earl
of
Glencairn
,
Creditor
to
the
said
Francis
Freeland
,
alledging
that
the
said
Reversion
was
granted
by
Fraud
and
Contryvance
,
and
in
prejudice
of
him
and
Lawful
Creditors
;
and
that
the
said
Reversion
was
granted
in
manner
foresaid
,
not
in
favours
of
his
Debitor
but
his
Heirs
for
eludeing
their
Execution
;
Pursued
a
Reduction
of
the
said
Disposition
made
in
favours
of
Hamilton
and
Mcnaire
;
and
a
Declarator
that
Brisbaines
Right
should
fall
in
consequence
;
and
that
it
should
be
lawful
to
him
to
comprise
the
said
Reversion
,
and
to
use
an
Order
as
if
it
had
been
granted
to
the
said
Francis
Freeland
himself
.
The
Lords
Thought
,
That
if
the
Price
were
not
adequate
(
which
was
to
be
tryed
)
the
Conclusions
foresaid
should
be
sustained
.
Thesaurer-depute
Reporter
.
Gibson
Clerk
.
D.
418.
Creditors
of
Mouswel
contra
The
Lady
and
Children
.
6.
January
.
1677.
JAmes
Douglas
of
Mouswel
,
by
Contract
of
Marriage
,
betwixt
his
Eldest
Son
James
Douglas
,
and
_____
Lawrie
,
did
dispone
to
his
Son
the
Fee
of
his
Estate
,
reserving
his
own
Liferent
;
and
with
a
Provision
,
to
be
contained
in
the
Infeftment
,
That
it
should
be
lawful
to
him
to
take
on
and
burden
the
Estate
with
the
Sum
of
18000
merks
,
for
the
Provision
of
his
other
Children
,
and
for
doing
his
other
Affairs
:
And
accordingly
the
said
James
did
provide
,
to
eight
Children
,
9000.
merks
out
of
the
said
Estate
,
by
a
Bond
granted
within
a
year
after
the
said
Marriage
,
and
Infeftment
thereupon
.
Both
the
Father
and
the
Son
the
Fiar
being
deceased
;
and
the
Son
having
left
only
one
Son
of
the
Marriage
an
Infant
;
there
followed
a
Contract
●etwixt
Agnes
Rome
Grandmother
to
the
Child
,
and
Janet
Lawrie
the
Mother
,
and
certain
Friends
of
the
Family
,
whereby
it
was
agreed
,
that
the
Grandmother
should
quite
200
merks
of
her
Liferent
yearly
,
and
the
Mother
400
merks
of
her
Liferent
;
and
that
the
Grandmother
should
Confirm
her
Husbands
Testament
for
payment
of
his
Debts
;
and
for
the
superplus
of
the
Debt
,
the
Friends
should
undertake
the
same
;
and
upon
payment
,
having
taken
Right
thereto
,
should
superceed
personal
Execution
,
until
the
Child
were
major
;
the
Annualrents
being
in
the
mean
time
payed
by
the
Grandmother
,
as
Tutrix
to
her
Grandchild
.
The
Grandchild
having
deceased
,
while
he
was
yet
Infant
;
both
the
Creditors
and
the
Friends
,
and
the
Relict
,
did
take
a
course
to
affect
the
Estate
by
Comprysings
;
and
upon
their
Infeftments
and
Rights
,
having
pursued
the
Tennents
,
so
that
they
were
forced
to
raise
a
multiple
Poinding
;
It
was
Alledged
for
the
Creditors
,
That
the
Grandmother
her
Liferent
ought
to
be
restricted
,
conform
to
the
said
Contract
,
whereby
she
had
discharged
the
said
200.
merks
yearly
:
Whereunto
It
being
Answered
,
That
res
devenerat
in
alium
casum
;
and
that
the
said
Restriction
was
in
favours
of
her
Grandchild
,
and
for
the
standing
of
the
Family
,
and
in
contemplation
of
the
Undertaking
,
and
Obligement
foresaid
of
the
Friends
,
which
they
had
not
done
,
and
cessante
causa
cessat
effectus
:
and
,
the
Estate
being
altogether
ruined
,
she
ought
to
be
in
her
own
place
.
And
albeit
it
was
thereto
Replyed
by
the
Creditors
,
That
,
whatever
might
be
pretended
to
be
the
impulsive
Cause
,
yet
the
said
Restriction
being
once
granted
doth
continue
,
notwithstanding
of
the
pretence
foresaid
;
seing
there
is
no
resolutive
Clause
or
Provision
,
that
the
Case
above-mentioned
falling
out
,
the
Grand-mother
should
be
in
her
own
place
;
but
on
the
contrare
it
appears
by
the
Contract
,
that
the
Death
of
the
Child
was
then
under
her
consideration
,
In
respect
,
it
is
provided
expresly
,
that
if
the
Child
should
die
the
Restriction
of
the
Mothers
Life-rent
should
cease
,
and
she
should
be
in
her
own
place
;
and
so
,
the
Provision
foresaid
being
only
in
favours
of
the
Mother
,
and
not
of
the
Grand-mother
,
Exceptio
firmat
Regulam
in
non
exceptis
:
It
being
considered
likeways
,
there
was
not
the
same
reason
for
the
Grand-mother
,
In
respect
by
the
decease
of
the
Child
,
the
Mothers
Interest
in
the
Estate
did
altogether
cease
,
whereas
the
Heir
,
who
did
succeed
to
the
Child
,
was
the
Grand-mothers
own
Son
:
And
as
to
the
pretence
,
that
the
Friends
had
not
fulfilled
their
part
of
the
Contract
,
It
was
Answered
,
that
the
Contract
being
in
effect
in
favours
of
the
Family
,
both
the
Relict
and
the
Creditors
were
thereby
obliged
,
and
might
yet
be
urged
to
fulfil
their
obligements
:
And
tho
they
should
both
fail
,
the
Family
could
not
be
prejudged
;
and
that
the
Freinds
,
accordingly
as
they
were
obliged
,
they
had
taken
course
with
the
Debts
:
and
tho
it
was
pretended
that
they
had
not
done
it
debito
tempore
,
the
said
pretence
was
of
no
moment
,
seing
no
time
is
limited
by
the
Contract
.
Nevertheless
the
Lords
Reponed
the
Relict
against
the
said
Restriction
.
In
the
same
Cause
,
There
being
a
Competition
betwixt
some
of
the
Creditors
,
whose
Debts
were
Contracted
by
the
Grand-father
Agnes
Rom's
Husband
before
his
Sons
Contract
of
Marriage
;
and
betwixt
the
Children
,
who
were
Infeft
,
as
said
is
,
upon
the
Bond
of
Provision
,
granted
by
their
Father
,
conform
to
the
faculty
foresaid
.
It
was
Alledged
for
the
Creditors
,
That
they
ought
to
be
preferred
,
In
respect
,
that
upon
Bonds
of
Corroboration
granted
by
the
Son
the
Fiar
,
they
had
Comprysed
and
were
Infeft
by
publick
Infeftments
;
at
least
had
charged
the
Superior
;
So
that
their
Right
being
publick
,
and
for
a
true
Debt
anterior
to
the
Childrens
Provision
,
they
were
preferable
to
the
Children
,
their
Infeftment
being
base
.
The
Lords
Found
,
That
the
Children
should
be
preferred
,
In
respect
the
Comprysings
were
against
the
Son
;
and
the
Comprysers
could
be
in
no
better
Case
than
the
Son
himself
,
whose
Right
was
affected
with
the
said
faculty
in
favours
of
the
Children
:
So
that
neither
he
,
nor
any
having
Right
from
him
,
could
question
the
Right
granted
by
vertue
of
,
and
conform
to
the
said
Faculty
.
This
Decision
,
being
by
plurality
,
seemed
hard
to
some
of
the
Lords
;
who
did
consider
,
that
the
foresaid
Faculty
was
not
only
in
behalf
of
the
Children
,
but
of
supervenient
Creditors
,
if
the
Father
had
thereafter
Contracted
any
Debt
,
and
if
the
Father
had
given
surety
to
the
said
Supervenient
Creditors
by
base
Infeftments
,
and
if
his
Anterior
Creditors
before
the
said
Contract
had
comprysed
and
had
been
Infeft
,
they
would
have
been
preferred
to
the
said
posterior
Creditors
having
only
base
Rights
,
and
multo
magis
to
the
Children
.
They
considered
also
,
That
the
Estate
being
,
by
the
said
Contract
,
Disponed
simply
to
the
Son
,
with
a
Reservation
only
of
the
Fathers
Liferent
and
the
said
Faculty
;
and
the
Son
not
being
obliged
to
pay
the
Fathers
Debts
by
the
said
Contract
,
if
there
had
been
18000
Merks
of
Debt
anterior
to
the
Contract
,
Anterior
Creditors
might
have
pursued
the
Son
for
the
same
,
not
only
because
he
was
Appearand
Heir
and
Successor
Titulo
Lucrativo
,
but
because
he
was
obliged
by
the
Contract
,
at
least
his
Estate
burdened
for
the
said
Sum
;
And
the
Anterior
Creditors
might
either
have
taken
that
course
,
or
might
have
Comprysed
the
Interest
competent
to
the
Father
by
the
said
Faculty
:
And
seing
the
Son
might
have
been
forced
in
manner
foresaid
to
satisfy
the
said
Creditors
,
he
might
have
granted
Bonds
of
Corroboration
,
whereupon
they
might
have
Comprysed
;
and
having
comprysed
,
and
having
gotten
publick
Rights
,
they
are
preferable
to
the
base
Right
of
the
Children
.
In
the
same
Cause
,
The
Creditors
did
alledge
,
that
they
ought
to
be
preferred
to
the
Children
,
because
their
Provision
was
after
their
Debt
,
and
was
without
an
Onerous
Cause
;
And
nevertheless
the
Lords
Found
the
Defence
for
the
Children
Relevant
,
viz.
That
their
Father
,
the
time
of
the
granting
of
the
said
Bon●
,
for
their
Provision
,
had
a
sufficient
Estate
,
besides
,
out
of
which
the
Creditors
might
have
been
satisfied
.
This
Decision
,
being
also
by
the
Major
part
,
seemed
hard
to
others
,
who
thought
that
a
Debitor
could
do
no
Deed
in
prejudice
of
his
Creditors
,
without
an
Onerous
Cause
:
And
tho
the
Father
might
be
looked
upon
,
the
time
of
the
granting
of
Provisions
to
Children
as
in
a
good
condition
,
and
therefore
the
Creditors
to
be
secure
and
needed
not
do
Diligence
,
yet
if
thereafter
he
should
become
insolvent
,
the
loss
ought
to
be
upon
the
Children
,
and
not
the
Creditors
:
And
that
it
being
a
principle
,
That
a
Debitor
can
do
nothing
in
prejudice
of
his
Creditor
,
without
an
Onerous
Cause
,
It
is
certainly
both
Fraud
and
prejudice
,
that
he
should
not
pay
his
Debt
,
but
should
give
away
,
to
his
Children
,
that
part
of
his
Estate
which
the
Creditors
might
have
affected
:
And
Inhibitions
being
only
in
these
terms
,
That
the
Party
Inhibite
should
do
no
Deed
in
defraud
of
the
Creditor
;
It
might
be
pretended
,
by
the
same
Reason
in
Reductions
ex
capite
Inhibitionis
,
that
the
Party
Inhibite
did
nothing
in
defraud
or
prejudice
of
the
Pursuer
,
In
respect
,
the
time
of
the
granting
the
Bond
or
Right
craved
to
be
reduced
,
he
had
Effects
and
sufficiency
of
Estate
beside
.
Lockheart
&c.
for
Queensberry
and
other
Creditors
.
Cuninghame
,
Anderson
and
Mckenzie
for
the
Children
and
Relict
.
Gibson
Clerk
.
In
praesentia
.
D.
419.
Stewart
of
Castlemilk
contra
Sir
John
Whitefoord
.
10.
January
1677.
SIR
Archibald
Stewart
of
Castlemilk
,
having
pursued
a
Reduction
of
a
Disposition
of
the
Lands
of
Coats
,
made
by
James
Stewart
of
Minto
,
in
favours
of
Sir
John
Whitefoord
;
ex
capite
metus
:
In
swa
far
as
,
the
said
Sir
John
Whitefoord
had
taken
the
said
James
and
kept
him
in
privato
carcere
for
some
time
;
and
thereafter
,
having
a
Caption
against
him
,
had
detained
him
Prisoner
:
and
had
caused
transport
and
convey
him
in
that
condition
,
from
diverse
places
in
the
night
Season
;
and
by
his
Servants
had
threatned
him
with
long
Imprisonment
;
and
in
end
had
prevailed
with
him
to
dispone
to
him
the
saids
Lands
,
being
eight
Chalders
Victual
of
Rent
,
and
where
there
was
a
Coal
of
100.
lib.
sterl
.
of
Rent
;
upon
an
Obligement
only
to
pay
him
an
yearly
Annuity
of
400.
merks
:
In
which
process
,
the
said
Sir
John
,
and
Duke
Hamilton
,
who
had
thereafter
acquired
the
said
Lands
from
the
said
Sir
John
,
did
compear
,
and
propone
the
Defences
following
.
1.
That
the
foresaid
Qualifications
of
Force
were
not
Relevant
to
import
metus
,
qui
potest
cadere
in
Constantem
virum
,
being
neither
mortis
nor
Cruciatus
;
nor
so
circumstantiate
,
as
is
required
of
the
Law
,
for
founding
the
said
Action
.
And
2
That
albeit
metus
were
relevantly
qualified
,
the
foresaid
Deed
cannot
be
questioned
upon
pretence
of
the
same
,
unless
the
said
James
Stewart
had
been
lesed
or
damnified
by
the
same
;
Seing
it
appears
by
the
Title
,
quod
metus
causa
,
&c.
A
Reduction
and
Restitution
upon
that
head
is
not
competent
,
ubi
non
est
damnum
,
&
nihil
abest
;
as
is
clear
by
diverse
Texts
,
in
the
case
of
a
Creditor
useing
force
to
get
what
is
unquestionably
due
to
him
;
and
in
this
case
the
said
James
had
no
prejudice
,
in
respect
he
was
obliged
by
an
antecedent
Minute
to
dispon
the
said
Lands
:
so
that
the
said
Disposition
was
but
for
implement
of
the
said
Minute
,
which
the
said
Sir
John
did
give
back
to
be
cancelled
by
Minto
,
when
he
got
the
said
Disposition
.
And
3.
It
was
offered
to
be
proven
,
that
,
after
the
said
James
was
at
liberty
,
the
said
Disposition
was
granted
by
him
.
The
Lords
Found
,
That
the
Libel
and
Qualifications
of
metus
and
Force
were
relevant
;
and
yet
,
in
respect
the
Defenders
were
so
positive
as
to
their
Alledgance
,
that
the
Disponer
was
at
liberty
when
he
granted
the
said
Right
;
they
allowed
a
conjunct
Probation
concerning
the
said
Qualifications
of
Force
,
and
the
condition
the
Disponer
was
in
for
the
time
,
and
the
way
of
granting
the
said
Right
;
whether
he
was
under
Restraint
and
the
Impression
of
Fear
,
or
in
Freedom
?
Or
whether
the
samen
was
granted
by
him
freely
and
voluntarly
?
As
to
the
said
other
Defence
,
that
there
was
no
damnum
,
the
Lords
repelled
the
same
;
and
would
not
allow
that
point
of
Fact
to
be
tryed
,
whether
or
not
there
were
a
former
Minute
,
for
Implement
of
which
the
said
Right
was
granted
?
And
whether
it
was
given
back
for
,
and
the
time
of
the
granting
of
the
said
Disposition
?
Some
of
the
Lords
were
of
the
Opinion
,
That
the
Qualifications
libelled
,
were
not
relevant
to
import
such
a
force
and
metus
,
as
could
be
the
ground
of
a
Reduction
of
the
said
Right
;
ex
eo
capite
;
tho
they
were
convinced
that
the
practice
foresaid
is
most
unwarrantable
and
dolosa
;
and
that
thereupon
the
Right
may
be
questioned
as
to
Sir
John
himself
,
but
not
as
to
a
singular
Successor
:
and
that
there
is
a
difference
betwixt
a
Reduction
ex
capite
metus
,
which
is
competent
against
singular
Successors
;
and
a
Reduction
ex
capite
doli
,
which
is
not
competent
against
a
singular
Successor
,
who
bona
fide
has
acquired
a
Right
,
for
an
Onerous
Cause
.
But
diverse
of
the
Lords
were
of
Opinion
,
that
the
Defence
foresaid
,
that
there
was
no
damnum
,
was
most
relevant
,
for
these
Reasons
;
viz.
All
Restitutions
upon
what
mediums
soever
,
whether
metus
or
dolus
,
or
lubricum
aetatis
,
are
against
damnum
and
prejudice
;
for
frustra
should
Restitution
be
craved
,
if
there
be
no
damnum
.
2.
It
is
evident
by
diverse
Laws
,
and
the
Title
foresaid
,
quod
metus
,
&c.
That
ex
edicto
quod
metus
causa
,
&c.
non
datur
actio
si
nihil
absit
;
&
succurritur
only
captis
&
laesis
.
3.
By
the
Civil
Law
,
there
were
diverse
Remedies
competent
to
these
who
had
been
forced
to
do
any
deed
;
viz.
A
Civil
action
ex
Edicto
Praetoris
,
and
a
Criminal
Action
ex
lege
Julia
;
and
a
Penal
Remedy
ex
decreto
Divi
Marci
,
That
a
Creditor
by
force
,
extorting
what
is
truely
due
,
amittit
Jus
Crediti
:
And
our
Reductions
ex
capite
metus
are
but
Civil
Actions
,
as
that
ex
Edicto
:
And
the
said
other
Remedies
being
penal
,
by
the
Municipal
Law
of
the
Romans
,
cannot
be
introduced
by
the
Lords
of
Session
being
Civil
Judges
,
without
an
Act
of
Parliament
.
4.
All
Restitutions
should
Repone
both
Parties
in
integrum
;
and
it
were
unjust
,
that
if
it
were
constant
,
and
the
Lords
were
convinced
upon
their
own
certain
knowledge
,
that
there
had
been
an
antecedent
Minute
,
and
that
the
same
had
been
cancelled
upon
the
granting
of
the
said
Disposition
,
that
Minto
should
be
restored
,
and
not
the
said
Sir
John
;
that
now
res
non
est
integra
,
seing
the
antecedent
Minute
is
not
Extant
;
and
tho
it
were
Extant
,
it
would
be
ineffectual
,
In
respect
Minto
has
Disponed
the
foresaid
Lands
to
this
Pursuer
who
is
Infeft
;
and
,
having
the
first
Infeftment
would
be
preferable
,
whether
the
Minute
were
Extant
or
not
.
5.
As
to
the
pretence
that
was
so
much
urged
,
that
it
would
be
of
dangerous
consequence
,
that
such
Deeds
extorted
by
force
should
be
sustained
upon
the
pretext
of
non
damnum
;
and
that
it
would
tend
to
encourage
such
practices
,
the
same
is
of
no
weight
;
seing
the
Deed
,
being
just
upon
the
matter
,
may
and
ought
to
be
sustained
,
and
yet
the
way
of
procureing
the
same
may
be
severely
punished
.
6.
As
to
the
difficulty
of
Probation
,
there
being
no
Adminicles
in
Write
,
that
there
were
such
a
Minute
,
It
is
not
considerable
;
Seing
multa
permittuntur
causative
,
which
cannot
be
done
directly
;
and
that
tho
the
Result
of
Probation
by
Witnesses
,
may
be
the
making
up
or
taking
away
of
Writes
,
which
cannot
be
done
directly
,
but
by
Write
;
yet
when
that
which
is
to
be
proven
is
in
Fact
,
it
may
be
proven
by
Witnesses
;
as
in
the
same
case
,
that
the
Disposition
in
question
was
Extorted
,
it
may
be
proven
by
Witnesses
,
to
take
away
the
said
Disposition
:
And
if
a
person
should
be
forced
to
grant
a
Disposition
of
Lands
of
20.
Chalders
of
Victual
of
Rent
,
and
in
Exchange
should
get
a
Disposition
at
the
same
time
of
other
Lands
of
the
half
value
,
it
were
a
good
Defence
and
probable
by
Witnesses
,
that
the
Pursuer
did
get
,
the
time
of
the
granting
the
Disposition
of
Lands
,
worth
20
Chalder
Victual
,
a
Disposition
of
less
value
;
and
Contingentia
causae
and
of
a
Transaction
and
circumstances
of
the
same
,
ought
not
to
be
divided
;
but
may
and
ought
to
be
entirely
proven
by
Witnesses
,
alse
well
for
the
Defender
as
the
Pursuer
.
Actor
Lockheart
and
Sinclair
.
alteri
Cuningham
and
McKenzie
.
Mr.
John
Hay
Clerk
.
In
praesentia
.
D.
420.
Commissar
of
St.
Andrews
contra
Watson
.
11.
January
1677.
THE
Lords
sustained
a
pursute
at
the
instance
of
the
Master
of
the
Ground
,
against
these
who
had
bought
,
from
his
Tennent
,
his
Corns
and
other
Goods
,
wherein
the
Pursuer
had
a
Tacite
Hypoth●●k
.
Glendoich
Reporter
.
Mr.
John
Hay
Clerk
.
D.
421.
Viscount
of
Oxenford
contra
Mr.
John
Cockburn
.
eod.
die
.
MR.
John
Cockburne
,
having
gone
Abroad
with
the
Viscount
of
Oxenford
;
and
after
his
Return
,
having
gotten
several
Bonds
from
the
said
Viscount
of
considerable
Sums
,
and
also
a
Pension
of
1000
Merks
:
And
having
charged
upon
the
same
,
the
Viscount
Suspended
upon
that
Reason
,
that
the
said
Mr.
John
,
dureing
their
being
Abroad
,
had
received
great
Sums
of
Money
remitted
to
him
upon
the
Viscounts
account
,
for
which
he
had
not
Compted
;
and
that
,
after
Compt
and
Reckoning
,
he
will
be
found
Debitor
to
the
Viscount
in
more
than
the
Sums
charged
for
:
And
it
being
Alledged
by
the
said
Mr.
John
,
that
he
is
only
comptable
for
his
Intromission
,
and
that
his
Actual
Intromission
ought
to
be
Instructed
by
Write
or
by
his
Oath
;
and
the
Declarations
,
of
Merchants
and
Factors
Abroad
,
cannot
be
Probation
to
bind
upon
him
so
great
Intromissions
.
The
Lords
considered
the
condition
of
the
Viscount
for
the
time
,
that
he
could
not
Intromet
himself
;
and
that
the
said
Mr.
John
had
such
Influence
upon
him
,
that
having
been
his
Governour
at
Schools
,
and
upon
the
desire
of
his
Friends
being
put
from
him
by
an
Act
of
Council
,
He
,
notwithstanding
,
without
and
contrare
to
the
Advice
of
his
Friends
,
carryed
him
Abroad
;
and
since
his
return
had
gotten
from
him
the
Bonds
foresaid
:
And
therefore
thought
fit
to
try
the
Business
to
the
bottom
;
And
to
ordain
the
said
Mr.
John
to
give
in
his
Compts
of
what
was
received
and
debursed
,
when
the
Viscount
was
Abroad
;
and
the
Factors
and
other
Witnesses
to
be
Examined
,
concerning
his
Intromission
;
and
whether
or
not
any
Moneys
,
that
were
remitted
for
the
Viscounts
use
,
were
received
by
the
Viscount
himself
,
or
by
the
said
Mr.
John
.
Redford
Reporter
.
Mr.
John
Hay
Clerk
.
D.
422.
Laird
of
Bavilay
contra
Barbara
Dalmahoy
.
eod.
die
.
A
Horning
,
against
a
Person
dwelling
within
the
Shire
of
Edinburgh
,
upon
Lands
Annexed
to
the
Barony
of
Renfrew
,
being
denounced
at
Edinburgh
,
was
sustained
;
In
respect
that
the
said
Lands
were
Locally
within
the
Shyre
of
Edinburgh
:
And
the
Rebel
,
In
respect
of
his
Residence
there
,
was
Lyable
to
the
Jurisdiction
of
the
Sheriff
,
and
to
all
Burdens
,
and
had
all
Capacities
competent
to
the
Shire
of
Edinburgh
,
Mr.
John
Hay
Clerk
.
D.
423.
Baillie
contra
Somervel
.
eod.
die
.
THERE
being
a
Provision
in
a
Contract
of
Marriage
in
these
Terms
,
that
5000
Merks
of
the
Tocher
should
return
to
the
Father
in
Law
,
in
case
his
Daughter
should
decease
before
her
Husband
,
within
the
space
of
6
Years
after
the
Marriage
,
there
being
no
Children
betwixt
them
then
on
life
;
and
in
case
the
Father
in
Law
should
have
Heirs
Male
within
the
space
of
six
Years
after
the
Marriage
.
The
Lords
Found
The
said
Provision
copulative
;
and
that
the
Tocher
should
not
return
,
albeit
the
Father
in
Law
had
Heirs
Male
within
the
foresaid
time
;
Seing
the
other
Member
of
the
said
condition
did
not
exist
;
In
respect
,
albeit
his
Daughter
deceased
within
the
said
time
,
yet
she
had
a
Child
of
the
Marriage
that
survived
.
Gosford
Reporter
.
Mr.
John
Hay
Clerk
.
D.
424.
Jaffray
contra
Laird
of
Wamfray
.
12.
Jan.
1677.
A
Sum
,
due
be
a
Bond
bearing
an
Obligement
to
Infeft
and
Requisition
;
was
Found
to
be
Moveable
after
Requisition
;
and
to
fall
under
Escheat
,
notwithstanding
the
late
Act
of
Parliament
Ordaining
Bonds
bearing
Annualrent
to
be
Heretable
;
but
remains
still
Heretable
quoad
fiscum
;
In
respect
Bonds
of
the
nature
foresaid
became
Moveable
by
Requisition
,
even
before
the
said
Act
of
Parliament
;
And
the
Fisk
,
since
by
the
foresaid
Act
of
Parliament
,
is
not
put
in
better
case
,
is
not
in
worse
.
Glendoich
Reporter
.
Mr.
John
Hay
Clerk
.
D.
425.
Inter
eosdem
.
eod.
die
.
IN
the
same
case
It
was
Found
,
That
an
Instrument
of
Requisition
was
Null
,
because
it
did
not
bear
,
that
the
Procuratory
was
produced
:
And
an
Instrument
being
produced
extended
under
the
Notars
Hand
,
and
being
quarrelled
upon
the
Ground
foresaid
,
The
Lords
did
not
allow
the
Notar
to
give
out
an
other
Instrument
,
bearing
the
Procuratory
to
be
produced
;
nor
did
admit
probation
by
Witnesses
,
that
the
Procuratory
was
produced
;
Seing
such
Solemnities
are
not
presumed
,
and
cannot
be
proven
by
Witnesses
,
but
by
valide
and
formal
Instruments
:
And
a
Notar
having
given
out
an
Instrument
,
that
is
defective
,
cannot
thereafter
give
an
other
to
supply
the
defect
;
Otherways
the
question
being
betwixt
the
Creditors
,
who
had
done
lawful
Diligence
and
a
Donator
,
it
should
be
in
the
power
of
a
Notar
to
prefer
and
gratify
either
party
,
as
he
should
be
prevailed
with
,
either
to
give
out
,
or
not
to
give
another
Instrument
.
D.
426.
Inglis
contra
Lawrie
.
eod.
die
.
SOme
of
the
Lords
were
of
the
Opinion
,
that
a
Husband
may
give
validly
,
during
Marriage
,
to
his
Wife
,
a
Provision
or
Jointure
,
where
there
is
no
Contract
of
Marriage
:
But
that
the
Wife
could
not
give
to
the
Husband
,
tho
there
were
not
a
Contract
of
Marriage
,
and
that
she
might
revock
any
such
Donation
:
which
appears
to
be
hard
and
unequal
.
Actor
Colt
,
alteri
Dalrymple
.
Mr.
Thomas
Hay
Clerk
.
But
this
Point
was
not
decided
.
D.
427.
Fordel
contra
Caribber
.
16.
January
1677.
IN
a
Reduction
,
at
the
instance
of
the
Laird
of
Fordel
,
against
Monteeth
of
Caribber
,
of
a
Disposition
granted
by
Monteeth
of
Randyfurd
to
Caribber
;
upon
that
Reason
,
That
the
said
Disposition
was
not
delivered
,
but
was
lying
by
the
Defunct
in
his
Charter
Chest
,
and
blank
in
the
Name
and
Date
;
and
that
the
Defender
intrometted
with
the
same
unwarrantably
,
and
filled
up
his
Name
.
The
Lords
Ordained
certain
Persons
,
who
were
going
to
France
,
to
be
examined
before
Debate
;
reserving
to
themselves
to
consider
what
their
Depositions
should
work
.
Tho
it
may
appear
hard
,
that
a
Write
should
be
taken
away
by
Witnesses
;
yet
the
Reason
being
relevant
,
and
in
Fact
,
and
resolving
in
dole
and
Fraud
,
it
may
be
proven
by
Witnesses
.
Mr.
John
Hay
Clerk
.
D.
428.
Stewart
of
Ardvorlich
contra
Riddoch
.
eod.
die
.
DAVID
Riddoch
,
by
Contract
of
Marriage
betwixt
his
Son
Alexander
and
Jonet
Ballentyne
,
did
dispone
to
the
said
Alexander
his
Estate
:
and
thereafter
did
dispone
the
same
to
his
second
Son
David
Riddoch
,
for
payment
and
with
the
burden
of
all
his
Debts
:
who
did
thereafter
dispone
the
same
to
Stewart
of
Ardvorlich
for
a
just
price
.
The
said
Stewart
of
Ardvorlich
pursued
a
Reduction
of
the
Disposition
,
contained
in
the
said
Alexander
his
Contract
of
Marriage
;
upon
that
Reason
,
That
the
said
Contract
of
Marriage
was
not
delivered
to
the
said
Alexander
,
at
the
least
there
being
but
only
one
double
subscribed
,
the
same
was
given
back
to
David
Riddoch
the
Father
;
and
was
lying
by
him
the
time
of
his
decease
:
And
it
was
evident
,
that
it
was
never
intended
,
that
any
other
use
should
be
made
of
the
said
Contract
,
but
only
in
order
to
get
a
Marriage
to
the
said
Alexander
,
as
being
provided
to
the
said
Estate
;
in
swa
far
as
the
said
Disposition
,
in
favours
of
the
said
Alexander
,
was
without
the
burden
of
the
Disponers
Debts
,
which
were
very
great
;
and
did
not
so
much
as
reserve
his
Liferent
:
Whereunto
It
was
Answered
,
That
the
Contract
was
a
mutual
Evident
,
subscribed
by
both
Parties
,
and
that
Marriage
had
followed
upon
the
same
;
and
therefore
it
could
not
be
taken
away
,
upon
the
pretence
of
not
delivery
.
The
Lords
Found
,
That
tho
the
Contract
had
been
beside
the
Father
the
time
of
his
decease
,
it
was
not
to
be
considered
as
instrumentum
penes
debitorem
,
being
a
mutual
Evident
:
But
thereafter
It
was
Replyed
,
That
the
Pursuer
offered
to
prove
,
that
not
only
the
said
Contract
was
lying
by
the
Disponer
,
the
time
of
his
decease
,
but
an
Assignation
blank
of
the
said
Contract
;
which
,
being
in
the
Disponers
Hands
,
was
in
effect
a
retrocession
or
Discharge
of
the
Disposition
,
contained
in
the
Contract
:
Which
Reply
the
Lords
found
Relevant
.
In
praesentia
.
This
Reply
was
Found
also
probable
prout
de
jure
.
D.
429.
Cuningham
contra
Halyburton
.
eod.
die
.
THE
Lords
Found
,
That
a
Tacksman
of
Lands
,
within
Burgh
,
may
be
removed
,
if
he
be
behind
in
payment
of
his
Duty
;
unless
he
find
Caution
as
to
the
future
;
in
the
same
manner
as
Tacksmen
of
Land
in
the
Countrey
.
Forret
Reporter
.
Gibson
Clerk
.
D.
430.
_____
contra
_____
eod.
die
.
THE
Lords
Found
,
That
a
Burgess
of
the
Town
,
tho
he
be
not
Incola
,
if
he
trade
,
may
be
stented
for
payment
of
his
Majesties
Taxation
.
D.
431.
Earl
of
Glencairn
contra
Brisbain
.
eod.
die
.
THE
Lords
Found
,
In
the
Case
abovementioned
Glencairn
contra
Brisbaine
,
That
the
true
Value
of
the
Lands
should
be
proven
,
to
the
effect
it
may
be
known
whether
the
Price
be
adequate
or
not
:
And
albeit
the
Lands
had
not
been
laboured
by
Tennents
,
being
still
in
the
Heretors
hands
,
the
Value
might
and
ought
to
be
proven
,
by
the
soweing
and
increase
,
and
the
quantity
of
the
Land
;
and
what
Lands
in
that
part
,
of
the
like
quantity
and
quality
,
may
be
set
for
:
And
it
was
not
enough
,
that
now
the
Earl
of
Glencairn
offered
2000
merks
more
,
in
respect
the
Lands
might
have
been
improven
;
or
the
said
offer
might
be
made
upon
Picque
or
Emulation
.
Hatton
Reporter
.
Mr.
Thomas
Hay
Clerk
.
In
this
Case
the
Lords
allowed
a
conjunct
Probation
:
D.
432.
Caribber
contra
Fordel
.
17.
January
1677.
THIS
Day
again
in
the
Case
abovementioned
Caribber
contra
Fordel
,
The
Lords
did
Find
,
upon
a
Bill
given
in
by
Caribber
,
That
albeit
Write
cannot
be
taken
away
but
by
Write
directly
;
and
that
a
Disposition
could
not
be
taken
away
but
by
a
Renounciation
or
some
other
Writt
,
where
there
is
no
question
as
to
the
Validity
and
Formality
of
the
same
;
Yet
it
may
be
taken
away
by
a
Reduction
Ex
capite
Metus
&
Doli
,
and
minoris
aetatis
and
Lesion
:
And
that
in
such
pursutes
,
the
Reasons
being
in
Fact
,
and
Lybelled
either
upon
Force
or
Circumvention
and
Fraud
,
are
probable
by
witnesses
;
and
that
the
Reduction
at
Fordels
instance
upon
that
Reason
,
viz.
That
the
Disposition
in
question
was
found
among
the
Defuncts
papers
,
the
time
of
his
Decease
,
and
was
intrometted
with
and
filled
up
by
Caribber
,
is
ex
eodem
capite
Doli
.
Mr.
John
Hay
Clerk
.
D.
433.
_____
contra
_____
eod.
die
.
AN
Edict
of
Executrie
,
being
Advocate
from
the
Commissars
;
a
Bill
was
given
in
,
desiring
that
the
Advocation
might
be
summarily
discust
,
seing
both
nearest
of
Kin
,
Creditors
,
and
the
Fisk
were
concerned
,
that
the
Testament
should
be
confirmed
and
execute
;
which
Desire
,
the
Lords
thought
could
not
be
granted
,
in
respect
of
the
Act
of
Regulation
:
but
it
was
thought
a
great
Escape
and
Inadvertency
,
that
such
Advocations
should
be
past
,
seing
the
Lords
could
not
confirm
Testaments
:
and
if
any
Partie
should
be
prejudged
by
any
Act
of
the
Commissars
,
it
may
be
reduced
,
upon
the
head
of
Iniquity
:
And
the
Lords
thought
,
it
was
fit
that
a
new
Edict
should
be
raised
;
and
if
an
Advocation
should
be
sought
,
the
Reason
should
be
discust
upon
the
Bill
.
D.
434.
Earl
Argyle
contra
Mcnaughtoun
.
23.
Jan.
1677.
IN
the
Case
abovementioned
,
Earl
of
Argyle
contra
Mcnaughtoun
,
It
was
Found
,
That
Mcnaughtoun
having
acquainted
the
deceast
Marquess
of
Argyle
,
that
he
was
to
Marry
with
his
Lady
;
and
that
the
Marquess
having
returned
an
Answer
by
his
Letter
of
the
Tenor
abovementioned
;
the
said
Letter
imported
his
Consent
to
the
Marriage
;
and
that
the
Marquess
having
consented
,
he
could
not
claim
the
Benefite
of
the
Marriage
.
Vide
supra
3.
January
1677.
D.
435.
Tailfer
contra
Sandilands
.
eod.
die
.
A
Curator
having
in
his
Accompts
given
in
an
Article
of
Incident
Charges
upon
occasion
of
the
Minors
Affairs
,
viz.
That
he
had
met
with
Agents
and
others
in
Taverns
,
in
Relation
to
the
Pupills
Affairs
;
and
had
been
at
Charges
in
drinking
with
them
,
extending
to
a
considerable
Sum
,
during
the
whole
time
of
his
Charge
:
The
Lords
did
not
allow
the
same
in
the
Terms
foresaid
;
But
Ordained
him
to
condescend
upon
the
particulars
:
And
if
he
kept
a
Book
and
Diary
of
his
Debursements
,
so
that
he
might
warrantably
declare
,
that
he
had
truely
debursed
the
particulars
thereinmentioned
;
they
enclined
to
modify
the
same
to
such
a
Sum
,
as
they
should
find
reasonable
.
D.
436.
Home
of
Ford
contra
Steuart
.
24.
January
1677.
A
Wadset
being
granted
in
these
Terms
,
That
the
Wadsetter
should
possess
the
Lands
;
and
that
the
Granter
should
free
the
Wadsetter
of
Levies
of
Horse
,
and
Feu-duties
,
and
Ministers
Stipends
:
It
was
Found
that
the
Wadsetter
is
not
Lyable
to
Compt
and
Reckon
for
the
Duties
and
superplus
of
the
same
,
exceeding
the
Annualrent
;
In
respect
,
the
Wadset
was
a
proper
Wadset
;
and
the
Wadsetter
was
not
free
of
all
Hazards
of
the
Fruits
,
Tennents
,
War
and
Vastation
.
Redford
Reporter
.
Mr.
Thomas
Hay
Clerk
.
D.
437.
Ronald
Grahame
contra
Sarah
Rome
.
eod.
die
.
JOhn
Rome
being
obliged
by
his
Contract
of
Marriage
with
his
second
Wife
to
provide
10000
Merks
in
favours
of
himself
,
and
his
Spouse
in
Conjunct-fee
,
and
the
Heirs
of
the
Marriage
;
whilks
Failyieing
to
his
own
Heirs
and
Assigneys
:
And
to
provide
also
5000
Merks
in
favours
of
the
Remanent
Bairns
of
the
said
Marriage
:
The
Lords
Found
,
That
the
Father
was
Fiar
of
the
said
Sums
;
and
that
the
Heir
of
the
Marriage
and
Remanent
Bairns
had
an
Interest
only
to
succeed
to
him
as
Heirs
of
Provision
in
the
same
:
And
that
the
Creditors
might
affect
the
said
Sums
;
and
would
be
preferable
to
the
Bairns
;
Notwithstanding
their
Debts
were
Contracted
after
the
said
Contract
of
Marriage
,
and
Inhibition
thereupon
;
seing
the
Inhibition
could
not
take
away
his
Fee
:
And
the
Import
and
Effect
both
of
the
said
Obligements
and
Inhibition
is
only
,
that
the
Father
should
do
no
fraudulent
Deed
,
without
an
Onerous
Cause
,
in
prejudice
of
the
same
.
Gosford
Reporter
.
D.
438.
Ardblair
contra
Wilson
.
eod.
die
.
A
Bond
being
granted
by
James
Bisset
of
Neitherbalcarne
to
the
Laird
of
Ardblair
for
Love
and
Favour
;
to
be
payed
after
his
decease
:
The
Lords
Found
,
That
the
said
Bond
,
being
granted
without
an
Onerous
Cause
,
to
be
payed
in
manner
foresaid
after
the
Granters
decease
;
could
not
prejudge
posterior
Creditors
,
who
were
in
bona
fide
to
lend
their
Money
,
notwithstanding
any
such
Latent
Deeds
and
Bonds
.
This
Decision
seems
to
be
hard
;
Seing
it
was
lawful
both
to
the
Granter
and
Receiver
of
the
said
Bond
,
to
grant
and
receive
the
same
:
And
the
said
Donation
,
being
lawful
ab
initio
,
could
not
become
thereafter
unlawful
by
any
Deed
of
the
Granter
:
And
Fraud
cannot
be
pretended
,
but
where
Creditors
or
others
,
the
time
of
the
granting
of
such
Bonds
,
were
prejudged
;
unless
it
did
appear
by
some
speciality
and
circumstance
in
the
case
,
that
there
had
been
a
design
to
Cheat
and
Circumveen
these
who
were
to
lend
their
Money
,
by
granting
and
settleing
upon
the
Relations
of
the
Debitor
,
his
Estate
;
and
thereafter
to
get
in
his
Hands
,
his
Creditors
Means
,
whom
he
was
not
able
to
satisfy
;
which
was
Found
in
the
Case
of
Maisson
and
Pollock
,
and
was
not
Alledged
in
this
Case
.
Nevoy
Reporter
.
Mr.
John
Hay
Clerk
.
D.
439.
Sinclair
contra
Home
of
Renton
.
eod.
die
.
A
Bond
of
Corroboration
being
granted
for
a
Sum
due
upon
a
Wadset
;
with
power
to
use
Execution
without
Requisition
:
The
Lords
Found
,
That
the
Creditor
may
summarly
compryse
upon
the
same
without
previous
Requisition
.
Glendoich
Reporter
.
Mr.
John
Hay
Clerk
.
D.
440.
Nairn
contra
Stuart
of
Innernytie
.
eod.
die
.
A
Presentation
being
granted
by
a
Bishop
to
a
Prebendary
in
favours
of
a
person
dureing
his
Lifetime
;
and
after
his
decease
to
his
Son
:
The
Lords
Found
,
in
a
multiple
poinding
and
competition
,
betwixt
the
persons
substitute
in
the
said
Presentation
;
and
another
Prebendar
provided
by
the
succeeding
Bishop
,
by
the
decease
of
the
first
Prebendar
;
That
the
Substitution
,
contained
in
the
Presentation
foresaid
,
did
expire
by
the
decease
of
the
Father
,
and
that
the
Substitution
was
void
;
In
respect
,
the
Bishop
could
not
,
in
prejudice
of
his
Successor
,
grant
a
Presentation
in
the
Terms
foresaid
,
bearing
a
Tailzie
and
Substitution
.
Castlehill
Reporter
.
Mr.
John
Hay
Clerk
.
D.
441.
Drumellier
contra
E.
Tweeddale
.
eod.
die
.
IT
being
objected
against
Major
Bunting
,
being
led
as
a
Witness
for
Drumellier
against
the
Earl
of
Tweeddale
;
That
he
had
given
Partial
Counsel
,
at
least
had
concerned
himself
as
a
Party
for
Drumellier
;
In
swa
far
as
,
he
had
been
at
Consultations
with
him
,
in
Relation
to
the
Process
.
The
Lords
Found
,
That
he
could
not
be
a
Witness
,
tho
he
was
a
person
of
Integrity
above
exception
;
and
that
he
was
free
to
declare
that
,
at
the
said
Consultations
,
the
point
,
whereupon
he
was
to
be
used
as
a
Witness
,
was
not
in
consideration
.
Gibson
Clerk
.
D.
442.
Grange
Dick
contra
Oliphant
.
eod.
die
.
AN
Assignation
being
granted
for
relief
,
and
payment
of
certain
Sums
mentioned
in
the
Assignation
;
for
which
the
Assigney
was
Cautioner
for
the
Cedent
;
the
same
was
questioned
upon
that
head
,
that
it
was
never
delivered
,
but
was
still
in
the
Cedents
Hands
:
The
Lords
Found
,
That
the
said
Assignation
was
never
delivered
:
And
yet
they
Found
,
That
it
was
an
effectual
Evident
in
favours
of
the
Assigney
,
In
respect
the
Cedent
had
made
the
same
publick
by
a
Horning
thereupon
.
Sir
George
Lockheart
&c.
alteri
Cuninghame
&c.
In
praesentia
.
D.
443.
Ker
contra
Kers
.
25
January
.
1677.
A
Disposition
being
questioned
,
as
being
made
in
lecto
,
at
least
delivered
then
:
It
appeared
by
the
Deposition
of
one
of
the
Witnesses
,
used
for
proving
the
Lybel
,
that
the
said
Write
was
subscribed
diverse
Years
before
the
Disponer
was
on
death-bed
;
and
that
the
same
was
delivered
before
death-bed
to
the
said
Witness
:
and
that
the
Defunct
having
called
for
it
on
death-bed
,
for
drawing
two
other
Dispositions
,
of
the
Lands
contained
therein
;
one
in
favours
of
the
Pursuer
the
Disponers
Heir
;
and
the
other
in
favours
of
a
Son
of
the
Disponer
,
who
was
Father
to
the
Person
in
whose
favours
the
Disposition
in
question
was
made
:
And
upon
debate
amongst
the
Lords
,
what
should
be
the
import
of
the
said
Testimony
,
seing
the
Depositar
did
not
declare
in
what
Terms
the
same
was
given
to
him
by
the
Disponer
;
whether
to
the
behoof
of
the
said
Person
,
in
whose
favours
it
was
made
or
not
;
or
upon
any
other
account
,
for
keeping
the
same
,
so
that
the
Disponer
might
call
for
and
alter
it
:
It
was
Found
,
1.
That
the
Disponer
might
have
revocked
the
same
;
In
respect
it
did
not
appear
,
that
it
was
delivered
to
the
behoof
of
the
Person
to
whom
it
was
made
.
This
Decision
seems
to
be
hard
;
in
respect
the
Disposition
was
now
in
the
Hands
of
the
Receiver
,
so
that
it
was
to
be
presumed
,
that
it
was
delivered
,
either
to
him
,
or
to
the
said
other
Person
to
his
behoof
:
and
the
delivery
ought
to
be
construed
,
and
presumed
to
have
been
,
ut
operetur
:
and
the
nature
of
the
Act
it self
,
imports
that
it
should
be
to
the
behoof
foresaid
:
It
not
being
to
be
imagined
,
that
if
the
Disponer
had
intended
to
have
retained
the
Power
in
his
Hands
,
either
to
make
the
said
Right
effectual
,
or
not
;
he
would
have
given
it
out
off
his
Hands
.
2.
The
Lords
Found
,
Upon
the
Testimony
foresaid
,
That
the
Disponer
having
revocked
the
said
Disposition
not
simply
,
but
to
the
effect
foresaid
,
that
the
said
two
Dispositions
should
be
granted
;
The
Pursuer
therefore
had
not
Right
to
the
whole
Lands
,
contained
in
the
said
first
Disposition
;
but
that
the
same
should
divide
,
conform
to
the
said
two
Dispositions
.
Mr.
Thomas
Hay
Clerk
.
In
praesentia
.
D.
444.
Procurator-Fiscal
of
Glasgow
contra
Cowan
.
26
January
1677.
THE
Commissar
of
Glasgow
,
having
sustained
Process
,
at
the
Instance
of
the
Procurator-Fiscal
,
for
the
tryal
of
a
falsehood
of
Executions
,
whereupon
a
Decreet
had
proceeded
:
and
having
upon
Probation
of
the
falsehood
,
decerned
the
user
of
the
said
Executions
,
to
pay
300.
lib.
to
the
Procurator-Fiscal
as
a
Fine
:
and
the
said
Decreet
being
suspended
;
The
Lords
Found
,
That
the
Commissar
was
not
competent
Judge
to
the
improbation
of
Executions
,
by
way
of
Action
;
seing
they
cannot
reduce
their
own
Decreets
;
and
Improbation
is
a
Reduction
ex
capite
falsi
.
Justice-Clerk
Reporter
.
Mr.
Thomas
Hay
Clerk
.
It
is
to
be
considered
,
that
the
most
part
of
Decreets
,
befor
Inferior
Judges
,
are
for
Null-Defence
,
and
upon
false
Executions
:
and
it
were
hard
,
that
there
should
be
no
Remedy
but
by
Improbations
before
the
Lords
,
which
may
depend
long
and
are
very
chargeable
;
So
that
Decreets
before
Inferior
Judges
being
for
the
most
part
for
inconsiderable
Sums
,
the
Remedy
should
be
worse
than
the
Mischief
.
It
appears
indeed
,
that
the
Commissars
have
not
power
to
Fyne
;
that
being
a
Criminal
Jurisdiction
;
and
that
they
are
not
Judges
to
Improbation
by
the
indirect
manner
;
The
Tryal
of
Falsehood
,
by
circumstances
and
presumptions
,
being
Altioris
Indaginis
;
and
of
that
Difficulty
,
that
it
ought
not
to
be
left
to
an
Inferiour
Judge
.
Item
,
The
Tryal
of
Falsehood
,
as
to
that
effect
that
Falsaries
may
be
punished
,
ought
not
to
be
by
any
Inferior
Judge
;
But
it
seems
to
be
just
and
necessary
,
that
Parties
,
grieved
by
such
Decreets
,
should
be
allowed
to
pursue
the
obtainers
of
the
same
,
to
hear
and
see
them
reponed
against
the
said
Decreets
,
upon
that
Ground
that
they
were
not
cited
to
the
same
;
to
be
proven
by
the
Witnesses
and
Executer
himself
,
declaring
that
they
pursue
to
that
effect
allanerly
:
And
it
appears
not
to
be
inconsistent
with
Law
and
Form
,
that
this
course
should
be
taken
;
seing
the
Judge
does
not
reduce
his
own
Decreet
,
ex
capite
iniquitatis
;
and
it
may
be
provided
,
that
such
Pursutes
,
tho
they
be
upon
the
matter
Improbations
,
are
only
to
the
effect
foresaid
;
and
that
no
other
effect
or
consequence
shall
follow
upon
the
same
;
and
multa
fiunt
per
indirectum
,
which
cannot
be
directly
:
And
if
a
Party
,
who
is
holden
as
confest
,
should
raise
a
lybel
before
an
Inferior
Judge
,
that
it
may
be
Found
that
he
was
not
Contumax
,
being
out
of
the
Countrey
,
or
Sick
,
or
detained
by
Storm
,
or
some
other
insuperable
Impediment
;
and
that
therefore
he
should
be
reponed
;
and
the
Decreet
should
be
holden
as
a
Lybel
;
such
a
Pursute
would
not
be
incompetent
,
tho
in
effect
it
would
be
a
Reduction
upon
the
matter
.
D.
445.
Donaldson
contra
Rinne
.
27
January
1677.
IT
was
moved
,
whether
or
not
a
Decreet
of
an
Inferior
Judge
,
being
questioned
upon
that
Ground
of
Iniquity
,
that
the
Lybel
was
not
proven
;
and
the
Depositions
of
the
Witnesses
being
produced
by
the
Pursuer
ab
initio
;
The
Lord
of
the
Outer
House
may
advise
the
Probation
;
Or
if
it
ought
to
be
advised
by
the
whole
Lords
?
It
was
Found
,
That
the
Depositions
being
produced
(
as
said
is
)
the
Lord
may
give
his
own
Interloquitor
,
as
upon
any
other
Write
produced
ab
initio
,
to
instruct
the
Lybel
.
Tho
some
of
the
Lords
were
of
Opinion
,
that
the
Probation
ought
to
be
considered
and
advised
by
the
haill
Lords
;
And
it
was
hard
,
that
the
Probation
being
found
sufficient
,
by
a
competent
Judge
,
it
should
be
in
the
power
of
one
single
Lord
to
review
the
same
,
and
find
the
contrare
.
Mr.
John
Hay
Clerk
.
D.
446.
Murray
Pupil
contra
_____
31.
January
1677.
A
Pupil
of
4.
Years
of
Age
,
being
pursued
upon
the
Passive
Title
of
a
Charge
to
enter
Heir
;
and
the
Friends
conceiving
that
it
were
fit
to
Renounce
:
none
of
them
being
Curators
,
nor
being
willing
to
meddle
,
and
to
authorize
the
Pupil
to
renounce
;
The
Lords
Decerned
,
but
superceeded
Personal
Execution
,
until
the
Pupil
should
be
past
Pupillarity
.
Castlehil
Reporter
.
D.
447.
Master
of
Rae
contra
Sinclar
of
Dumbaith
.
1.
February
1677.
SInclar
of
Dumbaith
,
Sandside
and
others
having
in
a
Hostile
manner
invaded
the
Lord
Raes
Country
:
There
was
a
Criminal
pursute
intented
against
them
for
the
Crimes
committed
upon
the
occasion
foresaid
;
but
the
said
pursute
being
taken
away
by
a
Remission
,
there
was
thereafter
a
Spuilyie
pursued
at
the
instance
of
the
Master
of
Rae
,
having
Assignation
from
his
Father
;
and
by
his
Tennents
whose
Goods
had
been
Robbed
and
taken
:
And
it
being
Alledged
against
the
said
Pursute
,
that
it
was
prescrived
,
The
Lords
sustained
the
Reply
,
that
the
Prescription
was
interrupted
by
the
foresaid
Process
before
the
Justices
:
And
again
this
Day
a
Summonds
of
Spuilyie
,
which
had
been
formerly
intented
,
being
produced
;
and
it
being
Alledged
,
that
by
the
said
Summonds
and
Execution
upon
the
same
,
the
Prescription
was
interrupted
,
The
Lords
Found
,
That
the
same
did
not
interrupt
;
In
regard
it
appeared
,
that
the
Names
of
the
Defenders
have
been
Blank
in
the
saids
Summonds
,
and
since
filled
up
with
another
Ink
:
And
it
appeared
by
the
Executions
,
that
the
same
were
at
the
instance
of
Gray
of
Arbo
and
others
mentioned
in
the
Summonds
,
without
specifying
the
said
other
Persons
;
and
the
Defenders
had
settled
with
,
and
satisfied
Arbo
;
So
that
it
appeared
,
that
the
Names
of
the
said
other
persons
had
been
filled
up
in
the
body
of
the
Summonds
,
of
purpose
to
be
a
Ground
for
the
said
Reply
:
But
tho
the
Lords
did
not
sustain
the
Process
,
as
to
the
effect
of
giving
the
Pursuer
Juramentum
in
litem
;
In
regard
the
Goods
Libelled
,
were
Libelled
to
extend
,
as
to
the
number
of
Good
,
and
the
Damnage
sustained
by
the
Pursuers
Cedent
,
to
vast
Sums
,
exceeding
the
value
of
that
whole
Country
;
yet
the
Lords
did
adhere
to
their
former
Interloquitor
,
That
they
would
consider
,
the
time
of
the
advising
,
the
profits
of
the
Goods
as
in
a
Spuilyie
.
It
occurred
to
some
of
the
Lords
and
was
moved
,
whether
Juramentum
in
litem
,
being
given
to
the
Party
wronged
;
and
upon
that
account
,
that
the
quantities
and
the
Kinds
of
Goods
,
taken
from
him
,
could
not
be
so
well
known
to
others
and
proven
;
if
the
same
be
a
personal
favour
;
Or
if
it
may
be
extended
to
an
Assigney
?
Newbyth
Reporter
.
D.
448.
Holmes
contra
Marshall
.
2.
February
1677.
THE
Lords
Found
,
That
a
Woman
,
being
provided
by
her
Contract
of
Marriage
,
to
a
Liferent
of
the
Conquest
of
Lands
,
or
other
Goods
that
should
be
acquired
dureing
the
Marriage
:
And
the
question
being
of
Moveables
,
and
she
having
accepted
a
Third
of
the
same
,
she
could
not
return
to
crave
a
Liferent
of
the
other
two
parts
;
tho
it
was
Alledged
by
her
,
she
had
not
accepted
the
same
in
satisfaction
of
what
she
could
claim
.
2.
It
was
Found
,
That
a
Woman
,
being
provided
,
as
said
is
,
to
a
Liferent
of
all
the
Moveables
her
Husband
had
the
time
he
Marryed
her
;
and
which
he
should
acquire
during
the
Marriage
;
It
was
in
her
Option
,
either
to
take
her
to
her
Liferent
of
the
whole
;
or
to
claim
the
3d
part
in
property
;
but
,
making
Election
,
could
not
varie
.
Tho
this
was
Found
by
plurality
,
yet
some
of
the
Lords
were
of
Opinion
,
that
by
the
Provision
foresaid
she
has
only
a
Liferent
;
and
that
she
had
not
the
said
Election
;
Seing
eo
ipso
that
she
is
provided
to
a
Liferent
of
all
,
it
is
intended
and
agreed
,
there
should
be
no
Communio
bonorum
;
It
being
inconsistent
,
that
she
should
be
both
Proprietar
and
Liferentar
usufructu
formali
,
Newbyth
Reporter
.
Gibson
Clerk
.
D.
449.
_____
contra
Tait
.
6
February
1677.
THE
Lords
Found
,
That
a
Bond
,
being
granted
on
Death-bed
,
with
consent
of
his
Appearand
Heir
for
his
Interest
;
bearing
an
obligement
to
pay
a
Sum
of
Money
;
Is
to
be
considered
,
not
as
a
Legacy
,
but
as
a
Bond
inter
vivos
:
Seing
,
by
the
Common
Law
,
all
persons
are
in
legitima
potestate
as
to
the
granting
of
Bonds
;
And
our
custom
,
whereby
persons
on
Death-bed
are
not
in
in
liege
poustie
,
is
qualified
with
an
exception
,
viz.
unless
the
Heir
consent
;
in
whose
favours
the
same
is
introduced
.
Castlehill
Reporter
.
D.
450.
_____
contra
_____
eod.
die
.
THE
Lords
Found
,
That
Appearand
Heirs
may
be
pursued
,
as
behaving
before
the
year
expire
;
seing
eo
ipso
that
miscent
,
adeunt
passive
:
And
as
to
that
pretence
,
that
they
would
be
wronged
if
it
should
have
appeared
by
the
probation
that
they
did
not
meddle
;
It
is
of
no
weight
;
Seing
the
Lords
may
modify
Expences
.
D.
451.
_____
contra
_____
29.
February
.
1677.
AN
Exhibition
being
pursued
at
the
instance
of
an
Heir
of
Conquest
:
And
it
being
Alledged
by
the
Heir
of
Line
,
that
some
of
the
Lands
,
whereof
the
Writes
were
craved
to
be
exhibited
,
were
in
Holland
;
and
that
by
the
custom
there
,
the
Eldest
Brother
did
not
succeed
as
Heir
of
Conquest
;
but
all
the
Brothers
and
Sisters
equally
;
so
that
the
Writes
ought
not
to
be
delivered
to
the
Pursuer
,
who
had
only
an
Interest
as
to
the
fifth
part
;
whereas
the
Defender
had
four
parts
,
having
acquired
three
from
his
Brothers
and
Sisters
,
and
having
one
himself
;
and
he
having
the
far
greater
interest
in
the
Land
and
Writes
,
ought
to
have
the
keeping
of
the
same
,
being
Lyable
to
make
them
forthcoming
to
the
Pursuer
.
The
Lords
notwithstanding
preferred
the
Elder
Brother
to
the
keeping
of
the
Writes
.
In
that
same
Cause
,
It
was
Alledged
,
That
,
as
to
the
Lands
in
Scotland
,
the
Defuncts
Right
was
only
by
a
Comprysing
,
which
was
personal
,
and
whereupon
no
Infeftment
had
followed
;
and
which
belonged
to
the
Heir
of
Line
,
as
Tacks
and
Reversions
:
The
Lords
,
nevertheless
,
Found
,
that
the
Heir
of
Conquest
has
Right
to
the
same
,
conform
to
a
late
Decision
.
D.
452.
Purveyance
contra
Knight
.
8
June
1677.
THE
Lords
Found
,
Upon
the
advising
of
a
concluded
Cause
,
after
Debate
in
praesentia
,
in
the
Case
in
question
,
That
Liber
Rationum
,
and
a
Compt-Book
of
a
Merchant
,
containing
an
Article
of
Debt
,
due
by
him
to
the
Pursuer
,
was
a
sufficient
Probation
:
In
respect
the
said
Compt-Book
was
written
with
the
Merchants
own
Hand
;
and
he
was
known
to
be
a
person
of
great
Honesty
and
Exactness
:
and
the
Article
was
so
clear
,
that
the
time
therein
mentioned
,
he
stated
himself
to
be
Debitor
in
the
said
Sum
,
all
by
gone
Annualrents
being
payed
;
and
in
an
other
part
and
Article
of
the
said
Book
,
he
did
acknowledge
,
that
he
had
borrowed
the
said
Sum
,
and
was
special
as
to
the
time
;
and
there
was
a
great
Confidence
and
near
Relation
betwixt
him
and
the
Creditor
;
and
therefore
the
Lords
decided
as
said
is
;
in
respect
of
the
said
Circumstances
:
but
thought
it
hard
,
that
Compt-Books
in
Scotland
,
where
there
is
not
that
exactness
that
is
else
where
,
in
keeping
Books
,
should
have
that
Faith
that
is
given
to
them
elsewhere
.
Mr.
Robert
Stewart
Actor
,
alteri
Cuningham
.
Mr.
John
Hay
Clerk
.
In
praesentia
.
D.
453.
Campbel
contra
Taite
.
eod.
die
.
THE
Lybel
being
referred
to
the
Defenders
Oath
;
and
he
having
declared
upon
a
general
Interrogator
,
that
he
was
not
owing
the
Sum
acclaimed
;
It
was
urged
,
the
time
of
the
advising
of
the
Oath
,
that
the
Defender
should
declare
,
whether
or
not
he
had
gotten
a
parcel
of
Lint
,
and
what
way
he
had
payed
the
price
of
the
same
.
The
Lords
Found
,
That
he
should
not
be
urged
to
declare
upon
that
Interrogator
;
In
respect
it
was
not
desired
he
should
be
interrogate
upon
the
same
when
he
did
declare
;
and
having
denyed
that
he
was
any
ways
Debitor
,
he
would
be
involved
in
Perjury
,
if
upon
a
special
Interrogator
he
should
acknowledge
that
he
was
Debtor
upon
the
account
therein
mentioned
.
Mr.
Thomas
Hay
Clerk
.
Stewart
and
Swinton
Advocats
.
D.
454.
Patrick
contra
Anderson
.
eod.
die
.
AN
Executor
,
having
alledged
that
the
Testament
was
Exhausted
,
and
for
probation
,
having
produced
the
Defuncts
Bond
,
with
a
Discharge
from
the
Creditor
after
the
Defuncts
decease
:
and
it
being
Found
,
That
the
same
did
not
prove
,
unless
there
had
been
a
Sentence
produced
:
It
was
thereafter
Alledged
for
the
Executor
,
that
seing
he
instructed
the
Debt
,
and
that
he
had
payed
the
same
bona
fide
,
the
same
ought
to
be
allowed
for
his
liberation
;
at
least
that
the
said
Debt
should
come
in
pari
passu
with
the
Pursuers
;
unless
they
could
object
against
the
same
,
as
not
a
true
Debt
;
which
was
Repelled
;
in
respect
no
Legal
Diligence
had
been
done
for
the
said
Debt
.
Some
of
the
Lords
were
of
Opinion
,
that
it
should
have
been
allowed
to
come
in
pari
passu
;
In
respect
the
Diligence
,
used
by
the
Pursuer
,
in
intenting
a
Pursute
against
the
Executor
,
was
only
Personal
,
and
did
not
affect
the
Goods
;
and
the
Executry
being
short
,
and
the
Goods
being
to
be
forthcoming
to
all
Parties
having
Interest
,
any
Creditor
may
compear
for
his
interest
,
and
crave
to
have
a
proportion
of
the
same
at
any
time
before
Sentence
;
Otherways
a
great
Creditor
,
in
alse
much
as
may
be
equivalent
to
the
Executrie
,
if
he
should
pursue
the
Executor
before
the
other
Creditors
,
they
may
be
all
frustrate
.
Mr.
Thomas
Hay
Clerk
.
D.
455.
Blackwood
contra
Pinkill
.
9.
June
1677.
A
Father
having
infeft
his
Grand-child
in
Fee
of
his
Estate
,
and
his
Son
Father
to
the
Fiar
,
in
Liferent
;
with
a
Provision
,
that
the
Liferent
should
be
alimentary
to
him
:
The
Lords
,
Upon
a
Debate
among
themselves
,
concerning
the
said
Qualification
of
the
Liferent
,
were
of
the
Opinion
,
that
the
Son
being
provided
before
to
some
other
Lands
simplie
,
without
the
said
Quality
,
the
Creditors
of
the
Son
might
,
by
their
Diligence
,
affect
the
said
alimentary
Liferent
;
except
so
much
of
the
same
as
the
Lords
should
think
fit
to
reserve
for
a
competent
Aliment
to
the
Son
:
but
there
was
not
a
Decision
in
the
Case
.
Mr.
John
Hay
Clerk
.
Concluded
Cause
.
D.
456.
Captain
Binnie
contra
Gibson
.
20
June
1677.
THE
Lords
Found
,
That
a
Partie
,
being
pursued
as
representing
his
predecessor
;
for
payment
of
the
Sum
due
by
a
Bond
;
might
propone
a
Defence
of
Payment
;
notwithstanding
that
he
had
,
before
,
pursued
an
Improbation
of
the
said
Bond
:
In
respect
the
Bond
being
ancient
and
not
granted
by
himself
,
he
was
in
bona
fide
to
pursue
Improbation
of
the
same
;
and
thereafter
it
appearing
to
be
a
true
Bond
,
he
may
also
alledge
payment
;
giving
his
Oath
of
Calumny
upon
the
Defence
.
D.
457.
Pringle
contra
Pringle
of
Torsonce
.
21.
June
1677.
THE
Laird
of
Torsonce
having
disponed
his
Estate
to
his
Eldest
Son
for
Love
and
Favour
;
with
a
Provision
contained
in
the
Disposition
,
that
it
should
be
lawful
to
him
to
burden
the
saids
Lands
by
Wadsets
of
the
same
;
Or
Annualrents
forth
thereof
,
for
the
Sum
of
5000
Merks
Redeemable
by
his
Son
:
And
having
thereafter
granted
a
Bond
to
a
Daughter
of
a
second
Marriage
,
of
1000.
merks
,
who
did
pursue
the
Representatives
of
the
Son
,
for
the
said
Sum
,
It
was
Alledged
for
the
Defender
,
That
he
could
not
be
pursued
Personally
;
but
if
there
were
any
Ground
of
an
Action
,
it
would
be
only
for
a
Declarator
,
that
the
Lands
are
lyable
to
the
said
Debt
.
2.
That
there
could
be
no
Ground
of
Declarator
,
in
respect
the
Disponer
had
not
made
use
of
the
said
Faculty
,
nor
granted
a
Wadset
for
the
said
Sum
;
and
that
the
Defunct
had
a
personal
Estate
and
Executry
;
And
in
swa
far
as
,
he
had
not
,
conform
to
the
said
faculty
,
secured
the
Pursuer
out
of
the
said
Lands
,
he
had
declared
his
Intention
,
not
to
make
use
of
the
said
faculty
.
The
Lords
Found
,
That
the
Pursuer
ought
to
discuss
the
Executry
,
and
any
other
Estate
belonging
to
the
Disponer
:
and
if
the
said
Sum
could
not
be
recovered
out
of
the
personal
Estate
,
that
he
might
have
recourse
against
the
said
Lands
;
which
was
Found
by
the
Lords
,
upon
these
considerations
,
viz.
That
the
Right
made
by
the
Father
being
for
Love
and
Favour
,
the
said
Reservation
ought
to
be
interprete
benigne
,
and
it
was
to
be
considered
quid
actum
;
the
Fathers
intention
being
to
have
a
Power
,
to
contract
alse
much
Debt
as
might
amount
to
the
said
Sum
;
And
eo
ipso
that
he
did
grant
the
said
Bond
,
he
did
burden
the
said
Lands
virtually
;
and
in
his
own
time
they
might
have
been
comprysed
for
the
said
Sum
;
and
therfore
may
be
now
affected
and
comprysed
.
2.
The
Fathers
End
being
to
have
power
to
burden
with
the
said
Sum
,
the
modus
and
way
was
insert
ex
stylo
by
the
writer
;
that
which
is
mentioned
in
the
Disposition
being
the
most
ordinary
,
and
therfore
to
be
understood
demonstrative
but
not
taxative
.
3.
Tho
some
of
the
Lords
were
of
Opinion
,
That
the
Pursuer
may
immediatly
,
as
other
Creditors
,
have
recourse
against
the
Estate
;
yet
it
seemed
to
be
reasonable
,
that
,
in
this
case
,
the
Reservation
being
in
the
Terms
foresaid
;
and
the
Bond
,
whereupon
the
Security
was
founded
,
not
relating
to
the
same
,
the
Executry
should
be
first
discust
:
Seing
by
the
Common
Law
the
Executry
was
ever
first
lyable
;
And
tho
,
by
the
Lords
Practice
,
Creditors
may
pursue
either
the
Heir
or
Executor
,
yet
there
being
such
a
speciality
in
this
case
,
and
the
Defender
not
representing
personally
the
Grandfather
,
as
Heir
,
or
otherways
by
Progress
,
his
Representatives
ought
to
be
first
discust
,
and
the
said
Lands
to
be
lyable
only
in
subsidium
.
Actores
Sir
George
McKenzie
,
Mr.
Robert
Stewart
.
Alteri
Lockheart
and
Pringle
.
Gibson
Clerk
.
In
praesentia
.
D.
458.
Malloch
contra
The
Relict
of
David
Boid
.
26.
June
1677.
A
Second
Compryser
having
pursued
a
Declarator
,
that
the
prior
Comprysing
was
satisfied
by
Intromission
;
and
the
Defender
having
in
the
Compt
and
Reckoning
given
in
an
Article
of
Debursements
for
prosecuting
and
defending
of
Processes
concerning
his
Right
;
The
Lords
Found
,
That
,
as
to
the
extinguishing
of
the
Comprysing
upon
the
account
of
Intromission
,
the
Expences
in
deduceing
the
Comprysing
and
obtaining
Infeftment
were
only
to
be
allowed
;
but
not
any
other
extrinsick
Debursements
:
But
the
Comprysing
being
extinct
and
satisfied
,
if
there
were
any
superplus
of
Mails
and
Duties
,
for
which
the
Compryser
was
to
be
comptable
,
he
might
retain
,
of
the
first
end
of
the
same
,
such
as
were
profitably
expended
,
not
only
in
Relation
to
his
own
,
but
the
Pursuers
Right
.
Newbyth
Reporter
.
D.
459.
_____
contra
_____
eod.
die
.
THE
Defender
,
in
a
Spuilyies
,
having
Alledged
that
the
Goods
were
his
own
;
and
that
,
having
given
them
to
the
Pursuer
to
be
grassed
,
he
might
have
taken
away
his
own
Goods
:
It
was
Replyed
,
That
the
Pursuer
was
not
obliged
to
debate
the
Right
and
property
of
the
said
Goods
;
but
in
spolio
,
he
needed
Lybel
no
more
,
but
that
the
Goods
were
upon
his
Ground
and
in
his
Possession
;
and
taken
away
vi
and
in
manner
Lybeled
:
And
spoliatus
ante
omnia
restituendus
.
The
Lords
debated
among
themselves
,
whether
the
Defence
be
Relevant
;
and
did
not
decide
the
case
:
Some
being
of
Opinion
,
that
if
it
should
evidently
appear
,
that
the
Pursuer
was
not
in
Possession
of
the
Goods
as
suos
,
but
in
behalf
of
the
Defender
;
as
if
there
were
a
Writt
betwixt
the
Pursuer
and
Defender
,
bearing
that
the
Goods
were
the
Defenders
;
and
that
the
Pursuer
contractu
Locationis
&
Conductionis
had
taken
the
same
in
graseing
;
that
the
Defender
could
not
be
Lyable
for
Spuilyie
of
his
own
Goods
:
But
if
it
should
appear
,
that
there
was
any
violence
in
taking
them
away
,
he
may
be
pursued
for
a
Riot
.
D.
460.
Drumkilbo
contra
Mcmath
and
Oliphant
.
eod.
die
.
JAnet
Mcmath
Lady
Grange
being
Creditrix
to
the
Laird
of
Kilspindie
;
And
having
,
upon
an
Arrestment
in
the
hands
of
Drumkilbo
,
obtained
a
Decreet
to
make
forthcoming
;
There
was
thereafter
a
Suspension
of
double
poinding
against
the
said
Janet
Mcmath
,
and
Sir
Laurence
Oliphant
of
Gask
,
who
pretended
Right
to
the
Sum
due
by
Drumkilbo
,
by
an
Assignation
intimate
before
the
Arrestment
:
And
in
the
Competition
foresaid
,
the
said
Sir
Laurence
was
preferred
.
But
thereafter
in
an
Improbation
of
the
said
Assignation
,
at
the
instance
of
the
said
Janet
Mcmath
,
the
said
Sir
Laurence
having
abiden
by
the
same
,
It
was
Found
,
after
a
long
and
litigious
dependence
by
the
space
of
50
Years
,
that
the
Assignation
was
false
:
And
William
Dick
of
Grange
,
the
said
Janet
her
Son
,
having
thereafter
intented
a
pursute
against
the
said
Sir
Laurence
,
to
hear
and
see
it
declared
,
that
in
respect
the
said
Sir
Laurence
,
by
his
compearance
,
and
making
use
of
the
said
false
Assignation
,
had
been
prefered
;
and
had
rendered
the
foresaid
Diligence
by
Arrestment
ineffectual
;
and
had
transacted
and
made
benefite
of
the
said
false
Assignation
;
That
therefore
,
In
swa
far
as
he
was
Lucratus
he
should
make
the
same
forth-coming
for
payment
of
the
Pursuers
just
Debt
;
Especially
it
being
considered
,
that
he
had
Discharged
one
of
the
Cautioners
in
Drumkilbo
his
Bond
:
It
was
Answered
,
That
he
was
in
bona
fide
to
acquire
a
Right
to
the
said
Assignation
,
neither
knowing
,
nor
being
accessory
to
the
Forgeing
of
the
same
;
and
he
had
made
no
benefite
by
uplifting
from
Drumkilbo
any
part
of
the
said
Debt
;
but
by
transferring
his
Right
in
favours
of
Mr.
John
Blair
;
which
he
had
done
bona
fide
:
And
as
to
the
Discharging
the
Cautioner
,
it
could
not
prejudge
the
Pursuer
,
seing
the
Discharge
would
fall
in
consequence
of
the
Assignation
.
The
Lords
Found
,
That
,
albeit
he
were
not
accessory
to
the
Forgery
,
yet
having
used
a
false
Write
,
and
having
litigiously
so
long
maintained
the
same
;
and
upon
that
occasion
,
the
Pursuer
being
altogether
frustrate
;
he
ought
to
be
Lyable
in
quantum
lucratus
,
and
what
he
had
gotten
more
by
the
Transaction
with
Mr.
George
Blair
then
he
had
given
for
acquireing
the
said
Right
:
And
the
Lords
reserved
Action
to
the
Pursuer
against
the
Cautioner
:
And
in
case
the
Cautioner
should
be
Assoilyied
,
without
prejudice
to
have
recourse
against
the
said
Sir
Laurence
as
Accords
.
Actores
Lockheart
,
Monnypenny
&c.
alteri
Cuninghame
&c.
Mr.
Thomas
Hay
Clerk
.
In
praesentia
.
D.
461.
_____
contra
The
Laird
of
Cramond
.
eod.
die
.
MR.
Cornelius
Inglis
being
Debitor
to
Mr.
John
Inglis
of
Cramond
in
the
Sum
of
3500.
Merks
;
He
did
give
to
Cramond
,
for
Security
of
the
said
Sum
,
and
for
relief
of
Cautionries
for
him
,
extending
to
towards
10000
M.
a
Bond
for
payment
and
relieving
him
of
the
said
Sums
;
with
an
obligement
to
Infeft
in
the
Lands
thereinmentioned
,
for
his
Security
and
relief
of
the
said
Sums
;
and
a
precept
of
Sasine
whereupon
Infeftment
followed
:
And
thereafter
,
Mr.
Patrick
Inglis
,
the
said
Mr.
Cornelius
his
Eldest
Son
,
did
grant
a
Bond
to
Cramond
,
relateing
expresly
to
the
said
former
Bond
and
Right
of
Relief
,
and
in
Corroboration
thereof
,
and
the
Infeftment
thereupon
,
containing
an
Obligement
for
Payment
and
releif
of
the
said
Sums
.
Thereafter
the
said
Mr.
Patrick
did
obtain
,
from
his
Father
,
a
Right
and
Infeftment
of
the
said
Lands
,
upon
that
narrative
,
that
he
had
undertaken
the
payment
of
his
Fathers
Debts
;
and
that
he
was
engaged
for
him
;
and
that
the
said
Right
was
granted
to
him
for
his
Relief
;
whereupon
he
obtained
Possession
;
and
,
before
any
Diligence
,
at
the
instance
of
any
of
the
other
Creditors
,
he
did
pay
some
Annualrent
to
Cramond
upon
a
Discharge
,
relateing
to
Cramonds
Right
and
Infeftment
foresaid
.
Thereafter
there
being
a
Multiple
poinding
raised
against
Cramond
,
and
some
of
the
Creditors
,
who
had
deduced
a
Comprysing
against
the
said
Mr.
Patrick
of
his
Right
;
the
Creditors
Alledged
,
that
they
ought
to
be
preferred
,
because
Cramonds
Right
was
only
base
,
and
the
said
Mr.
Patrick's
Right
was
cled
with
Possession
,
before
any
pretence
of
Possession
in
the
person
of
Cramond
;
and
that
they
having
Comprysed
Mr.
Patrick's
Right
are
thereupon
preferable
to
Cramond
;
Whereunto
it
was
Answered
,
That
Cramonds
Right
,
being
a
Right
of
Relief
,
could
not
take
Possession
ex
natura
of
the
Right
,
until
a
distress
;
and
because
it
was
provided
by
the
Right
it self
,
that
Cramond
should
enter
to
the
Possession
in
case
of
distress
;
and
in
case
he
should
not
be
payed
of
his
Annualrent
;
which
he
could
not
do
before
Declarator
:
And
that
the
Lords
had
diverse
times
Found
,
that
Infeftments
of
Warrandice
,
whereupon
there
could
be
no
Possession
before
Eviction
,
should
be
preferred
to
posterior
Infeftments
;
and
that
Infeftments
of
Annualrent
,
being
anterior
,
should
be
sustained
in
a
Competition
with
posterior
base
Infeftments
cled
with
Possession
;
Because
the
first
Term
of
Payment
of
the
Annualrent
was
not
come
,
when
the
posterior
Infeftment
came
to
have
Possession
;
and
that
the
Competition
was
not
betwixt
Cramonds
and
the
Comprysers
Infeftment
upon
the
Comprysing
,
but
Mr.
Patrick's
own
Infeftment
;
and
that
Cramonds
Infeftment
was
cled
with
Possession
before
the
Compysers
Right
and
Interest
,
by
payment
of
the
Annualrent
of
the
said
Sum
due
to
Cramond
himself
;
as
appeared
by
the
Discharge
accepted
by
Mr.
Patrick
relating
to
Cramond
his
Right
and
Infeftment
foresaid
:
And
that
base
Infeftments
by
the
Common
Law
being
valide
;
And
by
the
Act
of
Parliament
K.
Ja.
5th
.
in
anno
1540.
It
being
provided
,
that
for
obviating
Fraud
by
granting
private
and
latent
Infeftments
,
in
prejudice
of
posterior
Infeftments
that
are
publick
,
being
either
holden
of
the
Superior
or
by
Possession
;
the
said
Act
of
Parliament
cannot
be
extended
to
this
Case
;
In
Respect
Cramonds
Right
cannot
be
said
to
have
been
fraudulent
and
private
as
to
Mr.
Patrick
;
In
respect
he
did
not
only
know
the
same
,
but
did
ratify
and
corroborate
the
said
Right
as
said
is
,
both
before
his
own
Right
and
after
the
same
;
and
before
the
interest
of
Creditors
,
he
did
in
effect
ratify
and
homologate
the
same
,
by
making
payment
conform
thereto
,
as
said
is
.
The
Lords
,
In
Respect
the
case
was
of
moment
,
as
to
the
Preparative
,
Ordained
that
it
should
be
Debated
amongst
themselves
:
And
upon
the
Debate
,
they
decided
these
points
.
1.
That
,
the
said
Act
of
Parliament
K.
Ja.
5th
.
being
general
,
and
there
being
no
Exceptions
of
Infeftments
of
Relief
,
the
said
Act
is
comprehensive
of
the
same
.
2.
Tho
the
Act
of
Parliament
,
anent
Registration
of
Seasings
,
does
secure
Singular
Successors
,
yet
the
said
Act
of
Parliament
K.
Ja.
5th
.
is
not
taken
away
,
tho
in
in
some
cases
,
the
Lords
are
apt
to
favour
prior
Infeftments
,
where
there
is
no
presumption
of
Fraud
:
And
therefore
,
when
there
is
any
pretence
of
Possession
,
as
in
the
case
of
Infeftments
of
Warrandice
,
they
Found
that
fictione
Juris
the
Possession
of
the
principal
Lands
is
the
possession
of
the
Warrandice
.
3.
That
albeit
Mr.
Patrick
could
not
question
Cramonds
Right
for
the
Reason
foresaid
,
yet
the
Comprysers
,
being
Singular
Successors
,
may
question
the
same
.
The
Lords
therefore
preferred
the
Creditors
:
And
yet
sustained
Cramonds
Infeftment
,
In
swa
far
as
concerns
the
Sum
foresaid
due
to
himself
,
and
not
as
to
Cautionries
;
In
respect
the
said
Discharge
was
only
of
the
Annualrent
of
the
Sum
due
to
himself
.
This
Decision
appears
to
be
hard
,
upon
these
Considerations
:
First
,
Because
Cramonds
Infeftment
,
tho
base
,
as
to
the
point
of
Right
,
by
the
Common
Law
is
preferable
:
And
as
to
the
said
Statute
,
it
introduces
only
a
praesumptio
Juris
,
that
base
Infeftments
,
not
cled
with
Possession
,
are
presumptively
fraudulent
:
And
the
Question
,
whether
Cramonds
Infeftment
was
fraudulent
,
was
to
be
considered
in
relation
to
Mr.
Patrick
and
his
Infeftment
,
and
not
to
his
Successors
:
And
the
said
presumption
was
taken
away
by
Mr.
Patrick
his
Deed
foresaid
,
having
corroborate
,
as
said
is
,
Cramonds
Infeftment
;
which
was
verified
by
a
Write
Subscribed
by
Witnesses
,
and
which
was
was
Found
to
militate
,
even
against
the
Creditors
,
and
to
cloath
Cramonds
Infeftment
with
Possession
.
2.
Cramonds
Right
being
Jus
individuum
,
tho
upon
distinct
Grounds
,
it
could
not
be
fraudulent
and
private
ex
parte
,
and
ex
parte
publick
.
Actores
Sir
John
Cuninghame
,
&c.
alteri
Lockheart
.
In
praesentia
.
D.
462.
Mr.
John
Kincaid
contra
Gordon
of
Abergeldie
.
eod.
die
.
MR.
John
Kincaid
having
pursued
Gordon
of
Abergeldie
,
as
representing
his
Father
,
by
Behaving
:
His
Defence
was
,
That
he
had
Right
by
an
expired
Comprysing
,
whereby
his
Father
was
denuded
,
so
that
he
could
not
be
Heir
to
him
.
But
in
the
same
Process
,
in
respect
a
Reduction
and
Declarator
was
intented
at
the
said
Mr.
Kincaid's
instance
,
within
ten
Years
after
the
appearand
Heir
had
purchased
a
Right
to
the
said
Comprysing
;
The
Lords
,
tho
there
were
no
Order
used
,
did
simul
&
semel
sustain
the
said
Processes
:
and
appointed
Compt
and
Reckoning
,
and
Auditors
.
FINIS
.