The decisions of the Lords of council & session in the most important cases debate before them with the acts of sederunt as also, an alphabetical compend of the decisions : with an index of the acts of sederunt, and the pursuers and defenders names, from June 1661 to July 1681 / Sir James Dalrymple ...

CERTAIN DECISIONS Of several Debates , Intented and Debated BEFORE THE LORDS OF COUNCIL & SESSION , IN Some Weighty and Important Affairs , brought before them . Beginning the 29. of June 1661. and ending in July 1681.

Iames Talzifer contra Maxtoun and Cunninghame . Iune 29. 1661.

IOHN KER , Merchant in Edinburgh , having an Wodset-Right of some Tenements in Edinburgh , William Clerk his Creditor , Comprized the Wodset-Right from him , and obtained Decreet of Removing , against the Tennents of the Tenements ; Iames Tailzifer having Right to the Reversion of the said Wodset , consigned the Sum for which the Wodset was granted , in the hands of the Clerk of the Bills , and thereupon obtained a Suspension of the Decreet of Removing ; and thereafter having obtained Right from William Clerk , to his Appryzing , did , by Supplication , desire the sum Consigned by him , to be given up to himself ; 1. Because the Consignation was not orderly made , conform to the Reversion . And , 2. Though it had been orderly , yet before Declarator , he might pass from the Consignation , and take up his Money , whereby the Wodset Right wou●d remain unprejudged . 3. The Wodset-Right being now returned to himself , by acquiring Clerks Appryzing , he had thereby Right to the sum Consigned , for Redemption of the Wodset : Compearance was made for Maxtoun and Cunningham , for whom it was alledged that the consigned Sum ought to be give up to them ; because , before William Clerks Appryzing , they and William Clerk , had joyntly obtained from the King , a Gift of the Escheat , and Liferent of the said Iohn Ker , who had been year and day at the Horn , before Welliam Clerk Appryzed from him ; so that the sum Consigned , being now moveable , fell under Kers E●chea● , and thereby they have R●ght to two third parts thereof , and Clerk or Tailzifer by his Right , can only have the other third ; and if the Sum were not ●ound to fall under Kers E●cheat , the Annualrent thereof , during K●rs 〈◊〉 would fall to the three Donators of his Liferent equally , and the ●um ought to be given out , in security to them for their Liferent ; and to Tailzifer , as having Right to Clerks Appryzing in Fee , except the third , thereto Clerk had Right as joynt Donator with them ; neither could Tailzifer pass from his Confignation , seeing th●y accepted thereof ; nor could he object against any informality in the Consignation made by himself , seeing they past from that objection . It was answered for Tailzifer , that Maxtoun and Cunninghame had no Right by the single Escheat of Ker ; because before the Consignation , by which it is pretended the Consigned Sum became moveable , Ker was den●ded by Clerks Appryzing : So that the Consigned Sum came in place of the Appryzing . It was answered for Maxtoun and Cunninghame , that albei● the Apprizing might carry the Stock and Fee of the Consigned Sum ; yet the Liferent of the Annualrent thereof , belongs to the three joynt Donators of Kers Liferent , seeing Ker was year and d●y Denounced ; whereby jus fuit acquisitum domino Regi , before Welliam Clerk Apprized . It was answered for Tailzifer , the diligences of Lawful Creditors , are still preferred to the Fisk , before Declarator , and here that was no Declarator , of the Liferent of Ker : and therefore Clerks Appryzing must carry the whole Right of the Wodset , and in consequence of the Sum Consigned in place thereof . It was answered for Maxtoun and Cunninghame , that although compleat Dilligences of Creditors , attaining effect before Declarator , are not lyable to Re●●i●ution , in single Escheats , it is not so in Liferent-escheats ; especially where the Diligence is not compleat , ●n cursu rebellionis , as in this case , and likewise Clerk , Tailzifers author had homologat the Right of Liferent , by concurring with them , founding thereon in many Process●s .

The Lords found the Alleadgence for Maxtoun and Cunninghame , upon the joynt Gift of Kers Liferent , Homologate , as said is , relevant and proven ; and therefore , ordained the Consigned Money to be given up to Tailzifer , who by vertue of his Right to Clerks Appryzing , had the Right of the Stock thereof , and ordained him to imploy the same , or give Security for the Annualrent , of two third parts thereof to Maxtoun and Cunninghame , during John Ker's Lifetime .

Major of Bervick , contra L. of Hayning . Iune 1. 1661.

THE Major of Bervick , and others having right to the Salmond Fishing in Tweed , within Bervick bounds , gave in a Supplication to the Parliament , against the Laird of Hayning , bearing , that he was now drayning a Loch , which fell into the Water of Etrick , and thence into the Water of Tweed , which had given a red Tinctur to all the River to the Sea , most noysom to the Salmond , which were found never to swime where the said Tinctur was , but in other clearer places of the Water , all the Salmond Fishing was prejudged to a great sum , to the detriment of the Countrey , and the Kings Customes ; Therefore desiring that he might be ordained to desist and cease : The Parliament remitted the Bill to the Lords . It was alleadged for the Defender , that the Bill was not Relevant , because of any alleadged prejudice of the Pursuers , to take away from the Defender his undoubted Right of Propertie , giving him power to dispose of his own at his own pleasure . And so to drain his Loch , or to cut his own ground , especially seing His Majesty , by His Proclamation having invited all His Subjects to drayning . The Pursuer answered , that his Petition was most Relevant , and no ways contrair to the Right and Effect of Propertie , which giveth the Proprietar power to dispose of his own , so that he keep him within his own bounds , and do not send forth any noisom thing upon his Neighbours , but he may not do so to his Neighbours detriment , especially if he make use of that which is his own , not according to the nature and common use thereof , but against the same , and so though he may build upon his own ground , albeit to the detriment of his Neighbours light or prospect , or may dig a Well in his own ground , albeit thereby he cut off the veins of his neighbours well , yet can he not otherwise prejudge his neighbours , as if he had a Loch on a Hill , he might not cut it , if it drowned his Neighbours ground below , nor may he build a Milne upon his own ground , so as to take the the water from his Neighbours Milne , nor may he turn the water out of the old Channel , or make it rune other wayes upon his Neighbours , then was accustomed . In like manner , in Superiour and Inferiour Tenements in Town , The Superiour may not be made use of , to the detriment of the Inferiour , nor the Inferiour to the detriment of the Superiour , by putting Fire on the Floor , which would smoak the same . The like is provided by many Interdicts in the Civil Law , &c. And therefore the Defender might not contrair to the nature of a Loch , which hath perpetually been a Loch , do any deed beginning within his own Bounds , but ending in a publick River , to the detriment of the Fishing ; which is worth more then 12000. lib. Sterl . by Year . The Defender answered , that suppose he might not make use of his own , to emit any thing upon his Neighbours propertie contrare to Nature , to his Neighbours Detriment , as in the Instances alledged , they did not meet with this case , because here he offered him to prove , That his Loch had a perpetual Current to the water of Ettrick , which made a Milne go , and when his drayning was done ( which would be shortly ) the Current to the River would be as little , and as pure as ever , so that albeit there was Detriment , it was but Temporary , nor was he working contrary Nature , but helping it , by redding the passage , to let the Loch run quickly away . 2dly . Albeit he might make no new work on his own ground , to the Detriment of his Neighbours Propertie , yet might he well send away any stagnant water , corruption or filth , by a publick River , whereof one prime use is to purge the earth of all corruption , and to carry it to the Sea , and therefore the Corruption , not only of Men , and Beasts , but of the Earth , as of Minerals , Coal-pits , Lime , and all others might be freely turned thereunto , unlesse there were a positive Law or Custome to the contrair , albeit there may be detriment of Fishing , which is but a Casualitie , and must carry the accident of such inconvenience along with it . And as for the Roman Interdicts , they neither meet the Case , nor are they Laws for us , where the Civil Law is not a Law , but an Example we follow freely when we find it Just and fit .

The Lords were Inclined to refuse the said Bill , on that consideration mainly , that it was the proper use of Rivers to carry away the Corruption and Filth of the Earth , which should not be hindred by any Right of Fishing , which is but a Casualiti● given and taken with the common use of the River , but in regard the matter was remitted by the Parliament , who might , if they found great Inconveniency make a Law for remeid thereof ( before answer ) The Lords granted Commission to trye the condition of the Loch , and how it runn before this drayning , and how it would run after the same , and how long the drayning would continue , and what alteration was in the Fishing of Tweed thereby , and what appearance that the same was caused by the drayning of this Loch .

Raith of Edmonstoun , Contra the Laird of Niddrie . Iuly 4. 1661.

JOhn Boid Merchant in Edinburgh , as Assigny constitute by the Laird of of Wolmet , to a Decreet obtained at his Instance , against Niddrie , for payment of the sum of 7000. merks , for which he gave Band to Wmquhil Wolmet for Iames Reith of Edmonstoun his good brother , as an Asythment for the Mutilation of the Laird of Wolmet by Edmonstoun , who cut off Wolmets left hand . Niddrie Suspended on double Poynding , called the said Iohn Boyd , Iean Dowglas , Umquhile Wolmets Relict , and the said Iames Reith . It was alledged for Niddrie , and the said Iames Reith , that the Decreet did bear the sum not to be payable till their were delivered , a sufficient Letter of Slaine and Remission for the Mutilation , but the Letters of Slain now produced is not sufficient , because it did bear only the Remission of an accidental Mutilation , and this Mutilation being of purpose . 2dly . It was only subscribed by Wolmets Heir , and not by his Wife , and their Children . It was answered for the Chargers , that there was no necessity of a Letter of Slains for Mutilation , but the Remission alone was sufficient . 2dly . This sum was granted for Asythment to Umquhile Wolmet himself in his Lifetime , and the Decreet mentioned a Letter of Slains granted by him . 3dly . Any Interest his Wife or Bairns could have , was only for the Asythment of their Damnage , which could be none , seeing Wolmet was a Landed Gentleman , and did not intertain his Family by his handie work , The Lords Repelled the Reason of Suspension ; In respect of the Answer on the Decreet and Letters of Slain produced , which they found Sufficient . It was also alledged be the said Iean Dowglas , that she ought to be preferred to the said Iohn Boyd , because she had arrested the sum long before his Assignation . It is answered , for Boyd , the Arrestment was upon a dependence and loosed , and there is yet no Decreet upon the Dependence . It is answered for Dowglas , That the loosing of the Arrestment would have freed Niddrie , if he had actually payed the sum , but it being yet in his hand , it ought to prefer her as Creditor , doing first Diligence , especially , seing Wolmet the time of the Assignation , was Rebel , and Bankrupt . The Lords preferred the Assigny , in respect there was no Decreet Extracted upon the Dependence : Reserving to the Arrester after sentence to reduce upon the prior diligence as accords , &c.

Tailizfer , Contra Maxtoun and Cuninghame . Iuly 6. 1661.

IN the Competition betwixt Tailzifer , Maxtoun and Cuninghame , mentioned Iune 29. Where Tailzifer was preferred to the Stock of the sum consigned , for the Redemption of the Wodset in Question . It was further alledged for Maxtoun , that he ought to have a share of the Stock , because he produced a mutual Band betwixt himself and William Clerk , Tailzifers Author , who apprysed the Wodset , whereby they were oblidged to to Communicat the Profit that should accresce to them by their Actions intented , and to be intented upon their Rights of Iohn Ker , the common Debitors Lands , without opposing one another upon their several Apprysings , Tailzifer answerd non relevat against him , who was a singular Successor , this being but a personal Band of his Author , and could not affect his Real Right of Apprysing , it was answerd for Maxtoun , First , Albeit Apprysings and Infeftmens thereupon be Real Rights , in some respect , yet in many others , they were only accompted as Personal Rights , at least might be taken away by Personal deeds , as by Intromission with the Maills and Duties of the Apprized Lands , or by payment of the Sums therein contained , which would be valid against singular Successors , without necessity of any Consignation . It was answered for Tailzifer , That this is by reason of the Act of Parliament 1621. Declaring Apprysings satisficable by Intromission with the Maills and Duties , and so to expire ipso facto , but cannot be streached beyond the Tenor of that Statute , contrair the nature of Real Rights . The Lords repelled the alleadgeance for Maxtoun upon the Band for Communication , which did not affect singular Successors . It was further alleadged● that this mutual Band was Homolgat by Tailzifer in so far as he had concurred in all pursuits with Maxtoun conform to the Tenor of the said Band , and had uplifted the Mails and Duties accordingly . It was answered for Tailzifer , non relevat , to infer Homologation , seeing these Deeds are not relative to any such personal Bond , which Tailzifer never knew , and therefore could not Homologat ; whereupon Tailzifers oath was taken , if he knew the same , who denyed : And thereupon the alleadgence was repelled . Maxtoun farther alleadged , that albeit there had been no more , but the concurrence judicially , it was sufficient to communicat the Appryzings . It was answered for Tailzifer , non relevat , unless the concurrence had born expresly , to communicat , for the concurrence only to exclude third Parties , would never infer the same .

The Lords Repelled Maxtoun's Alleadgences , and adhered to their first Interlocutor .

Colledge of St. Andrews Supplicant . Iuly 16. 1661.

THE Colledge of St. Andrews Supplicat , that in respect their hail Rents were arrested , at the Instance of Doctor Gleig , and thereby they were not able to intertain their Table and Bursers ; craved the arrestment to be loosed , without Caution , in respect they were an Incorporation , for whom no body would be Caution .

The Lords after debating the Case amongst themselves , whether arrestment could be loosed without Caution , or upon juratorie cautione , thought it could not ; but in this case , they allowed the same to be loosed , the Masters of the Colledges giving a Bond , to bind themselves and their Heirs personally , for what should be uplifted by any of them , whereby every Person stood Caution for his own Intromission , for the University , they not being otherwayes bound personaliter , but only secundum officium .

Relict of Robert Fleming , contra Forresters . Iuly 17. 1661.

THE Relict of Robert Fleming , Bailzie of Edinburgh , as his Executrix , Charged Forresters the Bailzies Sister Daughters , to pay 1600. merks , due by their Father , by Bond , and decerned against them as lawfully Charged to enter Heirs to him nineteen years ago , and now eiked to the Bailzies Testament , by the Charger ; whereupon She obtained Letters of Horning , Summarly ; the Suspenders alleadged , the Letters ought to be Suspended simpliciter , because they offered a Renounciation to be Heirs : The Charger answered , non relevat post sententiam et tantum temporis Intervallum : The Suspender replyed , they were Minors the time of the Decreet , and that the delay of time was , because their Uncle never Insisted , and it was like , purposed not to Insist . The Charger answered , they were now Majors , and did not reduce intra annos utiles .

The Lords admitted the Renunciation .

Laird of Buchannan . contra Oseburn . Iuly 24. 1661.

THE Laird of Buchannan Pursues , Reduction of a Decreet , obtained against him , at the Instance of Lieutennent Collonel Oseburn , in Anno 1653. upon many Reasons , mainly , because the ground of the Decreet was only a Bill not past the Signet , at the Instance of umquhil , Mr. William Cunninghame , continued in Oseburn , after his decease , without transferring , for rectifying or rescinding a minute of Disposition , of the Lands of Ballindalloch , by Mr. William to Buchannan , put in the hands of Mr. David Buchannan , who gave his Ticket that the same should be keeped , until it were perfeited according to Equity and Justice ; and Deponed , that the Point to be rectified , was only the warrandice which in the Minute was absolute , upon which Bills , the then Judges , ordained the Parties to submit , who accordingly submitted to four Friends , and two Overs-men , who were to report , February 10. 1653. Which Oversmen did unwarrantably report , after the expyring of the said Reference , upon the 19. of February , to Buchannans great prejudice , contrair to Justice , in so far as they ordained him to pay Oseburn sixteen years Purchase , for the price of the Lands , without Production or Debating of the Parties Rights , or calling , or hearing the Arbiters ; and with warrandice from Oseburn , and his Goodfathers Fact , and Deed only , albeit the Lands were insecure , holden Ward , and lying in the Highlands . And found the Rental of the Lands to be five thousand merks yearly , without distinguishing between Stock and Teind , though the Testimony of the Witnesses proves not above three thousand merks , beside the Teind ; of which Lands , Oseburn nor his Good-father , had neither Title nor Possession of Buchanbeg ; Buchanmore and Ballochroon , which are parts of Ballandoloch , whereunto the Judges did unjustly interpone their authority , superceeding twenty thousand merks , until the Right of Buchanbeg , Buchanmore and Ballachroon , were discussed ; and whereas the Decreet bears , Buchannan to have consented , he denyed the same , neither was there any minut of Process taken upon the day of his alleadged consent ; but by an Ordinance of the Judges half a year thereafter , made upon their memory , which cannot prove against him , not being subscribed by him , at least he might have resiled , re integra , before extracting the Decreet , as he did . The Defender answered , that whatever was the ground of the Processes , yet there was a Submission subscribed by both Parties , and a Report by the Oversmen conform , which is express contrair to all that is alleadged : and is sufficient and full Probation , Arbiters having so great Trust. And the Decreet beareth , the Report made upon the 9. of February : And albeit the minuts of Process were wanting , or contrary , nihil est , because the Clerk being publicus proto notarius his solemn Instruments make full Probation , and the minuts are but the notes taken by him for remembrance , till the full Instrument be compleated ; against which , Parties may object at Extracting , as not conform to the Warrands , but not thereafter ; otherwayes the Clerks by altering , or losing the minuts , might destroy all Decreets , which are the greatest Securities of the Kingdom . The Report also bears , Inspection of the Parties Rights , and consid●ration thereof , and of the Debates and Informations given in by either 〈◊〉 in write : And if Buchannan saw not Oseburns Rights , it was his fault , that called not for them out of the Overs-mens hands , where they long lay , being expired Appryzings and Infeftments against Glengarnock , the ancient Proprietar , and against the Lairds of Buchannan themselves ; so that the Report being a Decreet Arbitral , and Confirmed by the Judges , and consented to by Parties , is most solemn . And as to the Consent , it was Judicial and Palpable , by joyning hands , and needed no Subscription ; it be-being most ordinary , that Decreets bear , Consent of Parties ; especially when the Consent quadrateth with , and is conform to a Process ; as the compearances of Parties , whereby Decreets became irreduceable , accepting of Offices of Tutory , or Curatory : and so if Buchannan had appeared , and said for fourty thousand pound , non faciam vim ; but as for the twenty thousand merks , the Right of these Lands would be first cleared . It would have been an unquestionable consent , albeit contrary or extrinsick Acts require Subscription , and ex abundanti , have the same : yet they need not , seeing publica scriptura , by the Instrument Judicial of the Clerks , of Supream Court , is more Solemn than a private Write by Parties Subscription ; and albeit de recenti , at the same time , when consents , or offers are proposed , Parties may resile , yet ex intervallo , they cannot : For there is only locus penitentiae in Dispositions , or Tacks of Lands , where Writ is requisit , not only as an Evidence , but as a solemnity accomplishing the Right : But in other Pactions and Promises , where Write is not essential , there is no place therefor . The Lords having considered the Decreet , and whole Warrands thereof , Reduced , and turned the same in a Libel , ordained O seburn to proceed upon the two Supplications , on which the Decreet was pronounced , and continued his Possession , till the close of the next Session , for they found beside , many informalities , the sentence and Report of the Overs-men , to have been after expyring of the Reference , by the Warrand thereof , subscribed with their hands : And as to the Consent , they found by Signature of Process under all the then Judges hands , that there was no minut of the said Consent at the time it was alleadged to have been , but half a year thereafter , made up of their memories : Upon which two Points mainly they Reduced , without Discussing the other Alleadgences : neither had they respect to Buchannans Homologations of the Arbiters Sentences , by taking out Diligences conform , and adducing Witnesses to prove the Rental : nor by acquiescing in his Bills to the price ; because there was alwayes some qualities in his Consent .

Laird of Lamertoun , contra Earl of Levin , and Alexander Kennedy . Eodem die .

THE Laird of Lamertoun having wakened an Improbation against Alexander Kennedy , and the Earl of Levin , for improving of several Bonds , exhibite by the said Alexander Kennedy , and made use of by the Earl of Levin ; Lamertoun craved , that the Earl of Levin , might bide by the Bonds , seeing he made use thereof ; the Earl offered to abide by them , qualificate● , viz. that he made use of them , as believing they were true Bonds ; and that he was not accessory to any falshood , or forgery thereof . It was alleadged , he ought to bide by them simply , for such qualities were contrair to the Act of Parliament , declaring users of false Writs , and abiders by them , to be accounted as accessory thereto ; many of the Lords were of opinion , that he should abide by them simply ; but that he might protest under the foresaid quality , in respect it was not proper to the Lords , to consider the consequence of his biding by the Bonds , which was Criminal ; yet alterius fori ; yet it was carried , that he might bide by them qualificate : and therefore he was ordained to give it in in Write , that the Lords may consider how far they will allow it .

Mitchels , contra Iohn Hutchison . Iuly 24. 1661.

JEAN and Marion Mitchels , having ●pursued Iohn Hutchison , in Anno 1659. for Reduction of a Decreet , obtained by him against them , as Heirs to their Father , upon Minority and Lesion : and also , because their Service , the only ground of the Decreet was Reduced , in Anno 1656. wherein there was an Act of Litiscontestation now wakened . The Defender alleadged he got wrong in the said Act ; because , he having proponed a Defense upon the Pursuers behaving themselves as Heirs ( no wayes acknowledging their Minority ) he alleadged they behoved to prove the Reason , as well as the Exception , seeing they were both consistent : yet the Act ordained him to prove his Defense of behaviour ; but did not ordain them to prove their Minority . The Lords found this alleadgence relevant . It was further alleadged , that the Reduction of the Pursuers retour is not competent against this Defender , to Reduce his Decreet ; because the said Reduction was long posterior to his Decreet , and he was not cited to the Reduction . The Pursuers answered , they needed call none to the Reduction of of their Retour , but the Judge , and Clerk , and Inquest● and though the Defenders Decreet was anterior , they did not know the same , having been obtained when they were within twelve years of age , and never charged thereupon , before the Reduction of their Retour , and so they never knew it , nor were oblieged to know it .

The Lords repelled this Defense , and sustained the reason of Reduction , unless the same were elided by the said Defense , of behaving as Heir .

Thomas Iack , contra Fiddess . Eod die .

EODEM die , Thomas Iack pursues Fiddess , alleadging that Fiddes having given him in custody , the sum of five hundred merks , in Anno 1650. by a Ticket produced , bearing , To be keeped by him with his own , upon the Deponers hazard ; and that the Pursuer for his security , did thereafter go to Dundee , and took his Goods thither , where he lost the said sum , and all his other Goods , by the English taking the Town by storm , and plundering it : yet Fiddess conveened him before the English Officers at Leith , who most unjustly decerned him to pay the sum , and put him in Prison , till he was forced to give Bond for it , and thereafter payed it , unto this Defender his Assigney , who concurred with him , and knew the whole matter , and now craved repetition condictione indebiti . The Defender alleadged Absolvitor , because the Pursuer made voluntar payment , and so homologat the Decreet , and never questioned the same till now . The Pursuer answered , it was no homologation , nor voluntar , he being compelled to grant it , and expected to remeid from the English Judges , with whom the Officers had so grear power ; neither could this be counted any Transaction , seeing the whole sum was payed , nor any voluntar consent , nor homologation , being to shun the hazard of Law : So that though these Officers had been a Judicature , if in obedience to their Sentence , he had payed , and after had Reduced the Sentence , he might have repeated what he payed , much more when they had no colour of Authority . The Lords Repelled the Defense of Homologation . It was further alleadged for the Defender , Absolvitor ; because he offered him to prove , he required his Money from the Pursuer , before he went to Dundee , and got not the same ; and it was his fault he took it to Dundee , being a place of hazard . The Pursuer replyed , that after the said Requisition , he made offer of the Money , and Fiddes would not receive the same , but continued it upon his hazard , as it was before .

The Lords Repelled the Defense , in respect of the Reply : and because the Defense and Reply were consistent , ordained the Parties to prove , hinc inde ; the Pursuer his Libel , and Reply ; and the Defender his Defense

Weymes , contra Lord Torphiohan Iuly 25. 1661.

LADY M●ray , Iean , Elizabeth and Katharine ●●ymes , pursue the Lord Torphichane , alleadging that their Deceased Sister , Dam Anna 〈◊〉 , having a Wodset of 20000. Merks , upon the Barrony of Errot , granted a Bond of Provision thereof to her Daughter Iean Lindsay , thereafter Lady Torphichane , and to the Heirs of her Body , which failzing , to return to the saids Pursuers , with an obliegement , that her said Daughter should do nothing to prejudge the saids Heirs of Tailzie ; which Bond was delivered by the Earl of Weymes to the Defender , then Husband to the said Iean Lindsay , who oblieged himself to make the same forth-coming to all Parties having interest , as accords : Yet thereafter , during the Marriage , the said Iean Lindsay entred Heir to her Mother ; and she and the Defender uplifted the Wodset sum , passing by the Bond of Provision : which sum being in place of the Wodset , and unwarrantably uplifted by the Defender , contrair the Bond of Provision , known to himself , which he was oblieged to make forth-coming ; he ought to refound the sum . The Defender answered , that the Libel is no wayes relevant : for if his Deceast Lady Iean Lindsay , being Feear of the Wodset , did uplift the same , and contraveened the Bond of Provision , nihilad eum , who is but a singular Successor , having Right from his Lady , by Contract of Marriage , whereof there was a minute at the time of his Marriage , expresly disponing this sum , without any mention , ●●knowledge of the Bond of Provision ; and albeit he knew the fame after his Right , nihil est . And as for his Ticket , it can work nothing ; though the Band of Provision were now produced , it being but a Personal Oblidgment , can oblidge none but his Ladies Curators , or Successors , and if they will alleadge , that he is either Heir or Successor Relevant , and his Ticket to make it forthcoming as accords , nihil novi Iuris tribuit . The Pursuer Replyed , That albeit a singular Successor , for an onerous cause might have uplifted the Wodset , and been free , yet the Defender being as the same Person with his Ladie , and having no onerous cause , but his Contract of Marriage , wherein there was a plentiful Tochar of 20000. lib. provided to him besides this , and having known the Band of Provision , before the uplifting of the Sum , and so particeps fraudis he is lyable to make the Sums received by him forthcoming , by the Act of Parliament , 1621. And also by the Common Law , in quantum est accratus alterius dispendio .

The Lords found the Lybell and Reply relevant and approven , and therefore decerned Torphichine to refound the Sum.

William Ker , contra Parochiners of Cardine . Iuly 26. 1661.

WILLIM KER , as Executor confirmed to Umquhile Mr. Andrew Ker his Father , pursues the Minister , and Parochiners of Cardine , for intrometting with his Fathers Steipend of the Kirk of Cardine , in Anno 1652. and 1653. And for the Annatine 1654 , Because his Father died on the 22 of November , 1653. The Defenders alleadged absolvitor , because he being Collegue Minister , placed with the Defuncts consent , and the Defunct being Suspended by the Presbetrie , he got Right to these Years Stepends , and obtained Decreet against the Heritors , and uplifted conform , and so was bona fidei possessor cum titulo . 2. He offered him to prove , by an Act of Presbytrie , that at the time of his entrie he was provided to eight hundred merks of the Defuncts Steipend , by the Defuncts own consent . And as for the Annat , it was not confirmed , and could be extended to no more but the half of 1654. The Pursuer answered to the First , That the Presbytrie had no power to dispose of that Steipend , by the Act of Parliament 1644. because the Defunct was only Suspended ab officio , which makes not the Kirk Vaick , maxime , seeing the Defunct was Reponed by the Synode , and never desposed , and as to the Decreet , at the Defenders Instance , it was given without calling the Defunct , whom he was in mala fide to misken . To the second , That the Act of Prisbytrie cannot prove , unless it had been subscribed by the Defuncts , own hand , matters of Steipend not being the proper work of Presbitries , but proper for civil Judges , especially , seeing the Defunct was Suspended for Preaching for the Engagement , 1648. Against which that Presbytrie protested ; and so the Act being Eairtester , is the more suspect . To the Third , The Annat not being in bonis defuncti , but indulged by the Law , to the Wife , Bairns , and nearest of Kin to the Defunct Minister , and so originally their Right , though upon occasion of his Service , the same needs no Confirmation , and the Defunct having right proprio jure to the whole Year , 1653. Surviving both Terms Anne signifying a Year further must be the heal Year , one thousand six hundred fifty and four .

The Lords Repelled the first Defense , and found the Suspension of the Minister not to make the Steipend Vaccand , and had no respect to the said Decreet , whereto the Defunct was not called . They found also the second Defense not probable by the Act of Presbytrie , and found that the Anne needed no Confirmation , but that the Anne did only extend to half a Year more then the Defunct had right to proprio jure .

Laird of Lamirtoun contra Alexander Kennedy Farl of Levin . Eodem die

EOdem die , The Laird of Lamertoun , upon the Improbation mentioned , Iuly 24. Did then desire that Alexander Kennedy producer of the six Bonds quarrelled , might be examined in presentia , and his Person Sequestrated and Secured , and warrand granted to examine new Witnesses .

The Lords superceided to give answer till they considered the Process , and now having considered the same , and finding , that the direct manner of Improbation was not Competent , because the Witnesses were dead ; and that the Pursuer had insisted in the Indirect manner , and had obtained warrand for Inspection of the Dispositions taken in the Cause , both of Alexander Kennedy himself , and of the Witnesses then adduced , and had given in Articles of Improbation , and the Defenders Articles of Approbation , Replyes and Duplyes both which being considered by the Lords , they found grounds of Suspition● and therefore granted all the desires of the Supplication , and Ordained Alexander Kennedy to be keeped close Prisoner in the Tolbooth , till he were re-examined , and Witnesses hinc inde , to be examined by some of the Lords in the Vaccancy , upon what either Parties should desire , which seemed peri●ent to the saids Lords Examinators .

Dame Elizabeth Fleming contra her Children November 14. 1661.

DAme Elizabeth Flemming Relict and Executrix to Umquhile Malcome Flemming Merchant in Edinburgh , and Tutrix dative to his Bairns , having formerly pursued an Action of Exoneration against her Children , in which she gave up as an Article of her Accompt a hundred pounds Sterling , payed by her to Patrick Scot of Langshaw , whereupon she had retired her Husbands Bond , and taken a discharge upon the back thereof , and had taken her Husbands name therefrom , whereanent the Defenders alleadged , That this being a cancelled Paper , could establish no Debt against them , neither could Patrick Scots discharge prove against them that it was a debt restand by their , Father and payed since his death , as Patrick's Testimony and Oath could not prove , much less his Declaration in wri ; whereupon , the Lords had ordained Patrick Scots Oath to be taken ex officio ; upon the truth of the Debt ; and when it was payed to him , and by whom ; who having D●poned , that it was payed by this Pursuer after her Husbands Death . The Lords did allow the Article : Now the Cause being wakened at the Pursuers instance , and Sir Iohn Gibson now her Husband , one of the Clerks : The Defenders further alleadged , that Patrick Scots oath ought not to have been taken , and could not be sufficient to prove against them , that this was a true Debt , and payed by their Mother , but it behoved to be presumed , if it was a Debt at all , to have been payed by their Father , and the Bond cancelled by him , and left amongst his writs , and found by their Mother there ; and now after her second Marriage made use of against her own Children ; albeit she made no mention of it before : And therefore the cancelled Bond being no Writ● subscribed by the Defunct , cannot prove , nor can Patrick , Scot's Discharge , or his Oath make it up ; nor any other thing , except the Defenders own Oath , or Writ ; seeing Witnesses are not admitted in cases of this Importance . Secondly , though it were Evidently , and Legally Instructed and Proven , yet the Debt was payed by the Mother , she can have no allowance of it , because she payed Voluntarly , not being Tutrix nor Executrix at that time , and cancelled it , and took a discharge of it ; and so it is both unwarrantably done , and must be presumed to have been of purpose , to gift it to her Children out of her opulent Fortune , having given above fourty thousand pounds to the second Husband . The Pursuer answered . That the alleadgances were most Irrelivant , for as to the first , anent the Probation of the truth of the Debt , and payment by the Executrix ; It is sufficiently proven by the cancelled Bond , at which the Witnesses Names are yet standing ; by Patrick Scot's Discharge and Oath , already taken , who is a Person inconcerned ; and above all exception , and if need bees , it is offered to be proven by many Witnesses above exception , who saw the Bond un-cancelled after the Defuncts Death , which is abundantly sufficient , to take away the Presumption , that it was retired , and cancelled , by the Defunct himself , and that such Probation was Legal , and Warrantable ; was formerly found by the Lords of Session , upon the 7th of March , one thousand six hundred twentie nine , betwixt Falconer and Blair , where an Executor pursuing the Hetr , for relief of a moveable Debt , produced only the Defuncts cancelled Bond , without a discharge , and these same points being alleadged ; The Lords found , that the Action ought to be sustained , and the truth of the Debt , and the Payment after the Defuncts decease , to be proven by the Creditors Oath ; or after his decease by the Heirs Oath ; and it is unquestionable , That the Lords , in matters obscure , as to the Probation , may ex ●ob●li officio take all manner of Tryal , for finding out the Truth , by Oaths of Parties , Witnesses , or any other manner of way , in matters of greatest moment , which being here already done , and the Testimony so clear , and of so unquestionable a Person as Patrick Scot , there remaines no doubt , but the Debt was truely owand , and payed by the Relict , after her Husbands decease . As to the second Point , there is no necessity in Law for Executors , or Tutor● to have Sentence , unlesse it be in Cases of Competition , to secure themselves , against other Creditors , pursuing afterwards ; or Cases dubious , where the Probation is not clear , but to pay a clear Debt without burdening Pupils with unnecessary expenses of Law , against which the Pupils can now alleadge nothing , wherein they were prejudged , by voluntar payment , such payments were never Repelled : Especially in the Case of a Woman paying so soon after her Husbands death , nor can it be presumed a Donation , because Donations are never presumed , but must be clearly proven ; and it is very ordinar to those who have Interest to pay the Debts , and Confirm afterwards .

The Lords considering the whole Circumstances , found the Article not to be allowed , a be●t they were clear , that the Debt was true , and really payed by the Executrix ; yet seeing she payed , not being then Executrix , nor Tutrix ; and cancelled the Bond , without taking Assignation ; they thought she could not distresse her Children with it , but that it was a Donation in their favour .

Dame Elizabeth Flemming contra Iohn ●ibson and Flemming . November 19. 1661.

INter eosdem , There was another Article of the said accompt , whereby the said Dame Elizabeth Flemming , having lent out a sum of money , in the Name of Mal●ome and Andrew Flemming's , two of her Bairns , she craved , that the said Sum should be taken in part of payment , of the Portions of the whole Bairns ; or at least , in so far as was more nor the Portions of these two Bairnes , might be declared , to belong to her self . It was answered for the Bairns , that this Bond was a Donation by the Mother , out of her own means , in favours of her Children ; and could not be imputed as a part of their means , because , First The Bond did bear the Money to be lent by her in her Childrens name , and not in her own ; Neither did it bear to be as a part of the Bairns means , nor in satisfaction thereof , as she had specially taken other Bonds in these same Bairns names , and so presumed consideratly , to gift the Sum to these two Bairns , of whom one was a pocthmus Child , born eight moneths after his Fathers Death , and so was not thought upon by his Father , nor provided with Legacies as the rest were , Secondly , The Tenor of the Bond bears expresly , the Sum to be payable to the Mother , in Liferent ; and one of the Children is substitute Heir to another , in case they had not Children of their own , ( Whereas another would have fallen Heir of Lyne to them , viz. An intervenient Brother ) and to them both the Mother her self , and her Heirs were substitute . The Pursuer answered , That supposing this were a Donation ; yet it being a free gift , the mother might do it upon what Terms , and Conditions , and what way she pleased . Ita est , by the Tenor of the Bond. It is provided , that she shall uplift the Sum , during her Life , and the Children after her decease ; by which Clause , she is more nor a naked Life-renter ; and seeing this Clause must be interpret cum effectu , the only meaning of it can be , That during her own Lifetime , she might uplift the Sum , and dispose of it at her pleasure : and so evacuat the fee in her Childrens Persons , seeing there is nothing to oblidge her to re-imploy it for the Bairns use , if she should once uplift it , it , as when a Father Infeft his Son in his Lands , reserving his own Liferent , with power to Dispone , during his own life ; there the Father is Liferenter , yet by that Reservation , he may annull and evacuat the Sons Fee , even so here : For which two Practicks of Dury was adduced , that a Father providing a Sum to himself and his Wife , and the longest liver of them two ; and failzing of them by Decease , to his Son , the Son being Infeft in Fee : and in the other Practick , the Father being expresly infeft in an Annualrent for his Lifetime ; Yet the Lords found , that the Father , during his lifetime , might uplift the sum , and Dispose of it at his pleasure . The Lords found , by the Tenor of the Bond , that the Mother had Constitute her self expresly Liferenter , and the Children Feears : And that the power to Charge for the Money , did bear nothing of a power to her to Dispose of it ; but was only the ordinar Reservation adjected after the Clause of Annualrent , in these words , but prejudice of the said Annualrent to her , during her life , and after her Decease , to ●he Bairns to uplist the money ; and so , that albeit she was not expresly oblieged to re-imploy it ; yet she Constituting her self Liferenter , without a power to Dispose of the Fee , did sufficiently obliege her to re-imploy the sum . And as to the Practicks , the case clearly differed , in this ; that there the Father and Mother were not Constitute Liferenters in the sum , though the Father was mentioned Liferenter , of an Annualrent , accessory to the sum : But the Clause being to the Father and Mother , and after their Decease to the Son . It was clear by the common Practicks , that the Son was not Feear , but Heir Substitute ; so that the Father was Feear , and might Dispose at his pleasure .

November 20. 1661. In the foresaid Cause , It was further alleadged for the Tutrix , that the Bond in question could not be accounted a Donation , notwithstanding the Reasons before adduced , in so far as she was Debitor to the saids two Bairns , for their Portion , quia debitor non presumitur donare ; and therefore , Provisions granted by Husbands to their Wives , albeit they mention not the Contract of Marriage , but love and favour : And so in the Terms of a Donation , yet it is alwayes interpret , to be in satisfaction of a prior obliegement in the Contract of Marriage , and not , that both the posterior and former Provision , are due to the Wife . It was answered for the Bairns , that though Donation be not presumed , yet when by the Nature of the Deed done , it appeareth to be animo donandi ; I it is truly such , albeit it bear not the name of a Donation , especially in this case : Which Law excepteth from that general Rule , that Parents bestowing sums for the use of their Bairns , from their natural affection , are alwayes presumed to gift , and not to satisfie any former Provision , unless it were so exprest : Upon which ground an Infeftment granted by a Father to his Son , though but a Bastard , Redeemable upon a sum of Money , was not found in satisfaction of a former Bond , granted by him to that natural Son , as is observed by Dury , upon the 24. of Iuly 1623. Stuart contra Fleming : But here , not only is this Bond , not in satisfaction of the former Portion ; but bears a Clause of a Liferent , and of a return to the Mother , which are incompatible with an intention of satisfaction .

The Lords found the Bond to be in satisfaction of the Bairns Portions , pro tanto , and a Donation pro reliquo ; which many thought strange , seeing a Bond of 100. Sterling , mentioned 14th . Instant , re●eired and payed by the Mother , and being proven by Patrick Scots oath , so to have been done , to the satisfaction of most of the Lords , which was clogged with no Provision , was not allowed to be in Satisfaction of these Bairns Portions .

Bosewel contra Bosewel . November 22. 1661.

JOHN Bosewel Pursues Bosewel of Abden , as representing Henry Bosewel his Father , for payment of a 1000. pounds , due to the Pursuer , by the said umquhil Henry , and insisted against the Defender , as lucrative Successour , by accepting a Disposition of Lands , and Heritage , from the said umquhil Henry , whereunto he would have succeeded , and was therein his appearing Heir . The Defender alleadged , he was not lucrative Successor ; because the Disposition was for Causes onerous . The Pursuer answered , non relevat , unless it were alleadged for Causes onerous , equivalent to the worth of the Land ; as was formerly found in the Case of Elizabeth Sinclar contra E●phingst●●● of Cardo●● . The Defender answered maxime relevat , to purge this odious , passive Title , of lucrative Successor , which is no whe●e sustained , but in Scotland ; specially , seeing the Pursuer hath a more favourable remeid , by Reduction of the Disposition upon the Act of Parliament , 1621. if the price be not equivalent , and there it is sufficient , to say it was for a considerable sum , or at least , it exceeded the half of the worth , for there is latitude in buying and selling , and as an inconsiderable Sum could not purge this Title ; so the want of an inconsiderable part of the full price , could as litle incur it .

The Lords before answer , ordained the Defender , to produce his Dispositior , and all Instructions of the Cause onerous thereof , that they might consider if there was a considerable want of the equivalence of the price ; here the Defender pleaded not , that he was not alioqui successurus , the time of the Disposition , being but Consing German to the Defunct , who might have had Children .

Dowglasse contra Iohnstoun . Eodem die .

EODEM die , In the Competition between Dowglass in Abernethie , who Confirmed himself Executor Creditor to Gilbert Weymes in Dumblane , where Gilbert dwelled ; and Iohn Iohnstoun as Executor , Confirmed to the said Gilbert , by the Commissars of Edinburgh ; because Gilbert in a Voyage from Scotland to Holland , died at Sea .

The Lords found the Commissars of Edinburgh to have no Right , unless the Defunct had died abroad , animo remanendi , This Interlocutor was stayed , till the Commissars were further heard .

Marjory Iamison contra Rodorick Mccleud . December 3. 1661.

MARIORI Iamison , Relict of umquhil Mr. Iohn Alexander Advocat , pursues Rodorick Mccleud , for payment of a Bond of Pension , of 200. merks yearly , granted to her Husband , bearing , For Service done and to be done . The Defender alleadged the Libel is not relevant , unless it were alleadged , that Mr. Iohn had done Service constantly , after granting of the of the Pension , which the Lords Repelled . The Defender alleadged further , that he offered him to prove , that Mr. Iohn did desist from his imployment as Advocat , after the Pension , and became Town Clerk of Aberdeen ; and the Pension being granted to him , who exerced the Office of an Advocat at that time , must be persumed for his Service , as Advocat .

The Lords Repelled this Defense , in respect of the Bond of Pension , bearing , For Services done and to be done , generally .

Sir Robert Farquhar contra Lyon of Muiresk . Eodem die .

SIR Robert Farquhar , pursuing a Reduction of a Disposition , against Iohn Lyon of Muiresk , upon Circumvention .

The Lords granted Certification , unless not only the Extract , but the Principal Disposition were produced , in respect they were registrate at that time , when the Principals were given back to the Parties .

Thomas White contra Crocket . December 4. 1661.

THOMAS White pursues Patrick Crocket in Eliot , to make payment of the sum of 600. merks , which the Pursuer alleadged he had in a Leather-Girdle , when he lodged with Crocket , being in an In-keepers House , and that the Defender promised that the Pursuer should want nothing , after the Pursuer had shown him the said Girdle ; yet the Defender came ordinarly in the Chamber , where the Pursuer lay that night , and he wanted his money from under his head , which he declared , and shew to the Defender the next morning : and therefore , according to the Law , nautae caupones stabularij &c. ( which is observed in our Custom ) the Defender as Keeper , ought to be Decerned to restore . The question was here only , of the manner of Probation .

The Lords found all the Libel Relevant to be proven , pro ut de jure , and declared , that these being proven , they would take the Pursuers oath , in litem , upon the quantity .

Baillie of Dunnean contra Town of Inverness . Eodem die .

BAILLIE of Dunnean pursues the Town of Inverness , for violent Intromission in his Moss , and molesting him therein , both Parties were content to Dispute , as in a Molestation . The Defenders alleadged Absolvitur ; because the Town of Inverness was Infeft in their B●rgh and Burrow-lands , with common Pasturage in Montkapl●ch , and offered them to prove , the Moss contraverted , was a part of Montka●loch , and that they have been in constant Possession thereof accordingly . The Pursuer Replyed , the Defense ought to be Repelled ; because he offered him to prove , that he was Infeft in his Lands of Dunnean , with Parts and Pertinents ; and that the Moss contraverted , was proper Part and Pertinent of his said Lands , and that he was in use to debar the Defenders therefrom , and to get Moss Mail for tollerance , to cast therein , and produced the same , under the hand of nine of the Citizens , and one by their Clerk ; and therefore , being in libello , ought to be preferred in Probation . The Lords before answer , granted Commission to Examine Witnesses , hinc inde , upon the Possession of either Party : Which being Reported , the Defenders craved the same , with the Dispute , to be Advised . The Pursuers Procurators alleadged , there was yet no Litiscontesta●ion , and they were not Insisting , and the Defenders could not compell them to Insist , without a Process to Insist , with certification : in which case , they would get a day to Insist .

The Lord found , that the Probation being taken before Answer , was equivalent to Litiscontestation , as to the Points Proposed , and that they mi●ht proceed , both to Advise the Points of Probation , and Relevancy together , and might instantly Decern accordingly ; albeit it hindred not the Parties to Propone other Alleadgences , in jure , then it were in the Dispute , as in ordinary Litiscontestation : and therefore the Lords considered the Parties Infeftments , specially that of the Town of Inverness , bearing , with liberty to them to cast Fail and Divote , in the Month of Kaploch , and several other Months , according as they were accustomed of before . Which Clause the Lords found to be Qualified and Taxative , and not to give an absolute Right of Commonly , but only such as they had before , which behoved to be cleared by Posterior long Possession ; and found by the Depositions of the Witnesses , that that part of the Town of Inverness , on the North●side of the Water , only had been in Possession , by casting Peats in the Moss contraverted , and that the same is a part of Month Kaplock , and that the Pursuer had proven the Right of Property therein : And therefore ordained the Town of Inverness , on the other side of the Water , to desist from the Moss contraverted , and granted Commission to se●tle the Parties , anent their place , in casting in the Moss , or in case of variance , to Report .

Iean Dalmahoy contra Hamiltoun of Binnie . December 6. 1661.

JEan Dalmahoy Charges Alexandee Hamiltoun , of Binnie , for a Tack-Duty of 2000. merks , due to her for her Liferent-lands ; he Suspends on this Reason , that he has taken the benefit of the late Act of Parliament , between Debitor and Creditor and this Sum being above 2000. merks , stands thereby Suspended for six years . The Charger Answers , non relevat , because the Act extends not to Rents , or Tack-Duties of Lands , albeit exceeding 1000. Pounds ; but only to borrowed Sums , and other money bearing Annualrent ; which in Recompence of that forbearance , are accumulat with the Principal Sums .

The Lords found the Act not to extend to Rents , or Tack-duties , and therefore repelled the Reason .

Iames Hoom contra Abraham Hoom. Eodem die .

JAmes Hoom as Assigney to a Reversion , and order of Redemption used by the Earl of Hoom , against Abraham Hoom , pursues Declarator of Redemption , and Removing in the same Process . The Defender alleadged Absolvitor , because the Reversion expressed not Assigneys ; and therefore , the Defender cannot be oblieged to renounce to the Pursuer , an Assigney . Secondly , At the time of the Confignation , the Earl required the Wodsetter to Subscribe the Renounciation , to a blank Person , upon a back Bond , declaring the same to the Earls behove , which he was not oblieged to do by the Tenor of the Reversion . Thirdly , No Declarator , till the Earl produce the Sum at the Bar , seeing he lifted it himself .

The Lords found , that albeit the Reversion expressed not Assigneys ; yet seeing the Order of Redemption was used , by the Earl himself , the Assigney had sufficient Right , but Decerned the Defender to Renounce only in favour of the Earl and his Heirs , but not to Dispone to any other Person , as the Earl desired ; and Declared , there should be no Decreet extracted , till the Consigned Money were produced , and given up , neither did they decern in the removing , till the Parties were further heard thereupon .

Alexander Tailzifer contra Sornebeg . Eodem die .

ALexander Tailzifer , as Heir appearand to umquhil Tailzifer of Redheus , Pursues Mistresse Margaret Forrester , his Uncles Relict , and Iohn Schaw of Sornebeg , her Husband , for Exhibition , ad deliberandum , of all Writs granted , not only to the Defunct , but also granted by the Defunct , to his said Relict , or any other Person . The Defender alleadged , non relevat ; for Writs granted by the Defunct to the Defender , or other Persons ; because , albeit the Pursuer were entered Heir , he had no interest for Exhibition thereof , unlesse there were Clauses in his favour therein , & nemo tenetur edere instrumenta contra se ; and if this were sustained , it were the way to make patent , all the Charter Chists in Scotland , at the Instance of appearand Heirs , under pretence to Deliberat , but in effect to pick Quarrels , and find the weaknesse thereof . The Pursuer answered , maxime relevat ; for seeing the Law gives Heirs the benefit of Deliberation , they must have the necessary means thereof , by Inspection , not only of the benefite , but also of the burden of the Defunct , without which they cannot know , num sit damnosa haereditas : Especially in this case , against a Relict , who probably might have had Influence upon the Defunct Husband , to grant Right to her , that might Evacuat the Heritage : And in this case , the appearand Heir had a more large Interest to crave Exhibition , nor the Heir Entered , who could only crave Exhibition for Delivery , Transumpt , or Registration , and so behoved to Libel a peculiar Interest ; but the appearand Heirs Interest , is only ad deliberandum : And therefore , the Exhibition , as medium thereto , must reach to all , whereupon he ought to Deliberat . Especially the Defuncts Debt ; and albeit it be true , nemo tenetur edere instrumenta contra se , to found , or give Title to the Pursuers Action : Yet he having Title by the Law , to crave Inspection for Deliberation , hath good Interest : Yea , if he produce a Title in himself , he may even force the Defender to Exhibite Writes , ad probandum , by an incident , as well as third Parties , to whose Writ he hath no Right , save only to bear testimony for him .

The Lords having heard this Case in their Presence , because the Point had been variously Decided , as to Writs granted by Defuncts , found the Libel Relevant ; not only for all Writs , granted to the Defunct ; but also granted by the Defunct , to his Relict Bairns , or Servants , in his Family , at the time of his Death , being such Writs , upon which no Infeftment followed ; for as to these , they thought the Registers may give as much Evidence , as was sufficient to Deliberate , and would not upon this ground , open Charter Chists , for shewing real Rights , and the plurality carryed , that even Personal Rights , granted to strangers , should not be produced , hoc modo ; severals being of the opinion , that Debts , Discharges and Personal Rights , should be thus Exhibite . In respect that Heirs in Scotland were lyable simpliciter , for all the Defuncts Debts : And therefore , should have Inspection , as well of his Debts , as of his Estate , as was found before , between the Lairds of Swintoun and West-nisbit , observed by Dury , February 26. 1633.

Katharine Kinross contra Laird of Nunthil . December 10. 1661.

KAtharine Kinross , having Charged the Laird of Nunthil , for payment of a Bond , granted to her first Husband , and the longest liver of them two , and their Heirs ; which failzing , his Heirs ; he Suspends on this Reason , that she is but Liferenter , and the Defunct being Infeft in Fee , she would not Renounce , but the Heir :

Which the Lords Sustained , and found the Letters only orderly proceeded for the Annualrent .

The Earl of Roxburgh contra Mcdowal of Stodrick . December 11. 1661.

THE Deceased Earl of Roxburgh , having obtained Decreet of the Commission , for the valuation of Teinds , in Anno 1635. against Mcdowal of Stodrick ; this Earl having Right from the Deceast Earl , pursues Stodrick for payment of the valued Duty . The Defender alleadged , no Process , because he had intented Reduction of the said Decreet , and Improbation of a Procuratory mentionated therein , to have been produced by Mr. Robert Trotter , warranding him to consent for Stodrick , to that Valuation ; which is the only ground of the Decreet , without either Dispute or Probation . In which Reduction , Terms are taken to produce ; and being prejudicial to this Action , it must be first Discussed . The Pursuer answered , that there can be here no prejudiciallity , which is only betwixt two Principal Actions : but here , res est judicata , by a Decreet , & stat sententia , & dubius est eventus litis ; neither can Reduction , which is a petitory Judgement , sist the Pursuers Process , which is a possessory Judgement , upon pretence of prejudiciallity ; otherwise Possession might still be inverted upon such pretences ; Nor can the Earl be put from his Possession thereby : Especially for the years preceeding the intenting of the Reduction .

The Lords Repelled the Defense , as to the years , ante litem motam , by the Reduction , but Sustained it for the years since , in respect the Earls Possession was not clear , and that the Valuation was exorbitant , near as great as the Stock .

Hellen Hepburn contra Hamiltoun of Orbestoun . December 12. 1661.

HEllen Hepburn , as Executrix to her Father Humbie , Pursues Sir Iames Hamiltoun of Orbestoun , for payment of a 1000. merks , due to her Father by Bond. The Defender alleadged Absolvitor , because there being a Bond of 10000. pounds granted by Balhaven , Humby , Prestoun , and Orbestoun , for the use of the late Duke of Hamiltoun , but there being nothing to Instruct that it was the Dukes Debt : yet there was a Transaction with the Dutches of Hamiltoun , for a lesser Sum , whereof Balhaven , Prestoun and the Defender , had payed their part : by which Transaction , the Pursuers Tutrix and Overseer , did agree to quite this Bond , in respect that her Father was acquited of any share of the Bond , of 10000. pounds . The Pursuer answered : First , That the Defense ought to be Repelled ; because , being but a Verbal Agreement , before Writ was subscribed , either Party might Resile . Secondly , The Transaction cannot be Instructed , there being no Write , and Witnesses are no competent ; neither can the Tutrix Oath prove against the Pupil . The Defender answered , to the first , that the Transaction being pactum liberatorium , it required no Write , and so there was not locus penitentiae . And as to the Probation of the Transaction , though Tutors Oath of Knowledge , of any Debt of the Pupils Predecessors , will not prove against the Pupil , because the Tutor is singularis testis , and not in officio : But a Tutors Oath as to Deeds done by himself , in officio , would sufficiently prove the same .

The Lords thought there was not locus penitentiae , from the Tra●saction , though but Verbal : but as to the manner of Probation , they ordained the ●utrix , and overseers Oaths to be taken , ex officio .

Gordoun of Gight contra Abercrombie of Birkbog . Eodem die .

SIR Alexander Aberc●omb●e of Birkbeg , having obtained Decreet of of Ejection , against Sir George Gordoun of Gight , for Re-possessing him in certain Lands , and paying the double Rent for the violent Profits . Gight Pursues Reduction of the Decreet , on these Reasons● First , because there was no Law nor Practick , to make the violent Profits of Lands , without Burgh , to be the double of the Rent ; which is only competent by Custom , in prediis urbanis . Secondly , The Ejection was prescribed , not being intented within three years , conform to the Act of Parliament . Thirdly , Gights Defense of Entring , in vacuum possessionem , was only found probable , scripto vel juramento , whereas being facti , it was probable by Witnesses .

The Lords Repelled the First and Second Reasons , as Competent , and emitted in the Decreet , and as to the Third , The Decreet did bear the alleadgence in the Decreet , to be Gights entring into void possession , with consent of Partie , which consent not being qualified by any palpable fact was not Probable by Witnesses .

Iames Hamiltoun contra the Tenents of Overshe●ls . December 13. 1661.

JAmes Hamiltoun Merchant in Glasgow , having right to two apprysings of the Lands of Oversheils , Pursues the Tennents for Mails and Duties , and after Litiscontestation , Iohn Rollane Writer Compears for his interest , and produces an Apprysing , at his Instance ; with a Charge against the Superiors . It was alleadged he could not be admitted in this state of the Process . The Lords admitted him , in respect he craved no alteration to be in the Litiscontestation , but concurred therein , and craved Preference to what should be found due thereby : The said Iohn being admitted , alleadged , he ought to be Preferred , because he had charged the true immediate Superiour , whereas the other two Apprysers had taken Infeftment , as if the Lands had holden immediatly of the KING . It was answered for Iames Hamiltoun , that he ought to be preferred , because he was Infeft long before Iohn Rollane , and supposing his Infefment were not of the immediate Superiour , yet being in Possession , by vertue thereof , five or six Years , he hath the benefit of a Possessorie Judgement , and his Infeftment cannot be taken away without Reduction .

The Lords preferred Iohn Rollane , and granted not the benefit of a Possessorie Iudgement without seven years Possession .

Iohn Boyd contra Laird of Niddrie and Edmonstoun . Eodem die .

JOhn Boyd , as Assigny Constitute to a Bond of a thousand merks by Wolmet , charged Niddrie the Debitor , who Suspends on double Poynding : In which Compearance was made for Iohn Boyd , who having declared upon Oath , that the Assignation was to his behove , for the satisfaction of the Sum of fourteen hundred pounds , and that the remainder was to Wolmets own behove ; according to which he had granted back bond to Wolmet , and thereafter granted a second back bond to Major Bigger ; oblidging him to make the Sum forthcoming to Biggar , which was done before any Arrestment ; but depones , that he knows , at that time his first back bond was given , and that a Discharge of his first back bond produced , was by a mistake , keeped up by Major Biggar , and not delivered up to him till within this few days ; upon this Oath , the Laird of Edmonstoun , who had arrested all Sums due to Wolmet in Niddries the Suspenders hand , in Iune 1658. alleadged , That the ought to be preferred to Biggar , because it is clear , by the Oath , that the superplus of the Sum was to Wolmets behove , and he having arrested it before the discharge of Iohn Boyds first back bond was delivered to Iohn Boyd , or expresly delivered , to Iohn Boyd's behove , or otherwayes , that the first back bond were re-delivered , no deed that Iohn Boyd could do without Wolmets expresse consent , could prejudge Wolmets Creditors . It was alleadged for Biggar , that albeit the first back bond was not delivered back to Iohn Boyd before the Arrestment , nor the discharge delivered to him , yet Wolmet having subscribed the discharge , and delivered it , albeit it came not to Iohn Boyds hands , it was sufficient to take away the first black bond .

The Lords preferred the Arrester , and found the discharge could operat nothing , unlesse it were delivered to Iohn Boyd , or some Person to his behove , before the Arrestment , for they thought if discharges by Creditors put in a third Parties hands , not delivered to the Debitor , should be sufficient ; it would e●ervart all Arrestments , unless the deliverie were exprest to the Debitors behove .

Homes contra Iohn Bonnar . December 14. 1661.

MAry and Homes , as Donatar to the Escheat , and Liferent of Umquhile Iohn Home , pursued Iohn Bonnar , for Compt , Reckoning , and Payment of the Sum of 16000. merks due to the Rebel , for the price of a House . The Defender alleadged absolvitor , because he had bona fide made Compt , Reckoning and Payment to Mr. Alexander Home , Assigny Constitute by the Rebel , before any Citation , or Diligence done against him , to put him in mala fide , so to do , and produced the Assignies discharg , bearing , that the Defender had made Compt with the Assigny● and that there remains only the Sum of 1100. merks , which he acknowledgeds to have received , and therefore discharged him of the whole . The Pursuers alleadged the discharge , not bearing Payment of the whole Sum , but only of 1100. merks ; nor yet bearing● that the Instructions , were given up to the Assigny cannot exoner the Defender ; but he must yet Re-produce the Accompt , and Instructions thereof , likeas he has produced a great part thereof in this Process , because no discharge could be relevant , to liberat this Defender , but only payment made bona fide .

The Lords found the Discharge sufficient , to liberat the Defender ; mainly , because , albeit the Discharge mentions not the Instructions to be given up , yet the Defenders was not oblidged to preserve the same , or be at the hazard thereof . The Pursuer further offered them to prove , that the Defender had yet in his hand , the accompt and whole Instructions , and therefore ought to repreduce the same , that the Lords might consider , whether the Rebells Assignyes had allowed any thing to him , which ought not to be allowed , and did belong to the Donatar , which the Lords sustained .

Iames Dewar contra Countess of Murray . December 19. 1661.

JAmes Dewar , pursues the Countess of Murray , for Ejecting him out of certain Lands , whereof he had Tack , and Spuilzing from him certain Goods . The Defender alleadged absolvitor : because there was a Clause in the Pursuers Tack● providing that if two Years Dutie run together , the Tack should expire , and in that Case he Renunced the Tack , and thereafter the Pursuer having Compted with the Defenders Chamberlain , by Writ produced ; he acknowledged himself Debitor , in such Sums , and such Duties for bygone Years , with this Provision , that if he Failzied in payment thereof , my Lady should , ( at her own hand , ) intromet with the Corns , and others lybelled , which were disponed to her , for satisfaction of the Rent ; and likewise , it should be leisum , to my Lady to set the Lands to any other Tenent thereafter , at the Term of Mertimess , and to Dispose thereof , at her pleasure . The Pursuer answered , non relevat , unlesse by Authority of a Judge , the Failzie had been Declared . The Defender answered , maxime relevat , because Declarators are only necessar , in Reversions , Back-tacks , or Infeftments , being of great Importance ; but not in ordinar Tacks , betwixt Master and Tenent .

The Lords found the Defense relevant , founded upon the Accompt , and Bond ; in respect of the Tenor thereof as a foresaid ; but would not have so done upon the Clause of the Tack , unless it had born expresly a power to enter to the Possession at any time brevi manu .

The Pursuer further Replyed , That the Defense ought to be repelled ; because he offered to prove , before the Ejection , he had payed a great part , and offered the rest .

The Lords having considered the Instructions of Offence produced , found , that it was not Speciall , bearing any Sum of money produced , or offered , and that there was no Consignation following thereupon ; and therefore sustained the Defense , notwithstanding the Reply .

Earl of Rothes contra Countess of Buck●leuch . December 20. 1661

THE Earle of Rothes ; as Donatar to the Waird of the Countess of Buckcleugh , and the said Countess , for her self , pursued the Tutors of Buckcleugh , for Exibition of the Charter Chist , and heal Evidences , and Writs therein , that the Donatar may have Inspection thereof , to the effect he may know● what Lands are Waird . The Tutors Compeared , and disclaimed the Pursuit , at the Pupils Instance , and alleadged . First , No Process , till the Countess were called 2dly , The Lybel is not Relevant , to conclude Inspection of all Writs whereunto the Donator can pretend no interest 3dly . Non relevat for any Writs , because no body is oblidged edere Instrumenta contra se. 4thly , If there were any ground for this Pursuit , the Lands holden in Waird , behoved to be particularly Lybelled .

The Lords Repelled the first Defense , in respect the Countess was in processu , and found the second Defense to restrict the Inspection , only to the Countess and her Sister and Father , there Retours , and Warrants thereof , and no more , unlesse the Pursuer condescend particularly of other Waird Lands , and appointed one of their number to have Inspection of the Charter Chist , who should show the the Procutators of either Partie such of the Writs as they found were Waird .

Hew● Montgomerie contra Lord Kirkcudbright . Eodem die .

HEw Montgomerie of Grainshaw , and Meclellane his Spouse , pursues the Lady Kirkcudbright , for Ejecting them out of the five pound Land of Overlaw , and craved Re-possession , and payment of the Maills and Duties intrometted with . The Defender alleadged no Process , because it is not alleadged , that the Pursuers was in Natural Possession ; for only the Natural Possessors can have Decreet of Ejection , because , if there be no deed of violence Lybelled , but only Intrometting with the Maills and Duties , Ejection is not competent , nor any Violent Profits , but only Action for Maills and Duties , against the Tennents , or Intrometters . The Pursuers answered , That Ejection may be Competent , though the Pursuer was not in Natural Possession , when a Tennent is Ejected , and a Stranger , without Interest , enters in the Natural Possession ; albeit the Tennents should Collud , or neglect , the Heritor having but civil Possession , by uplifting of Maills and Duties , needs not warn the Ejecter ; but may crave to be Entered , to the Natural Possession , and the Violent Profits . The Defender alleadged , the Case is not here so , unlesse it were alleadged , the Tennents were cast out ; but the Defender may Defend the Right , to the Maills and Duties , upon a better Right then the Pursuer . The Pursuer answered , That he declared , he craved only Re-possession , to the ordinar Profits . The Lords Ordained the Parties to Dispute their Rights to the Maills and Duties , and Possession , as in a Double Poynding , and as if the Duties were yet in the Tennents hands . The Defender alleadged further , that she hath right to the Maills and Duties ; because she offered her to prove , that the Pursuers Father in Law granted a Back-band , oblidging himself , and his Heirs , to Re-dispone these Lands to Umquhile Robert Lord Kirkcud●right , from whom the saids Lands were Appryzed , to which Apprysing the Defender hath Right , and thereby has Right to the Back-bond , and that the Defenders Wife represents her Father as Heir , or at least as Lucrative Successor after the Back-bond ; and so as he might thereupon have debarred the grant of the Back-bond , so might the Pursuer , as Representing him . The Pursuer alleadged , 1. Non Relevat , because the said Back-bond is but a Personal Obligation , and the Defender had thereupon no Real Right , but only to the Superioritie ; because , by discharges of the Few-dutie produced , he acknowledged the Pursuer to be Proprietar . 2dly , If any such Back-bond was ( no way granting the same , ) he offered him to prove , that it was Conditional ; so soon as the said Umquhile Robert Lord Kirkcudbright should require : Ita est , he has never required . The Defender alleadged , he had done the equivalent , because in a Double Poynding formerly pursued be the Tennents , he had craved Preference , and the Pursuer alleadged , upon the Condition of Requisition in the Back-bond , and also that be the Back-bond , the granter , and his Wifes Liferent was preserved : whereupon the Defender was excluded .

The Lords ●●und the Alleadgeance of the said Double Poynding was not Equivalent to the Requisition ; and therfore found the Replyes Relevant , and Assigned a day , to the Defender , to produce the Back-bond , and to the Pursuer ●●●●prove the Qualitie● thereof , and so found the Reply not to acknow●●ge the Defense , but reserve it to either Partie to alleadge contra ●oducenda , and found the Personal Obligdement sufficient to d●bar the Pur●●●● albeit the Defender had no other Real Right , seeing thereby she was oblidged to grant a Real Right to the Defender .

Alexander Barns contra Applegirth . Ianuary 1. 1662.

ALexander Barns having ( Conform to the Act made by the Iudges , ) obtained Letters of Horning Summarily , at his Instance , as Heir to his Brother Iames B●rns , upon production of his Retour , and a Bond granted by Iohnstoun of Applegirth ; and thereupon , having Denunced him , and Apprized his Lands ; Applegirth Suspends , on this Reason , because the foresaid Act of the Iudges was now Void , and by the late Act of Parliament , confirming their Judicial Proceedings , liberty is granted to quarrel and reduce them upon Iniquity , and this was Iniquitie to charge him Summarily , contrair to Law . The Charger answered non Relevat , because he followed the Order in use at that time ; and the liberty of Quarrelling is , for Unjustice in the Matter , and not in the Order of Procedor ; for then all their Debates would be null , because they proceeded not upon Continuation , and Letters .

The Lords sustained the Charge , as a Libel , to the effect , the Suspender might have his Defenses , ( if he any had ) to be proven not i●stantlie , but upon Terms , but declared the Apprysing should stand valid , for whatsomever was found due , but prejudice to the Horning , as accords .

Sir Alexander Hoom of St. Bathanes contra Orr and Pringle . Ianuary 3. 1662.

SIr Alexander Hoom of Saint Bathanes , having pursued Improbation and Reduction , upon Inhibition against Iohn Orr , and Wate● Pringle , and insisted for all Writs of the Lands in Question , made to the Defenders Predecessors , and Authors of the Lands in Question , and the Defender having alleadged no Process , for Writs made to his Authors ; unlesse they were called ; and having condescended particularly on , the Authors to be called . The Pursuer offered him to prove , that these Authors were fully denuded , in favours of the Defender , and that the Writs were in the Defenders own hands . The Defender answered non Relevat , though they were in his hands ; because his Authors being lyable for warrandice , ought to be called , to defend there own Rights . The Pursuer answered , the Defender might intimate to them the Plea . The Defender answered , he was not oblidged to Intimate the Plea ; but the Pursuers to call the Authors , in this Case , the Summonds was sustained , for his Authors Writs , in Anno one thousand six hundred fiftie nine Years . And now the Pursuer insisting , for the Defender , taking a second time to produce . The Defender having a reviewe of the said Act , and Interlocutor .

The Lords reponed the Defender , and would not sustain the Pursuit , or Act , as to the Authors Rights uncalled .

Tippertie contra his Creditors . Eodem die .

Innes of Tippertie , being charged by several of his Creditors ; Suspends , and alleadged payment made by the Suspenders Son to them . The Chargers answered , non Relevat ; because they declare the Charge to be to that Sons behove , who payed them , so that they must alleadge , it was payed by his means . The Suspender Replyed , That seeing they declared it to be to his Sons behove , the payment was sufficient , because he offered him to prove , by a Transaction , the Son was oblidged to pay his Debts . The Charger answered ( denying any Transaction , ) if it were proven , the Suspender behoved to instruct his part of it performed .

The Lords found the Reasons and Reply relevant , reserving the said alleadgance against the Transaction , when produced .

James Seaton contra Anothonie Rosewall . Jannuary 4. 1662.

JAmes Seaton and others , pursue Anthonie Rosewall , to hear it found and declared , That two Apprysings , to which he had right , were fully Satisfied , by his , and his Authors Intromission , within the Legalls respective , in the Compt. The Defender alleadged , he was only comptable , according to his intromission , conform to the Act of Parliament one thousand six hundred twenty one , anent Apprysings , and not according to a Rental of the Lands ; as they payed , when he entred . The Pursuers answered that , that they could not charge him by his Yearly Intromissions , which they could not know , but he behoved to charge himself with the Rent of the Lands , as they payed at his entrie thereto , and if any Deductions , or Defalcations were in subsequent Years ; by necessary setting of the Lands , at a lower Rate , poverty of the Tennents , or waste , he behoved to condescend there upon , and their the Reasons , and Veri●ty thereof , for in Law , an Appryzing giving jus pignoris pratorij , the Appryser is comptable for his Diligence , having once entered in Possession , and thereby excluded the Debitor , and Con-creditors from the Possession . It were against Law and Conscience , to say , That if he should abstain , and suffer the Tennents to keep the Rent , or Depauperat , or the Lands to be waste , without any Diligence , that his Legall should thereby expire , and the Debitor and Creditor should be excluded ; as was found in the Case of the Earl of Nithisdale , and Countess of Buckcleugh , and was several times so found , be the Lords before . The Lords found the Defender comptable by a Rental , as the Lands payed the time of his Entry , but Prejudice of his just Defalcations , he clearing a reasonable Cause thereof , and proving the truth of the same ; for they thought , that albeit , Apprizers are only comptable for their Intromission , That is only for such parts of the Lands , as they intend only to possesse , and not for these they never possest ; yet in so far as they once entred to possesse , they must do Diligence . It was further alleadged , that no allowance ought to be given to the Defender , of a Composition he had given to the Superiour , in respect a prior Appryzer had given a Composition before , and so he was oblidged for none . The Defender answered , that both the Prior and Posterior Composition was within a Years Rent , which was due to the Superiour , which the Lords allowed , seeing it was not alleadged that the Composition of a Years Rent was discharged by the Superiour , but only according to the Custome of the Burgh , where the Lands lay , so much marked upon the Precept received in name of Composition .

Earl of Lauderdail , contra Tennents of Swintoun . Ianuary 7. 1662.

EArl of Lauderdail , as having Right to the Forefaulture of the Barony of Swintoun , pursues the Tennents for Maills and Duties , George Livingstou , one of them alleadges , that he must be assoilzied from one Years Dutie ; because he offers him to prove , That it is the Custom of the Barony of Swintoun , at least of a distinct Quarter thereof , That the Tennents do always , at their entry , pay half a years Rent , and are free of Rent at the Term they remove ; and so do all a long pay a Year , at the least half a Year before the hand , and subsumes , that he has payed accordingly to Swintoun himself , for a Terms Maill , due for the Crop which is after the pursuers Right . The Pursuer alleadged non Rel●●at , against him a singular Successor , or against the KING his Author ; because , that Partie that hath Right to the Land , hath Right to the Fruits , and so to the Rents , which is payable for the fruits , which were extent upon the Land , or growand after that Parties Right● and no payment before the hand , can liberat the Possessor , from the Pursuite of a Singular Successor ; Therefore it hath been frequently found , that payment before the hand is not Relevant against an Appryzer , yea even against an Arrester , so that the KING and his Donatar ( since their Right was established and known ) cannot be excluded , by payment before the hand , to a partie who had no Right to the Land , or to the Fruits , that Year , otherwayes both the KING , and Creditors might be defrauded , by Fore-maills , or by Tacks appointing the Fore-mail to be payed , the first Term , ( whatsoever length the Tack be , ) Secondly , Any such alleadgances were only probable scripto vel juramenio . The Defender answered , that the Case here is not like the Fore-maills instanced , because every Year is payed within it self , and so the first Year , the half at the beginning thereof , and the half at the middle thereof , and subsequent Years conform , which must be sufficient to the Tennent otherways Tennents paying at Whitsonday and Martinmess , should not be liberat , because the whole Year is not run out , or a Tennent paying his Ferms at Candlesmass should not be secure , against Singular Possessors for the profit of Grasse thereof , till Whitsonday .

The Lords found the Defense Relevant , and the Custome of the Barony to be proven by Witnesses , and likewise the payment of the Dutie in so far as in Victual ; and also for the money not exceeding an hundred pounds Termlie .

Iames Stewart , contra Feuars of Aberbadenoch . Ianuary 8. 1662.

JAmes Stewart , as being Heritably infeft in the Milne of Aberbadenoch , pursues the Feuars of the Barony , for abstract Multures of their Corns , growing within the Barony ; or which tholed Fire and Water within the same . The Defenders alleadged absolvitor ; because they are Infeft in their Lands , feu of the KING , long before the Pursuers Infeftment ; which Infeftment bears , cum Molendiuis & Multuris , in the tenendas . The Pursuer Replyed , that albeit that Clause were sufficient Liberation amongst Subjects , yet this is a Milne of the KINGS Propertie , whereunto Thirlage is sufficently Constitute , by long Possession , of coming to the Milne , and paying in Towns Multures , and Services ; ( as is Craig's opinion , ) and hath been so found by the Lords , February 5. one thousand six hundred thirty five , Dog contra Mushet . The Defender answered , That albeit Thirlage to the KINGS Milnes may be Constitute without Writ ; yet cannot take away an expresse Exemption granted by the KING .

The Lords Repelled the Defense , in respect of the Reply ; because they though● that this Clause being but in the tenendas , past of Course , and when Sig●a●●●● are past the KINGS hand , or Exchequar's , they bear only ten●ndas , &c. without expressing the Particular Clause , which is afterwards extended at the Seals .

The Defenders alleadged further absolvitor , from the Multure of the Teind , because that was not Thirled ; nor had the KING any Right thereto , when he granted the Infeftment of the Milne . The Pursuer Replyed , the Defense ought to be Repelled , in respect of the long Possession in Mol●ndo Regio , because the Defenders , and their Tennents past fourty years , payed Multures of all their Corns , promiscuously , without exception of Teind ; likeas there are several Decreets produced , for abstract Multures of all the Corns without exception . The Defender answered , That the Reply non Relevat ; for albeit long Possession may make a Thirlage of the KINGS own Baronie , yet that cannot be extended to other mens Rights , of their Lands and Teinds , which cannot be Thirled without their own Consent , or Decreets against themselves called , nor do the Decreets bear Teind per expressum .

The Lords found the Defeuse Relevant , notwithstanding of the Reply , except such Teinds that thole Fire and Water within the Barony ; and likewise s●stai●●ed the Defense for the Corns , e●ten by the Defenders upon the Ground , in the Labouring , &c.

Earl of Murray contra Laird of Grant . January 9. 1662.

THE Earl of Murray Pursues the Laird of Grant , to Re-dispone him certain Lands , which the Earls Father had Disponed to the Defender , and had taken his Back-bond , that if the Earls Friends should find it prejudicial to the Earl , then upon payment of 2800. merks , precisely at Whitsonday , he should Re-dispone , ita est : the Earls Friends by a Testificat produced , found the Bargain to his loss ; therefore he offered the sum to the Defender , in his own House , which he refused ; and now offers to Re-produce it , cum omni causa . The Defender alleadged Absolvitor . First , Because the Back-bond is pactum de retro vendendo : And so a Reversion , which is strictissimi juris , and not to be extended beyond the express Terms thereof ; which are , that if Iames Earl of Murray , should re-pay the Sum at Whitsonday , 1653. precisely , the Defender should Re-dispone : But there is no mention of the Earls● Heirs , and so cannot extend to this Earl , though he were Heir , as he was not served Heir the time of the offer . The Pursuer answered , that when Reversions are meaned to be Personal , and not to be extended to Heirs , they do bear , That if the Reverser in his own time , or at any time during his life , &c. or some such Expression ; but there is nothing such here ; and the Pursuer was Retoured Heir to his Father , who died shortly before the Term of Redemption ; and having used all Diligence , he cannot be excluded , by such an accident , which he could not help .

The Lords Repelled both the Defenses , albeit there was only an offer , without Consignation , seeing the Back-bond did not bear , Premonition , or Consignation , but only payment , which the Pursuer now offered .

Baird contra Baird . Eodem die .

BAird in Saint Andrews , having taken the Gift of his Brothers Escheat , upon his Adultery , Pursues Declarator thereupon . The Defender alleadged no Processes , till the Crime were Cognosced in the Criminal Court , or at least , he were declared Fugitive and Denunced , for then by the Horning , his Escheat would fall , but there is no Law , nor Statute , making the Penalty of Adultery , to be the Adulterers Escheat ; for Queen Maries Statute , anent Adultery , is only making nottour Adultery Capital ; but nothing as to other Adulteries . The Pursuer answered , that Custome had made the Penalty of Adultery , to be the single Escheat ; and for Probation of the Adultery , in this case , the Defender had publickly confessed it , and had stood in Sack-cloth for it a year , and had taken Remission from the King . The Defender answered , that Confession in the Kirk , was necessary to purge Scandel , when such Probation was Adduced , as Church-men allowed to infer Confession , which is but extra judicialis confessio , and cannot prove , ad ●viles aut criminales effectus , neither can the taking of the Kings Remission , instruct these Crimes ; seeing Remissions are frequently taken to prevent accusations or trouble .

The Lords found the Libel not Relevant , and that no Declarator could passe unless the Defender had compeared judicially in a Criminal Court , and there Confessed , or had been Condemned by Probation ; but that the Confession in the Church , or taking Remission , was no sufficient Probation .

Andrew Barclay contra Laird of Craigivar . Ianuary 10. 1662.

ANdrew Barclay Pursues the Lairds of Craigivar , as representing his Father upon all the passive Titles , to pay a Bond due by his Father , and insists against him , as behaving himself as Heir , by intromission with the Mails and Duties of the Lands of Craigivar and F●ntrie . The Defender alleadged Absolvitor , because if any Intromission he had ( not granting the same ) it was by vertue of a singular Title , viz. an Appryzing led against himself , upon a Bond due by his Father . The Pursuer answered , non relevat , unless the legal had been expired ; for if the appearand Heir In●romet within the Legall , during which , the right of Reversion is unextinct , immiscuit se haereditati : and it is gestio pro haerede .

The Lords found the Defense Relevant , albeit the Appryzing was not expired , unless the Pursuer alleadge , that the Defenders Intromission was more then satisfied the whole Appryzing .

Laird of Rentoun contra Mr. Mark Ker. Eodem die .

THe Laird of Rentoun having obtained Decreet against Mr. Mark Ker , for the Teinds of Ferniside , he Suspends on this Reason , that he ought to have retention of the Annuity of the Teind , which he had payed , and whereto he had Right . The Charger answered , that there was no Annuity due out of their Teinds , because he was Infeft , cum decimis inclusis , which are not lyable for Annuity . The Suspender Answered , that there was no exception in the Act of Parliament , 1623. of Teinds included .

The Lords Recommended the matter to be settled , this being a leading Case , in relation to the Annuity of Teinds included ; but they thought that Annuity was not due of Tei●ds included ; because such Lands never having had the Teinds drawn , there is nothing to Constitute Teind due for them , either by Law , Paction , or Possession ; and so where no Teind is , there can be no Annuity . And also , because the Ground granting Annuity to the King , was because the King having an Interest in the Teinds , after the Reformation and the Titulars pretending also Right , did surrender the same in the Kings favours , and submitted to Him , who Confirmed the Titulars questionable Rights , and gave the Heretors the benefite of drawing their own Teinds , upon a Valuation : and therefore the Annuity was appointed to be payed out of the Teinds to the King , but the surrender did not bear , Teinds included .

Lord Carnagie . contra Ianuary 11. 1662.

LAdy Anna Hamiltoun , eldest Daughter to the Deceast William D●ke of Hamiltoun , having obtained Charter of the Lands of innerw ●ik from the King , as becoming in his hand by Recognition , in so far as the Lands being holden Ward ; the late Earl of Dirletoun Disponed the same to Iames Cicil , second Son to his second Daughter , whereupon the said Lady Anna , and Lord Carnagie her Husband , for his Interest , Pursues Declarator of Recognition , against the said Iames Ci●il , and against Iames Maxwels Heirs of Line , and Heir-Male to hear and see them Secluded for ever , and that the Lands were fallen in to the Kings hands , and belonged to the Pursuer , as his Donatar by Recognition , through the Ward-vassals alienation thereof , without the consent of the King as Superiour . The Defender alleadged no Processes ; because all Parties having Interest , are not called , viz. Sir Robert Fle●cher , who stands publickly Infeft in the Lands Libelled .

The Lords Repelled the Alleadgence , as super juretertii , in respect it was not proponed by Sir Robert , a●d that his Right could not be prejudged by any Sentence , whereto he was not called .

Secondly , The Defenders alleadged no Process , because the Heirs of Line are not lawfully Called , in so far as three of them are Resident in the Abbey , and are Minors , and their Tutors and Curators are only called at the Mercat Cross of Edinburgh ; whereas they Reside within the Regality of Brughtoun , and their Curators should have been Cited at the Cross of the Canongate , as head Burgh of that Regality . The Pursu●rs answered , that the Defenders Reside in the Kings Palace , which is exempt from all Regalities , and must be a part of the Royalty , being the Kings own House , by his Royal Regative .

The Lords Repelled the Defense , in respect of the Reply , and found the Kings House to be Royalty , and so in the Shire , and not in the Regality .

Iohn Nicolson contra Feuars of Tillicutry . Ianuary 14. 1662.

JOhn Nicolson , as Baron of the Barony of Tillicutry , and Miln thereof , pursues the Feuars of Tillicutry , for a certain quantity of Serjant Corns , and for their abstracted Multures , for which he had obtained Decreet in his Barony-court , which was Suspended . The Defenders alleadged , that his Decreet is null , as being in vacant time . Secondly , As being by the Baron , who is not Competent to Decern in Multures , or Thirlage against his Vassals . Thirdly , The Decreet was without Probation : The Baron neither producing Title , nor proving long Possession : and as to the Serjant Corn , nothing could Constitute that Servitude but Writ . The Charger answered , that Barons needs no Dispensation , in Vacance , and that Baron Courts use to sit in all times , even of Vacance , by their Constant Priviledge : And that the Baron is Competent Judge to Multures , or any other Duty whereof he is in Possession . And as to the Serjant Corn , in satisfaction of his Decreet , he hath produced his Infeftment , as Baron of the Barony ; which gives him Right of Jurisdiction , and so to have Serjants , whose Fees may be Constitute , and liquidat by long Possession .

The Lords found the Reply Relevant , the Charger having 40. years possession as to the Multures , and the Pursuer declared he insisted not for the Kings Feu-duties in kind , but for the Teind , Seed , and Horse Corn.

The Defenders alleadged Absolvitor , for as much of the Corns as would pay the Feu-duties , Ministers Stipends , and all publick Burdens , because they behoved to sell Corns for satisfying of these , and in so far the Corns were not their own , and so they could pay for no more Corns then their own , neither could they be lyable for dry Multure , unless it were Constitute by Writ ; especially seeing the Charger Libels not upon the Defenders Infeftment , or Bonds of Thirlage , but upon his own Infeftment , only generally , as Infeft in the Miln of the Barony .

The Lords Repelled these Alleadgences , and Sustained the Decreet , for all the Corns except Seed , Horse-corn and Teind , which tholled not Fire and Water within the Thirle .

Nicol Harper contra Hoom of Plandergaist . Eodem die .

NIcol Harper pursues Collonel Iohn Hoom of Plandergaist , for payment of a Debt of umquhil Hoom of Plandergaist his Brother , and condescends , that the Defender hath behaved himself as Heir , at least Successor Lucrative to his Brother , in so far as his Brother Disponed the Lands of Plandergaist to William Hoom of Linthil , to the behove of the Defender , then his appearand Heir , whereupon the Defender is now in possession . The Defender al●eadged , non relevat , to infer this passive Title , unless the Disposition had been to the Defender himself , or that he had thereupon been Infeft , but a third Party being only in the real Right , and the Defunct denuded before his death , albeit there was a personal obliegment of Trust in Favours of the appearand Heir , if that cannot make him Lucrative Successour , but the Pursuer may reduce the same , if it was without Cause onerous .

The Lords found the Defence relevant , to Liberat the Defender from this passive Title , but would not put the Pursuer to Reduction , but admitted it by Reply , ad hunc effectum , that the Defender should be countable according to his Intromission ; and that the Pursuer as a lawful Creditor , should be preferred upon his legal Diligence , to the said Disposition .

But the question arising , whether the Disposition , if in trust , was Lucrative or not ? and what to be Lucrative imported , whether without any price , or within the half or third of the just price ?

The Lords before answer , ordained the Disposition to be produced , and such Admin●●les , for instructing of the ●nerous Cause , as the Defender would make use of , reserving to themselves , what the samine should work .

Robert Dickie contra Theoder Montgomery . Eodem die .

RObert Dickie , as Assigney Constitute by Robert Montgomery , to a Contract betwixt Theoder Montgomerie and the said Robert , Charges Theoder to pay 700. merks : He Suspends on this Reason , that the Debt was Discharged before the Assignation , or Intimation , conform to the Discharge produced . The Charger answered , that the Discharge is null , as wanting Witnesses . The Suspender replyed , he offered him to prove Holograph . The Charger answered , non relevat , against him , a singular Successor , especially the question being of the Date : For if Writs proven Holograph , could instruct their own Date , no Assigney , or any other person using legal Diligence by Arrestment , Appryzing , or otherwise could be secure : But that their Cedents , and Authors might evacuat the Right by Discharges , or Renunciatio● Holograph : And therefore seeing by express Act of Parliamen● , Writs wanting Witnesses are declared null: The Exception introduced by Custom of Holographon , ought not to be extended , especially in relation to the Debitor against singular Successors . The Suspender alleadged , the inconvenience was al● great on the other hand , it being ordinar for Masters to give their Tennents Holograph Discharges , and whatever favour necessar Assignations by legal Diligence might have , yet this is a voluntar Assignation●

The Lords repelled the Reason of Suspension and Reply , in respect of the answer and dupl● , and found the Holograph Discharge not to prove its own date , against the Assigney unless the Suspender could instruct it by other Adminicles .

George Grant contra Grant of Kirdels . Ianuary 15. 1662.

GEorge Grant pursues Reduction of a Renunciation of a Wodset , made by Grant of Morinsh to Grant of Kirdels , ex capite inhibitionis , because he had Inhibit Morinsh the Wodsetter , before he granted the Renunciation . The Defender alleadged , that he had a Reduction of the Bond , whereupon the Pursuers Inhibition was raised , depending , and declared he held the production satisfied , and repeated his Reason by way of Defense : that the Bond was null , wanting a Date , either of Day , Month , or Year . The Pursuer answered , that the Bond bare , the Term of payment to be Whitsunday 1635. and so instructs that the Bond was betwixt Whitsonday 1634. and Whitsonday 1635. The Defender answered non relevat , unless the Month and Day were also exprest , because otherwise the means of Improbation cease by proving alibi .

The Lords Repelled this Defense , seing the Year was exprest in re antiqua , but if Improbation had been insisted on less Reasons in the indirect manner would be sustained .

The Defender alleadged further Absolvitor , because this Bond , albeit it be assigned to George Grant the Pursuer ; yet it is offered to be proven , that the time of the Assignation , the said George was Pupil , within twelve years of age , in his Fathers Family : And so in Law it is presumed , that it was acquired by his Fathers Means , and is all one , as if his Father had taken Assignation in his own Name , and granted translation to his Son : And it is clear by the Testament produced , that grant of Ballandallochs Father was Tutor to the Wodsetter ; and during his Tutory , any Right taken by him , of sums due by the Pupil , are presumed to be satisfied by the Pupils Means , and to accresce to the Pupil , against whom , he nor his Assigney can have no Action , for any particular apart , but the whole must come in in the Tutors accounts : and offers to prove if need beis , that the Tutor , int●s hab●●t , being Debitor in greater sums to the Pupil then this . The Pursuer answered ; First , the Alleadgence is no way relevant , upon such presumptions , to take away the Right standing in the Defenders Person . Secondly , The Defense is not liquid , and so can make no compensation , albeit his Son were expresly Assigney , as he is not .

The Lords found the Defense Relevant , unless the Pursuer would condescend and instruct that the Assignation was granted to him otherwise then by his Fathers Means .

Thomas Fairholme contra Margaret Bisset . Ianuary 18. 1662.

THomas Fairholm as Executor Creditor , Confirmed to Andrew Reid , pursues Margaret Bisset his Relict , to deliver the Ware in his Chop , contained in the Pursuers Confirmation . The Defender alleadged Absolvitor , because she has Confirmed the Ware in the Shop , specially and particularly for the use of the hail Creditors ; and the Pursuers Confirmation is only general , not condescending upon the particular Ware : And though the Defenders Confirmation be posterior , yet it is special , and hath attained Possession before any Pursuit , at the Pursuers instance , upon his prior Confirmation ; and Confirmations do not establish Property , until Possession or Execution ; but is only as a legal Disposition incompleat , as Gifts of Escheat , where the first Sentence , or Possession , gives the first real Right of Property . The Pursuer answered , that his Confirmation is special enough , bearing the Ware of the Shop to be Silks , Stuffs , and others worth 4000. merks ; and the Confirmation alone Constitutes the Property unto the Executor , because he is Haeres mobili●m ; and the Property being before in hereditatae jacent● , ipso facto , by the Confirmation it is Established in the Executor . Secondly , by the constant practice of this Kingdom , there could no second principal Confirmation , but only ad o●issa , and she could never Confirm that which the first Executor had Confirmed . The Defender answered , that by Act of Sederunt , of the Judges in the Usurpers time , all Executors Confirming within six Moneths after the Defuncts Death , were ordained to come in together ; and therefore it was then the Custom , that all Confirmed principally the same things , seeing they could get no more then what was in their Confirmation : And the Defenders Confirmation being at that time , must be sustained . The Pursuer answered , that the Defender cannot have the benefit of that Act of Sederunt , because she Confirmed not within six Moneths after the Defuncts Death . The Defender answered , she Confirmed within six Moneths , or six or seven Dayes more , which is an inconsiderable difference .

The Lords preferred the first Executor to the Goods in the Shop .

Mr. Iohn Veach contra Byel of Bassinden . Eodem die .

MR. Iohn Veach , as Assigney by Iohn Edgar of Wedderlie , to a Reversion , pursues Declarator against Byel of Bassinden , the Wodsetter ; who alleadged Absolvitor , because the premonition is null , being by a Procurator , and not bearing , the Procuratory produced , neither the Pursuers Assignation to the Reversion . The Pursuer answered non relevat , unless it were alleadged , that they had been demanded at that time , and had not been shown . Secondly , If need beis he offers him to prove , by the Defenders oath , that the Procuratory was then shown . The Defender answered , the Procuratory is not yet produced , and the Pursuer was oblieged to have shown it then , albeit not called for .

The Lords sustained the Order , the Pursuer reproducing the Procuratory , and proving by the Defenders Oath that the Procuratory was then shown .

Alexander Colquhoun contra his Creditors . Eodem die .

ALexander Colquhoun in Glasgow , pursues Liberation , supercessione bonorum . The Defenders alleadged Absolvitor , because they offer them to prove , that the Pursuer did wittingly deceive them , in borrowing sums , and taking of Ware from them , after he knew that he was insolvendo , and Bankrupt . The Pursuer answered , nonrelevat , against Liberty , which is a favourable Cause , and can be stopped by nothing , but fraudulent Deeds , since the Incarceration , or offering of Aliment . The Defenders craved , that if the Lords inclined to grant Liberty , that the Pursuer might be decerned to sit upon the Dyver-stone ; and wear the habit . The Pursuer answered , that was long since out of Custome .

The Lords before answer , ordained the Pursuers oath to be taken , upon the Defense , whether he did contract these Debts after he knew himself insolvent and bankrupt , and they resolved if it was so found , they would not grant him Liberty without sitting upon the Dyver-stone , and wearing the Habite .

Laird of Polwart contra Hooms . Ianuary 21. 1662.

THe Laird of Polwart pursues a Declarator of Redemption against Hooms , who alleadge Absolvitor , because the Reversion was not fulfilled , which bore the sum of a 1000. merks , and a Tack for 19. years after the Redemption . The Pursuer answered , the Alleadgence ought to be Repelled , because the Lands Wodset is worth 400. merks by year ; and the Tack-duty is only four pounds , and so it is an Usurary Paction , whereby the Wodsetter will have much more then his principal sum , and his Annualrent , and so it is null , by the common Law , and by special Statute , Par. 1449. cap. 19. bearing , that when Wodsetters take Tacks for long time , after the Bond be out quite ; such Tacks shall not be keeped after Redemption , unless they be for the very Mail , or near thereby . The Defender answered ; First , That Statute is but an Exception from the Immediat preceeding Act of parliament , in favours of Tennents , that their Tacks shall not be broken by singular Successors , buying the Land : and therefore is only understood in that case , when the Wodset Lands are bought from him that hath right to the Reversion , by a singular Successor : but this Pursuer is Heir to the granter of the Wodset . 2ly , That Act is long since in desuetude . 3ly . Whatever the Act might operate amongst strangers , yet it is clear by the Contract of Wodset produced , that the Wodset was granted by the Laird of Polwart to his own Brother ; and so must be Repute to be his Portion Natural , and the eldest Brother might well grant a nineteen years Tack to his youngest Brother , albeit there had been no Wodset . Likeas , in the Wodset there is Reserved , the Liferent of a third Partie ; who lived thirty six Years thereafter , during which time the Wodset got no Rent .

The Lords found the Defense and Reply relevant , and Ordained no Declarator to be extracted , till the Tack were Produced , and given up to the Wodsetter .

Laird Balvaird , contra Creditors of Annandail . Eodem die .

THE Laird Balvaird , As Heir of Tailzie to David Viscount of Stormont , in the Lands of Skun , Pursues the Heirs of Line , of the said David and Mungo Viscount of Stormont , and several their Creditors , Lybelling , That by an Infeftment of Tailzie of the saids Lands , made by the said David Viscount of Stormont . It is expresly Declared and Provided , That none of the Heirs of Tailzie , shall do any Deed prejudicial , to the Tailzie ; or contract Debt , whereby the Tailzie may be altered , otherwayes the Debt so Contracted shall be null , and the Contracter shall ipso facto , lose his Right of Propertie , which shall belong to the nearest Person of the Tailzie , and subsumes that the late Earl of Annandail last Heir of Tailzie Contracted Debts ; which might effect the saids Tailzed Lands , and concludes ; that it ought to be Declared , that thereby he incurred the Clauses itritant in the Tailzie , and lost his Right of Propertie ; and that all the Bonds Contracted by him , and Appryzed upon , are null , quoad these Lands , and that the Pursuer as nearest Heir of Tailzie , may enter Heir in these Lands , to David and Mungo Viscounts of Stormont , and enjoy the same free of any Debt Contracted since the Tailzie . The Creditors alleadged no Process to Annul their Bonds , and Apprysing , hoc ordine ; by way of Declarator , but the Pursuer must via ordinaria Reduce ; in which Case , the Creditors will have Terms granted them to produce , the Writs called for to be reduced : which Priviledge , being in their favour ought not to be taken from them in this extraordinar unformal way . The Lords repelled the Defense , and sustained the Summons ; in respect there was no Bond craved to be produced , or simplie reduced ; but only that any Bonds granted to the Defenders since the Tailzie are null , and all following thereupon , as to the Lands in Tailzie , which is no more then that they affect not the Lands in the Tailzie , and there is no necessity of Reduction , but where the Writs must be Produced , before they can be Reduced ; and even in that case ; if the Pursuer satisfie the Production himself , the Defender hath no delay , and here the Pursuer produces all that is necessar , and craves the rest to be Declared null in consequence .

The Lords sustained the Summons .

Glendinning , contra Earl of Nithisdale , Ianuary 22. 1662.

GEorge Glendinning of Partoun , pursues the Earl of Nithisdale , for fulfilling of a Contract of Excambion betwixt the Earls Father , and the Pursuers Grand-father ; and insist against the Earl , as lawfully charged to enter Heir to his Father . The Earl alleadged absolvitor , because he offers him to Renunce to be Heir : The Pursuer replyed , the Defense ought to be repelled , quia res non est intigra ; because the Earl has done a Deed prejudicial to his Renunciation , viz. he granted a Bond for two thousand pounds sterling to the Earl of Dirltoun , only simulatlie to his own behove , whereupon his Fathers whole Estate was adjudged , and that Adjudication assigned to the Earl himself , and so he having intrometted be that Simulat Title , with the Maills and Duties of his Fathers Lands , he hath behaved himself as Heir , and cannot Renunce : The Defender duplyed that the Reply ought to be repelled ; because he offered not only to Renunce , but also to Purge that Deed of his , and the Adjudication of two thousand pounds sterling , and to declare that it should not prejudge the Pursuer , nor his Fathers lawful Creditors , and that he should be comptable for the Price of any Lands he had sold , or any Rents he had uplifted . The Pursuer triplyed , that the duply ought to be repelled ; because medio tempore , the Earl had bought in expired Apprisings , with the Profits of the Lands , The Defender quadruplyed , that he was content to restrict any such Rights , to the Sums he truly payed for them , and not to exclude the Pursuer by them . The Pursuer Answered , That he having once behaved himself as Heir , no Offer , nor Renunciation could be received . The Defender Answered , that his Intromission could not be gestio pro herede , because it was singulari titulo , and not as Heir , and in gestione there must appear animus adeundi aut immiscendi . The contrair whereof is here , for the granting of the Bond , and the taking right to the Adjudication thereupon , was of purpose , that his Intromission might not be as Heir , or as immixtion , which can never be without an illegal , and unwarrantable Deed ; but all that was here done was Legal , there being no Law , nor Custom to hinder the Earl , to grant a Bond , albeit gratis , and after Dirltoun had Adjudged the Lands , there was no Law to hinder the appearand Heir to take Assignation thereto , and bruik thereby , more then a Stranger ; and albeit there were Simulation , or Fraud , that might be a ground to Reduce upon , but not to infer a general passive Title , to make the Defender lyable to all his Fathers Debts , from which Passive Title , qui res colleratus titulus excus●● , and albeit this Passive Title be not any where else in the World , but in Scotland , yet it was never applyed to this Case now in question , but by the contrare , since the Act of Parliament one thousand six hundred twenty one , by which Heirs may be charged to enter Heirs to their Predecessors , not only for the Defuncts Debts , but their own ; any Bond granted by the Appearand Heir although gratis , would be valid , to Apprize , or Adjudge the Defuncts Estate , and therefore , there being many Cases , in which the Appearand Heir could not probably know whether the Heretage would be Hurtful , or Profitable . This hath been ofttimes advised , as the remeid , be Sir Thomas Hope , and many since ; That the Heir Appearand might grant a Bond , and thereupon the Lands being Adjudged , might take Right thereto . The Pursuer answered , the Defender had intrometted with the Rents of his Predicessors Land , which albeit not animo adeundi , yet animo Immiscendi & Lucrandi , which cannot be maintained by a simulat null Bond , by himself to his own behove , and Adjudication thereupon ; and if this were sustained , no Person would ever after enter Heir to his Predecessor , but take this indirect way , to the Defraud , and Vexation of Creditors ; and entring so to possesse , would buy in other Rights , and maintain his Possession ; as this Defender hath done , and would not be oblieged , or willing to restrict these Rights , as he doth .

The Lords , after long Consideration and debate in the matter , found the Earls offers relevant , but resolved to make and publish an Act of Sederunt , against any such courses in time coming , and declared , that it should be gestio pro haerede , to intromet upon such simulat Titles .

Adam Hepburn contra Hellen Hepburn . Eodem die .

ADam Hepburn , Brother to the Deceast Thomas Hepburn of Humbie Pursues Reduction , and Improbation against Hellen Hepburn his Brother Daughter , of a Disposition made by him to his Daughter on Death Bed .

The Lords granted a third Term for Production , in respect of the Improbation , albeit there was but a Writ or two called for Nominatim .

Laird of Rentoun . contra Mr. Mark Ker. Ianuary 24. 1662.

THE Laird of Rentoun having obtained Decreet before the Commissaries of Berwick , against Mr. Mark Ker , compearing for three Chalders of Victual of Teind , Mr. Mark Suspends , upon iniquity ; because he having proponed a Relevant Defense , that he ought to have allowance of the Annuitie which he had payed , which affected the Teinds . It was repelled . The Charger Answered , non relevat , by way of Suspension , without there were a Reduction . The Suspender Answered , the Reason was instantly verified , by inspection of the Decreet .

The Lords found the Reason not competent by Suspension without Reduction .

Mr. Iames Ramsay contra Earl of Wintoun . Eodem die .

Mr. Iames Ramsay , as having Right by translation from George Seaton , Assigny constitute by my Lady Semple , to a Bond due by the umquhile Earl of Wintoum , pursues this Earl for payment , who alleadged no Process , because the time of the Assignation taken by Sir George Seatoun , he was one of the Defenders Tutors , and so it is presumed , that the Assignation was purchased by the Pupils Means , and as the Tutor could have no Process thereupon against the Pupil , till he had made his Tutor accompts , so neither can his Assigney ; seeing in Person alibus , all exceptions competent against the Cedent are competent against the Assigney .

The Lords found the Defense relevant , unlesse the Pursuer would find Caution to pay what should be found due by Sir George , by the Tutors Accompts , as they had done before , betwixt Grant and Grant , January 15. 1662.

Laird of Lamingtoun contra Sir Iohn Chiesly . Ianuary 29. 1662.

THE Laird of Lamingtoun pursues Sir Iohn Chiesly , upon the late Act of Parliament 1661. betwixt Debitor and Creditor , to restrict a proper Wodset , granted by Lamingtoun to him , of the Lands of Symontoun , to his Annualrent . The Defender excepted upon a Back-bond granted by Lamingtoun , whereby he expresly renunced the benefit of the Usurpers Act , betwixt Debitor and Creditor , and all such Acts , made or to be made ; and oblidged himself , upon Honour and Conscience , not to prejudge Sir John of his bargain , to which no subsequent Law could derogat , unless it had been specially , notwithstanding any such Paction . Secondly , The foresaid Act has an express exception : That where such Acts , made and to be made are Renounced ; the benefit of that Act shall not be competent to such . The Pursuer Answerd to the first , That Pactions , or Renunciation of Parties cannot operat , against a posterior Law . Secondly . The persu●t here , is , for restricting of a Wodset to the true Annualrent ; for all that was done in the Usurpers Act , was to take Land in satisfaction , and to delay payment , but this Clause of the Act is nothing such , and so is Casus Incogitatus , which could not be held to be Renunced , unless it had been exprest , as to the exception in the Act it is not an Exception general to the whole Act , but to the Antecedent part of the Act ; and this Clause , anent Restricting of Wodsets , is posterior to the Exception , and not derogat thereby .

The Lords Repelled the Defense , in respect of the Reply , and found the Exception not to Derogat to the Posterior Clause concerning Wodsets .

Lord Burly contra Iohn Sime . Ianuary 30. 1662.

THE Lord Burly pursues Iohn Sime , for intruding himself in a Coal-heugh , wherein the Pursuers Author was infeft severally , and not in the Land , but only in the Coal , with power to set down Pits through all the bounds of the Land . The Defender alleadged absolvitor , because he stood Infeft in the Lands lybelled , with Parts and Pertinents , and be vertue thereof , was seven Years in Possession , which must Defend him in Possession , until his Right be reduced . The Pursuer answered , that the Defender could have no benefite of a possessory Judgement , not being expresly Infeft with the benefite of the Coal , in prejudice of the Pursuer , who was expresly Infeft , and Seased in the Coal , and in possession of the Coals past memory . The Defender answered , there was no necessity of an express Infeftment of the Coal , which is carried as part and pertinent , as Craig observes in dieg . de investituturis impropriis , , to have been decided betwixt the Sheriff of Air and Chalmers of Garthgirth , and so being Infeft , and in possession seven years , he has the benefite of a possessory Judgement .

The Lords found the Defense Relevant , but Repelled the same , in respect of Interruption within seven years , which was proponed .

Halbert Irwing contra Mckartney . Eodem die .

HAlbert Irwing pursues Mckartney for Spuilzie of ten Oxen. The Defender alleadged Absolvitor , because he Intrometted with the Oxen by Warrant from Mr. Robert Ferguson , to whom the Pursuer had given a Disposition of all his moveable Goods , for relief of a Cautionry , for which Mr. Robert first , and now this Defender is Distrest . Secondly , He offers him to prove voluntar Delivery of the Oxen , by the Pursuer to him for the cause foresaid . But because the Pursuer hath summoned several other persons as Complices , which are necessary Witnesses , of purpose , that he might exclude them from being Witnesses , he desires they may be admitted Witnesses , or otherwise Discust . First , that if they be Assoilzied , they may be Witnesses . The Pursuer answered to the first , non relevat , a Disposition unless there had been Delivery ; and albeit there had been an Instrument of Delivery , yet it being dispositio omnium bonorum , two years before the medling , could be no Warrant for summar medling , without Sentence of a Judge , and gave only jus ad rem . But specially the medling with the Plough Goods in time of Labourage , when the Pursuer put other Goods before the Defender .

The Lords found the first Defense Relevant , founded upon the general Disposition and Instrument of Possession ; and that the Disposition alone , though without any possession , had been sufficient against the Disponer ad vitandum spolium , unless the Defender had Intrometted by violence , being resisted by force .

But they proceeded not to the second Defense , which doubtless was Relevant , and the desire reasonable of Discussing the remnant Defenders ; First , that they might be Witnesses if Assoilzied : Yea , it seems they could not be hindred to be Witnesses , used for the Defender , though they might be suspect Witnesses against him , as being Interest , to put the Spuilzie upon him for their own relief .

Sir Iames Cunninghame contra Thomas Dalmahoy . February 1. 1662.

SIr Iames Cunninghame pursues Thomas Dalmahoy , and the Tennents of Pollomount , to make payment to him of the Mails and Duties of the Lands of Pollomount , resting at the Death of the late Dutches of Hamiltoun , because she had granted Bond of 500. pound Sterling to the Pursuer , to be payed after her Death ; and for security thereof , had assigned the Mails and Duties of her Liferent Lands of Pollomount , which should happen to be due at the time of her Death . It was alleadged for Thomas Dalmahoy her second Husband , Absolvitor , because these Mails and Duties belonged to him jure mariti , neither can he be lyable for this Debt jure mariti , because it was not Established against him during the Ladies Life ; neither could be , because the term of payment was after her Death . The Pursuer answered , that he did not insist against Thomas Dalmahoy as Husband , but as Intrometter with the Rents of Pollomount , due at the Dutches Death , wherewith he hath medled since : which could not belong to him , jure mariti , being assigned before the Marriage ; and if they could belong to him jure mariti , yet it must be with the burding of this Debt .

The Lords Repelled the Defense , in respect of the Reply , for they thought a Husband , albeit he was not lyable simply for his Wifes Debt , post solutum matrimonij ; yet that he should have no more of the Wifes Means , jure mariti , but what was free of Debt , and so behoved to pay her Debt , so far as he enjoyed of her Means ,

Belshes contra Belshes . Eodem die .

IN an Account and Reckoning betwixt Belshes and Belshes , concerning Executry ; The Lords found that the prices , given up by the Defunct in his Testament , of his own Goods , should stand , and the Executor be accountable accordingly● seing there was no enorm prejudice alleadged , as if the Defunct had prized the Goods , within a half or third of the true avail , to the advantage of the Executor , and prejudice of the Wife , Bairns , or Creditors .

The Lords did also allow Aliment to the Wife , out of her Husbands Moveables to the next Term , albeit she Liferented an Annualrent , payable at the next Term.

Lord Melvil contra Laird of Fairin . February 4. 1662.

THe Lord Melvil pursues the Laird of Fairin , for Warrandice of a Disposition of certain Lands aud Teinds , sold to my Lord by him , with absolute Warrandice , and condescends that the Teinds were affected with 13. Bolls by a Locality to the Minister in Anno 1641. The Defender alleadged Absolvitor , because this Distress was known , or might have been known to the Pursuer the time of the Bargain , at least to his Tutors who made the Bargain . Secondly , there is no legal Distress but voluntar payment made all the years bygone .

The Lords Repelled the Defense , and found , that seeing the Distress by the Stipend was unquestionable ; payment made thereof without Processes , prejudged not , and that the Pursuers knowledge could work nothing , being then a Pupil .

Laird of Elphingstoun contra Sir Mungo Murray . Eodem die .

THe Laird of Elphingstoun having Charged Sir Mungo Murray , for the price of some Lands , bought from him , he Suspends , and alleadges , that by the Disposition the Charger is oblieged to relieve him , of all Inhibitions ; and now produces several Inhibitions . The Charger answered non relevat , unless there were a Distress , seeing the Disposition bears not to purge but only to relieve , or to warrant against Inhibitions .

The Lords considering that the Chaeger vergebat ad inopiam , found the Reasons Relevoan , till Cauton were found to warrant the Suspender from these Inhibitions . They found also , that where the Charger was oblieged to pay to the Suspender , the Composition for his Entry to the Lands . That the Suspender should have no Composition if he got it Gratis ; albeit he alleadged he got it for other good Services .

Skeen contra Lumsdean . Eodem die .

ANdrew Skeen having Charged Alexander Lumsdean for payment of a sum , for which he was Cautioner for his Brother Mr. Thomas Lumsdean ; he Suspends upon this Reason , that the cause of the Bond was two Bills of Exchange● which was Protested . The Suspender answered , he offered him to prove they were payed , after the Protest , by him who drew the Bills , or by Mr. Thomas Lumsdean , in whose Favour the Bills were drawn . The Suspender replyed , that the Alleadgence ought to be Repelled , because he was assigned to the protested Bills , for relief of this Cautionry , and intimat his Assignation to Skeen , who delivered the Bills , and got the Bond Charged on . The Charger offered him to prove payment● before that Assignation , or Intimation , and ad modum probationis , produced an Instrument under the Seal of Camphire , and a Declaration of the Conservator there , bearing , that upon inspection of Mr. Thomas Lumsdeans Compt Books ; they found that he had acknowledged two or three sums payed , in part of these Bills , and exprest the Dates thereof , prior to the Assignation . The Suspender alleadged the Compt Books could not prove , unless they were produced , Cognosced and Proven to be Lumsdeans Compt Books . Secondly , they could not prove contra tertium , Thirdly , the Question being de data , and they holograph , they could not prove their Date . Fourthly , these Testificats can prove nothing , unless they had been taken upon Processes , or by Commission .

The Lords found the Testificats could not prove , but that the Compt Book being Cognosced , might prove against the Assigney , being Brother to Lumsdean , and the Books out of his hand , since he was broken , for amongst Merchants Compt Books or Writs without Witnesses , by their Custom , are sufficient , and ordained Lumsdean and his Brother to Depone , upon the having of the Books , to produce them if they had them , and if not , granted Commission to the Magistrats of Camphire , and Conservator , to Cognosce the Books , and to report what they find of this matter in them .

Marjory Gray contra Dalgardno . February 7. 1662.

MAjory Gray pursues Dalgardno , as vitious Intromettor with the Goods of a Defunct , to pay his Debt , who alleadged Absolvitor , because the Defunct Died Rebel , and at the Horn , and so nihil fuit in bonis defuncti , seing by the Rebellion , all his Moveables belonged to the Fisk , ipso jure , without necessity of tradition , for the King jure coronae , hath the right of Lands without Infeftment , and the right of Moveables forefaulted , or fallen in Escheat , without Tradition or Possession . The Pursuer answered , non relevat , because the Defender Intrometting without any warrand from the Fisk , is quassi prodo , and Moveables are not ipso facto , in the Property of the Fisk , by the Rebellion : But if they be Disponed by the Rebel for an onerous Cause ; the Disposition before Rebellion will be valid , or if they be arrested for the Defuncts Debts , and recovered by Sentence , making forth-coming ; or if a Creditor Confirm himself Executor Creditor to the Defunct Rebel , he will be preferred to the Fisk ; by all which it appears , that the Rebellion transmits not the Property . The Defender answered , that these Instances do only show that the King prefereth Creditors , and takes but the benefit of what the Rebel had deductis debitis , or what was Contracted with him bona fide , but doth not say , that the Property of the Goods were not in the Fisk , but in the Rebel .

The Lords repelled the Defense . The Defender further alleadged , that not only was the Defunct Rebel , but that he had a Gift of his Escheat . The Pursuer answered non relevat , unless it had been before the vitious intromission , or at least ante motam litem .

The Lords Repelled the Defense , unless the Defender would alleadge that the Gift was ante motam litem ; for they thought that the Taking of the Gift was like the Confirmation of an Executor , which purged vitious Intromission , being ante motam litem .

Iohn Bonnar contra Robert Foulis . Eodem die .

JOhn Bonnar pursues Robert Foulis , to pay the Debt of a Person Incarcerat by Act of Warding , whom the Bailzie set at Liberty without Warrant . The Defender alleadged no Processes , because the Person Incarcerat was not Called , who might have proponed Exceptions against the Debt , that it was payed , &c. Secondly , that thereafter the Pursuer had taken himself to the Incarcerat Person , and gotten part of payment from him .

The Lords Repelled the Defenses and decerned : but because there was a Reduction depending of the Decreet , whereupon the Person was Incarcerat , and that he was set at Liberty in Anno 1659. when there was no Iudicatory sitting , they superceeded Extracting for the time , till the Reduction was Discust .

Countess of Buckcleugh . contra Earl of Tarras . Eodem die .

THe Countess of Buckcleugh pursuing Reduction of a Contract of Marriage● betwixt her Sister and the Earl of Tarras .

The Lords would not Sustain incident for the Earl of Tarras , albeit he was minor , that Contract being his own Writ , and not his Predecessors .

Lockerbie contra Applegirth . Eodem die .

JOhnstoun of Lockerbie , having obtained Decreet against Ierdine of Applegirth , for a Sum payed by the Pursuers author , as Cautioner for the Defenders Father .

The Lords found Annualrent due by the Principal to the Cautioner , by an Act of Sederunt 1613. and that from the year 1619. until now in respect the Cautioner had payed upon distress , by Decreet of Transferrence , and a Charge of Horning thereon .

Acheson contra Mcclean . Eodem die .

DAm Iean Acheson pursues the Laird of Mcclean , as representing their Predecessors , who was Cautioner in a Suspension . The Defender alleadged nothing produced to prove the Suspension Discussed , but Letters of Horning upon a Protestation , which cannot instruct the Protestation .

The Lords Repelled the Defense , in respect of the absence of the Register , and the oldness of the Horning .

Achinbeck contra Mccleud . Eodem die .

IN an Improbation at the Instance of the Laird of Achinbeck , against Mccleud .

The Lords found that the Improbation behoved to be continued , albeit the samine had an ordinar priviledge to pass upon six dayes , for the first Summonds , past of course periculo penitentis .

Acheson contra Earl of Errol . Eodem die .

ACheson pursues the Earl of Errol , as presenting his Father , to pay a Debt wherein his Father was Cautioner for the Earl of Mar ; and for instructing thereof , produced the Extract of a Bond , Registrate by consent in the Books of Session . The Defender alleadged no Processe against him ; because the Bond was not Registrat by any Procurator for his Father , because he was Dead before the Registration , and so cannot prove against him , neither being a principal Writ Subscribed by his hand , nor being a Decreet of Registration , by consent of his Procurator , nor upon Citation . The Pursuer alleadged that it was an authentick Evident , and bare expresly Sic subscribitur Errol : and seing by Law and Custom , the Pursuer was necessitat to leave the Principal at the Register , when the Registrat the same , and that the Registers are now lost without his fault .

The Lords refused to sustain the Extract against the Earl of Errol , but yet would not put the Party to an Action of proving the Tenor , but would receive Admini●les to instruct that Earl was Cautioner ; and therefore ex officio , ordained the other Subscribers of the Bond , or any other person that could be adduced , for instructing the Truth to be required ex officio .

Thomas Crawford contra Earl of Murray . February 8. 1662.

THomas Crawford as Executor Creditor , Confirmed to Umquhil Robert Ing●is ; as Assigney by his Relict , for satisfaction of her Contract of Marriage , pursues the Earl of Murray for payment of the Sums Confirmed , addebted by him to the said umquhil Robert . The Defender alleadged compensation ; because he had Assignation to a Debt due by the said umquhil Robert , which as it would have been relevant against Robert himself ; so must it be against his Executor . The Pursuer replyed : First , non relevat , unless the Assignation had been Intimat before the Confirmation : but an Executor Creditor having done Diligence by Confirmation ; it is not in the power of any of the Defuncts Debitors , by taking Assignation from any of his Creditors , to prefer that Creditor to any other Creditor , which is no ways legittimus modus preferendi : But the Creditors must be preferred , only according to their Diligence . Secondly , This Pursuit being for Implement of the Relicts Contract of Marriage , and pursued to their behove , hath by our Law and Custome preference to all other personal Creditors , though having done more Diligence .

The Lords found either of these two Replys Relevant to elide the Defense , albeit the Assignation was before any Pursuit , moved upon the Pursuers Confirmation .

Lord Torphichan contra Eodem die .

THe Lord Torphichan and certain of his Feuars , pursue a Reduction of a Decreet of the Sheriff , whereby he set down Marches betwixt their Lands and others , upon this Ground , that he did not proceed by an Inquest conform to the Act of Parliament , but by Witnesses . Secondly , That he as Superiour was not Called . Thirdly , That the Sheriff had unwarrantably Sustained the setting down of Marches foamerly by Arbiters , to be proven by Witnesses . The Defenders answered , the first Reason was not objected , and the Defenders Compearance it was competent and omitted : To the second , the Superour could have no Detriment . To the third , that the setting down of March-stones , being a palpable Fact , might be proven by Witnesses , whether done by the Parties themselves , or by Friends chosen in their presence , their being neither Decreet-arbitral , nor Submission in Writ .

The Lords Repelled the Reasons in respect of the Answer , and declared , that if the Land fell in the Superiours hands , by Recognition , Non-entry , or otherwise , The Decreet should not prejudge him if he were not Called .

Ramsay of Torbanie contra Mcclellane . February 11. 1662.

DAvid Ramsay of Torbanie having raised Suspension , and Reduction of a Decreet against him , at the I●stan●e of Thomas Mcclellane , in Anno 1658. Insists upon this Reason , that he being pursued as Heir to his Father , at the Instance of Thomas Mcclellane , he proponed this Relevant Defense , absolvitor , because the Bond pursued upon , was granted by his Father after he was Interdicted , without consent of the Interdictors , and so could not affect the Person Interdicted Heir , albeit he had succeeded in his Estate . The Defender answered , that the said alleadgence was justly Repelled , in respect of this relevant Reply , that the Interdiction hath no effect as to Moveables , and Personal Execution ; neither as to any other Lands , then such as lay in the Shires or Jurisdictions where the Interdiction was puplished and Registrat , conform to the Act of Parliament , ita est : this Interdiction was published and Registrate only at Linlithgow ; and therefore if the Defender hath succeeded to any Lands , not lying in Linlithgow Shire , or if he hath medled with Heirship , Moveable , or be vitious Intromettor with his Fathers Moveables ; he is lyable for this Sum , albeit after the Interdiction , ita est , he succeeded to Lands in the Stewartry of Kirkcudburgh , and Moveables , &c. and therefore the Defense was justly Repelled .

The Lords found the Decreet just , and therefore Repelled the Reasons of Suspension and Reduction .

Bells contra Wilkie . February 12. 1662.

GRissel and Bells raise a Reduction against Iames Wilkie , of a Decreet obtained at his Instance against them , in Anno 1659. whereby the said Iames Wilkie being Executor , Confirmed to his Mother , who was one of the Sisters , and Executors of umquhil Patrick Bell their Brother , in which Confirmation the said Iames gave up the third of the said Patricks Goods , and thereupon obtained Decreet against these Pursuers , as the two surviving Executors , to pay to the said Iames , his Mothers third Part of her Brothers Means . The Reason of Reduction was , that the Decreet was unjust , and contrair to the Law and Custom of this Kingdom , whereby there is no right of Representation in Moveables , as in Heretage , neither doth the Confirmation of the Executors , establish in the Executors , a compleat Right , untill the Testament be execute , either by obtaining payment , or Decreet ; and if the Executor die before Execution , the Right ceases , and is not Transmitted to the Executors Executor , but remains in bonis defuncti of the first Defunct , and therefore Executors ad non Executa must be confirmed , to the first Defunct , which being a constant and unquestionable custome , one of the three Executors deceasing before Executing the Testament , her Right fully ceases ; and both the Office of Executrie , and Benefit , accres●es to the surviving Sisters ; as if the deceased Sister had never been Confirmed Executrix . The Defender in the Reduction , Answered , That this Reason was most justly Repelled , because , albeit it be true , that the naked Office of Executry , doth not compleat the Right in the Executors Person , and doth not transmit , yet it is as true , that by the Law of God , and of this Land ( which is cleared by the express Statute , Parliament 1617. anent Executors ) Children surviving their Parents , had always a distinct Right , from the Office of Executry , of their bairns part of gear , which belonged to them , without any Confirmation , and could not be prejudged by the Defunct , and was sufficiently established in their Person jure legittime , if they survive their Defunct Parent , especially if they owned the same by any Legal D●ligence ; Therefore , after which , if a Child die , the Child of that Bairn will come in with the Survivers ; and yet there is no Right of Representation , because Iure legittime ; it was established in the Bairns Person , by surviving , and owning the same ; as well as the Goods , are e●●ablished in the Person of a Stranger Executor , by executing the Testament : and by the said Act of Parliament , that benefit is extended , not only as to the Bairns Part , but to the Bairns ; in relation to Deads Part , whereinto they succeed , as nearest of Kine , and therefore they have right to the Moveables , not by vertue of the Conformation , or Office of Executry , which before that Act carried the whole benefit ; as is clear , by the Act , but by a several Right , jure agnationis , as nearest of Kine ; and therefore , though the nearest of Kine be not Confirmed Executor , but others be Nominat , or Datives Confirmed , the Executors are comptable to the nearest of Kine , who may pursue them therefor● , and therefore , if the nearest of Kine do any Legal Diligence , either by Confirmation , or Process , yea , though they did none , but only survive , the Right of nearest of Kine ipso facto , establishes the Goods in their Person , and so transmits ; and whereas it was alleadged , that the contrare was found by the Lords , in Anno one thousand six hundred thirty six , observed by Durie : it is also marked by him , that it being so found by Interlocutor , it was stopped to be heard again , and never discused ; neither can it be shown by Custome , or Decision , that the Executors of Children , or nearest of Kine were excluded , from recovering the part of their Parent , which survived , and owned the benefit of the Succession .

The Lords assoilzie from the Reduction , and adhered to the former Decreet .

Kirktouns contra Laird of Hunthil . Eodem die :

ISobel and Kirktouns pursues the Laird of Hunthill , their Tutor , for a Tutor Compt , and payment of all that belonged to their Father , who alleadged absolvitor ; because nothing alleadged , nor produced , to instruct his acceptance of the Office of Tutory . The Pursuers opponned their Fathers Testament Confirmed , bearing the same to have been Confirmed by the Defender , and other three Tutors , and that the Tutors gave their Oaths de fideli administratione , in the Office of Tutrie . The Defender answered , non relevat , to instruct , that the Tutors made faith , because this Confirmation is but the Assertion of a Nottour , the Commissary Clerk , without a warrant in writ , subscribed by the Tutors , and can prove in nothing , but what is ordinary the Style of the Court , in Judicial Process , but the Acceptance , and making Faith of Tutors , is altogether Extranious , and is neither necessar , nor ordinar to be done by the Commissars . The Lords sustained the Reply , especially , in respect , that the Commissarie Clerk , was this Defenders Uncle , and there was no ground of Suspition , that he would adject that point without warrant , otherways this were a dangerous preparative . Secondly , The Defender further alleadged absolvitor , from a Sum contained in the said Testament as due to him , because there was nothing to instruct it , but the Defuncts Assertion in his Testament , giving up his Debts . The Pursuer answered , that the Defender hath Homologat , by Confirming the Testament , bearing the same , and not protesting against it , which is an acknowledgment thereof . The Defender answered , that there being four Tutors it could not be constant , that they were all present , at the Act of Confirmation , and saw and knew the Inventar ; but as it is ordinar in such Cases , they might have come at several times , and made Faith . The Pursuer answered , that some of the four Tutors behoved to do it , and these were thereby bound to have done Diligence for it , and consequently , all the Tuttors being lyable in solidum ; this Tutor is lyable therefore .

The Lords found the Reply and Triply relevant , that the Testament so confirmed instructed the Debt .

Robert Lockheart contra William Kennedy February 13. 1662.

RObert Lockheart , pursues a Declarator of the Redemption of some Lands , against William Kennedy of Achtefardel , who alleadged absolivtor ; because , before the order was used . The Reversion was discharged , and the Discharge Registrat . The Pursuer Replyed , ought to be repelled , because the Granter of the Discharge was Interdicted , before the granting thereof , and the same not granted with the Interdicters consent . The Defender answered , non competit by way of Reply , but only by way of Action of Reduction , as is Ordinar , in the Case of Inhibition and Interdiction .

The Lords sustained the Reply , in respect that it was not proponed , by defense to delay the Pursuite , but by Reply , which did only delay the Pursuer himself , and also , that they thought it hard , to cause the Pursuer quite his Possession , and then go to a Reduction .

Antonia Birnie contra Liferenters of Rossie : Eodem die .

ANtonia Birnie , as Heir appearant , and having Right to the Fee of the Estate of Rossie , and Fordel , pursues her Mother and Grand-father , Liferenters thereof , for a modification of Aliment . The Grand-father made no opposition● It was alleadged , for the Mother , that the whole Inheretance was not Liferented . The Pursuer Answered , that what was not Liferented , was affected with Apprizings for the Defuncts Debts , led after his Death . The Defender answered , non relevat , unless the Appryzings had been before the Defuncts Death , but being against the Appearand Heir her self , she ought to sell Land , and pay the Debt and live upon the remainder . The Pursuer offered her to prove the Appryzings and Debts equivalent to the Value of all the Land● not Liferented .

Which the Lords found Relevant .

Iames Maxwell contra Adam Maxwell . Eodem die .

JAmes Maxwell , pursues Adam Maxwell , for declaring a Disposition of Lands , granted by the said Iames his Wife to the said Adam , to have been in trust to her behove , and after her decease , to her Husband , and for adminicle lybelled a Bond granted by the said Adam , some Moneths after the Disposition , whereby he oblidged himself to grant a Back-bond to the Lady , by the advice of Lawyers , conform to the Disposition made to him , and oblidged him to deliver the said Back-bond to the Lady , or to the Ladyes Husband after her Death , whereupon it was alleadged , that the Back-bond being to be made by the Advice of both their Lawyers , the Disposition behoved to be in trust . The Defender opponned the Tickit , bearing the Back-bond , to be conform to the Disposition , in which there was an expresse Reservation of the Ladyes Liferent ; so that the Back-bond could import no more , then securing of that Liferent . The Pursuer answered , these words , conform to the Disposition , were set upon the Margin of the Tickit , which was all written by the Defenders hand , and might have been added , ex post facto , 2. The Tickit behoved to import more then the Liferent , because the Liferent was fullie and clearly reserved , and oftimes repeated in the Disposition , so that Clause had been frustrat . Thirdly , The oblidgment to deliver the Back-bond to the Ladies Husband after her Death , could not be understood , to be only in relation to her Liferent , which and the Husbands interest should cease by her Death .

The Lords found the Tickit sufficient to instruct Trust , but because the Terms of the Trust were not clear . They before answer , in Relation to the Probation of the Terms thereof , Ordain the Parties to Compt and Reckon upon all Sums , due by the Lady to the Defender , in contemplation of the Trust , that the same might be allowed and satisfied to the Defender , before he be denuded .

Iames Slumond contra Wood of Grange Eodem die .

JAmes Slumond , having charged Iames Wood of Grange , to pay a Sum wherein he was Cautioner for the Laird of Balcaskie , to Williiam Smith merchant in Edinburgh , who constitute Richard Potter Assigny , who transferred the same , to the said Iames Slumond , and Suspends . The reason of Suspension was , because this Bond was payed , and retired by Balscaskie , the principal Debitor ; who took a blank Translation thereto , from Potter the Assigny ; which Translation ; with the Bond it self , were surreptitiously taken out of his Coffer , by Iames Hay , who filled up this Chargers name therein , likeas , the Suspender produced a Declaration of Potter , that the Sum was payed ●o him , by Balcaskie , and therefore the Suspender craved , that the Oaths of this Charger , the said Iames Hay , and Potter , and also the Witnesses , who were present at the payment of the Sum might be taken before Answer .

Which the Lords granted , albeit the Charger had the Translation for an one●rous cause .

Children of Monsual . contra Laurie of Naxweltoun . February 14. 1662.

THE Children of the Laird Monsuel , as Executor to their Father , pursues Laurie of Maxwelltoun , for a Sum due by him to the Defunct , who alleadged Compensation , upon a Debt due by the Defunct , Assigned to the Defender , by the Defuncts Creditor , after the Defuncts Death , and intimat before any Citation , or Diligence , at the instance of any other Creditor . The Pursuer replyed , that Debt compensed on , cannot take away this Debt pursued for solidum ; because the Defender , as Assigny can be in no better Case then his Cedent , and if he were now pursuing ; he would not be preferred fore his whole Sum , but only in so far as the Testament is not yet exhausted , or other prior Diligence done , for an Executor , having but an Office , can prefer no Creditor , but according to his Diligence , much less can any of the Defuncts Debitors , by taking Assignation from any of the Defuncts Creditors , prefer that Creditor whose intimation is no Legal Diligence .

The Lords found that the Defender could be in no better Case then the Cedent , and could have only compensation , in so far as the Inventar was not Exhausted , or prior Diligence used , they found also , that a Decreet against a Defender for making arrested Sums forthcoming , at the Instance of an of the Defuncts Creditors , was null , because the Executor Creditor was not called thereto , albeit Decreet was obtained● at the Instance of that Creditor , against another Executor in a former Process .

Lady Muswal Elder contra Lady Muswal Younger . February 15. 1662.

IN a Contention , betwixt the Lady Muswall Elder , and Younger , upon two Annualrents out of one Barony .

The Lords Ordained the first Annualrenter to do Diligence , within twenty days after each Term ; that after that time , the second Annualrenter might do Diligence , or otherwise , at her option Ordained the Lands to be divided , conform to the Rents Proportionably , as the two Annualrents . The second Annualrent and the first to take her choise .

Laird of Pitfoddels contra Laird of Glenkindy . Eodem die .

IN the Revieu of a Decreet in one thousand six hundred fiftie nine , at the Instance of the Laird of Pitfoddels , against the Laird of Glenkindy● in which Decreet , Glenkindy Cedents Oath , having been taken , that the Cause of the Bond was , for an Assignation to a Wodset , which was excluded by Apprizing , after Report whereof , Glenkindy the Assigny alleadged , that his Cedents Oath could not prejudge him ; and it being Answered , that he made no Objection before the Oath taken , neither could make any Just Objection , because the Oath of the Cedent any time , before Intimation● is sufficient against the Assigny , Glenkindy Answered , that his being called in that Process as Assigny , and compearing ; and Insisting as Assigny was an intimation , which was before taking of the Oath , which was found Relevant in the said Decreet , and now rescinded by the Lords , upon this consideration , that the Citation being ad hunc offectum , to instruct the cause of the Bond , the insisting in that pursuite could not be such an intimation , as to exclude the Cedents Oath .

Earl of Bedfoord contra Lord Balmirino . February 18. 1662.

THE Earl of Bedfoord , for satisfaction of his Tocher , due by his Father in Law ; the deceast Earl of Sommerset , caused Adjudge , in the name of a Person intrusted , all Right compent to the Earl of Summerset , of the Estate of Iedburgh , and being Assigned to the Adjudication , pursues the Lord Balmirino , for denuding himself of two Apprisings of the Estate of Jedburgh , conform to three Back-bonds produced ; granted by umquhile Balmirino , to Summerset , acknowledging , that he had acquired Right to these Apprysings , with Summersets own Money , and therefore oblidged him to denude himself thereof . The Defender alleadged , that his Father being intrusted by the late Earl of Summerset , to acquire the Estate of Iedburgh , and having the Fee thereof in his Person , the Defender is not oblidged to denude himself , untill he be Re-imbursed , and satisfied of all Sums of Money , which after the said Back-bonds he payed for Summerset , or advanced to Summerset , which can only be accompted , to have been in Contemplation of the Trust , and is particularly so exprest , in Summersets Letters produced , bearing , that Balmirino should be satisfied , of what was due to him , out of Tiviotdale , whre the said Estate of Iedburgh lyes . The Pursuer answered , non rel●vat , against him , as a singular Successor . 2dly . Non competit , by way of Exception ; but the Defender hath only Action therefore : especially this Trust being fidei-comissum ; which is a kind of Deposition , in which there is neither Compensation , nor Retentation competent . 3dly . there can be here no Compensation , because the Debt is not Liquid . The Defender answered , his Defense stands must Relevant , which he founds not upon Compensation , but upon the Exception of Retentation , which is competent in all Mandats , and Trusts , by which , as there is a Direct Action , in favour of the Mandator , against the Mandatar , or Person intrusted ; so there is a contrare Action , in favours of the Mandatar ; for satisfying of all , that he hath expended , by Reason of the Trust ; and which he may make use of , beway of Exception of Retention , if he be pursued and whatsomever by in Relation to Compensation , in deposito , by the civil Law , or of the difference of Action , and Exception ; yet , thereby they , and by our un contraverted Custom , whatever is competent by way of Action , is Competent by Exception , and if this be not receavable by Exception , it is utterly lost , because there is none to represent Summerset .

The Lords considering , that Balmirino's Estate was disponed , and Apprysed , by his Vncle , the Lord Couper , and William Purvis , the Reversion whereof was shortly to expire , which they would not lengthen , and that by an accompt running , to the expire of these Reversions , the Pursuer being a Stranger , might be frustrat ; therefore they Repelled the Defense , but declared , that Estate , or benefit that Bedfoord should make thereby , should be lyable to Balmirino , for what Debt he should instruct to be due by Sommerset , and withall supers●●eded the Extract f●r a time , that if in the meane time , Balmirino should cause Couper and Purvis Restrict their Rights , to as much Rents as would pay their Annualrents , and secure Bedfoord in the rest of his Estate , and in a certain Bond produced , for what should be found due , They would sustain the Defense by Exception , and Ordain Compt and Reckoning .

Lord Carnagy contra Lord Cranburn . February 19. 1662.

THE Lord Carnagie being Infeft in the Barony of Dirltoun , upon a Gift of Recognition by the KING ; pursues a Declarator of Recognition , against the Lord Cranburn , because the late Earl of Dirltoun , holding the said Barony Ward of the KING , had without the KING'S consent , alienat the same to Cranburn , and thereby the Lands had Re-cognized . The Defender alleadged , First , No Process , because he is minor , & non tenetur placitare super haereditate paterna . Secondly , The Re-cognition is incurred by the ingratitude , and Delinquence of the Vassal , yet delicta morte extinguntur , so that there being no other Sentence , nor Litiscontestation against Dirltoun , in his own Life , it is now extinct , which holds in all Criminal and Penal Cases , except in Treason only , by a special Act of Parliament .

The Lords Repelled both the Defenses : The First , in respect that the Defender is not Heir , but singular Successor , and that there is no question of the validity of his Predecessors Right in competition with any other Right , but the Superiours . The other , because Recognition befalls not as a Crime , but as a Condition , implyed in the nature of the Right , that if the Vassal alienat , his Fee becomes void .

Children of Wolmet contra Mr. Mark Ker. Eodem die .

IN a Declarator of Redemption , at the the Instance of the Children Wolmet , against Mr. Mark Ker. It was found that the Declarator needed not be continued , though the Pursuer produced not the Reversion , but an attestat double thereof , and offered to prove , that the principal Reversion was in the Defenders hands .

Which was sustained , the Pursuers Right being an Appryzing .

Earl of Calender . contra Andrew Monro . February 20. 1662.

THE Earl of Calender pursues Andrew Monro of Beercrofts , for the valued Teind Duty of his Lands several years : who alleadged absolvitor , for the Teinds intrometted with by his Author , preceeding his Right . The Pursuer Replyed , that Teinds being valued , are like an Annualrent , and are debiti fundi , by the Act of Parliament 1633. anent Valuations . The Teind-masters being appointed to be Infeft in the Right of the Teind , according to the Valuation .

The Lords found the Defense Relevant , and found the Teind not to be debitum fundi , albeit valued .

Halb●rt Irvin contra Mackertnay . Februarie 24. 1662.

THis day , in a Spulzie betwixt Halbert Irvin and Mackertnay . The Defender principally called , having proponed a Defense , upon a Disposition and Delivery of the Goods in question , and craving to prove the same , by others of the Defenders , called as accessory , as necessary Witnesses , alleadging , that the Pursuer had called all that were present upon the ground , as accessories , that thereby he should get no Witnesses .

The Lords Ordained the Pursuer in the Spulzie , to declare whether he would insist against these others , as accessory , or as applying any of the Goods to their own behove , or if he would not , allowed them to be received as Witnesses ; and if he did insist against them , Ordained the Processe against the principal Partie to fist till the accessions were discussed , that such of them as were assoilzied might be used as Witnesses .

Alexander Arbuthnet of Fiddes contra Keiths . February 25. 1662.

ALezander Arbuthnet of Fiddes , pursues Keiths , the two Daughters of John Keith , and their Husbands , for the avail of their Marriages , belonging to him , as Donatar by the Earl of Marischal their Superiour . The Defenders alleadged , First , No Process , because nothing produced to instruct that the Lands were Waird , or that the Earl of Marischal is Superiour . Secondly , absolvitor from that Conclusion of the Summons● craving not only the Ground to be Poynded , for the avail of the Tocher , but also the Defenders personally to pay the same . Thirdly , Absolvitor , because the Earl of Marischal consented to the Defenders Marriage , in so far as he is Witness in the Contract .

The Lords repelled all these Alleadgances : The First , in respect that Waird is presumed , where the contrair is not alleadged , and the Defender did not disclaim the Earl of Marischal as his Superiour . The Second , because they found , that the avail of the Marriage did not follow the Value of the Land holden Waird , but the Parties other Means and Estates also ; so that the avail of the Marriage might be much more worth then the profite of the Waird Land : and therefore behoved not only to affect the Ground , but the Heir , or appearand Heir personally : And as to the other Defense of the Earls consent , it was after this Granted , and was only as Witness , neither is the profite of the Marriage , as to the single avail , taken away by having of the Superiours tacit consent : but is a Casuality simply belonging to him , which cannot be taken from him , unless — id — ageb●tur , to renunce the benefite thereof , yet it seems that the Superiour , consenting to his Vassals Marriage , can crave no greater Avail then the Vassal gets of Tocher .

Brown contra Iohnstoun . February 26. 1662.

BRown having obtained Decreet against Archibald Iohnstoun of Clachrie for two hundred pounds Sterling : He raises Reduction and Review upon this Reason , that the ground of the said Decreet was a Bill of Exchange drawn by Johnstoun , to be payed by Mukgown in Blackainor-fair in England , Ita est , the alleadged Bill is null , not Designing the Writer , nor having any Witnesses , neither hath it the Subscription of Johnstoun , nor the Initial Letters of his Name , but only a mark , most easily Initiable , which is Written about with an unknown hand : Archibald Johnstoun his mark , it being reasoned amongst the Lords , whether this could be accompted a Writ Probative ; and it being alleadged an Astruction thereof , that this Johnstoun being a Merchant and a Drover , was accustomed ordinarly so to Subscribe , and to give Bills for far greater Sums then this .

The Lords thought it would be sufficient amongst Merchants , though it wanted Witnesses , but being unwilling via ordinaria , to allow of such a Writ , or Subscription , for which we have neither Custom nor Decision : Yet in respect of the Decreet , and of the alleadged Custom so to Subscribe : They before answer , ordained the Oaths ex officio , to be taken of the Writer of the Bill , if he could be condescended on by either Party , and of the Witnesses who saw Johnstoun Write this mark , or receive the Money , for which the Bill was granted .

Creditors of Kinglassie . Competings . Eodem die .

IN a Competition betwixt the Creditors of Hamiltoun of Kinglassie . It was alleadged for William Hume , who had Right to an Annualrent , that he ought to be preferred to Joseph Lermont , who stood publickly Infeft in the Property , in Anno 1655. because albeit the Annualrent of it self was base , yet long before , it was validat by a Decreet for Poynding of the Ground . It was answered , that there was no way to make a base Infeftment valide , but by Possession : here there could be no Possession , because the Annualrent was granted to take effect only after the Granters Death , and the Decreet thereupon was obtained long before his Death , and so could be repute no Possession .

The Lords were of Opinion , that the foresaid Decreet of Poynding of the Ground upon the base Infeftment , Ordaining the Ground to be Poynded ( the Terms of payment being come and bygone ) was sufficient to validate the base Infeftment : and that thereby it remained no more a private Clandestine Infeftment , by many other Questions falling in . The Matter was laid aside without Decision , vide February 27. 1667. Inter eosdem .

John Kinard contra Laird of Fenzies . Eodem die .

JOhn Kinard pursues a Declarator of Property of a Myre or Marish in the Carss of Gowrie , against the Laird of Fenzies , who had his Land on the other side thereof , alleadging that he and his Predecessors and Authors , have been fourty years in Possession of the Myre , as proper Part and Pertinent of the Barony of Rossie , and that the same is severally kend and known by March and Meith , and a Dyke inclosing it from the Defenders Lands : It was alleadged for the Defender , that he , his Predecessors and Authors , this fourty years has been in Possession of the said Myre , by doing all the Deeds Libelled by the Pursuer , which must give them Right , at least of common Passurage , Fail and Divot therein : and therefore craves the Defense to be found Relevant , and admitted to his Probation , at least that a Cognition might be by an Inquest , conform to the Act of Parliament , and Witnesses led , hinc inde . The Pursuer Replyed , that he offers him to prove that by the space of fourty years , he , his Predecessors and Authors Possessed the said Myre , not only by the Deeds Libelled ; but also did divide the same in several Parcels to each Tennent in the Barony , and was accordingly Possessed by them , which is sufficient to show that they bruiked the same as Property , and not a promiscuous Commonty . And as for the Defenders Alleadgances of Commonty by common Pasturage , &c. The same ought to be Repelled ; because the Pursuer offers him to prove that he interrupted and debarred the Defender from time to time , which hindered him to Acquire a Right of Commonty , by Possession and Prescription , and he cannot alleadge that he hath any other Right by express Infeftment ; and therefore being so much more pregnant then the Defender , there ought to be no Cognition , but he preferred in Probation .

The Lords Repelled the Defense in respect of the Libel and Reply , but granted Commission to one of their number , to Examine Witnesses for the Pursuer , omni exceptione majores , after which , the Defender passing from his Compearance , The Lords Declared they would give the Extract of the Interlocutor to the Pursuer , and give his Libel and Reply by way of Condescendence , and Declaration of the manner of the Property , and of his Possession to his Probation .

Viscount of Stormount contra Heirs of Line , and Creditors of the Earl of Annandale . Eodem die .

THE Viscount of Stormont pursues a Declarator against the Heirs of Line , of Umquhil James Earl of Annandale , and several Creditors of the said Umquhil Earl , who had Appryzed the Lordship of Skoon , and were Infeft thereupon ; to hear and see it found and declared , that David Viscount of Stormount had Disponed these Lands , to Mungo Viscount of Stormount his Brother , and the Heirs-male of his Body , which failzing , to Andrew Lord Balvaird , and the Heirs-male of his Body , &c. with this express provision in the Charter , and repeated verbatum in the Seasine , that it should not be leisom to the said Mungo , or any of the Heirs of Tailzie for the time , to alienate the Lands , or alter the Tailzie , or to do any Deed , whereby the same may be evicted , or Apprized , from the Heirs of Tailzie , otherwise their Right should expire , and should belong to the next Heir of the Contraveener , and that thereby Iames Earl of Annandale last Infeft , had contraveened the said Clauses by contracting thir Debts , whereupon the Lands were Apprised : and thereby had lost his Right , and that the saids Creditors Bonds and their Apprizings are thereby null and void : and likewise that the said Iames Earl of Annandale , his Retour was null , and that the Pursuer might yet Enter as Heir to Mungo Viscount of Stormont , as if the said Iames Earl of Annandale had never been Infeft . The Defender alleadged ; First , No Proses in this Order without a Reduction , without which no Infeftment can be taken away .

The Lords Repelled this Alleadgence , and found that a Declarator was als effectual as a Reduction , when all was produced that was necessar to be produced before the ground of Nullity were Discussed , with which all the rest will fall in consequence , and that Reduction was only necessar to force tho Defenders to produce by the Certification , but if the Defender would produce himself , he might proceed by way of Declarator of Nullity .

Secondly , The Defender alleadged no Processes , because by the Co-ception of the Clauses irritant , the Rights is declared to belong to the nearest Heir of the Contraveener ; and therefore the Pursuer as served Heir-male general to Andrew Lord Balvaird , hath no Interest till he be served Heir-male to Iames Earl of Annandale the Contraveener , in which case he cannot quarrel his Deeds or Debts . The Pursuer answered , that by Heir here cannot be understood the Heir actually served , but the Person only that might be Heir , for the Pursuer insisted in this same Processes against the Earl of Annandale , when he was living , and could not have been then excluded , because he was not his heir ; and therefore as is ordinar in all Clauses in relation to Heirs , which cannot be effectual , if Heirs served be understood , their Heirs appearing are understood , verba sumenda sunt cum effectu .

The Lords also Repelled this Defense .

Thirdly , The Defenders alleadged absolvitor : Because , first , Clauses de non alienando , are never understood to extend to necessary alienations , as for provision of the Feears Wife and Children , for Redemption of him from Captivity , or any other accident , without his Fault . Secondly , Clauses de non Contrahendo debitum are against Commerce , and utterly rejected . Thirdly , Clauses irritant are resolutive , albeit contained in the Infeftment , are but personal obliegements , and the ground of an Action against the contraveener ; but if the Contraveener be denuded , are not effectual against singular Successors ; Especially Creditors Contracting bonafide , with one standing Infeft , before the matter became litigious by Processes , upon that Clause , seing no Inhibition was used : ita est , thir Creditors had Apprized and were Infeft before any such Processes upon this Clause , or Inhibition used , and no personal provision could transmit the Right from Annandale to Stormount , upon contraveening the Clausses , nor could hinder the transmission thereof from Annandale , who had the only real Right to the Creditors , by vertue of their Appryzings and Infeftments , which denuded Annandale of the real Right , and which real Right stands now only in the Person of the Creditors Infeft , so that there can be no more in Stormounts Person , but a Personal Provision , for the being within the body of the Infeftment , will not make this Clause real , and to affect the Right , quo ad singulares successores , more then the Clause of Warrandice in the Infeftment , which without question , reaches not singular Successors ; and albeit some Provisions in themselves Personal , may aff●ct singular Successors , as the Provision , that if two years run together , the Feu shall become void , or the Clauses of Reversion , or the Inherent Clauses , or quality in Ward holding , but these become real by Law and Statute ; for we have a particular Act of Parliament anent Reversions , to be effectual against singular Successors ; and another anent Feus , ●b non solutum canonem : and there is no other case that such Provisions are real . The Pursuer answered to the fi●st ; albeit alienations do not comprehend judicial Alienations by Appryzing in Recognition , and are oftimes not extended to necessar Alienations : Yet here the Clause bears expresly not to altenat , and also to do no Deed whereby the Laws may be Evicted and Apprized ; without which the Clauses de alienando , were utterly ineffectual , and repeats the same to t●e second . As to the third , albeit de facto , the real Right be in the Appryzers Infeftment , yet it is in them effected , with that quality in the condition and bosome of it , that gives good ground , not only against the Earl of Annandale Contraveener , to annul his Right ; But also the Apprizer in consequence , quia resoluto jure dantis , resolvitur jus accipientis , Especially in Feudal-rights , where provisionis investiturae , sunt legis feudi , as all Feudists agree , and therefore all such Pactions and Provisions are equivalent to Law . 2d . This Clause of the Infeftment is not only resolutive , but also is an Interdiction Prohibiting the Feear for the time , to alienat , or do any Deed prejudicial , without consent of such other Persons of the Tailzie , were Majors for the time ; and therefore , though the Pursuer should enter Heir to Annandale , he might annul these Rights , just as in the Case of an Heir of an Interdicted Person , who may annul all Rights by his Predecessors after the Interdiction . The Defenders answered , that as to this Point concerning the Interdiction , it cannot be effectual ; because by a particular Act of Parliament , all Interdictions are appointed to be published , and to be Registrat in the Registers of Inhibitions , otherways they are null : This Interdiction is neither published nor Registrat in that Register . The Pursuer answered , it is als publick , because it is not only in his Infeftment , at the great Seal , but it is verbatum in the first Seasine , and repeated in the Earl of Annandales Retour and Seasine , so as that the Creditors ought to have considered his condition when they lent him Money , and known that he was Infeft , otherwise their mistake , though it might be alleadged to be bona fidae ; yet if Annandale hade never been Infeft , their bona fides would have wrought nothing , seing therefore they did it on their peril , unless they knew he was Infeft , and they could not know he was Infeft by inspection of his Seasine , or of the Register , but they behoved to know this Clause , which is verbatum in it .

The Lords did also Repel this Defense and Duply , in respect of the Reply and Triply , and found the resolutive Clause effectual against singular Successours , especially considering it was so publick and verbatim in the Seasine , and that it was equivalent to an Interdiction .

Thirdly . The Defender further alleadged absolvitor , because the pursuer had● behaved himself as Heir to the Earl of Annandale , by Intromission with the Mails and Duties of the same Lands .

The Lords Repelled this Defense , because the Pursuer having intented Declarator against Annandale in his own life , they thought the provision was equivalent to an Interdiction , which purged that passive Title .

Creditors of Kinglassie . February 27. 1662.

IN the Competition betwixt the Creditors of Kinglassie mentioned the former Day , the Dispute anent the base Infeftment , made publick by the poinding of the Ground so long before the Term of payment , being reasoned before the Lords in presentia , they sustained the same as before .

Marjory Chalmers contra William Dalgardno . Eodem die .

MArjory Chalmers pursues William Dalgardno as vitious Intromettor with a Defuncts Goods , to pay his Debt , who alleadged absolvitor , because the Rebel died at the Horn , and so had no Goods . Secondly , The Defender hath the gift of his Escheat , and also is Executor Creditor Confirmed to him . Thirdly , The Defender had a Disposition of all the Defuncts Goods , albeit he possessed not thereby during his Life ; yet he might Enter in possession , after his Death , and not be vitious Intromettor .

The Lords found this Defense Relevant , to elide the passive Title , but prejudice to either Party , to Dispute their Rights , as to the simple avail of the Goods ; and they Repelled the first Defense , and found the second and third Defenses Relevant only , if the Gift was before the Intenting of this Cause

William Hamiltoun contra Mcfarlane of Kirktoun . February 28. 1662.

WIlliam Hamiltoun pursues Iames Mcfarlane of Kirktoun , as Successor titulo lucr●●ivo to his Father , to pay his Debt , who alleadged absolvitor , because he was not alioqui successurus , in respect that at the time of the Disposition , he had , and hath an Elder Brother , who went out of the Countrey , and must be presumed on life , unless the Pursuer will offer to prove that he was Dead before this Disposition ; so that at the time thereof , the Defender was not appearand Heir & alioqui successurus , because vita presumitur . The Pursuer answered , the Defense was not Relevant , unless the Defender would be positive , that the time of the Disposition his Elder Brother was on life ; especially seing he had been out of the Countrey twenty years , and was commonly holden and repute to be Dead .

The Lords sustained the Defense , that the Elder Brother was on life the time of the Disposition , and reserved to their own consideration the Probation , in which if the Defender proved simply , that his Brother was actually living the time of the Disposition , there would remain no question : and if he prove that he was living about that time , they would consider , whether in this Case , the presumption of his being yet living , should be probative .

Pa●rick Herron contra Martein Stevenson . Iune 17. 1662.

PAtrick Herron having obtained Decreet of Removing against Martein Stevinson , he Suspends on this Reason , that the Decreet was not upon Litiscontestation ; but a time being Assigned to the Suspender , to find Caution for the violent Profits , and he failing , was Decerned without being admitted to any Defense ; and now alleadges , that he ought not to remove , because he obtained Decreet of Adjudication of the Lands in question , against the common Author , and thereupon charged the Superiour long before the Chargers Decreet of Adjudication or Infetment . The Charger answered , that the Reason ought to be Repelled , because the Decreet was given against the Defender , compearing and failing as said is . Secondly , The Charger stands Infeft upon his Adjudication . The Pursuer was never Infeft , neither did he use all Diligence to get himself Infeft , not having Denunced the Superiour , and in case he had Suspended , Discussing the Suspension .

The Lords found the Reason Relevant and Proven , and Suspended ; because they found no necessity for an Appryzer to use further Diligence against the Superiour , then the Charge of Horning , unless the Superiour had Suspended both , and that in competition the other Party had done greater Diligence .

Earl of Marischal contra Charles Bray . Iune 18. 1662.

THe Earl of Marischal having obtained Decreet in his own Baron Court , against Bray , compearing for a years Rent of his Maines of Dunnottor , herein he had been possest by the English , Bray Suspends , and alleadges compensation upon a Bond assigned to him , due by the Charger , who answered competent and omitted , and so not receivable in the second Instance ; especially being Compensation , which by special Act of Parliament , is not to be admitted in the second Instance .

The Lords Sustained the Reason of Compensation , and found that a Baron Court was not such a Iudicature , as that Alleadgences competent and omitted , that should be Repelled in the second Instance .

Mr. Iohn Wallace contra Forbes Iune 19. 1662.

RObert and William Forbeses and Heugh Wallace , being bound in a Bond as Co-principals , Heugh Wallace being Distressed for all , consigned the Sum to this Chargers Son , Forbes Suspends on this Reason , that there is no Clause of Relief in the Bond , and Wallace being Debitor in solidum , and having gotten Assignation confusione tollitur obligatio . The Charger answered , that though there was no Clauses of Relief , hoc i●est , where many Parties are bound conjunctly and severally , that each is oblieged to relieve others .

The Lords Repelled the Reason of Suspension for the Suspenders part , and found them lyable therefore , but not for the other Co-principal Parties .

Isobel Drummond contra Iean Skeen . Eodem die .

ISobel Drummond pursues Iean Skeen as behaving her self as Heir to her Brother Iames Skeen , by uplifting the Mails of the Lands , wherein he Dyed Infeft , to fulfill her Contract of Marriage with Iames. The Defender alleadged absolvitor , because the uplifted those Duties by vertue of her Infeftment , being Served Heir to Iohn Skeen , Son to Iames Skeen , the Pursuers Debitor , who was Infeft , not as Heir to his Father Iames , but as Heir to her Good-sire . The Pursuer answered , in respect to the Defenders Seasine , or to Iohn Skeens , which were evidently null , seing Iames Skeen was Infeft , and so John could not pass over him to his Goodsire ; and if any regard were to such Infeftment , it would open a Door to all Fraud , and abstracting of Defuncts Creditors Evidents .

The Lords found the Defense Relevant to purge this viticus passive Title , seing the f●●●zie was not in this Defender , but in John Skeen his Brother Son , but prejudice to Reduce as accords , but ordained her to Renunce to be Heir to James , that Adjudications might be obtained .

Mr. Alexander Vernor contra George Allan . June 24. 1662.

MR. Alexander Vernor as Executor to Mr. David Calderwood , Charges George Allane , to pay a part of the Defuncts Stipend , as he who intrometted with the Teinds of the Lands lyable therefore , whereupon he had obtained Decreet . The Suspender alleadged that the Decreet was in absence , and any intromission he had , was only as a Merchant having bought from Sir Alexander Auchmutty the Heretor , to whom he made payment bona fida , before any Arrestment , or Pursuit against him . The Charger answered non Relevat , because the Suspender is oblieged to know , that by Law , the Teinds are lyable for the Ministers Stipend . Secondly , He offers him to prove that the Suspender did not make his Bargain for so many Bolls of Victual ; but that he took Disposition of the Corns ipsa corpora , before they were drawn .

The Lords found the answer Relevant , to elide the Reason , and found the Defender lyable for the tenth part of the Cornes he bought .

Robert Hay contra Hoom of Blackburn . Eodem die .

RObert Hay Tailzior pursues Hoom of Blackburn , as representing his Father upon all the passive Titles , to pay a Debt of his Fathers . The Defender alleadged absolvitor , because there was nothing produced to instruct the Debt , but an Extract out of the Register , bearing the Bond to have been Registrated by his Fathers consent , whereas it is nottour and acknowledged by the Summons , that his Father was Dead long before the Date of the Registration . The Pursuer answered , the Extract is sufficient to instruct the verity of the Bond , being in a publick Register of the Session ; alb it the Defunct was Dead the time of the Registration , which might have been the Creditors mistake , and cannot prejudge them , seing vitapresumitur , especially now , when through the loss of the Registers , principal Writs cannot be gotten . The Defender opponed his Defense , and the Decisions of the Lords , lately in the like case concerning the Earl of Errol , because nothing can instruct against any man , but either a Writ Subscribed by him , or the Sentence of a Judge upon Citation or consent , and this is neither .

The Lords refused the Extract simply , but ordained the Pursuer to condescend upon Adminicles for instructing thereof , either by Writ or Witnesses , who saw the Bond , &c.

of Woodhead contra Barbara Nairn . Eodem die .

WOodhead pursues Barbara Nairn , for the Mails and Duties of certain Lands . The Pursuer alleadged absolvitor , because she Defender stands Infeft in Liferent of these Lands . It was Replyed , The Defenders Husband Disponed these Lands to the Pursuer with her consent , Subscribing the Disposition . It was Duplyed , The Defenders Subscription and Consent was Extorted , metus causa , whereupon she has Action of Reduction depending , and holds the production satisfied with the Writs produced , and repeates her Reason by way of Duply , viz. if she was compelled by her Husband it was by just fear ; because she offered to prove by Witnesses , that he threatned her to consent , or else he should do her a mischief , and that he was a fierce man , and had many times beaten her , and shut her out of Doors , and offered to prove by the Nortar and Witnesses Insert , that at the time of the Subscription , she declared her unwillingness .

The Lords found the Defense and Duply Relevant .

David Wilkie contra Sir Andrew Ker. Eodem die .

DAvid Wilkie and others , Tacks-men of the Castoms , Charged Sir Andrew Ker for the Tack-Duty of the Customs of the Border , Anno 1650. Set by them to him , he Suspends , and alleadges by the publick Calamity of the English Entry , in Anno 1650. in Iuly , Traffick was hindered , and by the Kings Proclamation , against Commerce with these . The Charger answered , it was a Casuallity ex natura rei , and that they had payed without Defalcation , and the Suspender had profit in former years .

The Lords before answer Ordained the Suspender to Compt upon what benefit he got in Anno 1650. and what Profite above the Tack-duty in former years .

Adamsons contra Lord Balmerino . Iune 26. 1662.

ADamsons being Infeft in an old Annualrent out of two Tenements in Leith , and having thereupon obtained Decreet of Poynding the Ground in Anno 1661. and insisting for poinding one of the Tennents Goods , now belonging to the Lord Balmerino , for the whole Annualrent ; Balmerino Suspends on these Reasons ; First , The Heretor against whom the Decreet of poinding was obtained , and all the Tennents were Dead ; and therefore it can receive no summar Execution , against the present Heretor and his Tennents , but there must be a new Decreet against them . Secondly , Balmerino hath peaceably possessed this Tenement twenty or thirty years , and thereby hath the Benefit of a possessory Judgement , by which his Infeftment cannot be questioned without Reduction and Declarator . Thirdly , The Englishes possessed this Tenement several years by the publick Calamity of War ; and therefore there must be Deduction of these years Annualrents , as is frequently done in Feu-duties . Fourthly , The two Tenements being now in the hands of different singular Successors , Balmerino's Tenement can only be poinded for a part of the Annualrent . The Pursuer answered , that Poinding of the ground is actorialis , chiefly against the Ground ; and therefore during the Obtainers Life , it is valued not only against the ground , while it belonged to these Heretors and Possessors , but against the same in whosoever hands it be , that the Moveable Goods therein , or the Ground Right thereof may be Apprized . To the second , Annualrents are debita fundi , and a Possessory Judgement takes neither place for them , nor against them . To the third , though in some cases Feu-duties ceass by Devestation , that was never extended to Annualrents , due for the profit of a Stock of Money . To the fourth , the Annualrent being out of two Tenements promiscuously . The Annualrenter may Distress any part for the whole , in whosoever hands the Tenement may be .

The Lords Repelled all these Defenses , but superceded Execution for one half of the Annualrent for a time , and Ordained the Suspender to give Commission to Balmerino to put the Decreet in Execution against the other Tenements for its proportion , for his relief , medio tempore .

Wilson contra Thomson . Eodem die .

WIlson having obtained Decreet against Thomson , for poinding of the Ground of a Tenement of Land , Thomson Suspends on this Reason , that the Chargers Infeftment is base , and before it was cled with Possession , the Suspender was publickly Infeft , and thereby excludes the base Infeftment though prior . The Charger answered , that the Reason ought to be repelled , because he had used Citation upon the base Infeftment , before the publick Infeftment , by which Citation , res fuit letigiosa .

The Lords Repelled the Reason in respect of the Answer , and found the base Infeftment validat by the Citation , whereupon the Decreet followed .

Ruthven contra Laird of Gairn . Iune 27. 1662.

THe Laird of Gairn having Infeft his Son in his Estate , reserving his own Liferent ; after his Sons Death , his Oye pursues him for an Aliment out of the Estate , conform to the Act of Parliament , appointing the Heir to be Entertained by the Donatars to the Ward , Conjunct-feears , or Liferenters thereof . The Defender alleadged absolvitor , because the Act of Parliament cannot be extended to his case , who voluntarly Infeft his Son in his Estate , with the burden of his Liferent . Secondly , If any Aliment were due , the Mother who is Liferenter must bear her part . Thirdly , Aliment is only due where the Heir hath no other means ; But here the Heir hath a Stock of Money , which though Liferented by his Mother , yet he may Entertain himself out of the Stock . The Pursuer answered : First , That the Act of Parliament anent Alimenting of Heirs , is generally against Liferenters without exception . Secondly , The Disposition by the Defender to the Son , was for a Tocher worth all the Estate he then had ; wherefore no part was Liferented by the Son , or his Wife , the Pursuers Mother , but only a sum of Money which came by her self , and there is no reason that the Stock thereof should be exhausted for the Pursuers Aliment , the Defender having now succeeded to a plentiful Estate .

The Lords Repelled the Defense in respect of the Replyes .

Mr. David Watson contra Mr. Iames Ellies . Eodem die .

MR. David Watson having acquired Right to the Superiority of Stenhouse milne , pursues the Feuers , for their Feu-duties , who alleadge , First , no Process , the Lands in Question , being Kirk-lands , Disponed to a Lord of Erection ; and it is declared , that the Lords of Erection , having only right to the Feu-duty , till they be Redeemed by the KING , at ten Years purchase , by the Act of Parliament thereanent , in Anno 1633. And thereby none have Right , but such as subscribed the submission , surrendring their Interest in the KING'S hands , untill the Pursuer Instruct , that his Author did subscribe the said submission , he hath no Interest . Secondly , absolvitor , from the Feu-duties , 1650. and 1651. Because the Lands were wasted these Years , by publik calamity of War . Thirdly , absolvitor from Harrage and Carrage ; because all Services are reserved to the KING , by the said Act of Parliament .

The Lords assoilzied from Harrage and Carrage , but differed for the Feu-duty , being smal , and found no necessity for the Pursuer to instruct , that this Author did subscribe the Surrender , after so long time , but that the same was presumed for his so long bruiking the Fee .

Sir William Wilson contra Sir William Murray . Eodem die .

WIlson having Apprysed Sir William Murrays Estate , pursues him and his Tenents , for Mails and Duties , who alleadged , that by the Act of Parliament 1661. anent Debitor and Creditor , the Lords are impowred to restrict Apprysers , to a part of their Lands Apprysed , sufficient for the Annualrent , and to leave the rest to the Debitor .

The Lords did accordingly restrict , but give the Appryser his option of any of the Apprysed Lands , ( except the Debitors House and Mains ) paying eight per cent . effeiring to the Sum Apprysed for ; the Appryser being comptable for the superplus above the Annualrent , and publick burdens●

Dame Margret Hay contra George Seaton of Barnes . Iune 28. 1662.

UMquhile Sir Iohn Seatoun of Barnes , having provided George Seaton his son , by his Contract of Marriage , to his lands of Barnes , some diferences rose amongst them , upon the fulfilling of some Conditions in the Contract , for setling thereof , there was a minute extended by a Decreet of the Judges , in Anno 1658. by which the said Dame Margaret Hay , second Wife to the said Sir Iohn , was provided to an hundred pound sterling in Liferent , and it was provided , that Sir John might burden the Estate with ten thousand merks to any Person he pleased , to which George his Son did consent , and oblidged himself , to be a principal Disponer , Sir Iohn assigned that Clause , and destinat that Provision , for Hendrie Seaton his Son , in Fee , and for the said Dame Margaret Hay in Liferent , whereupon she obtained Decreet before the Lords , the last Session , George suspends the Decreet , and raises Reduction , on this Reason● that the foresaid Clause , gave only power to Sir Iohn , to burden the Estate with a 10000. merks , in which case George was to Consent , and Dispone , which can only be understood of a valid Legal and Effectual burden thereof , but this Assignation is no such burden , because it is done in lecto egreditudinis , and so cannot prejudge George , who is Heir , at least appearand Heir to his Father . The Charger answered , that the Reason was no way relevant . First , because this Provision was in favours of the Defuncts Wife , and Children , and so is not a voluntar Deed , but an Implement of the natural obligation of providing these . 2dly . This Provision , as to the Substance of it , is made in the Minute , and extended Contract in the Fathers health ; and there is nothing done on Death-bed , but the Designation of the Person , which is nothing else , then if a Parent should in his life time give out Sums payable to his Bairns , leaving their names blank , and should on Death-bed fill up their names . The Suspender answered , that he opponed the Clause , not bearing de presenti , a burden of the Land , but a Power to his Father to burden , neither having any mention of Death-bed , or in articulo mortis , or at any time during his life , and though the Dead , on Death-bed be in favours of Wife , and Children , it hath never been sustained by the Lords in no time , though some have thought it the most favourable Case .

The Lords sustained the Provision , and Repelled the Reason of Reduction assoilzied therefrom , and found the Letters Orderly proceeded .

Dorathie Gray contra Oswald . Eodem die .

UMquhile Mr Iohn Oswald , having Married Dorathie Gray , in England , did at the time of their Contract , grant an English Bond of a 1000 lib. Sterling to the said Dorathies Mother , and on Wilson , ad opus & usum dictae Doratheae , the Condition of which Obligation , is , that if Mr. Iohn shal pay the saids intrusted Person , the Sum of 600 lib. Sterling , or shall secure the said Dorathie in Lands , or Cattels , worth the said Sum of 600 lib. in in his life time , or be his Testament . Then he shall be free of the 1000 lib. Mr. Iohn granted Assignation to the said Dorathie of 5500 merk due to him by the Earl of Lauderdale , bearing expresly the same to be for Implement of the Bond , and Assigning , both principal Sum , and Annualrent , Dorathie confirmed her self Executrix to her husband , gives up this Bond , and obtains Decreet against Lauderdale ; who calls Dorathie on the one part , and the appearand Heir , and Creditor , of the said Mr. John on the other part . It was alleadged , for the appearand Heir , and Creditors , that they ought to be preferred to the Stock of the Sum , because the Clause , ad opus & usum , could only be understood to be for Dorathies Liferent use , and not in Fee , and as for the Assignation , it was on Death-bed , and so could operat nothing in their prejudice . It was ; answered , for the said Dorathie , that she opponned the Clause . The meaning thereof was no other , but that her Mother and Wilson , were Creditors in trust to the use , and behove of her , and could not be a Liferent Right , because it was provided to her , her Heirs , Executors , and Assigneys ; and as to the Assignation , though on Death-bed , yet it may very well be used , as an Adminacle , to clear the meaning of the Parties .

The Lords found the Clause to carrie the Stock of the Money , and preferred Dorathie , and it being thereafter offered to be proven , that by the Custom of England , such Clauses signifie only the Liferent use . The Lords repelled the alleadgance ; in respect of the Clause , being provided to Dorathies Heirs and Assignies , and in respect of the clearing meaning thereof by the Testament , would not delay , the Process , upon the proving the Custome of England , the matter being clear in the contrair .

William Baillie contra Margaret Henderson and Ianet Iameson . Iuly 1. 1662.

BY Minute of Contract , betwixt Umquhile Iameson , and Baillie , Baillie oblidged himself to Infeft Iameson in a Tenement , for which Iameson oblidged himself to pay three thousand merks of price , Iameson being dead , without any further progress upon the Minute . Baillie pursues the said Margaret Henderson , as Executrix to him , and the said Ianet Iameson , as Heir to pay him the price . It was alleadged , for the Executor , absolvitor , because , the bargain being incompleat , the Heir must perfit it , and dispone the Tenement , and so can only be lyable for the price ; for by the performance of mutual Minute , the Heir will only get the Land , and therefore the Executor should not be lyable for the price , or at least if the Executrix be decerned to pay the price ; The Pursuer must dispone to her the third part of the Tenement in Fee , and the two part to the Heir , she being the only Child , and having Right to the two third parts of the Moveables , which Moveables being exhausted , by the Price of the Tenement ; the Tenement ought to come in place of the price . The Pursuer answered , that he could dispone no otherwise , then according to the Minute , but the Executrix might betake her recourse against the Heir , as she pleased , but both as representing the Defunct , were lyable to him .

The Lords decerned the Executrix to make payment , and would not bring the Debitor , betwixt the Heir and her in this Process , for the third of the Tenement , or for her Terce thereof , but reserved the same , as accords .

Breidy contra Breidy and Muire . Eodem die .

A Contract of Marriage was sustained , both against Principal and Cautioner , albeit subscribed , but by one Nottar , and by one subscribing Witness , there being more Witnesses insert , in respect , that Marriage followed thereupon .

Lord Couper . contra Lord Pitsligo . Iuly 3 1662.

THE Lord Couper alleadging , That being sitting in Parliament , and taking out his Watch , to see what hours it was ; he gave it to my Lord Pitsligo in his hand , and that he refuses to restore it ; therefore craves to be restored , and that he may have the Value of it , pretio affectionis , by his own Oath . The Defender alleadged absolvitor , because the lybell is not relevant , not condescending , quo modo , the Defender is oblidged to restore , for if the Pursuer insist upon his Real Right of the Watch , as proprietar , the Lybel is not relevant ; because he subsumes not that the Defender is possessor , or haver of the Watch , at the time of the Citation , or since , or at least dolo desijt poisidere ; or if the Pursuer insist upon a personal obligation , he ought to subsume , that the Defender borrowed the Watch , or ●ook the custody thereof , and thereby is Personally oblidged to keep and restore . Secondly , albeit the Lybel were relevant , absolvitor , because the Defender offers him to prove , that the Pursuer having put his Watch in his hand , as he conceives , to see what hours it was . The Defender , according to the Ordinar Civillity , they being both sitting in Parliament . The Lord Sinclar putting forth his hand , for a sight of the Watch ; The Defender did , in the Pursuers presence , put it in his hand , without the Pursuers opposition , or contradiction , which must necessarily import his consent , and liberat the Defender . The Pursuer answered , that he did now condescend , that he lent his Watch to the Defender , and that there was betwixt them , Contractus commodati , because the Defender having put forth his hand , signifying his desire to call for the Watch. The Pursuer put the same in his hand , and though there was no words , yet this Contract may be celebrat , by intervention of any signe of the Parties meaning , which here could be no other then that which is Ordinar , to lend the Defender the Watch , to see what hours it was , which importeth the Defenders oblidgment to restore the same . To the second Defense , non relevat , because the Defenders giving of the Watch to the Lord Sinclar , was so subit an Act , that the Pursuer could not prohibite , specially they being sitting in Parliament in the time : and therefore in that Case his silence cannot import a Consent ,

The Lords sustained the Lybel , and repelled the Defence , but would not suffer the price of the Watch to be proven by the Pursuers Oath , but pro ut de jure

Agnes Peacock contra Mathew Baillie . Eodem die .

AGnes Peacock , as Executrix to her Husband , having pursued Mathew Baillie , for payment of a Sum of Money ; he offered to prove payment , and at the Term produced a Discharge , whereupon the Pursuer took Instruments of the Production , and offered to improve the same ; and craved that the Defender might be Ordained to Compear Personally , and bide by the same , and a Term being Assigned for that effect ; and the Pursuer Ordained to consigne a Pand , in case she secumb , in the Improbation ; and an Act Extracted thereupon . The Defender coming from the Country , and appearing Personally . The Pursuer alleadged , the Discharge is null , wanting Witnesses . The Defender alleadged non Competit in this state of the Process , after the exception of Falshood , quae est exceptoinum ultima ; but if the Defender had alleadged the same at the production . The Defender would have replyed , that it was Holographon , and excluded any Improbation .

The Lords found the Exception of nullitie not competent in this state of the Process .

Allison Kello contra Paxtoun . Eodem die .

IN a Process betwixt these Parties , an exception having been proponed . The Lords before answer , Ordained the Proponer to produce the Writs , with certification , that the Defense should be holden as not proponed , in termino certificatione , being craved , an Incident was produced , because the Writs were the Proponders Authors Writs , and in their hands . It was answered , that the Incident was not competent , there being no litiscontestation It was answered , that it was most competent , wherever there was a certification , as in Acts in Reduction , and Improbation .

The Lords found the meaning of such Acts , and Certifications to be only , that the Parties should produce their own Writs , they would make use of , and such of their Authors Writs , as they had the time of the Act , and that the other Partie might have their Oath thereupon , if they pleased , and therefore refused the Incident .

Rentoun of Lambertoun contra Earl of Levin . Eodem die .

LAmbertoun having intented an Improbation of Lands , alleadged , subscribed by his Father in Favours of the Umquhile Countess of Levin , and her Daughters , and others : and having proceeded to the indirect manner Articles of Probation , and Improbation were given in Writ hinc inde , and a full Dispute thereupon , and all such Witnesses examined , as either Partie craved . The Lords having Perused , and Read the whole Process , did , upon the Defenders desire , allow them to be heard viva voce , and both Parties compearing . The Pursuer referred the Dispute to the Lords , without saying any further . And the Defenders having related the Case , and Debated in General , anent the taking away of Writs , by Presumptions and Conjectures , and having entred to Repeat all that was in the written Dispute , and to answer every alleadgance .

The Lords declared , that it was not their meaning , that the Dispute should be repeated , but the material , and weighty points , which the Defender thought of most importance , to have been resumed , and urged shortly ; Referring to the rest the Lords .

Therefore , they Ordained the Defenders , to order their alleadgences , as they might , for all that they had to say betwixt ten and twelve , the nixt day , without any further , unlesse the Pursuer answered .

Thomson contra Mackitrick . Eodem die .

THomson and Mackitrick having Apprysed some Tenements in Drumfriese , Mackitrick the first Appryser insists for Mails and Duties . Thomson alleadged , Mackitrick's Seasin was null , as being within Burgh Royal , and not given by the Baillies , and Town Clerk of the Burgh , conform to the Act of Parliament . The Pursuer answered , that his Seasin was given by the Provost , and by a Nottar , whom he imployed as Town Clerk ; not only in that , but in several other Acts : and that because the Town Clerk was excluded from his Office , for not taking of the Tender ; and upon the same accompt there was no Baillie ; so that to compleat this Legal Diligence , he was necessitat to take Infeftment by the Provost , which is sufficient in such Cases ; because , though the Act of Parliament mention the Baillies of the Burgh , that it is in opposition to Baillies in that part , but cannot be understood in opposition to the Provost , who has Major●m Iurisdictionem , quia majori inest minus , and offers them to prove , that he was Provost , at least habitus & reputatus Provost and that he did imploy his Nottar , as Town Clerk for the time .

The Lords sustained the alleadgeance to prefer Mackitrick .

The Executors Mr. Iames Fairly Minister of Leswald . contra the Parochiners . Iuly 5. 1662.

THE Executors of Mr. Iames Fairly , having obtained Decreet , before the Comissaries , against the Parochiners , for the Ann , as being the hail Year , 1658. In respect the Minister died in February , in the Year 1658. The Decreet was Suspended , on this Reason , that the Ann could only be half a Year ; seeing the Minister died before the Sowing of the Cropt , or Whitsonday ; because , if a Minister serve after Whitsonday , he has the half of that years Stipend , albeit he be Transported , or Deposed ; otherwayes , if a Minister should serve the whole Year till Michalmass day , and then be Transported , or Deposed , he should get nothing ; so that the Ann being half a years Stipend , more then the Minister served for , he having only survived till Michalmes 1657. Has only the right to the Michalmes proprio jurae , and half a Year thereafter , as the Ann. The Charger answered , That in Teinds and Stipends , there are not two Terms , but Michalmes for all , and therefore , if the Incumbent be disposed or transported before Michalmes , he has nothing that Year , but if he die after Michalmes any time before the beginning of the nixt Year proprio jure , he has the Year he died in , and the half of the next , as his Ann , but if he live till Ianuary in the year ensuing , he has that whole year , as his Ann.

Which the Lords found relevant ; and therefore the Lords found the Letters orderly proceeded .

Duncan Drummond contra Colline Campbel . Eodem die .

DVncan Drummond pursues Colline Campbel , for payment of a Debt of his Fathers , because in a Writ betwixt his Father and him . The Father had Disponed all his moveables to him , and he had undertaken his Fathers Debt , whereby the Pursuer , as Creditor , had interest to pursue him , to pay this Debt . The Defender having alleadged , that the Band and Disposition was never a delivered Evident , either to the Father or to the Son ; but two blanks subscribed by them , both were put in the hands of a Nottar ; to fill up the Bond and Disposition ; but before delivery , both Parties resyled , and desired the Nottar to Cancell and Destroy them , yet Eight or Nine Years after the Nottar gave them up to this Pursuer ; and neither to the Father nor to the Son , and the Question being how this should be proven .

The Lords before answer Ordained the Nottar , and Witnesses insert to be examined ex Officio , which being done their Testimonies proved , as is alleadged before . Then the Question was in jure , whether the Depositation of Writs could be proven any other way , then by the Oath of the Partie in whose favours the Writs were conceived , he having the same in his hands .

The Lords found , that seeing these two Writs were not produced by the Father , nor the Son , by and to whom they were mutually granted , but by a third Partie , in whose favours a Clause therein was conceived , in that case , the deposition probable by the Writer and Witnesses insert , and by the saids Testimonies found the Writs null.

Robert Bones . contra Barclay of Iohnstoun . Iuly 9. 1662.

RObert Bones having arrested certain Goods , and Bestial , as belonging to Iohn Wood , his Debitor , in the hands of Barclay ; pursues for making the same forthcoming . The Defender alleadged absolvitor , because the Goods Lybelled the time of the Arrestment , were the Defender proper Goods , Disponed to him , by the said Iohn Wood , for anterior Rests and Debts , and delivered also before the Arrestment . It was Replyed , The Defense ought to be repelled ; because Wood the Disponer was Rebell , and at the Horn , before the delivery of the Goods , at the Pursuers instance , and whereby the Tradition being after the Horning , the Disposition is null , as being incompleat before the Horning , and after the Horning the Rebel could do nothing to prejudge the KING , or his Donatar , or the Pursuer , for the Debt , whereupon he was denuded , which by the Act of Parliament one thousand six hundred twenty one , affects the Escheat Goods ubicunque . The Defender answered , That the Reply is not Relevant , unless it were alleadged , that the Horning had been before the Disposition ; for it is lawful for Creditors , either to Poynd , Arrest or take Dispositions of their Debitors Goods though Rebel , being for Debts anterior to the Horning , if the Disposition and Delivery be prior to Declarator , neither can the Act of Parliament , one thousand six hundred twenty one , against Dispositions , in defraud of Creditors operat here ; because the Disposition is anterior to the Horning , and for an onerous cause .

The Lords found the Defense Relevant , notwithstanding the Reply .

Laird of Lamertoun contra Hume of Kaimes . Iuly 10. 1662.

HOom of Kaimes being Infeft upon an Appryzing of the Lands of Northfield , led against Lamertoun , pursues the Tennents for Mails and Duties , and obtains Decreet , which was Suspended , and Reduction thereof raised on this Reason , that it was spreta authoritate judicis , there being an Advocation judicially produced , before the Sheriff , before pronouncing , at least before the Extracting of this Decreet , in so far as the Suspender came to the Sheriff Court , at the ordinar time of the Court Day , at eleven hours , and produced the Advocation , but the Sheriff had fitten down that Day contrair his Custom , at ten hours , and had pronounced the Decreet before eleven hours . The Charger answered non Relevat , that the Advocation was produced before Extract , not being before Sentence pronounced , because albeit inferiour Judges are accustomed sometimes to stop their own Decreets , after they are pronounced , before Extracting , yet sententia definitiva , est ultimus actus judicis , and the Extract is but the Clerks part , so that it can be no contempt , albeit the Judge would not prohibite the Extract , and as to the● other Member , that the Sheriff sat his Court an hour before the ordinar time , non Relevat , unless he did it of purpose , to anticipat this Advocation .

The Lord● found the first member , of the Reason , that the Advocation was produced before Extract , after Sentence , non Relevat ; and as to the other member , they found it relevant , as it is circumstantiat , to infer that it was done of purpose to anticipat the Advocation , without necessity to prove , otherwayes the purpose , and in that case declared , if the same were proven , they would turn the Decreet in a Libel .

Iohn Ker contra Ker of Fernilee and others . Eodem die .

IOhn Ker having granted a Bond , whereupon he being Charged to Enter Heir to several persons his Predecessors , and having renounced , their Lands were adjudged , John took Assignation to the Adjudication himself , and pursues the Defenders for exhibition of the Rights and Evidents of the Lands , and Delivery thereof . The Defender alleadged absolvitor : First , Because the pursuit being upon the Pursuers own Bond , now again Assigned to himself , confusione tollitur obligatio .

The Lords Repelled this Defense .

Secondly , absolvitor , because the Pursuer can have no Interest upon these Rights proceeding against him , as appearand Heir to these predecessors , and now assigned to him , because there were other appearand Heirs , specially condescended on , nearer of Blood . The Pursuer answered , non Relevat , to take away his Infeftment , which behoved to be Reduced . Secondly , Non competit to the Defenders , unless these nearer appearand Heirs , were compearing for their Interest . The Defender Replyed , that the Infeftments having obtained no Possession , and having proceeded only upon a Charge to Enter Heir , against the Pursuer , by Collusion : It was competent by Exception , seing there was no Service , nor Possession , nor any thing done that the nearer Heirs were oblidged to know , and it was also competent to the Defenders , not to deliver the Writs to any having no Right thereto , they being lyable to deliver them to the nearest Heir of the true owner .

The Lords Repelled this Defense against the Exhibition , reserving it to the Delivery , in which they found it competent to the nearer appearing Heirs , without Reduction .

Rentoun of Lamertoun contra Earl of Levin and Alexander Kennedy . July 11. 1662.

JOhn Rentoun of Lamertoun , as Heir to his Father , having charged the Deceast Earl of Levin , for the Sum of due by him to umquhil Lamertoun : The Earl suspended upon Compensation , by six Bonds granted by umquhil Lamertoun , to the umquhil Countess of Levin , four of them to her self ; and after her Decease to her Daughters , and two of them blank , in the Creditors name , which being done stante Matrimonio , by this Lady , did belong to her Husband jure mariti , and not to her or his Daughters . These Bonds were produced out of the hands of Alexander Kennedy , sometime Master Porter of the Castle of Edinburgh , who declared that he had the foresaid six Bonds in Trust from the umquhil Countess , and the Laird of Lamertoun , in Anno 1649. Levin being then Captain of the Castle of Edinburgh , Lambertoun Constable , and the said Alexander , Porter , and produced a Paper of Trust , subscribed by Lambertoun and my Lady , bearing , that the Bonds were put in Alexander 's hands , as a faithful Person , whom both Trusted , to be keeped till after the Ladyes Death , and then delivered , according to her direction : against which Writes , Lambertoun raised Improbation , and Alexander Kennedy abode by the same , and the Earl of Levin declared , he made use of them upon the ground foresaid , in his Improbation ; The six Bonds being written by Alexander Kennedy and Iames Rule who is dead , and the Witnesses being George Watson , Spittel and Young , and in some of them Alexander himself , all being dead but Alexander the Producer ; the direct manner of Improbation thereof ceassed ; and therefore they proceed to the indirect manner , and give in many Articles of Improbation , and the Earles Articles of Probation . The Relevancy of which being Dispute , to quadruplyes in Write , and all Persons that either Parties desired , being examined hinc inde , and their Testimonies published to either Party , and they having thereupon Dispute , both as to the Relevancy and Probation , in Write , and being heard at last viva voce .

The Lords proceeded to Advise the Cause .

The weight of the whole matter lay in these Particulars mainly ; First , For astriction of the Writs ; the said Paper of Trust holding in it , two living Witnesses and one dead , being true , the Bonds related therein could not be false . This Paper could not be Improven indirectly , because the direct manner was competent by two living Witnesses , whereof the one Deponed , that the Subscription was like his Subscription , as he Subscribed at that time , being young , and the third Witness being dead , proves . It was answered , that the Witnesses insert , proved not ; because comparatione literarum , Crawford the Defunct's Subscription , was altogether unlike his true Subscription produced ; Learmont sayes his Subscription was only like his : and though Kill sayes it was his Subscription , yet none of them Depones to have seen it Subscribed by any Body , or by any Witness , nor to know any thing of the time , place , or truth of the matter contained in the Writs , being but an Evidence to keep the Witnesses in remembrance , either of the Matter or of the Subscription , of the Principal or themselves , albeit they need not be proven here as in England , by the Witnesses insert : Yet in the case of Improbation , if the Witnesses prove nothing of the Fact or Subscription , as remembring that they or the Party Subscribed , but only Deponing that it is their Subscription , which can import no more of certain knowledge , then that it is like their Subscription , seeing none can swear that it may not be feigned so like that they cannot know it : and albeit that would be sufficient , where nothing is in the contrair ; Yet where there is strong presumption in the contrair , as the Writ not being in the Parties hands , but in the hand of a third Party , malae famae , and who hath at least betrayed his Trust , never having made these Bonds known , till six or seven years after the Countess of Levins Death ; and then offering to sell some of them to others , and with all the Paper of Trust , the Body thereof being written with one hand , and the filling up of the Witnesses with another , which no body hath , or can condescend upon , nor are Designed therein ; so the same being null by Act of Parliament , cannot sufficiently astruct the truth of the other Bonds , being in themselves suspect .

The Lords found the Paper of Trust not sufficiently to astruct , nor the Testimonies not to prove it sufficient , in respect of the grounds foresaid being instructed , and the many presumptions against these Writs . Therefore they improved the said pretended Paper of Trust.

There was further produced for astructing the Bonds , two Holographs alleadged , Written and Subscribed by Lamertouns owns hand , relative to the Bonds and Trust ; and for proving these were Holograph , they produced a Holograph Accompt Book of Lambertouns , and six Witnesses , of whom three or four were without exception , and the whole Deponed that they truly believed that the Holographs were Lamertouns hand , and Lambertoun and the Lady Levins Subscriptions . The question then was , whether these Papers were so proven to be Holograph , that they did sufficiently astrict the Bonds , notwithstanding all the grounds instructed against them .

The Lords found Negative , upon this consideration , that when the Probation of Holograph is by Witness , who saw the Holograph Writ , Written and Subscribed , albeit they be not instruct , it is a full probation , admitting no contrary probation , but when it is only comparatione literarum ; or by Witnesses , Deponing that they believe , or that positively it is the hand writ of the Party , that can import no more , but that it is so like , that it is undecernable for no man who saw it not written , can positively swear with knowledge , that it is impossible to fenzie the hand so like , that it is undecernable , and therefore holograph so proven , admits a stronger contrary Probation ; and therefore the Lords found that the Evidents against the Bonds were stronger nor this Probation of holograph .

There was also produced three Contracts betwixt umquhil Lambertoun and Kennedy at Striveling , upon the ninth of August 1651. by the last of them , Kennedy was oblieged to deliver Lambertoun the Bonds for such several Sums , he obtaining the Lady Levins consent , of all these the Writer and Witnesses were dead , and the Date proven to be false .

In this Process the Lords having considered all the indirect Articles of the Improbation , in respect that these Writs in question were never in the alleadged Creditors hands ; and that there was not one Witness that did Depone , that either they remembred to have Subscribed any of these Writs themselves , or that they saw either the Parties , or any other of the Witnesses Subscribe , or any thing communed , done or acknowledged by either Party , contained in the Writs , and that the Subscription of Watson , one of the Witnesses in all the Bonds , was by comparison with other contraverse Writs , about the same time , altogether unlike his Subscription , and that the Word Witnesses adjoyned to the Subscription , of all the Witnesses , did appear to be so like , as written with one hand .

They found sufficient ground to Improve the foresaids writs , besides many pregnant presumptions from Kennedies inclination and carriage ; which being extrinsick were accounted of less value , and yet the astructions aforesaid , and presumptions on that part were so strong , that several of the Lords were unclear simply , to find the Bonds false , but not authentick probative writs .

William Wachope contra Laird of Niddrie . Iuly 15. 1662.

THe said William Wachope pursues Niddrie his Brother , to pay him eleven pound Sterling for many years , which he promised to pay him by a missive Letter produced , bearing , a Postscript of that nature . The Defender alleadged absolvitor ; First , because the Postscript is not Subscribed , and so no sufficient Instrument to prove . Secondly , there is no ground for eleven pound Sterling yearly therein , because the words are , I have sent you five pound ten shillings Sterling now , and I have sent you five pound ten shillings Sterling at Whitsonday , and you shall have as much as long as you live , if you carry your self as ye do now ; which words , as long as ye live , cannot be understood Termly but yearly , nor can relate to both the five pound ten shillings Sterling , but only the last , to which is adjected Donations , being of strick Interpretations . Thirdly , The words foresaid cannot import a Promise , but only a Declaration of the Defenders resolution to continue the same free kindness to his Brother ; which resolution he may recal at any time . Fourthly , The Promise is conditional , quamdiu se bene gesserit ; wherefore the Defender can be the only Interpreter ; and declares , that since his Brother hath not carried himself so well , the meaning of such words being only this , If so long as in my opinion you carry your self so , and not according to the opinion of any other . The Pursuer to the first Defense opponed the Letter which is holograph , and albeit the Postscript be after the Subscription , yet seeing it can have no other construction , then to be done as a part of the Letter , and not as other unsubscribed Papers , whereanent it is presumed , the Writer changed his mind and left them imperfect , and unsubscribed , which cannot be here , seeing the Letter was sent . To the second , he opponed the terms of the Letter● To the third , alleadged omne verbum de ore fideli cadit in debitum ; and by these words , can be understood nothing else , but a Promise , which is ordinarly made in such terms .

The Lords found not the first Defense Relevant per se , but found the remnant Defenses Relevant , and assoilzied .

William Swintoun contra Iuly 18. 1662.

THe said William Swintoun having used Inhibition against at the Cross where he lived , she falls Heir thereafter to another Person , and immediatly Dispones that Persons Lands , whereupon William raised Reduction of that Right , ex capite inhibitionis . The Defender alleadged absolvitor , because the Lands D●poned , ly not within the Shire where the Inhibition was used : Therefore replyed , the Land fell to the Inhibit Person after the Inhibition ; and the Pursuer did all he was oblieged to do , or could do till that time : which if it was not sufficient , Creditors will be at a great loss , as to Lands acquired or succeeded in alter Inhibitions .

The Lords found the Defense Relevant , that the Inhibition could not extend to Lands in other Shires , b●falling to the Inhibit after quocunque titulo ; but that the Pursuer ought to have Inhibit de novo , or published and Registrat in that Shire , seeing all Parties count themselves secure , if no Inhibitions be Registrat in the Shire where the Lands ly , without inquiring further .

Lord Frazer contra Laird of Phillorth . Eodem die .

THe Lord Frazer pursues Declarator of Property of the Barony of Cairnbuilg against the Laird of Phillorth , as being Infeft as Heir to his Father , who was Infeft as heir to his Grand-father , who was Infeft upon the Resignation of Frazer of Doors ; and also upon the Resignation of the Laird of Pitsligo , who was Infeft upon an Appryzing led against Doors ; and also as being Infeft upon an Appryzing , at the instance of one Henderson , led against Doors , and declared that he insisted primo loco , upon the two first Rights , flowing from Doors and Pitsligo . The Defender alleadged Absolvitor , because the Defender in an Improbation against the Pursuer and his Father , obtained Certification against Doors Seasine ; so that it being now improven , all the Rights Libelled on , falls in consequentiam , because Doors is the common Author to them all : and if he had no real Right , all their Rights are a non habente potestatem ; so that now the Pursuer has no more in his Person , but a Disposition made by Phillorth's Grand-father to Doors , and a Charter following thereupon , and is in the same case , as if Doors upon that ground were craving declarator of Property , which he could not do , nor would the Lords sustain it , albeit there were no Defender ; because that can be no Right of Property , where there is no Seasine . The Pursuer answered : 1. That the Defense is no ways Relevant , nor is the Pursuer in the case of a Declarator , upon a Disposition or Charter without a Seasine , because he produces a progress of Infeftments , and is not oblieged hoc ordine , to Dispute Doors his Authors Rights , as being a non habente potestatem , which is only competent by way of Reduction ; some representing Doors , his Author being called . 2ly . The Defense is no way competent to this Defender , unless he alleadge upon a better Right then the Pursuers ; for the Pursuer hath done all that is requisit to instruct his Declarator , by production of his Infeftments , and his authors Rights are presumed , and need not be instructed ; and albeit the Defender be called , yet he cannot quarrel the Pursuers Authors Right , or hinder his Declarator , unless he alleadge upon a more valide Right in his own Person . 3ly . The Defense ought to be Repelled , as proponed by this Defender ; because he represents Frazer of Phillorth his Grand-father , who Disponed the Lands in question to Doors , and was oblieged to infeft him , and did de facto resign in the Kings hands , in his favour , and so personally objection , umquhil Phillorth , Doors Author would be for ever excluded from objecting against Doors Right , which flowed from him ; so neither can the Defender who represents him object against the Pursuer , who is Successor in Door 's Rights . The Defender answered , that being called , albeit he had no Right in his Person , he might propone a Defense upon a Nullity in the Pursuers Right , viz. that it is a non habente potesta●m● which is very competent here by exception . This Decla●ator ●eing judicium petitorium , wherein he may well repeat this Defense , without necessi●y to call Doors , because Doors being called in the Improbation , all Infeftments in his Person are Improven for not production : and so the Reason is instantly verified ; and albeit he were Successor to his Grand-father ; ( which he denys ) yet he may well alleadge that any Right flowing from his Grand-Father is personal and incompleat , and can be no ground of Declarator of Property .

The Lords repelled the Defenses , and found it not competent to the Defender to quarrel the Pursuers Authors Right , unless he had a better Right .

Skeen contra Lumsdean . Iuly 19. 1662.

SKeen having Charged Alexander Lumsdean , upon a Bond granted by Mr. Thomas Lumsdean as principal , and the said Alexander as Cautioner , he Suspends on this Reason , that the cause of the Bond , was Bills of Exchange , drawn by Verhage upon Kezar in Camphire , to be payed to Skeen , or his Order ; which Bills Skeen ordered to be payed to Mr. Thomas Lumsdean's Wife ; and Mr. Thomas granted the Bond charged on for the saids Bills ; which Bills were protested upon Kezar's not paying of the Bills , as the Protest bears : To which protested Bills Mr. Thomas Lumsdean assigned the Suspender , and whereupon he now alleadges that he must have allowance of the Bills protested , being the cause of the Bond , and therefore Skeen himself is lyable for the Bills which must compence the Charger . The Pursuer answered , that the Reason ought to be repelled , because he offered him to prove , that albeit the bills were protested , for not payment , by Kezar , on whom they were drawn ; yet Mr. Thomas Lumsdean having gone back to Verhage who drew them , Verhage payed Mr. Thomas , and that before the Intimation of the Suspenders Assignation . 2ly . That Mr. Thomas Lumsdean being Factor in Camphire , in his Factor Book , upon the 109. page thereof , there are four posts of Payment payed by the said Verhage to Mr. Thomas Lumsdean , at diverse times , conform to the Magistrates of Camphire their report , upon the Lords Commission , bearing that the said Factors Compt Book is Authentick and unvitiat ; and that Verhage who drew the Bills , and Kezar upon whom they were drawn , had both sworn before them , that Verhage had payed the same to Lumsdean , so the question was upon the manner of probation ; whereanent the Suspender alleadged , 1. That Compt Books not being subscribed , were not probative Writs , even against the Merchant himself . 2ly . That at least they cannot prove against the Suspender his Assigney . 3ly . That they could be no better then Holograph Discharges by the Cedent , which cannot instruct their own Date against the Assigney , and so cannot prove the same to have been before the Intimation , as for the Testimonies of Verhage and Kezar , their Testimonies cannot take away Writs and yet are suspected being both Debitors for the Bills , and that it was not instructed who write the Book , whether Lumsdean himself , or his ordinar Book Keeper .

The Lords found the Probation sufficient against the Assigney ; the Charger also proving that the Books were written by Lumsdean himself , or by his ordinar Book-keeper , and thought that the Book proved against this Assigney , being Mr. Thomas own Brother , and no suspition he would wrong him ; and there being four several Posts of payment , in several Months , besides the Depositions of the foresaids persons .

Fiddes contra Iack : Iuly 19 : 1662.

FIddes pursues Iack for payment of a Bond of 500. merks , which Iack acknowledged to have received in custody form Fiddes , to be keeped as his own ; Iack alleadged that he had but the custody , and did conform to his Obligation , he sent the Money to Dundee , in Anno 1650. where he lost both it and much more of his own , at the plunder of Dundee . The Pursuer answered , no way granting that his Money was lost at Dundee , yet it ought not to liberat the Defender ; because he oft-times required and desired the Defender to pay him his Money before the plundring of Dundee , and seing he did not then give it , it was lost upon the Defenders hazard . The Defender answered , that any requisition was made , was but verbal without Instrument , and that it was made to the Defender , being in Edinburgh after this Money : and the Defenders whole means was sent to Dundee for safety , and that at the time of any such desire , he shew the Pursuer so , and bid him send for it to Dundee , when he pleased he should have it .

The Lords before answer , having ordained Witnesses to be examined , hinc inde , and having advised the same , found , that the Pursuer did desire his Money , and at that same time the Defender told him it was at Dundee , and said he might have it when the pleased to send for it ; and Witnesses also proved that he was at Dundee , and was in esteem as a man of good means then , and that he was there a●the plunder of Dundee , and ever since was in a poor miserable condition ; and some of them deponed that he had a considerable sum of Money , far above this in question there .

The Question was , whether this probation was sufficient to assoilzie , albeit none of the Witnesses did particularly Depone , that they knew the Pursuers Money to have been at Dundee , and lost there .

T●e Lords found that the probation was sufficient , the Pursuer giving his oath in Supplement , that it was there , and lost there ; for they considered , that at the time of the Pursuers Requisition , the Witnesses proved , the Defender declared it was there ; and that ex natura rei , it was hard to prove particularly , this Mony being a Fungible , to have been lost there , but that it behoved to be presumed so , seing the man lost his whole means there , and hath been poor ever since .

Montgomery of contra Eodem die .

MR. William Wallace having obtained a Disposition of the Lands of Hagburn from Thomas Hunter , he gave a Back-bond oblieging him to sell the same at the best avail , and as a part of the price to pay a Bond of Provision to Thoma's Sisters and Brother , granted by their Father , and having retained his own Sums , and such as he was Cautioner for , was oblieged to count for the rest ; and being first pursued before the Englishes , and now before the Lords , he was decerned to take the Lands at sixteen years purchase , and a half , and to count accordingly , It was alleadged ; he could not have allowance of the sums payed to the Brother and Sister , because these could not exclude lawful Creditors . It was answered for Mr. William , he had payed bona fide a part , and had given Bond for the rest , and could not now be called in question . It was answered , he was in mala fide , because the payment was made after intenting of the Reduction against his Right , at the pursuers Authors Instance . Mr. William answered non Relevat , unless there had been a Reason Libelled in that Reduction against these Bonds . The Pursuer answered it was sufficient , that Reduction was used against the whole Right , to which any Reason might be added .

The Lords found this alleadgence not Relevent to put Mr. William in mala fide , unless there had been a special Reason of Reduction filled up , and shown to Mr. William against these Bonds particularly .

Margaret Anderson and Iohn Elphingstoun contra Mary Wachop . Iuly 22. 1662.

MArgaret Anderson and Iohn Elphingstoun , as heir to Anderson , who were the two Daughters of umquhil Mr. David Anderson of Hills , pursues Mary Wachop his Relict and Executrix , to fulfil an Article of his Contract of Marriage , bearing , That if there were no Heirs-male of the Marriage , he band and oblieged him and his Heirs-male and Successors whatsomever , to pay to the Daughters of the Marriage 3000. merks , and craved that the Executrix as representing their Father , might pay the same . The Defender alleadged Absolvitor , because it is clear by the Clausses of the Contract , that the Father did not bind himself simply , or himself and his Heirs , but that he bound only himself and his Heirs-male , which is the more clear that the Narrative of that Clause bears , because his Estate is provided to his Heirs-male . The Pursuer answered , he opponed the Clause , by which he did not only obliege his Heirs-male , but himself and his Heirs-male ; and so in oblieging himself , he hath oblieged all that Represent him , and he might have been pursued in his own lifetime , if his Daughters had come to the age appointed by the provision . 2ly . He has not only oblieged himself and his Heirs-male , but his Successors whatsomever , and therefore his Executors .

The Lords found that by the Tenor of the Clause , and Narrative thereof , the Defuncts meaning was chiefly to obliege his Heir-male , and albeit Successors whatsomever was added ; yet by the Narrative and the order of the Words , they found the Heir-male was first burdened , and behoved first to be discussed . Therefore ordained the Defender to condescend what the Heir-male had to succeed to , and if he was not Entered Heir-male , and had nothing to succeed to as Heir-male , they thought the Defender would be lyable .

William Montgomery contra Theoder Montgomery . Eodem die .

WIlliam Montgomery as Donator to the Escheat of Theoder Montgomery● pursues a general and special Declarator in on Libel ; and insists , first , in the general . The Defender alleadges Absolvitor , because the Horning is null , the Denunciation being at the Cross of Edinburgh where the Defender had not his Domicile . The Pursuer opponed the Horning standing , bearing , the Defender to dwell in Edinburgh , and the Horning could not be taken away by Exception , alibi , not instantly veryfied .

The Lords Repelled the Defense but prejudice of Reduction thereupon .

Secondly , Absolvitor from the Rents and Duties of the Lands of Whyteslaid in time coming , because these fell not under single Escheat . It was Replyed , the Defense ought to be Repelled , because the jus mariti , falls under single Escheat of the Husband , and carrys with it per consequence the Liferent of the Wife .

The Lords was clear that the Repl● was Relevant ; but the Defense not being competent , in the general Declarator , which was first insisted in , they give no Interlocutor on the Reply .

Lord Frazer contra Phillorth . Iuly 23. 1662.

IN the Declarator of Property of the Barony of Cairnbulg , at the Instance of the Lord Frazer , against the Laird of Phillorth . It was alleadged for the Defender Absolvitor , because the Pursuers Father and Grand fathers Infeftment is upon the Resignation of Frazer of Doors , Ita est , Frazer of Doors had no real Right in his Person , never having been Seased , at least there is Certification granted against Doors Seasin , in the Improbation at the I●stance of the Defender , against the Pursuer and his Father ; so that Doors having no reall Right , his Disposition , Instrument of Resignation , and C●arter granted by the King , flowing upon the Resignation of the Laird of Phillorth and the Lord Lovit , who had Right to Pttsligo's Appryzing , of the hail Estate of Phillorth , can give no Right to declare the Property , especially against the Defenders , who hath a real Right by Infeftment , flowing from Phillorth his Goodsyre , by Resignation , and flowing from the Lord Lovit , which albeit posterior , yet having the first Infeftment , is the first and only Right . The Pursuer answered , the Defense ought to be Repelled , because any Right the Defender hath , is from his own Grand-Father , to whom he was alioqui successurus ; and thereby the Defender is Successor titulo lucrativo , to his Grand-father , the common Author , after the Disposition granted to Doors , and as umquhil Phillorth Doors Author , personali objectione would be excluded from opposing Doors Right of Property ; which Right he had Disponed to Doors● and was oblieged to warrand ; no more can the Defender , ( who by this same Right he Defends , being successor Lucrative to his Grand-Father ) be heard to exclude the Pursuer , who is Successor to Doors . 2ly . Albeit there be no Seasine , yet umquhil Phillorth and Lovit were fully denuded in favours of Doors , by the Resignation made in the Kings hands , and Charter conform , after which any Right granted by them to this Defender , is a non ha●ente potestatem . 3ly . Any Right the Defender hath flowing from the Lord Lovit cannot defend him , because it was but an Appryzing against Phillorth the common Author : and it is offered to be proven that the Appryzing was satisfied within the Legal , in so far as the Lands of Innernorth were Disponed by Phillorth and Lovit joyntly , to Frazer of Doors for 20000. merks , and the Lands of Innerallothy were Disponed by them to Lovits own Sons , irredeemable the price of which Lands being 54000. merks , was the sum appointed for satisfaction of the Appryzing betwixt the saids Parties , and so as to the Lands of Cairnbulg , and remnant Lands appryzed , the appryzing is extinct . The Defender answered to the first , that he is not Successor titulo lucrativo to his Goodsyre , because the time of the Disposition by his Goodsyre to him , and also the time of his Goodsyres death , his Father was alive , and served Heir to his Goodsyre . 2ly . There was no Right in his Goodsyre when he Disponed ; but all the Right was in the Lord Lovit by Pits●igoes Appryzing ; neither was Lovit denuded by the Resignation or Charter without Seasine , so but that the second Resignation with the first Infeftment is preferable . 3ly . Satisfaction of the Appryzing as it is alleadged , is not Relevant , unless it be by Intromission with the Mails and Duties of the Lands Appryzed , conform to the Act of Parliament 1621. but no other payment or satisfaction by the Debitor is sufficient to take away an Infeftment , contra singularem successurum .

The Lords Repelled the Defense , founded upon Lovits Appryzing , in respect of the Reply of satisfaction thereof , and found no necessity to alleadge , that the Person having Right to the Appryzing , was otherways denuded , the by acknowledgement of payment or satisfaction , and that there needed no form●● grant ●f Redemption or Renunciation , Registrat conform to the Act of Parliam●n anent the Registration of Seasings , Reversions , &c. w●ich the Lords found only to extend to Wodsets , properly so called , and not to Appry●zings ; neither yet to an Infeftment for Relief , whereunto the Rents were not to be only for the Annualrent of the sum , but to satisfie the Principal , and therefore seing the Lords found that the only Right was in the Defenders Grand-father , and that he Disponed to the Defender , that he could be in no better case then his Grand-father , as to the Disposition granted by his Grand-father without a Cause Onerous , being after the Disposition of the same Lands , by that same Grand-father to the Pursuers Author , but found it not necessar to determine the Case of lucrative Successor , as it was here stated to make the Successor lyable to all his Predecessors Debts :

Iames Birsbine contra Iohn Monteith . Iuly 24. 1662.

JAmes Birsbine pursues Iohn Monteith , as Cautioner for Iohn Birsbine , who was Executor to the Pursuers Father , for payment of the Pursuers Legacy . The Defender alleadged no Processe , because the Executor himself is not Discussed , and the Cautioner is only lyable subsidiary : The Pursuer Replyed , there is a Decreet obtained against the Executor produced , and there was no further Discussing requisite , because he is broken , and the Pursuer is content to assign the Debt to the Cautioner . The Defender answered non Relevat , for a Decreet is no sufficient Discussing , but there must be Registrat Horning at least , albeit the Executor had neither Lands nor Moveables to Poind or Apprise .

The Lords sustained the Defense , and found the Reply not Relevant , till the Registrate Horning were produced .

Alexander Shed contra Robert Gordon and David Kill . Eodem die .

ALexander Shed pursues Robert Gordon Pupil , as lawfully Charged to enter Heir to his Father , to pay a Debt of his Fathers , compears David Kill the Pupils Uncle , who was Tutor nominat to him , but refused to accept , and therefore shunned to propone any Defense in the Pupils own name● least it should be an acceptance , or gestio ; and therefore produced a Bond of the Defuncts , and as Creditor alleadged that he would not suffer his Debitors Estate to be affected in his prejudice , and offered him to prove , that the Debt pursued on was satisfied . The Question was , whether he had Interest as Creditor to propone this Defense .

The Lords having considered the Case amongst themselves , found that where Creditors in this manner compeared , it is not cnmpetent to allow their Defense , because it may delay the other Creditors pursuing , so that a third Creditor may be preferred in Diligence ; and therefore they Repelled the Defense hoc loco , but declared that it should be receivable against the Pursuer , whenever he should pursue for affecting any of the Defuncts Means or Estate , in the same case as now .

Mr. Patrick Weyms contra Mr. Iames Cunninghame . Eodem die .

MR. Patrick Weyms having an Order of Parliament for a Terms vacant Stipend of the Paroch of Leswade , Mr. Iames Cunninghame alleadged that Terms Stipend was not vacand , but belonged to him as incumbent , viz. Whitsonday 1659. because he was admitted before Michalmess 1659 , and shortly after Whitsonday ; and so the legal Terms of Stipends not being divisable at two Terms , but at Michalmess joyntly , he being incumbent before Michalmess , hath the whole year .

The Lords Repelled this alleadgence , but preferred Weyms , and found that Ministers had Right to their Stipend Termly , and if he entered before Whitsonday , he had Right to the whole year , and if after Whitsonday , and before Michalmess , but to the half :

Barbara Naesmith . contra Iohn Iaffray . Iuly 25. 1662.

BArbara Naesmith pursues Iohn Iaffray her Son , as Heir and Executor to his Father , for payment to her of her umquhil Husbands hail Means and Eschaeat , by vertue of a Missive Letter , written by the Defunct her Sponse , bearing , that if he happen to die before his return , that his Wife should do with what he had as she pleased , that he thought it too little for her ; but he desired her to Discharge a 1000. Pounds or a 1000. Merks to his Brother Alexander , and 500. Merks to his Sister Magdalen , if she follow her advice .

The Lords having formerly found , that this Letter was donatio mortis causa , or a Legacy , and so could only affect Deads part .

It was now further alleadged , that by the pursuers Contract of Marriage , he was oblieged to imploy 6000. merks on Land , or Annualrent to him and her , and the longest liver of them two , and to the Bairns to be gotten betwixt them , which failzing his Heirs . This Obliegement to imploy being a Debt , the Moveables must be lyable for it primo loco , and the Pursuer can only have Deads part of the remainder of free Goods . The Pursuer answered , that this Destination being on Heretable Clauses , cannot affect the Moveables , 2ly . The Bairns cannot have Right thereto till they be Heirs , and so they will be both Debitors and Creditors , and the Obligation will be taken away by Confusion .

The Lords found this Defense Relevant notwithstanding of the Answer ; and that albeit the Clause was Heretable , quoad creditorem , yet it was Moveable quoad debitorem , and so behoved to be performed out of the Defuncts Moveables , and that the entring thereto , would not take away the Obliegement by Confusion● more then one paying a moveable Debt , wherein he is both Debitor and Creditor ; yet he will have action of Relief against the Executors out of the Moveables .

It was further alleadged , that in the said Missive there are two particular Legacies left to the Defuncts Brother and Sisters , which must abate the general Legacy . The Pursuer answered , that both Legacies were only left thus , I wish , &c. which cannot be obligator , nor constitute an effectual Legacy ; but is only a desire or recommendation left in the Pursuers option : and for Magdalens Legacy , it was conditional , the following the Pursuers advice , which she did not , but left her contrair her will . The Defenders answered , that verba optativa were sufficient in Legacies , at least were sufficient to make a fidi commissari Legacy ; because all fidi commissis , either for restoring the Inheritance , or for restoring Legacies , in the Civil Law were in such Terms ; and albeit such words would not be sufficient , intor vivos , yet favore ultimo voluntatis , where the Defuncts will , howsoever manifested , is the Rule , and so is most extended , such words are sufficient , as to the condition in Magdalens Legacy , it cannot be understood of being under the Pursuers command all her life , and so can only be meaned , if Magdalen miscarry contrair to the Pursuers advice , in some considerable matter of her carriage ; and however , it is not a suspensitive condition , hindring the payment of the Legacy , but oblieging the Legatar thereafter .

The Lords found the Legacies constitute , and in terms for said valid ; and as for Magdalens Legacy , declared , that in case Magdalen miscarried , and took not the Pursuers Advice , that she should be lyable to refound the Legacy to the Pursuer , but would not put her to find Caution for that effect , the condition being so general .

Katharin Kinross contra the Laird of Hunthill .

THe Laird of Hunthill being oblieged by Bond to pay a sum to umquhil Mr. Beverly , and the said Katharin his Spouse the longest liver of them two in Conjunct-fee , and the Heirs betwixt them , which failzing his Heirs , or any person he should design , whereupon they were infeft in an Annualrent . The said Katharin having charged for payment of the sum , Hunthill suspended alleadging that she was but Liferenter , and he could never be in tuto till the Feear were called . The Lords formerly found the Letters orderly proceeded for the Annualrent , but superceeded to give answer for the Stock , till some to represent Beverly , the Feear were called , who now being called and not compearing , he Debitor alleadged he could not be lyable to give up the Stock to the Charger , being only Liferenter , neither would her Discharge , or Renunciation of the Wodset liberat him and his Estate , but only a Renunciation of the Heir ; neither did the Charge at the Liferenters Instance , take away the Annualrent , and make the principal sum moveable , unless it had been at the Feears Instance . The Charger answered , that she being Conjunct-feear , was not a naked Liferenter , albeit it resolved in a Liferent ; and therefore she craved that it should be declared by the Lords , that she had power to uplift the Stock , and to reimploy it as formerly , and that her Discharge and Renunciation should be declared to be sufficient to liberat the Debitor and his Lands , which being so found by the Lords . The Debitor's appearing Heir being called , would be an irreduceable and sufficient ground of Liberation .

The Lords declared as aforesaid , but before Extract , ordained the Conjunct-feear to give Bond for Reimployment of the sum to her self in Liferent , and to Beverly's Heirs in Fee ; which Bond they ornained to be presently Registrat , and kept by the Clerk , in respect none appeared for the Heir .

Lady Milntoun contra Laird of Milntoun . Iuly 26. 1662.

LAdy Milntoun pursues probation of the Tenor of a Bond of Interdiction , granted by her Husband young Calderwood , Interdicting himself to her . It was alleadged no Process , because there was no sufficient Adminicles in Writ produced , there being no Writ relative to the Interdiction Subscribed by the Party , but only the Extract of Letters of Inhibition .

The Lords sustained this as a sufficient Adminicle , in respect the question was not about a Writ that use to be retired , such as Bonds . In this Case also , the Lords examined some Witnesses , ex officio , before Litiscontestation , being old and valitudinary .

Margaret Robertson contra William Mcintosh . Eodem die .

MArgaret Robertson pursues an Ejection against William Mcintosh , who alleadged absolvitor , because he offered him to prove , that he had warned the Defenders umquhile Husband , and that he dying shortly thereafter , he inquired of his Wife , if she would continue in the Possession , and she declared she would not , but willingly removed . It was Replyed , Relevat scripto vel juramento ; but witnesses cannot be received to prove willingness of Removing , being mentis .

The Lords considering that the Defender alleadged no Tack nor Title in Writ , but meer Possession were inclinable to sustain the Defense probable pro ut de jure ; but withall considering the Parties were Highlanders , and had great advantage , whoever had the benefite of probation ; therefore they ordained the Pursuer to condescend what Deeds of violence was done in ejecting her ; and both parties to conscend what persons were present at the Pursuers outgoing , and the Defenders incoming , being resolved to examine all these before answer , so that there might be no advantage in probation to either party .

Sir John Aiton contra Adam Wat. Eodem die .

ADam Wat being first Infeft in an Annualrent out of Whitlands Estate , Compryzed for some of the bygone Annualrents . Sir Iohn Aiton being infeft after him in an Annualrent of the same Lands , alleadges that Adam hinders him to uplift the Duties , or poynd the Ground for his Annualrent , and yet lets them ly in the common Debtor , or Tennents hands until his Appryzing expire , and therefore alleadges that Adam Wat ought either to Intromit , and do exact Diligence , and impute the same in his Compryzing , or suffer Sir Iohn to do Diligence , or at least , that both may do Diligence effeiring to their Sums .

The Lords found that Adam Wat ought to be lyable for Diligence in time coming , in uplifting the Rents to satisfie his Appryzing ; and as to the Annualrent , found , that after 40 days after each Term , in which Adam , as the first Annualrenter , might poynd the Ground ; it should be leisom for Sir Iohn , as the second Annualrenter , to poynd the same , without respect to Adam Wats prior Infeftment , if he did not Diligence thereon , within 40 days after ilk Term.

Alexander Hamiltoun contra Thomas Harper . Iuly 29. 1662.

ALexander Hamiltoun pursues a Removing against Thomas Harper , who alleadged Absolvitor , because the Pursuer invaded and beat the Defender , in the Session-house , during the Dependence of this Cause ; and therefore by the Act of Parliament 1584. cap. 219. renewed , 1592. cap. 173. The Pursuer cadit causa , and the Defender must be Assoilzied .

The Lords having considered the saids Acts of Parliament , and finding thereby that the Invasion must be Cognosced in a Criminal Process , competent to the Justice , and must be found summarly by an Inquest .

The Question was , whether beating without effusion of Blood , was such a Criminal Fact ? because it seems to be but a Ryot : and next whether the Lords would take probation of it themselves , or if it behoved to be Recognosced by the Justices .

The Lords found the Defense Relevant , For the Act of Parliament anent violence in the Kings presence , or in the Session House , when the Session is sitting , make such deads to incur death : and therefore whether they would assign a Term to the Defender to prove , that in the mean time he might proceed Criminally , before the Iustice , and instruct the Defense by the Sentence of the Iustice , or whether they would receive the Probation themselves , they resolved to hear the P●rties upon it .

Laird Balnagoun contra Iuly 30. 1662.

THe Laird of Balnaggoun having obtained a Gift of ultmus haeres , of Thomas from the Exchequer , in Anno 1661. and being thereupon Infeft , pursues Removing against Rorie The Defender alleadged absolvitor , because the Defender stands Infeft , and by vertue of his Infeftment in Possession 7. years before the warning , by vertue of a Gift of ultimus haeres , granted by the English Exchequer . The Pursuer answered , ought to be Repelled , because the foresaid Gift is null , ipso jure , in so far as it is not confirmed by the late Act of Parliament , anent judicial proceedings in the Usurpers time , wherein Gifts of Bastardy and ultimus haeres were excepted . The Defendet answered , 1. That his Infeftment being cled with 7. years Possession , cannot be taken away by exception , neither is he oblieged in hoc judicio possessorio , to Dispute the validity thereof . 2ly . The said Act of Parliament doth not declare it null , much less null by Exception , such Gifts but doth only not confirm them .

The Lords Repelled this Defense , and found the Infeftment null in it self , seing it was not confirmed .

The Defender further alleadged absolvitor from this warning , because the Pursuers Gift is not yet decalred . It was answered for the Pursuer , no necessity of Declarator , because it cannot be ever made appear that any such thing was required , or was in Custom and Use , more then in the case of a Gift of Ward , or a Gift of Forefaultry .

The Lords found that this Gift behoved to be declared in the same way as a gift of Bastardry .

William Zeoman contra Mr Patrick Oliphant .

WIlliam Zeoman as having Right by an Appryzing to the Lands of Newton , pursues Mr. Patrick Oliphant , to hear and see it found and declared this his Appryzing was satisfied , by Intromission with the Mails and Duties within the Legal . The Defender alleadged , Appryzing cannot be satisfied by his Intromission , because any Intromission he had was by vertue of other Rights , viz. Mr. Iames Oliphant the common Author , having killed his own Mother , and thereupon he being declared Fugitive , not only upon the Paricide , but upon a Criminal Dittie against● him , upon committing Murder under Trust , which is Treason . The Defender obtained Gift of his Forefaultry , and thereupon stands Infeft and in Possession . The Pursuer answered , non Relevat , 〈◊〉 Because the Act of Parliament against Paricide , doth not declare it to infer Forefaultry , but only that the committer thereof should be excluded from Succession : and as to the committing of Slaughter under Trust , the Act of Parliament expresseth what it meaned by Trust , viz. though getting assurance from persons that had been formerly in variance . 2ly . what ever the cause were , yet the Infeftment upon the gift of Forefaultry , cannot be respected● unless there had been a Doom of Forefaultry pronunced for all , that the Justice General does , is to charge the party accused to find Caution to underly the Law , and if he appear not he is Denunced Rebel , and his Escheat only falls , or if having found Caution , he appear not in causa , he is Denunced Fugitive , which hath the same effect , but none of them can inter Forfaulture , unless Doom of Forfaulture had been pronounced , which the Justice doth not , but when the Defender compears ; albeit the Parliament Forefaults persons absent , having taken probation of the Libel contra absentes , and unless the Justice had either cited the party with Letters of Treason , under certification of Treason , and that certification had been granted , or had cognosced the Crime . The Defender being present , the Gift of Forfaulture can work nothing .

The Lords found the Reply Relevant , unless the Defender would alleadge as aforesaid , because the Defender was not clear in the matter of Fact , they before answer , Ordained him to produce the Gift and Warrands .

Creditors of Andrew Bryson contra his Son . November 14. 1662.

IN an Accompt and Reckoning betwixt the Creditors and Bairns of umquhil Andrew Bryson , the Auditor being warranted to call all Parties , havers of the said umquhil Andrew his Compt Books before him , his Son Mr. Andrew being Called and Examined upon Oath , Depones that he neither has them , nor had them since the intenting of the Cause , but refused to Depone upon his having of the same at any time before , or upon his knowledge who had them .

The Lords having heard the Auditors Report thereanent , found that he ought not to be examined upon his knowledge , who had them , but that he ought to Depone●f at any time before the Citation he had the same , and frandfully put the same away , quia propossessoria habetur qui dolo possidere .

Mr. Thomas Nicolson contra Lairds of Bightie and Babirnie . Eodem die .

THere having been mutual Molestations betwixt Mr. Thomas Nicolson Advocat and the Lairds of Bightie and Babirnie , anent a common Pasturage in the Muire of Bighty , lying contigue to all their Lands . It was alleadged for Babirny that he ought to be preferred to Mr. Thomas Nicolson , and the said Mr. Thomas excluded from all Commonty , because Babirny stands Infeft in the Lands of Babirny , which infeftment bears , with common Pasturage in the Muir of Bighty , and Mr. Thomas had no express Infeftment therein . It was answered for Mr. Thomas , that the alleadgence is not Relevant to exclude him , because he , his Predecessors and Authors , are , and have been Infeft in his Lands cum communi pastura , and by vertue of the saids Infeftments , in peaceable Possession Immemorially ; or by the space of 40 Years , which was sufficient to establish the Right of Communitie with Balbirnie , notwithstanding his Infeftment bears express . It was answered for Balbirnie , that not only was his Infeftment more express ; but Mr. Thomas Lands and his were holden of divers Superiours , viz. Balbirnie of the KING , and Mr. Thomas were Kirk-lands ; and albeit the Muire lyes contigue to Mr. Thomas Lands , yet it is not of the same Paroch . The Lords repelled the Reasons of Preference for Balbirnie in respect of the Answer . It was further alleadged for Balbirnie , that the Alleadgeances and Answers for Mr. Thomas Nicolson ought to be repelled ; because he offers him to prove , that Nicolson was interrupted since the Year 1610. and condescended , by yearly turning his Cattel off the ground , and stopping him from casting Peits ; and therefore he must say 40 Years Possession , by vertue of an Infeftment preceeding that Interruption . It was answered for Nicolson , non relevat , unlesse either a Legal Interruption by Lawborres , or Summons ; or at least a compleat and full Interruptio facti , by debarring him on whole year from any deed of Community , but for turning off his Goods , which were presently put on again , and he enjoying all his Profit , such were Attempts , and Incompleat Interruptions , whereof he needed take no notice thereof , seing he continued his Possession , otherwayes there would be great inconveniences by such Interruptions , which would be noticed by the Leidges , and yet would cut off the Probation of the old Possession before the same .

The Lords found that whatsoever the Interruption , 40 Years , or immemoria possessione before the Interruption behoved to be proven , for they thought that what Servituds were introduced only by Possession , by the patience and presumed will of the other Partie , being either Proprietar , or having right of Communitie , any Interruption was sufficient to show , that the other Party willed not , nor consented not to the Right ; and if by such Interruptions Parties got wrong , it was their own fault , who did not either declare their Right , or insist in a molestation debito tempore , or use mutual Interruptions ; but here it was considered , that Possession before the year 1610. would be equivalent to Immemorial Possession , albeit the Witnesses were not positive , upon 20. Years Possession before , in respect the Years were 50. Years since .

Children of Wolmet contra Dowglas and Cuningham . November 20. 1662.

IN a Persuit at the instance of the Children of Wolmet for the Profit of the Coal of Wolmet , intrometted with by the said Iean Dowglas Lady Wolmet in her Viduity , by vertue of a Tack of the Coal granted by Umqhile Wolmet to his Children for their Portions , it was alleadged for the Defender . First , absolvitor , because the said Iean had right to the said Profit of the said Coal , ever since her Husbands Death , by vertue of the Wodset of the Lands and Coals of Wolmet granted by Umquhile Patrick Edmonstcun of Wolmet , to Iames Loch , wherein there is a Back-tack of the Land and Coal set to the said Umquhile Wolmet , and the said Iean his Spouse , for the Annualrent of the Money . It was replyed for the Pursuer , that the foresaid Back-tack was taken by Wolmet stante matrimonio , and so was donatio inter uirum & uxorem null in it self , nisi morte confirmetur , and was confirmed by Wolmets Death , but Revocked by the Pursuers Tack granted to his Children after the said Back-tack . It was answered for the Pursuers , that the reply ought to be repelled , because the Back-tack was no Donation , but a permutation , in so far as the Lady by her Contract of Marriage was Infeft in the half of the Lands of Wolmet ; which Infeftment she renounced in favours of Iames Loch , at the taking of the Wodset , and in lieu thereof , she got this Back-tack , which therefore can be no Donation , which must be gra●u●tus without a cause onerous . It was replyed by the Pursuers , that the duply is not relevant ; for albeit it be not a pure Donation , yet quoad excessum the superplus of the benefit of the Back-tack above the benefit of the Contract of Marriage is gratitude , and a Donation , and the reason of the Law against Donations betwixt Man and Wife being mutuo amore se spolient , it holds in it , and it would be easie to allude the intent of that good Law , if Donations contrived under the way of permutation without any real equalitie were allowable . It was answered for the Defender , that the duply stands relevant , and the superplus of a permutation cannot be called a Donation more then the benefit of an advantagious Vendition : it is true , that if the Donation of the Back-tack had been ex intervallo , after the Ladies Renounciation , it would have been vincus Contractus . but two distinct Donations , or if the matter exchanged had been aliquid ejusdem specei , as an Annualrent of 500 merk with an Annualrent of a 1000 lib. the superplus would have been a Donation ; or if the Lady had received a notable excess above the half , yea , above the third of what she quat , it might have been revocable by her Husband , she being reponed to her first Condition , by her Contract of Marriage , but here there is no such exorbitant excess , she having quat a certain Land Rent for the profit of a Coal , which is most uncertain , for the hail Land Rent would not pay the Back-tack , and it is now Wodset , and likewise she is personally lyable for the Back-tack Dutie .

The Lords repelled the Defense , and Duply , in respect of the Reply and Triply ; and found the Excess so considerable in this case , that it was as a Donation , and was revocked by the Childrens Tack , but found that before the Defender made payment of what should be found due by this accompt she should be reponed and put in statu quo prius , by her Contract of Marriage .

It was further alleadged for the Defender , absolvitor , because that albeit her Right by the Back-tack were revocked by the Childrens Tack , yet she is bona fide possessor , & fecit fructus consumptos suos , according to the Law of this Kingdom , and of most of other Nations necessarily introduced , for the good and quiet of the People , because as to and profits , they spend as they have , and therefore what they spend bona fide by a colourable Title ; they are secured in that , albeit their Title be taken away ; yet they shall not be called in question for what they have injoyed bona fide before Sentence , or Citation . It was answered , for the Pursuers , that the Defense was not relevant in that case , where the Question is not of industrial fruit , but of natural fruit , such as Coal . Secondly , it is not relevant , unless it were cum titulo not ipso jure null , but here the Defenders Title being a Donation betwixt Man and Wife , is by the Civil Law , which herein we follow null in se nisi morte confirmetur . Thirdly , there must be bona fides which is not here ; because it is instructed by a minute of a Contract produced within five moneths before the Childrens Tack , that the Lady consented to the providing of the Children by the profit of the Coal , and she cannot be presumed ignorant of so Domestick an affair in favour of her own Children done by her Husband , and she hath given up an Article in her accompt of the expense of Registrating the Childrens Tack ; by her self , and so she must be presumed to have possessed as protutrix for her Children , and not to Defraud or Exclude them . It was answered , for the Defender , that the defense stands yet relevant , and the Law makes no difference betwixt Industrial and Natural Fruits , he who possesses Lands bona fide is no more comptable for the Grass that growes of it self , nor for the Corn that he labours for . 4. And Coal is an industrial Fruit , having as much pains and expense as Corns , and other industrial Fruit , and more uncertainty : as to the Title albeit be valid , yet sufficit coloratus vel●putativus titulus , and albeit in the antient Roman Law , such Donations were null in se nisi confirmentur morte yet by the subsequent course of the Law , per ora●ionem Antonij they are declared valid in themselves , unless they be revocked , and therefore are not null , but Anullantur medio facto , and there are many nullities , which may consist with a colourable Title , ad hunc affectum lucrari Fructus consumptus , as if the nulitie be not ex defectu substantialium , but by defect of some solemnity , as the not Registration of a Seasine will not make it so null , but that possessor bona fide thereby will imploy the Fruits , but if it want tradition of the symble , it will be null in se , but here such Donations have all there essentials , but they are only anullable by a subsequent fact ; and as to the Evidence , that the Lady was in mala fide ; they are no wayes sufficient , by her consent that the Children should be provided with the Coal , was in contemplation of her eldest Sons Marriage , which took no effect , and the rest are meire presumptions , and dato she had known privata notitia non nocet , unlesse there had been some Intimation , Citation or Judicial Act to put her in mala fide ; and especially private knowledge infers not mala fide , unless it had been anterior to her possession . The Pursuer answered to the last point , that albeit private knowledge in some cases would not infer mala fides among strangers , yet a mother knowing the right of her own Children , whereof one were in her womb , it puts her in mala fide , seing she was thereby oblidged to have sought Tutors , and preserved their Right .

The Lords found the Evidences sufficient to prove the Defender to have been in mala fide , and therefore repelled this Defense also , and Ordained the Defender to comp for the intromission , but found that the charge ought not to be stated according as the profit of the Coal fell out to be , but as the profit thereof might be communibus annis , in regard she quat her certain Li●erent of the Lands for an uncertain Coal , and therefore abated a fourth part of what the free Profit of the Coal was found to be by the last accompt .

Alison Wardlaw contra Robert Gray . Eodem die .

ALlison Wardlaw , as Executrix Creditrix confirmed to her Husband , and having confirmed the Rents due to him by Robert Gray Pursuer therefore . The said Robert alleadged absolvitor , for a part of these Rents , because payed , which he offered to prove by the Defuncts Compt-book in the Pursuers hands , which Compt-book is written with the Defuncts own hand , and bears several Recepts payed by the Defender at several times . The Pursuer alleadged , that the Compt-book cannot prove , because it wants a subscription , and Compt-books do only prove contra scribentem , in the case of Merchants , who keeped exact current Compt-books , which is a special priviledge of theirs , and was never extended to any other case , nor to any other person , for a discharge subscribed before Witnesses would not liberat , if it were not delivered to the other Partie , much less can a Compt-book , Secondly , Whatever it could work against the Writter and his Heirs , yet not against Assigneys or Executors Creditors , who are in effect singular Successors for their own payment , otherwayes no Assigney could be secure , but after the Assignation , the Cedent might write Receits in his Book ; but though he should grant a Holograph Discharge bearing date● before the Assignation , it would not prove against the Assigney , The Defender answered , that the Compt-book was sufficient to prove liberation , being by a Judicious Person , though not a Merchant , for it could be done to no other intent , then to preserve the memory of the payment made , which though most ordinar amongst Merchants , is no special priviledge of theirs , and albeit an undelivered discharge would not be sufficient , yet that being but unicum hirographum , requiring delivery , hath no effect without delivery , but a Compt-book contains many Writs , and requires no delivery , and albeit it should not prove against an Assigny . as neither would an holograph discharge , yet it is sufficient against an Executor Creditor , who can leave no Right till the Defunct be dead , and so their can be no hazard of Recepts posterior to their Right , and therefore against Creditor , Holograph discharge would prove .

The Lords found that the alleadgeance of the Compt-book written with the Defuncts own hand sufficient to instruct payment , of the Articles mentioned therein , but seing the Defender who payed was on life , and present , Ordained him to make faith that he truely payed accordingly .

Primrose contra Duij . November 22. 1662.

PRimrose having pursued a Reduction of a Decreet Arbitral betwixt him and Duij . The said Duij alleadged homologation of the Decreet , by acceptance and payment of a Precept direct to him by Primrose , for payment of a part of the Sum contained in the Decreet ; bearing expresly to be in satisfaction of a part of the Decreet , which was found relevant , and admitted to Duij's probation , for proving whereof , Duij produced the Precept acceptance and Discharge . It was alleadged , that the Writs produced proved not to the homologation of the Decreet , as to the Article controverted , being the fraught of a Vessel ; which Duij offered to prove , to have been decerned to have been within the third part of the just avail , and the Precept bare payment of five Dollars , decerned for the deterioration of the Tackling , by vertue of a promise .

The Lords having considered the Decreet Arbitrall , and Precept , found it proved not the homologation , as to the point in Question , because the Decreet contained divers heads . The Precept bare to pay the deterioration of the Tackling , and bare expresly , that the same was uncon●raverse , and founded upon the Defenders promise .

Sawer contra Rutherfoord November 25. 1662.

SAwer having Wodset some Tenements in Edinburgh , to Rutherfoord , wherein there was a Clause irritant , bearing , that if Sawer did not put Rutherfoord in possession of the hail Tenement , the Reversion should expire , whereupon Rutherfoord obtained Declarator , of the expyring of the Reversion , because Sawer had detained a part of the Tenement , Sawer raised Suspension and Reduction of the Decreet of Declarator , upon these Reasons . First , The clause irritant was punctum legis Commissaria in reprobat in Law . Secondly , Because , by the Act of Parliament 1661. betwixt Debitor and Creditor , It was declared , that claules irritant● for not payment of the Sums in Wodsets since 1649. should not be effectual . The Defender answered to the First Reason , that by Act of Sederunt of the Lords , in Anno 1642. Clauses Irritant , and Failzies were declared effectual ; and albeit the Lords ex gratia , are in use to suffer Parties failzeing to purge the failzie , by satisfying Damnage and Interest at the Barr ; yet it could not now be received a Decreet in foro contradictorio . To the second Reason ; It was Answered , that the said Act of Parliament was special , in relation to Clauses Irritant , for not payment of the Sum in the Wodset , which was stricti juris , and could not be extended to this wilful Failzie , in the Pursuers not removing , and possessing him , and for the Decreet it was in absence , albeit a Supplication was given in after the Decreet , desiring to be heard , whereupon he was not heard , but the answer to the Suplication bare , that his desire was only competent , by way of Susppension and Reduction .

The Lords found the Decreet not to be in foro contradictorio ; and therefore reponed the Pursuer to purge the Failzie , by possessing the Defender , and paying damnage ; but found that the Clause in the Act of Parliament reached not to this Case , but whereas the Pursuer craved compt and reckoning of the profits of the Wodset Tenement , by the said Act of Parliament bearing , That Improper Wodsets , where the granter of the Wodset , is in the hazard of Publick Burden , &c. being since 1649. The Wodsetter should be comptable for the Profits more nor the Annualrents , since the Date of the Wodset .

The Lords having considered the Woodset , by which the Wodsetter bare the publick Burden , found the said Clause of the Act not extended , to make the Defender comptable since the Date of the Wodset , but only since the Date of the offer , to secure the Wodseter conform to the Act of Parliament , by vertue of an other Clauses of the said Act , Ordaining all Wodsetters to compt for the superplus , and to possesse the granter of the Wodset , he finding Caution for the Annualrents , or to restrict to his Annualrent .

Lord Burghly contra Iohn Syme . Eodem die .

LOrd Burghly , and his Authors , being Infeft by the Abbot of Dumfermling , in the Coal-heugh of Keltie , with power to win Coals within the bounds of the Lands of Cocklaw and Losodie ; pursues John Sime Heretor of Losodie , for declaring his Right to win Coal in Losodie . The Defender alleadged absolvitor , because he and his Authors were Infeft in the Lands of Losodie , with the pertinents , above the Ground , and under the Ground , long before the Pursuers Authors Right . The Pursuer answered , that the Defenders Infeftment could not furnish him Right to the Coal of Losodie ; because it bare no power to win Coal , but being only a Feu , which is a perpetual Location , it reaches not to Coal , not being expressed : especially , seing in the Tenendas all the ordinary priviledges were exprest , even of Peit and Turff , and Coal was omitted , and because the Defenders Chartor bare expresly a reservation to the Abbot , and his Successors , to win Coal in Losodie , for their own proper use allenarly . The Defender Answered , that the Right of the Land being Feu , with the Pertinents , did extend to Coal , albeit not exprest , seing it was not wholly observed ; according to Craigs opinion , and for the Reservation , it did further clear the Defenders Right , that seing the Abbot reserved only power to win Coal for his own use , exceptio firma● regulam in non exceptis , whereby the Defender had Right to the remanent of the Coal , neither could the exception extend to the Pursuer , but only to the Abbot , and give to his Successors only , to these Succeeding in the Abbacy , viz. the Earl of Dumfermling . The Pursuer answered , that the Defenders Infeftment was Confirmed long after the Pursuers , and that the Defenders Confirmation was not of the first Feu , but of a second Right , from the first Feuar , and by the Act of Parliament anent Feus , it was declared , that Feus since March 1658. not confirmed by the King , before 1584. were ●ull , at least another Act of Parliament bare expresly , that where there were divers Feus granted of the same thing , the first , Confirmation with the last Feu , should be preferable .

The Lords found the Defense founded upon the Defenders Rights , relevant , and proven thereby ; and therefore found the Pursuer had only right to win Coals in Losodie , for his own use , and found the Pursuer Successor to the Abbots by his Infefments of the said Priviledge of wining Coal in Losodie , for his own use only , and found the saids Acts of Parliament , that by the late Act ; the Right of the ancient Possessors , and kindly Tenents was reserved ; so that if they did not Confirm before the Year 1584. They were only lyable for a greater Feu-dutie , wherein the Pursuer not being Superiour , had no interest , and found the Defenders Infeftment , that his Authors were kindly Tenents , and had a 19 year tack before the Feu .

Patrick and Joseph Dowglasses contra Lindsay of Wormistoun . December 2. 1662.

PAtrick and Joseph Dowglasses pursues Catharine Lindsay their Mother , as Executrix to their Father , for Compt and Payment of their share of the Executry , and also the said Lindsay of Wormistoun , as her Cautioner found in the Testament , who alleadged no Process against him as Cautioner , till the Executrix her self were first discussed ; Not only by Compt and Sentence , but also by Appryzing of her Estate , Poynding of her Moveables , and if nothing can be condescended upon to Poynd and Appryze , at least by Registrate Horning against her Person : This being but a subsidiary Action as to the Cautioner .

The Lords Repelled the Alleadgeance , and sustained the Accompt , against both , superceeding all Execution against the Cautioner , till the Executrix were discussed as aforesaid , which is both to the advantage of the Cautioner , who may concur with the Executor , who is only able to make the Accompt , and it is also to the advantage of the Pursuers , that the Cautioner resume not the Alleadgeances omitted by the Executor , and so make new Process , and new Probation , as oft falls out .

Dam Marion Clerk . contra Iames Clerk of Pittencrieff . Eodem die .

MR. Alexander Clerk , his Estate being Tailzied to his Heirs Male , he obliged his heirs of Line to Renunce , and Resign the same in favours of his Heirs Male ; which Disposition he burdened with 20000. Pounds , to Dam Marion Clerk his only Daughter , and Heir of Line . The Clause bare 20000. Pounds to be payed to her out of the saids Lands and Tenement , whereupon she having obtained Decreet , James Clerk the Heir Male Suspends on this Reason , That the foresaid Clause did not personally oblige him , but was only a real burden upon the Lands and Tenement , which he was content should be affected therewith , and offered to Assign and Dispone so much of the Tenement as would satisfie the same .

The Lords found the Suspender personally obliged , but only in so far as the value of the Tenement might extend ; in respect the Clause in the Disposition mentioned the Sum to be payed , which imports a personal Obligement , and whereby the Suspender accepting the Disposition , is obliged to do Diligence , to have sold the Tenement and payed her therewith ; and therefore found the Letters orderly proceeded , superceeding Execution of the principal sum for a year , that medio tempore , he might do Diligence to sell and uplift .

George Steuart contra Mr. James Nasmith . December 6. 1662.

GEorge Steuart having obtained the Gift of the Escheat of one Hume , pursues a general Declarator , wherein compears Mr. James Nasmith , having a Declarator depending of the same Escheat , and alleadged he ought to be preferred , having his Gift first past the Privy Seal , and had the first Citation thereupon . George Steuart answered , that his Gift was first past in Exchequer , and the Composition payed in March , before the Rebel was Denunced on Mr. James Nasmiths Horning , whose Gift past in Exchequer in June only , and alleadged that he being postponed , through the negligence of the Keeper of the Register , whom he had oft desired to give him out his Gift , it must be esteemed as truely then done ; and as to the Citation , both being now pursuing , he having done full Diligence , could not be postponed , and produced an Instrument taken against the Keeper of the Register , bearing him to have acknowledged , that the Gift had been sought from him formerly .

The Lords having considered the Instrument , and that it was after Nasmiths Gift was Sealed , although it mentioned former Requisitions , that was but the assertion of the Nottar , or of the Keeper of the Register , and therefore preferred Nasmiths Gift .

Andrew Clapertoun contra Lady Ednem . December 11. 1662.

IN Anno 1621. Umquhile Sir Iohn Edmistoun of Ednem , granted a Bond of Provision to Iean Stirling of two Bolls of Victual , which he obliged himself to pay to her out of the Mains of Ednem , or any other of his Lands , by vertue thereof she was in Possession , out of the Mains of Ednem , till the year 1640. Andrew Clappertoun her Son and Assigney , pursues the Lady Ednem , as Intrometter with the Rents of the Mains of Ednem , to pay the Pension since . The Defender alleadged Absolvitor , because she stands Infeft in the Mains of Ednem , by vertue of her Liferent , and thereupon has possessed ; and the Pursuers Pension is meerly personal , and does not affect the Ground , nor is valid against singular Successours , and though conceived in the best way , can have no more effect , then an Assignation to Mails and Duties , which operats nothing against singular Successors , unless it had been an Ecclesiastical Pension , clothed with Possession , having Letters conform , which only is valid against singular Successors .

The Lords found the Defense Relevant .

Iohn Oglvie contra Sir Iames Stewart . Eodem die .

PAtrick Leslie , and several Cautioners , granted Bond to Sir Iames Stewart , who assigned the same to John Denholme , who used Execution , in his Cedents name , and took some of the Debitors with Caption , and being in the Messengers hands , this Iohn Ogilvie assisted to the making of their escape , and thereupon being incarcerat by the Magistrats of Edinburgh , ( which concourse of their Authority , by their Officers , as use is , in executing Captions within Edinburgh , ) by aggrement ; the said Iohn Ogilvie payed 800 lib. to be free , and thereupon obtained Assignation from Sir Iames Stewart , to as much of the Bond , with warrandice from Sir Iames own deed , and excepting from the warrandice , an Assignation formerly made by Sir Iames , to Iohn Denholme , Iohn Ogilvie having pursued one of the Debitors , he was assoilzied , upon a discharge granted by Sir Iames Stewart , and Iohn Denholme , and they both with one consent , whereupon Iohn Ogilvie charged Sir Iames upon the Clause of Warrandice , who Suspended , and alleadged , that the foresaid discharge was nothing contrair to his oblidgement of Warrandice ; because , in the Warrandice , Iohn Denholmes Assignation was excepted , and consequently all deeds done by Iohn , as Assigny . Ita est , this discharge was granted by Iohn Denholme , and would be valid , by Iohn Denholme subscription ; and there was no prejudice done to this Pursuer , by Sir Iames Stewarts subscription , seing without it , the discharge would exclude him . The Charger answered , that Iohn Denholme subscribed but as Contenter and was not mentioned in the discharge as Assigney . The Suspender answered ; that the discharge being with his consent , was as effectual , as if he had been principal Partie , and each of them discharged with others consent .

The Lords found the Reason of the Suspension relevant .

George Loggie . contra Peter Loggie . Eodem die .

GEorge Loggie having borrowed 800 merk from Peter Loggie his Brother , gave a Wodset therefore . The said George being an old man , without hope of Children , the Reversion was only granted to George , and the Heirs of his own Body , and his Liferent of the Wodset Lands was Reserved , without mentioning of any Back-tack Dutie , or Annualrent , George having used an Order and Consigned the 800. merk , obtained Declarator , Peter Suspends , and alleadges no Redemption ought to have been , till the Annualrent were consigned with the Principal . The Charger answered , that the Contract of Wodset bare no Annualrent . The Suspender answered , that albeit it did not , yet he having lent his Money in these Terms , in hopes of Succession , and his Brother having now Married a young Wife , he ought not to take advantage of him , seing the Annualrent is due , in equitie , for the profit of the Money .

The Lords , in respect of the Tenor of the Contract of Wodset , found the Letters orderly proceeded , without any Annualrent , and that in this case it could not be due , without 〈◊〉 had been so pactioned and agreed .

Lord Balmirino contra Town of Edinburgh . December 18.

THe Lord Balmirino pursues the Town of Edinburgh , for Spoliation of the Tynds of the Aikers of Restalrige , whereof the Towns Hospital had a Tack , which being expired , Inhibition was used yearly , for several years . The Defender alleadged absolvitor , from any Spuilzie of Teinds , because , since the KING'S Decreet Arbitral , and the Fyfteen and Seventeen Acts of Parliament , 1633. Spuilzie of Teinds is taken away , especially by the said Fyfteen Act. The Parliament Ratifies a former deed of the King 's , Declaring , every Heretor shall have the drawing of his own Teynd , and the benefit of a Valuation ; and in the mean time , so long as the Teynds are not Valued , the Heretors are only lyable for the Fyft of the Rent , in name of Teynd , Secondly , By a Contract betwixt the Town and the Pursuers Father , of the Aikers of Restal●ige lyand runrig with these , are set for half a boll beer the Aiker , which is by the Contract , Declared to be the just and true Rate , and Value thereof , which by necestar consequence declares the Value of the Teynds now in Question , being runrig with the other . The Pursuer answered to the first , That the foresaid Act of Parliament was only meaned in relation to the KING'S Annuity , and albeit the foresaid Clause therein be general , yet it is clear by the 17. Act , which is posterior , that the first part shall be the Teynd , after the Valuation duely led , which hath been constantly allowed , by Custom of the Commission of Plantations , which gave only warrand to Heretors to lead their own Teynd during the Dependence of a Valuation , and therefore Spuilzie of Teynds have been frequently sustained since the saids Acts : As to the second , whatever be the way of conception of the Tack , for the other Aikers not in question be , though it did acknowledge the same to be the just Value thereof , yet it cannot extend to other Teynds ; seing where the Parties agree in the matter , they are not solicitous for the conception of the words , which cannot be drawn in consequence to any other matter .

The Lords repelled both these Defenses , but declared they would not sustaine Spuilzie as to the Oath in Litem , but admitted the Value of the Teynd to the Pursuers probation . Reserving to themselves the modification of the prices , if they should be exor●itantly proven , but not of the quantaties .

Lady Tursapie contra Laird of Tursapie . December 20. 1662.

THE Lady Tursapie pursues the Laird of Tursapie , who succeeded as Heir to his Brother , her Husband , for the Aliment of the Defuncts Family , till the next Term , after his Death , and specially for the Alinent , and to the Pursuers Son , Heir appearand to his Father . The Defender alleadged absolvitor , because the Lybel was no wayes relevant against him , as Heir , but by the constant custome , the entertainment of the Defuncts Families , was ever a burthen on their Moveables , and upon their Executry . The Pursuer answered , though it was ordinarly retained off the Moveables , yet the Heir was also lyable , seing the Defunct was oblieged to entertain his Servants and Children , at least to a Term , but much more when there were no Moveables , or where the Defunct was Rebel , and the Donatar intrometted . The Defender answered , that it was novum to conveen an Heir on this ground , and that the Alledgiance of there being no Moveables held not here ; neither is it relevant that the Moveables were gifted , unless it had been declared before the Defunct's Death and Possession obtained , otherwayes the Relict ought to have Alimented the Family out of the Moveables , which would have liberat her from the Donatar , and is yet ground against the Donatars . The Pursuer answered , she could not retain , because the Donatar with Concourse of the Defender did put her brevi manu from the Defunct's House and all the Moveables .

The Lords having amongst themselves considered this Process , did put difference between the Aliment of the Appearant Heir , and the rest of the Family : As to the Heir they found , that albeit he was never Infeft , yet as Appearant Heir , he had Right to the Mails and Duties from his Fathers Death , untill his own Death , though the Terms had been to run before he was born , being in utero , and that the Defender , in so far as medling with the Rents , was lyable for the Appearant Heirs Aliment ; but for the rest of the Familie , the Lords superceeded to give answer till diligence were done against the Donatar , or other Intrometters with the Moveables .

Thomas Dumbar of Muchrome contra The Vassals of the Barrony of Muchrome . Eodem die .

THomas Dumbar of Muchrome , pursues Reduction and Improbation against the Vassals of the Barrony of Mochrume , wherein all the Terms being run , reserving Defenses . Now at the last Term it was alleaged , for Hay of Arriolland , no Certification contra non producta against him , because he had produced a Precept of clare constat from the Pursuers Father as Heir , to whom he pursues . Secondly , It was alleaged that he had produced sufficiently to exclude the Pursuers Right produced , and so till his Rights produced were discust and taken away , there could be no Certification contra non producta . The Pursuer answered to the first , that the Precept of clare constat was but in obedience of a Precept out of the Chancellary . As to the Ancient Rights produced , if the Defender would rest thereon , he needed not stand that Certification should be granted against any others not produced , seing these produced are sufficient ; but if the Certification should be thus stopped , the effect of all Improbations and Non-entries should be marred by dropping in new Writs from time to time , and still disputing thereon , and so dispute the Reasons before the Production were closed , at least the Defender ought to alledge that the Writs produced are sufficient , and declare he will make use of no further in this Process .

The Lords repelled the first Alleadgance on the Precept of clare constat being for obedience , but found the second Alleadgance relevant hoc ordine , and ordained the Defender to condescend upon his Rights by way of Defence to the Pursuer , to answer thereto presently .

Collonel Iohn Fullertoun contra Viscount of Kingstoun . Ianuary 8. 1663.

COllonel Iohn Fullertoun having charged the Viscount of Kingstoun , upon a Bond of borrowed Mony , he suspends on these Reasons . That the Collonel granted Assignation to Umquile Sir Alexander Dowglas to a Sum dew by Sir William Thomson ; and notwithstanding of the Assignation he uplifted the Sum himself , at least his Brother by his order , whereupon the Lady Kingstoun ; Daughter and Heir to the said Sir Alexander , having Licence to pursue , hath pursued the Collonel upon the Warrandice for Re-payment ; which Action being seen and returned , and ready to be discust , the Suspender craves Compensation thereon . The Charger answered , That the reason of Compensation is not relevant , because it is not liquid , the foresaid Sum not being confirmed by any Executor , nor Sentence thereupon ; neither can it be instantly verified , because it must abide Probation , that the Collonel or his Brother by his order uplifted the Sum , and there being only a licence to pursue , the Debt cannot be established till a Confirmation . Secondly , Albeit the Compensation were relievable , yet the Reason ought to be repelled ; because , that any such Assignation was granted , it was in trust , to the Collonels own behove , as is instructed by a missive Letter to the Charger produced . It was answered for the Suspender , that the Answers founded upon the missive Letter ought to be repelled , because it was null , neither being Holograph , nor having Witnesses . Secondly , It is most suspect , being written upon old blacked Paper . The Charger answered , that Letters amongst Merchands , though not Holograph , are sustained , and ought much more among Souldiers , especially between the Charger and Sir Alexander , who then was his Lieutenant Collonel ; which is the more clear , that there was never a question of it these 20 years , neither was it contained in the Inventar of Sir Alexanders Papers , though there were insert Papers of less moment , but that it was gotten from one White , for 40. or 50. Pound .

The Lords repelled the Compensation , as not being liquid , and found the Letters orderly proceeded , superceeding Execution till Whitsunday 1663. But upon the other Process against the Charger , The Lords considering the matter was old and dubious , before Answer , they ordained Witnesses to be examined hinc inde , upon all Adminicles that could be adduced for , or against the Trust.

Lady Otter contra Laird of Otter . Eodem die .

THe Umquhile Laird of Otter , by his Contract of Marriage , having provided his Estate to his Heir Male ; provided 5000 Merks to his eldest Heir Female , when she should be capable of Marriage ; and an occasion offered , whereupon the said Heir Female her Mother pursues the Heir Male for payment of the Sum , and for payment of an Aliment to the Heir Female during the time she hath been with her Mother , and in time coming , till the provision be payed . The Defender alleadged the Libel is no way relevant , for Aliment , he not being oblidged by the Contract , for any Aliment , but only for the Sum , at such a time ; neither is there any Annualrent due for the Provision , till the Term of payment .

Yet the Lords found , that albeit that was no Annualrent , nor provision for Aliment , and that de jure Annualrent is but due , ex pacto , they would in this case allow an Aliment , far within the Annualrent , because it was all that the Daughters got for a very considerable Estate , which was but a very small provision .

Patrick Nicoll contra Sir Alexander Hope . Eodem die .

PAtrick Nicoll pursues a Declarator of Propertie of his Lands , of Grantoun , and that he had good Right thereto , conform to the Bounds Lybelled . It was alleadged , for Sir Alexander Hope . First , All Parttes having interest are not called , this being an Action , that in effect terminateth upon a Perambulation , or Determining of the Marches . It is a Real Action , and there is necessity to call the Heirs of Sir Iohn Hope , who died last , vest and seased , in the other adjacent Lands . The Pursuer answered , that he offered him to prove , that Sir Iohn had Disponed in favour of Sir Alexander , and resigned in his time . It was answered for Sir Alexander , that Sir Iohn was not Denuded ; seing no Infeftment followed , and the Disposition is but an incompleat Personal Right , so that some having the Real Right must be called .

The Lords repelled the Defense , in respect of the Reply . It was further alleadged for Sir Alexander , that he had builded a park dyke upon a part of the Ground in Question , before the Pursuers Right , sciente & astante domino : the former Heretor having never opposed , nor contradicted , which must necessarily infer his consent . The Pursuer answered , that it was not relevant , to take away any part of the Property , upon such a presumptive consent , neither was he oblieged to disassent , seing he knew that which was builded upon his Ground , would become his own in edificatum solo cedit .

The Lords repelled this Defense also , but they thought that the taciturnitie might operat this much , that Sir Alexander might remove the materialls of his Wall , or get from Patrick Nicol quantum partem est lucratus , by the building of the Wall .

Murray of Merstoun contra Thomas Hunterr . Eodem die .

MVrray of Merstoun pursues Thomas Hunter for a Spulzie of Malt , who alleadged , that as to that member of the Lybel of the Spulzie of the Malt , by the Defenders hunding out , or command . It is only relevant scripto vel juramento . The Pursuer answered , that she qualified the Probation thus , That the Defender intrusted a Messenger , or Officer , to execute a Precept of Poynding , by delivering him the Precept , and therefore the Precept , with the execution thereupon is sufficient Probation . The Defender answered , that the same is not sufficient ; because the Officer execute the Precept extra territorium , whereby it became a Spuilzie , which ought not to be imputed to the Defender , unlesse it were offered to be proven , that he ordained the Officer to Poynd this Malt without the Jurisdiction , and that only scripto vel juramento . The Pursuer answered , that as the giving of a Precept of Seasin , is a sufficient warrant , without any other Procuratry , whatever the effect of the Seasin be , so must the delivery of the Precept of Poynding be sufficient to instruct the warrand , or command to Poynd , where-ever the Poynding was execute , and the user of the Poynding should be lyable to the deeds done by the person he intrusts ; Especially , seing not only the Messenger was sent , but other Servants , and Messengers imployed by the user of the Poynding .

The Lords found the giving of the Precept of Poynding to the Messenger , and his unwarrantable poynding Extra territorium not sufficient only , but found it relevant , to prove , by the Messenger , and Defenders Servants imployed by him , their Oaths , that they were commanded to Poynd this Malt , or other goods in this place , being Extra territorium .

Skeen contra Lumsdean . Eodem die .

SKeen having charged Alexander Lumsdean , for payment of a Bond , for which he was Cautioner for Mr. Thomas Lumsdean his Brother , Alexander Suspends on this Reason ; that the Bond was granted for a Bill of Exchange , drawn by one Dutch man , upon another to be payed to Skeen , or his Order , which Bill , Skeen ordained to be payed to Anna Balty Spouse to Mr. Thomas Lumsdean ; for which this Bond was granted : Ita est the saids Bills of Exchange were not payed , but protested ; and is assigned by Mr. Thomas Lumsdean , and his Spouse , to the Suspender ; at least , if any payment was made to Mr. Thomas Lumsdean the Cedent , it was after the Assignation to Alexander Lumsdean the Suspender , and intimation thereof . It was answered , for the Charger , that the Reason ought to be repelled , because he offered him to prove , by Mr. Thomas Lumsdean , at that time Factor at Campheir his Compt-book ; that albeit the Bills was once protested , yet they were payed before Assignation , or Intimation .

The Lords before answer , having granted several Commissions to the Magistrats , and Conservitor at Campheir , to view and examine the Compt-book which was at Campheir . They reported , that in such a Page of the Book there was three Articles of Receipt , in part of payment of the Bills , after which Pages the Book was containued , and several Compts written therein , and that it was Authentick , and Unvitiat , and all written with the hand of Iohn Muire Mr. Thomas Stepson , who was his Book-keeper , and that they had been a long time since out of Mr. Thomas hands , about the time he Bankerupted , and that they had examined upon Oath , him who drew the Bill , amd him upon whom the Bill was drawn , both , who had sworn payment was made , the question was , whether Mr. Thomas Compt-book could prove against Mr Thomas his Assigney . It was alleadged , It could not , seing it had no more Effect then as Holograph Discharge , which might be made up after the Assignation , and therefore proves not against the Assigney . It was answered , that though a Holograph Discharge will not prove alone , yet if by other Adminicles , Writs or Witnesses , it appeas that the Date is true , at least is prior to the Assignation , or Intimation , it will be sufficient against the Assigney , so the Adminicles here are pregnant and strong , to prove the time of payment contained in the Compt-Book .

The Lords found the Compt-Book and Adminicles sufficient here against the Assigney , especially considering , that the Cedent was his Brother , and that it was not presumable , that he would do any Deed , in making up these Receipts in his Compt-Book , in prejudice of his Brother .

Thomas Beg contra Sir Thomas Nicolson . Ianuary 14. 1663.

THomas Beg charges Sir Thomas Nicolson of Carnock upon his Bond of 4000 Merk ; he Suspends on this Reason , the Charger is only Liferenter , and hath no right to lift the Sum , because the Bond is conceived thus , to Thomas Beg and his Spouse , the longest Liver of them two in Conjunct-fee , and to the Bairns procreat betwixt them , which failzing , to two Bairns of a former Marriage , Thomas and Margaret Begs , and which Bond contains a Precept of Seasife , for Infefting the said Thomas and his Spouse , and the Bairns of the Marriage , which failzing , the said Thomas and Margaret , Bairns of the former Marriage , according to which there was a Seasine taken , not only to the two Spouses , but to the two Bairns , nominatim , who therefore are Feears .

The Lords repelled the Reason ; because having considered the Bond , and Infeftment conceaved as aforesaid : they found the Husband , by the Conjunct-fee to be Feear , and the Bairns of the Marriage to be destinat Heirs of Provision ; and the said Margaret and Thomas , to be only substitue as Heirs of Tailzie , failzing the Bairns of the Marriage ; and that therefore , if the Father had died Infeft in the Annualrent , if there had been Bairns of the Marriage , they , Male and Female , joyntly and equally behoved to be Served , specially as Heirs of Provision to their Father , and so Infeft , and failzing Bairns , Thomas and Margaret , behoved also to be so served and Infeft : for albeit there needs no general Service , where Persons are nominatim substitute in a personal Right , requiring no Infeftment ; yet where there is Infeftment , there must be a special Service . And therefore found the Father , Feear might uplift the Mony , or might change the Destination thereof , as he pleased ; and albeit Thomas and Margaret were Infeft nominatim , yet they found the Seasine was without Warrand , bearing only to Infeft them , in case of failzie of Heirs of the Marriage , and the Infeftment could only be granted to the Conjunct-feears .

Iohn Scot contra Montgomery . Eodem die .

JOhn Scot , as Assigney to certain Bonds granted by Montgomery to Andrew Robertson , charges Montgomery , who Suspends upon this Reason , that he instantly instructs by a Back-bond , that the Bonds is for the price of certain Lands , and by the Back-bond , it is provided , that these Sums should not be payed , till the Writs of the Lands were delivered , and payment made of some Duties thereof .

The Lords found the Back-bond , being before the Assingation relevant , against the Assigney , albeit the Bonds were simple , bearing borrowed Money .

Greenlaw contra 〈…〉 Ianuary 15. 1663.

GReenlaw being pursued by 〈…〉 for Spuilzie of two Mares , in May 1654. alleadged Absolvitor , because he was then in Arms for the King ; and took these Mares for the Service , and had warrand from his Officers ; which he offered him to prove by his Pass , and Capitulation produced , expressly including him , with his Officers , who Capitulate . The Pursuer answered , the Mares were great with Foal , and altogether unfit for the Service ; and if they were specially commanded to be taken , it might be instructed by Writ .

The Lords considering this Capitulation , being about that same time , found , that albeit there had been no Order , yet the Defender being then in Arms , acting modo militari , the Act of Indemnity freed him , and would not give occasion to such Process , and therefore Assoilzied .

Tennents of Kilchattan contra Lady Kilchattan , Major Campbel , and Baillie Hamilton . Ianuary 16. 1663.

OLd Kilchattan , in his Sons Contract of Marriage , Dispons the Lands of Kilchattan to his Son young Kilchattan , and his Lady in Conjunct-fee ; whereupon there was Infeftment taken , in favours of the Husband and Wife , to be holden from the Disponer , and of the King ; but the same was not confirmed till the year 1662. At which time , Major Campbel procures a Confirmation of the Conjunct-Infeftment , and Seasine thereon ; which Confirmation hath a Clause insert ; bearing the same to be only in so far as may confirm and establish the Right of an Annualrent granted by young Kilchattan to the Major : and thereafter the Lady Confirms the Conjunct-Infeftment simply . In Anno 1654. young Kilchattan Infefts Major Campbel in an Annulrent out of the Lands : thereafter Heugh Hamilton Appryzed from young Kilchattan , and was Infeft upon this Appryzing about that time . It was alleadged by the Lady , that she ought to be pre-ferred , because she being joyned with her Husband in the Conjunct-Fee , and thereupon Infeft ; it is sufficient to give her the Right of Liferent , which is but a personal servitude . It was answered , first , That Major Campbel having procured the first Confirmation , which is expresly limit unto his Annualrent , must be preferred to the Lady , and that such limitations might lawfully be , because it being free for the Superiour to Confirm , or not , or to Confirm a part , and not the rest , he might Confirm it to what effect he pleased ; and his Confirmation being extended no further , the Lady cannot crave preference , because she is now only Infeft in the Lands in question in Warrandice , that her principal Lands shall be worth so much , and it is not yet declared in what they are defective .

The Lords , in respect the Ladies Right was not Confirmed , preferred the Major as to his Annualrents .

It was alleadged for Heugh Hamiltoun , that he must be preferred to the Annualrenter , because he being publickly Infeft upon his Apprysing , before the Infeftment of Annualrent , at least before it was cled with Possession , whereby it became a valid Right , the King's Charter upon the Apprysing , is virtually and equivalently a Confirmation of Kilchattans Infeftment , especially in favours of a Creditor , who could not perfectly know his Debitors condition ; which if he had known ; and given in expresly a Confirmation to the King , it would have been accepted , seeing the King respects none , and therefore the King 's granting of a Charter upon the Apprysing must be interpret equivalent .

The Lords found that the Charter upon the Apprysing was not equivalent to a Confirmation .

It was further alleadged for Heugh Hamiltoun , that the Confirmation obtained by Major Campbel , behoved to accresce to him ; who had the first compleat Right , by publick Infeftment upon the Apprysing , and albeit that base Infeftment upon the Annualrent granted by Kilchattan to Major Campbel , was prior , yet it was null till it was cled with Possession ; and therefore if it was not cled with Possession before Heugh Hamiltouns Infeftment , the Confirmation must accresce to Heugh Hamiltouns Infeftment .

The Lords found that the base Infeftment was not null for want of Possession , albeit it might be excluded by a publick Infeftment before Possession , but found that Heugh Hamiltouns publick Infeftment was not compleat in it self , because it put Heugh Hamiltoun only in the place of young Kilchattan , who had a null Right till Confirmation : Which Confirmation they found did accresce to the base Infeftment , being cled with Possession at any time before the Confirmation , for at that time it became a compleat Right ; at which time the Appryzing and Infeftment was no compleat Right , and therefore the Confirmation , albeit it had not had this restriction accresced to the base Infeftment , as being the first compleat Right in suo genere .

Earl of Roxburgh contra a Minister . Eodem Die .

IN a review of a Decreet at the Instance of a Minister against the Earl of Roxburgh ; the point in question was , whether or no the Judges for the time , or now the Lords of Session , were competent to discuss this Nullity , of a Decreet of Locality , by the Commission for Plantation , in that it called the Earls Lands expresly designed , to be his Lands , and he was not called .

The Lords found , that albeit they would not decide upon the Nullities of the Decreets of the Commission competent by way of Reduction , which behoved to be before the Commission it self ; yet this Nullity being palpable and competent by Exception , or Suspension , that they might thereupon Suspend simpliciter , the Decreet of the Commission .

Earl of Errol contra Parochioners of Ury . Eodem die .

THe Earl of Roxburgh pursues the Heretors for the Teind , from 1648. till 1662. as he who had Right during that tyme , by the Act of Parliament , 1649. Establishing the Right of the Teinds in the Patron , in leu of their Patronage ; and also as he who had Tack thereof , and had since possessed be tacit relocation . The Defender alleadged , as to the first Title , that the Parliament , 1649. was not only annulled , but declared void , ab initio , as a meeting without any Authority , as to the tacit Relocation , it could not extend any further then so many years as the Beneficed Person could set . It was answered for the Earl , that the Rescissorie Act could not prejudge him , as to any thing anterior to it's date , unless it had born expresly to annul as to bygones .

The Lords found the Lybel , and Reply Relevant , as to bygones before the Act , albeit there be no salvo in that Act , as there is in the Rescissory Acts of the remanent Parliaments , and found that the Pursuer had Right , per tacitam relocationem , till he was interrupted , even for years which the Beneficed Person could not validly set , as a Liferenters Tack will be validly set , as a Liferenters Tack will be valide against the Feer , per tacitam relocationem , after her Death , though she could grant no Tack validly after her Death .

Relict of Mr. Thomas Swintoun Minister of Ednems contra Laird of Wedderburn . Eodem die .

THe Minister of Ednems Relict Insisting for the reparation of the Manss . It was alleadged for the Heretors , that those who have Right to the Teinds as Tacks-men , or otherwayes , ought to bear a proportion , of the reparation .

The Lords found that albeit these who have right to the Teinds , were accustomed to Repair the of Kirks , and the Heretors the rest of the Kirk ; yet there was neither Law nor Custom alleadged , the Teinds could be burdened with any part of the Reparation .

Sword contra Sword . Eodem die .

ONe Sword as heir Served and Retoured , to Bailzie Sword of Saint Andrews , pursues for Intromission with the Moveable Heirship , for delivery of the same , and produces his Service done at Saint Andrews , and Retoured , whereby he is Served as Oye to the Defunct Bailzie , his Father Brother ; compears another Party ; who is likewise Served Heir to that same Bailzie , at Edinburgh , and produces his Service Retoured , by which he is served Heir to Bailzie Sword , as his Father Brother Son , whereupon he hath raised a Reduction in Latine , under the Quarter-seal of the other Service , which was prior , and alleadges , that he being in a nearer degree of Blood then the other , in so far as he is a Father Brother Son , and the other Service bears him to be but a Father Brothers Oye .

The Lords having considered both the Retoures , and that they were not contradictory , inferring manifest Error of the Assize , because it was sufficient for the Assize to Serve the Father Brothers Oye , if they knew of no nearer Degree ; And also because the Defunct Bailzie might have had two Father Brothers , one elder then his Father . and the other younger , and thereby two Heirs , one of Line and another of Conquest , which not being clear by the Retoures ; the Lords will not prefer the first Retour as standing , but would hear the Parties upon the Reduction .

Mr. James Stuart contra Mr. John Spruile . Ianuary 21. 1663.

MR. Iames Stuart and Robert Stuart Bailzie of Lithgow , as Curator to him , as a Furious Person , or Idiot , by Gift of the Exchequer , pursues Mr. Iohn Spruile for Sums of Mony due to Mr. Iames. It was alleadged no Process at the Instance of Robert Stuart , as Curator , because by Law , the Tutors or Curators of Furious Persons , are conform to the Act of Parliament to be Cognosced by an Inquest , whether the Person be Furious , and who is his nearest Agnat , of the Fathers side , past twenty five .

The Lords found Process , Robert Stuart finding Caution to make forth coming , and declared it should be but prejudice to the nearest Agnat , to Serve according to the said Act of Parliament , for they thought , that as the Lords might name Curators , ad litem , in the interim , so might the King , and that the Exchequer was accustomed to do .

William Zeoman contra Mr. Patrick Oliphant . Ianuary 22. 1663.

IN a Competition betwixt Zeoman and Oliphant , anent the Estate of Sir Iames Oliphant , who having killed his Mother , was pursued Criminally therefore , before the Justice , and being Charged to underly the Law , for the said Crime , under the pain of Rebellion , he compeared not , and the Act of Adjournal was declared Fugitive , and his moveable Goods ordained to be Inbrought : The Criminal Libel proceeded , both upon the Act of Parliament against Paricide ; and also upon the Act of Parliament , declaring that killing of Persons under assurance of Trust , to be Treasonable ; Hereupon the King granted a Gift of Sir Iames Forefaulture to Sir Patrick Oliphant , who thereupon was Infeft . It was alleadged for William Zeoman , who had Right by Appryzing , that there could be no respect to the Gift of Forefaulture , because Sir James was never Forefault , but only declared Fugitive , and Denunced as said is ; and that any Doom of Forefaulture had been pronounced , the Crime behoved to have been proven before an Assize , else there could be no Forefaulture ; neither could the Donator possess , medio tempore , till the Crime were yet put to the Tryal of an Assize , because Sir Iames is dead .

The Lords found that the Gift of Forfaultuee could not be effectual for the Reasons foresaid , and found that the Act against Paricide , could be no foundation of a Gift , because it only excluded the Murderer , and his Descendents , to succeed to the Person Murdered , by declaring expresly that the Murderers Collaterals should succeed , and so there was no place for the King . And as for the other Act of Murder under Trust , they found that there being no probation , it could work nothing , and there is no doubt , but though there had been Probation , that Act of Murder under Trust , doth not directly quadrat to this Case , upon that natural Trust betwixt Parents and Children , but only to Trust given by express Paction , or otherwise it could evacuat the benefit of the foresaid other Act anent Paricide , and would prefer the Fisk to the Collaterals of the Murderer , if he had done no wrong , contrair to the said Act , anent Paricide , which is not derogat by the other .

Wallace contra Edgar . Eodem die .

IAmes Wallace as Assigney by Iames Scot , to a Decreet obtained against Iohn Edgar in Drumfreis , having Charged thereupon , Edgar Suspends , and alleadges Compensation , upon Debts due by Scot the Cedent to the Suspender , before the Intimation of his Assignation ; and therefore according to the ordinary Course , Debts due by the Cedent , before Intimation , are Relevant against the Assigney , and condescends upon several Bonds and Decreets against the Cedent , assigned to the Suspender , before the Chargers Intimation . The Suspender answered , that albeit any Debt due by the Cedent to the Debitor , before Intimation , will be relevant to compense against the Assigney ; yet that will not extend to Sums assigned to the Debitor , before the Chargers Assignation , unless that Assignation had been Intimat , before the Chargers Intimation , because the Assignation only doth not Constitute the Suspenders Creditor , or the Cedent Debitor , until it be Intimat ; and so there being no debiium and Creditum , before the Intimation , there can be no Compensation , which is contributio debiti & crediti . The Suspender answered , that the Assignation Constitute the Right , and the creditum , but the Intimation was only necessar in case of Competition of other Assigneys , and he needed not Intimat to Scot ; quia intus habet , in respect Scot was owing him as much .

The Lords found no Compensation , unless the Suspender had Intimat his Assignation to the Cedent , and so had Constitute him his Debitor , before the Cedent was denuded , by the Chargers Assignation and Intimation .

Children of Netherlie contra The Heir . Ianuary 24. 1663.

THe Children of umquhil Edgar of Netherlie , alleadging that their Father left to his Heir a competent Estate , and that he dyed before any Provision or Aliment appointed to them , and that the Heirs Tutor refused to Aliment them : Their Mother being also dead , therefore craved an Aliment to be modified , there being no compearence in the contrair .

The Lords found the Brother , as being Heir to the Father , of a competent Estate , lyable to Aliment the Children being wholly unprovided , but determined neither the time , nor the quantity , till the Condition of the Estate were Instructed .

Bain contra Laird of Streichan . Eodem die .

THe Laird of Streichan being pursued by Bain , proponed a Reason of Compensation , and produced a Writ for instructing thereof , being called at the advising of the Cause .

The Lords suffered him to Reform the Alleadgence , seing he instructed it instantly , by another Writ then was formerly produced .

Sydeserf of Ruchlaw contra Wood. Eodem die .

THere being mutual Contraventions betwixt Ruchlaw and Wood , both relating to a peace of Ground , upon the Marches of their Lands , which Ruchlaw alleadged to be his Property , and that Wood had contraveened by needful Pasturage thereon , himself being present , when he was desired to remove his Goods off the same : and the other alleadging Commonty , and that Ruchlaw had contraveened by wilful debarring him from his Commonty .

The Lords before Answer , granted Commission to Examine Witnesses , hinc inde , concerning their Possession of Property , and Commonty ; and having advised the Testimonies , found that the Matter was not so clear as to be the ground of a Contravention ; and therefore assoilzied both Parties , but declared it should be free to them both , or either of them to turn their Libel into a Molestation , and to reform the same accordingly thereanent . They granted again Commission before answer , to Examine Witnesses , hinc inde , anent eithers Possession , and the indurance thereof , which was not cleared by the former Commission .

Robert Grahame contra Iohn Rosse . Eodem die .

IN a Competition betwixt Grahame and Rosse , and a third Party , all Compryzers , the posterior Appryzers craving to come in pari passu , by vertue of the late Act of Parliament . It was alleadged for Grahame , who had obtained Infeftment , that he ought to be preferred ; because albeit his Appryzing was since Ianuary 1652. yet he had been in Possession thereby seven years , and so had the benefit of a Possessory Judgement .

This was Repelled , because the Act of Parliament was but late , before which there could be no ground to come in pari passu , and there was no exception in it , of these who had Possessed or not Possest , before the Act.

Secondly , Grahame further alleadged , that he ought to be preferred ; because he was Infeft in an Annualrent out of the Lands , which is a real Right excepted by the Act of Parliament . Thirdly , That Rosse could not come in , because Rosses Appryzing was before 1652. and the Act of Parliament brings in only Appryzing since December , 1652. Fourthly , None of the Parties could come in with him , until first they payed him their proportionable part of the Composition , and Expenses bestowed out by him , conform to the Act.

The Lords found that albeit Grahames Appryzing was not upon the Infeftment of Annualrent , but upon the personal obliegement for the Principal , and bygone Annualrents , upon Requisitions , which was a passing from the Infeftment of Annualrent ; yet that he might , pro loco & tempore , pass from his Appryzing , and might be preferred to his bygone Annualrents , upon his Infeftment of Annualrent ; in this Case of Composition , albeit there was yet no Appryzing upon the Infeftment of Annualrent ; and found that Iohn Rosses Appryzing before 1652. was not excluded , but behoved to be in the same Case , as if it had been after : But found that the other Appryzers before they came in , behoved to satisfie the Composition proportionally by the Tenor of the Act.

Sir Robert Montgomerie of Skelmarlie contra Iohn Broun . Ianuary 28. 1663.

SIr Robert Montgomery pursues Iohn Broun , for perfecting a Bargain agreed upon in word betwixt them , where Sir Rob●rt was to Dispone the Right of an Appryzing of the Lands of Fordel , for which John was to pay 10000. merks ; After which verbal agreement , Iohn Broun write a Letter to Sir Robert , in relation to the Bargain , bearing , that he was affrayed not to get the Money at the time agreed upon ; and then bearing the said words , all I can say now is , I am not to pass from what was spoken betwixt you and me . The Defender alleadged , that this being a Communing in word , anent an Heretable Right , est locus penetentiae , there being yet neither Minute , Disposition , or other Security , Subscribed . And as to the Letter , it was not to be respected , because it was no Minute , and mentionated , that the Writer was not fully resolved , that he would be able to provide the Money , and keep the Bargain ; as for the Word Signifying , that he would not pass therefrom , it did but express his present resolution , and was not Obligatory ; and though they were , so long as Sir Robert might resile , notwithstanding of the Letter , John Broun might also resile . It was answered for the Pursuer , that his Libel stood most Relevant , because there is only locus penitentiae , when there is no Writ ; but if any Party obliege himself to stand to a former Communing , his own voluntar Deed , has unquestionably oblieged him , unless the other did resile , and the Obligation is as valid in a missive Letter , as the most solemn Bond : Neither are words , I am not to pass , to be interpret , to signifie a Resolution , but being in materia obligatoria , must signifie an Obligation , otherwise all Minuts must be void , and are ordinarly expressed in such Terms , as are to do , or shall do such things : and whereas there was several Practicques , produced , finding locum penitentiae in such Cases , though they were Earnest , and though there were Possession , and a Letter whereby the Resiler designed another Party by the Lands Disponed , yet there was no Obligation in Writ , as in this Letter : and likewise Iohn Brown payed 3000. merks , of the price , albeit he took a Bond of borrowed Money , till things were perfected , and got the Keys of the Houses .

The Lords found there was yet place to Resile , and therefore assoilzied .

Margaret Stevenson and her Son contra Ker and others . Eodem die .

MArgaret Stevenson pursues Margaret Ker , as vitious Intromissatrix with the Goods of her Husband , for payment of a Debt , wherein he was Cautioner . She alleadged absolvitor , because her Iutromission was purged , in so far as she had Confirmed herself Executrix Creditrix . It was answered by the Pursuer , non relevat , unless before intenting of the Cause . The Defender answered , it was sufficient , being within year and day , after the Defunct's Death .

Which the Lords found Relevant .

Lord Balnagoun contra M. Thomas Mckenzie . Eodem die .

BAlnagoun as Donator to the Escheat of his Father , pursues Mr , Thomas Mckenzie for the price of some Lands , sold to him by his Father , and for the annualrents since . It was answered for the Defender , that there was no Annualrent due by the Minute ; and albeit it was the price of Land , yet Balnagoun had never made Mr. Thomas a Right to this day , but had forced him to be at a huge Expenses and Plea , and so was in mora , that the price was not payed : and albeit●he did possess the Lands , it was by redeeming Wodsets thereupon , contained in the Minute .

The Lords found Mr. Thomas lyable either for the Annualrent , or for the superplus of the Rents of the Land , more then payed the Annualrent . In this Process it was found that the Probation of a Tenor , before an Inferiour Iudge was null .

Margaret Edgar contra Iohn Murray . Ianuary 29. 1663.

MArgaret Edgar having Charged Iohn Murray , as Cautioner for the umquhil Viscount of Stormont , he Suspends and offers him to prove by her Oath , that she transacted with him to accept a Decreet against the principal to free him . The Charger answered , that she being a Wife clade with a Husband , could not swear in his prejudice . The Suspender Replyed , that before her Marriage , he had raised a Pursuit , and Cited her to hear and see it found and declared , he was free of Cautionry , in respect of the said Transaction , and so the matter being Litigious , her marrying during the Dependence cannot exclude him from his Oath , but must work against her Husband , who is only jure mariti , a Legal Assigney .

The Lords found this Reply Relevant .

Scot contra Mr. John Dickson . Eodem die .

SCot as Assigney by her Father to a Bond , Charges Mr. Iohn Dickson to make payment , he Suspends on this Reason , that the Assignation being while the Charger was Wife to Scot her Husband , the Sum belonged to the Husband , jure mariti ; and therefore craves Compensation of the like Sums , payed to , or for the Husband . The Charger answered , that though the Date of the Assignation was before her Husbands Death , yet her Father keeped the same in his Custody , and it was not Intimate till after the Husbands Death , and so the Right not being Established in the Wifes Person by Intimation , could not accresce to the Husband , unless the Suspender would instruct that it was Intimate before .

The Lords found that seing the Assignation was now in the Wifes hands , they would not put the Suspender to prove the Delivery thereof , during the Marriage , but that it was presumed to have been delivered according to the Date , and that thereby it became the Husbands , jure mariti , though no Intimation was in his time .

Archibald Stuart contra Bogle and Matthie . Ianuary 30. 1663.

BOgle and Matthie being Conveened before Archibald Stuart , as Baillie of the Regality of Glasgow , for a wrong committed upon two other Persons in the Kirk , upon the Sabbath , thrusting in upon them in Seat , and beating them , they were therefore amerciat in 200. Pounds , half to the Party , and half to the Fiskall . It was alleadged the Fine was exorbitant , and that Inferiour Courts could not amerciat above ten Pounds , as it had been found by several Decisions . It was answered that this Court being a Regality , and the Fact so atrocius , the Fine was very Competent .

The Lords Sustained the Decreet .

Town of Linlithgow contra Inhabitants of Borrowstounness . Eodem die .

THe Town of Linlithgow having apprehended an Inhabitant of Borrowstounness , in their Town , being an un-free man , and exercising the Trade of Merchandise , they put him in Prison , he granted Bond to forbear in all time coming : Likeas they fined him in a 100. merks , he Suspended and raised Reduction on this Reason , that the Bond was extorted , when so far as he was summarly taken , and put in Prison , and could not get out till he promised to give the Bond , and immediatly after he was out subscribed the same . The Charger alleadged there was no unjust force or fear , because by the Acts of Parliament , in favours of Free Borrows , all unfree men are discharged to exercise the Trade of Merchandise , whereupon they had obtained Decreet against the same Suspender to desist and cease therefrom . Secondly , They and all other free Borrows had immemorially possessed this priviledge , to apprehend persons found within their Town , and forced them to find Caution as Law will , upon Debt due to any in the Town , and particularly to put them in Prison , till they give such Bonds in Surety as this . The Suspender answered to the first , there was no such Warrand by the Act of Parliament , but only to Charge with general Letters , un-free men to find Caution ; and for the Priviledge of Borrows , to arrest un-free persons within their Towns ; it is only in case of Debts , and other Merchandises , due to Burgesses , but cannot be extended to this Case , where there is a special Order set down by Act of Parliament .

The Lords found that the Burghs Royal summarly upon Staple Ware of un-free men , and might judge thereanent , but not summarly Incarcerate their Persons , but only to Charge them ; and found their Custom and Priviledge , not to extend to this Case ; and therefore found the Reason of Reduction Relevant .

The Lady Carnagy contra The Lord Cranburn . Eodem die .

LAdy Anna Hamiltoun and the Lord Carnagie her Husband , as having obtained a Gift of Recognition from the King , of the Barony of Innerweek , and being thereupon Infeft , pursues the Lord Cranburn to whom the samine was Disponed , by the Earl of Dirletoun , Grand-Father to both , for declaring the Recognition , and the Donatrix Right , in so far as Iames Maxwel , late Earl of Dirletoun , holding the saids Lands of His Majesties Ward , and relief had , without His Majesties consent , Alienat and Disponed the same to Iames Cicile his Oye , then second Son to the Lord Cranburn , procreat betwixt him and the Earl of Dirletouns second Daughter . It was alleadged for the Defender , absolvitor , because where there was no Infeftment , there could be no Alienation nor Recognition ; and there could be no Infeftment without the same were granted to the Disponer , or his Procurator , to the accepter to his Procurator ; but here there was no accepter nor Procurator , because Cranburn being then a Child , and in England , had granted no Mandat to take this Seasine ; and therefore had raised Reduction thereof , as done without his Warrand . And as to the Procuratory expead in the Chancellary , Constituting an Acturney to the said Iames Cicile , the expeading thereof was without his knowledge or warrand ; and therefore the Seasine being taken without his Warrant , was null , and made no Alienation nor Recognition , as if any Heretor Disponing Ward-Lands , and giving a Precept of Seasing , if any third Party should accidentally find , or steal away that Precept , and take Seasine , the same would be found null , as without Warrant , and would infer no Recognition . 2ly , Absolvitor , because the Disposition to the Defender , bears expresly , that Dirltoun Dispones , failzing Heirs-male of his Body , so that it being conditional , and the Seasine being actus legittimus qui nec recipit , di●m nec conditionem , the samine is null ; for if Di●ltoun had an Heir-male of his own Body , he would have excluded James Cicile , not by way of Reversion , or Retrocession , there being none such in the Disposition ; therefore it behoved to be a Suspensive Condition . 3ly . Absolvitor , because though the Seasine had been accepted warrantably , yet the Accepter was minor , and thereupon Leased , and ought to be restored and the Seasine annulled , and consequently the Recognition . The Pursuer answered to the First , non relevat , for albeit there had been no Acturney out of the Chancellary , the Seasine would have been valid , because there needs no other Procuratory , for taking of Seasine , but only the Precept of Seasine , which is an express Mandat of the Disponet , and the having thereof in the Acturneys hand , is a sufficient evidence of the Warrant or Mandat to be Acturney , for the Receiver , which proves sufficiently his Warrant , neither was there ever any more required to a Seasine in Scotland , and if more were required , all Seasines would be null , it being ordinar to give Seasines to Infants , or absents out of the Countrey ; but the delivery of the Precept by the Disponer , to any Person in Name of the Accepter , is a sufficient Mandat , or Acturney for the Accepter , especially here , where a Grand-Father gives Infeftment to his Oye , he might well give a Warrant to an Acturney for him to accept . To the second , albeit the Disposition bears , failing Heirs-male of the Disponers Body : Yet the Precept is directed to give present State and Seasine without delay ; whereby it is clear , that the Disponers meaning was not , that this condition should be Suspensive to impede the Infeftment : And therefore all it could operate is , to have the effect of a resolutive Condition , that if any Heir-male should be Supervenient , he might upon that condition pursue James Cicile to renunce the Right , or to declare it null , neither is a Seasine actus legittimus , and though it were , and were incapable of a day or condition , yet that would not annul the Act , but annul the condition or day , as aditio haereditatis , is actus legittimus : Yet if any man enter Heir for a time , or under condition , he is Heir simply ; and the time and condition is void , but not the Entry it self . To the Third , albeit regulariter , Minors Leased may be Restored , yet that hath its Exceptions , as a Minor being Denunced Rebel , and his Escheat fallen , or thereafter his Liferent , or bearing in Non-entry , either simply , or through a wrong or informal Infeftment , he would never be restored against these Casualities , so neither against the taking of Seasine , in so far as may infer Recognition . 2ly , There could be by the Seasine no Lesion at that time , Cranburn being then but his Mothers second Son , and not alioqui succ●ssurus , to the half of the Estate , as now he is ; neither is ever Lesion interpret by the prejudice of any part of a Deed , unless there were Lesion of the whole , as if Lands were Disponed to a Minor , with the burden of Debts , he could not reduce the burden of Debts as to his Lesion , unless thereby the whole Disposition were to his Lesion .

The Lords Repelled these three Defenses .

Rig of Carberrie contra His Creditors . Eodem die .

THE Creditors of Carberrie having obtained a Decreet against Carberrie , and Denunced him thereupon , pursues for Annualrent since the Denunciation , conform to the Act of Parliament thereanent . The Defender alleadged Absolvitor , First , Because the Horning was manifestly null , he being Denunced in the Name of Richard the Usurper , after he was out of his pretended Authority . 2dlie , Because the Decreet being Suspended , a fifth or sixth part thereof was taken away . 3dlie , , The Denunciation was not at the Cross of the Regality of Musselburgh where he dwells , but at Edinburgh , 4lie , Before the D●nunciation he had given in a Bill of Suspension , whereupon there was a Deliverance given , superceeding Execution , till the Bill were seen and answered ; in the mean time these Pursuers getting the Bill to see , proceeded to Denunce . The Pursuers answered to the first , that it was nottour , and attested by the Keeper of the Signet , that Richard was repute in Scotland , to be in his Authority till the 18. of May 1659. till which the Signet was open , and many Letters past in his Name , and this Denunciation was upon the sixth of May , and the Charge in Aprile .

In respect whereof , the Lords Repelled the first Defense ; They Repelled also the second Defense , as to the Annualrent of what was found due by the last Decreet . They Repelled the third Defense , because the Usurper had cryed down Regalities : and found the fourth Defense Relevant , scripto vel juramento , viz. That there was a Deliverance stopping Execution the time of the Denunciation .

Rickart contra Eodem die .

RICKART being Tacks-man of a Room of the Barony of Lowdoun , set the same to a Subtennent , for paying the Heretors Rent , and so much superplus , whereupon he Charged the Sub-Tennent , who Suspended , and alleadged that the Charger had sub-set to him as Tacks-man , and was obliged to produce his Tack to him , and being Warned by the Heretor , he did by way of Instrument require the Chargers Tack ( if he any had ) to Defend himself thereby , which he refused ; and the truth is , he had no Tack unexpired : Whereupon he was necessitate to take a new Tack from the Heretor , for the whole Duty he was obliged to pay to the Heretor , and Rickart before . The Charger answered non Relevat , unless as he had been Warned , he had also been Removed by a Sentence , in which the Charger would have compeared and Defended : And albeit he had not compeared , the Defender had this Defense competent , that he was Tennent to the Charg●● , by payment of Male and Duty , who had Right by Tack , either standing , or at least he bruiked , per tacitam relo●ationem , and he not Warned nor Called .

The Lords found the Reason of Suspension Relevant , and that the foresaid Defense of tacit Relocation would not have been Relevant , tacit Relocation being only effectual against singular Successors of the natural Possessor . The Warning of whom is sufficient to interrupt the same , not only as to them who are warned , but any other Tacks-man , whose Tacks are expired , and therefore the Defense in that Case , must always be , that the Defender is Tennent , by payment of Male and Duty to such a person , who either is Infeft , or hath Tack and Terms to run after the Warning ; but if the Charger had a Tack standing , the Lords ordained him to produce the same , and they would hear the Parties thereupon .

Charles Oliphant contra Dowglasse of Donnoch . February 3. 1663.

CHarles Oliphant as Assigney Constitute by David Macbrair , Charges Dornoch to pay the sum of 1800 merks : Compearance is made for an Arrester , as having Arrested before the Assignation , at least before Intimation . The Assigney answered , no preference upon this Arrestment , because it was Execute upon the Sabbath Day , and so is not lawful : for by the Law of all Nations , Judicial Acts done by Authority of Judges , upon Legal Process , diebus feriates are null ; and there is an Act of Sederunt to that same effect . The Arrester answered , that there was no Law prohibiting such Executions , or declaring them null ; and though it was a fault and breach of the Sabbath to do so , that annuls not the Act , fi●ri non debet sed factum valet .

The Lords were all clear that such Executions should be prohibit in time coming , but quo ad praeterita , some were non liquct ; Yet the major part found the Execution null , for they thought , that albeit Acts of privat Parties on the Sabbath Day , might stand legally valid , as if Extracts were Subscribed that day , or a Consignation made , ( which had been found valid by a former Decision ) yet judicial Acts , authoritate judicis , are null , else Messengers would ordinarly wait Parties upon the Sabbath Day , for all Execution by Horning and Caption , &c.

Laird Phillorth contra Lord Frazer . February 4. 1663.

SIR Alexander Frazer of Phillorth , being in Distresse for Debt , Disponed his Barony of Cairnbuilg ; to Robert Frazer of Doors , which Lands of Cairnbuilg lyes near to Phillorth , and the House thereof was his Residence , in the Alienation there is a Clause conceived to this effect , that it shall not be leisom to the said Robert Frazer of Doors , to Alienate the Lands , during the Lifetime of the said Sir Alexander Frazer , and if the said Robert Frazer did in the contrary , he obliged him to pay to the said Sir Alexander , the Sum of ten thousand pounds for Damnage and Interest , ex pacto convento , and if the said Robert should have a●do to sell the saids Lands , after the death of the said Sir Alexander , he obliged him to make offer there to the Heirsand Assigneys of the said Sir Alexander ; or any Person he pleased nominat of the Name of Frazer , for 38000 pounds . The said Robert Frazer of Doors , Disponed the saids Lands to Staniewood , during the life of Sir Alexander Frazer : Sir Alexander assigned the Contract , and the foresaid Clause to this Phillorth , whereupon he raised Improbation and Reduction , of the Disposition granted by Doors to Staniewood , the Lord Frazers Grand-Father upon this Reason , that he as Assigney by his Father to the Clause de non alienando , had good interest to pursue Reduction of the Disposition contraveening the said Clause ; and true it is that the said Disposition granted by Doors to Staniewood , was null ; as proceeding a non habente potestatem , in so far as by the foresaid Clause , in the said alienation granted by his Grand-Father to Doors ; it was expresly provided , it should not be leisom for Doors to sell , &c. Which being a Provision in the Disposition repeated , at the least generally in the Procuratory of Resignation , is pactum reale , effectual against singular Successors , as was lately found in the case of the Lord Stormont , and so must annul the Right made contrair thereto . 2ly , Albeit it were not a real Paction , yet unquestionably the Obligement not to Annalize , did personally oblige Doors , and thereupon there was an Inhibition raised before my Lord Frazers Grand-Father Staniewoods Right : And therefore the Disposition made thereafter ought to be reduced , ex capite inhibitionis . It was answered for the Lord Frazer , to the first member of the Reason , non relevat ; for such an Obligation , de non alienando● is reprobat in Law , as being contrair the nature of Property . 2ly , It is not reale pactum , albeit it were in the Charter or Seasine , much less being only in the Disposition , and in the Narrative of the Procuratory of Resignation thus , and to the effect the said Robert Frazer may be Infeft , upon the provisions and conditions in manner foresaid , but no further mention thereof ; in the Procuratory of Resignation or Infeftment , and so meets not with Stormonts Case , where the Clause was expresly resolutive , that in such a Case the Right should be null ipso facto ; and return to the next person who might be Heir of Tailzie . Which Clause was not only in the Disposition , but in the Procuratory , Charter , and Seasine Registrate ; and thereby equivalent to a Publication of an Interdiction : but here there is no resolutive or irritant Clause , nor any Right reserved to return in case of contraveening , nor is it in the Infeftment at all . As to the second , the Inhibition cannot make the Clause effectual to annul the Alienation , because Doors was not simply obliged , not to Alienat during Sir Alexanders Life , but if he did in the contrair , to pay ten thousand pound for Damnage and Interest , ex pacto convento , which cannot be understood of Damnage by delay , or Expence in attaining the principal Obligation , seeing it bears not as is ordinar by and attour performance , and the quantity thereof being so great , it must be evidently understood of the value of the principal Obligation , so that it becomes an alternative or restrictive Clause , whereby it was in Doors option , whether to forbear to sell , or to pay the ten thousand pounds if he did sell , so that the Inhibition can reach no further then to the ten thousand pounds , seing Doors by selling , became obliged for the ten thousand pounds .

The Lords found the Defense Relevant , and that the Clause or Inhibition could extend to no further then ten thousand pounds .

It was further alleadged for Frazer absolvitor , from the ten thousand pounds , because it being a Moveable Sum , fell under Sir Alexander Frazer his Escheat , which was Gifted to one Forbes , and declared expresly as to this ten thousand Pounds , and assigned to the Lord Frazer . The Pursuer answered that this Sum was Heretable , because it succeeded in the place of the principal Obligation , not to alienat for such a time ; and after that time to offer the Lands of Phillorth and his Heirs , for eight thousand pounds , which is clearly an heretable Clause ; and therefore this Sum coming in leu thereof , must belong to the Heir or Assigney , and so fell not to the Fisk , seing surrogatum sapit naturam surrogati , as Sums Consigned for Redemption of Lands before Declarator , are not moveable , but belong to the Wodsetters Heirs or Assigneys ; so in mutual Obligations , whereby one person oblieges to Dispone , or Resign Lands ; and another is oblieged for a price , the price would not belong to the Executor , or Fisk , but to the Heir ; any sums due for Damnage and Interest , not performing a Disposition , or upon Eviction , belongs to the Heir , not to the Executor . The Defender answered , that this sum is not in the case of any of the former alleadgences , neither is the question here , what would belong to the Executor , but what would belong to the Fisk , for Moveable Heirship belongs to the Heir and not to the Executor , and yet belongs to the Fisk , so do sums without Destination of Annualrents , wherein Executors are secluded . So also doth the price of Lands , when they are de presenti , sold by the Defunct .

The Lords found this sum moveable and belonged to the Fisk , and therefore Assoilzied the Defender from that Member also .

Mr. Ninian Hill contra Maxwel . February 5. 1663.

MR. Ninian Hill pursues Maxwel as heir to his Father Iohn Maxwel , for payment of a sum due to be payed to Maxwels Relict yearly after his death , and assigned to the pursuer . The Defender alleadged absolvitor , because the Pursuers Cedent being Executor her self to the Defunct , was lyable for this sum , & intus habuit . It was answered for the Pursuer , that this being an annual , payment after the Defuncts death , it was proper for his heir to pay the same , not for his Executor , and if the Executor had payed it , he would get releif off the heir .

Which the Lords found Relevant .

Grahame contra Ross Eodem die .

THe Parties having Competed upon Appryzings , being decided the 24. of Ianuary .

Wherein the Lords found that none of the Appryzers should come in with him who was first Infeft , till first they payed their proportional part of the Composition and Expenses ; now having considered again the Tenor of the Act of Parliament , they found that they behoved to satisfie the whole , and that the obtainer of the first Infeftment should bear no share of it , that being all the other Appryzers gave , ●to got the benefit of the Act , to come in pari passu .

Lenox contra Lintoun . Eodem die .

LEnox being Married to Margaret Mcgie , who was an Heretrix , she dying , Lenox Son was Infeft as Heir to her , who dying also without Issue , this Lenox as his Brother by his Mother , and alleadging him to be appearing Heir to his Brother Lenox , in these Lands , whereunto his Brother succeeded to their Mother , craves Exhibitions of the Writs of the Lands , ad deliberandum . The Defender Lintoun alleadged absolvitor , because his Son being Infeft in the Lands as Heir to his Mother , his nearest Agnat on the Fathers side , his apparent Heir , and ●one on his Mothers side ; for we have no intrin succession , neither holds it with us , materni maternis , paterni paternis .

Which the Lords found Relevant , and that the Father was apparant Heir to his Son , being once Infeft as Heir to the Mother , and therefore Assoilzied .

Lady Carnagy contra Lord Cranburn . Eodem die .

THis day afternoon the Lords Advised the rest of the Defenses , proponed for the Lord Cranburn , in the Recognition pursued at the Instance of my Lady Carnagy , who alleadged first , that Recognition was only competent in proper Ward-holdings , and not in blench Feu , or Burgage ; these only being feuda recta & militaria , and all others but fendastra ; But the Lands of Innerweek are not a proper Military Feu , holding Ward , being only a Taxed Ward , wherein the word Duties is Taxed yearly , and the Marriage is Taxed to so much , and so is in the nature of a Feu ; neither was it ever yet found in Scotland that a Taxt-ward did fall in Recognition . The pursuer answered , that the Defense is not Relevant to rule in our Law , being that alienation of Ward-lands , without the consent of the Superiour , infers Recognition , and neither Law nor Custom hath made exception of Taxt-wards , which have but lately occurred in the time of King Iames , who and King Charles were most sparing to grant Gifts of Recognition , whereby there hath been few Debates or Decisions thereanent , and there is no consequence , that because the Casuality of the Ward , when it falls , is liquidat and Taxed , or the value of the Marriage , that therefore the Fee is not a Military Fee , wherein the Vassal is oblieged to assist his Superiour in Counsel and in War , in the stoutest Obligations of Faithfulness and Gratitude ; and therefore his withdrawing himself from his Vassallage , and obtaining another to him , is the greater Ingratitude that the Superior had Taxed the benefite of the Ward , and Marriage , at low rates , which Casualties , cannot be drawn to prejudge the Superior , of other Casualties but on the contrair , exceptio firmat regulam in non exceptis .

The Lords repelled this Defense . It was further alleadged , that here was no offer of a Stranger , but of the Vassals own Grand-child , who now is his apparent Heir in one half of these Lands , as being the eldest Son of his second Daughter : and Recognition was never found in such a Case . The Pursuer answered , that albeit the Defender be now apparent Heir to the Vassal Disponer , yet the Case must be considered , as it was in the time of the Disposition , when he had an elder Brother , the then Lord Cranburn living , and was not alioqui successurus : and the Lords had formerly found ; that an alienation of Ward-lands , by the Earl of Cassils to his own Brother , albeit he was his nearest of Kin for the time , having no Children , yet seing he could not be esteemed alioqui successurus , or Heir apparent , in regard the Earl might have Children , therefore they found Recognition incurred .

The Lords repelled this Defense : 3ly , It was further alleadged , that there could be no Recognition , where there was no alienation of the Fee , without the the Superiors consent , here there was no alienation of the Fee ; because the Seasine being taken to be holden from Dirletoun , of the KING , not confirmed , was altogether null , and therefore Dirletoun was not Divested , nor Cranburn Invested , for such an Infeftment is ineffectual , and incompleat , till Confirmation , and could never be the ground of Pursuit , or Defense against any Party . 2ly , By such an Infeftment , the Superiors consent is a Condition implyed , for an Infeftment to be holden of the Superior , is null till Confirming , and implyes as much as if the Seasine had been expresly granted , si dominus consenserit , and so can be no obtrusion , or ingratitude . 3ly , Craig in his Dieges . de recognitionibus , Reports the Decision of the Lords betwixt Mckenzie and Bane , whereby they found , that the Seasine being unregistrat , was null , and inferred no Recognition , quia non spectatur affectus , sed effectus ; yet that was but an extrinsick nullity , much more here , the Seasine being intrinsically null . The Pursuer answered , First , That if this ground hold , there could be no Recognition , except by subaltern base Infeftments holden of the Vassal , in which there is far lesse ingratitude , there being no new Vassal obtunded , nor the Vassal withdrawing himself from his Clientel , nor any prejudice to the Superior , because subaltern Infeftments would exclude none of the Casualities of the Superiority , yet such Alienations , exceeding the half of the Fee , do unquestionably infer Recognition , though the ingratitude be no more then this , that the Vassal renders himself unable fitly to serve his Superior , by delapidating his Fee , or the Major part thereof , how much more , when he does all that in him is , to withdraw himself from the Superiors Clientel , by obtruding to him a Stranger , alienating from him the whole Fee , and albeit the Seasine be null , as to other effects , till it be Confirmed : Yet as Craig observes in the foresaid place , Vassalus fecit quantum in se erat . 2ly , Though by our Statute , or peculiar Custom , such Seasins unconfirmed are null ; yet by the Act of Parliament 1633. Anent Ward holdings , Recognition is declared to proceed according to common Law , which can be no other then the common Feudal Customs , by which Customs it is sure that the Recognition is chiefly inferred by the Vassals alienation : As to the implyed condition , si Dominus consenserit , though that were expresse , yet the Vassal giving Seasine , the Tradition of Seasine is inconsistant with such a condition , being understood , as a Suspensive condition , for he that delivers Possession de facto , cannot be said upon any condition not to deliver the same de facto , and therefore it is but protestalio contraria facto , and if it be understood as a resolutive condition , as needs it must , it impedes not the Alienation , but only might resolve the same . As to the Decision upon the not Registration of the Seasine una herundo non facit ver , and albeit it might be a rule in that individual Case . It cannot be extended ad alios casus , although it were a Statute , much lesse a Practick .

The Lords also repelled this Defense . 4ly , It was further alleadged by the Defender , that Dirletouns Infeftment was granted by the KING , Haeredibus & assignatis quibuscunque , and thereby the KING consented , that he should dispone his Right to any Assigney , or singular Successor , and this Clause is equivalent to the ordinar Feudal Clauses , Vassallo & quibus dederit , which is ever understood to exclude Recognition , neither can this be understood to be stilus curiae , as when Assigneys are casten in in Charters passing the Exchequer ; but this is an original Grant under the KINGS own Hand . The Pursuer answered , that this Defense ought to be Repelled , because such Concessions , contrair to common course of Law , are stricti juris , and not to be extended ad effectus non expressos praesertim prohibitos , but the adjection of Assigneys is no ways to allow Alienations of the Fee , without consent , but to this effect , because Feuda and Benficia are in themselves stricti juris , and belong not to Assigneys , unlesse Assigneys be expressed ; and therefore albeit no Infeftment had been taken , the Disposition , Charter , or Precept could not be Assigned : so that this is adjected , to the end that those may be Assigned before Infeftment , but after Infeftment , Assignation hath no effect , and this is the true intent of Assigneys . In Dispsitions of Land , it is clear , when the Disponer is obliged to Infeft the Acquirer his Heirs , and Assigneys whatsoever , there is no ground whereon to compel him to grant a second Infeftment to a new Assigney ; but only to grant the first Infeftment to that Person himself , or to any Assigney whatever , which clears the Sense in this case . It hath also this further effect , that singular Successors thereby might have right to a part of the Lands , which though it would not infer Recognition if done , yet if there were no mention of Assigneys it would be null , and as not done in the same Case as a Tack , not mentioning Assigneys .

The Lords Repelled this also . 5ly , It was further alleadged , that Recognition takes only place , where there is contempt and ingratitude , and so no Deed done through ignorance infers it , as when it is dubious whether the Holding be Ward or not ; and therefore Recognition cannot be inferred , seing there is so much ground here to doubt , this Right being a taxed Ward , and to his Heirs and Assigneys , and it is not clear , whether it would be incurred through a Seasine à se , or to one in his Family , whereupon the wisest of men might doubt , much more Dirletoun being illiterate , not able to read or write . It was answered , ignorantia juris neminem excusat . 2ly , Vbi est copia peritorum ignorantia est supina : Here Dirletoun did this Deed clandistenly , without consulting his ordinar Advocats , or any Lawyers , and so was inexcusable ; and if pretence of ignorance could suffice , there could be no Recognition , seing it cannot misse to be ignorance that any should do that Deed that will be ineffectual , and losse their Right .

The Lords Repelled this Defense , and all the Defenses joyntly , and Decerned .

Lord Loure contra Earl of Dundee . February 6. 1663.

THe Lord Loure , pursues a Reduction of a Disposition made by Carnegy of Craig to the Earl of Dundee , as being posterior to the Pursuers Debts , and in prejudice thereof , upon the Act of Parliament 1621. against Bankrupts , and for instructing of the Reason , repeats the Disposition it self , being betwixt confident Persons , Cusing Germans , and without cause onerous , in so far as it bears Reservation of the Disponers , and his Ladyes Liferent , and Provision to be null , if Craig have Heirs of his Body , in whose favours Dundee is to denude himself , upon payment of his expense . The Defender alleadged , that the Lybel is not Relevant . Prim● , because Craig is no Bankrupt , nor any Diligence done against him , before the Disposition . 2ly , He is not insolvent by the Disposition , because there is reserved to him a Power to sell as much of the Land as is worth 80000 lib. for Debt , and so is not in fra●dm crea● oru● ; but the Pursuer ought to pursue for that Provision , either by Appryzing , or personal Action .

The Lords found the Reason relevant and proven by the tenor of the Disposition , and therefore reduced , to the effect , that the Pursuer m●ght affect the saids Lands with all Legal Diligence for his Debt , as if the Disposition had not been granted ; for they thought , seeing , by this Disposition there remains not Esta●e sufficient , ad paratam executionem , and that there was no Reason to put the Pursuer to insist in that Clause , to restrict himself thereby to a part of the Land , but that he ought to have preference for his Debt , upon his Diligence , affecting the whole Land .

William Montgomery contra Theoder Montgomery and Mr. William Lauder . February , 10. 1663.

WIlliam Montgomery , as Donatar to the Liferent-escheat of Theodor Montgomery , pursues a special Declarator against the Tennents of Whit slide belonging to Margaret Hunter in Liferent , and now to Theodor , jure 〈◊〉 , for their Duties . It was alleadged , that the Horning was null , because the D●bt was satisfied before Denunciation . The Pursuer answered , that it was not competent , in the special Declarator , to question the nullity of the Horning . 2ly . Though it were in a general Declarator , it were not competent , not being instantly verifyed without Reduction . 3ly , It were not probable , but by Writ , before the Denunciation , and not by the Creditors Oath , or having discharges , being in prejudice of the KING , but that no hazard might be of ante-dating it , was required by Act of Parliament , that beside the Writ , the Parties should depone upon the truth of the Date . The Defender answered , to the first ; all Defenses competent in the general Declarator , are reserved in the special . To the second , there is a Reduction depending .

The Lords found the Defense relevant , only scripto of the Denuncer .

The Defender further alleadged the Horning was null , as being upon a null Decreet , and falling therewith in consequence .

The Lords repelled the Defense , and found , though the Decreet were null through informality , yet the Horning would not be anulled , but the Partie was in contempt , in not Suspending debito tempore .

Compearance was also made for Mr. William Lauder , who alleadged he had Disposition from the Rebel , before year and day run . The Lords found this Alleadgeance not relevant , unless it were alleadged to be for a just Debt , before the Denunciation . It was further alleadged for Mr. William , that the Pursuer granted Back-bond to the Thesaurer to imploy the Gift , by his appointment , and he offered to satisfye the Donatars Debt , and the whole expense of the Gift .

The Lords found this not relevant , without a second Gift , or Declaration from the Thesaurer .

Thomas Crawfoord contra 〈…〉 Eodem die .

THomas Crawfoord , as Executor Creditor to Umquhile Robert Inglis Pursues some of his Debitors . It was alleadged no Process ; because Thomas , as Factor for Robert Inglis , had pursued the same Partie , for the same Cause , before the Commissaries of Edinburgh , wherein Litiscontestation was made : and so now it cannot be pursued elsewhere , but the Process , ought to be transferred and insisted in . The Pursuer answered , that he pursued then as Factor , but now as Executor-Creditor , who did not consider what Diligence Defuncts did : but might insist therein , or not . 2dly , This being a dilator , is not instantly verifyed .

The Lords found the Defense relevant , but would not find it competent , unless instantly verifyed ; and because it behoved to be instructed by an Act Extracted .

Catharine Frazer contra Heugh Frazer . February , 11. 1663.

THe said Catharine only Child of a second Marriage , being provided to eight thousand merk of Portion , at her age of 14 years , but no oblidgment of Aliment , or Annualrent till then , pursues her Brother , as Heir to her Fathers Estate , being of a good condition for Aliment . He alleadges he was oblidged for none , not being Parent , nor his Father oblidged by Contract , or Bond for it .

The Lords found an Aliment due , for the Pursuers Mother was not alive , and able to Aliment her .

Lockie contra Patoun . February 12. 1663.

ELizabeth Lockie Spouse to Doctor Patoun , pursues a Reduction of a Disposition , granted by her Husband , to certain Persons , as prejudicial to her Contract ; in which Contract there was a Clause , declaring Execution to pass at the instance of certain Persons , who concur with this pursuit .

The Lords sustained the pursuit , though it was not for Implement , but for Reduction of a Right , impeding the benefit of the Contract , without concurse of the Husband , seing the Process was against a Deed of the Husbands , and he called passive .

Earl of Southesk and Carnegy contra Bromhall . Eodem die .

BRomhall having taken the Lord Sinclar with Caption , Southesk and his Son gave Bond , to produce him to the Messengers ; or to pay the Sum. on the third of February , betwixt two and ten , whereupon Southesk having reproduced him , craved by Supplication , his Bond up , or to be declared satisfied , and extinct . The Defender answered , First , He not being a Member , or Dependent on the Colledge of Justice , cannot be called thus summarily : especially to declare a Bond void , which is in effect a Reduction . 2dly , The Bond was not performed , in so far as the Lord Sinclar was not reproduced till the 4th of February . The Pursuer answered , that the Defender living in Edinburgh , and not compearing , the Bill , per modum quaerelae might be sustained . To the second , it being modica mora of one day , without damnage to the Defender , and there being trysting amongst the Parties all the time betwixt , it was sufficient .

The Lords sustained the Petition , and found it extinct .

Relict of George Morison contra His Heirs . Eodem die .

THis Relict pursues for Implement of her Contract . It was alleadged she had accepted a Wodset , in full satisfaction thereof , which now being Redeemed , she could crave no more , but Re-imploying the Money to her in Liferent .

The Lords found , that this acceptance by the Wife , being donatio inter virum & uxorem , she might now revock it , and therefore found the Heir lyable to make up what was in the Contract .

The Town of Linlithgow contra Unfree-men of Borrowstounness . February 13. 1663.

THe Town of Linlithgow insisted in their Charge , upon a Bond granted by some Inhabitants of Borrowstounness , oblidging them to disist and cease from us●ing the Merchant Trade , under the pain of 500 , merk which was Suspended , on this Reason , that the Bond was extorted by unwarrantable force , in so far as the Suspenders were taken in Linlithgow brevi manu , and incarcerat , till they granted the Bond. The Charger produced a Decreet of the Lords , in Anno 1643. against several Inhabitants in Borrowstounness , compearand , who having Suspended the general Letters , upon Act of Parliament , for finding Caution to desist , &c. The Letters were found orderly proceeded ; and the Town of Linlithgow impowred , not only to seize upon the Merchant Goods of the Inhabitants of Borrowstounness , if they medled in Merchant Trading , but also bearing , with power to put the Persons , using the saids Merchant Trade in Prison , till Justice were done upon them ; and thereupon alleadge , that the Suspenders being incarcerat , by vertue , and conform to the foresaid Decreet standing , there was no unwarrantable Force used . 2dly , They produced an Act of the Council of Linlithg●w ▪ Bearing the Suspenders , to have compeared before the Council , and to have confessed their wronging of the said Town , in the Trade of Merchandize ; and that there was Horning and Caption against them , for the Cause ; and therefore declared their willingness to grant the Bond in Question . The Suspenders answered to the First , That albeit the foresaid Decreet bear compearance , yet there is no Dispute in it , and it is evident to be by Collusion , and Surreptitious ; because this Conclusion now alleadged , is ultra petita , there being no such thing in the general Letters , nor doth the Decreet bear any special Charge given , neither is this Conclusion warrantable , by any Law , or Act of Parliament . 2dly , This Decreet could be no warrant to Incarcerat the Suspenders , because it is given only against some particular Persons , then living in Borrowstounness ; without calling either of the Barron or Baillies of the Burgh of B●rronie , and therefore is null , as to any other Persons ; and as to the Second Answer , upon the Act of Council , it cannot prove against the Suspenders , being only under the Town-clerks hand , not being a Process upon Citation , nor having a Warrnat subscribed by the Suspenders .

The Lords having considered the Bond in Question , albeit they found the tenor thereof not to be contrair the Act of Parliament , yet found the same was unwarranttably taken , if the same was extort●d , as aforesaid , and found the Decreet of the Lords not to militat against the Suspenders , or to warrand that incarceration brevi manu , and found the Act of Council proved not agai●st the Suspenders and yet Ordained them to renew a Bond , by the Lords Authority of the like tenor .

Elizabeth Fleming and Sir Iohn Gibson contra Fleming and Robert Baird .

BY Contract of Marriage betw●xt the said Robert Baird , and his Spouse , he accepted 12000 merk in name of Tocher in satisfaction of all his Wife could succeed to , by her Father , Mother , Sister and Brothers , and discharged his Mother as Executrix , and Tutrix thereof ; Yet she having formerly put more Bonds in the name of Roberts Wife , then this Sum , and there being no Assignation to the remainder in the Contract , pursues the said Robert and his Spouse , to grant an Assignation thereof , and to pay what he had uplifted of the Sums , more nor his Tocher . The Defender alleadged the Summons are not relevant , he neither oblidged ex lege , nor ex pacto to Assign . The Pursuer answered , this being bona fidei contractus , the meaning and interest of the Parties is most to be respected , and therefore though it contains but expresly a discharge , which cannot be effectual , to lift the Sums from the Creditors , but would loss them to both Parties , he must Assign : especially , seing his acceptance of full satisfaction imports an oblidgment , to denude himself of the superplus . And which the Lords found relevant , and sustained the Summons .

Walter Riddell contra Eodem die .

WAlter Riddell , as Executor dative confirmed to one Liddell in the Ca●nongate , pursues his Debitors to pay , compears a Donator , as ultimus Haeres , and craves preference . The Pursuer answered . First , His Gift was not declared . 2dly . He offered to prove the Defunct had an Agnat , viz. an Uncle , or an Uncles Son . Which the Lords found relevant to be proven by Witnesses .

Robertson contra Buchannan . February 14 1663.

RObertson pursues Buchannan , to repay to him a sum of Money , who alleadged , that his Bond bearing to pay this Charger , or to Arthur Buchannan his Brother , it is alternative & electi● est debitoris , and he has compensation against Arthur , which is equivalent , as if he had payed him .

The Lords repelled this alleadgance , and found that the Charger being deliverer of the Money , and now haver of the Bond , it could import no more , but that the other Brother was adjected for the Chargers behove , and that there is no option to the Debitor in such cases .

Mr. Iames Forsyth contra Archibald Patoun . February 17. 1663.

MR. Iames Forsyth , as Executor Confirmed to his Sister , pursues the said Archibald Patoun her Husband , for payment of her third of his Free Goods , at the time of her death . The Defender alleadged , First , By the Deceased Wifes Contract of Marriage with the Defender , she accepted a 1000 lib. for all she could crave by his decease , in case there were no Bairns of the Marriage , and albeit there was a Bairn surviving her , yet the Bairn shortly thereafter dyed .

The Lords repelled this Defence , and found that the Bairn surviving the Mother , never so short was enough .

It was further alleadged absolvitor , because the Deceased Wife having a Child surviving her , her share belonged to that Child , as nearest of Kin , and the Child being dead , belongs to the Defender , the Childs Father , as nearest of Kine to the Child , and cannot go back to the Mothers nearest of Kin ; because there is no succession of Cognats in Scotland . The Pursuer answered , that if the Child had been Executor Confirmed to the Mother ad eundo haereditate , would transmit the same to the Father , but there being no Confirmation haeredi●as mobilium jacebat , and the Goods remain yet still in bonis defuncti maritis , and albeit it was found in the case of Bells contra Wilkies , that it was not necessar to transmit moveables , that the Testament were execute ; yet in that case it was a Confirmation , which was esteemed an addition . The Defender answered , that he had done diligence to have it Confirmed , but during the Childs life , all Judicatories were stopped , and he had taken Instruments of his desire to be Confirmed : and alleadged , that as Bairns surviving would transmit their Legittime though they had done no diligence ; so this Bairn surviving alone was sufficient .

The Lords found , that seing there was no Confirmation , the Right was not established in the Childs Person , and that the Right could not fall to the Father , but fell to the nearest of Kin of the Mother , and found it was not like a Legittime , which is only of the Fathers means , and not of the Mothers , and hath a special priviledge in Law , to be transmitted by more superviving .

Margaret Hay contra Sir Geo●ge Morison . Eodem die .

SIR Geoege Morison having granted a Bond to Umquhile Iohn Bell and Margaret Hay , the longest liver of them two in Conjunct-fee , and after their Decease , to the Bairns of the Marriage , the said Margaret , with concurse of the Bairns , charges for Payment , Sir George Suspends on this Reason ; that Margaret is but Liferenter , and the Bairns of the Marriage are but Feears ; and therefore , seing there was an Infeftment upon the said Bond , he ought not to pay the Sum , till the Bairns be Infeft as Heirs of Provision of the Marriage to their Father , and renunce the Infeftment .

The Lords decerned , but superseded the Extract , untill the Bairns were Infeft , as Heirs of Provision to their Father : and did grant Renunciation , and found , that all the Bairns , Male and Female , joyntly and equally , behoved to be Served as Heirs of Provision to their Father in this Annualrent , and Infeft accordingly , and that by Bairns , was not to be understood the Heir of the Marriage only .

Colonel Iames Montgomery contra The Heirs of Robert Halliburtoun Eodem die .

IN a Declarator of Redemption of a part of the Lands of Collfield .

The Lords sustained the Order , at the instance of the Collonel , as being a Singular Successor , albeit he produced not the Reversion , at the using of the Ordor , nor now , seing the Defender compeared and he offered to prove by their Oath , or their Curators , that they had the Contract of Wodset in their hand , both then and now .

Birsh contra Dowglas . February 18. 1663.

BIrsh an Inglish Woman pursues Catharine Dowglas , to pay a Bond , wherein she and her Umquhile Husband were oblidged . The Defender alleadged absolvitor , because it was a Bond stante matrimonio given by a Wife , which is null in Law . It was replyed it is Ratified Judicially , and the Defender oblidged never to come in the contrare upon Oath Judicially , which is the strongest Renunciation of that priviledge of Wifes , and it hath been frequently found , that minors making faith , cannot be restored lesionem conscientia ex juramento violato .

The Lords having debated the case at large amongst themselves , found the Bond null notwithstanding of the Oath ; for they thought , that where the deed needed no Restitution , as in the case of minors , these deeds are valid , but the minor may be restored ; but in deeds ipso jure null , where there need no Restitution , an Oath cannot make , that ane Legal deed which is none , it was winne by a Vot or two , many thinking that such priviledges introduced by Custome or Statute might be Renunced , and much more sware against ; but that it were fit for the future , that all Magistrats were prohibited to take such Oaths of Wifes , or Minors , who are as easily induced to Swear , as to oblidge , and if they did , that they should be lyable to pay the Debt themselves .

Dumbar of Hemprigs contra Lady Frazer . Eodem die .

MY Lady Frazer , being first married to Sir Iohn Sinclar of Dumbeath , next to the Lord Arbuthnet , and last to the Lord Frazer , Dumbar of Hemprigs as Executor confirmed to Dumbeath , pursues her , and the Lord Frazer her Hushand , for his interest , for delivery , or payment of the Moveables of Dumbeath , intrometted by her . It was answered . That she had Right to the half of Dumbeaths Moveables , as his Relict , and her intromission was within that half . It was Replyed , that she had only right to third , because Dumbeath had a Bairn of the former Marriage , who survived him , and so the Executory must be imparted . It was duplyed , that that Bairn was for as familiat , married , and provided before her Fathers Death , and so was not in familia , and albeit , if there had been any other Bairns in the Family , that Bairns part would have accresced to them , yet being no other : It accresced to the Man and Wife ; and the Executory is bipartiti .

The Lords found the Defense and Duply relevant , albeit it was not alleadged , that the Tocher was accepted , in satisfaction of the Bairns Part of Gear , unless those who have Right would offer to confer , and bring in the Tocher received ; in which case , they might crave a third , if the same were not Renunced , o● the Tocher accepted instead thereof .

It was further alleadged for the Lord Frazer , that he could not be lyable as Husband ; because his Lady being formerly Married to the Lord Arbuthnet , he got the Moveables , and his Successors should be ●yable , at least in the first place .

The Lords repelled the alleadgeance , but prejudice to the Lord Frazer , to pursue the Successors of the former Husband , for repetition , as accords .

Mckenzie contra Iohn Ross. Eodem die .

JOhn Ross having Appryzed certain Lands belonging to Mckenzie , there is a Pursuite of Compt and Reckoning intented , for declaring , that the Apprysing was satisfyed within the Legal . It was alleadged , that the Appryzer was not Comptable for more of the other Parties Minority then seven years , because , in the Act of Parliament 1621 Anent Appryzing , it is so provided , and albeit the meaning of the Act of Parliament was declared to be otherwayes , by the Act of Parliament 1641. Yet that Declaration was contrary to the clear meaning , by the general rescissory Act 1661.

The Lords having considered the Rescissory Act● and the Reservation therein , of the Right of Private Parties following upon the deeds of these Parliaments . In Respect thereof , and of the Custome this 20 years , the Appryser useing to Compt for all , found the Appryser Comptable for the whole Year of the Minority .

William Blair contra Anderson . Eodem die .

William Blair as Assigny , by the Wife and Bairns of Mr. David Anderson , by his second Marriage , pursues his Daughters , both of the first and second Marriage , as Heirs of Lyne , for Implement of the second Contract of Marriage , and the Daughters of the second Marriage offering to Renunce to be Heirs of Line , but prejudice of their Provision , by Contract of Marriage , as Bairns of that Marriage . The Assigney insisted against the Daughters of the first Marriage , as lawfully Charged , &c. Who alleadged no Processe , because the Provision , by the Contract of Marriage , insisted on , run thus , That Mr. David obliged himself , and his Heirs-male , Successors to him in his Estate , but did oblige no other Heirs . Ita est , there is an Heir-male . The Pursuer answered , albeit Heirs-male were only expressed , other Heirs were not excluded : specially , seing he bound himself , so that the effect thereof would only be , that the Heir-male should be lyable primo loco .

The Lords found the Heir-male lyable primo loco , and the Heirs of Line secundo loco , and found the Heir-male sufficiently discussed , by an apprizing of the Clause of the Contract of Marriage , in favours of the Heirs-male , they not being Infeft as yet , and having no other Right .

Scots contra Earl of Hume . February 19. 1663.

THe four Daughters of 〈…〉 Scot pursues an Ejection against the Earl of Hume , out of some Lands belonging to them . It was alleadged for the Earl absolvitor , because he entered into Possession , by vertue of a Decreet of Removing , given at his instance , Anno 1650. It was Replyed , that the Decreet was only against the Pursuers Mother , that they were never called , nor decerned therein . The Earl answered , First , That the Decreet was against the Mother , to remove her self , Bairns , Tennents , and Servants , and her Daughters were in the Family , being then young Bairns ; and he was not obliged to know them , they not being Infeft , but having only an old Right ; whereupon there was no Infeftment for 40. years the time of the Decreet .

The Lords in respect of the Defense , restricted the Processe to Restitution , and the ordinary Profits , and decerned the Earl to restore them to Possession instantly , but superceeded payment of Profits till both Parties were heard , as to their Rights , for they found , that the Decreet of Removing could not extend to their Children ; and albeit they were not Infeft , yet they might maintain their Possession upon their Predecessors Infeftment , how old soever , seing they continued in Possession .

Bessie Muir contra Jean Stirling . Eodem die .

THe said Bessie Muir pursues her Mother , as Executrix to her Father , for payment of a Legacy of 8000. merks left in his Testament , subscribed by the Defender , and Confirmed by her , after her Husbands Death . The Defender alleadged absolvitor , because she , by the Contract of Marriage , was Provided to the Liferent of all Sums to be Conquest , and albeit she consented to the Legacy , it was Donatio inter virum & uxorem , and for her Confirmation , it cannot import a passing from her own Right , but only her purpose to execute the Defunc●s Will , according to Law , especially she being an illiterat Person . The Pursuer answered , that this Donation was not by the Wife , to , or in favours of the Husband , but of their Children , which , is not revockable , and also the Confirmation humologats the same , seing the Wife might have Confirmed , and Protested to be withont prejudice of her own Rigt .

The Lords Repelled the Defense , in respect of the Reply .

Cicil Ruthven contra Hay of Balhousie . Eodem die .

CIcil Ruthven having granted a Bond to David Lamb , that thereupon he might Apprize from her an Annualrent , whereunto she was Apparent Heir ; whereupon she having obtained a Decreet , and now seeking Adjudication in Lambs Name ; Lamb produces under his hand a Writ declaring that his Name was but used in Trust , that he disclamed the Processe .

The Lords , notwithstanding Sustained Proc●sse , being so far proceeded , in respect of the Declaration , bearing the Trust , and found he could not disclaim , in prejudice of the Trust.

Lady Swintoun contra Town of Edinburgh . Eodem die .

THe Magistrats , and Councel of Edinburgh , having granted them to be Debitors to the Lady Swintoun , by way of Act , conform to their Custom . The Lady supplicat , that the Lords would grant Letters of Horning upon the said Act , whereupon the Magistrats being Cited upon twenty four hours ; alleadged , they were not Conveenable hoc ordine , by suiting Letters of Horning upon a Bill , but it ought to have been by an ordinary Summons , either craving payment , or Letters conform .

The Lords notwithstanding granted Letters of Horning .

Baillies of Edinburgh contra Heretors of East-lothian and Mers . February 20. 1663.

THe Baillies pursue these Heretors for so much allowed of the Maintainance of these Shires , of the moneths of August and September , 1650. And insisting on an Act of Litiscontestation , in Anno 1659. Whereby the Defenders having proponed a Defense of total vastation , the same was found relevant . The Defenders having now raised a review , alleadge that they ought not to have been put to prove total Vastation , seing Vastation was Notour , these Shires being the Seat of the War , where the English Aarmy lay , which ought to have freed them , unlesse the Pursuers had replyed , that the Heretors got Rent that year , and had been burdened with the Probation thereof . 2dly , The Order of Sir Iohn Smiths general Commissar , and also of the Provisors of the Army , bearing the Provisors to have Furnished such Provisions want Witnesses , and might have been made up since they were out of their Offices .

The Lords adhered to the Act , and found the Defense of total Devastation , yet Relevant , in this manner , that the Heretors got no Rent , and granted Commission to receive Witnesses , at the head Burghs of the Shires , for each particular Heretor , to prove their particular Devastations , and Sustained the Order of the General Commissar , he making faith , that he subscribed an Order of the same Tenor while he was in Office .

Hary Hamiltoun contra William Hamiltoun . February 21. 1663.

HAry Hamiltoun pursues his Brother William , as behaving himself as Heir to their Father Iohn Hamiltoun Apothecary , to pay six thousand merks of Provision by Bond , and condescends that William intrometted with the Rents of the Lands of Vlistobe , whereunto his Father had Heretable Right . The Defender answered , that his Father was not Infeft , because he Infeft the Defender therein before his Death , Reserving only his own Liferent . The Pursuer answered , that the Infeftment was under Reversion , and was Redeemed by the Father , which Order , though not Declared , gave him the Right to this Land , and was more than equivalent to an Heretable Disposition , cled with Possession , which would make the Apparent Heirs intrometting , infer behaving as Heir , for the Declarator non constituit sed declarat jus constitutum .

The Lords Repelled the Defense , and duply , in respect of the condescendence , and reply of the Order used .

2ly . The Defender alleadged absolvitor , because those Lands were Apprized from the Defunct , and thereby he was denuded , and so the Defender could not be Heir therein , at least he could have nothing but the Right of Reversion , which reacheth not to Mails and Duties .

The Lords found , that unlesse the Defender had Title , or Tolerance from the Apprizer , the Legal not being expired , but the Debitor in Possession , his Heir intrometting , behaved as Heir , the Apprizing being but a Security , of which the Apprizer might make no use , or but in Part , as he pleased .

Stirling contra Campbel . Eodem die .

THe same last point was found betwixt these Parties , and also that the Heirs Intromission with the whole Silver work , so comprehending the best of them , which is the Heirship , was gestio pro haerede .

Anna Wardlaw contra Frazer of Kilmundi . Eodem die .

ANdrew Wardlaw having a Wodset upon some Lands of the Lord Frarzer ; The Debitor raises Suspension of multiple Poinding , against Anna Sister and Heir to the said Andrew Wardlaw , and Frazer of Kilmundi pretending Right by a Legacy , from the Defunct to the same Sum. The Heir alleadged , that it could be lyable to no Legacy , being Heretable . The Defender answered , primo , the Legacy was made in pro●inctu belli where there was no occasion to get advice of the Formal and Secure way of disposing of the Wodset , but the Will of the Defunct appearing in eo casu , it must be held as effectual as Testamentum militare in procinc●u , which needs no solemnities . 2ly , The Heirs Husband hath homologat the Legacy , by discounting a part thereof . It was answered , that no Testament whatever can reach Heretable Rights with us . 3ly , That the homologation of the Husband cannot prejudge his Wife , nor himself , quoad reliquum not discounted .

The Lords found the Heirs had only right , except in so far as the Husband had homologat the Legacy , which they found to prefer the Legator to the whole benefit , the Husband could have thereby jure mariti , but not to prejudice the Wife thereaf●er .

Iames Aikenhead contra Marjory Aikenhead . February 25. 1663.

THe said Iames insists for the delivery of a Bond granted to his umquhile Father , and Assignation thereto , by his Father to him , against the said Marjory , producer thereof . It was alleadged no delivery , because the Assignation , in favours of the Pursuer , was never delivered , but keeped in his Fathers Possession , which cannot be accompted his Possession , seing the Pursuer is a Bastard . 2ly , The conception of the Assignation is to the Pursuer and his Heirs ; which failzing , to the said Marjory , and her Heirs , and he being now Minor , ought not to dispose of the Sum in her prejudice .

The Lords Repelled the Defenses against the delivery , and found that the Pursuer , during his Minority should not uplift the Sum , till the Defender were called , and had accesse to plead her Interest .

Adam Hepburn contr Helen Hepburn . Eodem die .

THe Estate of Humby being provided to Heirs whatsoever ; umquhile Tomas Hepburn of Humby , in his Contract of Marriage . with Elizabeth Iohns●oun , provides the said Estate to the Heirs-male , and provides 25000. merks for the Daughters , there is a Clause of the Contract , Bearing , that it should be leisome to the said Thomas , at any time , during his Life , to alter the said Provision , or to dispone thereof , according to his pleasure ; thereafter , upon Death-bed he Disponed the whole Estate , in favours of his Daughter of the Marriage , being his only Child , Adam Hepburn his Brother , as Heir-male , intents Reduction of that Disposition , as being done in lecto Aegritudinis . It was alleadged , for the Defender , primo , Minor non tenetur placitare de Haereditate Paterna . The Defender is Minor , and now the Question of Reduction is , upon her Fathers Heretage . It was Answered , that the maxime holds not , where the Question is of the Disposition made to the Minor , whether valid or not , but where the Question is not upon the Minors Right , but upon the Fathers Right ; which Right of the Fathers , or Predecessors , the Minor is not holden to Dispute .

The Lords repelled this Defense , in respect of the Reply . 2dly . It was alleadged absolvitor , because the Pursuer having only a Personal Provision , in his Favours , conceived in the Contract of Marriage , and there being as yet , no Infeftment to Heirs Male , the maxime , that no deed upon Death-bed , can be prejudicial to Heirs , can be extended to none , but such as are Special Heirs , and not to those who are by destination Heirs , which is less then if a Charter had been granted to the Heir Male , which according to Craigs Opinion , is but as nudum pactum , and an uncompleat Right and could not compell the Heirs of Lyne , to Resign : The Pursuer answered , that the maxime is general , and there is no Distinction by Law , or Custome ; whatsoever the Heirs be , so that a Person having a Right to Heretable Bonds , bearing Clause of Infeftment , whereupon no Infeftment had followed , could do nothing upon Death-bed in prejudice of the Heirs , who would have succeeded unto those Bonds , as to Craigs Opinion of a Charter , it is against Law , and the common Opinion now received that a Charter , or any Provision in Write is effectual against the granter , and his Heirs to compel them to compleat the same .

The Lords repelled this Defense . 3ly . It was alleadged , absolvitor , because the maxime , can be only understood of the Heir of Lyne , as nearest of blood , so that nothing can be effectually done in their prejudice , but here the Diposition , is but in prejudice of an Heir Male , and in favours of an Heir of Lyne , in respect of whom the Heir of Male is but a Stranger , which is the more clear , because this maxime being very ancient , was produced before their was any Heir Male , or of Tailzie ; and because the Reason of the Law is founded upon the Natural Obligation , Parents and Predecessors have , of providing their Successors , and so can do them no prejudice : especially , when they are weak , and on Death-bed . The Pursuer answered , as before , that the maxime is general ; and there is no distinction introduced by Law or Custome of Heirs Male : and albeit the Law had introduced such Heirs since this Common Law ; yet in so far as it makes them Heirs . It gives them the Priviledge of Heirs , to which the Reason of the Law doth well Quadrat , which is not that Natural Obligation , but this presumption of Law , that Persons on Death-bed are facile , and weaker in their Capacities then at other times , and therefore the Law disables them at that time , to alter the Setlment of their Estates , as they were in their Health ; and so allows of no deed , in prejudice of any Heir of whatsoever kind , although in favours of another .

The Lords repelled this Defense . 4ly . It was alleadged , that the Defunct , having himself constitute this interest of the Heir Male , had reserved this power to himself , to alter it during his life , can signifie nothing , unless it Impower him to do it on Death-bed , because , without any such Reversion , he might have altered the Tailzie , during his Leigpoustie . The Pursuer answered , Pactum privatorum non derogat jure communi ; Therefore this being a special part of our common Law , anterior to either Act of Parliament , or Practique , no privat Provision , or Reversion can capacitat any Person to do that which the Law declares void ; especially , being upon a Reason of weakness and infirmity , which is presumed in Persons on Death-bed , presumptione juris & de jure , admitting no contray probation , for it will not be admitted , to prove that the Disponer was in perfect soundnesse of mind , and therefore , if any Person should reserve a Power to Dispone , though he were not compos mentis : the Reservation would signifie nothing , so here neither is the ordinary word adjected , etiam in articulo mortis , or on Death-bed , and so cannot be extended to that case and can reach only to what is done lawfully , legittimo tempore & modo , and there is far lesse inconvenience , that a Cause should be superfluous , which is very ordinary , then that it should extend to take away common Law , neither is the Provision adjected as an expresse condition upon which the Tailzie was made , and no otherwise .

The Lords repelled also this defense , in respect of the Reply , and so having advised all the Defenses , and Disputes in the afternoon , albeit the Parties had aggreed before hand , and the Heir of Lynes Portion doubled , yet the Lords were generally clear in the Decisions abovewritten , as relevant in themselves .

James Cuthbert of Dragakers contra Robert Monro of Foules . February 26. 1663.

THe said Iames pursues the said Robert Monro , as Heir to his Predecessor the Laird of Foules , for payment of a Debt due by him , and insists against him as behaving himself as Heir , by intromission with the Moveable Heirship . The Defender alleadged absolvitor , because it was not condescended , that the Defunct was a Person who could have an Heir , as to Heirship Moveable , as being Prelat , Baron or Burgess , and if the Lands of Foules be condescended on : It is offered to be proven , that he was denuded by Appryzing , before his Death to which Appryzing he had Right before he was Apparant Heir , being Tutor to another , who was Apparant Heir for the time , and therefore the Defender has neither behaved himself as Heir , by Intrommission with the Moveable Heirship , or the Rents of the Defuncts Lands . 3dly . The Defender died Rebel , and his Escheat Gifted , and Declared , and so nihil habuit in se bonis , and could have no Moveable Heirship . It is answered , for the Pursuer , to the first , non relevat , that the Lands were Appryzed from the Defunct , unless the Legal had been expyred , yet semel Baro semper Baro. 3ly . The Pursuer having taken Right to the Appryzing , while he was Tutor ipso facto , it accresced to the Pupil , and thereby was extinct , and cannot defend his Intromissions . 4ly . It was for a smal Sum , and satisfied by Intromission of a year or two , so that the continuance of the Apparant Heir in the Possession , after he was satisfyed is gestio . 5ly . The Gift and Declarator , if it was done during the Rebels Life , it was simulat ●etenta possessione , and so null .

The Lords found the Appryzing not to purge the Intromission , unless the Legal had been expired , in Moveable , and his Apparant Heir might behave himself as Heir , by Intromission with the Rents of the Apprysed Lands ; but if the Legal was expired , they found it sufficient , and that semel Baro semper Baro is only to be understood presumptive , nisi contrarium probatur , as also they found the Defender his taking right to the Appryzing , while being Tutor , or continuing in Possession after satisfaction thereof , by Intromission not to infer the passive Title , and that the Gift and Declarator did take away the Heirship moveable , unless it were offered to be proven simul , or retenta possessione during the Rebels lifetime .

Lady Milntoun contra Laird of Milntoun . February 27. 1663.

THe Lady Milntoun pursues the probation of a Tenor of a Bond granted by Maxwel of Calderwood , her Husband , bearing , that in respect of his Facility he might be induced to dispose of his Wifes Liferent , and thereby redact them both to want and misery ; therefore he oblieges himself not to dispose thereof without his Wifes consent , seing he had no means but what he got by her , hereupon she used Inhibition , which she now produces as an Adminicle , and craves the Tenor of the Bond to be made up by Witnesses . The Defender having alleadged . that there behoved here to be lybelled and proven a special causus omissionis , because albeit it were proven that such a Bond once was , yet unless it were also proven how it was lost , it must be presumed to have been given back to the Husband , granter thereof , whereby he is liberat , and this is the course observed in the Tenors of all Bonds of borrowed Money . The Pursuer answered , that this was not like a Bond of borrowed Money , the intent whereof is , not to stand as a constant Right , but to be a mean to get payment ; but this Bond by its tenor was to stand as a constant Right , to preserve the Dilapidation of the Liferent , and so cannot be presumed to have been quite by redelivery thereof ; albeit it had been in the Husbands hands .

The Lords before answer to this Dispute● Ordained the Pursuer to condescend what the effect of this Write would be , if it were made up ; for if it have no effect , there were no necessity to make it up .

The Pursuer condescended upon the effect thereof thus , that it would be effectual as an Interdiction published by the Inhibition , to annual and reduce the Disposition of the Pursuers Liferent , made by her Husband , without her consent , in favours of Milntoun , her Step-son 2. This Bond being accessory to the Contract of Marriage betwixt the same , and the Marriage is pactum dotale , and must have the same effect , as if it were included in the Contract of Marriage ; and so is a Provision for Securing of the Pursuers Liferent to her self , and that no Deed by her Husband , without her own consent , should be effectual . The Defender alleadged that none of these Condescendences could be effectual , not the first , because if the foresaid Bond were an Interdiction , it would have no effect , unless it were instructed that the granter thereof were prodigus , and if it were Instructed that he was rei suae providus , it could take away the effect thereof , because an Interdiction is nothing else but constitutio Car●●torum prodigo ; where albeit it is done of course , periculo facientis sine causae cognitione with us : Yet if it be on an false Ground and Narrative , its ineffectual . 2ly . Though it could be instructed , that the Husband was levis ; yet the Interdiction is null , being to his own Wife , who cannot be his Curator , being sub potestate viri : Nor Curator to any other , much less can her Husband be made her Pupil , contrair to the Law Divine and Humane . Neither could the Bond be effectual , as a Provision adjected to the Contract of Marriage , because it being from an Husband to his Wife , so soon as he was Married , it returned to himself , jure mari●i , because nothing can consist in the person of the Wife , which belongs not to the Husband , jure mariti , being moveable , except an Aliment formerly Constitute to her in a competent measure . The Pursuer answered that she opponed the Bond , and further offered to restore to the Defender , all that he gave for the Disposition of her Liferent .

The Lords after they had Reasoned the several Points , in jure , and found that without the offer , the Bond could not be consistent as an Interdiction , in so far as concerned the Husband to annul the Disposition , but were inclined to Sustain the same for the Wife , in so far as might extend to a competent Aliment of her Family to her Self , Daughter and Servants , not excluding her Husband : Yer they found the offer so reasonable , to Repay the Sum Payed for the Liferent , being 5000. merks , and the Liferent it self being eight Chalder of Victual , and eight hundred merks , that they found the effect of the Tenor would be to Restore either Party , hinc inde , but desired the Pursuer to let the Defender keep the Possession of the House and Lands , wherein there was many Woods newly cutted , he finding Caution to pay her eight Chalder of Victual , and eight hundred merks , which his Father was oblieged to make them worth by the Contract of Marriage .

Sir William Gordoun of Lesmore contra Mr. James Leith . Iune 10. 1663.

SIr William Gordoun of Lesmore pursues Mr. Iames Leith of New-lesly , as representing his Father , on all the passive Titles , and condescended that he behaved himself as Heir , by meddling with his Fathers Heirship moveable , and with the Mails and Duties of his Fathers Lands of New-lesly and Syde . The Defender answered to the first , that his Father could have no Heirship moveable , because he dyed Rebel , and so his hail Goods belonged to the King as Escheat . 2ly . If need beis , he offers him to prove that he dyed not only Rebel , but his Escheat was Gifted , and so as a Confirmation takes away vitious Intromission Moveables . So the Gift with the Escheat must purge vitious intromission with Heirship , being before intenting of this Cause . 3ly . He offers him to prove that the Heirship moveable was Confirmed promiscuously with the rest of the moveables , and that the Defender had right from the Executor , which Confirmation , though it could not be effectual to carry the Heirship , yet it was a collourable Title , to show that the Defender had not 〈…〉 miscendi , but that he meddled by a singular Title , and neither formerly drew an Heirship , nor meddled therewith , as Heir appearing . The Pursuer answered to the first , that it was not relevant that he was Rebel , nor that his Escheat , unless it had been Gifted before his Intromission , as well as before intenting of the Cause , and that the Defender had Right from the Donator . To the second , it was answered by the Pursuer , that the promiscuous Confirmation was not sufficient , because he offered him to prove , the Defender Confirmed his own Servant to his own behove .

The Lords found that the Defenders Father dying Rebel , was not sufficient , unless it had been Gifted , and declared before intromission , and they found the Reply Relevant , that the promiscuous Confirmation was to the Defenders behove .

As to the second Member of the Condescendence , the Defender alleadged , . that albeit his Father was Infeft , yet his Infeftment was only base , not cled with Possession ; and that the Defenders Title was by another Party , Possessing , and publictly Infeft before his Fathers Death .

Which the Lords found Relevant .

Iames Allan . contra Iames Paterson . Iune 17. 1663.

JAmes Allan charges Iames Paterson as Cautioner in an Indenter , for a Prentise , set to the Charger for five years , and insists upon that Article of paying two dayes wadges for ilk dayes absence , and subsumes that the Prentise left his Service after the first two years , and was absent three years , The said Iames Paterson Suspends on this reason , that it must be presumed Collusion betwixt the Charger and his Prentise , that having gotten the Prentise Fee , and not learned him the Trade , he had suffered him to escape , never making intimation to the Suspender , that he might have brought him back to his Service , while now that he is out of the Countrey , and not knowing where . The Charger answered , that there was nothing to obliege him to make such intimation , neither could a sufficient presumption of Collusion be sustained .

The Lords found the Letters orderly proceeded , either while the Cautioner caused the Prentise Re-enter , and serve out his time , or otherways payed fifty pound for damnage and interest , to which they modified the Charge .

Margaret Fleming contra Iames Gilleis . Iune 18. 1663.

MArgaret Fleming being Infeft in an Annualrent of 700. merks out of Houses in Edinburgh , in Liferent , with absolute warrandice from all dangers , perils and inconveniencies whatsomever ; pursues Declarator against the said Iames Gilleis , as Heretor , for declaring that her Annualrent should be free of all publick burden , since the rescinding of the Act of Parliament 1646. whereby Liferenters were ordained to bear proportional part for their Annualrents , with the Heretors . The Defender answered , the Libel was not Relevant , for albeit the Act of Parliament was rescinded , the justice and equity thereof remained , that whatever burden were laid upon Land , shouldly proportionably upon every part therof , and every profit forth of it .

Which Defense the Lords found Relevant and Assoilzied .

Francis Hamiltoun contra Mitchel and Keith . Eodem die .

SIr Alexander Keith of Ludquharn being oblieged by Bond to Robert Mitchel in Leith , for the price of certain Bolls of Victual , was arrested in Leith , till he found Francis Hamiltoun Cautioner as Law will , and both being pursued on the Act , raised Advocation on this reason , that the Baillies of Leith had unjustly forced him to find Caution as Law will ; he not being dwelling in Leith , nor Leith not being a Burgh Royal , but a Burgh of Barony . It was answered , that the priviledge and custome of the Town of Edinburgh , was to arrest within Leith , and all other priviledges and pendicles thereof .

The Lords found that it behoved to be condescended , in what place of Leith Ludquharn was arrested , for the Peer of Leith was a part of the Burgh Royal of Edinburgh , and was served by a Bailie of Edinburgh , called the Water Baillie , and if he was arrested there , it was valid , but the rest of Leith is but a Burgh of Barony , and in that part thereof , the Baillie is called Baron Baillie , it were not valid .

Euphan Hay contra Elizabeth Carstorphine . June 19. 1663.

THe said Euphan having obtained Decreet against the said Elizabeth , for certain Furnitur to her House . She suspended on this reason , that her Husband was not called . The Charger offered to prove , in ●ortification of her Decreet , that her Husband was 20. years out of the Countrey , and she repute as Widow .

Which the Lords found Relevant .

George Reid contra Thomas Harper . Eodem die .

THese Parties competing in a double Poinding , George Reid craved preference , because he was assigned to the Mails and Duties by Thomas Mudie , Heretor of the Land . Thomas Harper alleadged that he had arrested the Duties upon a Debt owing to him by William Mudy , Father to the said Thomas , and any Right Thomas had , was fraudulent and null by exception , by the express words of the Act of Parliament 1621. being betwixt Father and Son , without any onerous Cause , and he ought not to be put to Reduce in re minima , his Debt being within a 100. pound .

The Lords found he behoved to Reduce , conform to their constant Custom in Heretable Rights .

Ferguson contra Ferguson . June 23. 1663.

UMquhil Ferguson in Restalrig , having a Tack set to him by the Lord Balmerino for certain years , his eldest Brother Son as heir of Conquest , and his youngest Brother Son as heir of Line , competed for the Mails and Duties of the Lands .

The Lords found the Tack to belong to the Heir of Line , albeit it was Conquest by the Defender .

Mcdowgal contra Laird Glentorchy . June 24. 1663.

Mcneil having Disponed certain Lands to Mcdowgal , wherein he was Heir apparent to his Goodsyrs Brother , oblieged himself , to Infeft himself as heir therein , and to Infeft Mcdowgal , at least to renunce to be heir to the Effect , Mcdowgal might obtain the Lands adjudged , whereupon Mcdowgal having raised a Charge to enter heir , Mcneil renunces , and thereupon Mcdowgal craves the Land to be Adjudged , and Glentorchy Decerned to receive and Infeft him ; Glentorchy alleadged , that he could not receive him , because he had right to the Property himself , unless the Pursuer condescend and instruct his authors , in whose place he craves to be Entered , had Right . The Pursuer answered , that lie needed to instruct no Right , nor was he oblieged to Dispute the Superiours Right , but craved the ordinar course to be Entered , suo periculo , with reservation of every mans Right , and the Superiours own Right , as is ordinary in Appryzings and Adjudications . The Defender alleadged , that albeit that was sustained in Appryzings , where the Superiour gets a years Rent ; and though it might be allowed in ordinar Adjudications , proceeding upon a liquid Debt , favore creditorum ; yet not in such a Case as this , where the Vassals apparent Heir Dispones , and oblieges himself to Renunce of purpose , to Charge his Superiour .

The Lords found no Processe , till the Pursuer instructed his Authors Titles ; But an Infeftment being produced , he was not put to Dispute the validity thereof , in this instance .

Menzeis contra Laird Glenurchy . Eodem die .

THe Daughters of Mr. William Menzeis , as Executrix to him , pursues Glenurchy for payment of a Bond due to their Father , he alleadged minority and Lesion , and that he had Reduction thereupon depending . The Pursuers answered no Lesion ; because this Bond being granted to their Father , for his Stipend by the Defender , who was Heretor of the Land , he was not leased , because as Heretor he was lyable for the Stipend . The Defender answered that his being Heretor could not Obliege him , because his Grand-father was then living , whose Liferent was reserved in his Disposition ; who , and the intrometters could only be lyable , Stipends not being debita fundi ; and it were of very evil consequence , if the Heretor were lyable , during the whole life of a Liferent .

The Lords found that there being a Liferenter , the Heretor was not lyable , and therefore sustained the Reason .

Elizabeth contra Eodem die .

THe said Elizabeth pursued the Executors of her Husband , and insisted upon several points ; First , she craved the Ann , as belonging wholly to her , seing there was no Children , and the Ann being in favours of the Wife and Children , the nearest of Kin could have no part thereof . The Defenders answered , that the Ann was introduced the time of Popery , when the had no Wife nor Bairns , and so did still most properly belong to the nearest of Kin , who would get it , if there were neither Wife nor Bairns .

The Lords found the Ann to divide betwixt the Pursuer and the nearest of Kin.

The Pursuer insisted next , and alleadged , that a Bond bearing Clausses of Annualrent and Obliegement to Infeft , behoved either to give a Right to the half of the Stock , or else to a Terce of the Annualrents .

The Lords found the Clausses of Annualrent and Destination , to exclude her from the Stock as Heretor , and the want of Infeftment to exclude her from the Terce of Annualrent .

The Pursuer insisted in the next place , and produced a Bond granted by her Father to her Husband , and here the longest liver of them two , and the heirs procreat betwixt them , without any addition or termination , failzing these heirs , and without Clausses of Annualrents or Infeftment , and therefore she claimed the whole Sum as being the longest liver . It was answered , that this Bond did Constitute in her only a Liferent , according to the ordinar conception and interpretation of that Clause , the longest liver of them two betwixt man and wife ; but especially heirs procreat betwixt them , being mentioned , which behoved to be the mans heirs , who if they had existed , would have had right as heirs to their Father , not to their Mother ; and therefore the Father behoved to be Feear , and the Mother only Liferenter . It was further alleadged , that beside the Liferent , the Pursuer behoved to have right to the half of the Stock , because the sum being moveable , albeit the Tenor of the Bond made it payable to the Relict for her Liferent use , yet she behoved to imploy it so , as the Stock would remain ; which Stock would still be divisible betwixt the Relict and nearest of Kin , as being moveable .

The Lords found that the Pursuer might take her choise of the Liferent , or of the half of the sum , but would not allow her both .

Iames Halyburtoun contra Lord Roxburgh . Ianuary 25. 1663.

JAmes Halyburtoun as Assigney Constitute by his Father , pursues the Earl of Roxburgh , for payment of a Debt due to his Father . The Defender alleadged no Process , because the Assignation was not intimate in the Cedents Life , and so he was not denuded , but the sum remained in bonis defuncti . and behoved to be Confirmed , especially , seing this Assignation is a general Assignation , omnium bonorum , without condescending upon this or any other particular .

The Lords Repelled the Defense and found Process .

Ninian Steuart of Askoege contra Steuart nf Arnhome . Eodem die .

NInian Steuart as heir to his Father Askoege , pursues Reduction of a Transaction of a Tack , which Tack was Assigned to him by his Wife , and by him Transferred to Iohn Steuart heir of a former Marriage . The Reason of Reduction was , because the Translation was on Death-bed , in prejudice of the heir . The Defender alleadged Absolvitor , because the Pursuer is Witnesse in the Translation , which imports his consent . The Pursuer answered that Subscribing as Witnesse , could import no more , but that the Witness saw the Party Subscribe , but did not obliege to take inspection of the Contents of the Write . 2ly . The Pursuer when he Subscribed was minor . The Defender answered , that in this Case , the Subscribing as Witness behoved to import consent , because that very Subscription it self by the Father , being sick , did import a Deed done on Death-bed ; Especially it not being a Testament but a Writ , inter vivos ; and for the minority , the Pursuer was in confinio majoris aetatis , and suffered the Defender to possess twenty years , long after his anni utiles was past .

The Lords found the Subscription , as Witnesse in this Case to import consent , and being quarreled inter annos utiles , they found sufficient to a minor , though in Confirmation .

Gordon contra Frazer . Iuly 3. 1663.

GOrdon having Confirmed himself Executor Creditor to Forbes of Auchinvil , pursues 〈…〉 Frazer his Relict for Delivery to him of the Moveables , who alleadged absolvitor , because the Moveables upon the Mayns of Achnivil , were Disponed to her by her umquhil Husband . it was answered , that the Disposition was simulat , inter conjunctas personas retenta possessione , and therefore null . It was duplyed , that the Disposition was upon an onerous Cause without simulation , because it bears to be in respect that by the Defuncts Contract of Marriage , he is oblieged to Infeft his Wife in five Chalder of Victual out of Auchnivil , for the Aliment and Intertainment of his younger Children , till the age of fourteen years ; and because he was necessitate to sell that Land , therefore he Disponed the moveables in leu thereof , which is also instructed by the Contract of Marriage . The Pursuer answered , that this is but a provision to Children , and could not be preferred to the Defuncts Creditors , especially being a provision before the Children were existent , and if such should be allowed , it were easie upon such latent provisions , in favours of Children to prejudge Creditors . The Defender answered , that if the Pursuers Debt had been anterior to the Contract of Marriage , he might have had ground upon the Act of Parliament 1621. but this Debt was posterior to the Contract , and there was no reason to hinder a Parent to provide his Children , and Dispone Moveables to him in satisfaction thereof . The Pursuer answered , that both being yet but personal obliegements , not having obtained effectual Possession ; the Creditor though posterior , must be preferred to the Children , especially if the Defunct have not sufficient Estate to pay both . 2ly . The Disposition is upon a false Narrative ; because the Lands of Auchnivil are yet undisponed .

The Lords found that the Childrens Disposition ought to be preferred , unless the Father were insolvendo at his death : in which case they preferred the Creditors , though posterior ; and likewise found the alleadgence Relevant , that the Narrative was false , and so the Disposition without a Cause .

Isobel Mow contra Dutches of Bucleugh . Iuly 7. 1663.

THe said Isobel having Served Heir to William Mow , her Grandsyre Charges the Dutches as Superiour , to receive her ; she Suspends , and compearence is made for certain persons , to whom the Chargers Father had Disponed the Lands in question , who raised Reduction of the Defenders Retour and Infeftment , upon this Reason , that the Retour was null , Serving the Charger Heir to her Grandsyre , as last Vest and Seased , whereas they produced the Infeftments of their Uncle and Father , as Heirs to their Grandsyre in these Lands ; and therefore instructed that her Grandsyre dyed not as last Invest and Seased , as of Fee , but her Father their Author . It was answered for the Charger , that the Retour could not be taken away , hoc ordine , by Reduction , but behoved to be by a Summons of Error , for Reducing the Service by an Inquest of Error , to be pursued in Latine , by a Precept out of the Chancellary . It was replyed , that there needed no Service of Error , but the Retour and Infeftment might be Reduced , unless there had been the question of propinquity of Blood , of a nearer Heir , which might have made the Inquest an Assise of Error , which could not be in this case , seing the Inquest had done their Duty , who 〈…〉 produced one of the Grandsyres Seasine found him to have dyed last Vest and Seased , as of Fee , and neither could know , nor was oblieged to know , that there was a posterior Infeftment to the Defenders Uncle or Father .

The Lords found the Reduction receivable , hoc ordine .

Hamiltoun contra a Dumb man in Glasgow . Iuly 9. 1663.

THis Dumb Man having Right to an Annualrent of twenty pound yearly out of a Tenement in Glasgow , thereupon 〈…〉 Hamiltoun his Creditor having arrested , and obtained Decreet for payment of this Annualrent , in Satisfaction of the Dumb-mans Debt . It was alleadged for the Person whose Bond was lyable for the Annualrents , Absolvitor for five years thereof , because he had payed these years to the Dumb-mans Sister by his consent , in so far , as he Delivered the Money to the Sister in presence of the Dumb-man , and obtained her Discharge thereupon , in his name ; subscribed also by him , with the initial Letters of his name . It was answered , non relevat , because the Discharge bore not that the Dumb-man received the same , but his Sister : and bears that she is obliedged to warrant it at the Dumb-mans hand , and his presence , and seing of Money Delivered , and his Subscription cannot import his consent , because he being Dumb could not know what the extent of the Sum was , nor whatfor years it was .

The Lords Repelled the Defense in respect of the Reply .

Mr. Thomas Kirkcaldy contra Mr. Robert Balcanquhil , and Heretors of Tranent . Eodem die .

THe Heretors of Tranent raised a double Poynding against Mr. Robert Balcanquhil , on the one part , and Mr. Thomas Kirkcaldy , on the other part , both claiming the Stipend of Tranent , 1662. It was alleadged for Mr. Robert Balcanquhil , he ought to be preferred , because he was Minister at Tranent , by Presentation , and Collation , long anterior to Mr. Thomas Kirkcaldy ; and albeit he was Deposed in Anno 1648. yet he was Reponed by the Bishop of Edinburgh , and Synod of Lothian , in October 1662. because of that Narrative , that he was unlawfully Deposed in Anno 1648. and so being Reponed before Martinmass 1662. he thereby must have Right to the half , due at Martinmass 1662. It was answered for Mr. Thomas Kirkcaldy , that Balcanquhils Repossession being after Michaelmess , 1662. which is the Legal Term of Stipends , and he having Served till that time , by a Title standing , Reposition can operat nothing before its Date , and so cannot reach to Michaelmass Term :

The Lords preferred Mr. Thomas Kirkcaldy to the hail year .

William Hay contra Iohn Nicolson . Iune 16. 1664.

JOhn Nicolson having granted an Assignation in Anno 1653. of a Bond granted to him by Iames Crightoun , Sheriff of Nithisdail , principal ; and umquhil William Livingstoun Cautioner , the name of the Assigney was left blank till 1663. at which time William Hayes name was filled up , and which Assignation contained a Clause of Warrandice against all deadly , as Law will : William Hay having used Execution on the Assignation , against the Principal and Cautioner in the Bond , returns upon the Warrandice , and Charges Nicolson , who Suspends on this Reason , that the Clause of Warrandice , as it is conceived in the Assignation , could import no more , then that the Debt Assigned , was a real Debt resting , and not to be Evicted by any other Right , Especially seing it did not bear expresly , to warrand it to be good , valide and sufficient , which might infer to warrand , not only that the Assignation should clear the Right of the Debt , but that the Debitor should be solvendo . And secondly , considering that there is no onerous equivalent Cause for granting the Assignation , Nicolson the Creditor might have Discharged , Livingstoun the Cautioner , and given him an Assignation , that he might thereupon Charge the Principal . The Charger opponed the Clause of absolute warrandice , which have ever been esteemed to reach to the Debtors , being solvendo .

The Lords found the Claúse thus concieved , could not extend to the sufficiency of the Debtor .

Thomson contra Reid . Iune 15. 1664.

JAmes Thomson in Cryle having Appryzed certain Tenements in Edinburgh , from Iames Sinclar , pursues Iames Reid , as one of the Possessors , for Mails and Duties , who alleadged that he had bruiked by Tack from Iames Sinclar , before the Appryzing ; which Tack bare 80. pound of Tack Duty , and to continue for seven years , and bare expresly a provision , that the said Iames Reid should retain the Annualrent of 600. merks adebted to him by Sinclar , as a part of the Tack Duty , and that he should not be removed , untill the said 600. merks were payed . The Pursuer answered , that the alleadgence was no way Relevant , to accompt the payment of the 80. pounds of Tack Duty to the Pursuer , out of which the Defender could have no Retention of his Annualrent , because that is but a personal provision , adjected in the Tack , and no part of the Tack , and can work no more , then if such a Provision had been made out of the Tack , in which Case it would only have been a part of the Tack Duty in Compensation of the Annualrent , as an Assignation , would not be effectual against a singular Successor , and would endure no longer then the Land was his , who assigned the Duties ; So now the Land ceassing to be Sinclars , the Assignment or Alocation thereof , to be retained for satisfaction of the Annualrent , is not Relevant against this Appryzer , no more then that part of the Clause , by which the Defender is provided , not to remove till his Sum be payed , which was never sustained to be effectual against a singular Successor . The Defender answered , that this Defense stood Relevant , because the Clause of Retention , is adjected immediatly to the Tack Duty , and so is as a part thereof , and so is real and Effectual against a singular Successor , because if Sinclar had set the Tack for a grot , it would have been valid ; and therefore might more set it for the satisfaction of the Annualrents , and so much Duty further .

The Lords Sustained the De●ense , that seing there remained a Tack Duty , over and above the Retention of the Annualrent , and that the Tack had a particular Ish of seven years , that it was valid ; but found the Case dubious , if there had been no Tack Duty over and above the Annualrent ; but that the Land had been either set expresly for satisfaction of the Annualrent , or for such a sum equivalent thereto , to be retained : In which case the Tacks would want a Tack Duty to the present Here●or ; but they ●ound the Clause , for not Removing till the mony were payed , but only to be personal , and not effectual against a singular Successor .

Murray contra the Executors of Rutherfoord . Iune 16. 1664.

JAmes Murray pursues the Executors of Katharin Rutherfoord , Wife to Doctor Guild , to pay a Legacy of 600. merk , left by Katharin in her Testament to Iames , in these words , I leave to Iames Murray 600. merks , whereof 200. merks is in his hand , due to me by Bond ; which Bond I ordain to be delivered up to him , and four more , to be payed to him . The Defender alleadged , that they could be oblieged no further then to Discharge the Bond of 200. merks , with warrandice from their own Deed. The Pursuer answered that the Bond belonged to Doctor Guild the Husband , jure mariti , and was recovered by his Heirs and Executors , already from the Defender ; and therefore this being legatum rei alienae . The Defender behoved to make it effectual , and to pay it out of the Defuncts free Moveables , especially seing 600. merks was left , and the Adjection was but the Destination of the manner of payment of it , by Liberation ; and which failzing , the principal Legacy stands , and must be fulfilled and adduced , a Decision the last Session , betwixt contra whereby a Legacy of a Heretable Bond was ordained to be made up by the Executor , out of the Moveables . The Defenders answered , that their Defenses stood yet Relevant ; for Legacies being poor Donations , did not carry warrandice , so that a thing Legat being Evicted , the Legator had it but cum peri●ulo , and that in the Law , legatum rei alienae est praestandum ; because Legacies being favourable , whereby the Testator leaves there expresly , under the name of that which belongs to another , his meaning is extended , to purchase that , or the value thereof to the Lagator ; but where he leaved it as his own , and his knowledge of the Right of another , appears not there , as in all Donations , the Legator hath it upon his peril , without warrandice ; as if a Testator should leave a Bond , or sum , to which he had right by Assignation , if it were found that there were a prior Assignation intimat , and so the sum Evicted , the Lagator would have no remeid : Or if he left a sum due by a Bond , defective in some necessar Solemnity , as wanting Writer and Witness , such Bond failing , the Legator could not return upon the Executor , and for the instance of an Heretable Bond , that is not alike , because it was not res aliena , but propria testatoris , though not test●ble . The Pursuer answered , that Legacies were most favourable , and ever extended , and that this was lega●um re alienae & ex scientia testatoris , for the Testatrix that a Bond conceived in her name , during the Marriage , would belong to her Husband , jure mariti , at least she was oblieged to know the same , for s●ire & scire debere , parificantùr in jure . The Defender answered , that the Action hold not in mulieribus presertim ubi questio est in partibus juris ; as in this Case the Testatrix was , and might be ignorant of the Extent of the jus mariti● .

The Lords Repelled the Defenses , and sustained the Libel and Reply , to make up the palpable and known Law , that the Testatrix was Repute , as knowing the same , and that having a half of her Husbands Goods , Testable by her , she might leave the sum as a part of her half , that there was no necessity to devide every sum , but the whole , as many Co-executors discharging a Bond , the Discharge is Relevant , not only for that Co-executors part , but for the whole Bond , if that Co-executors part exceeded the value of the Bond , but the Lords did not find that the Executors behoved to make up every Legacy , that were evicted , or that they were lyable , de evictione .

Tulliallan and Condie contra Crawfoord . Eodem die .

TVlliallan and Condie pursues a Declarator of an Appryzing , led against them , as satisfied and payed within the Legal , by Intromission , and as an Article , adduces a Discharge of a part of the Sum Appryzed . The Defender alleadged , that the alleadgence was not now competent , because it was res judicata , before the Lords of Session , in Anno 1637. where the same alleadgence being proponed in a Suspension .

The Lords found not the same instructed ; and therefore found the Letters orderly proceeded , yet conditionally superceeding Execution of the Decreet , till such a day , that in the mean time , if the same were instructed ; the Instructions should be received , and nothing was produced during that time , so that it cannot be received more , then 27. years thereafter to take away an Appryzing cled with long Possession , and now in the Person of a singular Successor .

The Pursuer answered , that his Declarator founded upon the said Article , was most just and relevant ; it being now evident , that the Sum Appryzed for , was payed in part , and as for the point of formality , albeit in ordinary Actions , where Terms are assigned to prove , and so a competent time granted to search for Writs , if Certification be admitted regularly , it is valide , and yet even in that case , the Lords will Repone , upon any singular accident in a Suspension , ubi questio non est de jure , sed de executione .

The Lords would not delay Execution , unless the Reasons be instantly verified .

Yet in petitione , will not take away the Right .

The Lords sustained the Defense , and would not sustain the foresaid Article , in respect of the Decreet , in foro contradictorio , though in a Suspension here , there was no Alleadgence that the Writs were new come to knowledge , or newly found , nor could be , because it was alleadged one in the Decreet .

Mr. Iohn Hay . contra the Collectors of the vacant Stipends . Iune 17. 1664.

THe Parochiners of Manner , which is a Pendicle of the Parsonage of Peebles , being Charged for the Stipend of the year 1662. Suspends upon double poynding , and calls the Ministers Collectors of the vacant Stipends , and the Parson of Peebles ; the Minister alleadged that he was presented by the Parson of Peebles Patron , in August 1662. after which he continued to Preach at the Kirk , and was still upon his Tryals till he was Admitted in October 1662. and therefore the whole years Stipends 1662. belongs to him , because the Legal Terms of Teinds and Stipends , is not as of other Rents , Whitsonday and Martinmass , but one Term for all , viz. the separation of the Fruits at Michaelmess ; and therefore if he had had Right to the drawn Teind , he might have drawn the whole , so the whole Tack Duty must belong to him . It was alleadged for the Parson of Peebles , that this Kirk being a Pendicle of his Parsonage , and some time served for a less , and some times for a more Stipend , as he agreed ; it is not a fixed Stipend , but as a helper , and therefore the vacancy thereof belongs not to the Collector of the vacant Stipends , but returns to the Parson who has Right to the whole Fruits of the Benefice , by his Right of Presentation and Collation . It was alleadged for the Collectors of the vacant Stipends , that his Stipend was not as the allowance of an helper , but was a several Congregation , separate from the Parsonage of Peebles , and at the Parsons Presentation , and that no helper has a Presentation , and that the Incumbent , not being admitted till after Michaelmess , has no Right to any part of the Fruits of that year , though he was Presented before , because the Kirk cannot be said to be full , but vacant , till the Minister be admitted .

The Lords found that this Kirk having a Presentation , could not return in the vacancy to the Parson of Peebles , and that the Presentation being at Lambas , and the Incumbent serving at the Kirk , and Entring to his Tryals immediatly , till he was Entred , which was in October thereafter , and that he had Right to the half of that years Stipend , not being presented before Whitsonday , and found the other half to belong to the Collector of vacand Stipends .

Lairds of Tulliallan and Condie contra Crawfoord . Eodem die .

THe Lairds of Tulliallan and Condie , as having a Right from him , pursues Declarator of the Expiration of an Appryzing , led at the Instance of Crawfoord , to which Margaret Crawfoord his Daughter , has now Right , and condescends that the sum Appryzed for , was satisfied within the Legal by Compensation , in so far as Tulliallan had Right to a Contract , whereby Crawfoord the Appryzer was oblieged to deliver so many Chalders of Coal weekly , or in Case of Failzie , four pounds for ilk Chalder . It was alleadged for the Defender , that this Article of Compensation ought to be repelled : First , because the said Contract is prescribed . 2ly . The Appryzing proceeded upon a Decreet of Compt and Reckoning , wherein an Alleadgence being founded upon the same Contract , was past from , pro loco & tempore , and so can never now be made use of , to take away that Decreet , much less the Appryzing against a singular Successor , who seing the same past , in tuto , to take Right without the hazard thereof . 3ly . The Defender cannot be oblieged after fourty or fifty years time , to prove the Delivery of an yearly Duty of Coal . 4ly . The Compensation is not de liquido in liquidum , because the one is a personal Contract , the other is an Apprysing and Infeftment ; the one hath not a liquid price Constitute , but bears expresly , such a Sum in case of failzie , and not as the price , which being much more , then the ordinar price then is but a personal failzie , which cannot be liquidat till Declarator , and modification of a Judge . The Pursuer answered , that he was evicting the rigor of an Appryzing , in causa maxime favorabili . And as to the first alleadgence anent the Prescription , offers to prove Interruption by Arrestments , &c. To the second not Relevant , according to the Custome , before the years 1649. competent and omitted , was not relevant against Decreets of Suspension ; But Suspenders might either omit , or pass from their Reasons , and Suspend upon them again , which could not but be alswell effectual against the Assigney as the Cedent . As to the third , this Article being instructed by Writ , no presumption , nor less time then Prescription , could take it away . To the which , the Coals having a liquid Sum in lieu thereof , the Article is liquid , and as payment within the legal , will annul an Appryzing , so will Compensation , which is equiparat in Law , though the Case would not be alike in a Wodset , against a singular Successor .

The Lords found the Defenses against this Article relevant , viz. that the Article was not liquid by a Sum , Constitute expresly for a price , and that it being alleadged , that in the Decreet this alleadgeance was past from , and an expresse reservation , that it might be made use of against any other just Debt , then that which was in the Decreet , whereupon the Appryzing proceeded . The Lords had also consideration , that the Legal of the Appryzing was not yet expired .

Lyon of Muirask contra Laird of Elsick . Eodem die .

LYon of Muirask pursues the Laird of Elsick upon a Debt of his Fathers , as Successor titulo lacrativo . The Defender alleadged absolvitor , because any Disposition he had from his Father , was in his Contract of Marriage , whereby 10000● merks of Tocher was received by his Father , and 14000. merks of Debt more , undertaken for his Father , with the burden of his Fathers Liferent . The Pursuer answered , the alleadgeance ought to be repelled , because he offered him to prove , that the Land Disponed , was then worth fourty or fifty Chalders of Victual , so that the Cause onerous was not the half of the value ; and therefore as to the Superplus , he was Lucrative Successor . The Defender answered , that any onerous Cause , or price , though incompetent , was enough to purge this passive Title , and albeit the Pursuer might reduce the Right , and make the Lands lyable , because the Cause was not onerous and equivalent , yet he could not be personally lyable in solidum , for all the Defuncts Debts .

The Lords having seriously considered the bussinesse , after a former Interlocutor the last Session , Assoilzing from the passive Title , but finding the Lands redeemable by the Pursuer , or any other Creditor , for the sums payed out , did now find further , that the Defender was lyable for the superplus of the just price of the Land , according to the ordinar Rate the time of the Disposition , and that the superplus over and above what he payed or undertook , ought to bear Annualrent , as being the price of Land .

Iames Iustice contra Earl of Queensberry . Eodem die .

IAmes Iustice as having right to a Bond of 6000. merks , due by the Earl of Queensberry , pursues the Earl , and the Lord Drum●anrig his Son , as taking his Estate , with the burden of his Debt , to pay it ; who alleadged no Processe , because the Pursuers Right was an Assignation , granted by a Tutrix , not bearing in Name of the Pupil , or as Tutrix , in his Name , because being in infancy he could not subscribe : but bearing to be done by her , as taking burden for the Pupil .

The Lords found the Assignation not formal , not bearing the Pupil Disponer with his Tutrix , but yet found the Letters orderly proceeded , the Charger before Extract , producing a Ratification by the Pupil and Tutrix formally done .

Laird of Prestoun contra Nathaniel Ebred . Iune 24. 1664.

THe Laird of Prestoun pursues Reduction and Improbation , against Nathaniel Ebred , of all his Rights of certain Lands . The Defender alleadged Absolvitor , because the Lands in question are Abbay-lands , Erected in a temporal Holding , in favour of Prestoun ; and therefore by the Act of Parliament , 1633. all such Lands are annexed to the Crown , and the Feu-duties are only found due to the Lords of Erection , ay and while they be redeemed , which is repeited in the 30. Act of Parliament , 1661. and therefore the Pursuer not being Superiour , but the King , he has no interest to Improve of Reduce . The Pursuer answered , that he opponed his Infeftment of the Lands holden of the King , with the Kings Advocats concurse . The Defender answered , that the Advocats concurse was but ex stilo curiae , and he could make no concurse sufficient , for any Improbation and Reduction , without the Kings special order .

The Lords found the Defense Relevant and Assoilzied , at which time it was remembred , that Sir Thomas Hope insisting in an Improbation of his Good-son , the same was not Sustained , because it wanted the Kings expresse Order .

Town of Cowper contra Town of Kinnothy . Eodem die .

THe Town of Cowper having Charged the Town of Kinnothy to desist from Merchant Trade . They Suspend , and alleadge , that they have the Priviledge of Burgh of Barony , in keeping Hostlers , and selling Wine . The Charger answered , that selling of Wine is one of their chiefest and expresse Priviledges .

The Lords considering , that this dipped upon the Controversie , betwixt Burgh Royal and Burgh of Barony , which has remained undecided these thirty years , would not Discusse this particular , but found the Letters orderly proceeded in general , ay and while the Defenders found Caution to desist from Merchant Trade , without determining how far that reached .

Moffet contra Black . Eodem die .

THere being a Bargain betwixt the said Moffet and Black , for some Packs of Plaids , by which it was agreed , that the buyer for satisfaction of the price , should give Assignation to certain Bonds exprest ; but there was no mention what Warrandice . At the Discussing of the Cause the Seller craved absolute Warrandice ; and alleadged , that seing it was not Communed , that it should be a restricted Warrandice , it behoved to be an Absolute , being for a Cause onerous , and for the price of the Goods . 2ly . Seing the Agreement required an Assignation in Writ , to Bonds ; the Buyer might , re integra resile , seing neither the Plaids nor Bonds were Delivered .

The Lords found that the Buyer , who insisted , behoved either to give absolute Warrandice , that the Bond was not only due , but should be effectual , and the Creditor solvendo , otherways they suffered the Seller to Resile , especially seing the Bargain was not made first by words , Absolute for such a price , and afterwards that it had been agreed to give such Bonds for that price ; In which case the Bargain , though verbal , would have stood .

Alexander Falconer . contra Mr. Iohn Dowgal . Eodem die .

ALexander Falconer pursues Mr. Iohn Dowgal , for payment of 1000. merks , left in Legacy by umquhil Iohn Dowgal , by a special Legacy of a Bond , adebted by the Earl of Murray , whereupon he conveens the Earl as Debitor , and Mr. Iohn Dowgal as Executor , for his Interest , to pay the special Legacy . The Exceutor alleadged , that the sum belonged to him , because he had Assignation thereto from the Defunct , before the Legacy . The Pursuer Answered , that hoc dato , there was sufficiency of Free-goods to make up this Legacy ; and albeit it had been legatum rei alienae ; yet being done by the Testator scienter , who cannot be presumed , to be ignorant of his own Assignation , lately made before , it must be satisfied out of the rest of the Free-Goods .

Which the Lords found Relevant .

Duke and Dutches of Hamiltoun contra Scots . Eodem die .

DUke and Dutches of Hamiltoun , being Charged for payment of a Sum , due to umquhil Sir William Scot of Clerkingtoun , and assigned by him to his four Children , alleadged that by Act of Parliament Commission was granted for deducing so much of his Creditors Annualrents , as should be found just , not exceeding eight years ; and therefore there could be no Sentence against him , as to that , till the Commission had decyded . The Pursuers answered , that these Annualrents were not due for the years during the time the Duke was Forefault by the English , which ended in Anno. 1656. and they insist but for the Annualrents since that year . It 's answered for the Duke , that albeit he had payed many of these years Annualrents by force of Law , then standing , yet that could not hinder the Deduction , but that he would have Repetition or Deduction , in subsequent years . The Pursuers alleadged , he behoved to seek the Heir for Repetition , and could not deduce from them .

The Lords in respect of the Commission , would not Decide nor Discuss the Alleadgence , anent the years Annualrent , but Superceeded to give Answer , till the Commission had determined , even till seven years after the Forefaulture , to make up these that was payed before .

In this Process , compearence was made for Sir Laurence Scot , the Heir and Executor Dative , who alleadged that there was 2000. merks of the Sum belonged to him , because his Fathers Assignation to the Children , contained an express Division of their shares , which was so much less then the hail Sum Assigned . The Children answered , they opponed their Assignation , which bare expresly an Assignation to the hail Sum , and Bond it self : and albeit the Division was short , it was but a mistake of the Defunct , and cannot prejudge the Assigneys .

Which the Lords found Relevant .

George Melvil contra Mr. Thomas Ferguson . Iune 25. 1664.

GEorge Melvil pursues Mr. Thomas Ferguson his step-son for the value of his aliment , after the Mothers Decease . The Defender alleadged● Absolvitor , because the Defunct was his own Mother , and he had no means of his own , and it must be presumed that she Entertained him free , out of her Maternal Affection , and that his Step-Father did the same , after he had Married his Mother .

The Lords sustained the first part of the Defense , but not the second anent the Step-father after the Mothers decease .

Alexander Allan contra Mr. John Colzier . Eodem die .

ALexander Allan pursues Mr. Iohn Colzier , to pay a sum of ninety two pounds , adebted for the Defenders Mother , and that upon the Defenders Missive Letter , by which he oblieged him to pay the same

The Defender answered absolvitor , because by the missive produced , he offered him to become the Pursuers Debitor , for the sum due by his Mother , being about ninety two pounds ; but by a Postcript , requires the Pursuer to Intimat to him , or his Friends at Falkland , whether he accepted or not , which he did not then till after the Defenders Mothers Death , and so it being a Conditional offer , not accepted , is not binding .

Which the Lords found Relevant and Assoilzied .

Cauhame contra Adamson . Eodem die .

THomas Cauhame having Appryzed a Tenement in Dumbar , from Ioseph Iohnstoun , pursues Iames Adamson to remove therefrom , who alleadged Absolvitor , because this Apprizer could be in no better case , then Iohnstoun from whom he Appryzed , whose Right is affected with this provision , that he should pay 600. pounds to any person his Author pleased to nominat ; Ita est , he hath Assigned the Right to the Defender , so that it is a real Burden affecting the Land , even against this singular Successor , and included in his Authors Infeftment . The pursuer answered , that albeit it be in the Infeftmen , yet it is no part of the Infeftment , or real Right , but expresly an obliegment to pay without any Clause Irritant , or without declaring that the Disponers Infeftment should stand valid , as to the Right of that Sum.

The which the Lords found Relevant , and Repelled the Defense , but superceeded Execution until some time that the Defender might use any means he could for making this Sum to affect the Land .

Farquherson contra Gardiner . Eodem die .

MR. Iames Farquherson having obtained a Decreet of Spuilzie , against Iohn Gairdiner and others . Gairdiner Suspends on this Reason , that he medled with the Goods in question , as a Souldier in a Party in Arms , being then in the Regiment of the Master of Forbes , under the Command of the Earl of Midletoun , and therefore is freed by the Act of Indemnity . The Charger answered , that he oppons the Act Indemnifying only these who Acted by Warrand of any Committee of Estates , or Commander , or other Authority , so that it is not Relevant , unless the Suspender alleadge , that as he was a Souldier in Arms , so he had such Warrand , and did apply the particulars to the publick use , under which he served : And it is offered to be proven , that he took the Goods lybelled to his own House , and made use of them to his privat use . The Suspenders answered , that this Reason stands Relevant as proponed , because it is clear by the Act of Indemnity , that all things done under any pretended Authority or Command , are Indemnified ; and therefore there is a special Exception of privat Thefts and Robberies , which confirms the Rule as to publick Pilledging in any War , and if there were a necessity to every person to instruct the Command , or Warrand of his Officer , which was not accustomed to be in Writ , the whole Act would be elusory ; so that it is sufficient , that the thing was done in the way of a publick War ; otherwise , all that was taken or converted to privat use , of those that were either with Montrose or Glencairn , might ly open to Pursuits , notwithstanding of the Act of Indemnity .

The Lords after serious Consideration of this , as a leading Case , found the Reason of Suspension Relevant , that the Defender needed not to prove that he had Warrant , but that the Warrant was presumed , if he proved he Acted with a Party in War , against which , they would admit no contrary Probation , unless it were offered to be proven by the Defenders own Oath , that he did without any Warrant , converted the Goods to his own privat use .

Margaret Inglis contra Thomas Inglis . Eodem die .

MArgaret Inglis having obtained a Decreet before the Commissars of Edinburgh , against Thomas Inglis , for giving her Security of 1000. pounds in Legacy , left in her Fathers Testament , and for payment of the Annualrent of the said Legacy . Thomas Suspends on this Reason , that the Legacy being left to be payed , the one half at the Chargers marriage , and the other half at the Death of the Defuncts Wife ; buire no Annualrent , as neither doth any other Legacy , much less this , being in diem incertum , which is equivalent to a Conditional Legacy : For if the Defuncts Wife had Survived the Legatar , or if she never Marry , nothing will ever be due . The Charger answered , that this Legacy was in effect alimentar , though not expresly left eo nomine ; and therefore ought to be profitable , and that the Lords had been accustomed to give Annualrent in such cases , as in the case of the Lady Otter , and her Daughters . The Suspender answered , that the case was far different , these being lawful Daughters , and their Provisions being in lieu of an Estate of Land , and this Charger being but a Bastard , and come to that age that she may serve for her Maintainance .

The Lords considering that the one half of the Sum was payable at the time of the Chargers Marriage , being a Condition in her own power , and that it was not favourable to put her to a necessity of Marry : Therefore they sustained Annualrents for that half , but not for the other .

Brown contra Lawson . Iuly 6. 1664.

ALexander Brown having obtained a Decreet against William Lawson , as vitious Intrometter with the Goods of umquhil William Lawson of New-milns , he Suspends , and alleadges the Decreet was unjustly given , because it beares , that he excepted upon a Disposition , made by the Defunct for an Onerous Cause , and an Instrument of Possession of the Goods before his Death . The Charger answered , that the Decreet did bear , that the Suspender did judicially acknowledge , that there was no true Delivery of the Goods .

The Lords found this collourable Title sufficient to purge the passive Title of vitious Intromission , providing the Defender Confirmed within four moneths , for they thought the Defuncts Disposition , in articulo mortis , was rather as a Testament or Legacy , in satisfaction of the defenders Debt , then as actus inter vivos .

Iohn Miln contra Hoom. Iuly 7. 1664.

JOhn Miln Mason , having Charged Sir James Home of Eccles , for payment of a Sum of Money , due by Bond , he Suspended , and alleadged that he had the benefit of the Act betwixt Debitor and Creditor , as to personal Execution , seing he had payed a years Annualrent , and had consigned a Bond of Corroboration , joyning the rest of the Annualrents to the principal . The Charger answered , the Suspender could not crave the benefit of the Act , because he had not found caution for the principal , and annual conform to the said Act for his naked Bond of Corroboration , without Caution , could not be interpret Security .

The Lords found the Suspender behoved to give security , either by Caution or Infeftment .

Ogilbie and Grant contra Ker. Eodem die .

THere being a Charge in the Name of Iames Ogilbie and William Grant , contra Mr. Andrew Ker Minister , on this ground , that by a minut of Contract of Alienation , Ogilbie had sold to Ker , certain Lands , and Ker was expresly Bound by the minut , to pay this Grant and others , in part of the price of the Land , certain Debts due by Ogilbie to them . Ker Suspends upon this Reason , that he had satisfied Ogilbie , and obtained his Discharge .

Grant answered , that by the foresaid Clause , contained in the Minut , he had acquired right to the Sum , in satisfaction of his Debt , which Ogilbie his Debitor could not take away , without his consent , especially seing the Minut took effect ; and the Suspender by his Missive Letters , after the Date of this Discharge , Writ to the Laird of Pitmeddin , who was Cautioner to Grant , that he would satisfie the Debt . The Suspender answered , that the Clause in favour of Grant , who was no Contracter , could not give him a Right : First , Because it was never a delivered Evident to Grant . 2ly . Because it was but a Mandat , whereby Ogilbie the Contracter , did order a part of the Sum to be payed to Grant , which Ogilbie might recal at his pleasure , as he might have annulled the Bargain , and destroyed the Writ ; especially seing nothing had yet followed . And as for the Letters , they were not Written to Grant , but to a third Party .

The Lords found , that seing the Bargain took Effect , the Clause in Grants favour , was not a simple Mandat , but a Delegation , whereby Ogilbie constitute Ker his Debitor , to be Debitor to Grant his Creditor , which needed no Intimation , being Contracted by , and so known to Ker himself ; and therefore found Ogilbies Discharge ineffectual .

Town of Edinburgh contra Lord Ley and William Veatch . July 8. 1664.

IN a Double Poynding , raised by the Town of Edinburgh , against my Lord Ley on the one part , and William Veitch upon the other . The Ground whereof was this ; The Town of Edinburgh being Debitor to umquhil Dowglas of Mortoun , in a Sum of Money , his Son Confirmed himself Executor to his Father , and Confirmed this Sum , which was Arrested in the Towns hands by William Veatch , first ; and thereafter by my Lord Ley. It was alleadged for William Veatch , that he ought to be preferred , having used the first Diligence by Arresting , several years before my Lord Ley , and having obtained Decreet against the Town , before the Commissars , but before it was Extracted , my Lord Ley obtained Advocation . It was alleadged for my Lord Ley , that he ought to be preferred , because the sum Arrested being due to umquhil Dowglas of Mortoun . There was never a Decreet obtained at the Instance of this Executor , establishing it in his Person ; and therefore this Competition being betwixt William Veatch , who was only the Executors proper Creditor , and not the Defuncts Creditor . The Defuncts Money ought to be applyed : First , to pay the Defuncts Debt , before the Executors Debt , albeit the Executors own Creditor had done the first Diligence .

The Lords found , that the Lord Ley , as being Creditor to the Defunct , ought first to be preferred , seing now he appears before the Debt was Established in the Person of the Executor .

Nisbit contra Lesly . Eodem die .

JOhn Nisbit , as Assigney Constitute by Major Drummond , Charges Lachlan Lesly to pay four Dollars for ilk Souldier of sixty , conform to a Contract betwixt Major Drummond and Lodovick Lesly , for whom Lachlan was Cautioner . Lachlan Suspends on this Reason , that the Charge is to the behove of Francis Arneil , who was Conjunct Cautioner , and bound for mutual Relief , and therefore he can ask no more , then his share of what he truely payed in Composition . The Charger answered , that he nor Francis Arneil , were not Charging on the Clause of Relief , but on the principal Contract , as Assigney : And though he had gotten Assignation thereto gratis , he might crave the same , except his own part .

Which the Lords found Relevant .

Heugh Kennedy contra George Hutchison . Eodem die .

HEugh Kennedy as Assigney by Sir Mark Ker , to a Bill of Exchange , which was drawn by George Hutchison , upon William Schaw at London , payable to Sir Mark , for like value received from him , did obtain Decreet against George Hutchison and one Schaw , as Intrometters with the Goods of William Schaw , both for the Bill it self , and for the Exchange , and Re-exchange ; the Bill being Protested for not payment . This Decreet being Suspended , it was alleadged that there could be no Exchange , or Re-exchange , nor any thing payed for the Bill , because the Bill was not lawfully protested , but being accepted by Schaw at London , he shortly after dyed ; and it was protested at his house where he dyed , before none of his Relations , having neither Wife nor Children . The Charger answered , that he took Instruments on the Defense , and alleadged , that he needed not to prove the passive Title . Secondly , That he had done all that was requisit , having protested at the Dwelling-house where Schaw resided .

The Lords found , that in this Case , that Death Interveening , which was an Accident , there could be no Exchange nor Re-exchange , because this was no voluntar Failz●e , nor fault ; But found that the Charger , as Assigney , might either take himself for the single value against the Person drawer of the Bill , or to his Successors on whom it was drawn .

Earl of Airly contra Iohn Mcintosh . Eodem die .

THe Earl of Airly pursues Iohn Mcintosh for Contravention , and Lybels these Deeds , that the Defenders Herds had been found Pasturing several times far within his Ground , for a considerable time : which Ground was without all Controversie the Pursuers .

The Lords Sustained the Lybel , it being always proven , that the Herd herded by his Masters Command , or Ratihabition , and referred to themselves , at their conclusion of the Cause , to consider , whether they would sustain the several times of hirding , as several Deeds toties quoties , or if only as one Deed made up of all , and how far the witnesses should be received , as to command , or direction of the Defender .

Dumbar of Hempriggs contra Frazer . July 11. 1664.

HEmprigs as Executor to Dumbeath , having pursued the Lady Frazer , Relict of Dumbeath , and the Lord Frazer for his Interest , for payment of Executory , intrometted with by the Lady , there being Litiscontestation in the Cause : Dumbeath calls the Act , and craves the Term to be Circumduced against the Lord Frazer , who alleadged that now his Lady was dead , and so his interest being jus mariti , ceased . It was answered , Litiscontestation being made , the Debt was Constitute in the Husbands Person , as if he had Contracted to pay it , Litiscontestation being a Judicial Contract . Secondly , The Lord Frazer was Decerned to give Bond to pay what his Lady should be found due . Frazar answered , that no Bond was yet given , and that the Ordinance was only against him as he was cited , which was for his Interest , which is Seassed .

And which the Lords found Relevant and Assoilzied .

Grahame of Hiltoun contra the Heretors of Clackmannan . Iuly 13. 1664.

GRahame of Hiltoun having obtained a Decreet against the Heretors of Clackmannan , for a sum of Money Imposed upon that Shire , by the Commity of Estates ; the Heretors of the Shire have raised a Revew , and alleadged , that this Decreet being obtained before the Commissioners , in the English time , he has liberty to quarrel the Justice thereof , within a year , conform to the Act of Parliament , and now alleadges , that the saids Commissioners did unjustly repell this Defense , proponed for singular Successors within the said Shire ; that they ought not to be lyable for any part of the said Imposition , having Acquired their Rights long after the same , and before any diligence was used upon the said Act of the Committee . It was answered , that there was no injustice there , because this being a publick Burden , imposed upon a Shyre by Authority of Parliament , it is debi●um fundi , and affecteth singular Successors ; especially , seing the Act of the Committee of Estates was Ratified in the Parliament , 1641. which Parliament , and Committee , though they be now Rescinded , yet it is with expresse Reservation of Privat Rights acquired thereby , such as this . The Pursuer answered , that every Imposition of this nature , though by Authority of Parliament , is not debitum fundi ; but doth only affect the Persons having Right the time of the Imposition ; whereanent , the minde of the late Parliament appeareth in so far , as in the Acts thereof , ordaining Impositions to be uplifted during the troubles , Singular Successors are excepted . It was answered exceptio firmat regulam in non exceptis , such an exception had not been needful , if de jure singular Successors had been free . It was answered , many exceptions , though they bear not so expresly , yet they are rather Declaratory of a Right , then in being , then statutory , introducing a new Right .

The Lords found Singular Successors free , and reduced the Decreet pro tanto .

Earl of Lauderdail contra Wolmet . Eodem die .

THe Earl of Lauderdail pursues a Spuilzie of the Teynds of Wolmet , against Major Biggar , who alleadged absolvitor , because the Lands of Wolmet were Valued and approven . The Pursuer replyed , that the said Decreet of Valuation was improven , by a Decreet of Certification obtained there against , at the instance of Swinton , having Right to these Teynds for the time , by a Gift from the Usurper . The Defender duplyed , that no respect ought to be had to the said Certification ; First , because this Pursuer derives no Right from Swintoun , being only restored to his own Right , and Swintouns Right from the Usurper found null : so that as the Pursuer would not be burdened with any Deed of Swintouns , to his prejudice , neither can he have the benefit of any Deed of Swintouns to his advantage . 2dly . The said Certification was most unwarrantable , in so far as the Decreet of Valuation being in the Register of the Valuation of Teynds , the Defender was not oblidged to produce it , but the Pursuer ought to have Extracted it himself . 3dly . All Parties having interest were not called to the said Certification , viz. Mr. Mark Ker the Wodsetter , by a publick Infeftment , in whose Right Major Biggar , now Succeeds . And last , the Defender alleadged , that he had a Reduction of the Certification , upon Minority and Lesion , and the unwarrantable Extracting of it . The Pursuer answered to the first , that seing Swintoun did use the Pursuers Right , all reall advantages which were not Personal , but consequent upon the Real Right , and which belonged not to Swintoun personaliter , but as prerended proprietar : do follow the Real Right it self ; and Accresce to the true Proprietar , as if he had acquired a Servitude , or had reduced the Vassalls Right , ●b non solutum canonem . To the Second , oppones the Certification , wherein compearance was made , for Wolmet , and three Terms taken to produce , and no such Defense was alleadged , as that the Valuation was in a publick Register . To the Third , the Pursuer needed not know the Wodsetter , because it was an Improper Wodset , the Heretor Possessing by his Back-bond , as Heretable Possessor , seing the Decreet of Valuation was at the Heretors instance , it was sufficient to Reduce it against his Heir ; for it would not have been necessar to have called the Wodsetter , to obtain the Decreet of Valuation , but the then Heretable Possessor : so neither is it necessar to call the Wodsetter to the Reducing or improving thereof . To the last , no such Reduction seen nor ready , neither the Production satisfied .

The Lords Repelled the Defense , and duplyes , in respect of the Certification , which they found to accresce to the Pursuer , but prejudice to the Defender , to insist in his Reduction , as accords ; and declared , that if the Defender used diligence , in the Reduction , they would take it to consideration at the conclusion of the cause .

Balmirrino contra Sir William , Dicks Creditors . Iuly 14. 1664.

JAmes Gilmor , for the use of the Lord Balmirrino , being Infeft in the Lands of Northberwick , upon a Right from Sir Iohn Smith , who had Right from Sir William Dick , pursues the Tennents for Mails and Duties . Compearance is made for Sir Williams other Creditors , Wodsetters and Appryzers , who alleadged absolvitor , because the Pursuers Right is Extinct , in so far as Balmirrino being Debitor to Sir William Dick , and charged by him , had acquired this Right from Sir Iohn Smith to compence Sir William , and did actually compence him by alleadging the same reason of Compensation , producing the Disposition then blank in the Assigneys name ; whereupon the Letters were Suspended Simpliciter , aud my Lord assoilzied ; and the Disposition given up to Mr. Alexander Dick , which is instructed by the Testimony of William Douny Clerk at that time , Balmirrino answered , First , That William Dounys Testimony , could not make up a Minute of Decreet , where there were no Process , nor Adminicle to be seen . 2dly Though the minute of the Decreet were lying before the Lords , not being Extracted , the Lord Balmirrino might passe from his Reason of Compensation , and take up his Disposition , which is always permitted before Litiscontestation , or Decreet , and Litiscontestation is never accounted untill the Act be Extracted : So that there being no Act of Litiscontestation Extracted in the said Process , but only an alleadged minute of a Decreet without an Act , neither Partie might resile . 3dly , Though the Suspender might not resile Simpliciter , yet it is still competent to him , to propone a several reason of Suspension before Extract ; being instantly verified : and now he propones this Reason , that the Debt awand by him to Sir . William Dick , is a publick Debt , and the Parliament has Suspended all execution thereupon , till the next Parliament ; which by consequence liberats him from making use of , or instructing his Reason of Compensation . The Creditors answered , it was most ordinar for the Lords , to make up Minuts by the Testimonies of the Clerks , when they were lost . So that William Douny being a famous Clerk , his Testimony must make up the Minute , after which the Lord Balmirrino cannot resile from his Reason of Compensation , or take back the Disposition ; seing it was his own fault he did not Extract it , and cannot make use now of a Supervenient Exception , that was not at that time Competent , in prejudice of their Creditors ; Balmirrino being now in much worse condition .

The Lords found , that the Lord Balmirrino might now propone a Reason of Suspension emergent on the late Act of Parliament and pass from his Reason of Compensation , and take up his Disposition , seing it did not appear that the Process was miscarried through Balmirrino's fault , or that the Disposition was delivered to Mr. Dick , neither of which did appear by William Dounys Testimony .

Thomas Crawfoord contra Prestoun Grange . Iuly 15. 1664.

THomas Crawfoord , as Assigney by the Earl of Tarquair to a Decreet of the Valuation of the Teynds Lethinhops obtained Decreet against the Laird of Prestoun Grange Heretor thereof ; who Suspended upon this Reason , that these Lands were a part of the Patrimony of the Abbacy of New-botle , which Abbacy was of the Cistertian Order , which Order , did injoy that Priviledge , that they payed no Teynds for their Lands , while they were in their own Labourage , or Pastourage , of which Priviledge , not only the Abbots , but after them , the Lord New-botle , and the Defender hath been in Possession : and accordingly Sir Iohn Stewart of Traquair having pursued the Lord Newbotle before the Commissaries of Edinburgh , in Anno 1587. For the Teynds of the Lands of Newbotle , upon the same Defense , was Assoilzied , which Decreet standing , must be sufficient to the Defender , ay and while it be reduced ; likeas , the Defender stood Infeft in the saids Lands by the King , with express Priviledges decimarum more solito . The Charger answered . First , That the foresaid Priviledge , which sometime did belong to all Monestries , was by Pope Adrian the fourth , limited to the Cistertian Order Templars , Hospitillars , and that for such Lands only as they had before the Lateran Counsel : So that the Suspender cannot injoy that Priviledge . First , because he cannot instruct the Lands to have belonged to the Abbacy , before that Counsel . 2ly , That being a Priviledge granted to Church-men , is Personal , and cannot belong to their Successors , being ley men , and albeit the said Decreet , be in favours of the said Lord Newbotle , yet he was Comendator of the Abbacy , and so in the Title of the Order .

The Lords found the Reason relevant , and instructed , by the said Decreet , and Suspended , for such part of the Lands , a● were in the Suspenders own hand .

Mr. William Colvill contra the Executors of the Lord Colvill his Brother Eodem die .

MR. William Colvill pursues the Executors of the Lord Colvill his Brother , for payment of 2000. merk of Portion , Contracted to him by his brother , incase his Brother wanted Heirs Male . It was alleadged , for the Defender , absolvitor , because the Contract is null , there being no Witnesses designed therein , to the Lord Colvills Subscription , but only two Witnesses expresly subscribing as Witnesses to Mr. William Colvils Subscription , and other two undesigned , subscribing as Witnesses , but not relating to any particular Subscription . The Pursuer answered , that he offered to designe , the other two Witnesses which was always found sufficient to take away that nullitie . It were answered , for the Defender , that albeit the Designation were sufficient , in recenti , where the Witnesses were on life , because use may be made of these Witnesses , to improve the Write , which could not hold in re antiqua where both Witnesses were dead .

The Lords formerly found , that the Designation was not sufficient , without instructing the Write by Witnesses , or Adminicles , for which effect , the Pursuer produced several Writs , subscribed by the Lord Colvill , and by one of the two Witnesses , that comparatione literarum might instruct the truth of their Subscriptions ; and alleadged further , that this being a mutual Contract , and unquestionably , Subscribed by the one Contracter , and being of that nature that he , whose Subscription was unquestionable , did ingadge for a more onerous cause then the other .

The Lords compared the hand writs , and found them both alike , sustained the Write . The Pursuer making faith that it was truely subscribed by both Parties .

Hospitall of Glasgow contra Robert Campbel . Iuly 19. 1664.

THe Hospital of Glasgow having Appryzed the Lands of Silvercraige , they thereupon obtained Decreet , which being● Suspended , compearance is made for Robert Campbel in Glasgow , who alleadged that he has Appryzed the Estate of Lamont , from the Laird of Lamont ; and that the Lands of Silvercraige are a Part and Pertinent of the Lands Apprized by him , whereby he stands in the Right of the Superior , and offers to prove , that the Lands in question , are Waird , and that the Appearand Heir from whom the Hospitall hath Appryzed , is yet Minor , and therefore the Hospitall coming in his place , can be in no better Case nor the Minor ; but the Course of the Waird must run , during the Appearant Heirs minority . The Charger answered , that the Course of the Waird cannot now run , because the Lands are full , by the Infeftment of the Appryzer , who stands Infeft , being received by a prior Appryzer of the Superiority , without any Exception , or Reservation of the Waird Duties . It was answered , for Robert Campbel , that George Campbels Appryzing of the Superiority was , extinct , by Satisfaction with the Males and Duties , before he received the Hospitall , and so there is now place to the Second Appryzer , neither can the filling of the Fee by the Appryzer stop the Course of the Waird , which began before the Appryzing ; albeit the Appryzer be Infeft simply ; seing all Infeftments on Appryzings , are in obedience , which never imports a passing from any Right of the Superiors , albeit he do not reserve the same ; and therefore he may make use of any Right in his Person , not only as to the Casualities of the Superiority , but as to the Property , and his receiving in obedience , is only to give the Appryzer Anteriority of Diligence .

Which the Lords found Relevant .

Sir . Laurence Scot contra . Lady Shenaltoun Eodem die .

IN an Act of Litiscontestation , betwizt Sir . Laurence Scot , and the Lady Shenaltoun ; a Defense of Payment being found Relevant , Scripto velj●ramento for Sir Laurence , and not having cited the Lady , to give her Oath , nor produced any Write ; the Term was craved to be circumduced .

The Lords did not circumduce the Term , but found that the Pursuer should have been still ready to produce his Client to Depone , if the Defender made choise of his Oath .

Elizabeth Douglass contra Laird of Wadderburn . Eodem die .

ELizabeth Douglass , as Heir to her Goodsire , and Sr. Robert Sinclar of Loc●ermacus her Husbands , pursue a Spuilzie of Teynds against the Laird of Wadderburn , who alleadged absolvitor , because he had Tack of the Teynds of the saids lands from the Earl of Hoom , and by vertue thereof , was bona fide Possessor , and behoved to bruik , till his Tack were reduced . 2ly . That he had Right from the Earl of Hoom , by the said Tack , which Earl of Hoom , albeit his Right which he had , the time of the granting of the said Tack , was reduced , yet he has sincepresently in his Person , the Right of the Teynds of the lands from Iohn Steuart of Coldingham , which being jus superveniens authori , must accresce to the Defender , and defend him in this Pursuit . The Pursuer answered to the First Defense , that the Defenders bona fides was interrupted , by Process against him , long before the Years lybelled . 2ly . Albeit there had been none , yet this Author , the Earl of Hooms Right being reduced in Parliament , his bona fides being sine omni titulo ; is not sufficient ; neither needed the Tacks-man to be called to the Reduction , but his Right fell in consequentiam with the granter of the Tacks right . The second Defense , It was answered , that the general maxime of jus Superveniens , has its own fallancies , for the Reason of the maxime is , that when any thing is disponed for a cause onerous , equivalent to the Value thereof : It is always understood , that the Disponer dispones not only what Right he hath already , but whatever Right he shall happen to acquire ; seing he gets the full Value : and therefore sixione juris , whatever Right thereafter comes in his Person , though it be after the Acquirers Right , yet it is holden as conveyed by the Acquirers Right , without any new Deed or Solemnity , but where that Reason is wanting , it holds not as first , if it appear , that the Cause of the Disposition is not at the full Value ; then it is presumed , that the Disponer only disponed such Right as he presently had ; or if the Disponer deduce a Particular Right : as an Appryzing , or Tacks . &c. and either Dispons , but that Right , per expressum , or at least dispones not for all Right he hath or may have , or does not dispone with absolute Warrandice ; In these Cases , the Authors Right supervening , accresces not to the Acquirer , but himself , may make use thereof against the Acquirer , much more any other having Right from from him . 2ly . The maxime holds not , if the Authors Right be Reduced before he acquire the new Right , in which case , the first Right being extinct , nothing can accresce thereto , but the Author may acquire any other new Right , and make use thereof . 3ly , The maxime hath no place , if the Author do not acquire a new Right to the land , which could be the foundation and ground of the Tack granted ; as if he acquired but the Right of an Annualrent , which could be no ground of the Defenders Tack , much more , if he acquire a Right to the Mails and Duties of the lands , either upon Sentence to make Arrested Goods furthcommand , or an Assignation , or Disposition of the Mails and Duties made to the Author , for satisfying of a Debt to him , by the Disponer . This would be no Right to the land that could accresce to Validat a Tack . The Defender answered , First , that his first Defense was yet relevant , because , albeit his Authors Right were reduced , he not being called , his Right would be a sufficient colourable Title , to give him the benefit of a Possessory judgement , untill his bona fides were interrupted by Process , because his subaltern Right is not extinct , till either by way of Action , or Exception , it be declared extinct ; as falling in consequence , with his Authors Right reduced , seing there is no mention thereof in the Decreet of Reduction . 2ly Albeit Diligence had been used , yet if the user thereof insisted not , but suffered the Defender , to possess bona fide seven year thereafter , it revives that benefit of a new Possessory Judgement .

The Lords , as to this Poynt , found that the Interruption of the bona fides by Process , did still take the same away , unless it were Prescrived , but found , that before any Process , the Defense should be relevant ; and therefore sustained only Process , for the year , since the Citation .

As to the other Defense in jure . The Defender answered , that his Defense stands yet Relevant , notwithstanding all the Fallacies alleadged which are without warrant in Law , and without example with us , where this Maxime hath ever been held unquestionable , that jus Authoris accrescit Successori , unlesse the Successors Right be expresly limited , to a particular Right , or to any Right the Author then had , but the Defender needs not Disput the Equivalence of the Cause , unlesse such expresse Limitation were , added there is no ground to presume an Exception upon the Personal oblidgment of Warrandice , from fact and deed , which oftimes is put in Contracts fully onerous , but on the contrair , there is a several Defense upon that very Clause : that the Earl of Hoom , whatever Right he should acquire , yet if he should make use of it against this Defender , he comes against his own Warrandice , whereby he is oblidged , that he has done , nor shall do no deed prejudicial to the Defenders Tack , neither is there any ground of Exception ; albeit the Authors Right was reduced , before the new Right acquired from that ground , that the new cannot accresce unto the old Right , being Extinct , because the Maxime bears , that it accresces Successori , non jure Successoris ; so that albeit the new Right do not Validat the old Right : yet the new Right becomes the Defenders Right , eo momento , that it became the Authors Right , per fictionem juris , without deed or diligence , and cannot be taken away by any subsequent deed of that Author , more then if before such a deed , he had particularly established his Successors therein ; because the fiction of the Law is equivalent to any such establishment , neither is their any ground of Exception , that the Authors Right Superveening , is but an Annualrent , which cannot Validat a Tack ; because , if the Author were making use of that Annualrent to poynd the ground , the Defender upon his Tack and Warrandice would exclude him , because he could not come against his own d●ed and oblidgment ; yea , albeit it were but a Right to the Mails and Duties , quocunque modo . The Lords having considered the Earl of Hooms new Superveening Right , and that it was but the Right of an Annualrent of 300 lib. Starling , with a Clause , that incase of failzie of payment , he might uplift the hail Mails and Duties till he were payed , and that the Defenders Tack included only Personal Warrandice . They repelled the Defense , and found that such a Right could not accresce to the Defender , to validat his Tack , wherein some of the Lords had respect to that point that the Right was Reduced before this new Right ; but others , as it seems , on better grounds layed no weight on that if the cause onerous , had been the full value , and equivalent , or if the Tack had born for all Right that I have , or shall acquire , which would accresce to the Successor , as oft as ever it was acquired , though all the prior Rights had been reduced , but in this Case , the Author not acquiring a new Right to the Lands , but only to the Mails and Duties , which in effect is but Personal , it could not accresce to the Defender , more then if the Author had been Factor to a thrid Part by the new Right , and albeit the Clauses of Personall Warrandice might have Personally excluded the Earl of Hoom himself , yet seing , that Right could accresce to the Defender , the Earl of Hoom having renunced , or assigned it to a thrid Partie . The Personal Objection against the Earl of Hoom upon the Personal Clause of Warrandice ceases , neither did the Pursuer insist upon the Earl of Hooms Right , but his own .

Elizabeth Scrimgeor contra Executors of Mr. John Murray Eodem die .

IN a Compt and Reckoning betwixt Elizabeth Scrimgeor relict of Mr. Iohn Murray Minister , and his Executors , these Queries were reported to the Lords by the Auditor . First , Whether the Defunct dying Infeft in an Annualrent could have an Heir , as to moveable Heirship . The Lords found he would , seing the Annualrent was Feudum , and he might thereby be esteemed as Baro , as well as a petty Fewer .

Quest. 2. Whether the Defunct , having died the day before Martinmas 1661. He would have right to any part of the Stipend 1662. As the Annat . The Lords found he would have the half of 1662. Quest. 3. Whether he would have like right to the Gleib , as to the Stipend , by the Ann. The Lords found that could not be debaitable , betwixt the Defuncts Relict and Executors , albeit there was no compearance for a new intrant in which Case , they thought that so soon as the intrant 〈…〉 were admitted , he would have right to the Manse and Gleib , and not the Defunct , though the Defuncts Wife would have right to a part of the Stipend due after his entrie . Quest. 4. Whether the Heretable Debt could exhaust the moveable Estate of the Defunct , to deminish the Relicts part , especially if their be no Heretable Debt due to the Defunct , or if the Heretable Debts due by him exceed these due to him .

The Lords found , that seing the Relict could have no benefit of Heretable Debts due to the Defunct , being excluded by the Act of Parliament 1641. renewed , 1662. Therefore she would have no detriment , by such Heretable Debt due by the Defunct , whether they exceeded the Heretable Debts due him , or no. In this report , it falling into consideration , whether the Ann would only belong to the Wife , there being no Children , or half to the Wife , and half to the nearest of Kin , they thought it would devide equally betwixt them , though it was not res●lv●d , whether it needed to be confirmed , or would be lyable to the Defuncts Debt .

Lady Clerkingtoun contra Stewart . Iuly 20. 1664.

THe Lady Clerkingtoun , pursues the Heirs of Umquhile David Stewart Son to the Laird of Blackhall , for the Sum of 2000 merks due to her Husband . It was alleadged , for Walter Stewart Brother to the Defunct , Defender , no Process , because the Heir of Lyne , of the Defunct David Stewart was not called , in so far as David , being the only Son of the second Marriage , and having neither Brother nor Sister of that Marriage ; his Heir of Lyne could not be Walter Stewart , youngest Son of the first Marriage , but the Heir of the Eldest Son of the first Marriage ; according to Craigs Opinion , de successionibus .

The Lords found , that in this case , Walter , as the next immediat preceeding , was both Heir and of Conquest , and not the eldest Brother .

In this Process , it was also alleadged , that this Sum was a Clandestine Fraudulent Paction , contrare to the Contract of Marriage , betwixt the Defunct David Stewart , and the Defenders Daughter , whereby 10000 merks being Contracted with her in Tochar , and Blackhall granted a proportionable Liferent thereto ; yet under hand , without Blackhalls knowledge his Son was induced to give Bond for this 2000 merk , to take away 2000 merk of the Tochar : and it was remembred by some of the Lords , that in the like Case , a discharge of a part of a Sons Provision granted to his Father , contrair to his Contract of Marriage was found Fraudulent and null , by exception .

The Lords did not decyde , but rather desired the Parties should agree , but thought this was an unfavourable Act of dangerous consequence .

Petrie contra Paul . Eodem die .

PEtrie pursues a Removing against Paul , who alleadged absolvitor because she possessed , by vertue of her Infeftment . It was replyed , the Infeftment was null , by exception● as following upon a Contract of Marriage which Marriage was dissolved within year and day . It was duplyed , that the Infeftment behoved to stand valid , being in recompence of her Tochar , untill her Tochar was repayed .

Which the Lords found relevant , unless it were alleadged , that the Tochar was not payed to the Husband , but in her own hands , or her Debitor .

Scot of Braid-meadow contra Scot of Thirlstoun . Iuly 21. 1664.

SCot of Braid-meadow pursues Scot of Thirlstain his Curator , for Compt and Reckoning , who alleadged absolvitor ; because the Pursuer having conveened the Defender before the Sheriff , to compt , and Reckon , and to Renunce his Curatorie , he was ●hen decerned to Renunce the Office , and did Compt for bygones . The Pursuer answered , no respect to that Decreet , because it was during his Minority . In which time the Defender had a competent defense , that he was not comptable ; and for the Renunciation of the Office . It was a great Lesion to the Pupil , which the Curator should not have yeelded to , but proponed a Defense against the same , that he could not pursue his Curator to Renunce , unless he had condescended , and instructed malversation . The Defender answered , that he had just Reason to suffer Sentence , because his Pupil was Irregular , and medled with his own Rents by force , and mispent the same .

The Lords , Notwithstanding of the Decreet , ordained Compt and Reckoning , and found , that the Decreet could not liberat the Curator , even for his Omissions after , but reserved to the Defender , before the Auditor to condescend what deeds the Pupil had done before , as being relevant pro tanto .

Alexander Livingstoun contra Heirs of Lyne and Daughters of the Lord Forrester . Iuly 22. 1664.

ALexander Livingstoun , as Assigney to a Debt awand by the deceist Lord Forrester , having charged his Daughters , and Heirs of Lyne and they Renunced , whereupon he pursues Adjudication ; Compearance , is made for the Lord Forrester , who produced his Infeftment , and alleadged the Lands therein comprehended could not be Adjudged ; because the Defunct was denuded thereof , before his Death ; and as he could stop the Apparant Heirs , if they were craving themselves to be entered Heirs to their Fathers , so the Adjudger , in their place could not crave Infeftment . The Pursuer answered , the Defense was not Competent hoc loco , and the Defender would not be prejudged by any Infeftment , or Adjudication , if he had sufficient Right . And therefore , as in an Apprysing , he might Appryse omne jus , that the Defunct had , and thereupon be Infeft : So he hath the like benefit in Adjudication , which hath been ordinarly sustained , periculo petentis .

The Lords sustained the Adjudication , as to all Right the Appearand Heirs could have had in the Lands , but not as to the Property , and therefore would not decern the Pu●●uer to be Infeft , but sustained the Decreet of Adjudication , that thereby he may have Right to Reversions , and Clauses resolutive , or other Personal Clauses , which they thought would be sufficiently carried by the Decreet of Adjudication , without Infeftment , and would not be prejudged by another Adjudger , obtainer of the first ●nfefment , but this was besyde the Ordinar Course wherein Adjudications use always to be granted periculo petentis , that thereby omne jus may be carried ; and as in Appryzings , it hath been ordinarly found , that the Superior must Infeft the Appryzer , to compleat his Legal diligence , albeit●he Superior instruct , that him●elf hath a Right to the Lands ; Because his receiving of the Appryzer , in obedience , will not prejudge his Right , and it were unreasonable to force an Appryzer , or Adjudger to dispute the Poynt of Right● when all the Writs and Evidences are in their Adversaries hands , and the Creditors being meir Strangers , who upon their Appryzings , or Adjudications can only have Title to exhibition of the Rights , and afterward be oblidged to dispute , but here the Case was notour to many of the Lords being near the Town of Edinburgh , that the Lord Forrester had Infeft his Goodson in his Estate .

Lord Loure contra Lady Craig . Eodem die .

LOrd Loure being Infeft in the Estate of Craig , pursues for Mails and Duties ; Compearance is made for the Lady Craig Liferenter , who alleadges she stands Infeft , and in Possession of the Lands . The Pursuer answered , that any Infeftment ; as to that part thereof , that was not for fulfilling of the Contract of Marriage , was Fraudulent , and in Prejudice of lawful Creditors , and so null by exception , conform to the Act of Parliament 1621. It was answered for the Lady . They opponed the Lords dayly Practique ever since the said Act , that Infeftments were never taken away thereupon by Exception or Reply .

Which the Lords found Relevant .

Montgomerie contra Hoom. Eodem die .

WIlliam Mongomery , pursues Alexander Hoom to Remove , who alleadged absolvitor , because he stands Infeft , and by vertue thereof , in seven years Possession , and so hath the benefit of a Possessorie Judgement . It was Replyed , that before any such Possession , a Decreet of Removing was obtained against the Defender , which made him mala fide Possessor . It was duplyed , that since that Decreet , which was in absence , the Defender had Possessed it seven years without Interruption , which acquired the benefit of a new Possessorie Judgement . And alleadges that an Interruption of Possession ceases by seven years , albeit in the Point of Right , it ceases not till Fourty .

The Lords found the Interruption stands for fourty Years , and that no Possession thereafter , upon that same ground could give a new Possessorie Iudgment , the Possession being Interrupted , not only by Citation , but by a Decreet of Removing , which stated the other Partie in Civil Pessession .

Earl of Sutherland contra Mcintosh of Conadge . Eodem die .

THe Earl of Sutherland pursues Mcintosh of Conadge for the profit of a Regality belonging to the Earl . viz. Blood-wyts , Escheats . &c. whereof Conadge had obtained Gift from the Usurpers , the time that Regalities were Supprest ; and declared that he insisted for those only that were yet unuplifted , for which the Parties Fyned had not made payment , albeit some of them had given Bond. The Defender alleadged absolvitor , for Blood-wyts , and Amerciaments , which might have been done by the Justices of Peace because , as to these , the Inglish had done no wrong ; seing the Justice of Peace might then , and may now Cognosce and Fyne for Blood-wyts , whithin the Regality . The Pursuer answered , that as he might have Re-pleadged from the Justice General , if he had not been impeded by the Act of the Usurpers , so much more might he have re-pleadged from the Justice of Peace , and therefore any Blood-wyts decerned by them , belonged to him , as Lord of the Regality .

The Lords repel●ed the Defense , and jo●nd the dead of the Iustice of Peace could not prejudge the Pursuer .

M. John Muirhead contra Iuly 21. 1664.

MR. John Muirhead , as Assigney pursuing he alleadged , that the Assignation not being intimat before the Cedents , death , the Sum was in bonis defuncti , and the Assigney could have no Right without Confirmation .

The Lords Repelled the alleadgance .

James Johnstoun Merchant in Edinburgh , contra The Lady Kincaide November 11. 1664.

JAmes Iohnstoun pursues the Lady Kincaide , as Executrix to her Husband , who alleadged absolvitor , because the Testament was exhausted , and she had obtained a Decreet of Exoneration , which being standing un-reduced , she behoved to be assoilzied , seing there was no Reduction thereof raised . 2ly , Albeit the said Exoneration were quarrallable hoc ordine yet it appears thereby , that the Testament was exhausted . The Pursuer answered , that the first Defense on the Exoneration non Relevat , unless the Pursuer had been cited to the giving thereof ; it operats nothing against him , nor needs he Reduce it . 2ly , The second member of the Defense of exhausting the Testament mentioned in the Exoneration , non Relevat , unlesse it were alleadged exhausted by lawful Sentences , before intenting of the Pursuers Cause . The Defender answered , that it was Relevant to alleadge , that payment was made of lawful Debts of the Defuncts instructed by writ , before intenting of the Pursuers Cause , for seing the Debt was clear , the Executor ought not to multiply Expenses , by defending against the same , unless it were alleadged there were collusion to prefer the Creditors payed .

The Lords repelled both members of the Defense , and found that the Executrix might not , without a Sentence prefer any Creditor ; especially , seing it was not a Debt given up in Testament by the Defunct , neither was it alleadged , that the Pursuer had long neglected to pursue .

Nicolas Murray Lady Craigcaffie contra Cornelius Neilson Merchant in Edinburgh . November 12. 1664.

NIcolas Murray pursues a Reduction of a Decreet of the Baillies of Edinburgh , obtained against her , at the instance of Cornelius Neilson upon this Reason , that she being pursued for the Mournings for her self and Family , to her Husbands Funeralls ; which Mournings were delivered to her , by the said Cornelius , and were bought by her from him , or by her Order sent to her ; which was referred to her Oath , and she deponed , that Cornelius had promised to his Father , to give necessars for his Funerals out of his Chop , and according to that promise , had sent unto her .

The Baillies found , that this qualitie adjected in the Oath , that the Furniture was upon Cornelius promise to his Father , resulted in ane Exception , which they found probable by Write , or Oath of Cornelius ; who having deponed , denyed any such promise , and therefore they decerned , the Lady to pay : Against which her Reason of Reduction is , that she ought to have been Assoilzied by the Baillies , because her Oath did not prove the lybel . viz. That she bought the Wair from Cornelius , or made her self Debitor , therefore , but only that she received the same from him without any Contract , or Ingadgment , which would never make her Debitor , for a Wife , or a Bairn in Family are not lyable for their , Cloaths , unless they promise payment , but only the Father ; and in the same manner , the Mourning for the Funeralls of the Husband is not the Wifs Debt , but the Husbands Executors . The Defender answered , that the Reason was no ways Relevant , seing the Pursuers Oath proved the receipt of the Goods , which was sufficient ad victoriam causa . The quality being justly taken away ; for albeit the Husband or his Executors were lyable for the Relicts Mournings , yet a Merchant that gives off the same to the Relict , is not oblidged to dispute that , but may take himself to the Relict , who received the same without either Protestation , or Aggreement , not to be lyable . The Pursuer answered , that whatever Favour might be pleaded for a Merchant Stranger , yet this Furniture being given by the Defuncts own Son to his Relict , could not oblidge her . The Son being the Fathers ordinar Merchant .

The Lords found , that the Oath before the Baillies proved not the lybel , and that the accepting of the Mournings , did not oblidge the Relict , but the Executors seing the Defunct was a Person of their quality , that his Relict required mourning and therefore Reduced .

Galbreath contra Colquhoun . Eodem die .

WAlter Galbreath pursues an Exhibition of all Writs made by , or to his Predecessors , ad deliberandum . The Lords restricted the lybel , to Writs made to the Defunct , or his Predecessors , or by them to any Preson in their own Family , or containing any Clause in their ●avour , whereupon the Defender having Deponed , that he had in his hand a Disposition of Lands made by the Pursuers Predecessors , Irredeemably ; and that he had his Predecessors progress of these Lands , but that he thought there was no Clause in any of these Writs , in the Pursuer , or his Predecessors Favours .

The Lords having considered the Oath , Ordained the Defender to produce the Disposition , denunding the Purs●ers Predecessors , and thought that being produced simply , without condition of Reversion , it liberat him from producing the Pursuers Predecessors Progresse , though made in their Favours ; but because the Pursuer alleadged , that in their Predecessors Progress , there was a Clause de non alienando , which would work in his Favour , and that the Oath was not positive , but that he thought . They Ordained the Defender to be examined , if he had any Tailzie .

Daughters of Balmirrino contra Eodem die .

THe Daughters of Balmirrino having pursued the Heirs Male , for their Portions contained in their Mothers Contract of Marriage , and for a competent Aliment untill the same were payed . The Defender renunced to be Heir , and was absent .

The Lords advised the Contract , by which they found the Portion payable at the Daughters age of fyfteen , and Aliment till that time , but no mention of Annualrent , or Aliment thereafter ; yet they found that the Aliment behoved to be continued till their Marriage , or the payment of their Tochar : They being Minors , and leised , by not pursuing therefore at the Age of fyfteen , but that they could not have Annualrent , seing the Contract bare none .

Dame Elizabeth Fleming contra Fleming and Baird her Husband . November 16. 1664.

IN an Accompt and Reckoning , betwixt Dame Elizabeth Fleming , and her Daughter , and Robert Baird her Spouse . The Lords having considered the Contract of Marriage , in which Robert Baird accepted 12000 merk , in full satisfaction of all his Wife could claim , by her Fathers decease , or otherwayes ; and there being some other Bands in her Name , her Mother craved , that she might be decerned by the Lords , to denude her Self and Assigne to her Mother ; seing she was satisfyed , and she on the other part , craved , that her mother and Sir Iohn Gibson might be oblidged to warrand her , that her 12000 merk should be free of any Debt of her Fathers . It was answered for the Mother , that there was no such Provision contained in the Contract , and the Lords in justice could not cause her to go beyond the terms of the Contract , there was no Reason for such a warrandice ; seing Debts might arise to exhauste the hail Inventary . It was answered for the Daughter , that there was no oblidgment in the Contract , for her to assigne her Mother , but if the Lords did supply that as consequent upon the tennor of the Contract ; they ought also to supply the other . It was answered for the Mother , that there was no reason for her to undertake the hazard , unless it would appear , that there was so considerable Adiminition of her Daughters Portion , in her favours , as might import her taking of that hazard for that abatement ; and albeit such a warrandice were granted , yet● it should only be to warrand the Daughter from the Fathers Debt , in so far as might be extended to the superplus of the Daughters full portion , above the 12000 merk.

The Lords found , that if there was an abatement in favours of the mother , it behoved to import , t●at she undertook the hazard of the fathers Debt , not only as to the superplus , but simply ; but seing it was known to the Lords : They gave the mother her choise , either to compt to the Daughter for the whole Portion , if she thought there was no benefit without any such Warrandice , or if , she took herself to the Contract , and so acknowledged there was a benefit . They found her lyable to warrand her Daughter simpliciter .

Lochs and the Earl of Kincairdin contra Hamiltoun . November 18. 1664.

HAmiltoun and her Authors , having obtained Decreet against Lochs , as Heirs to their Father , for a Sum of money ; and Annuals thereof , after Compt and Reckoning , and being thrice Suspended , there are still Decreets in foro , Lochs , and the Earl of Kincardine now Suspends again , and alleadged , that in the Compt and Reckoning , there were several Recepts of Annualrent , which were not at that time in Lochs hands , but in the Earl of Kincardines , whose Father was Co principal bound conjunctly and severally with Lochs Father . The Charger opponed her Decreets in foro , and alleadged , that Kincairdin had no interest , for neither could the Letters be found Orderly Proceeded , nor yet Suspended against him ; and whereas it was alleadged , that the Clause of mutual Relief , would force him to Relieve the Lochs prorata , he had a good Defense , that they had not intimat to him the Plea , and thereby had Prejudged themselves , of the Defense upon the Ticket in his hands . The Suspenders answered , they were Minors , and that Kincardin having a clear Interest , might choise whether to Defend them , or Defend himself against them .

The Lords reponed them to the Tickets now gotten out of my Lord Kincairdins hands , but declared there should be expense granted against them , for all the Decreets to which the Chargers were put .

Thomas Guthrie contra Sornbeg . Eodem die .

GVthrie pursues Sornbeg , alleadging , that their being a first Wodset of the Lands of Thriplandhill , and certain Tenements in Edinburgh , to Alexander Veatch , or his Authors ; and a second Wodset of the Lands of Thriplandhill granted to the Pursuers Father , and by a posterior Contract .

The Pursuers Fathers Wodset was Confirmed , and a certain Sum added thereto , and for both , some Tenements in Edinburgh , were disponed with this provision ; that Guthrie should possess thereby , and should be comptable for what was more then his Annualrent , and Sornbeg having redeemed the first Wodset , and taking a Renunciation thereof , and having Right to the Reversion of the whole , entered to the Possession of the Tenements in the Town : whereupon Guthrie craves , that Sornbeg may compt and reckon for the Mails and Duties uplifted by him , and possess him in time coming , to the hail Mails and Duties , aye and while he be payed of his Principal Sum , and Annualrents , or satisfied by Intromission . The Defender alleadged , First , That he having the Right of Reverson , though posterior , yet having , first Redeemed , and made use thereof , his Right of Reversion by his Disposition , being in effect an Assignation to the Reversion : and Guthries second Wodset being a prior Assignation to the Reversion . The second Assignation with the first Diligence , or Intimation must prefer the Defender .

This the Lords repelled , and found no necessity of an Intimation , or Diligence to consumat Guthries Right to the Reversion of the first Wodset , seing Guthrie was Infeft by his second Infeftment , which was equivalent to the Registrating of a Formall Assignation to the Reversion .

2dly . The Defender alleadged , that being Singular Successor ; and having Redeemed the first Wodset : which is now extinct , he possesses by an irredeemable Right , and so must have the benefit of a Possessory Judgement .

The Lords repelled this Defense , seing seven years Possession was not alleadged .

3dly . The Defender alleadged absolvitor , from the bygone Mails and Duties , before intenting of this Cause , because , albeit he had not possessed so long , as to attain the benefit of a Possessory Judgement , which would defend him , not only for bygones , but in time coming ; till his Right were Reduced , yet before Citation , he was bona fide possessor , & fecit fructus consumptos suos , which the Lords found relevant . 4ly . The Defender alleadged , that by the Pursuers Contract , he was to be comptable for the superplus of the Mails and Duties of the Lands , more then payed his Annualrent , and now the Defender coming in place of the Heretor , the Pursuer is comptable to him for the superplus . The Pursuer answered , that albeit he was comptable , he might detain those Annualrents , and impute them in his Principal Sum.

The Lords having considered the Contract , found the Pursuer ought to be Re-possessed , but that he could not detain the superplus , but that he behoved to be comptable yearly to the Defender conform to the Contracte .

Margaret Mcgil contra Ruthven of Gairn . November 22. 1664.

MArgaret Mcgil pursues a Reduction of her first Contract of Marriage with Umquhil Patrick Ruthven younger of Gairn , upon two Reasons , First , because it was post nuptias , and so donatio inter virum & uxorem stante matrimonio revocabilis . 2dly . Because she was Minor , and enorlie leised , in so far as she disponed to her Husband , and the Heirs of the Marriage ; which failling , to his Heirs 8000 lib. of money , and above ; and the half of some Tenements in Edinburgh , worthie 1100 lib. yearly in leiu whereof , her Liferent was only of 8. or 10. Chalders of Victual , and of her own Tenements ; but she did not ●etain to her self the Liferent of the Money , or any Part of the Stock , whereby she is leised in that , if the Heirs of the Marriage fail the Money , and the Lands goes to the Heirs of the Husband , and returnes not to hers , and that her Provision being worth 20000 lib. she ought , at least to have had the double of the Annualrent thereof in joynter . The Defender answered to the first Reason , that it was no way relevant , seing this was expresly a Contract of Marriage , although after the Marriage there being no Contract before it is alike , as if it had been before the Marriage ; and to the second Reason is not relevant , unless it were enorme lefion ; for there being no Portion , or rule in Tochars and Joynters , but that some get a Joynter equivalent to the Aunualrent of their Tochar , some half as much more , some double , and it being ordinar , that Tochars are provided to the Heirs of the Marriage , which failling , to the Mans Heirs , here was no enorme lesion , or any thing extraordinar , although there were an equality . The Pursuer being a Burgess Daughter , and her Husband a Gentleman of an ancient Family , Quality should be compensed with Means . 3dly . The Pursuer , since she was Major had Homologat the Contract , by setting her Joynter Lands , and lifting the Rent thereof .

The Lords having , before answer , heard Probation of the Provision , and of the Joynture , and having at length considered the whole Cause . They first Repelled the Defense of Homologation , because the Pursuer was not quarrelling what she got , but what she gave ; and therefore requiring Rectification to have more . They also sustained not the first Reason of Reduction , and found the Contract not to be a Donation betwixt Man and Wife : and they found the second Reason of Reduction Relevant , in so far as extended to an enorme lesion beyond the latitude of Contracts of Marriage amongst such Persons , and therefore found it not Relevant , to reduce the Fee of the Wifs Provision , but found it Relevant to add to her a further Conjunct-fee ; and therefore Rectified the Contract , in so far as she had Assigned her Sums of Money , without reserving her own Liferent thereof : and found , that seing the Fee returned not to her , she should have the Liferent of her own Portion , and her Provision out of her Husbands Estate , which is Eight or Ten Chalder of Victual further .

Malcome Scot contra Laird of Bearfoord . November 23. 1664.

BEarsoord having borrowed 4000 merk from Malcome Scot in Anno 1652. By his Contract , he is oblidged to pay the Annualrent thereof , and the Sum at certain Terms , which Contract bears , That for Malcoms better Security Bairford sets to him certain Aikers of Land , for 53. Bolls of Victual yearly , at Malcolms option , either to pay the Bolls , or to pay twenty shilling less then the Candlemess Fiers . Bairford alleadged , that Malcolm ought to compt for the full Fiars , and that the Diminution of twenty shilling , was Usurary , given Malcolm more then his Annualrents , indirectly by that abatement ; and therefore both by Common Law , and specially by the late Act of Parliament , betwixt Debitor and Creditor , that Addition was void . It was answered , that there was here no Usurary Paction ; But it was free to Malcolm Scot , to take the Lands by his Tack● for what Terms he pleased , and he might have taken it for half as many Bolls , or at four merks the Boll , for each Boll which would have been valid . 2ly . The Case of the Act of Parliament meets not , because that is only in Wodsets ; here there is neither Infeftment nor Wodset , but a Personal Obliegement , and a Tack .

3ly . There is a just reason to abate so much of the Boll , because the Tennent behoved to be at the Expense of the Selling thereof , and at the hazard of these that bought , if they failed in payment .

The Lords Sustained the Tack , without Annulling the Abatement , and found it not Vsurary .

Halyburtoun contra Porteous . Eodem die .

HAlyburtoun having Married a Widow in the Potter-raw , there was no Contract of Marriage betwixt them , but he gave her first an Infeftment in all the Lands he had , the time of the Infeftment , and thereafter he gave her a second Obliegment , providing certain Lands to him and her , and the Heirs betwixt them , which ●ailzing , to devide betwixt their Heirs : Her Heirs pursuing to fulfill this Obliegment . Halyburtoun alleadged it was donatio inter virum & uxorem , and now he Revocked .

Which the Lords formerly found Relevant , unless the Pursuer condescended , that this Infeftment was Remuneratory , for a proportionable Provision , brought by the Wife , and after condescendence , having considered what the Wife brought , and what of it was before the first Infeftment , and what interveened betwixt the first and the second ; Albeit whatever fell unto the Wife , was moveable , and would have belonged to the Husband , jure mariti ; Yet if it had been of that value , to have Served both the first and second Provision .

They would have Sustained both , as Remuneratory in gratitude to the Wife ; but they found no such thing condescended on , or Instructed , and therefore they Reduced the second Provision .

Collin Hay contra Magistrates of Elgin . Eodem die .

COllin Hay pursues the Magistrates of Elgin , for the Debt of a Rebel , Escaping out of their Prison . They Alleadged Absolvitor ; First , Because it was in the time of Richard the Usurper . 2ly . The Rebel Escaped , by breaking through the Roof of the Prison , and they searched for him immediatly after .

The Lords Repelled both Defenses , seing the Escape was in day light , during which the Towns Officer should Guard the Prison .

Elizabeth Nisbet Lady contra Murray . Eodem die .

ELizabeth Nisbit pursues a Poinding of the Ground , of certain Lands wherein she was Infeft , by Iames Wood her Husband . Compearance is made for Patrick Murray , who alleadged that he is Infeft by her Husband , his Debitor in the same Lands , and ought to be preferred . It is answered for the Lady , that she ought to be preferred , because both their Annualrents being base ; albeit her Infeftment be posterior ; Yet her Husbands Possession being her Possession , and she being Infeft before Patrick Murray's Infeftment was cled with Possession , must be preferred . It was answered for Patrick Murray ; First , That a Husbands Possession should be the Wifes Possession , cannot be understood in an Annualrent , because her Husband never Possessed an Annualrent , but the Property .

This the Lords Repelled , and found the Possession of the Property , as jus nobilius , to contain the Annualrents eminenter .

2ly . Patrick Murray alleadged that the Husbands Possession being the Wifes , is only introduced in favours of Contracts of Marriage , favore dotis ; That because Wives cannot Possess , during their Husbands life ; therefore his Possession is accomp●ed theirs . But this Infeftment in question is not founded upon the Contract of Marriage , but upon a posterior Charter , of a different Tenor. 3ly . Patrick Murray used citation before C●nd●esmess , next after the Ladys Infeftment , and thereupon obtained Decreet in March , which must be drawn back to the Citation . So that the Husband could have no Possession betwixt the Ladys Charter , and his Diligence , there being no interveening Term. It was answered for the Lady , that this Priviledge is allowed to Wifes , that their Husbands Possession is theirs during their Marriage , favore datis , which may be without a Contract .

2ly . The Husband being in present current Possession , from the very Date of the Wifes Seasine , his Possession is sufficient to validate hers .

The Lords found the Ladyes Infeftment to be first validat by Possession .

It was further alleadged by Patrick Murray● that this Infeftment was donatio inter virum & uxorem , not being founded on the Contract of Marriage , which was satisfied before , at least it is to the prejudice of him a lawful Creditor , who was Infeft before the Lady ; and therefore seeing the Ladys Infeftment is so free and lucrative , both parties being now Disputing the Possession and power therein . The Ladys Infeftment cannot prejudge him . That the Contract of Marriage was satisfied ; he condescends thus , that the Husband was oblieged to Infeft his Wife in certain Lands , and to make them worth 18. Chalders of Victual , or otherwise at her option , to Infeft her in an Annualrent , ita est , she made her option , and was Infeft in the Property , after which she cannot return to this Annualrent in question . It was answered for the Lady , that the Clause being conceived in her option , must be Interpret her option not to receive the Infeftment , but to enjoy either of the two she pleased . First , A Seasine cannot import her choise , which might have been given by her Husband , without her knowledge upon the Preccept , contained in the Contract of Marriage , unless it were instructed , that she did accept the same by a Seasine , propriis manibus , or otherwise ; and that her Infeftment , was a valid effectual Infeftment . 3ly . Albeit that Article of the Contract of Marriage , were satisfied by taking her choise ; yet she being thereafter Infeft upon her Charter produced , in her Liferent Lands , and in the Annualrent in Warrandice thereof , or with power to her to make use of the Annualrent it self , principaliter , at her option , albeit her choice once made , will exclude her from the annualrent , principaliter ; yet not in so far as she is Infeft therein , to warrand and make up the principal Lands , which can be accounted no Donation nor Deed , in prejudice of a Creditor , because it doth but make real and effectual the personal obliegement of warrandice● contained in the Contract . It was answered for Patrick Murray , that this alleadgance non competent hoc loco , but he must only poind the Ground , until the Lady obtain a Declarator , of what is defective of her Liserent Lands , but cannot come in by way of Reply .

The Lords found , that the Ladys acceptance of the Liferent Infeftment , satisfied the obliegement in the Contract of Marriage , and did not sustain the posterior Charter , to give her any further choice ; but sustained the Right of annualrent constitute therein , in warrandice of the Liferent Lands hoc loco , and ordained the Lady to condescend upon the several Rooms , what they payed , and what was wanting , that she might be preferred in the first place , and Patrick Murray in the second place .

Alexander Livingstoun and Schaw of Scrnbeg contra Lord Forrester and Creditors of Grange . Eodem die .

ALexander Livingstoun , as Assigney by Mistriss Margaret Forrester and Sornbeg her Husband , to some Debts owing to her by her Father . The umquhil Lord Forrester having Charged the remnant Daughters , and Heirs of Line , craves Adjudication of the Estate of Forrester and Barony of Grange , wherein the Lord Forrester Died Infeft . Compearance is made for a Creditor of Grange , who produces a Back Bond , granted by the Lord Forrester to the Laird of Grange , bearing , that the Infeftment was in trust to the use and behove of the Laird of Grange , and only to the Lord Forresters behove for Relief of Debts he should be ingaged in for Grange● and alleadged that he being Granges Creditor ; and now insisting against Grange , who has renunced to be Heir for Adjudging of the Estate of Grange ; for Granges own Debt he has good Interest in this Process , to alleadge no Adjudication of Grange Estate , because it is only in Trust , except in so far as may be extended to my Lord Forresters Relief : and if the Pursuer condescend upon any Distress or Ingagement , he will instantly relieve the same . The Pursuer answered , that he being now in an anterior Diligence to this Party , ought not to be stopped in his Diligence , but must be admitted to Adjudge from the Lord Forresters Heirs , whatever was in his Person . And the other Party may also proceed according to his Diligence , to Adjudge the Back Bond , and when he pursues thereupon , he shall have an answer . 2ly . There is no reason to stop the Adjudication , and to force the Pursuer to condescend upon my Lord Forresters● Debts or Interest , because a Creditor cannot possibly know them ; and therefore Adjudications are always granted , generally of all Right the Debitor had , and is the only ground upon which the Adjudger can pursue the havers of the Debitors Rights , to Exhibit and Deliver them , and thereupon to found Processes and Condescendences , but cannot be urged to condescend before he obtain Adjdication ; and also insinuat that he would take his Adjudication , with the burden of the Back Bond : But some of his Advocats resiled therefrom .

The Lords having considered the Case amongst themselves , how dangerous it were , if the Creditors , or Persons intrusted , obtaining Infeftment of an intrusted Estate ; the Back Bond of Trust being personal , would not exclude them : and albeit the Person intrusted were not solvendo , as in this Case the Intrusted Estate , as to the Heirs and Creditors , would be inavoidablie lost .

And some being of opinion , that a Personal Exception upon a Back Bond , could not be competent to burden , or qualifie a real Right , or an Action for obtaining thereof : But the most part were of opinion , that albeit the Right , if it were compleat , would be real ; yet this Action for obtaining thereof , is but Personal ; for real Actions are such only which proceed upon real Rights , and against the Ground , such as upon Annualrents ; and therefore this being a Personal Action , might be excluded , or qualified by a Personal Exception upon the Back Bond.

And therefore they Adjudged , with the Burden of the Back Bond.

Earl of Sutherland contra Hugh Gordoun . December 1. 1664.

THe Earl of Sutherland pursues a Declarator against Hugh Gordoun his Vassal , that his Right being holden Feu , two terms has run into the third , and thereby the Right is extinct , not only by the Act of Parliament , but by a particular Clause in the Defenders Infeftment , at least in the Disposition , whereupon his Charter and Seasine proceeds . There is also called an Apprizer , who alleadged , that he being a singular Successor and a stranger to his Authors Rights , during the Legal unexpyred , is not oblieged to possess , and cannot omit his Right by his Authors fault , or by his own Ignorance .

The Lords having considered this Case , and reasoning amongst themselves , upon the difference of a Clause Irritant , in an Infeftment Feu , and the benefit of the Act of Parliament , they found that if the Pursuer insisted upon the Act of Parliament , the Defender might purge the Failzie by payment at the Bar , but if he insisted upon the Clause in the Infeftment , it behoved to be considered , whether that Clause was in the real Right , by the Charter and Seasine , either specially or generally , under the provisions contained in the Disposition : Or if it was only in the Disposition .

In which case , though it might operat against the Vassal , or his Heirs , yet not against the Appryzer , unless the Seasine had been immediatly upon the Disposition . In which case the Disposition serves for a Charter .

And therefore ordained the Pursuer to condescend , and it is like , that in favours of the Appryzer , being a stranger , they would suffer him to purge at the Bar , utcunque in this Cause , it was not found necessar to cite all Parties at the Mereat Cross , albeit the Letters bear so .

Veatch contra Paterson . December 2. 1664.

PAterson having set some Lands to Veatch in Anno 1645. The Tack contained a Clause , that the Tennents should be relieved of all publick Burdens ; and having left the Land in 1653. two or three years thereafter , he raised a Pursuit against Paterson the Heretor , for payment to him of all the publick Burdens he had payed out , and renews the same Pursuit , and produces the Receipts of the publick Burdens , and alleadges that there was a Penalty in the Tack of an hundred pound , that he should Possesse Veatch , at the Entry of the Tack , wherein he failzied .

The Defender alleadged , that it must be presumed , that all the Tickets and publick burden , was allowed in the Rent , or otherwise past from by the Pursuer , seing he voluntarly payed his hail Rent ; Or otherwise all the publick burdens in Scotland , payed by Tennent , may infer a Distress upon their Masters to repay the same . The Pursuer answered , that that presumption could not take away his Writ , viz. the Tickets produced ; but if the Defender gave Discharges , he ought to have made mention of the allowance of the publick Burdens therein .

The Lords having considered the Case , as of Importance for the preparative , found the Defense upon the Presumption Relevant , unless the Pursuer instruct by Writ , or the Defenders Oath , that these Tickets were not allowed in the Rent : And as for the Penalty , the Lords found , that it ought to be restricted to the damnage , and that the same was not now probable otherwise , then by the Defenders Oath .

Iames Wilson contra Alexander Home of Linthill . Eodem die .

JAmes Wilson having pursued Alexander Home of Linthill , as Sheriff of the Shire , for the Debt of a Rebel , whom he suffered to Escape .

In which , this Defense was found Relevant , that the Rebel in the taking , had wounded these that were taking him , and had Escaped vi majore ,

The Laird of Clerkingtoun contra The Laird of Corsbie● December 3. 1664.

SIr William Dick having Appryzed some Lands , holden of the Town of Irving , and charged the Magistrates to receive him . The Laird of Corsbie having Compryzed the same Lands , some dayes after , was received by the Town , the next day after Sir Williams Charge ; and about a Month after , Sir William was also Infeft . Clerkingtoun having Right from Sir William , pursues Corsbie ; First , for Mails and Duties , Corsbie was found to have the benefit of a possessory Judgement , by seven years Possession , and thereupon was Assoilzied . Now Clerkingtoun insists in a Reduction on this Reason , that he having first Appryzed , and Charged the Superiour , they Colluded with the Defender , and gave him a voluntar infeftment , the next Day after his Charge ; and therefore his Infeftment , though after , ought to be drawn back to his Charge and Diligence , and he preferred . The Defender answered , that the Reason ought to be Repelled , because the weight of the Reason is the Pursuers Diligence , and the Superiours Collusion , which hold not , because all the Diligence Sir William Dick did , was the first Charge upon the Letters of four Forms , which bear only with Certification , that in Case of Disobedience , Letters of Horning would be direct simpliciter , and this is no more then a Premonition , and put no Obligation upon the Superiour , until the second Charge , which was Horning : Neither did Sir William ever insist any further then the first Requisition .

The Lords found that the first Charge was sufficient , in this case , where the Superiour gave an Infeftment before the Expyring of the first Charge , and before the second Charge could be given , and thereby that a Superiour might prefer an Appryzer , though posterior to a prior , do what Diligence the prior could . But they found , that seing Sir William Dick had been silent , until his Legal Reversion was Expyred , and had not challenged the Defender , who was in Possession , and thereby had Excluded him from the benefit of Redemption competent to him , if he had been found to be but the second Right within the Legal . Therefore the Lords found Sir William Dicks Appryzing Redeemable by Corsbie , within year and day , after the Sentence .

Mr. Iames Hutcheson contra Earl of Cassils . Eodem die .

MR. Iames Hutcheson having Charged the Earl of Cassils for his Stipend . The Earl Suspends , and alleadges , first , that the Charger had no right to the Whitsonday Term , 1663. because that Term was past before his Presentation , at least before his Institution and Collation . 2ly . There being but a Decreet of Modification , and no Locality . The Earl alleadged Locality should be first made , and he lyable but for his proportional part of the Stipend .

The Lords found that the Stipend affected the Teinds , and the Minister might take himself to any of the Heretors● in so far as he had Teind , and therfore sustained the Condescendence , and ordained the Charger to prove what Teind my Lord had , without prejudice to him to crave his Relief .

Lady Craig and Greenhead her Husband contra Lord Luire . Decemb. 7● 1664.

THe Lady Craig being Infeft in Liferent , pursues her Tennents . Compearance is made for the Lord Lui●e , who Appryzed the Lands of her Husband , and alleadges that he ought to be preferred , because he stands publictly I●feft , and any Right the Lady has , is but base , holden of her Husband ; and before she attained Possession● he was publickly in●eft . It was answered for the Lady , that her Husbands Possession is her Possession , and so her Infeftment was cled with Possession , from the Date thereof : It was answered that that holds only in the case of an Infeftment to a Wife , upon her Contract of Marriage ; but this was but an additional gratuitous Infeftment , stante matrimonio , she being competently provided before by her Contract .

In which case such Provisions cannot prejudge Lawful Creditors , neither can the Hushands Possession give the benefit of a possessory Judgement to the Wife , unless she had Possessed seven years after his Death .

The Lords found , that such Infeftments as these , being gratuitous and voluntar , could not be prejudicial to the Husbands Creditors , nor give the Wife a possessory Iudgement : And the case here being with a Creditor of the Husbands , they did not proceed further to consider , and determine , if the Husbands Possession , in such a case , would not validat the base Right , as to any acquired Right thereafter .

Eccles contra Eccles. Eodem die .

IN an Action of a Compt and Reckoning betwixt these two Infants . It was alleadged for the Defender , that he being pursued upon his Fathers back-bond , oblieging him to make Compt and Payment of the means of umquhil Fergus Eccles his Brother , to Thomas Eccles● , and umquhil Andrew Eccles , the Pursuers Father . It was answered , upon condition that Mr. Hugh , the Defenders Father should have the third part to himself . The Question was concerning the manner of Probation . The Pursuer alleadged , it was only probable scripto , he being a Pupil and his Father dead . The Defender alleadged , it was probable by the Tutors Oath , being so likely in it self , that Mr. Hugh being the third Brother , should have the third share , and that Thomas the Tutor did accordingly allow him the third share ; and there was produced a Testificat of Balloche , that there was an agreement

Notwithstanding whereof , the Lords refused to take the Tutors Oath , ex officio , seing they found , albeit it were Affirmative it could not prove against the P●pil .

Scot in Cairlyle contra Henderson and Wilson . December 8. 1664.

RItchard Scot having Charged Henderson and Wilson upon their Bonds , they Suspend , and offer them to prove payment of a part , by Witnesses , and alleadges that it being the Law of England , that W●tnesses can prove to take away Writ , that therefore these Bonds being Contracted in England , with English men , the Suspenders ought to have the same benefit of Probation , they would have had , if they had been Arrested in England , upon their Bonds , or pursued there , and adduced a Practick of Dury , in Anno 1628.

The Lords having accuratly Considered and Debated this Case amongst themselves , and finding that locus contractus , was in England . But the Bonds bare expresly a Clause of Registration in Scotland : And that such Bonds had been ordinar betwixt Merchants in England , and Merchants in Scotland ; and in no time such a Probation admitted , and that it would furnish an ordinary delay in such Cases , to the disadvantage of Merchants , and hindering of Trade , by always offering to prove payment in England , by Witnesses , which could require long time .

Therefore they found the reason only probable , scripto vel juramento .

Mr. Cornelius Inglis contra Mr. Rodger Hogg . December 9. 1664.

MR. Cornelius Inglis pursuing a Removing against certain Tennents near Dumbar , upon an Infeftment and Appryzing . It was alleadged for the Tennents , that they were Tennents to Mr. Rodger Hogg , by payment of Mail and Duty to him , and he was not called . The Pursuer answered non relevat , unless the Defenders condescend upon Mr. Rodgers Right , which might defend him and them . The Defenders answered , first ; that they could not be oblieged to Dispute their Masters Right , but he ought to be called to Dispute his own Right . 2ly . It was insinuat , that Mr. Rodger had an Appryzing , and a Charge against the Superiour .

The Lords repelled the Defense , unless the Defenders condescended upon such a Right as were valide to exclude the Pursuer , being prior to his : but the Tennents alleadged no such Right , and Mr. Rodgers Charge was posterior to the Pursuers Infeftment .

Iohn Veatch younger of Dawick contra Alexander Williamson . Eodem die .

JOhn Veatch pursues Williamson upon the Act betwixt Debitor and Creditor , for paying to him of his proportional part of the Mails and Duties of Appryzed Lands , as coming in pari passu with the Defender , by an Appryzing , within a year of his . The Defender alleadged absolvitor , because he has Right to the first Appryzing , led before the Act of Parliament , betwixt Debitor and Creditor : and therefore he has the benefit of the 21. Act of the last Session of Parliament , declaring , that where an Appryzer , for his own Security , had redeemed a prior Apprysing , and gotten Right thereto before the Act , betwixt Debitor and Creditor . The said first Apprysing should have the same effect , it would have had before the Act , Debitor and Creditor , and should not come in pari passu . The Pursuer answered , that behoved only to be understood , where the second Appryzer had upon necessity to shun the expyring of the legal redeemed , and gotten Right to the first Apprysing , which could not be said here , because the Debitor being minor , the legal had , and has a long course to run .

The Lords sustained the Defense without any such limitation , in respect of the express Tenor of the Act of Parliament .

Robert Learmonth contra Laurance Russel . Eodem die .

RObert Learmonth being pursued by Laurance Russel , for the price of Wines , and the matter referred to his oath , gave in a qualified Oath , bearing , that the Wines in question were sent to him , not to be sold till further order , and that therefore he keeped them unsold till the end of the year , and when they were in hazard of spoilling , sold them for 12 pound Sterling the Tun , and that he that sent them , was Debitor to him by Bonds and Decreets , in a greater sum . It was alleadged , neither member of the quality was competent ; not the first , because it was offered to be proven , that the Wines at that time gave 20. pound Sterling ; and not the second ; because it was an exception of Compensation , and relative to Writ .

The Lords sustained the first member of the quality , but rejected the second , and found it relevant to be proven , by way of exception .

Goldsmiths of Edinburgh contra Robert Haliburton . December 10 : 1664.

THe Goldsmiths of Edinburgh having obtained Decreet against Haliburton , as Heir to his Father . He suspends upon this Reason , that the Goldsmiths confirmed themselves Executors Creditors to his Father , and must allow the Inventar , which either they have in their hand , or at least should have done Diligence therefore . It was answered for the Executors , that they being Executor Creditors , are not lyable for Diligence , having Confirmed but to their own behove , for their payment , and as Creditors may arrest , apprize , and do all Dilligence , severally , the one but prejudice of the other , so may they Confirm . 2ly . They found , that having Confirmed in Edinburgh , whereas the Defunct lived and died within the Diocie of Glasgow , that therefore their Title was null ; and therefore did not proceed . And lastlie oppons their Decreet in foro . The Suspender answered , that they can never object against the nullity of their own Title . 2ly . All that time there was no Commissioriat Constitute for the Shire of Air , where the man died , and so Edinburgh was communis patria .

The Lords having Debated the general case , whether Executor Creditors were lyable for Diligence , waved the same , but found that in this Case , in respect of the questionableness of a Title , they would not find them lyable upon their negligence .

Lyon of Muirask contra Sir Robert Farquhar . Eodem die .

MVirask having pursued a Declarator of Redemption of the Lands of Balmellie , against Sir Robert Farquhar , Litis●ontestation was made in the Cause , wherein the Order was sustained , proceeding upon an Adjudication against Sir Iohn Vrquhart , as Heir to his Goodsire , and it was offered to be proven , that he died in the Right of the Reversion of this Wodset , which was but base and holden of the granter , for proving whereof , his Charter was produced , bearing the Barony of Craigfintrie and Balmellie , per expressum . At the advising of the Cause , It was alleadged that the Defender having protested for Reservation , contra producenda . It is now instantly verified , that the Grand-Father died not in the Right of the Reversion , but that he was denuded by Disposition to his Son , instructed by his Charter produced . The Pursuer answered , that he opponed the state of the Process . And if such a Defense were now competent , it ought to be Repelled , because he hath Right from Sir Iohn Vrquhart , who is Heir Served and Retoured to his Father , in whose favours his Grand-father was Denuded , and has declared , that he consents to the Declarator upon that Ground , and Renounces all other Right . The Defender answered , that the order having been only used upon the Adjudication from Vrquhart , as Heir to his Grand-father , if that be excluded , albeit the Pursuer have another Right , he must use the Order , de novo , and redeem thereupon . 2ly . Sir Iohn Vrquharts Right produced Renounces , but does not Dispone any Right to the Pursuer .

The Lords having considered the state of the Process , found that a Reply instantly verified , is receiveable post conclusum in causa , unless it were alleadged to have been known to the Proponer , and dolose omitted ; by which the Pursuer might be put to a Duply , suffering new Probation . But the Lords found that the Charter produced , bearing the Grand-father to be Denuded , did not instantly verifie , because it expressed not Balmellie , and would not allow a Term to prove , part and pertinent .

It was further alleadged by the Defender , no Declarator till the Sums consigned were reproduced at the Bar ; especially , seing it was offered to be proven , that the Pursuer lifted them himself , and he being at the Bar , it is instantly verified .

The Lords sustained the same , and Declared , the Sums being Reproduced before Extract , and that the Pursuer shall be lyable for Annualrent , or the Wodsetter shall retain the Duties effeiring thereto .

Lord Rollo contra His Chamberland . December 13. 1664.

THe Lord Rollo having pursued his Chamberlain for Intromissions , conform to a particular accompt libelled . The Defenders have compeared , offered to prove he was Discharged , which was found relevant ; and now producing the same , it proves but for a part ; whereupon the Pursuer craved Sentence for the rest : It was alleadged for the Defender , that there was nothing produced to instruct the Intromission . The Pursuer answered that the Defender having made Litiscontestation , upon a Discharge , without denying the Intromission , he has acknowledged the Libel , and the Pursuer cannot be put to prove the same , without inverting the Order , and making two Litiscontestations in the same Cause . The Defender answered , that this being but an omission of the Advacats or Clerks , of a thing palpable , the Lords might repone the Defender .

The Lords adhered to the Act of Litiscontestation , but referred to some of their number , to move the Parties to what was equitable ; and it was thought , that if the Defender would alleadge that he was not Intrometter , for these particulars , but that they were in the Pursuer , or his other Chamberlains hands , and were instantly verified by his oath , it were receivable .

Bishop of the Isles contra Iames Hamiltoun . Eodem die .

THe Bishop of the Isles pursuing Hamiltoun a Merchant in Edinburgh , for his Teind Fish taken in the Isles , which is a part of the Bishops Patrimony . The Defender alleadged ● that he being a Merchant , and not a taker of Herring , cannot be lyable for the Teind thereof , no more then if one should buy Corns in the Mercat , or out of the Barn-yard ; he could be conveened for the Teind . It was answered for the Pursuer , that it was the immemorial custom that the first buyer from the Fishers , should be lyable to the Bishop of the Isles , for the Teind of the Fish , bought , and for proving thereof , produced a Decreet at his Predecessors instance , against some Merchants in Edinburgh ; which Decreet did bear , that in a former Decreet , betwixt the same Parties , the Bishops had proven immemorial Possession against the Merchants . 2ly . The instance holds not of buying Corns in the Mercat , or Barn-yeard ; but if any body should buy the whole Cropt , when it was upon the Land untaken off , being in the Sheaves or Stoucks , he would undoubtedly be lyable as Intrometter for the Teind : so if any Merchant bought not upon the place , where the Fishes were taken , he was not lyable : but buying the Fish fresh , as they were taken , in whole Boat-fulls , and selling them there themselves ; such Merchants must be liable as Intrometters . The Defender answered , that the Immemorial custom was indeed Relevant , but a Decreet against some few Persons , could not prove it against others , being inter alios actum . But here there was only a Decreet bearing , that there was a former Decreet , in which that was proven .

The Lords sustained that member against these who bought the hering and salted them themselves , to be proven by their Oaths , and would not sustain the Probation of the Custom , seing the principal Decreet was not produced , unless that at least the Testimonies proving that Custom , were repeated and produced out of the old Process , that it might appear , whether there were any ground of Objection against the manner of Probation .

Lady Colvil contra Lord Colvil . December 14. 1664.

THe Lady Colvil pursues the Lord Colvil to relieve her of the whole Debt , hererable and moveable of the Defunct , his Predecessor , because the Defunct in his Testament , had named her , his Lady , Executrix and universal Legatrix , with a special Clause , that she should be free of all his Debt whatsomever . The Defender alleadged Absolvitor , because no Deed done by a Defunct in lecto , or in Testament can prejudge his Heir . The Pursuer replyed , that this Testament was made in the Defuncts leige poustie . The Defender answered , that on Death-bed , and by Testament equiparantur .

Which the Lords found Relevant and assoilzied .

Laird of Phillorth contra Forbes of Aslocon . December 16. 1664.

PHillorth as Donatar to the Escheat of Forbes of Aslocon , and having obtained general Declarator , insists in his special Declarator . It was alleadged Absolvitor , because the Horning , whereupon the Gift was granted , is null , in so far as being beyond Dee , it is upon six dayes , contrair to to the Act of Parliament 1600. Declaring all Hornings beyond Dee , on less then fifteen dayes null , conform to a Decision in Dury , albeit on a Bond , bearing a Clause of Registration on six dayes only● February 14. 1625. Steuart contra Bruce . It was answered for the Pursuer , that the Acts of Parliament hinder not the agreements of Parties ; but is expresly anent Hornings , on Lawborrows or the like ; but these are on the parties own consent by the Clause of Registration : and if these should not be valide , all the Hornings and other Executorials thereon beyond Dee , since 1600. would be null , and such Bonds would have no effect ; seing upon the Clause of Registration , Horning could not be otherwise direct on six dayes , and so they should not have any summar execution . The Defender answered that the Act is general of all Hornings , and bears a general Reason , because it is impossible for Parties at such distance , to come to Edinburgh to Suspend in four dayes , and privat pactions cannot derogat from general Laws , where the express reason is for publick utility , contrair to which , no man can make himself Rebel , more then he can give power to Incarcerat himself , where Law gives no warrant , but prohibits .

The Lords Repelled the Defense , and sustained the Horning .

Innes contra Forbes of Touchon . Eodem die .

INnes having Charged Forbes of Touchon on an Act of Adjournal , for an Assythment , for wounding him , and reparation of his Blood . He Suspended , and alleadge the Act was null , wanting Citation , Compearance or probation . It was answered , that being the Act of the Justice General , who is Supream in criminalibus , it cannot be recognosced by the Lords .

The Lords having considered the case amongst themselves , thought that in what was truly Criminal , as to corporal pains or amerciaments in way of punishment , they would not medle with the Justice Sentences , but Assythment , being civil for the Damnage and Interest of the Party , pursuable before the Lords , they might recognosce thereon , and therefore in respect that the Probation of the Fact was by a Process before the Baillies , they ordained that Process to be produced before answer , and the Suspender to condescend if there was any exorbitancy in the Sum decerned for the Assythment .

Mr. Thomas Paterson contra Watson . December 17. 1664.

MR. Thomas Paterson Charges Watson to remove from his Gleib , who alleadged the Designation is null , because it is not subscribed by the Ministers Designers , but is only the assertion of a Nottar . 2ly . By the Act of Parliament 1663. anent Gleibs , there is an exception of Royal Burrows , to which Ministers Gleibs are not due , ita est , Dysert is a Royal Burgh . The Charger answered to the first , that the having a warrand from the Bishop and Presbytrie his instrument of Designation is as sufficient as a Seasine , to give Right to Land . And to the second , the Royal Burrows excepted , must only be understood of such who have not a Landwart Congregation , but are chiefly constitute of an Incorporation for Trade ; but this Burgh is notourly known to be but a Burgh of Barony , holden of the Lord Sinclar ; albeit it has the priviledge of Vote in Parliament , and is a Parsonage .

The Lords Sustained the Designation , but before Extract , ordained the Testificat of the Ministers Designers , under their hands to be produced .

Sarah Blomart contra Earl of Roxburgh .

SArah Blomart pursuing the Earl of Roxburgh : he alleadged she could have no Processes , being of the Vnited Provinces , who are declared enemies to His Majesty . It was answered , that there was no Denunciation of War by His Majesty , as King of Scotland , nor any Proclamation in Scotland to that purpose . It was replyed , that there was a Warrant by the King and Council , to cease upon all the Dutch Vessels in Scotland .

The Lords found that this was but an Imbargo , and no Denunciation of War in Scotland , and therefore found Process .

Mr. Iames Reid Minister of North-Leith contra William Melvil . December 20. 1664.

MR. James Reid Charges William Melvil for the Teind of hard Fish , bought by the said William in the Lewes , and imported by him at Leith . He Suspends on this Reason , that he bought the said Fish from Merchants in the Mercat , and did neither take the same himself , nor bought them immediatly when they were green from the Taker , and so can be lyable for no Teind . The Charger answered , that he is decennalis & triennalis Possessor of getting twenty shilling of the Last , of all Fish imported at New-haven ; and for instructing thereof , produces a Decreet in Anno 1634. and another in Anno 1662. and if need beis , offers him yet to prove Possession . The Defender answered , that these Decreets are expresly against the Fishers or Takers of Fish , but not against Merchants , buying and importing the same : and as for the Custome , non Relevat , unless it were an universal Custome established by Sentences ; for if some few Merchants should have to save themselves trouble , given an uncertain acknowledgement , according to their own discertion , and no fixed Duty , nor by no compulsive way , it imports not .

The Lords Suspended the Letters , except only for such Fish as should be taken by the Boats and Fishers of New-haven .

Agnes Young and her Husband contra Buchanans . Eodem die .

AGnes Young pursues Buchanans , her Children , for her third of her Husbands Moveables , and for her Liferent use of the other two thirds , conform to her Contract of Marriage , whereby she is provided , to his Liferent of all Goods and Geir , conquest during the Marriage , moveable and immoveable . The Defenders answered , that the Pursuer cannot both have the third and the Liferent of the whole , because it must be presumed , that the Liferent of the whole , was given in satisfaction of the third and all . The Pursuer answered , that this could not be presumed , unless it had been so exprest , no more then a Terce is excluded by a provision of Liferent , unless it bear in satisfaction of a Terce .

The Lords found the Defense Relevant , that the Pursuer could not both have her third , and the Liferent of the rest , but gave her her option , either of the third , provisione legis , or of her Liferent of the whole , provisione hominis .

Earl of Athol contra Iohn Scot. Eodem die :

THe Earl of Athol having obtained Decreet against Iohn Scot , before the Commissar of Dunkeld , for the Teinds of the said Iohn his Lands . He Suspnds , and raises Reduction on this Reason , that albeit the Decreet bear a Defense proponed , that the Teinds in question are Mortified by the King to a Kirk , and that the same was found Relevant , and that the said Iohn succumbed in proving thereof , yet he offers him to prove that before the Term elapsed , he produced the Mortification before the Commissar , and thereupon took Instruments , which is produced .

Which the Lords found Relevant .

Mr. George Norvel Advocat contra Margaret Sunter . Eodem die .

MR. George Norvel pursuing for Mails and Duties upon an Appryzing . Compearance is made for Margaret Sunter , who alleadged absolvitor because she was Infeft in Liferent , before Mr. Georges Right ; which being found relevant for instructing thereof , she produced her Seasine .

Which the Lords found not to instruct without an Adminicle , and therefore sustained the Decreet .

The said Margaret raised Reduction of this Decreet , on this Reason , that now she produced an Adminicle , viz. her Contract of Marriage . 2ly . That the Decreet is null , because the quantities are not proven . The Charger answered to the first , that the Lords having found the Exception not proven , the Pursuer could not be admitted in the second instance against a Decreet , in foro , upon production of that which she should have produced at first . As to the second , he needed not prove the quantities ; seing her exception was total , without denying the quantities .

The Lords found the Decreet valide , but ordained some of their number to deal with Mr. George , to show favour to the poor woman .

Doctor Ramsay contra Mr. William Hogg and Alexander Seton . December 22. 1664.

THese three Parties having appryzed the same Lands , the first Appryzer being Infeft , the second not being , and the third being Infeft : The first Appryzer declared he would not insist for the Mails and Duties of the whole , but only possessed a part . The question came , whether the second Apprizer , not having Charged , should be preferred to the third , who was Infeft . It was alleadged for the second Appryzer , that he needed not be Infeft , because the first Appryzer being Infeft in all , he had the only jus proprietatis , and there was nothing remaining , but jus reversionis , which the Appryzing alone carryed : and as the second Appryzer might redeem the first ; as having the right of his Reversion ; so he might force him , either to possess the whole , whereby his Appryzing might be satisfied , or give warrant to the second to Possess the remainder , so likewise he might use Redemption . It was alleadged for the third Appryzer , that if the question were of the Redemption of the Land , the second had good Right ; but the question being for the Mails and Duties , a right of Reversion , could never carry these without a Seasine .

The Lords considering the Point in Law and the great disadvantage the Leiges should sustain , if all Appryzers were necessitat to take Infeftment , They prefered the second Appryzer .

Cornelius Inglis contra Mr. Rodger Hog . Eodem die :

MR. Cornelius Inglis being Infest upon an Appryzing , pursues a Removing ; compearance is made for Mr. Rodger Hog : who alleadged that he is also Infeft , and had charged the Superiour , though , after the first Appryzer , and had possessed seven years , by lifting the Mails and Duties ; and therefore craved the benefit of a Possessorie Judgement .

The Lords having considered the Case amongst themselves , whether an Appryzing and Charge , without Infeftment could give the benefit of a Possessorie Iudgement . They were equally divided in their Votes , and the President resolved before he gave his Vote to settle the Parties .

contra Edmistoun of Carden . Ianuary 6. 1665.

EDmistoun of Carden being pursued by a Creditor of his Fathers , as Lucrative Successor to his Father , by accepting of a Disposition of his Fathers Lands , after contracting of the Pursuers Debt , alleadged absolvitor ; because , being pursued beforeby another Creditor of his Fathers , he did then alleadge , that his Disposition was not Lucrative ; but for a Cause onerous , equivalent to the worth of the Land , which he proved , by instructing the Rental , and Rate of the Land , at the time of the Disposition , by Witnesses , and the Sums undertaken for it by Writ , whereupon he was Assoilzyed , and can never be again conveened upon that ground ; nam obest exceptio rei judicatae , for if he had been condemned as Lucrative Successor● upon the other Creditors Probation : It would now have proven against him , and therefore , his beng Assoilzied must be profitable to him against others ; unless Collusion were alleadged and Instructed . The Pursuer answered , that this absolvitor was res inter alios acta : and albeit a Condemature would have been effectual against the Defender , non sequitur , that an absolvitor should also be effectuall for him ; because he was called to that Condemnature , but this Creditor was not at all called to the absolvitor . 2. Even in a Condemnature , if the Defender had omitted any thing , that he might have alleadged , in the one case competent , and omitted , would not hinder him to propone the same against another Creditor . Therefore the Defender can only repeit the grounds of that absolvitor ; which if he do , the Pursuer will alleadge . That whereas , in the absolvitor , the Defender was admitted to prove the Rental . The Pursuer omitted to crave the benefit of Probation , which he would have gotten ; and this Pursuer offers him to prove , that whereas the Rental was proven to but 18. Chalders of Victual , the true Rental was worth 30. Chalder . 3dly . A part of the onerous Cause , was the Portion of the Defuncts Children , which would not Prejudge the Pursuer being an anterior Creditor●

The Lords found , that the absolvitor could not prejudge this Pursuer , as to these points omitted ; and that it could not have effect inter alios , except it had been in re antiqua , where the Witness had died , that in that case , the Testimonies out of the former Process , might be repeited ; but as to the Rental , the Lords would not give the Pursuer the sole Probation● being so lubrick a point , as not only what it payed , but what the Lands were worth , and it might have payed ; and ordained Witnesses to be examined , hinc inde ; and found , that the Bairns Portions not being payed bona fide , before the intenting of this Cause , could not prejudge the Creditor : but ordained the Defender to Suspend on double Poynding , against the Pursuer and the Bairns ; but in regard of so much ground , in the matter , they declared they would not sustain the Passive Title , to make him Successor universal , but only as to the just Price , and the Cause Onerous .

Grahame of Blackwood contra Brouns . Ianuary 7. 1665.

JOhn and William Brouns , having Appryzed certain Lands ; and William Grahame having Appryzed the same , within a year after , pursues an Accompt and Reckoning against the first Appryzer , upon the last Act of Parliament , betwixt Debitor and Creditor ; and craves to come in pari passu with the first Appryzer , not only as to there Mails and Duties of the Lands Intrometted with by the Appryzer , since the said Act of Parliament ; but also for these Duties that were Intrometted with before the said Act ; and that , because the Act bears expresly , That such Appryzing shall come in pari passu , as if there had been one Appryzing led for both . It was answered , for the first Appryzer , that what he did uplift bona fide , before any Process intented against him , at this Pursuers instance , he cannot pay back a part thereof to the Pursuer ; because he is bona fide Possessor : and because the Act of Parliament bears ; That such Appryzings shall come in pari passu : which being in the future , must be understood to be from their intenting of Process , at least from the date of the Act , but not from the beginning .

The Lords having considered the Tenor of the Act of Parliament , found that such Appryzings should only come in pari passu , from the date of the Act ; but that the bygones uplifted by the first Appryzer , before the Act should be accompted to him in his Sum , but no part thereof repeited to the second Appryzer ; and found that the Sums Appryzed for Principal and Annualrent of both Parties , should be restricted , as they were the time of the Act of Parliament , in one total Sum ; and the Rent to be received from that time proportionally , to the total Sums ; and that the first Appryzer should have allowance in his preceeding Intromission of the expenses of the composition to the Superiour , and the charges of the Appryzing , without compelling the second Appryzer , to pay him the same .

Normand Lesly contra Gilbert Gray . Ianuary 10. 1665.

NOrmand Lesly , charges Gilbert Gray Provost in Aberdeen , to pay 2000 merk , for which he was Cautioner for William Gray . He Suspends , and alleadges , that the Charger had gotten an Assignation from the said William Gray , to an Bond granted by the Earl of Errol , to him and therefore craved , that the Charger might be decerned to transfer that Assignation to him , being given for the security of the same Sum. It was answered , that the Charger was only oblidged to give a discharge to his Cautioner , and not an Assignation of the Bond it self , and much less of any security ex post facto he had gotten therefore .

The Lords declared , they would not give the Charger Process , till he Assigned the Bond , and all security gotten therefore to the Cautioner .

William Reid contra John Reid . Eodem die .

WIlliam Reid pursues Iohn Reid , as his Tutor , to deliver all Writs belonging to the Pupils Father , or which were in his Custody ; and Possession quovis modo Intrometted with , by the Tutor . Who alleadged , the Pupil could have no interest in any Writs , but these which belonged to his Father .

The Lords found , that Pupil had interest to call for Exhibition , and Delivery of all Writs that were in his Fathers Possession quovis modo , and ordained the Tutor to exhibit all , but prejudice to any Partie having interest , to crave the delivery of these Writs if they belonged to them .

Campbel contra Mary Bryson . Eodem die .

GEorge Campbel having right by Adjudication , to the Reversion of a Wodset , of some of the Lands of Newlistoun , Wodset by the Laird of Newlistoun ; to Andrew Bryson Baillie of Edinburgh , whereupon he was publickly Infeft ; and thereafter did dispone the same to his Daughter Marry Bryson , and she was Infeft , holden of her Father ; which Disposition contained a power to the Father , to dispone on the Sum in the Wodset Right , during his Lifetime , without her Consent ; after all Andrew Bryson obtained a Confirmation of the foresaid Wodset : with Addition of 16. aikers of Land more , for the same Sum , which was conceived in favours of himself , and the Heirs of the Marriage , whereupon he was Infeft . The said George having used an Order of Redemption ; craved Declarator . Compearance is made for the said Mary , who craved the said Sum to be delivered up to her . It was alleadged by the Pursuer , that she could not have up the Sum , unless she were Infeft , as Heir to her Father , both in the first and last Wodset , and resigned the same ; and so liberat the Land of the Burthen thereof ; for albeit she was Infeft proprio nomine , yet it was but base holden of her Father : so that the Superiority remained with her Father ; and she behoved to be Infeft as Heir to him , and renunce the same . 2. The Corroborative Wodset stood in her Fathers Person , who by her Disposition had a Power to dispose of the first Wodset ; and so had altered the Fee thereof to himself , and his Heirs . It was answered , that the second Wodset was taken when Maries mother was dead ; and she the only child of that Marriage : and so was alike , as if her name had been expressed . 2. The Declarator it self will sufficiently secure the Redeemer , albeit there were no Resignation . 3dly . The second Wodset , is but accessory to the first ; so that the said Mary , having power to renunce the first Wodset proprio nomine , the second may be declared to be extinct in consequence , and further , offered Caution , if need were , to warrand the Redeemer .

The Lords found the Lands to be Redeemed , but ordained the Money not to be given up , untill the said Mary had Infeft her self , as Heir to her Father , and Resigned , for they thought , the Redeemer ought to put upon no hazard of repetition , or of the danger of the Infeftment unrenunced ; seing it was the ordinar Course to be Infeft , and to renunce .

Magaret Arnot contra Mr. Robert Arnot . Ianuary 11. 1665.

MArgaret Arnot pursues a Reduction , of a Decreet of Exoneration , obtained by William Arnot her Uncle , and Executor to her Father . It was alleadged , for Mr. Robert Arnot , Son and Successor to the said William , that all Parties having Interest were not called . viz , The Creditors , and Legatars , who were concerned in the event of the Reduction ; for if there Sums and Discharges were not allowed , according to the Exoneration . The Defender behoved to return upon them , for payment ; and therefore they ought to be called to defend their Interest .

The Lords repelled the Defense , and found no necessity to call the Creditors and Legatars , but that the Defender might intimat the Plea to them .

Neilson and Calender contra Ianuary 12. 1665.

NEilson and Lodovick Calender her Spouse pursue a Transferrence of an old Summons , on which there was an Inhibition used . It was alleadged , that the Executions , of the first Summons were new , and by ocular inspection false , and craved the Pursuer might abide thereby , who refused ; and so being without an Execution on the first Summons , but having an Execution on the second were null , The Pursuer craved them to be Transferred instatu quo , but prejudice to the Defender , in the cause to alleadge no Process ; because the first Execution was wanting .

The Lords refused to transfer , but some were of opinion , that a new Summons , in eadem causa would be sufficient to make the In●ibition effectual , being raised on the Summons of Registration of a Bond , others thought that albeit the Style bear , that Inhibitions were not granted , but upon fight of the Summons execute ; yet it was ordinar to give it on an unregistrate Bond , or a Charge to enter Heir Execute , though there was neither Decreet nor Dependence ; and therefore , though Executions be put on to get , these raised ; yet they are not adhered to , but now used so , that this Summons , though without Execution , yet might be transferred , and thereon Executions might be used , and thereby the Inhibition stands valid , which was the more clear way , for albeit Summons bear to cite to such a day next to come and so ordinarily cannot be used , no citation being thereon within the year ; yet the Lords special warrand may allow a Summons to be sufficient for citation thereafter , as well as they may give other priviledges

Janet Shand contra Charles Charters . Ianuary 13. 1665.

CRichtoun of Castelmain , and Crichtoun of St. Leonard , granted a Bond to Iohn Shand , and Herren his Spouse ; the longest liver of them two : and their Heirs , &c. With a Clause for Infeftment , whereupon there was an Appryzing , led in Iohn Shands lifetime , against one of the Debitors : thereafter , Iohn Shand charges the other Debitor for payment ; after the Charge ; Iohn Shand gives in the Appryzings , to be allowed , and after his Death , his Wife takes Infeftment upon the Appryzing , the Bond being now produced before the Lords , in an Exhibition , pursued by Ianet Schand as Heir to Iohn Shand. There is a competition for delivery , betwixt Ianet Shand , as Heir to Iohn Shand ; as being Heritable , and Charles Charters , as having right from Herrein , Iohn Shands Relict , as being moveable . It was alleadged by the Heir , that the Sum became Heretable , by the Superveening of the Appryzing . It was answered , that there was a Charge after the Appryzing , which returned the Bond to be moveable . It was answered , that the Charge was not against the Partie , whose Lands was Appryzed , but against the other Party . 2ly . The Charge could only return the Bond to its first condition , before the Appryzing : So that the Bond being since 1641. the Relict is excluded ; and the Charge cannot bring her in . 3ly . Albeit it could , yet after the Charge the Defunct returned to his Heretable Right , by obtaining that Appryzing allowed , which allowance , the Relict produced , and took Infeftment : so that these last Acts being upon the Real Right , the Heir must be preferred ; and therefore the ground of preference of the Executor , or Heir , is the will of the Defunct , either to make use of his Heretable or Moveable Right , which is still ambulatorie , and in his power ; and whatever Right he last makes use of , evidences his choise , and according thereto , the Right is either Heretable or Moveable : but here he did last make use of his Real Right , by allowance of the Appryzing , after the Charge , which the Relict homologat , by taking Infeftment conform . It was answered , for the Creditor of the Relict ; that this being on Debt , though due by many Debitors . The Charge against one , did sufficiently show the purpose of the Defunct , to make use of his Right ; and the Charge doth render the Bond simply moveable : and doth not return to the condition it was before the Appryzing . To the 3. passing from the Charge must either be express , or a Deed of evident consequence , but the allowance of the Appryzing is not such ; which might be done only ad hunc effectum , that if the Appryzer should pass from his Charge , the Appryzing might revive , and be secure .

The Lords found the Sum Heretable .

Charles Charters contra a Skipper . Eodem die .

CHarles Charters having fraughted a Ship to Queensburgh , by Charter Partie . The Skipper was to ly so many lye dayes , and to bring a Fraught thence ; he returned without full Fraught , whereupon Charles refuses full payment ; and being decerned by the Baillies of Leith to pay the rest , he Suspends on this Reason , that the Skipper ought to get the Fraught only proportionally to the Loading , and offers to prove the third part less then the full Loading brought home , and that the Skipper could not have his full Fraught , unless he instruct that he intimat to the Factor at Queensburgh , to whom he was direct , of his coming , and that he lay his lye dayes , and after Intimation to the Factor to give him any Ware he had , he took Instrument , or protested thereon .

The Lords found , he ought to prove the Intimation , ut supra , by Witnesses but required no Protest , or Instrument thereon .

Edgar . contra Edgar . January 17. 1665.

ISobel Edgar pursues for 4000 merks , provided in her Mothers Contract of Marriage , by this Clause ; whereby her Father having married her Mother to his second Wife , oblidged him , and the Heirs of the first marriage ; which failzing , his Heirs and Executors to pay to his Bairns of the second Marriage , 4000 merks , albeit there were but one of them ; and if there were more , the same Sum to be divided among them , the Portions of the Male Children to be payed at their age of 21. and the Femal at the age of 18. And to pay them five of each hundreth after his Death , till the Terms of payment . Ita est , the Heirs of the first Marriage failzied by decease , and there was four Bairns survived of the second Marriage , whereof two died , before they attained to their age mentioned in the Clause , and now there remains but two , the Pursuer and her Brother , who is become Heir ; whereupon she alleadges , that she hath the benefit of the whole 4000 merks . It was answered , for the Brother , that he hath right to the half , because he is a Bairn of the Marriage as well as she ; and albeit he be become Heir , yet that takes not away his Share , by this oblidgment as a Bairn of the second Marriage . 2ly . Albeit his being Heir would exclude him , yet the Portions of the two that are deceased having become Heirs by there survivancy transmit the same to their nearest of kine , and so he and the Pursuer are equally nearest of Kin. The Pursuer answered , that the Heirs of the first Marriage having failled , the Clause stands now as if it had been conceived thus ; that the Father had oblidged himself , and his Heirs , which comprehends all Heirs● to pay to the Bai●ns of the second Marriage ; which must be understood of Bairns , beside the Heir ; because the Heir is constitute Debitor ; and so cannot be thought to be Creditor in the same Clause .

The Lords found the conception of the Clause , that the Brother , by falling now Heir , was excluded ; seing it was clear , by the meaning of the Defunct , that his Heir should have his Lands , and his Bairns of his second Marriage , should have , though but one , 4000 merks : but here the Heir , of the first Marriage was never served Heir , They also found , that the Portions of the Children being to an uncertain day , and not conceived to their Heirs , or Assigneys , that they dying before that day , had no right to the Stock , but only the Annualrent , medio tempore , so that the Stock accresced to the surviving Children ; as if the Defuncts had never existed , and that their Assigneys , or Creditors could not have affected the same : and so found the Brother had no right , as nearest of Kin to the two deceasing Children , not attaining the Age mentioned in the Contract .

William Stewart contra Stewarts . Ianuary 18. 1665.

WIlliam Stewart pursues a Poynding of the Ground , of the Lands of Errol , upon an Infeftment of Annualrent , granted to his Grand-Father by the Earl of Errol , by his Bond , and Infeftment following thereupon : in which Bond , there were Cautioners , the Annualrent was for a Sum of 7000 merk. and a Sum of 8000 merk. Compearance is made for the Pursuers Brothers and Sisters , who alleadged , that as to the Sum of 7000 merks , it became moveable ; and belongs to them , as nearest of Kine : In so far as their Father made Requisition for the same : It was answered , the Instrument of Requisition is null ; and being disconform to the Clause of Requisition : in respect , that the Original Bond was to the Husband and Wife , the longest liver of them two , in Conjunctfee , and their Heirs , &c. And the Requisition bears expresly , That if the Husband , or his Heirs required , with consent of the Wife , then the Debitor shall pay , ita est the Instrumenet bears no consent . It was answered , that albeit some Points of the Requisition were omitted ; yet seing the mind of the Defunct appears to take himself to his Personal Right , and consequenly to prefer his Executor to his Heir , it is sufficient . The Pursuer answered , non relevat , because every Intimation of the Defuncts Intention is not enough ; but it must be haili modo , and the ground whereupon the Sums become moveable , is , because the Requisition looses , and takes away the Infeftment ; and therefore if the Requisition be null , the Infeftment is valid : and he Bairns can never have access .

The Lords found the Requisition null , and preferred the Heir .

Stewart contra Stewart . Ianuary 19. 1665.

IN the foresaid Cause , it was further alleadged , for the 8000 merk , that it was also moveable ; because , as to it , there was no Liferenter , and the Fear himself did require . It was answered , for the Children , that the Requisition is null , because it mentions not the production of a Procuratory , nor the production of the Right it self . 2ly . The Requisition is made to Bogie as Cautioner for the Earl of Kinnoul , whereas he was Cautioner for the Earl of Errol , granter of the first Bond. It was replyed , oppones the Requisition , bearing , That the Procurators power was sufficiently known to the Notar . 2ly non Relevat , unless the Person required , had called for the Procuratory or Right , and had been refused . 3ly . The Procuratory is now produced , with the Right , and the Defunct acknowledged the Procuratory ; and Right , because he raised horning thereupon .

The Lords sustained the Requisition , and found the Sum moveable , and preferred the Bairns thereto .

Shaw contra Lewens . Eodem die .

WIlliam Shaw , being a Factor at London , and dieing there ; and having Means both in England and Scotland : There falls a Competition betwixt his Executors nuncupative in England , and his nearest of Kine , Executors in Scotland . Anna Lewens Executrix confirmed in England ; produces a Sentence of the Court of Probat of wills in England , bearing , That upon the Examination of Witnesses , that Court found , that William Shaw did nominat Anna Lewens his Executrix , and universal Legatrix . And that being asked by her , what he would leave to his friends in Scotland . He declared he would leave her all , and them nothing , because they had dealt unnaturally with him . It was alleadged , for the Defuncts Cusigns , Executors Confirmed in Scotland , that they ought to be preferred , because as to the Defuncts Means , and Moveables in Scotland , the same must be regulat according to the Law in Scotland , where a nuncupative Testament hath no use at all : and albeit , a Legacy may be left by word , yet it cannot exceed a 100 lib. Scots . It was answered , that as to the Succession , the Law of Scotland must regulat : so that what is Heretable , cannot be left by Testament , though made out of Scotland . As was found in the Case of the Successors of Col Henderson dying in Holland , and in the Case of contra Meldrum ; yet as to the Solemnity of Acts to the Law , and Custom of the Place , where such Acts are done , takes place , as where an Act is done in Scotland : albeit it be only probable by Writ , or Oath of Parties : yet being done in England , it is probable by Witnesses though it were of the greatest moment , and though the Law of Scotland , in Writs of Importance , requires the Subscription of the Partie before Witnesses , or of two Nottars , and four Witnesses : yet Writs made in France and Holland , by the Instrument of one Nottar , are valid ; so here there being no difference from the Law of Scotland : which always preferres Executors nominat , before nearest of Kin ; and the difference only as to the Solemnities , and manner of Probation , that there it may be proven by Witnesses , there was a Nomination , and here only by Writ .

The Lords having considered the Reasons , and former Decisions , preferred the Executors , confirmed in Scotland , for they found , that the Question was not here of the manner of Probation , of a Nomination , In which case , they would have followed the Law of the Place , but it was upon the Constitution of the essentialls of a Right , viz. A nomination , which , albeit it were certainly known to have been by word ; yea , if it were offered to be proven by the nearest of Kin , that they were Witnesses thereto , yet the Solemnitie of writ not being interposed , the Nomination is in it self defective , and null in substantialibus .

Lord Lour contra Ianuary 20. 1665.

IN a Process , for making arrested Sums furth-coming , two Arresters , viz. my Lord Lour , and another Competing . It was alleadged , for Lour , that the first Arrestment , is null , because the Partie was out off the Countrey , when it was only made at his dwelling house , which is not Legal ; seing all Summonds , Intimations , Premonitions , Requisitions , and all Denunciations against Parties out of the Countrey , must be by Letters of Supplement from the Lords , Execute at the Mercat Cross of Edinburgh , and Peir , and Shore of Leith : So must Arrestments , against these who are out of the Countrey be there .

Which the Lords found relevant , and preferred the second Arrestment Personal .

Litle contra Earl of Nithsdail . Eodem die .

LItle pursues an Improbation , and Reduction against the Earl of Nithsdaile , of the Rights of some Lands ; Wherein● the Lords sustained the Pursuers Interest , on a Compryzing , and Charge , without Infeftment , and though the Appryzing was on Litles own Band , simulat and assigned to himself ; and found such Deeds might make him lyable , as behaving as Heir , if he Intrometted , and were sufficient Titles any other way .

The Lords also found , that Certification ought to be granted against Retours , and Charters , though in publick Registers , but not against Writs Registrate in the Books of Session , the date being condescended on , by the Defender , were sustained against all Writs , granted to the Defender , and his Authors , but such as Seem to represent them are called , nor against Writs , granted by the Pursuer , his Predecessors , or Authors , but only his Predecessors , to whom he doth Succeed , jure sanguinis , and such Authors , as he produces Right from , but they would not admit Certification against Appryzing , if the Infeftment thereupon were produced .

Sir John Baird contra The Magistrats of Elgine . Ianuary 25. 1665.

SIr Iohn Baird pursues the Magistrats of Elgine , for the Debt of a Rebel , whom they suffered to escape forth of their Prison . It was alleadged , for the Magistrats absolvitor ; because they could be oblidged no further , but for their ordinar diligence of Custodie , but not contra vim majorem , and offered to prove , that about six a clock at night , in the winter time , the Rebels Lady going in to Sup with him , the keeper opening the Prison Door to let her in , six or seven Armed men pressed in with her , and that there was sixty more at the Gate . The Pursuer answered , non relevat , because it was the Keepers fault to let in any body at that time of night .

The Lords found the Defense relevant , to be proven by Witnesses , above exception , which were condescended on .

Parson of Dysart contra Watson . Eodem die .

ANderson Parson of Dysart having a designation of four Aikers of Iohn Watsons Land , which was Bishops Land ; charges him to remove● Watson Suspends on this Reason , that there are Parsons Lands in the Paroch , more ewest to the Kirk , and lying about the Parsons Mans , and therefore , according to the Order of the Act of Parliament : anent Designation of Glebs , the Parsons Lands must be designed in the first place , before the Defenders Lands , which are Bishops Lands . It is answered , for the Charger , that the Parsons Lands were Feued out before the said Act of Parliament , and are all build with houses incorporat within the Town of Dysart . It was answered , that the said Act of Parliament bears , That the Parsons Lands shall be first Designed , although they be Feued out before .

Which the Lords found relevant , and Ordained the Parsons Land to be cognosced , what quantitie was wanting thereof to be made out of the Bishops Land .

William Menzies contra Laird of Drum . Eodem die .

WIlliam Menzies , as Executor to Alexander Menzies , and umquhil Margart Gordon the other Executor ; having obtained Decreet against the Laird of Drum , for 8000 merk : The said Margaret being dead , William charges for the whole , Margaret having died at the Horn Compearance is made for the Donatar . It was alleadged for Drum , that he could not be conveened at the instance of this Pursuer , without concourse of the other Executor , or some to represent her had been called . For they might have alleadged , that this Charger is satisfied of the half of his Executry .

The Lords found , that seing the Testament was execute by a Sentence ; the other Executor needed not be called .

2ly . Drum alleadged , that he could not be lyable to this Executor , but for the half . It was alleadged for the Donatar , that he craved preference for the other half . It was answered , that the Donatar could have no interest , because the Sum was Heretable ; It was answered , that albeit it was Heretable , yet it became moveable , by the Executors taking a Decreet therefore , in the same Case , as if Requisition had been used .

In this the Lords did not decide , some being of opinion , that it was Moveable , others contrair , because an Executor being but a Successor , as a Decreet of Registration , or Transferrence , would not change the Nature of the first Bond , so neither would this Decreet .

The Heretors of the Fishing of Don contra The Town of Aberdeen and their Feuers . Ianuary 26. 1665.

THe Heretors having Salmond Fishing in the Water of Don , above Aberdeen , pursue a Declarator of their Right of Salmond Fishing ; and that they ought to be Free of the prejudice sustained by the Cruives built at Aberdeen , and insist upon these Particulars . That the Town of Aberdeen hath no Right to Cruives , but is only Infeft cum piscationibus & piscarijs , and within such a bounds , which cannot carry Salmond Fishing , being inter regalia , much less Cruives . It was answered , that such a Clause granted to an Incorporation , or Community , or being in Baronia , with Immemorial Possession is sufficient ; and that there is a later Right granted to the Town , with power of Cruives , within the said Bounds , uti possidebantur . It was answered , that the Pursuers had their Cruives established before that time .

The Lords found the Town of Aberdeens Title to Cruives , albeit conceived , but conform to the first Clause , with long Possession was sufficient .

2ly . The Pursuers insisted against the Transporting of the Cruives from one place to another , which they could not do ; Cruives being a Servitude , strictissimi juris : as a way being once chosen , and fixed , cannot be changed : especially , in respect of the Clauses uti possidebantur . It was answered ; that there being a Bounds expressed , and mentioning Cruives to have been there before , the meaning can be no other , then that these Cruives should be removed , if Inundations alter the present stans , and uti possidebantur is only understood of the way of building , as before .

The Lords found , by the said Clause that the Cruives might be Trasplanted within the Bounds having but one Cruive Dyck , and the former Dyck demolished , so that the Fishings above be in no worse condition then formerly .

3ly . They insisted for the wydnesse of the Heeks , whereanent it was alleadged , that by an Act of Parliament King Iames the fourth , Hecks were appointed to be five Inches wyde ; which is confirmed , by an Act 1661. It was answered , that the Act King Iames the 4th . did relate to a former Act of King Davids , which was not to be found , but there were two Acts by King Iames the 3. Relating to the old Act by King Alexander , which was found to bear three Inch. So that the Act K. Iames the 4th . though posterior , being but Relative , and the Act Related not known .

The Lords found , it was a mistake , in the writing of the Act ; and that in the stead of King David , it should have expressed King Alexander ; and so born only three Inches , seing otherwayes five Inch would let the greatest part of Salmond passe .

4ly . They Insisted for the Saturndays Slop ; and craved , that on Saturnday the whole Cruives might stand open : So that no Fish might be taken thereby ; according to the old Statute of King Alexander ; from the Even Sun on Saturnday , till the Sun rising on Munday .

The Lords found , that the Saturndays slop ought to be of the whole Cruives , and that from Saturnday at six a clock , till Munday at Sunrising .

5ly . They Insisted for the Hight of the Cruives , and alleadged , that the same ought to be no higher then the water , in its ordinar Course , neither the time of the Flood , nor of Drought ; otherwayes they might build the same as high as they pleased , and that it ought not to be builded perpendicular , which will hinder the Salmonds up-coming , but slopping from the Ground to the top .

The Lords considering , that there was no particular Law , as to the hight of Cruives , and that ●hir Parties had suffered the other to enjoy the Cruives above 40. Years , that therefore the same should be uti possidebantur , no higher then the old Cruives were .

6ly . They Insisted for the Liberty of the Midlestream , beside and attour Saturndays Slop , which is specially contained in the Acts of Parliament of King Alexander , and King Iames the third and fourth , and is renewed in the late Act of Parliament of King Charles the second . The least quantity of which bears , That five foot of the middle Stream must be constantly free .

It was answered 1. That the old Acts anent the midle Stream were wholly in desuetude , and were in effect derogate , by the Act of King Iames the sixt , anent Cruives ; which ordains the Saturndays Slop to be keeped , but mentions not the midle Stream . And as for the late Act of Parliament ; it was Impetrat by these same Parties , and never past in Articles , or noticed by the Parliament , but as an ordinar Confirmation . It was answered , that there was no prescription of publick Rights , against standing Laws , and albeit the desuetude of such Laws could be effectual , yet the late Law Revives and Confirms them all , per expressum , which is not a particular Confirmation ; bearing mention of any particular Partie , or particular Right ; but as a general Confirmation of general Laws , anent all the Cruives in Scotland .

The Lords considering that the midle Stream has been long in desuetude , and that this late Ratification was past without notice ; therefore , before answer ; They Ordained the Parties to adduce Witnesses , whether the midestream was accustomed in any Cruives in Scotland , and whether the same would be beneficial , or hurtful to the Salmond Fishing of the Kingdom , in general , and whether it were destructive to the Cruives in Common : and likewise , they gave Commission to examine the Witnesses hinc inde , whether their new Cruives were builded upon challes , or they otherways builded then the former Cruives , to the prejudice of the Fishing above in the water .

George Hutcheson contra Dickson of Lonhead . Eodem die .

GEorge Hutcheson pursues Dickson , for a Sum of money● and for the Annualrent since the denunciation of the Horning . Whereupon the Defender answered , that the Horning was only at the Mercat Cross of Edinburgh , where the Defender dwelled not , and so was null , and could not give Annualrent . It was answered , that albeit such Hornings be not sufficient for an Escheat , yet they are sufficient for Caption ; and so are not null : and therefore Annualrents having so much ground , in equity , and by the civil Law , being due ex mora ; such denunciations should be sufficient for Annualrent .

The Lords found such Hornings null , and would not allow Annualrent .

Logan contra Galbraith . Eodem die .

LOgan charges Galbraith to remove from a House ; who Suspends , and alleadges , that she is Served , and Kenned to a Terce of the House , which Terce she brukes pro indiviso , with the two thirds . The Charger answered , the Reason ought to be repelled , because , albeit the Defense pro indiviso be relevant against such , who can obtain division : It being their own fault , that they do not first divide , or they pursue Removing ; but where it is a House being unum tenementum indivisibile , the Heir , or Successor of the Husband , who has two thirds , and continues in his Possession as well as the Relict in her third , ought to be preferred in the Possession , quia majus trahit minus .

The Lords found the answers relevant , to elide the Reason , and decerned the Relict to remove with this quality , that if the Feear did not dwell in the House himself , the Relict should be preferred , giving as much Mail as any other Tennant , and giving Caution for the two part .

Lairds of Berfoord and Binstoun , contra Lord Kingstoun . Ianuary 21. 1665.

BErfoord and Binstoun pursues the Lord Kingstoun , for Spuilzie of certain Corns ; he alleadged absolvitor , because he Legally drew the same , as their Teynd , by vertue of his Tack from the present Minister , and Inhibition thereon . It was answered , First , That was not sufficient summarly to draw the Defenders Teynds , unless there had been a Sentence on the Inhition , which is but as a warning , and so must not infer Removing , brevi manu ad vitandum tumultum , 2ly . If he had Legally pursued them for a Spuilzie , they would have alleadged , and now alleadge , that they have Tacks standing from the Minister for the time , who , though deposed , yet lives ; and all incumbents Tacks serve during their natural life , and no Tack from the next incumbent Prejudges during the life of the former , conform to an expresse Act of Parliament . The Defender duplyed , that albeit an Act of Parliament required removing not to be summarly , in Lands it did not so in Teynds . 2ly . The Pursuers Tacks are null , without consent of the Patron . The Pursuer triplyed , that they are standing cled with seven years possession , and their Tacks are subscribed by the Patron Quadruplyed , he was not then Patron , but was standing Fore-faulted unrestored . Quadruplyed , it is sufficient coloratus Titulus cum possessione , till the Reduction ; And the Lord Bothwells Son Patron , was after restored whereby it revived .

The Lords repelled the Defense , in respect of the Pursuers Tacks , and found the Defender might not brevi manu intromet , there being any pretence of Title , but they desired the Pursuer to restrict , to wrongous intromission and without Oath in litem

Sir John Scot and Walter Scot contra Sir John Fletcher . Eodem die .

WAlter Scot , as being Assigney , by Sir Iohn Scot of Scotstarvet , to an Atlas Major , of the late Edition ; pursues Sir Iohn Fletcher for delivering thereof , as belonging to the Pursuer , and now in his hand . The Defender answered , non Relevat , unlesse it were condescended qu● Titulo ; for if it came in the Defenders hands , by emption or Gift , it is his own : and in mobilibus possessio presumit Titulum , seing in these Writ , nor Witnesses uses not to be interposed , and none can seek recovery of such , unless he condescend quo modo desijt possedere , else all commerce would be destroyed , and who ever could prove that once any thing was his , might recover it per mille manus , unless they instruct their title to it . 2. Though it should be condescended , that they were lent , yet it must be proven only scripto vel juramento , being a matter above an hundred pound . The Pursuer answered , that in liquid Sums , or Promises , Witnesses are not receivable above that Sum , but in corporibus , or facts , as in bargains of Victual , made and delivered , Witnesses are sufficient , though for greater Value .

The Lords found the Pursuer behoved to condescended upon the way the books was delivered , and found it probable by Witnesses .

Mr. William Kintor Advocat contra John Boyd Baillie in Edinburgh , Eodem die .

MR. William Kintor and Iohn Boyd having both adjudged the Lands of Mountlouthian pursue mutual Reductions of each others Rights ; Mr. Williams Right was upon a Decreet , cognitionis causa , against the Appearand Heir renuncing : against which Iohn Boyd , alleadged , that the Adjudication was null , proceeding upon a null Decreet , cognitionis causa . First , In so far as it was lybelled at the instance of Kintor , as Assigney by his Brother , who was Heir to his Father , and Execut-Executor , and neither Retour nor Testament produced , and so was null , for want of probation . The Pursuer answered , that he had now produced , in supplement of the Decreet , the Writs .

The Lords sustained the Decreet only as ab hoc tempore .

2ly . Boyd alleadged , that the Decreet , cognitionis causa proceeded on six hundered merks , which was Heretable by Infeftment , and contained Clause of Requisition , and no Requisition produced .

The Lords found the Decreet null pro tanto , and to stand for the rest , being upon diverse Articles .

3ly . Boyd alleadged , that the said Decreet ought to be Reduced , in so far as it proceeded against the Cautioner of a Tutor , for payment of the Annualrent of his Pupils money , during the Tutorie ; and for the Annualrent of that Annualrent a tut●la finita , because the Tutor had uplifted , at least ought to have uplifted , and imployed the same for the Pupills behove , ex officio . It was answered , that albeit Tutors are oblidged for their Pupils Rent , which are in Tennents hands ; yet not for the Annualrent of their Money , being in secure hands then , and now if the Tutor had lifted it , it would have been lost he being broken ; and the Cautioner also : and the Debitors being great men , as the Marquess of Hamiltoun and Lord Burghlie , they would easily have Suspended , and lost the Pursuers pains .

The Lords found , that Tutors were oblidged to uplift their Pupils Annualrents , though the Creditors were secure , and to imploy them for Annualrents , but not for each year they were due , but ante finitam tutelam , because , though he had them , he was not oblidged every year to imploy them severally , and so sustained the Decreet .

4ly . Boyd alleadged , that the years of the Tutorie ought to have been proven , which was not , and so the Decreet is null .

The Lords sustained the Decreet , seing it was lybelled in communi forma , unless it were alleadged , that some of these years were post sinitam tutelam , here a Testificat of the Pupils age was produced .

Lord Borthwick contra . Mr. Mark Ker. Ianuary last . 1665.

THe Lord Borthwick pursues a Reduction , ex capite inhibitionis of all Rights made by Sir Mark Ker , to Andrew or Mr. Marks Ker of Moristoun , of certain Lands . The Defenders alleadged no Process , because none to represent Sir Mark Ker were called , who being bound in warrandice to the Defenders , ought to be called ; whereas , of old Processes sisted till warrands were first discussed ; so now the warrand ought at least to be called . The Pursuer answered , that he was not craving Reduction of Sir Marks own Right , but of Moristouns Right , granted by Sir Mark , who was common Author to both . And as to the warrandice , the Defender might intimat the plea , if he pleased .

The Lords found no Process till the warrand were called .

Alison Kello● contra Pringle . Eodem die .

ALison Kello pursues a Reduction against the Lairds of Wadderburn● and Pringle ; and craves Certification . It was alleadged for Pringle , no Certification ; because he was minor , & non tenetur placitare de Haereditate Paterna . The Pursuer answered , primo non relevat , against the Production , but the Minor must produce ; and may alleadge , that in the Debate against the Reason . 2ly . Non constat , that it is Hareditas Paterna , and therefore he must produce , at least his Fathers Infeftment . 3ly , All he alleadges , is , that his Father had an Heretable Disposition , without Infeftment ; which cannot make Haereditatem Paternam , else an Heretable Bond were not Reduceable , against a Minor , or an Appryzing , and Tack . 4ly . Albeit the alleadgeance were proponed , in the discussing of the Reason ; yet the Reason being super dolo & metu , upon which the Defenders Original Right was granted , and not upon the poynt of Preference of Right ; the brocard holds not in that Case , as it would not hold in Improbation , in casu falsi .

The Lords found , that the Defender ought to produce his Fathers Infeftment ; and that a naked Disposition would not be sufficient : which being produced , they would sustain the Defense , quoad reliqua , against the Production ; but that they would examine Witnesses , upon any point of fact , in the Reason to remain in retentis , that the Witnesses might not die in the mean time , without discussing the Reason , but prejudice of their Defenses .

Anderson and Proven contra Town of Edinburgh . Eodem die .

ANderson being Creditor to Proven , arrests in the hands of Gairdner all Sums due by him to Proven , and thereupon pursues before the Commissaries of Edinburgh : Gairdner gives his Oath , that he is Debitor to Proven no way , but for the Tack Dutie of the Customs of Edinburgh ; whereunto he was Sub-tacks-man to Proven , conform to his Bond produced ; whereupon , the Commissaries decerned , Gairdner Suspends on double poynding . It was alleadged for the Town of Edinburgh , that the Sum in question , being a Sub-tack dutie , they had the common priviledge of all Masters against their Tennents , and Sub-tennents , that they might pursue either of them , as they pleased , without an Arrestment , or any Diligence , and were alwayes preferable , for their Tack-dutie to any other Creditor of the principal Tacksman . It was answered , that Custom was not in the case of Rents of Lands ; wherein their is tacita hipotheca , and that the principal Tacks-man was only their direct Debitor ; and the Sub-tacksman paying to the Principal Tacksman ; or which is equivalent , to his Creditor , is for ever free : and the Town of Edinburgh , hath secured themselves , by taking Caution of the Sub-tacksman .

The Lords found the Town of Edinburgh preferable , for their Tack-dutie , and that they had immediat Action against the Sub-tacksman , unless he had made payment , bona fide before , that they might exclude any other Creditor of the Principal Tacks-man , for their Tack-dutie .

George Baptie contra Christian Barclay . Eodem die .

CHristian Barclay having pursued George Baptie , before the Commissares , of Edinburgh , for Solemnizing Marriage with her ; because he had gotten her with Child , under promise of Marriage ; as was instructed by his Bond produced , obtained Decreet against him ; he Suspends , and raises Reduction , on this Reason , that his Bond was vitiat , in substantialibus , by ocular inspection . 2. That it was Conditional , so soon as he was in readinesse . 3ly . That the Charger threatned she would drown her self , for preventing whereof , he had granted this Bond. 4ly . That after the granting thereof , she had carried her self unchastly , and born another Bairn ; albeit it cannot be alleadged , that ever he co-habited , or conversed with her at all after this Bond : which as it would dissolve the Marriage , though it were Solemnized , multo magis should it hinder the Solemnization . The Charger answered , to the first , oppons the Bond , wherein albeit there be three or four words delet in that place , thereof oblidging him to Solemnize ; yet the acknowledgment of the Childs being gotten under promise of Marriage is clear , and sufficient by it self . To the 2. There is nothing alleadged , that the Suspender is not in readiness . To the 3. non relevat , there being neither vis nor metus . To the 4th . non relevat , because there being a second Child born after this Bond , which constituts the essentials of a Marriage , the Child is presumed to be the Suspenders , nam Pater est quem matrimonia monstrant , and it cannot be alleadged , or proven , that the Child belongs to any other , or that the Charger used any evil carriage with any other .

The Lords having considered the Case , found that the presumption was not sufficient , unless it had been a formal Marriage , and therefore Ordained the Charger to instruct , the second Child was the Suspenders ; and if there had been any familiarity betwixt them since the Bond.

Kirktouns contra Laird of Hunthill . Ianuary ult. 1665.

TWo Sisters called Kirktouns , having obtained Decreet against the Laird of Hunthill , for their Mothers Executrie , who left Hunthill her Brother , and two other , Tutors to her Children , in so far , as concerned the means , left them by their Mother ; Hunthill Suspends , and raises Reduction , on this Reason . First , That the only ground of the Decreet being a Confirmed Testament , bearing , That Hunthill compeared , and made Faith , and accepted the Office of Tutory ; this cannot be sufficient of it self , to instruct he was Tutor : Seing Acts of inferiour Courts prove not in any thing , but in points of form of Process , which are ordinary , ●but in alijs , prove not without a Warrand , and therefore , unless the Warrand of this acceptance were produced , it cannot prove more then an Act of Tutorie , or Curatrie , or Cautionrie , will prove without its warrand ; and therefore now they crave Certification against the same . 2ly . Neither their Subscription to the Act nor the Principal Testament it self , can be found , though the Registers of that Commissariot , be searched , and others , about that time found neither can it be astructed with the least Act of medling any way . 3ly . A mother cannot name Tutors , but the Father only , it being Patriae potestatis . It was answered , that albeit in Recenti the warrands of such Acts , ought to be produced , or they are not effectual with out the same : yet it being thertie seven years since this Confirmation , after so may troubles , the Chargers are not oblidged to produce the Warrands , being such inconsiderable Litle Papers as they are , but they must be presumed , that they were so done , as is expressed in the publick Record ; seing this Process has lasted these twvelve years , and before , nor since ; till within a year , no mention thereof . It was answered , that there was no prescription run , during which , if at first , the Chargers were oblidged to produce , they are still so unless they could fortifie , and astruct the truth aliunde , and their silence saith nothing , because it was the Chargers fault , that pursued not till within these twelve years , whereas , if they had pursued timeously the Suspender would then have pursued a Reduction . It was answered , they were Minors , in the Suspenders own house the former time , who would not have keeped and intertained them at all , if he had not known of the Tutory , and that they had means .

The Lords found that this naked Testament was not sufficient to astruct the acceptance , without further adminicles .

Elphinstoun of Selmes contra The Lord Rollo , and the Laird of Niddrie . 1 February 1665.

THe Lord Rollo being addebted in a Sum , to umquhil Mr. David Anderson of Hill , Margaret Anderson his Daughter , gave a Procuratorie to intromet with all Papers , and to uplift all Sums belonging to her in Scotland , to Iohn Anderson , whereupon Iohn Anderson discharges the Lord Rollo , and takes a new Bond from him , and assignesit to Niddrie . Thereafter Selmes getting Assignation from the said Margaret , Rollo Suspends on double Poynding ; Selmes alleadged , that he , as Assigney , had Right to the Sum. It was answered , that Rollo was discharged by the Procurator , before the Assignation . It was answered , primo , that the Procuratory was null , because it wanted the Designation of the Writer , and Witnesses . 2ly . It was offered to be improven as false and fenzied . It was answered to the first , that the Procuratory was made in Ireland , secundum consuetudinem loci , where designation of Witnesses is not required , but a writ , being Sealed , Subscribed and delivered before Witnesses , albeit they be not designed , the writ is effectual . To the second , the Lord Rollo , having made payment bona fide to a Procurator , albeit the Porcuratory should be improven ; the Debitor not being accessory , but paying bona fide , could not repeit , otherwayes all commerce would be marred , and no body will be secure to pay to any Assigney , or Procurator , but as payment made , bona fide to them that have no Right , is relevant , only because it is done bona fide , and necessarly ; so must it be good , though they have forged the Procuratory . It was answered , that payment was not yet made , but only a new Bond granted , and that it could not be bona fide ; seing the Procuratory , wanting the ordinar Solemnity of Witnesses designed , might have given just ground of doubt , and the Debitor was not to have payed without Sentence .

The Lords repelled the first alleadgeance , and sustained the Writ , according to the custom of Ireland ; being Nottour to themselves . As to the other point : the Lords did not decide in it till it appeared , whether Niddrie would prev●●● upon the new Bond , and make it equivalent to payment : but they thought that payment made bona fide would be sufficient , albeit the Writ were improven , where there was no ground to doubt .

Sir John Fletcher Supplicant . February 3. 1665.

SIr Iohn Fletcher having bought the Lands of Crainstoun , and finding that there was an Appryzing to be deduced thereof for his Authors Debt , which might cost him trouble ; he craved Assessors to be appointed by the Lords , who considering the matter amongst themselves . It carried by the plurality of one or two , to name two Advocats Assessors , but many were on the contrary , conceiving the example of it , would be of great inconveniency , seing Appryzings were not with continuation of dayes , and if Parties compeared , and alleadged they were Infeft , yet there may be Inhibition , anterior Reversion , or Trust , or nullities in their Right : and if these were denyed , they behoved to be instructed , and so Terms of Probation run , while in the mean time the anterior Diligence of others , Appryzings in the countrey , before the Sheriff would prevent them , and it would hinder any Appryzings ever to be deduced at Edinburgh , and it were hand to put Creditors , who knew not there Debitors Charter Chist , to disput their Rights as in an executive Process .

But the Lords inclined , that Sir Johns Infeftment should be rather produced , and reserved out of the Appryzing , then the Appryzing stopped .

Falconer contra Earl of Kinghorn . Eodem die .

FAlconer pursues the Earl of Kinghorn , for payment of a Bond , wherein his Father was Cautioner . It was alleadged the Bond was null , as to Kinghorn ; because it mentioned in the first place , three Witnesses to another Parties Subscription , per expressum , mentioning two , without their designation , or expressing whether they were Witnesses to either , or both the two Cautioners : and therefore the Bond was null , by the Act of Parliament . It was answered , that according to the ordinar custome , they offered to design . It was Replyed , that the designation behoved to be of living Witnesses ; for seing in it self , the Bond is null , by the Act of Parliament , and that the Lords , by custom , have supplyed such Bonds , per equivalentiam . The intent of the Act of Parliament being only , that by the Designation , the Witnesses might be known : and thereby a means of improbation afforded , if the Writ were quarrelled ; but after the Witnesses are dead , the Degsination of them cannot attain that effect .

The Lords Ordained the Pursuer to Design living Witnesses , or otherways , to condescend upon other Adminicles , to astruct the verity of the Subscription of the Bond.

Beg contra Beg. February 4. 1665.

THomas Beg in Edinburgh , having a Son of his first Marriage , and providing his Children of two subsequent Marriages to his Means . The Son of the first Marriage pursues his Father , for his Mothers third , and craves Annualrent therefore , he being Minor , and his Father his Tutor of Law , and therefore lyable , as other Tutors for Annualrent .

Which the Lords found relevant .

Paterson contra Pringle Eodem die .

ISobel Paterson having lent to Pringles Wife a 100. lib. scots , and having received a Bond of Pringles in Pand thereof , he thereafter seeking a sight of the Bond , took it away without warrant , whereupon she obtained Decreet against him , before the Commissaries , which He and his Wife Suspended , on this Reason , that he never borrowed any Sum from the Charger , and if his Wife did borrow the same , he knew nothing thereof , or that it was applyed to his use , and that she Impignorat his Bond without his knowledge , or warrant .

The Lords found , that her having of the Bond , in her hand did infer a warrant to borrow the Money , and oblidge her Husband being a matter of small importance .

Peter Pallat contra Thomas Fairholm . ● February 7. 1665.

THomas Fairholm Merchant in Edinburgh , having written a Letter to Peter Pallat Factor at Burdeoux , to Loaden him 30 Tun of Wine . The tenor of the Letter , is , that in respect Fairholm was not acquainted with Pallat , he had written upon the Credit of his Brother Ninian Williamson Factor at London , who was Pallats ordinar correspondent , to Load these Wines in that Ship , which carried the Letter , upon Fairholms accompt ; and bore , That Williamson had Provisions to satisfie the same , and that he would either remit to Pallat , or draw upon him , as he found convenient . This Letter being sent under a cover of Williamsons to Pallat , the Wines were sent into Scotland , and Williamson broke about a year thereafter whereupon Pallat pursues for his Money from Fairholm , who alleadged absolvitor , because he having demanded the Wines , not upon his own Credit , but Williamsons , and Williamson having sent under his own cover , as Palla●s Letter bears , the said Order , in which there being mention , that Williamson , had Provisions in his hand : his sending the Letter of that Tenor , under his own cover , is an acknowledgment , that he had those Provisions , and thereby he constitute himself Debitor to Pallat , and freed Fairholm : likeas , Pallat acquiesced therein , and drew Bills upon Williamson● which were accepted , but not payed ; and was silent , never demanding Money from Fairholm , till Williamson was broken , so that first , Fairholm is free , by the tenor of the Letter , and next , though , thereby he had been bound , yet the damnage sustained by Pallats silence , till Williamson was broken , whereby Fairholm was hindred to draw his Provisions out of Williamsons hand , and thereby lost the same through Pallats fault , ought to compence Pallat , and exclude him . Pallat answered to the first , that he opponed the Letters ; which bore expresly the Wines to be sent for Fairholms accompt ; so that albeit it mention Williamsons Credit , and that he had Provisions , it makes him but expromissor , and liberats not Fairholm : as to the second , anent the damnage , Pallat being secured , both by Fairhlom , and Williamson , might at his option , take himself to either , or to both ; and cannot be accompted to have done any fault , in forbearance of either , though an unexpected accident , of Williamsons breaking interveened ; so much the more , as Fairholms Letter does not order to draw upon Williamson ; but bears , That Fairholme would either draw , or remit , at Williamsons conveniency : So that Pallat has not failed , in the strick observance of the Order . And if need be , Pallat offers him to prove , by the custom of Merchants , in the most eminent places abroad , that such Letters did never liberat the Writer . And Fairholm offered to prove , that such Letters did liberat the Writer , unless the receiver had protested , and intimat to the Writer , that he would not acquiesce therein simply , but also in the Credit of the Writer .

The Lords found , that the Letter did not liberat Fairholm , notwithstanding of his forbearance to demand , and therefore repelled the Defenses , and decerned , but liberat Fairholm from the exchange , and re-exchange : in regard of Pallats silence , neither would the Lords delay the matter , upon the opinion of Merchants .

David Graham contra George Bruce and Doctor Mairten . Eodem die .

DAvid Graham , upon the sight of a Bond unregistrat , of George Bruces , obtained Arrestment ; and therewith Arrested a Sum , in Doctor Martines hand , which was loosed , and after the loosing , Assignation being made by George Bruce , to his Sister .

In which case , the Lords found , That the Arrestment being upon the Bond , before Registration might be loosed , and notwithstanding of the loosing , seing it was not now payed by the Debitor ; they ordained it to be made forthcomand to the Arrester , and preferred him to the Assigney , albeit it was alleadged , that the tenor of the Arrestment was but till Caution was found , which being found : albeit the Debitor could not oppose to make it forthcoming ; yet an Assigney , after loosing the Arrestment may let .

The Lords considered , that the Caution found , in loosing Arrestments , is overlie , and insufficient , and so would not insecure Creditors , doing diligence by Arrestment .

Lyon of Muirask contra Heretors of the Shire . Eodem die .

LYon of Muirask , having been Commissioner in the Parliament 1648. did , by vertue of the Act of Parliament , 1661. Allowing Commissioners Charges , to these who served in Parliament 1648. Who adhered to the Engadgment ; charges the ●●eretors of the Shyre to meet , and Stent ; and their being a Stent made , conform to the Valuation : he Charges thereupon● some of the Heretors Suspends , and alleadge , that they were not charged to meet , and so the Stent Roll is null . 2ly . That is not instructed , that the Charger attended all the dayes in the Parliament . 3ly . That the Roll ought to be made according to the Retour , and not to the Valuation , conform to the Custom before the troubles .

The Lords found , that , seing the Heretors , who met , expressed in the Stent Roll , that all the Heretors were charged , that it was sufficient , though the Executions against each on of them was not now produced , and because the Sed●runts of the Parliament 1648. were not to be found , They found he had right to the whole Charges during the Parliament , unless for such time , as they shall prove by his oath , that he was absent , but found , that the Stent Roll ought to be according to the Retour , and not to the Valuation :

Lady Greenhead conra Lord Loure . February 10. 1665.

THe Lady Craig , and the Laird of Greenhead her second Husband pursues the Tenents of Craig wherein she is Infeft , for Mails and Duties . In which Process , my Lord Loure co●●pears for his Interest , and alleadges , that he having Appryzed the Estate of Craig , and being Infeft , thereupon hath raised Reduction of the Ladies Infeftment , on this Reason , that a Part of his Sumes being anterior to the Ladies Infeftment , who was competently provided , by her Contract of Marriage , in 30. Chalder of Victuall , and this additional Infeftment of fifty Chalder of Victual , being betwixt most Conjunct Persons ; Husband and Wife : in so far as it is posterior to the Pursuers lawful Debt ; ought to be Reduced upon the Act of Parliament , 1621. The Pursuer answered , the Reason ought to be repelled . First , Because the Act of Parliament being only against gratuitous Dispositions made by Bankerupts , in prejudice of their lawful Creditors , is not relevant : seing Craig the Disponer was not a Bankerupt ; 2ly . As he was not a Bankerupt , so neither was he● insolvendo ; because the Reversion of his Estate is sufficient to pay his Debt , albeit the Same were affected with this additional Joynture . It was answered , for the Defender , that albeit the Title , and Narrative of the Act , be against Bankerupts , yet the Statutory part thereof , is against all gratuitous Dispositions , by Conjunct Persons : so that the Defender needs not alleadge , that either the Disponer was Bankerupt , or insolvendo , but that the Ladies Infeftment is betwixt Conjunct Persons : without an onerous Cause . The Pursuer answered , that the Disponer was neither Bankerupr , nor insolvendo ; and the Defender can have no Interest : unless there were fraud or prejudice which the Defender cannot alleadge ; because the Pursuer is content , that the Defender have access by his Appryzing to the Joynture Lands , In so far as will satisfie his Annualrents , and by the Act betwixt Debitor and Creditor● the Lords are impowred to restrict Appryzings to their Annualrent , and so he can pretend no prejudice ; providing he assigne the Lady to his Appryzing , in so far as he satisfies his Annualrent , out of her Additional Joynture .

The Lords found the answer to the Reduction Relevant , upon purging of the Appryzers prejudice , not only by admitting him to have access to the Appryzed Lands upon Assignation , as said is , during the Legal , but with Declaration , that if the Lady Redeemed not within the Legall , the Lands should be irredeemable , and the Lady totally excluded

Earl of Lauderdail contra Lord Oxfuird . February 11. 1665.

THe Earl of Lauderdail his Guidsir , being Infeft in the Barony of Musselburgh , which is a part of the Abbacy of Dumferling by a Gift from King Iames , in Anno 1584. Excepted by the Act of Parliament , for Annexation of Kirklands , in Anno 1587. And repeited in the Act of Parliamet 1593. His Father got a Gift in Anno 1641. And Oxfuird got another the same year from the King , as Heir to Queen Ann his Mother , who had a Heretable Disposition of the whole Lordship of Dumferling from the King , after Lauderdails first Right ; Lauderdail obtained Conformation of his first and subsequent Rights , in the Parliament 1661. Declaring all Rights formerly granted by the King since Lauderdails first Right , void . Which Ratification , bears , an express provision , That it shall not be prejudged by the Act salvo jure cu●uslibet . The Defender alleadged , absolvitor in hoc judicio possessorio ; because his Father was Infeft by the King , in Anno 1641. And by vertue thereof in possession , twenty years before this persuit : and as for his Ratification , the Defender not being called thereto ; it cannot take away his Right , being founded super jure communi untill the Pursuer insist in Reduction . In which case , the Defender shall answer , but is not oblidged to answer in hoc judicio , and as for the exception of the Act salvo jur : It s against the common Law : and the Act salvo jure ; is posterior without repeiting that exception . The Pursuer opponed his Ratificatiom , excepting the Act salvo jure , which being done upon the King and Parliaments certain knowledge upon consideration of Lauderdails prior Right . The Lords cannot be Judges to reduce the Sentence , and Statute of Parliament ; as Durie observes to have been found in the Case of the Earl , of Rothes and Iohn Stewart of coldinghame . The Defender repei●ed his answer ; and for these Decisions , opponed the Tennor of the Act salvo jure 1633. And repeited , 1661. Whereby the Lords are ordained to decide , in the Rights of privat Parties , according to Law , without respect of Ratification , or other privat Statuts , in favours of particular Persons , such as this , which being after this decisions , clears and enlarges the power of the Lords . The Pursuer opponed his Ratification , and exception of the Act salvo jure , which bears expresly , That it should stand as a publick Law , and so was no privat Statute , mentioned in these Acts , Salvo jure .

The Lords having considered the Case , and that such exceptions from the Act Salvo jure were of dangerous consequence to the Leidges . They ordained the Parties before answer , to dispute the point of Right as if such an exception of the Act Salvo jure , had not been granted , but they thought that Defense upon a possessory Iudgement , being but a point of form , whereby the Rights of Parties were not competent by exception , or reply : the Parliament might dispense therewith , and also might repone Parties , as to the matter of Prescription , or quoad minor non tenetur placitare , but if without these and such , the Pursuer had a prior valid Right . The Lords were loath to enter upon the case of the exception of the Act Salvo Jure .

Scot of Thirlston contra Scot of Braidmeadow Eodem die .

SCot of Thirlston having right to the Teynd of midshef ; and pursues the possessor for 24. Years bygone , and in time coming , who alleadged absolvitor ; because these Teynds are allocal to the Church , co●●or● to a Decreet of locality , produced : bearing , such a Stipend and locatting , so much of it , and for the rest● that the Minister had the Teynds of midshef . It was alleadged , that this could not instruct , that those whole Teynds were allocal ; but so much , as made up that rest : and the Teynd is worth twice as much , and therefore the Minister had but the twenty Lamb , for the Teynd , which is but half Teynd and was lyable to the Pursuer for the rest . It was answered , that Teynds are secundum consuetudinem loci , and if Tyends had never been payed , none would be due , and if the twenty Lambs was all ever payed , they could be lyable for no more :

The Lords found , that before the intenting of the cause , they would not allow any more nor then what was accustomed to be payed , unless the Pursuer , offer him to prove , that there was a Tack , or use of payment of more , which they would allow accordingly .

Sir William Thomson contra Town of Edinburgh , February 14. 1665.

THe Magistrats of Edinburgh , having deposed Sir William Thomson Town Clerk , from his Office , on this ground , That a Tack of the new Imposition , and Excise being set to their Tacks-men , ( which was to have been subscribed by him , as Clerk , for the Deacons of the Crafts , ) he had given it up to the Tacks-man , and had not taken their subscription thereto , neither to their own double , nor taken another double for the Town , albeit the Tack duty was fourscore thousand merks yearly , for two years ; and that it being an uncertain casuality , the value of it was most difficult to prove , and not but by the Tacks-mens own Oath . Sir William raised Reduction , on several Reasons , especially that the sentence was unjust , in so far as it was the puting on of an exorbitant , and incommensurable punishment , of deprivation from an Office of so great Value , upon a Fault of meer negligence , or escape : and that before the Sentence , the Tack-dutie was all payed , but four monethes , and now all is payed , and that Sir William was still willing for to have made up the Towns damnage . It was answered , that here was no Process to put a punishment commensurable on a Fault , but Sir William having , by the free Gift of the Town had so profitable a place for his life , upon consideration of his Fidelity and Diligence , there is implyed in it , as effectualy , as if exprest , that it is ad vitam aut ad culpam : so that the cognoscing of the Fault is the termination of the Gift freely given , so if their be a fault Justly found by the Town , they might well take back their Gift , they gave upon that condition implyed , for it was not the loss in eventu ; nor dolus in proposito , that made such a Fault ; else all negligences imaginable would not make it up , though a Servant should leave his Masters House , and Coffers open , if nothing happened to follow ; yet the Fault was the same , and could not be taken away , by making up the damnage , but here was a Fault of knowledge and importance : for Sir Wil●iam could not by meer negligence , nor ommission give away the Tack to the Tacks-men , and neither see them subscribe their own double , or any other , nor subscribe himself , this Fault was likeas in his Office , he had a particular gratuitie , as Clerk to the excise .

The Lords repelled the Reason of Reduction , and found the Sentence not to be unjust , upon this ground ; because they thought that Sir William being a common Servant , who by his Act of admission , had specially engadged never to quarrel the pleasure of the Magistrats , they , as all Masters have a latitude , in cognoscing their Servants Faults , wherein , though they might have been wished to forbear rigor , yet having done it by their power , as Masters over their Servants ; The Lords could not say they had done unjustly , but found that the committing such a Fault terminat their free Gift , being of knowledge and importance , but found that if it could be proven , that the Tack was duelie subscribed , and lost thereafter , which was not of knowledge , but of meer omission , incident to any Person , of the greatest diligence , they would not find that a sufficient ground to depose him .

Bishop of Dumblain contra Earl of Cassils . February 15. 1665.

THe Bishop of Dumblain pursues the Earls Tennents , for the Teynds of the Abbacy of Cor●regual , as a part of his Patrimony annexed thereto , by the Act of Parliament 1617. The Defender alleadged no Process , till the Act of Annexation , being but an Act unprinted were produced . 2ly . Absolvitor , because the Defender had Tacks from the King , in Anno 1641. And by vertue thereof was in possession , and could pay no more then the Duties therein contained , till they were reduced . It was answered to the first , it was nottour , and if the Defender alleadged any thing in his favour , in the Act , he might extract it . 2ly . The Defender could not claim the benefit of his Tack , 1641. because the Bishops are restored to all they possessed in Anno 1637. And so not only Right , but Possession , is restored to them as then , which is as sufficient an interruption by publick Law , as if it were by Inhibition , ot citation .

Which the Lords found relevant , being in recenti after the Act , and never acknowledged by the Bishops .

Boyd of Pinkill contra Tennents of Cairsluth . Eodem die .

PInkill , as Donatar to the waird of Cairsluth , pursues removing against the Tennents , whose Master compears , and alleadges , that the Gift was to the behove of the Minor , his Superiour ; who , as representing his Father and Guidsire , was oblidged , in absolute warrandice , against Wairds per expressum .

THe Lords considering , whether that could be understood of any other Wairds , then such as had fallen before the warrandice , or if it could extend to all subsequent Wairds , of the Superiours Heir , and so to non-entries , &c. which they thought hard ; seing all holdings were presumed Waird , unlesse the contrary appear , and the Superiour could not be thought to secure against subsequent Wairds , unlesse it were so specially exprest , all Wairds past and to come : Yet seing it was found formerly that if the Superiour take such a Gift , and be bound in warrandice , that the same should accresce to the Vassals paying their proportional part of the expense , and composition , they found the Defense , that this Gift was to the behove of the Superiour relevant , ad hunc effectum , to restrict it to a proportional part of the expense .

Hellen Hepburn contra Adam Nisbit . February 16. 1665.

HEllen Hepburn pursues Adam Nisbit , to remove from a Tennement in Edinburgh , who alleadged absolvitor , because he had a Tack standing for Terms to run . It was replyed , that the Tack bore expresly , if two Terms run in the third unpayed , the Tack should expire and be null , ipso facto , without Declarator . It was answered , that notwithstanding clauses so conceived . The Lords hath been accustomed to put them to Declarator , in which case they have the priviledge to purge the Failzie at the Bar , and if need beis , the Defender will now purge .

The Lords found the reply relevant , in respect of the conception of the Clause , and would not suffer the Defender to purge , for albeit in Declarators against Feues , ob non solutum canonem , the Lords will suffer the Defenders to purge at the Bar , when the pursuite is upon the Act of Parliament yet they will hardly suffer them to purgewhere that Clause Irritant is exprest in the Infeftment : so Proprietars may pursue their Tennents for failzing to pay the Duties of their Tack , and to find Caution in time coming ; else to remove when there is no such Clauses Irritant , and then they may purge , but when the Clause Irritant is exprest , there is far less reason they should have liberty to purge in Tacks then in Feus , where the penalty is much greater .

Pringle of Torsonce contra Ker of Sunderland-hall . February 17. 1665.

PRringle having appryzed the Right of a Wodset , from the Heirs of Sir George Ramsay , does thereupon require and charge for the Money . It was alleadged , that he cannot have the Wodset Sum , unless he not only Infest himself in the Wodset , and renounce the same , but put the Defender in peaceable possession , as he did possesse the Wodsetter , from whom the Pursuer appryzed : and who can be in no better Case , then the Wodsetter himself . The pur●uer answered , that he was willing to renounce all Right and Possession , but could not put the Defender in Possession ; because a thrid Partie had intruded himself , without the Pursuer , or his Authors Fault , and the Wodset being but a Pledge , the Hipothecar is not lyable contra vim major●m , but only pro culpa lata & levi . Therefore if a Pledge be taken away by force , it hinders not the Creditor to demand his Sum. The like must be in intrusion , which is an Act of force , and the Pursuer , who hath only his Annualrent , is not oblidged to consume the same upon recovery , but the Defender may do the same . The Defender answered , that whatever might be alleadged , in the Case of Intrusion , if in continent , the Wodsetter had intimate the same , and required his Money , yet this intruder has continued a long time .

The Lords found the defense and duply relevant to stop the payment of the money till the possession were delivered , seing the intrussion was ex inter vallo .

James Butter contra Gray of Balbrino . Eodem die .

JAmes Butter having pursued Gray for payment of a Sum of Money , he alleadged prescription , because fourty years had run from the date of the Bond , being the last of December 1624. before any Judicial Act , or other interruption done thereon . The Pursuer replyed , that he had cited the Defender , upon the first Summons upon the 24 of December . 1664. which was six days within the fourty years , from the date . 2ly . It was much more within the 40 years , from the Term of payment of the Bond , from which only , and not from the date prescription runs , quia contra non valentem agere , non currit prescriptio . The Defender answered , that the citation on the first Summons , was not sufficient , unless there had been an Act of Continuation or some Judicial Act within the 40 year ; Because the Act of Parliament bears expresly , If the Creditor follow not , and take document within 40 years , the Bond shall expire .

The Lords found the reply relevant , and that the Citation on the first Summons was sufficient , being within 40 years of the term of payment .

Sir John Baird contra Magistrats of Elgine Eodem die .

SIr Iohn Baird pursues the Magistrats of Elgine , for the Debt of a Rebel , escaping out of their Prison , who alleadged absolvitor , because the Rebel had the benefit of the Act , Debitor and Creditor ; and produced the Clerk of the Bills Certificat thereupon , when he was offered to Prison , and being Imprisoned joyntly for an other Debt . The Magistrats protested , that they excepted him not prisoner for this Debt . It was answered , that the benefit of the Act contains an express nullitie , if the Annualrents be not payed conform thereto . The Defenders answered , that they could not be Judge to the discharge , and that upon the like case , of a Protection of the Kings , the Magistrats of Strivling were liberat .

The Lords repelled the Defense , unless the Clerks attest , the discharge had been first produced , or shown to the Magistrats before the Prisoner was let go . In which case , they might either have refused him , or let him goe free .

Marquess of Huntly contra Gordoun of Lesmore . February 22. 1665.

THe Marquess of Huntly , as Donatar to the Forefaulture of the Marquess of Argyle , as to the Estate of Huntly , obtained Decreet of Parliament against Gordoun of Lesmore , for payment of the Mails and Duties of certain Lands , and for removing therefrom . He Suspends , on these Reasons , First , That the Decreet was null , not preceeding upon lawful Citation , but far fewer dayes then is appointed by Law , and that he was absent , and now alleadges , that his Right to the Lands in question , was by excambion with the Marquess of Argyle , for Lands holden of the Marquess of Huntly , which he had possessed thirtie or fourtie years before , and thereefore , if the Pursuer were dispossessed of the Lands in question , he behoved to possesse him in other Lands . 2ly . The Decreet is null , as not proceeding upon tryal of an Inquest , cognoscing , the Marquess of Argyle Heretable possessor five years before ; conform to the Act of Parliament : nor could that be cog●o●●ed , because , the Defender himself was Heretable possessor these years . 3ly . The Defenders Right from the Marquess of Argyle , albeit it was post comissum crimen , yet the cryme was latent , proceeding upon missive Letters of his , that was found out of the English hands , which the Defender could not know . The Pursuer answered to the whole ; that he opponed the Decreet of Parliament , which ought not to have been Suspended , by the Lords of Session , who are not Judges to Decreets of Parliament , who may dispence with the Dyets , and Solemnities of Law , and the Pursuer insists not upon the benefit of the five years possession , but upon this ground , that the Defenders Rights from the House of Huntlie , or from Argyle were holden base of Argyle , and not confirmed by the King , and therefore by the Forefaulture of Argyle the Superiour , who , by his Right came in Huntlies place , these unconfirmed base Rights fall .

Which the Lords found relevant , and in the same Process , Mails and Duties being but generally decerned , without expressing the quantities .

The Lords ordained the Pursuer to condescend upon the quantities , and gave him a term to prove .

Viscount of Kingstoun contra Collonel Fullertoun . Eodem die .

THe Viscount of Kingstoun pursues Collonel Fullertoun , upon the warrandice of an Assignation , made by the said Collonel , to Sir Arthur dowglass of whittinghame . The Defender alleadged absolvitor , because the Assignation was only made in trust , which he offered to instruct by many Adminicles , of which these were the chief ; that by the Witnesses adduced , it was cleared , that this Assignation remained in the hands of one Cranstoun , who was filler up of the date , and Witnesses therein ; that it was never delivered to Whittinghame , and that the Right Assigned , was still retained by the Collonel , who thereupon obtained two Decreets before the Lords , and uplifted the Money from Sir William Thomson Debitor , Cranstoun , who keeped the Assignation , being an Agent in the house , never questioning the same , nor Sir Arthur , or any of his , owning the same for the space of 20 year , till of late ; Kingstoun gave 300. merk , to get the Assignation out of the hands of one Ienkin , who got it from Cranstoun , and that the Money was to have been presently imployed for the levying of Souldiers for a French Regement , whereof Fullertoun was Collonel , and Sir Arthur Livetenant Collonel , there were also two Letters of Sir Arthurs produced by the Collonel , acknowledging the trust thereof , the one was alleadged to be holograph , but nothing adduced to prove the same , but three other writs , subscribed before Witnesses , for comparing the Subscriptions therein , with the Subscriptions of the Letters . The Pursuer answered , that so solemn a Write , subscribed before Witnesses , could not be taken away by Presumptions , or Witnesses , but either by Writ , or Oath of Partie ; and as to the Presumptions adduced , there are stronger Presumptions with the solemn Writ then against it : Fullartoun a most circumspect man , would never have given an Assignation in trust , without a Back-bond , and that Sir Arthur died shortly thereafter , Anno 1642. and Cranstoun died Auno 1645. And Whittinghams Successors were strangers to the business , and the missives adduced were not proven holograph , and were suspect .

The Lords found the Defense founded upon the foresaid adminicles relevant and proven and therefore assoilzied .

Sir George Mouat contra Dumbar of Hembrigs . Eodem die .

SIr George Mouat , as Assigney to a Tochar of 5000 merk , whereunto umquhile Dumbaith was contracter , pursues Hemprigs , as representing him for payment . The Clause of the Contract bore , That the Husband should have the Tochar , out of the first , and readiest Goods of the wifs Father ; and that he should have Annualrent therefore , but did not expresly oblidge Dumbaith to pay , and therefore he is not lyable personally , unless he had intrometted with the Defuncts means .

The Lords found the Defender lyable , seing the Clause being in re dotali , it behoved to be interpret cum effectu , and if it did import only a consent , not to hinder the Husband , it signified nothing ; and because in Cases conceived passivè , where it does not appear , who is oblidged , the Contracter is understood oblidged .

Campbel contra Campbel . Eodem die .

A Wife pursuing her Father in Law , for imployment of her Tochar , conform to her Contract . He alleadged absolvitor , because the Clause bore expresly , that so soon as the Tochar was payed compleatly , he should imploy it ; and so much more for the Wifs Liferent use , so that , unless it were shown , that the Tochar was compleatly payed , he was not oblidged . The Pursuer answered , that she was not oblidged to pay the Tochar , but her Father , and if any neglect or defect were therein , it was not her fault , but the Defender ought to have done diligence , debito ●●mpore , and therefore , albeit the Tochar were not payed , at least he must imploy his own part proportionable to what of the Tochar he hath received .

Which the Lords found relevant , and if the Pursuer had not restricted her self to that proportion they would have sustained it simply , for all the Defnders own part .

Kennedy contra Weir February 23. 1665.

KEnnedy of Auchtifardel , having charged William Weir , upon a Bond of 300 merk. He Suspends , and raises Reduction , upon Minority and Lesion . The Charger answered , Minority takes no place where the Minor is in dolo , as si minor sein majorem dixerit , but in this Bond , the Suspender expresly acknowledged himself to be then Major . The Suspender answered , that eadem facilitate , that he was induced to subscribe the Bond , he might be induced to insert that Clause , which therefore cannot prove , unless it were otherways proven , that he did induce the Charger to lend him Money on that ground .

The Lords found , his acknowledgement in the Bond was sufficient , unlesse he instructed , that he was induced to insert that Clause , not on his own motion , or that the Charger knew that he was Minor , or was oblidged to know the same , by being his Tutor or Curator , or might have visibly known the same , by the sight of his age , and thought it not reasonable to put it to the Debitors oath , to disappoint the Creditor .

Jack contra Pollock and Rutherfoord . Eodem die .

MArion Rutherfoord Married David Clerk , and had no Contract of Marriage with him , but he having acquired a little ruinous Tennement , took it to her and him in Conjunct-fee , and in the time of the Plague● he provided her to the Annualrent of 5000 merk. His Heirs raises Reduction of the provision , as being in lecto agritudinis , after he had keeped his house upon suspition of the plague , of which he died . It was alleadged , for the said Marton , that keping the house upon suspition of the plague could not be as in lecto aegritudinis , unless it were proven , that he was infected with the Desease , before the provision was granted . 2ly . Even in that Case , Defuncts are not hindered to give Liferents to their Wives , for which there is a natural obligation , according to Craigs opinion .

The Lords repelled the first alleadgence , but found the second relevant , in so far as might extend to a competent provision to the Wife , and therefore having examined many Witnesses hinc inde , upon the Estate of the Husband , and the Tochar , and frugality of the Wife , and finding his means did consist in a Tenement worth 500 merk by year , beside that inconsiderable Tenement , wherein she was Infeft , they restricted her Annualrent , which came to 300 merk , to 123. lib. which was about the Terce of the Tenement , albeit Terces of Houses within Burgh are not due .

In this Process , the Wife and her second Husband , a●d having repaired the other little Tenement , which was ruinous , and builded it much better then ever it was ; for which they pursued for the Reparations .

The Lords found , that they ought to have the Reparations decerned , not only in so far as is necessary , but in quantum , the Heir will lucrari , by getting greater mail to be payed at the Wifes death , she leaving the Tenement in as good case as now it is .

Sir James Mersser of Aldie contra William Rouan . February 24. 1665.

SIr Iames Mersser of Aldie , as Donatar to the Gift of ultimus haeres , of umquhil Iohn Rouan , pursues a Reduction of the Retour , and Service of William Rouan , Served Heir to the Defunct , as his Goodsirs Brothers Oye : and having obtained Certification , contra non producta ; there being nothing produced , but the Retour , Service , Brive and Executions , but no Warrand of the Service , either bearing the Testimony of Witnesses , adduced to prove the propinquity of Blood ; or bearing , that the Inquest of proper knowledge , knew the same . The Pursuer now insists in his Reason of Reduction , that the Service is without Warrant , and without Probation by Writ or Witnesses . It was answered , non relevat , as it is lybelled , bearing only that it is without probation by Writ or Witnesses , whereas it might proceed upon the proper knowledge of the Inquest , or any two of them . The Pursuer answered , that neither were there any Probation by Writ or Witnesses , nor by the Minuts of Processe , bearing , that the Persons of Inquest , of their proper knowledge did Serve .

The Lords considering , that the Minuts of these Process upon Service , for Serving general Heirs , which may be before any Judicature , use not to be exactly keeped , would not instantly Reduce for want of the Warrants ; but ordained the Persons of Inquest to be produced , to condescend whether they proceeded upon proper knowledge , and what was the Reason of their knowledge .

Mc. Gregor contra Menzies . Eodem die .

THere being a question arising betwixt Mc. Gregor and Menzies , upon a Decreet Arbitral .

The Lords found the Decreet Arbitral null , proceeding upon a Submission of this Tenor , submitting to the Arbiters , ay and while they meet , at any Day and Place they found convenient , with power of Prorogation , without any particular Day , for giving their Sentence blank , or filled up , because the Decreet Arbitral was not within a year of the Date of the Submission , nor any Prorogation during that time .

Dam Elizabeth Dowglass and Sir Robert Sinclar of Longformacus contra Laird of Wedderburn . Eodem die .

THe Lady Longformacus , as Heir to her Goodsire , William Dowglas of Eveling , who was Donatar to the Escheat and Liferent of Iohn Stewart of Coldinghame , pursues the Laird of Wedderburn , for the Teinds of his Lands , which Teinds pertained to the Abbots of Coldinghame . The Defender alleadged absolvitor , because he has Tack to run , flowing from the Earl of Hoom , who was Infeft in the Lordship of Coldinghame● and before that was Commendator thereof by His Majesty . 2ly . Iohn Stewart had ratified all Rights , flowing from the Earl of Hoom ; and consequently this Tack after which , the Donatar of his Escheat could not challenge the same ; for the Ratification is equivalent , as if the Tack were granted by the Ratifier . The Pursuer answered , that the Defense upon the Tack , and the Earl of Hooms Right ought to be Repelled , because the Earl of Hoomes Right , is Reduced by the Parliament 1621. on this consideration , that the Earl of Bothwel being Commendator of Coldinghame , had demitted the same in his Majesties hands , whereupon the said Iohn Stewart his Son , was provided by the King , Commendator of Coldinghame , and thereafter the Earl of Bothwel being Forefault , the said Iohn and his other Children were Dishabilitate , and declared incapable to bruik and joy his Land and Heritage , or to succeed to any Person within this Realm , by Sentence of Parliament ; whereupon the King provided the Earl of Hoom to be Commendator of Coldinghame ; and thereafter on the Earls own Resignation , Infeft him therein , in an erected Lordship , and thereafter in the Parliament 1621. The King and Estates , upon express consideration , that Iohn Stewart was an Infant , no wayes accessory to his Fathers Crimes , did therefore annul his Dishabilitation , and Rehabilitate him , and declared that he should have Right to the Abbacy of Coldinghame , in the same manner as he had before his Dishabilitation ; and Resci●ded all Rights and Infeftments of the said Abbacy , granted by His Majesty ; to any Person of the said Abbacy , since the said Dishabilitation● in so far as the samine might be prejudicial to Iohn Stewart's Provision , that he had before . After all which , Iohn Stewart upon his own Resignation , was Infeft in the Property of Coldinghame ; so that the Earl of Hoom's Right being Reduced in Parliament , and falling in consequence with Iohn Stewarts D●shabilitation ; whereupon it was founded : the Defenders Tack following thereupon● falls also in Consequence , as was already found by the Lords , in Anno 1628. betwixt the said William Dowglas of Evelen and the Laird of Wedderburn , conform to an Interlocutor , Extracted and produced ; which is sufficient inter easdem partes , and cannot be questioned , super eisdem deductis now ; albeit at that time Wedderburn past from his compearance , and so the Decreet against him was in absence , yet the Interlocutor was ordained to be Extracted against him by the Lords , which is sufficient : and as for the Ratification of the Tacks granted by the Earl of Hoom , the samine was after Iohn Stewart had Resigned his Comendatorship , and before he was Infeft in Property . The Defender answered ; First , That the said Reduction of the Earl of Hoom's Right , was without calling of the Defender : or of the Earl of Hoom himself● 2ly . It mentions no particular Right , or any Person , but in general , all Right ; and so is but a privat Right , impetrat from the Parliament , without hearing of Parties ; and therefore falls under the Act of Parliament , salvo jure . And as to the former Interlocutor of the Lords . The reason why the Lords sustained the said Rescissory Act , was because they found themselves not competent to Judge , as to Sentences of Parliament , or to annul the same , upon the not calling of the Parties , in respect that the Act salvo 1621. relates to Ratifications ; but not to such Sentences as this : but by Act salvo , 1633. It is expresly declared , that that Act , and all former Acts salvo , should not only extend to Ratifications ; but to all other privat Acts impetrat without hearing of Parties , and prejudicial to other Parties Rights : and therefore now the Lords ought to proceed upon the Parties Right , without consideration of that Act Rescissory .

2ly . The Act of Parliament Prohibits and annuls all Restitution of Forefaulture by way of Grace , in so far as may be prejudicial to these , who bona fide , acquired Rights from the King , medio tempore : and so the Rehabilitation of Iohn Stewart , cannot prejudge the Earl of Hoom : or the Defender who had Right from the Earl . It was answered for the Pursuer , that there was no difference in the two Acts salvo jure ; albeit the last was more express then the first , containing the same in effect . 2ly . Iohn Stewart being Dishabilitat by the Parliament , without Citation or Crime , might justly be Rahabilitate , eodem modo , without Citation , and that not by way of Grace , but in Justice , as not accessory to the Crimes● and albeit Forefaultures may not be taken away by way of Reduction , by the Act of Parliament , 1584. cap. 135. yet that cannot be extended to the Dishabilitation of their Children , so that the Parliament doing nothing prejudicial to any Parties Right , but restoring Iohn Stewart to his just Right , eo ipso , the Earl of Hooms Right fell in consequence , as founded upon Iohn Stewarts Dishabilitation , and with it the Defenders Tack .

The Lords Repelled the Defense upon the Tack , in respect of the Reply , for albeit the Act of Parliament , 1633. be much larger then the Act salvo , 1621. so that thereby the Lords might have cognosced upon John Stewarts Rehabilitation as without Citation , if it had wronged any other Persons Right , but finding that it was an Act of Iustice , wronging no Persons Right , they found the same Relevant .

Town of Edinburgh contra Sir William Thomson . Iune 6. 1665.

THe ordinar Council of Edinburgh , having Deposed Sir William from his Office of Town Clerk , he raised a Reduction of the Sentence , on four Reasons ; first , that the samine was null , because it proceeded without Citation , or necessar Solemnities of Process . 2ly . Because the Town could not be Judge in their own Cause . 3ly . Because by the Sett , or the Kings Decreet Arbitral , for the Government of the Town , no Person could be admitted to any Office or Benefice therein , but by the great Council consisting of the ordinar Council and their Deacons ; and consequently none could be Deposed from such Offices , but by the same great Council , and this Sentence was by the ordinar Council . 4ly . That the Sentence was exorbitant and unjust , in Deposing him for an Omission , sine dolo , lata culpa , aut damno .

The Lords having discussed the fourth Reason , and heard the whole Dispute at length in praesentia . The Defender after Interlocutor , but not pronounced on the fourth Reason , borrowed the Process , and refused to re-deliver it . The Town called upon a Copy , and represented the manner of abstracting the Process . The question was , what should be done , and whither Sir William might before Litiscontestation , or any Interlocutor pronounced , take up his Process .

The Lords admitted Protestation on the Copy , and ordained an Act of Sederunt , prohibiting the Clerks to give up any Process to the Pursuer , after it was Dispute to the full in all the Members thereof , though no Interlocutor were past , or pronounced thereupon , lest after so long Debate , and hearing , the Lords should at the discretion of Parties , lifting their Process , lose their time , but what had been Dispute , should be advised , de recenti .

Iune 8. 1665.

The Lords upon Supplication , ordained an Appryzing to be allowed , albeit not only the Debitor against whom it was deduced , was dead , but the threescore days were long since expired , and ordained the allowance to be Registrat , in respect that the late Act of Parliament , declares that such Appryzings as are not Registrat within threescore , shall not be preferred to posterior Appryzings first Registrate , so that the Lords thought , that where the allowance was Registrate , albeit after the threescore dayes , it would be preferred to any other Appryzing Registrat thereafter .

Eodem die .

The Lords intimat to the Writers , Keeper of the Signet , and Clerk of the Bills , an Act of Sederunt , prohibiting general Letters , upon Presentations or Collations of Ministers , whether having Benefices , or modified Stipends , until every Incumbent obtain a Decreet conform , albeit they should produce their Predecessors Decreet conform , or a Decreet of Locality , containing the Stipend particularly .

Swintoun contra Notman . Iune 10. 1665.

SWintoun in his Testament , having named his Wife Tutrix to his Children , and Notman and others , Overseers . His Relict within a year , was married , and so her Tutory ended ; shortly after Notman received from her a number of several Tickets , belonging to the Defunct , and gave his Recept Thereof , bearing , that he had received them in his Custodie , and keeping● thereafter , he uplifted the Sums , contained in some of the Tickets , and gave a Discharge to the Relict and second Husband , of some particulars , and consented with the Pupil , to a Discharge to a Debitor , which expresly boor , him to be Tutor Testamentar , and did intromet with the Rents of some Tenements , and Disposed upon some Sheep , whereupon Swintoun the Pupil pursues him as Tutor or Pro-tutor , not only for all he Intrometted with , but for the Annualrent thereof , and for all the rest of the Defuncts means , which he ought to have intrometted with , and to have called the Tutrix to an account therefore , and condescended upon the insight and plenishing of the Defuncts House , the Goods in his Shop , he being a Merchant , the Debts in his Compt Books , and these due by his Tickets , not only received by Notman , but by others , and for the remander of his Sheep , and other Moveables , and for the rest of his Rents , not uplifted by Notman . It was alleadged for Notman ; 1. That that member of the Libel was not Relevant , whereby he was pursued , not only for that he Intrometted with , but what he omitted , because a Pro-tutor is not obliged as far as a Tutor for the Pupils whole Means , but this far only , that whatsoever he intromets with , as to that he is obliged as a Tutor , to imploy it , and preserve it , and so is lyable for Annualrent therefore , and in that he differs from another , negotiorum gestor , who is not lyable for Annualrent , but he is not lyable for other particulars of other kinds , that he medled not with , as albeit he had medled with the Tickets , yet that would not oblige him to medle with the Compt Books , Plenishing , or Cattel ; there being no Law to oblige him , neither was there any possibility , that he could meddle therewith , being neither obliged , nor able so to do , having no active title in his Person ; for Overseer , non est momen juris , and by our Custom , i● doth oblige to nothing , but is as the fidei commissa , were in the ancient Roman Law in the arbitriment of him , to whom they were committed without any obligation or legal compulsion , ex mera pietate , so that his being Overseer●● could oblige him in nothing , and his meddling thereafter to preserve the means of the Pupil , when his Tutrix and Mother had superinduced a second Husband , ought not to be hurtful to him ; otherwayes no Overseer will ever meddle in any case , with any thing of the Pupils , whereby their Means may be destroyed . 2ly . He cannot be lyable as Tutor notwithstanding of the Discharge , subscribed by him , hoc nomine ; because albeit that would prove him Tutor , where the case did not otherwayes appear , seing the contrair is manifest ; that whereas the Discharge bears him Tutor Testamentar . The Testament produced , bears him only to be Overseer , & fa●sa designatio non obest . 3. The Ticket or receipt of the Bonds cannot obliege him for all these Bonds , but such thereof , whereof he uplifted the Money , and only from that time that he uplifted the same ; especially seeing the Ticket bears , that he received them in his Custodie , which any friend might do , especially an Overseer ; and does not import his purpose of Intromission . The Pursuer answered to the first , that his Lybel was most Relevant , not only for Intromission , but Omission ; because a Pro-tutor in Law is oblieged in all points as a Tutor , not only pro commissis sed p●o omissis : and albeit he had no active Title , whereby to Intromet , that cannot free him from being lyable passive more then a vitious Intromettor , or one behaving as Heir ; but he ought either to have forborn , or procured to himself a Tutory dative , and unless Pro-tutors be universally lyable , Pupils will be destroyed , because any body will meddle with their Means , knowing they are lyable but for what they meddle with , and the A●nualrent thereof , which perhaps will not be made out against them ; but if they be universally lyable , they will either wholly abstain , or orderly Intromet , by procuring a Title : and albeit Overseers be not lyable in the first place , yet they are tutores honorari , lyble after the other Tutors are discussed . As to the third , the receipt of the Bonds , albeit it bear in Custody , yet it is proven by the Writs produced , quod se immiscuit , by uplifting the sums contained in some of the Bonds , and therefore is lyable for the whole .

The Lords having heard and considered this case at length , found , that seing there was no Law nor Custom of ours to make a Pro-tutor lyable in all points as a Tutor , and that the Civil Law oblieges not us , but only we ought to consider the equity and expediency thereof , and therefore they found , that they could not condemn the Defender for omissions , seing there is no Antecedent , Law , nor Custom : and therefore found , that as Overseer , he was oblieged to nothing , and that as Intrometter , he was lyable for what he intrometted with , and the annualrent thereof , after his Intromission , and found him lyable for the hail Bonds in his Tickets , seing he meddled with a part of the Money thereof , and found , that if he had meddled with a part of the Sheep , that would make him lyable for the whole Sheep of that Flock , and the Annualrent thereof , and found that his being Designed Tutor , contrair to the Testament , did not instruct : but the Lords Declared , that in cases occurring in all time coming● they would find Pro-tutors lyable in all points as Tutors , and ordained an Act of Sederunt to be made thereupon and published in the House , to all the whole Advocats , that none pretend Ignorance .

Sir Alexander Hoom contra Iune 10. 1665.

〈…〉 pursues for mails and Duties of certain Lands . It was alleadged for the Tennents , no Process , because they offered them to prove , that they were Tennents by payment of Mail and Duty to Sir Alexander Hoom their Minister , before intenting of this Cause , and he was not called . 2ly . Absolvitor , because they were Tennents to the said Sir Alexander , who had a right of an Appryzing , and Diligence thereupon , anteriour to the Pursuers Right . The Pursuer answered to the first , non relevat , in an action of Mails and Duties ; albeit it would be relevant in a Removing . In which two Actions , the Lords have still keeped that difference , that in Removings the Heretor should be called , because thereby his Possession was to be interverted : but in Mails and Duties , the Tennents might Suspend on Double Poinding , and thereupon call both Parties : Or if a Tennent did collude , the master , might use the Tennents name , but double Poinding could not have place in Removings .

To the second , it is not competent to the Tennents to Dispute their Masters Right , which is to them jus tertij ; but they should have intimate to their Master , to compear and defend his own Right , who if he will , compear and produce his Interest , may be heard .

The Lords Repelled both Defenses , unless Sir Alexander compear and produce his Interest .

A Letter from the KING . Iune 14. 1665.

THe Lord Ballantine The saurer Depute compeared , and produced a Letter from His Majesty to the Lords , bearing , that His Majesty having heard a doubt moved before him , whether Declarators of Ward , Non-entries , &c. should be discussed before the Lords of Session , or Lords of Exchequer ; His Majesty Declared His Pleasure , that in the mean time , till H●s Majesty got further evidence , and clearing therein , such Actions should be pursued before the Lords of Session .

Which Letter was ordained to be Recorded in the Books of Sederunt .

Aikman contra Iune 15. 1665.

AIkman having Charged upon a Bond of borrowed Money . Suspended , and alleadged that the Charge was truely for a Prentis● fee , for a Royto a Writter , who was oblieged to Educat him three years , and it is offered to be proven by Witnesses , that he beat the Prentise , and put him away with evil usage , within a year and an half , and so can have no more at most , then effeirand to that time . The Charger answered , that he could not devide the Probation , in one single Defense , both by Oath and Witnesses , and that he could not take away Writting by Witnesses , in whole or in part .

The Lords sustained the Probation by Oath and Witnesses , as proponed .

Cruikshank contra Cruikshank . Iune 16. 1665.

GEorge Cruikshank pursues the Rel●ct and Executrix of Cruicksshank his Uncle , for payment of a Bond of 400. Pound . The Defender alleadged absolvitor , because the Defunct had granted an Assignation of certain Sums of Money to David Cruikshanks , the Pursuers Brother , wherein there was a Provision in favours of the Pursuer , that the said David should pay to him a●thousand Pound , which must be understood to be in satisfaction of this Debt , in the first place , nam nemo presumitur donare quamdiu deb●t . The Pursuer answered , that the foresaid Rule hath many exceptions , for it being but a presumption , a stronger presumption in the contrair will elide it as in this case . The Defunct had no Children , and had a considerable fortone , and the Pursuer and the said David his Brother , were the Defuncts nearest of Kin : and albeit the foresaid Disposition be not in the express terms of a Legacy , yet it is donatio mortis causa ; for it contains an express power to the Defunct , to Dispone otherwise , during his life , and in another Provision therein , it bears expresly , to be in satisfaction of Debt , due to that other Party , and says not so as to the Pursuer ; all which are stronger extensive presumptions , that the Defunct meaned to Gift no less then the whole thousand pounds .

Which the Lords found Relevant .

William Wright contra George Shiel . Eodem die .

WIlliam Wright as assigney by Iohn Shiel in Carlowrie , obtained Decreet against George Shiel in Nortoun as Heir to Iohn Shiel his Brother● for payment of two Bonds . George Shiel Suspends on this Reason , that the Assignation was gratuitous , without onerous Cause , which he offered to prove by the Assigneys Oath , and offered to prove by the Cedents Oath that the Debt was satisfied .

The Lords having at length considered , and Debated this Case among themselves , whether the Cedents Oath could prove against an Assigney , when the Assignation was gratuitous , some were of opinion , that it could not , because nothing can prove but Writ or two Witnesses , or Oath of Party , and the Cedent is not the party , but the Assigney : and albeit the Cedent could be a Witness , he is but one ; and because it is a Rule with us , that the Cedent cannot Depone in prejudice of the Assigney , unless the Charge be to the Cedents behove : and we have no Exception , whether it be gratuitous or onerous ; but the most part were of opinion , that in gratuitous Assignations , the Cedents Oath should prove ; because an Assigney is but Procurator , in rem suam , and doth not proceed upon his own Right , but , utitur jure authoris : and therefore , albeit for Commerce , our Custom hath not allowed the Oath of the Cedent , in prejudice of the Assigney ; Yet the case in a gratuitous Assignation , hath neither been Debated nor decided ; and therefore in it , the Cedents should be sufficient , seing it cannot be presumed , that he who voluntarly gifted , will swear to his Assigneys prejudice ; and that truely the Cedent is Party , and the Assigney pursues but as Procurator , in rem suam . And seing we have no Law regulating this case , equity and expedience ought to rule it : but in equity no man can put his Debitor in a worse condition , without his consent , either as to the matter , or as to the manner of Probation ; and in expedience , the excluding of the Cedents Oath in this case , opens a way for Fraud , that after Debts are payed , they may be assigned , even freely , and the Debitor is excluded from his Probation of the payment .

The Lords before answer , Ordained the Assigneys Oath to be taken , whether Assignation was for a Cause onerous or not .

Bruces contra Earl of Mortoun● Eodem die .

BRuces pursues the Earl of Mortoun for payment of a Bond , who alleadged that the Bond was assigned by the Defunct , and the Assignation intimat , and a Decreet obtained against him thereupon . The Pursuers answered , that this was jus tertij to the Defender , who could not Dispute the Assigneys Right . The Defender answered , that it was exclusio juris agentis .

The Lords Repelled the Defense , as being super jure tertij , and decerned , but ordained Suspension to pass , without Caution or Consignation , that the Assigney may be called , and Dispute his Right .

Gideon Murray contra Iune 17. 1665.

GIdeon Murray having obtained Decreet against for certain Merchant Ware , wherein he was holden as confest , and thereafter reponed , and the Decreet turned in a Libel . The Receipt of the Goods was found probable , pro ut de jure , and was accordingly proven , and the Cause being concluded , and the Depositions advised . It was alleadged for the Defender , first , that he produced and instantly verified , that the Pursuer had granted him a Bond , after the furnishing of the Account of a greater sum , which must be presumed to have included satisfaction of the Accompt , 2ly . The Decreet was more then three year after the furnishing , and so was not probable by Witnesses ; but that manner of Probation was prescribed by the Act of Parliament . The Pursuer answered to the first , that both those Exceptions were competent and omitted , and now after Probation taken ; there was no reason to sustain that alleadgence , for after Litiscontestation , no new exceptions can be admitted , unless they be instantly verified and emergent , or at least new come to knowledge , as this is not , for it was obvious , being founded upon so known a Law , as to the Prescription : and as to the other , it is but a weak presumption , no way relevant , unless the posterior Bond had exprest to have been after Compt and Reckoning . The Defender answered , that the Lords might ex nobile officio , repone Parties to Defenses , instantly verified , after Litiscontestation● and albeit they ordinarly repone them when the Exceptions are emergent , or new come to knowledge : yet in other Cases , ex officio , they may , as when there is so pregnant a presumption concurring . 2ly Albeit Prescription hinder Pursuits active : Yet seing the Defender was Creditor by Bond , in a greater Sum. The Pursuer needed not pursue for the Accompt , quia intus habuit , and the other Party might have compensed upon the Bond ; and therefore , as in the Civil Law , in debitis naturalibus & non civilibus licet non dat actionem dat tamen exceptionem : so here the Pursuer may except upon account after three years .

The Lords found the presumption not Relevant , and found that the manner of Probation being prescribed , it could not be made use of , either by Action or Exception , albeit there was a compensation competent , yet it befell not , ipso jure , seing it was not liquid , but liquidable by the other Parties Oath . But as to reponing in this state of the Process , though many of the Lords were in the contrary , yet seing the exception was but a Prescription , which is but by positive Law , and odious , so that the Pursuer might as well have craved to be reponed against the Prescription , as the Defender against his omission of a palpable Defense , yet in respect of the Prescription , and that the Party was poor , the Lords Reponed .

Christian Braidie contra Laird of Fairny . Iune 21. 1665.

CHristian Braidy Relict of Iames Sword , having Inhibite George Glassfuird upon his Bond , pursues a Reduction of a Disposition , granted by George to the Laird of Fairny , of certain Lands , as being done after her Inhibition . Fairny having produced the Disposition , it bear to be Holograph , whereupon it was alleadged , that it was null by the Act of Parliament , requiring all Writs of importance to be subscribed before Witnesses ; and this Disposition wanted Witnesses . The Defender offered to prove it was Holograph . The Pursuer Replyed , that the question being de data , not that it was subscribed , but when it was subscribed , whether prior or posterior to the Inhibition , Witnesses could not be received , where the question was not against the granter of the Writ , or his heir , but against a third Party .

The Lords before answer , did appoint Witnesses to be examined , omni exceptione majores , who being now Examined , both Deponed that they saw the Disposition subscribed , and that it was long before the Inhibition .

It was then alleadged , that this being done , but before answer , it was intire to Discuss the Relevancy of the alleadgence , whether a Date might be instructed by Witnesses . 2ly . Albeit Witnesses omni exceptione majores were receivable , for such an effect , that these Witnesses were not such , the one being but a Town Officer , and the other Procuratorfiscal of a Sheriff Court , especially seing there were strong presumptions of fraud , as that nothing followed upon this Disposition , that it remained Clandestine for several years , that thereby the Disponer becoming Bankrupt , had excluded some of his Creditors , and preferred others , and that there was no penuria testium , seing both thir Witnesses assert they saw it subscribed , and the one Deponed , that he Dited it so , that their Names might easily have been insert ; and therefore it must be thought , it was done for some Fraudulent intent , as to be of an anterior Date to the Inhibition : and therefore in such a case , the Witnesses should be Persons of Fame , and known Reputation . It was answered , that the Witnesses adduced , were sufficient , seing they were above exception . Frst , because they were publickly called to the Bar , and received without any objection , so that now none is competent . 2ly . That there is no relevant Exception yet alleadged , for the being a Town Officer , is no legal Exception , neither to be of a mean condition , nor to be of a small Estate , if he were worth the Kings Unlaw and for the presumptions , they were but meer conjectures ; for it was free for a man to make his Disposition all with his own hand , or before Witnesses , and what his motives has been to do it , cannot be known , and so ought not to be presumed fraudulent , nam nullum vitium presumitur .

The Lords having fully considered this case , and having Debated , whether Witnesses at all were receivable to astruct the Date of a holograph Writ ; and also , whether these Witnesses adduced were sufficient : they found that in respect of the presumptions of Fraud , adduced these two Witnesses , were not sufficient to astruct without further Adminic●es , either by Witnesses of unquestionable Credit , or by Writ .

Procuratorfiscal of the Commissariot of Edinburgh contra Thomas Fairholm . Iune 23. 1665.

THomas Fairholm being Charged to give up an Inventar of the Goods and Gear pertaining to umquhil Alexander Deninstoun , whose Daughter he had married . He Suspends on this Reason , that the Defunct had granted a Disposition to one of his Daughters , of his hail moveable Goods , and sums of Money , so that he had nothing the time of his Death , and there needed no Confirmation , but he might lawfully possess , by vertue of his Disposition ; and there was no Law to force Persons in such a Case to Confirm , neither had it ever been sustained by the Lords . It was answered , that it was juris publici , to have the Goods of Defuncts Confirmed , that nearest of Kin , Children , Creditors , and Legatars , might know the condition thereof ; and this Defuncts moveables , albeit Disponed , yet not Delivered , remained in bonis defuncti , and so behoved to be Confirmed .

The Lords having Read the Disposition , and finding it to be general , omnium bonorum , that he had , or should have , the time of his Death , and there being nothing alleadged of any onerous Cause , or that it was before his sickness , albeit the Case was new , yet they found there was necessity of Confirmation in this Case : But if it had been a Disposition only of special things , as Bonds or Goods , or had been for any onerous Cause , or had been made in leidg pousti , and any symbolical Delivery , the Lords were not so clear in it , but resolved to hear such Cases in their own presence , when they should occur .

Collonel James Montgomery contra Wallace and Bouie . Iune 24. 1665.

THe Collonel as Heretor of the Miln of Tarboltoun , having pursued Bouie for abstracted Multures of Drumlie . It was alleadged for Bouie and Wallace of Garricks , who had Disponed to him , with warrandice absolvitor ; because Wallace and his authors were Infeft in the Milns and Multures , before the Pursuers Infeftment of the Miln . The Pursuer Replyed , that the Thirlage was Constitute by a Decreet in Anno. 1569. against the Tennents of Drumlie therein mentioned . The Defender answered ; First , that the Heretor was not called . 2ly . That it did not appear , that these Tennents did dwell in Drumlie Wallace , there being two Drumlies lying contigue , one called the Dinks Drumlie , the other called Drumlie Wallace . 3ly . That for any Possession , they offered them to prove that it was interrupted from time to time , by going to other Milns . The Lords having Ordained Witnesses to be Examined , hinc inde , whether the Tennents in the old Decreet , did possess Drumlie Wallace , or the Dinks Drumlie .

2ly . What Possession the Pursuer and his authors had . 3ly . What Interruptions the Defender and their authors had , many Witnesses being Examined , hinc inde . It was clear , that since the year 1653. when Capringtoun , the Pursuers author died , there was no Possession , and there was not above twenty eight years Possession , proven before , because there was no Witness of that age , that could have been of Discretion fourty years before the year 1653. but they found it proven , that the Persons mentionate in the old Decreet , or some of them were Possessors of Drumlie Wallace , and also there was a Tack produced , set by the Pursuers author to one of the Tennents of Drumlie , wherein it was provided , that the Tennent should relieve him of the Multures , and did not express what Miln .

The Lords found the old Decreet , although the Master was not called thereto , was not sufficient alone , yet with a long Possession thereafter , they found the same was sufficient to Constitute the astriction , and found the Interruptions by going to other Milns , were not so frequent and long , but that they might have been private and Clandestine , and the Probation during memory , before this contraversie was found to instruct anterior Possession , to compleat prescription .

Irwing contra Strachan . Eodem die .

ALexander Strachan as Assigney by Patrick Gordon , Charges Iohn Irving to make payment of a Bond of 500. merks , which being Suspended on this Reason , that the Cedent was Debitor to the Suspender in a greater sum , being oblieged for the grouth of certain Lands , of the Cropt 1633. and certain Bolls of Meal , as the Duty thereof . The Charger answered , that this was not liquidat against him , nor against his Cedent , before his Assignation . The Suspender answered , that it was liquidate before in so far as there was a Decreet of Liquidation obtained against the principal Party for whom the Cedent was Cautioner in the Contract , which must be sufficient against the Cautioner , albeit he was not called , because his obligation was but accessory , unless he could instruct Collusion ; and this Decreet of liquidation , proceeds upon Probation of Witnesses .

The Lords sustained the Compensation , and found the Liquidation sufficient , being against the Cautioner , though he was not called , and against this Assigney , seing the Decreet was before the Assignation .

Alexander Ferguson contra Steuart of Askeoge . Iune 27. 1665.

ALexander Ferguson having obtained a Presentation from the King , as one of the Prebenders of the Chapel-Royal , and thereupon a Decreet conform ; and having Charged Steuart of Askeoge , he gives in his special Charge , that the Paroch of Inchgarth , which is now annexed to Rothesay , belonged to his Pr●bendrie , as being a part of the Patrimony of the Chapel-Royal . It was answered for Askeoge , that he bruiks the Teinds by vertue of a Tack granted by Mr. Ninian Steuart Minister of Rothesay , whereof this Kirk , now annext is a part , and that there is nothing appears to instruct that these Teinds were ever Mortified to the Chapel-Royal , or that the Chapel-Royal was in Possession thereof . The Pursuer answered , that seing he had the Kings Gift , and Decreet conform , it was sufficient , unless the Defender would alleadge , that the said Mr. Ninian Steuart had a better Right , or was in Possession ; for the King being the Common Author , and Fountain of Rights , His Majesties Gift is sufficient against any that show not a better Right : and as for the Tack produced , it is null , being for nineteen years , without consent of the Patron . The Defender answered , that albeit both Parties were in acquirenda possessione ; yet decimae debentur Parocho ejusque praesumuntur nisi aliter appareat : and therefore unless these Teinds have been Transmitted from the Parson of the Paroch , by long Possession , or Mortification , they are his , and the Kings Gift alone , cannot take them from his ; but here the Parson has been in Possession , by Setting the Tack produced , which is sufficient , as to Possession , albeit it were null by Exception , as it is not ; and the nullity thereof is only competent to the Person of the granter , and not to this Pursuer .

The Lords found the Kings Gift and Decreet conform , with Institution and Collation , was not sufficient , unless either the Mortification of these Teinds , or the Prebenders Possession were instructed .

Mr. Walter Caut contra Iames Loch . Eodem die .

MR: Walter Caut having pursued Iames Loch and his Mother as Tutrix , for her Interest , for the Mails and Duties of some Appryzed Lands , and the quantities being referred to the Tutrix Oath , she refused to Depone , alleadging that she had forgotten the quantities , whereupon the Pursuer craved her to be holden as confest , upon the Rental given in by him , as if she had acknowledged the same .

The Lords found she could not be holden as confest , being not the Party , but Tutrix , but they found that she might be forced to Depone , by Horning and Caption , as other Witnesses .

Alexander Monteith contra Anderson . Iune 28. 1665.

THere being mutual Reductions betwixt Monteith and Anderson , the former having Right to an Appryzing , led in Anno 1619. and the other Mr. Iohn Anderson having adjudged in Anno 1656. Mr. Iohn Anderson insisted on this Reason , that Monteiths Apprizing proceeded was on a Sum of 5000. Merks , due by Iames Nisbet , the common debitor to Gilbert Gourlay , after that Iames was Rebel , at Mr. Iohn Andersons authors Instance : after which , no Bond granted , could prejudge the other Creditor , having used Diligence before , but the Bond is null by the Act of Parliament 1621. against Bankrupts . It was answered for Monteith , that that Act was only against Fraudulent Dispositions , between confident Persons , without Cause onerous● but here a Bond of borrowed Money , was onerous , and no man was thereby hindered to borrow Money . Anderson answered , that the Narrative of the Rebells Bond , bearing borrowed Money , could not instruct against a Creditor using prior Diligence .

This the Lords Repelled .

Anderson insisted upon this Reason , that Gourleys Bond was granted by Iames Nisbet , Iames and William Arnolds , all Conjunct Principals , without a Clause of Relief ; and this Bond was assigned by Gourley , with this express Provision , that no Execution should proceed thereupon , or upon the Bond , or Inhibition against the Arnolds : and so if the Assigney had been pursuing Iames Nisbit for all , he might have answered , that the Assigney had accepted his Assignation , with this provision , that Iames Nisbet could not use Execution against the other two Co-principals ; and therefore he being excluded from his Relief , could be only lyable for his third part , for he would not have subscribed the Bond , but upon consideration of his Relief . Monteith answered , that all the three principals being bound conjunctly and severally , the Creditor might renounce all Execution against two of them , and yet crave the whole from the third , and there was no more done in this case : and albeit there be no Clause of mutual relief exprest , yet hoc in est de natura rei : So that albeit Nisbet , by vertue of the Assignation , thought it had been transferred to him could not have pursued the two Arnots , yet by the obliegement of mutual Relief , implyed he might , not as Assigney , but as coreus debendi . Anderson answered , that if the Clause had born only a Provision , that no execution should pass upon the Assignation , it might have been consistant ; but it bears , that no Execution should pass upon the Assignation , or Bond.

The Lords found , that the Obliegement of mutual Relief , was implyed , where parties were bound conjunctly and severally , albeit not exprest , and that the Provision related only to the Bond , quantum ad creditorum , and did not restrict the implyed obliegement of the Co-principal , and therefore repelled this Reason also .

Robert Keill contra Iohn Seaton . Iune 28. 1665.

GEorge Seaton as principal , and the said Iohn Seaton his Cautioner having granted Bond to Robert Keill , and being Charged thereupon , both did suspend , and having alleadged payment , they succumbed , and were Decerned ; Iohn Suspends again , and raises Reduction upon minority and lesion . The Charger answered , First , That this Reason was competent and omitted in the former Decreet . 2ly . That proponing payment , did homologat the Debt , as if an Heir proponed payment , he would not be admitted fo renounce thereafter , or to deny the passive Title . The Suspender answered , that the former Process being in a Suspension , nothing was competent but what was instantly verified . and so minority and laesion was not competent . The Charger answered , that the Decreet of Registration was turned in a Libel , as being Registrat at the Assigneys Instance , not having Intimat during the Cedents Life , and at that time the Suspender had raised his Reduction , and so it was competent . The Suspender answered , that he was not oblieged to insist in his Reduction , and that the reasons thereof were not proper , even in an ordinary Action , but only by a Reduction . It was furder alleadged , that competent and omitted , took no place in Suspensions .

The Lords had no regard to the last alleadgence , but repelled the alleadgence upon homologation , and upon competent and omitted , in respect that minority and laesion is neither competent by way of Suspension or exception , but by way of Action of Reduction , wherein the Suspender was not oblieged to insist .

Iames Pitcairn contra Isobel Edgar . Iune 28. 1665.

UMquhil David Edgar by his Contract of Marriage , provided 4000. merks to be payed by him and his Heir of the first Marriage , which failling , any other his Heirs , to the Bairns of the second Marriage . The portion of the Daughters payable at their age of 18. and the Sons at 21. with five merks yearly of annualrent , after his death , for the Childrens subsistence . Isobel one of the Children , having married after her Fathers death , Iames Pitcairn her Husbands Creditor , pursues for the sum , as belonging to the Husband , jure mariti . It was answered , that the sum was Heretable , bearing Annualrent , and the Term of payment of the Annualrent was come before the marriage , and therefore it did not belong to the Husband , jure mariti . It was answered , that it was not properly an Annualrent , but an aliment of five percent , and that the Term of payment of the Annualrent , was after the Act of Parliament 1641. declaring such Bonds moveable : and albeit the Fisk and Relict be there excluded ; yet the jus mariti is not , but is only added by the Act 1661.

The Lords found , that seing this Provision bear Annualrent , whether more or less , and that the marriage was after the Term of payment , that it was Heretable , and fell not to the Husband , jure mariti , but only the Annualrents thereof , till his death , albeit there was no Contract of Marriage , nor a Tocher , and that the Husband had after the marriage given some provision to the Wife .

Mr. George Norvel contra Margaret Hunter . Iune 29. 1665.

MR. George Norvel having Apprized certain Lands , pursued for Mails and Duties against Margaret Hunter Possessor , she compeared , and proponed a Defense , that she stood Infeft in the Lands , by a Right from her Husband before the Appryzing , but for proving thereof , she only produced her Seasine .

Which the Lords found not to prove without a Warrant , and therefore Decerned .

She Suspends , and now produces her Contract of Marriage , as the Warrant of the Seasine , and offers to make Faith , that she had found it out since the Decreet : And farder alleadged , that through neglect of the Advocats , or Clerks , her Defense was not proponed , no ways acknowledging the quantities libelled , which she offers to prove to be exorbitant . It was answered , first , that praetextu instrumentorum de novo repertorum sententiae non sunt retractandae . 2ly . The Contract produced is not the Warrant of the Seasine , but a Bond granted for Implement of the Contract , and relating to the Seasine .

The Lords Reponed the Suspender , as to the circumduction of the Term , she making Faith , &c. and found the Contract of Marriage a sufficient Adminicle , to astruct the Seasine , seing it related to a Bond for the same Cause , but refused to Repone her as to the quantities .

Heretors of the Miln of Keithick contra Feuers . Eodem die .

THe Heritors of the Miln of Keithick , pursues certain Feuers for abstract Multures , who alleadged absolvitor , because they are Infeft , ab eodem authore , without astriction before the Pursuer . It was replyed the Pursuer is Infeft in this Miln , which is the Miln of the Barony , and per expressum in the Multures of the Lands in question ; and offers to prove , that there is a distinct in-sucken Multure , and out-sucken Multure , and that the Pursuer has been in Possession of the In-sucken Multure , these 40. years bygone , out of thir Lands . Duplyed the Defender offers him to prove , that the Possession has been Interrupted by his going to other Milns frequently , and without any challenge , or Sentence against them : And seing the coming to a Miln is but voluntatis , unless they enacted themselves so to do . And that the Pursuers Infeftment , though expresse , was latent and unknown to the Defender , all that is alleadged cannot infer an astriction .

The Lords Repelled the Duply , and thought that going to other Milns sometimes , as is ordinar in all Thirlage , was no sufficient Interruption , if they came ordinarly to this Miln , and payed in-sucken Multure , and therefore found the Reply relevant .

Richard Thorntoun contra William Miln . Eodem die .

THorntoun as Assigney by Patrick Seaton , having obtained Decreet before the Baillies of Edinburgh , against William Miln , he Suspends and alleadges Compensation , upon a Compt due by the Cedent , and a Ticket subjoyned by him , acknowledging the Compt to be due , subscribed before Witnesses , which must prove against this Assigney . It was answered , that the Ticket wanted a date , and so could not instruct it self to be anterior to the Assignation . It was replyed , that it was offered to be proven by the Witnesses insert , that it was truly subscribed before the Assignation .

Which the Lords sustained .

Stevenson contra Crawfoord . Iune 30. 1665.

STevinson being surrogat Executor dative , ad omissa , and having licence to pursue , insists against Crawford for a Debt of the Defuncts , alleadged omitted forth of the principal Testament . The Defense was , no Process , until the Executor Dative , ad omissa , be Confirmed ; but he cannot insist upon a Licence to pursue , because the principal Executor having made Faith , that the Inventar given up by him , is a full Inventar , any that crave to be Dative , ad omissa , are never admitted , but upon certain knowledge , and so must Confirm , and gets no Licence .

The Lords Repelled the Defense , especially seing the Pursuer was a Creditor .

Younger contra Iohnstoun . Eodem die .

AN Porteous Merchant in Edinburgh , having died Infeft in several Tenements in Edinburgh , above 50. years agoe , his Relict possessing them as Liferenter to this time . Shortly after his Death , one Patrick Porteous was Served nearest and lawful Heir to him , and thereupon Infeft , so that his Right came by progress to Iohnstoun , 40. years after ; Younger takes a Right from one Stephen Porteous , residenter in Polland , and gets him Served nearest Heir to the Defunct , and thereupon raises Reduction of the first Retour , and all the Infeftments following thereupon , Defense absolvitor , because the Defenders Author being Served Heir 40. years before the Pursuers Authors Service . It is prescribed , and likeways being Infeft 40. years since , all quarrel against , the Infeftment is prescribed : For the first Point , they condescend upon the second Act of Parliament , anent Prescription , of the Reduction of Retours , which bears , that if they be not pursued within 20. year , they shall never be quarrellable thereafter .

The Lords having considered this case at length , most part thought that the Retour could not prescrive by the first Act of Parliament , because it excepted Minors , and absents out of the Countrey , which they found not to be meaned of Absents , Reipublicae causa , but of any absence , nor that it fell not directly within the second Act , which bears expresly , Retours to have been reduced thereafter , should be only reduceable within twenty year . Others thought the Act might not be extended ; but bearing expresly , to the future , it could not be drawn back , and the Act of Prescription , 1617. meets not this case ; for if under the prescription of Actions , not pursued within fourty year , Serving of Persons to their Predecessors Heirs ; were comprehended , it would impede any Person to Serve themselves Heir to any Defunct , after fourty year , which is yet ordinar , and as to the Infefment , they fand , that it fell not in the Case of the Act of Parliament 1617. because it was not cled with Possession , in respect of the Liferenters life , whose possession behoved to be the possession of the true Heir of her Husband .

But the Lords did not decide it , seing the Case was rarely occuring , and Johnstouns Infeftment very old , unquarrelled ; and recomended the parties to agree .

Mr. James Nasmith contra Alexander Bower . Iuly 1. 1665.

THis being a concluded Cause , a Question arose , upon the Probation ; an accompt being produced between two Merchants , referred to Bowers Oath , that it was his hand writ , and yet resting : he deponed it was his hand writ , but not resting . The question arose , whether he behoved to condescend , and instruct how it was payed ; because , though the accompt written with his hand unsubscribed , was of it self sufficient Probation , the quality was not competent ; but he behoved to prove payment , it being alleadged that Merchants hand writ is sufficient : and that a Note upon the back of a Bond , or foot of a Compt , by the Debitors own hand writ , though not subscribed , has been found probative .

The Lords found , that if this had been a current Compt-book , it would have been probative , but having been only some feu scheduls of Paper , found it not probative , without subscription , albeit it was acknowledged by the Oath , to be the deponents hand writ .

John Boyd late Baillie in Edinburgh , contra Mr. William Kintore . Iuly 4. 1665.

THere being mutual Reductions , betwixt Mr. William Kintore and Iohn Boyd as to the Rights of the Lands of Moutlothian . Iohn Loyd deriving Right from Mr. Robert Logan , to whom Logan of Coatfield , with consent of Mr. Iames Raith , and who , for all Right he had to the Land of Mounlothian , disponed the same . And Mr. William Kintore having Appryzed upon a Decreet against Coatfield , as Cautioner for a Tutor ; and upon the Act of Caution inhibited . It was alleadged for Iohn Boyd , that whereas , by a former Interlocutor the day of he having objected against Kintor's Decreet , that thereby the Tutor , and his Cautioner were found lyable to uplift the Annualrent , of Sums that were in the hands of secure Creditors , which the Tutors had not uplifted , and to be lyable for Annualrent post finitam tutelam : now he produces a Decision , out of Dury , Iuly 18. 1629. Nasmith contra Nasmith , whereby it was found , that a Tutor having uplifted his Pupils Annualrent , though very considerable , was not lyable for any Annualrent therefore . 2ly . The reason of the Lords Decision then being , that albeit the Tutor was not lyable to uplift , and imploy the Annualrent every year , as it was due ; yet he was lyable , once in the Tutory : but it is offered to be proven , that he died two years before the Tutory expired : in which time , he might both have upl●fted this Annualrent , and re-imployed it : and therefore being prevented by death , he ought to be free , both of the Annualrent it self , and of the Annualrent thereof .

The Lords having considered the Decision , found it so short , and not to hold forth fully the Case , notwithstanding thereof , they adhered to the former Interlocutor , and found , that Tutors are oblidged to uplift , and once in their Tutory , to re-imploy the Annualrents of the Pupil ; albeit the Debitor were secure , but if the Case had been of Rents of Lands , the Lords thought these ought to have been uplifted yearly , and to be imployed on Annualrent ; but they found the second alleadgance Relevant , not to free the Tutor of payment of the Annualrent it self , though in secure hands , because he ought to have uplifted it , and had it ready , but found him free of the Annualrent thereof , there being a competent time , in which he might have given it forth , before the Pupillarity past , if he had not been prevented by death ; but ordained Kintore to assigne to Boyd the Right of the Annualrent , that he might recover the same from the Debitors .

It was further alleadged for Kintore , that Coatfield the common Author , his Disposition to Mr. Robert Logan , Iohn Boyds Author , was after Kintors Authors Inhibition . It was answered , that albeit the Disposition by Coatfield to Mr. Robert Logan be posterior , yet Mr. Iames Raith had a Disposition of the same Lands anterior ; who , by consenting , and joynt Disponing to Mr. Robert Logan , the Lands of Mountlothian ; did in effect constitute him Assigney to his anterior Disposition , which is now accomplished by the Adjudication , adjudging the Right of the Lands from Coatfild● Heirs , and thereupon Infeftment has followed , by precepts out of the Chancellary , for supplying Coatfilds procuratory of Resignation , which took no effect in his life . It was answered , that Mr. Iames Raiths Right being but a Wodset , his consent cannot import the transmitting of his Right , albeit he joyntly Dispond : seing he transmits no part of the Sums in the Wodset ; and therefore does no more in effect , but restrict his Wodset to the remanent Lands : and consents , that Coatfield should Dispone these Lands to Mr. Robert Logan , and so it imports but non repugnantiam , and a Provision that he nor his Successor should not quarrel their Right upon his anterior Right .

Which the Lords sustained .

Mr. Walter Innes contra George Wilson . Iuly 4. 1665.

INnes of Auchbuncart , being pursued as Heir to his Father , upon all the passive Titles alleadged that his Father was denounced Rebel , and his Escheat gifted , and the Defender had Right , or warrand from the Donatar before intenting of this Cause . The Pursuer answered , non relevat , except the Gift had been declared , and that the Defenders Intromission had been after Declarator , and the warrand , but the Intromission being anterior , cannot be purged , ex post facto . The Defender answered , that as the confirmation of an Executor , excluds vitious Intromission , had before the Confirmation ante motam litem : so the Gift and Warrand , though without Declarator , purges anterior Intromission , ante motam litem .

Which the Lords found relevant .

Commissar of S. Andrews contra Boussi . Iuly 4. 1665.

THe Commissar of St. Andrews having charged Hay of Boussi to Confirm his Fathers Testament , he Suspends , and alleadges his Father had Disponed all his Moveable Goods and Gear to him , and so nihil habuit in bonis , and offered him to prove that he was in possession of the whole Goods before his Death . It was answered , the Disposition was but simulat , in so far as it contained a power to the Disponer , to dispose upon any part of his Moveables , during all the days of his life , and if such a Disposition were sustained , there should never be another Testament confirmed ; and all people would follow this course : which would not only exclude the Quot , but keep the Means of Defuncts in obs●uro .

The Lords , in respect of the generality of the Disposition , and the Clause foresaid , repelled the Reason .

George Dumbar contra Earl of Dundie . July 5. 1665.

GEorge Dumbar having charged the Earl of Dundie as Cautioner for the Laird of Craig to pay 8000 merks of Tochar , provided by Craigs Sisters Contract of Marriage , the Earl of Dundie Suspends on this Reason , that he is but lyable for his half , because they were not bound conjunctly and severally . The Charger answered , that he was bound as Cautioner , and full Debitor , which was sufficient .

Which the Lords sustained

Mackie contra Stewart . Iuly 5. 1665.

JAmes Mackie , as Assigney by Agnes Schaw , conveens Stewart of Mains as as representing his Father , who was Cautioner for imploying a Sum of Money to her in Liferent . It was answered , First , the Contract is prescribed . 2ly . It bears these words that the Tochar being payed : The Principal and Cautioner obligded them to imploy it upon security ; so that the obligation is conditional . And if it be not instructed , that the Tochar was payed , the Defender is not lyable . The Pursuer answered to the first , contra non valentem agere , non currit prescriptio ; she being a Wife cled with a Husband her not pursuing her own Husband , or his Cautioner , cannot prescrive her Right , To the second , The prescription is run against the Husband , and his Cautioner , who were free to have pursued for the Tochar , and did not ; and after 40. years she cannot be put to instruct , that the Tochar was payed , albeit she had been Debitor therefore her self ; much more , when another is Debitor .

The Lords found both these replyes relevant .

Mr. John Colvil contra The Lord Balmirino . Iuly 6. 1665.

MR. Iohn Colvil , as Executor confirmed to Umquhil Mr. Iohn Colvil , Minister at Kirknewtoun , pursues the Lord Balmirino , for the Stipend , the year 1663. and for the profit of the Gleib . The Defender alleadged absolvitor ; because payment is made bona fide to the intrant , before intenting of this Cause . It was answered , it could not be payed bona fide , because the Minister died after Ianuary 1663. Which being so notour to my Lord Balmirino , to whom the most of the Paroch belongs ; and he being so near it , he ought to have made payment to no other of that year , which belonged to the Defunct Minister , as his Ann , extending to the whole years , quia annus inchoatus habe●ur pro completo ; as to the Ann: so that if the Minister lived till the first of Ianuary , he has that whole year . The Defender answered , that an Ann is only due to the Wife , and Bairns of the Defunct Minister , and this Minister had none . 2ly . That the point is so dubious in Law , he knew not that it would be his , unless , he had lived till Whitsunday . 3ly . The benefit of the Gleib must be the intrants , and falls not under the Ann , as a part of the Stipend , no more then the Manss .

The Lords repelled the Defense , as to the Stipend , and found it belonged to the Executor , as nearest of kin , and that the Defunct surviving the first of January , gave him that whole year , but found that the Gleib did not fall under the Ann nor did belong to the Defunct , but only the Crop thereof ; if it were sowen by himself , before he dyed .

Earl of Argyl contra Mcdougalls of Dumolich and Ziner . Iuly 14. 1665.

THe Earl of Argyl having raised a double poynding , in name of the Tennents of certain Lands , calling himself , on the one part , and Mcdougals on the other , as both claming right to the Mails and Duties ; Mcdougals produce a Decreet of Parliament , whereby they having pursued the late Marquess of Argyl ; alleadging , that he had obtained the Right and Possession of these by Force , and Oppression during the troubles , whereupon his Rights were reduced , and they restored to their Possession . The Earl of Argyl produced his Seasine , upon the Kings Gift , with two Dispositions of these Lands , granted to his Father , one in Anno 1632. and another in Anno 1639. And thereupon craved to be preferred . Mcdougals produced a disclamation of the Process , in name of the Tennents , and alleadged no Process ; because the Tennents , who were pursuers , past from the pursute . It was answered , that their names was but used , that the Parties might discusse their Rights , and so they could not disclame it , being ordinar to use Tennents names in double poyndings . It was answered , that there was no Reason , that Tennants should be forced to make use of their names , to intervert their Masters Possession .

The Lords found , that the Tennants could not disclame ; especially the possession being but late , by Decreet of Parliament , and was contraverse .

It was further alleadged for Mcdougals , that there was nothing particularly lybelled , as Rents due by the Tennants ; and therefore there could be no sentence .

The Lords repelled the alleadgeance , and found the Sentence might be in general , to be answered , of the Mails and Duties , as is ordinar in Decreets conform .

It was further alleadged for Mcdougals , that seing this double poynding was in effect , now used as a Declarator of Right , no Process thereupon ; because in all Declarators , Law allows the Defenders 21 days upon the first Summons , and six on the next , that they may prepare , and produce their Rights ; and here there is but one Summons on 6 days . 2ly . No Process , because Mcdougals being founded upon a Decreet of Parliament ; my Lord Argyl produces no Title , but only a Seasine not expressing these Lands . 3ly . Decreets , especially of Parliament , cannot be taken away , but by Reduction , and not thus summarly . It was answered , that my Lord Argyl insisted here for taking away the pretended Decreet , in Parliament , and restoring the King , and Donatar to the possession of the Lands : so that in effect it is not so much a Declarator of a Right , as a possessory Judgement . And as for the Title , it is sufficient to produce a Siasine , seing in the Decreet of Parliament , My Lord Argyls Right and possession is quarrelled as wrong , and therefore was acknowledged to have been , and seing Mcdougals produces no other Right , and the King's Advocat concurres ; and if need beis , my Lord Argyl offers to prove the Lands in question , are parts and pertinents of the Lordship of Lorn , exprest in his Seasine : and albeit this be pretended to be a Decreet of Parliament , yet by Sentence of Parliament since , it is remitted to the Lords , and is in it self visibly null , as having been intented against my Lord Argyl , and pronounced after his death , and Forefaulture without calling the Kings Officers .

The Lords repelled these Defenses , in respect of the replyes .

James Mathison contra Harie Gib . Eodem die .

JAmes Mathison , having obtained a Decreet before the Commissars of Edinburgh , against Gib , he Suspends , and alleadges it was not a cause consistorial , being a bargain of Victual , and that it was not probable any other ways but by his Oath , now after 12. or 13. years . In respect of the Act of Parliament , anent house Mails , and others , which comprehens this case .

The Lords repelled the alleadgeance , and found that bargain of Victual not comprehended under that Act of Parli●ment .

James Borthwick contra Janet Skeen Iuly 15. 1665.

JAmes Borthwick , being Infeft in the Lands of Oversneip , pursues Reduction , and Removing against Ianet Skeen the Liferentrix . It was alleadged , that the Feer being minor , non tenetur placitare super haereditate paterna , And for the Liferenter , that the minor was oblidged to warrand her Liferent-right , and her Possession was the minors Possession ; so that if her Right were reduced , and she removed , the priviledge of the minor were altogether overthrown . It was answered , That the priviledge was personal , and stricti juris , and was to be extended to Majors ; and as for the warrandice , it was never sustained as a ground , to exclude a Reduction , because warrandice would be inferred against a Minor , which is but a personal obligement , and not haereditas .

The Lords repelled the alleadgance for the Liferenter . Who alleadged further , that her Right being Reduced , the Fee was absolute in the person of the Minor , who would not suffer the Liferentrix to be removed , but she did possesse by the Minors tollerance .

It was answered , that the Pursuers Reduction , behoved to accresce to him and his Right , and not to the Minors Right , that he behoved to enter to the Liferenters possession , which would not prejudge the Minor ; for if the Liferenter dyed during the Minors Minoritie , he might return to the possession in the same way , as if the Liferenter were in possession ; but as for the tollerance , now the Liferenter having entered by the Liferent Right , and it being reduced in favours of the Pursuer , as the Minor could not thereby attain possession ; so neither can he give tollerance to defend the Liferenter .

The Lords repelled also this second Defense .

Patrick Urquhart contra Thomas Blair . Eodem die .

PAtrick Vrquhart having charged Thomas Blair , upon a Bond granted by him and William Young , as co-principalls , Thomas Blair Suspends , and alleadges , that William Young has payed the whole . It was answered , that this was not instructed , and therefore not receivable , being in a Suspension : It was answered , that though in a Suspension , yet a terme is always granted , where it is another mans Right . It was answered , that the Suspender is in hazard of breaking , and has not found a good sufficient Cautioner , and therefore if he get delay , he ought to give better Caution : It was answered , that he had found Caution who was accepted , and he was oblidged to do no more .

The Lords ordained him to make faith de calumnia upon the Reason , but would not put him to find new Caution .

Robert Scot contra Silvertounhill . Eodem die .

RObert Scot pursuing a Poynding of the Ground , for an Annualrent , Silvertounhill compeared , and alleadged possession , by vertue of a prior Annualrent , and that the Pursuers Infeftment was base , not cled with Possession . For proving Possession , Robert Scot produced discharges granted by the Annualrenter to the Hetetor for the time , for himself , and in name of the Tenents , which had Witnesses , But designed not the Writers name , and being alleadged to be null for want thereof .

The Lords ordained Scot to condescend upon the writer of the discharge in respect the Annualrent did extend to 80. lib. and it did prefer one Annualrent to another .

Johnstoun of Scheens contra Alexander Brown Eodem die .

JOhnstoun being pursued to remove from certain Lands . It was alleadged , no Process ; because all Parties having interest , were not called , viz. The Defenders wife , in respect he possest , but by her Right jure mariti , and she was not warned .

Which the Lords found relevant .

Mr. Thomas Johnstoun contra Mcgregor . Iuly 19. 1665.

MR. Thomas Iohnstoun having obtained the Gift of Bastardie of one Mcgregor , and declared in general ; insists now , in his special Declarator against Patrick Mcgregor , for 2000 merks belonging to the Bastard . It was alleadged absolvitor ; because there was a Gift granted in the Usurpers time , and declared , whereupon the Defender had transacted with the Donatar , and satisfied him , and obtained his discharge . It was answered , non relevat , because in the Act of Parliament , confirming Judicial Precedor , under the Usurpers , Gifts of Bastardry , and all following thereupon , are excepted : so that the Defender , had no Defense in the point of Right , and as for his bona fides , it only relevant for what was truly payed , but not for what was in his hand .

The Lords repelled the Defense , in respect of the Reply .

Mr. James Winerham conra Lady Idingtoun . Iuly 19. 1665.

MR. Iames Winerham pursues the Lady Idingtoun personally , for Feu-Duties out of certain Lands Liferented by her . It was answered , non relevat , for any years before the Ladies possession , because Feu Duties may be Pursued , either really , by poynding of the Ground , or personally , against the Intrometters with their profits ; and because the Feu-duties are as the yearly Rent ; yet that cannot be extended further , than during the years the Possessors intrometted . The Pursuer answered , that the whole profits being lyable , for the whole Feu-duties , whether of that , or preceeding years , the Lady was lyable , not only for the years of her possession , but for bygones .

The Lords repelled the alleadgeance , and found the Lady lyable personally , only for the years of her possession .

Ryce Gum contra Mckewn . Eodem die .

RYce Gum having obtained Decreet before the Baillies of the Cannongate , against Mckewn , to repone him to an Assignation , he Suspends , on this Reason , that the Decreet was null , wanting Probation , proceeding only upon the alleadged judicial confession of the Suspender , without proponing any defense , acknowledging the Lybel , and succumbing in the Defense but simply confessing the Lybel , which cannot prove against him , being under the hand of an Clerk of an Inferiour Court only , without the Suspenders subscription or oath .

Which the Lords found relevant .

Mr. Robert Dickson contra Mr. Mark Ker. Iuly 21 1665.

THere being a competition betwixt Mr. Robert Dickson , and Mr. Mark Ker , as both having the Gift of the Escheat of Hoom of Garden both past the Seal in one day ; Mr. Robert Dickson had past in Exchequer long before , and his Summons was raised two dayes before his Gift was Sealed , and so was not a Regular Diligence . He alleadges , Mr. Mark Kers was more irregular , because , being a Declarator , his Summons was not upon 21. days . It was answered , the Summons was priviledged . It was Replyed , that the priviledge was granted periculo petentis upon a common Bill , which passes without observation .

The Lords considering , that their Gifts were both past in one day , and that there diligence was so near , conjoyned the Gift , and declared them joyntly .

Spreul contra Miller . Eodem die .

BArbara Miller having left two Legaces , and named William Wilson her Executor , and universal Legatar , he nominats his Wife , and one Giffin his Executors ; Spreul having right to the two Legacies , pursues the Relict , and Executors of Wilson , who was Executor to Barbara Miller , for payment of the Legacies . He alleadges absolvitor , because the first Testament was not Execute . 2ly . The special Legacies must be abated proportionally with the general Legacies :

The Lords repelled both the Defenses , and found the general Legacie not to come in pari passu with the special , and found that the Executor of the Executor was lyable , unless he could alleadge , that the first Executor had done diligence , and had not recovered , or was exhausted .

Laird of Ludquharn contra Laird of Gight . Iuly 21. 1665.

THe Laird of Gight having Married Ludquharns Daughter , who remained in her Fathers Family , and brought forth a Bairn to Gight , and dyed ; Ludquharn , the Childs Guid-sir keeped her in his Family several years , and now pursues Gight for her Aliment , who alleadged absovitor , because the Pursuer never having required a promise of this Aliment , nor desired the Defender to take home his Daughter , It must be presumed , that the Pursuer did it animo donandi , for his own Oye .

The Lords found this Defense relevant , for all years preceeding the intenting of this Cause .

Thomas Rew contra Viscount of Stormont . Iuly 22. 1665.

THomas Rew pursues a Reduction of a Decreet obtained by the Viscount of Stormont , who alleadged no Process , because the Citation was not within year and day of the Summons , the warrant thereof , which bears , to cite the Defenders to compear the day of next to come .

The Lords found the Defense relevant .

Johnstoun contra Tennents of Achincorse . Eodem die .

JOhnstoun having Appryzed the Lands of Achincorse , and charged the Lord Dumfries his Superiour , to receive him , pursues the Tennents thereof for Mails and Duties . Compearance is made for the Lord Dumfries , Superiour , who alleadged no Process , till a years Rent were payed to him , as Superiour . 2ly , It is offered to be proven that Achincorse the Vassal was in nonentrie , or the Liferent Escheat fallen by his Rebellion , and therefore the Superiour ought to be preferred . The Pursuer answered to the first , that seing it was the Superiours fault , he received not him upon the charge , albeit he offered to receive him now , he could not have a years Rent , till the Pursuer insisted to be infeft . To the second , the Defense ought to be Repelled , seing there was no Declarator intentit . The Defender answered , that seing he was to change his Vassal , and the Appryzer sought possession , before he had access , he behoved to pay the years Rent , seing by the Appryzing , and the charge , the Superiour will be excluded from his Casualities : To the second , the Superiour being acknowledged by the charge he might crave the Casualities of the Superiority , by way of competition , and offered to produce the Horning , cum processu .

The Lords sustained the first Defense , but not the second , seing there was no Horning produced , nor Declarator intentit .

Janet Brotherstones contra Ogil and Orrocks . Iuly 26. 1665.

JAnet Brotherstones , by her Contract of Marriage , declaring , that she had in Money , Bonds and Goods 4000 merks , is provided to all the conquest , and to the Liferent of the whole Means and Moveables , she pursues her Husbands Heirs , for implement , who alleadged absolvitor , because she has not fulfilled her part of the Contract and instructs not that she delivered to her Husband 4000. merks in worth or wair . It was answered , it must be presumed , that she has done it after so long time , seing all she had came in the Possession of her Husband .

The Lords found the presumption not sufficient , but before answer , ordained the pursuer to condescend by Witnesses , or otherwise , how she would prove , that she had that means the time of the Marriage , and ordained these to be examined ex officio .

Thomas Kennedie of Kirkhill contra Agnew of Lochnaw . Iuly 27. 1665.

KEnnedie of Kirkhill , as Assigney by Thomas Hay of Park , to a Bond of 1000 lib. granted by Andrew Agnew younger of Lochnaw , charges him thereupon , who Suspends , and raises Reduction on this Reason , that the Bond was granted at the time of his Contract of Marriage , clandestinelie , without the knowledge of his Father , who was Contracter , contra pacta dotalia , & contra bonos mores . The Defender answered , that he having given a very great Tochar , viz. 10000. lib. above his Estate , which is all payed to his Good Sons Father , he did declare , that he was not able to give so much , and thereupon he got this Bond , not to have Execution , till after his death , which he might lawfully do , having given a Tochar suitable to the condition of the Receiver , and above the condition of the Giver .

The Lords repelled the Reason , in respect of the Answer .

This was thereafter stopt to be further heard .

Lilias Hamiltoun contra Her Tennents . Eodem die .

LIlias Hamiltoun being Infeft by her Husband , in Liferent , pursues her Tennents ; compearance is made for their present Master , who alleadged , that her Husbands Right was only a Wodset granted by him ; and that he had used an Order , and had Redeemed the Wodset , and payed the money to the Pursuers Husband : and neither knew , nor was oblidged to know the Pursuers base Infeftment from her Husband , the Wodsetter , which had never any other Possession , but the Husbands . It was answered , that the Pursuers Seasine being Registrate , he was oblidged to know the same , as well as if it had been an Inhibition , especially , seing there was no Process of Declarator , in which case , all Parties having intress , should have been called at the Mercat Cross , but a voluntar Redemption ; albeit upon an Order .

The Lords sustained the Defense , notwithstanding of the Reply .

Adam Rae contra Heretors of Clackmannan . Eodem die .

UMquhile Colonel Rae , having advanced Victual to the Armie , at Leith in Anno 1650. And gotten an Assignation to the Maintenance of August and September , from Sir Iohn Smith , then General Commissar , in satisfaction thereof , pursues the Heretors of Clackmannan , for their proportions who alleadged , that by their quartering of the Kings Armie , their whole Rents Anno 1650. was exhausted . It was answered , that it was not our that the exhausting , was after the Battel of Dumbar , which was upon the third of September , 1650. And so could not extend to the maintenance of August and September , which was Assigned before , for so onerous a cause .

The Lords repelled the Defense , in respect of the Reply .

Captain Muire contra Frazer . Iuly 27. 1665.

CAptain Muir , having obtained Decreet against the Heir of Colonel Hugh Frazer for 1000 merks , before the Commissioners , in Anno 1658. Charges thereupon . They Suspend , and raise Reduction , on this Reason ; that the Decreet was null without probation , proceeding only upon a Copy , of an obligation alleadged taken out of the Register , by one William Baily , who keeped the same at London , which could not prove , not being under the hand of the Clerk Register , or his Deputes , which being proponed in the Decreet , was unjustly repelled . The Pursuer answered , First , There was no review raised within a year , conform to the Act of Parliament , and so the Decreet was not quarrellable upon iniquity , 2ly . Bailies Oath was taken by Commission , that the Extract was subscribed by him . 3ly . The Defender proponed a Defense of payment , and so acknowledged the Debt Debt . It was answered , that the Suspenders were , and are minors ; and in the Act of Parliament , there is an exception of Minors , that they may Reduce these Decreets within a year after their Majority . 2ly . They ought to be reponed against their proponing of payment , being Minors , and as to Bailies Oath , neither his Subscription , nor Oath can make a probative Extract ; unless the new Extract were now produced ; seing the Registers are returned . The Chargers answered , that if the Suspender would alleadge , that any Book of the Register containing , Writs Registrat about the time of this Extract , were extant , and returned relevat : but it is known , that several of the Books are lost , and this amongst the rest .

The Lords would not sustain the Decreet upon Bailies extract , simplie neither did they put the Charger to the proving of a tenor , but allowed the charger to condescend upon the way of his Instruction , that such a Bond was truly subscribed by the Witnesses , insent , or otherwayes , and ordained the Witnesses to be examined .

Adam Rae contra Heritors of Clackmannan . Iuly 28. 1665.

IN the Cause of Adam Rae mentioned yesterday , some of the Heretors alleadged absolvitor ; because they were singular Successors , and by the Act of Parliament , for the Old Maintenance , Singular Successors were excepted .

The Lords repelled this alleadgeance , and found , that exception only to be extended to the maintenance contained in that Act.

Bessie Scot contra Somervail . Eodem die .

BEssie Scot having charged Somervail , who was Cautioner in an Suspension , for payment of an Sum of Money contained in a Bond Suspended . He Suspends on this Reason ; That the Money was consigned in the hands of Mr. George Gibson , Clerk to the Bills , for the time . It was answered , that Mr. George Gibson was now out of Office , and insolvent , and the Consignation behoved to be upon the peril of the Consigner . It was answered , that the the Consignation must be upon the peril of that Partie , who was the cause of Consignation , and that was the Charger ; in so far as it was instructed by an Instrument produced , that the Suspender offered the Annualrent , and so much of the Penaltie as the Charger would have Declared upon her Oath , that she had truely payed , which she refused , unless the whole Penaltie were payed , whereupon he consigned , through her Fault .

The Lords sustained the Reason , and ordained the Noltar , and Witnesses to depon upon the Truth of the Instrument , for Instructing thereof .

Dowglas contra Cowan and Russel . Iuly 29. 1665.

PEter Russel , by his Ticket , acknowledged him to have received a certain Quantity of Wine , and oblidged him to make payment thereof , according to the Condition agreed upon , Dowglas being Assigned to the Ticket , insists for the ordinary Price of Wine . It was alleadged no Process , for the ordinar price of Wine , but only for the price agreed on , which behoved to be condescended on , and proven by the Debitors Oath , being above an hundred pounds . It was answered , that , seing these Conditions were not adjected ; the ordinary price was to be understood , unless it were proven by the Debitor , what they were , &c. that they differred from the common Price .

The Lords found , that the Debitor , by his Ticket , behoved to condescend on the Conditions , qui potuit legem apertius dicere , and not the Pursuer ; but they found Witnesses might prove the condition .

Heretors of Don contra Town of Aberdeen . Eodem die .

THis day Report being made , concerning the Cruives of Don. The Lords found , that there was no necessity to keep alwayes open a mid-stream , notwithstanding , the several Acts of Parliament made thereanent ; which upon enquiry through the Kingdom , they found to be in desuetude , and especially in these Cruives , to be made past memory , with Saturndayes stop only , and ordained the distance of the Hecks to be three Inch Scots measure , whereof 27. make an Elle , vide supra .

Lady Knapeirn contra Sir Robert Farquhuar November 9. 1665.

SIr Robert Farquhar , being Infeft in certain Lands , by the Laird of Knapeirn , with his Ladies consent , pursues the Tennents , and obtains Decreet for Mails and Duties . The Lady pursues Reduction , on these Reasons , that she stood Infeft , and in possession eleven years after her Husbands death , bona fide , without any persuit ; and so being in judicio possessorio , she was tuta re●●ptione . It was answered , that the benefit of a possessorie Judgement was never granted to any partie , in prejudice of these to whom that Party had Disponed , or consented to a Disposition , which includes an Obligation to possesse them ; nor can they be in bona fide contrair their own consent , and deed , to possesse .

The Lords repelled the Defense , in respect of the Reply . It was further alleadged , that Sir Robert , by a Declarator produced , had acknowledged nothing of that Wodset due , but what was contained in a fitted accompt written by him , and subscribed by both Parties , which did innovat the Wodset , and Sir Robert could have no Right thereby , but by this Compt , which only could touch the Husband . Secondly , Albeit the Wodset did stand , in so far as the Compt extends , yet Sir Robert ought to have no benefit by the Wodset , till he produce the Accompt . It was answered , that the Accompt was never in his custodie , but given to Knaperin , in whose favours it was introduced ; and seing it was clear , that his Wodset was not extinct , but restricted , the Pursuer behoved to condescend in quantum , and to prove it , alliganti incumbit probatio .

The Lords ordained , and appointed Sir Roberts Oath to be taken , before answer on his having the compt , and yet they sound , that he ought to produce 〈◊〉 , but the Interlocutor was stopt the next day .

Teilzifeir contra Geddes . November 11. 1665.

MArion Geddes , having granted to Samuel Veatch , a blank Bond of 2000. merks , Tailzifer being Creditor to Samuel Veatch ; Arrests all Sums in her hand , owing to Samuel : she depones , that she was no wayes Debitor to Samuel , but by a Bond given Blank , in the Creditors name , and that she knew not whose name is filled up therein : compearance is made for whose name is filled up in the Bond , and he alleadges , he ought to be preferred to the Arrester , because he offers him to prove his name was filled up in the Bond , and that before the Arrestment , the Bond was Registrate in his name , and that before the said Marion deponed , he had used Inhibition thereupon , which she could not but have known . It was answered , for the Arrester , that he ought to be preferred , because , albeit the Bond was blank ab initio , yet in rei veritate Samuel Veatch was Creditor , and so he behoved to be Legaily denuded , which could not be done by filling up any other persons name , without intimation thereof , made to the Debitor ; for seing a Direct Assignation was not valid , without an Intimation , much less should this indirect way by the Creditors filling up another name than his own in the Blank ; which is in effect an Assignation : And seing the Lords have already found , that the Debitor acknowledging , that he gave a blank Bond to any person , and knows not whose name is filled up in it , is lyable to any Arrester , albeit he be under hazard to pay again to that person who has his Bord : in justice it followeth , that such Bonds must be intimat , otherwayes it will unavoidably infer double payment . It was answered , that the Law requires Intimation to Assignation as a necessary Solemnity , but has not required the same to the filling up of a Blank-bond , the case whereof is not alike with an Assignation , because , where the Bond is blank , the Debitor cannot pay any thing bona fide , safely till he see the Bond filled up ; but where he knows the name filled up , he may pay bona fide to the Cedent , not knowing of the Assignation . It was answered , that the Law did require to all Assignations , Intimation , but the Case of Blank-bonds was but a late invention , to defraud Creditors , that it might not be known who was Creditor : but seing it is truly an Assignation it deserves no favour more than a Direct Assignation ; and so should have as much Solemnity .

The Lords preferred the Arrester , but because the Case was a leading Case , and new , after a second Interl●cutor adhering , they allowed the Advocats to offer by B●ll any new Reasons , and particularly , if it could be alleadged , that the Debitor granter of the Blank-bond , had before the Arrestment , seen the Blank-bond filled up , and so had deponed , or could depone , that the time of the Arrestment the Debitor saw himself to be Debitor to another person , filled up in the Blank , than he for whose Debt it was Arrested , for in that Case , as the first Creditor that got the Blank-bond might have caused his Debitor retire that Bond , and give a new one , before any Arrestment , so the showing of the filling up of the Blank was equivalent , especially , if the Debt could be proven no otherwayes but by the De●●tors Oath .

This Case was not debated , nor was the hazard considered , that the Debitors Oath might prefer one Partie to another ; nor was the case alike to a renewed Bond : because a renewed Bond would bear a new date , and different Witnesses , that saw the new Creditors name filled up , and would not depend upon the single Testimony of the Debitor .

Barbara Skeen , and Mr. David Thors contra Sir Andrew Ramsay . November 14. 1665.

BArbara Skeen being provided by her Contract of Marriage with Umquhile David Ramsay , to 18 Chalders of Victual , or 1800 merks , her Husband having acquired the Lands of Grange Muire , worth 10 Chalders of Victnal ; she pursues Sir Andrew Ramsay , as Heir to his Brother , to make her up the superplus . The Defender alleadged absolvitor ; because he offered him to prove , that the said Barbara stood Infeft in the Lands of Grange Muire , upon a Bond granted by her Husband , which Bond bears : In full satisfaction of the Contract of Marriage , by Vertue of which Infeftment , she having no other Right , she had possest five or six years after her Husbands death , and thereby had accepted that Right , and had Homologat the same . It was replyed , that the Bond being a Deed of the Husbands a Clause foisted thereinto , so far to the detrement of his Wife , and the Infeftment not being taken by her , but by an Acturney , her possession cannot import Homologation thereof , because Homologation being a Ta●ite , consent is not inferred , but where the Homologator cannot but know the Right Homologat , and can do the Deeds of Homologation no otherwayes , but by vertue of that Right , neither of which holds here , because the personal oblidgement in the Contract , was a ground for the Wife to have continued her Husbands possession , and would have excluded his Heirs , if they had quarrelled ; and not only the Clause must be presumed to be without the Womans knowledge , but the Bond it self , and the Infeftment especially , considering the simplicity of Wives , and their confidence in their Husbands , who , if this were sustained , would easily deceive them . It was duplyed for the Defender , that he offers him to prove , that the Pursuer did not continue her husbands possession , but did begin Possession , her Husband being never in possession before his death , and that she set two several Tacks , expresly as Liferenter , and the third , with consent of Mr. David Thors her Husband being an Advocat ; and so she cannot be presumed to have been ignorant , but on the contraire she must bepresumed to have known the Right , and could never denominat her self Liferentrix , by a personal oblidgement , to Infeft her in so much Victual and Money , without mentioning any Land in particular , and her acceptance , though to her detriment , may be the more easily presumed , because she had two Children surviving her Husband , in whose favour the Restriction did accresce , and her Husband did secure her in all that he had , but now ex post facto , the Children being dead , she could not return upon Sir Andrew , her Husbands Brother , contrare to her Homologation .

The Lords sustained the Defense , and Duply ; for they thought , albeit ignorance might be presumed in a Wife , de recente & intra annum luctus , yet she having continued for so many years , and doing so many deeds , expresly as Liferenter , and that the Bond was not clandistinely , lying by her Husband , but in a third Parties hand , who had taken the Infeftment , they thought , in that case , ignorance was not to be presumed , but knowledge .

Wat contra Russel . November 16. 1665.

JEan Wat being provided by her Contract of Marriage to certain Lands , and Infeft therein ; the Contract contains this Clause , that she shall Aliment , the Bairns of the Marriage , after the Fathers death , and in case she marrie again , she shall restrict her self to six hundred merks , and the superplus shal remain to the Bairns , for their Aliment : hereupon she pursues Robert Russel , and the other Tennents , for the Mails and Duties of the hail Liferent Lands , who alleadged . 1. That she was restricted to six hundred merks , and could crave no more , especially now being married to a second Husband : compearance was also made , for the only Child of the Marriage , who claimed the benefit of the superplus , by vertue of the Clause in the Contract . It was alleadged further for the Defenders , that they were Creditors to the Husband , before the Contract of Marriage : and in their Tacks , had a Clause , bearing ; That they should retain their Tack duties , while they were payed : and upon their Bonds , they had also Apprized from the Child , as lawfully charged to enter Heir , all Right he had to the Lands So that if the superplus belong to the Child proprio jure , it now belonged to the Defenders , as appryzers . They had also raised Reduction of the Clause of the Contract , in favours of the Children , as being granted by a Father in favours of his own Children , after Contracting of their Debt , and so was fraudulent , and Reduceable , by the Act of Parliament , 1621. Against Bankerupts . It was answered , for the Child , that as for the Appryzing , and Decreet against him , as charged to enter Heir , he had Suspended , and raised Reduction , and craved to be reponed ; and produced a Renounciation , offering to renounce all Right he could succeed to , as Heir to his Father , but prejudice of this Aliment , which belonged to him proprio jure , as a Restriction granted to him , by his Mother ; and as to the Reason of Reduction , upon the Act of Parliament . There was here neither Fault nor Fraud , their being no Law to hinder a Husband to give his Wife what Joynture he pleased ; which was never compted in defraud of prior Creditors , nor is their any Restriction , or proportion thereof , but as the Parties agree , which is always sustained in favorem dotium & matrimonij , and the Wife might take what Liferent the Husband was pleased to give her , there was nothing to make her to restrict her self in favours of her Children , for an aliment with restriction , is no Deed of the Father , but of the Mother . It was answered for the Defenders , that the reason of Reduction stood relevant , seing in this case there was manifest Fraud , in so far as this Liferent was exorbitant , and unproportionable to the Fathers Estate , whose hail Lands being only worth 1000. merks , and having nothing but the Tocher , which was 6000. merks , he Infefts his Wife in the hail , and yet restricted her to 600. merks , and provided the rest to his Children ; and albeit it appears to flow from the Mother , yet that is but dolose , and in effect it flows from the Father . 2. Seing the superplus was appointed to be an Aliment to the hail Children , seing there is but one , it ought to be modified , and what remained above the 600. merks , and a competent Aliment , to belong to the Creditors .

The Lords found that the Childs Renunciation should repone him● and found that if the Provision had been Exorbitant , it might have been counted as fraudulent , but they found it not exorbitant , seing the Land was offered to the Defenders for 900. merks , and there was 200. merks thereof Liferented by another Woman , so that there r●mained but 100. merks for the Child , and therefore Repelled the Defenses , and Decerned .

William Dickson contra Iohn Hoom. Eodem die .

WIlliam Dickson having charged Iohn Hoom , upon a Bond of 37. Pounds Scots : He suspends , and offers to improve the Bond as not subscribed by him , but another Iohn Hoom. It was answered , Improbation was not receivable , but in a Reduction , or where the original Writ was produced : But this Bond was Registrate in an Inferiour Court , and the Charger was not oblieged to produce , nor was the Clerk called .

The Lords in respect the matter was of small importance , admitted the Reason of Improbation , the Suspender Consigning principal Sum and Annualrent , and declared they would modifie a great Penalty , in case he succumbed , and ordained Letters to be direct against the Clerk of the inferiour Court , to produce the principal .

Howison contra Cockburn . November 17. 1665.

THe Executors of David Howison pursue Iames Cockburn , for the price of several ells of Cloath , which the said Iames , by his Ticket produced , granted him to have received , in name , and for the use of the Laird of Langtoun , his Master . It was alleadged absolvitor , because by the Ticket , the Defender is not oblieged to pay the Cloath , and doth only act in name of his Master , and therefore the Merchant ought to have called for the Accompt from his Master , within three years , which he has not done till many years , long after his Masters death . It was replyed , that the Ticket must obliege him , at least , docere demandato , for his doing in name of his Master , could not obliege his Master , so that if he be not so oblieged , the Merchant loses his Debt , and no body is oblieged . It was answered , that he who Acts with any Mandatar , should know his Commission , and if he does not know it , it is upon his own hazard ; but if the Mandatar Act not in his own name but his Masters , he does not obliege himself ; and if Servants who receive in their Masters name , should be thus oblieged to shew their warrand , it would be of very evil consequence , seing their Receipt can be proven by Witnesses , within three years , and their Warrand would not be so probable .

The Lords found that post tantum tempus , the Defender was not oblieged to instruct his warrand , but the same was presumed to have been known to the Merchant , unless it be proven by the Defenders Oath , that he acted without a warrand , or that he did not apply the Cloath to his Masters use .

Baxters in the Canongate November 21. 1665.

THere being a Contract betwixt two Baxters in the Canongate , to make use of an Oven , still keeped hot for both their uses , the one pursues the other , as desisting , and obtained Decreet before the Baillies of the Canongate for 36. Pounds of Damnage , which being Suspended . It was alleadged ipso jure null , as having compearance , mentioning Defenses , Replys , &c. And yet expressing none , but refers the Defenders Action to the Pursuers Probation by Witnesses , who now offered to prove positive , that he continued in doing his part .

The Lords would not sustain this visible Nullity , without Reduction , though in re minina , inter pauperes , for preserving of Form .

Laurence Scot. contra David Boswel of Auchinleck . November 22. 1665.

UMquhil David Boswel of Auchinleck , being Debitor to Laurence Scot in 1000. pounds by Bond : He pursues his Daughters , as Heirs of line , and David Boswel now of Auchinleck , his Brothers Son , as Heir-mail , or at least lucrative Successor , by accepting a Disposition of Lands from the Defunct , which were provided to Heirs-mail , and so being alioqui successurus . It was alleadged for the said David , no Process against him , till the Heirs of Line were first discu●● . It was Replyed , and offered to be proven , that he was oblieged to relieve the Heirs of Line .

Which the Lords found Relevant .

It was further alleadged for the Defender , that he could not be conveened as lucrative Successor , by the foresaid Disposition , because the time of the Disposition he was not alioqui successurus , in respect that his Father was living . It was answered , that albeit he was not immediat Successor , yet being the mediat Successor , the Disposition was precep●●o haereditatis , and the Lords had already found , that a Disposition to an Oye , made him Lucrative Successor , albeit his Father who was immediat appearand Heir was living .

The Lords sustained not the Lylel upon that member , for they found it was not alike , to Dispone to a Brother , as to a Son or a Brothers-son , as to an Oye , because a Brother is not appearand Heir , nor alioqui successurus , seing the Disponer , has haeredes propinquiores in spe ; and therefore cannot be presumed to have Disponed to his Brother , or Brother Son , in fraud of his Creditors , seing that by that Disposition , he does also prejudge his own Son , if he should have one , and this 〈◊〉 prejudice to the Pursuer , to Reduce the Disposition upon the Act of Parliament , as accords .

Mr. Iames Campbel contra Doctor Beaton . November 23. 1665.

DOctor Beaton being Infeft in certain Lands , Wodset by the Laird of Balgillo , does thereafter by a minute , take an absolute Disposition thereof , for a price exprest in the Minute , whereupon Mr. Iames Campbel arrests in Doctor Beatons hands , all Sums due by him to Balgillo , for payment of a Debt due by Magillo to Mr. Iames , and likewise Iuhibits Bagillo , after which there is a Tripartite Contract , betwixt Bagillo on the first part ; the Doctor on the second , and Iohn Smith who bought the Lands ; on the third , the Doctor and Bagillo Dispone with mutual consent , and the Doctor particularly assigns the Minute to Smith , Bagil●o Renounces the Minute , as to the price ; and Smith is oblieged to pay the Wodset to the Doctor ; the Debitor being before conveened , for making arrested Goods forthcoming , and having Deponed that he was owing no Sums to Bagillo , the time of the arrestment , but by the Minute , which was an Inchoat Bargain , never perfected , but was past from thereafter , and that he was not Disponer to Smith , but only consenter , whereupon he was assoilzied ; But Mr. Iames Campbel , having now found the Tripartite Contract , pursues the Doctor again thereupon , & super dolo , that by passing from the Bargain , and yet assigning the Minute , and not destroying it , he had dolose evacuate Mr. Iames Inhibition and Arrestment , seing Smith would defend himself against the Inhibition upon the Minute , which was anterior to the Inhibition , Disponing the Land . It was alleadged for the Doctor , that he was tutus exceptione rei judicatae , because he was already assoilzed , having Deponed upon the Arrestment , and the Pursuer could not make use of any Writ in that which he had referred to the Defenders Oath . 2. Albeit the matter were intire , there was nothing to enforce him to perfeit a minute of the sale of Lands , but that he might pass from it before it was extended , or might assign it to any other , which could import no Fraud , seing he was not oblieged to know , or cannot be presumed , that he knew the Inhibition , used against Bagillo . The Pursuer answered , that for the Defenders Oath , he did not now insist upon it , nor did the Writ produced contradict it , for when a Party Depones upon the Tenor of a Writwhich is not his own Writ , it can but be understood according to his memory ; but if thereafter by the Writ it self , it do appear to be otherways , it does not infer Perjury , nor can it justly exclude the Pursuer , to make use of that Writ .

2ly . There is not only a different matter of Probation here , but a different medium from the former Process , viz. damnum & dolus , at least lata culpa dolo aequiparata , in so far as the Doctor did assign the Minute , and exclude the Pursuers Inhibition , which is the more clear , that in the said Contract the Doctor secures himself by Bagilloes obliegement , to warrand the Doctor from any hazard , by assigning the Minute , ubi nimia cautio arguit dolum ; neither can the Defender pretend ignorance , not only by the Publication , and Registration of the Inhibition , but upon that very Inhibition , the arrestment being execute against the Doctor .

The Lords having Read and Considered the Triparti●e ●ontract , they found that after the Arrestment was laid on , the pri●e of the Land was affected , and no Discharge nor Renunciation by the Debitor , could take the price Arrested away from the Arrester ; and therefore found the Lybel Relevant , and proven by the Tripartile Contract , produced and decerned , notwithstanding of the former Alsolvitor upon the Doctors Oath .

Bishop of the Isles contra The Fishers of Greenock , Novemb. 24. 1665.

THe Bishop of the Isles , as being presented by His Majesty to the Bishoprick of the Isles , and whole Teinds , Rents , and Emoluments thereof , and as thereby having Right to the great Teind of all Fish , taken in , and about the Isles of Scotland ; Pursues the Fishers of Greenock , for the Teind of Cod and Ling , taken by them , about the Isles of Arran , Bute and Ilsey ; but insists only for these taken between Arran and Ilsey , or Boot ; and not between these and the Shore , and insists against the Fishers of Greenock , as Fishing in that Bounds : The Defenders alleadged , 1. Absolvitor , because the Bishops Right buire expresly , according as his Predecessors had been in Possession , and it was not libelled , nor could it be proven , that ever the Bishop of the Isles was in Possession of the Teind of any Fish● taken by the Inhabitants of the main Land , albeit taken in the place libelled . 2ly . Albeit that Clause were not insert ; yet all Teinds of their own Nature , and by the Custom of this Kingdom , are Local and Consuetudinar , and so can be craved out of no place , or for no particular , unless they had been accustomed to be payed of these particulars by that place , as in some places Teinds are payed , not only of Stirk and Lamb , Wool and Milk , but of Staigs , Swine , Hemp , Lint , Eggs ; and some places of Fruit , and in other places● of none of these , and that within the same Parochs : And therefore , unless it were Libelled , that Teinds had been accustomed to be payed in this place , they are not due . 3ly . Albeit a Teind here were due of Fish , it could not be due to the Bishop of the Isles , because such Teinds being personal , and not predial , follow the Residence of the Takers , and not the place where they are taken ; especially being taken , not in any Bay or Creik of the Isles , but in mari libero , several myles from any Isle , except Ilsey , which is no Island , but a Rock inhabited by no body . 4ly . The Defenders offer them to prove , that they and others upon that Shore of the main-land , has been in Possession 40. years , of a constant fishing of Cod and Ling , in that place , free from all payment of Teinds to the Bishop of the Isles , paying only two merks yearly , to the Tacks-men of the Viccarage of Greenock , granted in Tacks by the Ministers of Greenock . The Pur●uer answered , that the Clause in his Charter was in his favour , and is to extend the same to all his Predecessors Possest , bearing as amply , &c. and that for the Possession , it was sufficient that which he had condescended , viz. that he offered him to prove , that through all his Diocie , the small Teind of Fish belonged to the Ministers as Viccars , but the great Teind of Killing , Ling and Herring , belonged to the Bishop● and was possest by him and his Predecessors , past memory , but he needs not alleadge , that he possest in every several place , where Fish happen to swim ; but possessing generally about the Isles , not only as to the Inhabitants of the Isles , being in his Diocie ; but also being taken by the Inhabitants of the Main-land throughout the Kingdom . And as in a Barony , Possession of a part , will be sufficient for the whole ; so it must be in this Benefice , especially seing it is but of late that there was any considerable Fishing in the place in question , and there was no reason , if Herring and other Fish , change the Lochs where they are ordinarly found , that because there was never Herring Teinded in that Loch , therefore there was none due there .

The Lords found the Defense Relevant , viz. that the Defenders , and others upon the Main-land thereabout● had been in immemorial Possession , in the place in question , of Cod and Ling , free from paying any Teind to the Bishops of the Isles ; But the Lords would not sustain less then immemorial Possession of the freedom , in respect of the time the Bishops had been out , nor did they determine the Right of the Ministers of Greenock , whether they had Right to the hail Viccarage , or that , as a small duty , but reserved that to them as accords , and they found that the Defense of a constant Fishing , elided the condescendence that this Fishing was but new .

Mr. Iames Chalmers contra Lady Tinnel . Eodem die .

MR. Iames Chalmers Parson of Dumfreis , having obtained a Decreet before the Sheriff , for a part of his Stipend , against this Lady Tinnel , for whom a Procurator compeared , and took a Term to produce her , and she succumbed , whereupon she was holden as confest . She Suspends , and alleadges that the Decreet bears not the Procurator to have produced any Mandat , and therefore craves to be Reponed to her Oath .

The Lords finding that there was nothing else alleadged by the Procurator , that might infer his being informed , or having Warrand , but only his taking a day to produce , they would not sustain the Decreet , unless the Charger instructed the same , by proving the quantities .

White contra Horn. Novemb. 25. 1665.

IN a Competition between White and Horn , the one having Right by progresse to the Property of a piece Land , and the other to an Annualrent forth thereof . It was alleadged for the Proprietar , First , That the Annualrent was prescribed , no Possession being had thereupon , above fourty years . 2ly . The Original Right produced to constitute the Annualrent , is but a Seasine without a Warrant : and albeit the Common Author have given Charter of Ratification thereof ; yet it is after the Proprietars Seasine , given by the Common Author to his Daughter , propriis manibus . It was answered for the Annualrenter , to the first , That the Prescription was interrupted by Citations produced , used upon a Summons of Poinding of the Ground , before the Baillies of the Regality of Dumfermling , where the Lands ly . As to the second , that the Confirmation granted to the Annualrenter , is prior to any Charter , Precept , or other Warrant , granted to the Proprietar : for as for the Seasine , propriis manibus ; that has no Warrant produced . The Proprietar answered , that the Interruption was not Relevant , because the Executions were null , in so far as the Warrant of the Summons bears , to Cite the Defender Personally ; Or otherwise upon the Ground of the Land , or at the Mercat Cross , or Shore of Dumferm●ing , whereupon such as were out of the Countrey , were Cited● and not upon 60. dayes , but 25. which Reasons would have excluded that Decreet , and therefore cannot be a legal Interruption . As to the other , albeit the Pursuers first Seasine want a Warrant , yet it hath been cled with natural Possession , and the Annualrentars hath not .

The Lords Repelled both these alleadgences , for the Proprietar ; and found the Executions sufficient to interrupt , albeit there were defects in them , that might have hindred Sentence thereupon , especially in re antiquâ , the Lands being in Regality , where the custome might have been , even to Cite Parties absent out of the Countrey , at the head Burgh of the Regality , and the Shore next thereto , and as the Proprietars Right was not Established by Prescription , so they found that Possession could not give a possessory Iudgement to the Proprietar , against an Annual●entar , which is debitum fundi .

Mr. Iames Peter contra Iohn Mitchelson . Eodem die .

MR. Iames Peter Minister of Terregh pursues Mitchelson for a part of his Stipend , due out of the Defenders Lands , who alleadged no Process , till the Pursuer produced a Title to the Defenders Teinds , seing he brooked them by a Tack . It was Replyed , he offered him to prove seven years Possession , as a part of the Stipend of Terreghs .

Which the Lords sustained without any Title of Possession .

Bruce contra Earl of Mortoun . Novemb. 28. 1665.

IN an Action for making arrested Sums forthcoming , between Bruc● and the Earl of Mortoun .

The Lords found that the Summons behoved to be continued , seing they were not past by a special priviledge of the Lords , to be without continuation , albeit they were accessory to the Lords Anterior Decreet , against the principal D●bitor , which they found to be a ground to have granted the priviledge of not Continuation , if it had been desired by a Bill , at the raising of the Summons , but not being demanded , They found quod non in erat de jure .

Younger contra Iohnstouns . Eodem die .

PAtrick Porteous having a Tenement of Land in Edinburgh , provided his Wife thereto in Liferent , and dyed before the year 1608. his Wife lives and Possesses as Liferenter . Yet in Anno 1608. one Porteous his Brother Son , was Served and Retoured Heir to him , and Infeft as Heir , and Disponed the Land , which is come through three several singular Successors to Iohnstouns , who are Infeft therein , as Heirs to their Father , in Anno 1655. Young●r having acquired a● Disposition from Stephanlaw , Porteus Residenter in Polland , causes Serve the said Stephenlaw , as nearest Heir to the said Patrick , whereupon Stephenlaw is Infeft , and Younger is Infeft . There are now mutual Reductions raised by either Parties , of others Retours and Rights ; wherein Younger alleadging , that his Author Stephenlaw , Porteous was the nearest of Kin , in so far as Patrick the Defunct had four Brethren , and Stephen Law Porteous was Oye to the eldest Brother , whereas the other pretended Heir was Son to the youngest Brother , which he offered him to prove . It was answered for Iohnstouns , Absolvitor from that Reason of Reduction , because they had Established their Right by Prescription , in so far as they had a progress of Infeftments , far beyond the space of fourty years cled with Possession , by the Liferenter , whose Possession behoved to be accounted their Possession , because the Act of Pa●liament anent Prescription , bears , that the Person Infeft being in Possession by himself , or by his Tennents , or others deriving Right from him , and therefore the Liferenters Possession is alwise the Fiars . 2ly . By the first Act of Parliament anent Prescriptions of Retours , they prescrive , if they be not quarrelled , within three years . And by the last Act of Parliament 1617. anent the Prescription of Retours , they are declared to be prescrived , if they be not pursued within twenty years . And by the general Act of Prescription 1617. There is a general Clause , that all Reversions , Heretable Bonds , and all Actions whatsomever , shall prescrive , if they be not followed within fourty years . By all which , Stephenlaw Porteous , not being Retoured till the year 1655. nor having moved any Action against the first Retour . This Action of Reduction , and all other Actions competent , are prescribed . It was answered for Younger , that he being Heir to maintain the right of Blood , which is the most important Right , competent by the Law of Nations , no Statute , nor positive Law can take it away , unless it be express and evident , for the right of Blood can never prescrive , seing it is certain , that a man may serve himself Heir to his Predecessor , though he died a 1000. years since , if he can instruct his Service . And as for the Acts of Parliament alleadged upon , they cannot take away any Right of Blood , for the first Act of Prescription , on three years expresly , bears , to extend to these within the Countrey , as Stephenlaw was not : and the last Act is expresly , only in relation to Retoures , to be deduced thereafter , but this first Retour quarrelled , was deduced long before , viz. in Anno. 1608. As for the general Act of Prescription , seing it mentions not Retoures , but only Infeftments● Reversions and Heretable Bonds ; The general Clause of all Actions whatsomever , ought not to be extended to Retoures , especially , seing the meaning of the Parliament appears not to have been extended by them to Retoures , because the very next Act doth specially Order the prescription of Retoures . As to the Iohnstouns Infeftments , they have not the benefit of Prescriptions , never being cled with Possession : For the Liferenters Possession , as it was the Defuncts Possession : So it did continue to be the true appearand Heirs Possession , although none had been Served to this Day ; and therefore the Service or Infeftment following thereupon , cannot take away from the true Heir the presumptive Possession of Law , which the true Heir hath . 2ly . No Prescription can be valid against others : But these that know , or are at least oblieged to know the Right , whereupon it proceeds ; but the true Heir was not oblieged to know their Service , nor was he oblieged to Serve himself , but when he pleased , especially seing he could get no benefit as long as the Liferenter lived , and that he was not oblieged to know the first Service , appears , because he was not called thereto , otherways then by a general Citation at the Mercat Cross , to all Parties having Interest , which is but a point of meer form and prejudges no body , and at least could not prejudge a Stranger , living out of the Countrey , animo remanendi , there being neither special nor general Citation , as to Persons out of the Countrey on 60. dayes .

The Lords found no weight in this last Point , seing the Law requires no Citation on 60. dayes , in cases of Retoures , but only 15. dayes generally , at the Mercat Cross , which they find every man , origine Scotus , oblieged to take notice of , or to have a Procurator at Edinburgh , as in communi patriâ , who may search the Register of Retoures , whether in the publick Register , or Town Books , before they prescribe . They also found that there was no ground for Prescription upon the first Act of Parliament , as bearing only relation to these in the Countrey , nor upon the last Act of Parliament , as bearing only relation Retoures , to be deduced thereafter , neither did they sustain the Prescription upon the first part of the general Act of Prescription ; for they found the Liferenters Possession in the Competition of two Heirs , not to be profitable to either of them , in prejudice of the other , nor yet to be the Possession of singular Successors , seing it flowed not from these singular Successors , but from the Defunct , to whom both Parties pretended to be Heir ; but the Lords found the posterior clause in the Act of Parliament , of all Actions whatsomever to extend to the Reduction of Retoures , and to be general , as to all Actions that may concern Heirs , in prejudice of others : And found it so much the rather to extend to Retoures , that the next ensuing Act finds Retoures to be Deduced thereafter , only to be Reduceable within twenty years , and so finds the Reduction thereof to prescrive sooner than other Rights ; and therefore cannot be thought , not to have meaned to reach bygone Retoures , by the general Act.

Creditors of James Masson Merchant Supplicants . Nov. 30. 1665.

JAmes Masson Merchant in Edinburgh having unexpectedly broke and fled , his Creditors gave in Supplication to the Lords , bearing , that he had most deceitfully broken , having the price of the Goods that he had sold , meditatione fugae , in his hand , and that he either lurked in the Abbay , or was to go out of the Countrey ; and therefore craved a Warrand to Messengers of Arms , to secure his Goods , and apprehend his Person wherever the same could be found , until the matter were heard .

The Lords having considered the case , that the occasion was very extraordinar , and also the desire , most were of the opinion , that the Lords might grant the Desire , which was done accordingly , with a Recommendation to the Duke of Hamiltoun , Keeper of the Kings House , not to suffer him to lurk there , but to expel him , that he might be apprehended : For albeit ordinarly the Lords grant not Caption or Warrant of Wairding the Person of the Kings free Leidge , till he be Denunced Rebel . Yet seing the Magistrates of Burghs , and the Admiral grant Acts of Wairding against Parties , until they find Caution to answer as Law-will . The Lords who had eminently in themselves these Jurisdictions , they might do the like in the like case : but some thought that was a special priviledge , not to be extended , and this was of dangerous Example to secure persons unheard , more proper for the Council , as a case extraordinar , then for the Session .

David Boyd contra Isobel Lauder and Iohn Tailzifer Eodem die .

DAvid Boyd pursues Iohn Tailzifer , as Representing his Father , on all the passive Titles , and Isobel Lauder his Mother and Tutrix , for her Interest , and condescends upon his behaving as Heir , by uplifting of the Mails and Duties of his Fathers Lands , by his said Tutrix . It was answered , that he being a Pupil , his Tutrix Intromission could not infer that passive Title against him , as hath been frequently sustained these many years . It was answered , that was but since the Usurpation , but before the Tutors Intromission , did alwayes infer this Title , and the Pupil could only pursue his Tutor for his damnage .

The Lords found the Pupil not lyable on this passive Title , by his Tutors Intromission .

The Pursuer then insisted against the Tutrix , for paying so far as she had intrometted . It was answered , that she was but called for her Interest , to authorize her Pupil , but not to pay , neither could she be lyable to pay , unless a Decreet had been first Established against the Pupil● and then it had been Arrested in her hands , and pursued to be made forthcoming .

And yet the Lords found the Tutrix , hoc ordine , lyable .

White contra Brown . Eodem die .

JOhn White as having Right from Iames White his Fathe● , Charges Brown for 2000. merks , who suspends on this Reason , that this Translation being by a Father to a Son , in his Family , at least having no visible Estate to acquire it : The Suspender cannot be prejudged , as to the manner of Probation , by the Fathers Oath , by which he offered him to prove , that the Father was Debitor in a greater Sum. It was answered , that the Cedents Oath could not be taken in prejudice of the Assigney .

The Lords found that in this case , the Reason was probable by the Cedent Oath .

Telzifer contra Geddes . Decemb. 1. 1665.

THe competition between Telzifer and Geddes , mentioned the eleventh of November last , being this day again called , Debated and Reconsidered by the Lords at length . The question being , that Marjory Sandilands having granted a Bond to Samuel Veatch , blank in the Creditors name , Samuel filled up Marion Geddes Name therein , whereupon she Registrat the Bond , and Charged him , in the mean time Telzifer , as Veatches Creditor , having Arrested all Sums in Marjory Sandilands hands , adebted by her to Samuel Veatch , and pursuing to make the same forthcoming , she depones that the time of the Arrestment , she was no wayes Debitor to Veatch , but by a Bond blank in the Creditors Name , and that she did not know whose Name was filled up in it : But now Telzifer the Arrester compearing , craves to be preferred , because he had arrested the Sum , as belonging to Samuel Veatch his Debitor , before Samuel Veatch was Denuded , by filling up Marion Geddes Name , and intimating , or showing the same to Sandilands the Debitor , and that the filling up of Geddes Name , being but an Assignation , did necessarly require to accomplish it , to Denude the Cedent , an Intimation , for seing express Assignations do necessarly require Intimation , to prefer them to arrestments ; much more ought indirect Assignations , which are suspect of Fraud , and by which a Debitor may keep all his Estate in the Cloud , that none of the Creditors can reach the same , by arrestment or otherwise . And it being answered , that the Bond being delivered blank , there was no present Creditor , but a power granted to the Receiver of the Bond , to make Creditor whom he pleased ; at least there was no certain Creditor , so that Samuel Veatch was never Creditor , but had only the power to make the Creditor , and so needed not to be Denuded , nor was there any Law or custom , requiring intimation of the Names filled up in blank Bonds , and if any such thing were done upon the accompt of Expediency , it ought only to be in time coming .

The Lords adhered to their former Interlocutor , and found Veatch to have been the true Creditor , and the filling up of the other Name , to be a Transmission equivalent to an Assignation , and required Intimation , as well for Cases past as to come ; for they thought that if Veatch , before the filling of the Bond had been Rebel , it would have fallen within his Escheat .

Edward Edgar contra Colvills . Decemb. 2. 1665.

EDward Edgar pursues Colvil Success or Lucrative to his Father . Mr. Alexander Colvil , in so far as he accepted an Assignation of an Heretable Bond , unto which Bond he would have succeeded as Heir . It was answered , that this passive Title was never extended to Bonds of Provision , granted by a Father to his eldest Son , and if in security and satisfaction of such a Bond of Provision , an Assignation of a Debt , due to the Father and his Heirs , were granted , could not infer an universal Title , to make the Accepter lyable to his Predecessors whole Debt , so neither can an Assignation to a Bond , which is no more in effect , and such odious passive Titles are not to be extended , but the Pursuer may Reduce upon the Act of Parliament 1621. or at the farthest , may crave by this Process , the simple avail of what the Defender hath intrometted with , by vertue of the Assignation .

The Lords found the condescendence Relevant , as being preceptio haereditatis , and as an Assignation to a Tack , or a small Annualrent , hath been found sufficient , so there is like or more Reason for Assignations to heretable Bonds , which may be more easily conveyed away from Creditors , but they found it not alike as to Bonds of Provision , whereby the Father became Debitor , and in satisfaction and security , whereof he might Assign , and would only import single payment , but not an universal passive Title .

Hugh Mcculloh contra Mr. Iohn Craig . Eodem die .

HVgh Mcculloh having Right to an Apprizing of an Heretable Bond of 2000. merks , due by Umquhil Mr Robert Craig to Patrick Wood , pursues Mr. Iohn Craig as Heir by progress , for payment thereof , and produces a new Extract of the Appryzing , by the Clerk of the Appryzing , together with the said Appryzing , but so spoiled , that neither the Subscription of the Messenger nor Clerk could be known . The Defender alleadged no Process , till the Principal Appryzing by the Messenger were produced ; because it being in effect the Executions of the Messenger , to whom more was trusted then to the Clerk : The Extract by the Clerk without the Messenger was not sufficient . It was answered , that Appryzings of old were all direct to the Sheriffs of the Shire , and were in effect Judicial Process , wherein Parties were Cited , Called and Decerned ; and now the Messenger being Constitute Sheriff in that part by the Letters of Appryzing , he may choise his own Clerk , and the Extract of that Clerk is sufficient , as of all other Clerks ; and albeit for more security , both Clerk and Messenger Subscribe : yet it hath not been determined how far the Messengers Subscription is necessar : And the Decreet of Appryzing is not the Executions of the Appryzing , which are distinct therefrom , and Instructions thereof .

The Lords thought that the new Extract behoved , either to be astructed with the Letters and Executions , and other Adminicles , or that they would not sustain it alone : But the question was , whether it should be astructed , hoc ordine , or by a proving of the Tenor , in a several Process , which was carried by the plurality .

Thomson contra Henderson . Decem. 4. 1665.

THomson having granted a Bond to his Brother of a sum of Money , the same was assigned to Henderson , who thereupon Charged . The Debitor suspends , and produces a Discharge by the Cedent of the same Date , and Witnesses with the Bond , and alleadged that the Debt being Discharged before the Assignation , excluded the Assigney . It was answered , That the Discharge was granted most fraudulently , so that the fraud betwixt the two Brethren , is manifest to have been contrived to deceive , any Person should Contract with the Creditor , whom they saw to have a Bond of a solvendo Person in his hand● and so might be induced to lend him Money , or Contract with him in Marriage , or otherwise ; and the Charger having upon that accompt , lent him Money , and taken Assignation , cannot be excluded by this Contrivance , which was done pessimo dolo . It was answered ; First , That dolus was not competent by way of Reply . 2ly . That the Assigney took the Assignation on his own Peril , and he should have asked at the Debitor before he took it .

The Lords , though the matter was of small Importance , were willing to take the matter of fraud to consideration by way of Reply ; and therefore ordained the Suspender to condescend upon some reasonable Cause of the granting of the Bond , and taking back a Discharge thereof at the same time .

Beg contra Beg. Decem. 5. 1665.

BEg having Disponed some Land to his Son , Redeemable on a Rose-Noble , and having married a second Wife , he Disponed the same to her in Liferent , and assigned her to the Reversion . The Father having used an Order , pursues Declarator . The Son alleadges absolvitor , because he was assigned to an Appryzing : Which Appryzing carried the Right of the Reversion of that Wodset , and thereby his Father was Denuded of the Reversion , and could not redeem the Wodset , till he Redeemed the Appryzing . It was answered , that the Father was not simply Denuded during the Legal : During which time , the Appryzing was but like a Right granted in Security , which Denuded not the Fiar ; as if the Son for Security of a Sum , had been assigned to the Reversion , the Father was not Denuded , but might use the Order , by which the Security was not worse but better ; the same holds in this Case ; and therefore it is , that he against whom an Appryzing is led , may Redeem the first Appryzing , albeit the second Appryzer has appryzed the Reversion , otherwise no man could redeem an Appryzing , unless he redeemed all his appryzings at once , which have different legals ; and this Case is as favourable , because the Reversion was only to the Father in his own life ; and therefore the Son endeavoured to hinder him to Redeem , by taking Right to this Appryzing . It was answered , that the Case was not alike in a Conventional Reversion , as in a legal : And that the Appryzing led against the Father in his life , would perpetuat the Reversion ; and that this Case was unfavourable , where the Father intended to frustrate his Heir , in favours of the Wife of the second Marriage , to whom he had assigned the Reversion .

The Lords having upon the first report considered the favourableness of the Sons Case , sustained the Defense , but afterward upon Bill , ordained them to be heard again in presentia , and having heard them , The Lords were of different opinions , so that that came not to a Vot ; But the Lords before answer , ordained the Wife to insist upon her Right , who alleadged that she might Redeem , ad hunc effectum , to enjoy the benefit of her Liferent Right , after her Husbands Death . It was answered ; First , That she wanted the concourse of her Husband . 2ly . That her Assignation was not intimat . It was answered ; First , Her Assignation was Registrat in the Register of Reversions , conform to the Act of Parliament : Which Registration being publicandi causa , needed no intimation . 2ly . That she had a Disposition in Liferent , by her Contract of the Lands , which carried omnejus , in the Disponer , as to the Liferent Right , during her Life , and so carried the Reversion , though not exprest , and her Seasine being registrat , it was equivalent to the Registration of the Assignation .

The Lords sustained the Wifes Interest , and declared in her favours , for her Liferent use , and found the Disposition with the Seasine Registrat , and the Assignation also Registrat sufficient .

Cheisly contra Cuthbert . Eodem die .

CHeisly Charges Cuthbert for his Prentis-fee : Who suspends , and alleadges that he was set Prentise to him as Apothecary , and that he deserted that Employment , and became a Drogeist , and thereupon the Suspender left him . It was answered , that , the breeding of him as a Drogeist was sufficient , and that he now practised as Apothecary and Cherurgeon .

The Lords found this answer not Relevant , the Suspender being set to him as Apothecary , to make Drogs , and not as a Drogeisi that buyes Drogs , as to the time after he changed : But the Charger having further offered to prove , that he constantly in his Chamber , makes , as well as sell Drogs , the Lords found it Relevant .

Richard Cunninghame contra Duke of Hamiltoun . Eodem die .

RIchard Cuninghame pursues the Duke and Dutches of Hamiltoun , for payment of a Bond , granted by the late Duke , which being produced , appeared to have been blank in the Sum , Date and Creditors Name . The Defenders alleadged , the Bond was null , as wanting the Designation of the Writer . It was answered , that they did now Design him , which has been alwayes allowed by the Lords . It was answered , that though the Lords have done so , ex officio : Yet in a case of this nature , where the Debt is so old , never mentioned before , and the Bond in the substantials blank , in which case the Lords ought to keep by the express words in the Act of Parliament , that such Writs are null , and not to be supplyed by an equivalent .

The Lords Repelled the Defense , and admitted the Designation .

Hellen Hill contra Maxwels . Eodem die .

IN an accompt and reckoning between Hellen Hill , Relict of Iohn Maxwel in Glasgow , who was one of the Tutors named by Iohn to his Bairns and Mr. Robert and George Maxwels his brethren , who succeeded the Daughters , being dead : Iohn by his Testament leaves his two Daughters , and failing of either of them , by Decease to the other , his universal Legatars ; one of the Daughters dyed Pupil , and the other shortly after her age of 12. years , nominat the said Hellen her Mother , universal Legatrix , whereby Hellen craved the universal Legacy of both the Daughters . It was alleadged that the last Daughter , not having Confirmed her self Executrix to the first ; the first share was never established in her Person , and so could not be Transmitted by her Testament , but belonged to the nearest of Kin , of the first Daughter , viz. The saids Maxwells . It was answered , That this being a Substitution of each of the two Daughters , to other , nominatim by the death of the one , it accrest into the other , ipso facto , without Confirmation , as in the case of Bonds of Provision , payable to the Father , and by Decease of him , to such a Bairn named , albeit the Father be Fiar , and the Bairn but Heir substitute , it needs not Confirmation ; but the Bairn may summarly charge or pursue . The Lords found no need of Confirmation , but that it did accresce to the second Daughter , upon the death of the first , and so was carried by the seconds Testament : In this account , Mr. Robert as Heir , pursuing for the Heretable Bonds . The Tutrix answered , that she ought to have allowance of what was wared out upon repairing of the Tenement in Glasgow . It was answered , that she as Tutrix , ex officio , was oblieged to exhaust the Moveables first , one Person being both Heir and Executor , and not to exhaust the Heretable Bonds , that bore Annualrent , and to let the other lie unprofitable , and now to apply it to her own use , by her Legacy . It was answered , That it was employed upon the Heritage , and so was profitable to the Heir only , being employed upon the House , and that by a Warrand , the Heir being then under Tutors , to repair it out of the first and readiest of the Defuncts Estate .

The Lords found that Article Relevant , to be deduced out of the Heretable Estate .

Elizabeth Anderson contra Andrew Cunninghame . December 7. 1665.

ANdrew Cunninghames Wife having left a Legacy to Elizabeth Anderson : It was alleadged by the Husband , that his Wifes share of the moveables was exhausted . It was answered , That he having confirmed his Wifes Testament , and given up the Debts due by him therein , and made Faith thereon , he cannot now be admitted to adduce any other Debts , especially being so recent before the Testament , within three or four years . It was answered , that he had only made Faith upon the Inventar of the Goods belonging to him , but not of the Debts due by him , which were only given up to abaite the Quot : and albeit it may be presumed that he knew and remembred his own Debt , yet presumptio cedi● veritati , seing the Creditors now produce their Bond instructing the Debt , and crave preference .

Which the Lords found Relevant , vid. Iune 9. 1666.

Katharin Smith and William Duncan contra Isobel Robertson . Eodem die .

KAtharin Smith and William Duncan having apprized from Isobel Robertson , and Iohn Wilson , all Right they had to a Tenement , under which fell the Liferent-right of Isobel Robertson his Wife , jure mariti , Pursues the said Isobel , for payment of the Mails and Duties that she had uplifted , and of a part of the Tenement that she dwelt in her self : She alleadged , first , that her Husbands jus mariti , could not carry her Liferent , seing immediatly after the marriage he went out of the Countrey , and was never heard of since , and she had obtained Decreet of Adherence against him , and was going on in a Divorce for malitious deserting .

The Lords Repelled the Alleadgance , seing the Divorce was not compleat , and this was four years anterior .

The said Isobel further alleadged absolvitor , for the Rents of her Dwelling-house for bygones , and for what she had uplifted , because she had done it , bona fide cum titulo , viz. her Husbands obliegement to aliment her as his Wife , & bona fide possessor facit fructus consumptos suos .

Which the Lords found Relevant , and that albeit her Husband would be lyable for these Rents , which alimented his Wife , yet not she .

David Veatch contra Iohn Duncan . Eodem die .

DAvid Veatch as heritor of the Miln of Dersie , pursues Iohn Duncan , for abstracted Multures , and obtains Decreet . He Charges and Iohn Suspends , both parties being ordained to produce their Rights : the Heritor of the Miln , instructs that his Author was first Infeft in the Miln , before the Defenders Author was Infeft in the Land , and produces a Decreet of the Lords in Anno 1575. declaring the Thirlage , wherein it was alleadged that the Heretor of the Miln being first Infeft of the Common-author , and producing a Precept from Cardinal Beaton , then Bishop of St. Andrews Common-author , ordaining the Tennents of the Defenders Land , to pay the Multure to the Miln of Dersie . It was alleadged , this was not sufficient , seing the Charter did not Thirle the Defenders Lands , but was only of the Miln and Multure thereof generally , as for the Cardinals Precept , it was not with consent of the Chapter , and so could not extend beyond the Bishops Life : yet the Lords declared the Astriction , notwithstanding it was now alleadged , that the Defender was Infeft , cum molendinis & muliuris ; by vertue whereof , he had prescribed his freedom by 40. years time . It being answered that once being Thirled by the Common-author , no Charter granted by him thereafter , could prejudge the Feuar of the Miln . And as for Prescription , offered to prove Interruption , by paying of Insucken-multures within the space of 40. years .

William Cranstoun contra Walter Pringle . Decemb. 12. 1665.

WIlliam Cranstoun being Vassal to Greenknow , he was amerciat in his Court , for a Blood committed upon Walter Pringle : and being charged , Suspends upon this Reason , that Greenknow not being a Baron , or the Kings immediat Tennent , had no power of Blood-waits , unless he had had an express Deputation from his Superiour , the Marquess of Huntly , who is Baron only having the Jurisdiction . It was answered , that Greenknow was Infeft , cum curiis & bloodwitis .

Which the Lords found sufficient .

Mr. John Pearson contra Martin and his Son . Eodem die .

MR. Iohn Pearson , by his Contract with Eupham Martin , did conceive the Clause of his Tochar , in thir Terms , that it should be payable to him and her , the longest liver of them two in Conjunct-fee and Liferent , and to the Heirs of the Marriage , in Fee ; which failzing to return to the Wifes Heirs . By a second Contract , betwixt the Husband and his Wife , it was agreed that that Clause should be altered ; and that failzing the Heirs of the Marriage , it should return to the mans Heirs , who thereupon pursue Declarator of Right , by vertue of the second Contract . The Defender being absent .

The Lords advised the Cause wherein the difficulty appeared to be , that the Tochar was provided to the Bairns in Fee , So that the Husband and Wife could not alter the Succession , being both Liferenters , because , that the Clause bears , to them in Liferent , and to the Bairns in Fee ; yet the Lords sustained the Declarat●r ; seing the Husband and Wife were named Conjunctfeers , so that either of them behoved to be Fear , and the adjection of , and Liferent could only be understood of the Person that were Liferentar , and albeit it was exprest to be the Bairns in Fee , yet that could be but of a substitution , seing there were no Bairns then existent .

Christian Barns contra Hellen Young and her Spouse . Eodem die .

HEllen Young being provided to the Annualrent of 800 merks , and to the Conquest , obtained Decreet thereupon , against Christian Barns the Executrix , who Suspends on this Reason , that the Pursuer was Infeft by the Defunct her Father , in a Tenement , in full satisfaction of these provisions . It was answered , nonrelevat , unless it were alleadged , that the Charger had accepted . Whereupon it was alleadged , Accepted , in so far as she had uplifted the Mails and Duties after her Fathers death , and had no other Title ascribe it to . It was answered , that she had another Title , viz. her Goodsir had Disponed this Tenement to her Father and Mother , the longest liver of them two , and the Bairns of the Marriage , be vertue whereof , as Heir Appearand of the Marriage , she might contiue , and uplift , and miskene the new infeftment given by her Father .

Which the Lords founds relvant , unless the other Partie Insist on that alleadgeance proponed , that the Pursuer had pursued , and obtained payment upon the Title bearing , in satisfaction .

John Ramsay contra James Wilson and others . Eodem die .

COlonel Cunningham , having impignorat a number of Jewels of great Value , and immediately thereafter , went out of the Countrey , and never returned . These Jewels were in the Custody of Iohn Ramsay , who , and Mr. Robert Byres had given Bond , to make them furthcoming to the Colonel , and now Iohn Ramsay having been Confirmed Executor to the Colonel , pursues Iames Wilson , and others , for Exhibition , and Delivery of the Jewels . The Defenders alleadged absolvitor , because the Jewels were Impignorat by Mr. Robert Byres for a considerable Sum of Money , who having them in his Possession , it was a sufficient ground for the Defenders to Contract with him , because property of Moveables is presumed by Possession ; and therefore it is not relevant to lybel , that once the Jewels were Colonel Cunninghams , and therefore they must be restored to his Executors , unless it were also lybeled quomodo desijt possidere , so that the Jewels behoved to have past from him , without his own Consent , or Alienation , otherwise it is alwayes presumed , that he sold or gifted them , and needs not be proven ; else no man could be secure of any Moveable : if he who could instruct , that he bought it , could recover it from all possessors , unlesse they could instruct all the wayes the same past from the first Owner . The Pursuer replyed , that the Case is not here , as to Moveables , that are ordinarily sold in Mercat , but in relation to Jewels of great Value , which cannot be presumed to have been Mr. Robert Byres , because they were never worn by him , as being his proper Good , nor were they Competent to any of his quality : and therefore the Defenders were , in mala fide , to acquire them from him , without knowing his Right .

2ly . It is instructed by Mr. Robert Byres Letter produced , that he acknowledged them to be Colonels , before the Impignoration : and it s offered to be proven , that he broke up Iohn Ramsays Celler , and took them out . 3dly : The Colonel Impignorat them by Writ , and so the Presumption of allienating them , ceased , because he went immediately out of the Countrey , and never returned . It was answered , that there is no difference of Jewels , more than any other Moveables , which use to passe without Writ from Jewellers that sell them ; and the Pursuer having possest them these , 10. or 12. Years , without question , has right thereto , by usucapion .

The Lords found the alleadgeances joyntly relevant to elied the presumption , and that there is no usucapion in Moveables in Scotland , by Possession in less then 40 years , but only a presumptive Title , which is altogether eleided by the Answers .

Duke of Hamiltoun contra Laird of Clackmanan . December 14. 1665.

THe Duke of Hamiltoun , as Collector of the Taxations 1633. charges the Laird of Clackmannan , who Suspends , and produces Discharges of the first three Terms . It was alleadged , these discharges could not liberat , because they were granted by Iohn Scobie , who was neither Sheriff , Baillie , nor Clerk ; nor does it appear , that he had any Warrand , or Commission nor does his Discharges mention any Commission , or Warrand . It was answered , that by the Discharges produced , it appears , that Ormistoun and Humbie , deputed for the Duke , had granted Discharges to this Iohn Scobie , and offer to prove , that he was in use of uplifting the Taxations during the Terms themselves , and was commonly repute , as Collector thereof , which must be sufficient post tantum tempus . It was answered , that that ground would not oblidge the Sheriff , and so both the Heretor and Sheriff , being free , the King looseth his Right .

Yet the Lords sustained the Reason .

Monteith contra Mr. John Anderson . December 15. 1665.

IN a Reduction , at the instance of Monteith against Anderson , a Reason of payment being found relevant , Mr. Iohn produced an Incident , at the first Terme , and a Diligence against Witnesses , for proving the having of the Writs , at the second Term.

Which Incident the Lords sustained , and would not restrict the Terms of probation in the Incident , to Horning against the Witnesses , and Caption , but allowed four Terms , and ordained the same to be shorter .

Mr. John Elies contra Keith . Eodem Die .

THere was a Bond of 6000 merks , granted by Wiseheart Parson of Leith , and Keith his Spouse , to Mr. Iohn Elies containing an oblidgement to Infeft him in an Annualrent out of any of their Lands , with a Procuratorie . The Wife had then the Lands of Benholm , belonging to her Heretablie , lying in the Mairns , Mr. Iohn having Inhibite her Husband and her , she sold the the Lands before the Inhibition was published at the head Burgh of the Mairns , and having thereafter right to a Sum of 10000 merks for which she was Infeft under Reversion , in other Lands , an order of Redemption was used , and the Money consigned ; Mr. Iohn Elies pursues a Declataror , to hear and see it Found and Declared , that the said Keith was oblidged to infeft him in an Annualrent , out of her Lands , which she had fraudulently Disponed , contraire her obligation , and therefore was now oblidged to Infeft him in other her Lands , or to pay the Sum , as damnage , and interest ; and that therefore any other Lands , or Rights belonging to her , might be affected for his payment , and particularly the Wodset now in question . Compearance was made for the Defenders Grand-child , who had a Right from her Grand-mother to the Wodset , who alleadged , First , That the Bond bearing , an oblidgement for Debt , granted by the Wife , stante matrimonio was null. It was answered , that albeit the Personal oblidgment were null , yet the oblidgment , to Infeft in an Annualrent granted by a Wife , is valid , either against her Heretage , or Liferent , and alleadged several Dicisions therefore . It was answered , that the Wife might do so , if she had borrowed money for her own use , or were principally bound to Infeft in an Annualrent , but this oblidgment being in security of her Personal obligatigation , with her Husband , the principal obligation being null , the accessory is also null .

The Lords repelled the alleadgeance , and found the oblidgement to Infeft valid , albeit accessory , because Deeds , and Obligations of Wyfes not to affect their Persons , but Estates are valid ; and albeit she had not been bound for the principal Debt , she might either have effectually disponed an Annualrent , or which is all one , oblidged her self to Infeft in an Annualrent out of her Heretage , & utile per inutile non vitiatur .

It was further alleadged , that this Wodset , or Sum disponed to her Oy , could not be affected , because her Oy , was the youngest of many Oyes , and did no wayes represent her .

The Lords sustained this Member of the Declarator also , upon the Act of Parliament , 1621. against Dispositions between Conjunct Persons , without a cause onerous , which they found , might either be a ground to reduce the same , or to declare the same to be affected , as if the Right were in the Disponers Person . Herein it was also lybelled , That this Wodset , albeit acquired after the Inhibition , yet seing it lay in the same Shire , where the Inhibition was published , the Grand-child's Right were Reduceable , upon the Inhibition .

The Lords thought so , because Inhibitions being Personal Prohibitions , reach both acquisita and acquirenda , by the Person Inhibit , in the Shires where it is published .

Laird Kilbocho contra Lady Kilbocho . December 20. 1665.

THE Lady Kilbocho , by her Contract of Marriage , being provided to certain Lands , with this provision further , that she should have the Liferent of all Lands Conquest , during the Marriage , whereupon she obtained a Decreet in the English time , which being now under Reduction . It was alleadged , the Clause of Conquest could only give her the Lands Conquest , with the Burden of the Annualrent of a Sum due by the Defunct , to a Person from whom he bought the Land , as being a part of the Price of the Land , especially , seing by a writ under the Defuncts hand , he acknowledged , that this Bond was granted for a part of the Price . It was answered , First , That a Personal oblidgement cannot affect the Land , neither can it affect the Ladies Person : but if the Defunct had pleased , he might have granted an Annualrent out of the Lands Conquest , which then would have affected it , which not being done , his declaring that this Sum was a part of the price , cannot be effectual , nor can infer a Probation against his Wife , in prejudice of her anterior Right . Secondly , This alleadgeance might be proponed as well against the Heir of Conquest , as Liferenter thereof , and yet it was never found , that the Heir of Conquest behoved to accept the Land with the Burden of the Sums borrowed to buy it , nor yet to relieve the Heir of Lyne thereof ; but on the contrair , the Heir of Conquest has relief against the Heir of Lyne , for Personal Debt , though borrowed for acquiring the Right .

The Lords found that the Case was not alike with the Heirs of Conquest , whom Defuncts do Infeft , without any burden ; and Liferenters , who having a speciall Competent Provision , this general Clause being but adjected , as uncertain , is not so favourable , or so to be extended ; seing the Husband did not Infeft the Wife in his own time , in the Conquest . And therefore found her to be lyable to the Annualrent of this Sum , which they found instructed by the Hubands Declaration , where the Ladies Father is a subscribing Witness .

Sir Rorie Mcclaud contra Walter Young and John Govane Eodem die .

WAlter Young , Iohn Govan and Hendrie Hope , by a Letter written to any that they should Buy Kows from in the Highlands , desired , that they might use the Bearer of the Letter kindly , and for whatever quantity of Kows they bought , they should answer such Bills , as he should draw upon them therefore . Hendrie Hope being broken , Iames Gray , as Assigney , pursues the other two for the whole , who alleadged , they were only lyable for their own Parts . It was answered , that they were oblidged to answer such Bills , as the Person intrusted by them should draw ; and they produce a Bill drawn by him , upon them , or either of them . It was answered , that such Bills can only relate to the Quantity , and not to the Quality , and manner of oblidging ; seing if they had so intended , they would have oblidged them , and either of them , or it would have born , what he should draw upon them , or either of them , should be answered .

The Lords found every one of them lyable in solidum , for they thought that the Clause being dubious , was to be interpret against the Writers , and the Sellers of the Kows , were bona fide to rest upon the interpretation of the Persons intrusted .

Sir John Leslie contra Sinclar and Dun. Ianuary 22. 1665.

SIr Iohn Leslie , as Assigney constitute by Sir William Dick to a Bond , oblidging Francis Sinclar as Principal , and young Dun as Cautioner , to deliver 30 Chalders of Bear ; at 10 merk the Boll , Dun alleadges absolvitor , because he was Minor in Familia Paterna , and so his Father was his Curator of Law , and therefore his subscribing as Cautioner was null , being without his Fathers consent . It was answered , the alleadgeance was not competent by exception , against a clear liquid Bond. Secondly , That the Defense is only competent in the Case of Curators chosen .

The Lords found the Defense Competent by way of Exception ; but before answer to the Relevancie ordained the Parties to condescend upon Duns age , the time of his Subscription , and whether he did then administrat , or go about any other affairs .

Dame Rachel Burnet contra Lepers . December 23. 1665.

BY Contract of Marriage betwixt Mr. Iohn Leper , and his Father , and and Dame Rachel Burnet on the other part , both Father and Son were oblidged to employ 20000 lib. upon security for the Liferent use of the said Dame Rachel , who , with concurse of Prestoun her present Husband , pursues the Sisters of the said Mr. Iohn Leper , as Heirs , and otherwayes representing him , and their Husbands , for their entrests ; and likewise Doctor Balfours Wife , only Daughter of an of the Sisters , as Heir to her Father , and Mother , against whom there was Decreet of Registration obtained , during their Lifetimes together , and on this ground , That the Defuncts Husband did by Contract of Marriage , Disposition , or otherwayes ; obtain Right to the Portion of his Wife , one of the Sisters , and Heirs , and therefore is lyable in payment in quantum lucratus est . It was alleadged for Doctor Balfour and his Wife , that she was willing to renounce to be Heir , to her Mother , but as for the other passive Title , as representing her Father , who was locuple●ior factus ; it is no wayes relevant , for Marriage , is a cause onerous , and Tochars are granted ad sustinenda onera matrimonij , and therefore are never counted fraudulent deeds , or without an onerous cause ; nor do they fall within the Act of Parliament 1621. against fraudful alienations ; neither was the Defenders Father lyable though there was a Decreet of Registration against him , because before any Execution , the Marriage was dissolved . It was answered , for the Pursuer , that that member of the Lybel stands relevant , because the Defenders Mother being Heir to her Brother , the Contracter could not transmit her Estate to her Husband , without the burden of her Brothers Debt ; and it is a most unquestionable Ground in Law and Equity , quod nemo debet cum alieno damno locupletari , and therefore Creditors are still preferred to Portions of Children , though given for their Tochar .

The Lords found that Member not Relevant , that Decreet was obtained against the Husband and Wife , stante matrimonio , seing it received not Execution ; and as to the other Member , they thought , that if there were but a moderat and ordinar Tochar , proportionable to the burdens of the Marriage , it would not infer Repitition , or if the Tochar was great , or an universal Disposition of all the Heirs Right , they thought the Husband would be lyable , in so far as it was above a proportionable Tochar , and therefore before Answer , Ordained the Contract of Marriage to be produced , and the Pursuer to condescend , if there was any other benefit accresced to the Husband by his Wife , then by vertue of the Contract .

It was further alleadged , for the Lady Pitmedden , one of the Sisters on Life , that she could only be lyable for her own sixth part , as one of the six Heirs Portioners . It was answered , by our Law , that all Heirs were lyable in solidum . There was several Decisions alleadged on either hand , on the 7. of February 1632. Hoom contra Hoom : Where the Lords found the Heirs Portioners lyable but for their own share . Another February 15. and March 21. 1634. Watson contra Or , Whereby one of the Daughters having a Disposition of the whole Estate , was found lyable for the whole Debt . And another Ianuary 24. 1642. Where one of the Heirs Portioners , having Disponed her share to the other , and thereby being insolvent , that other was found lyable in solidum .

The Lords having considered the Case , found the Heir Portioner lyable , iprmo loco , only for her own share , untill the rest of the Heirs Portioners were discust , but determined not whether these who were solvendo , should be lyable in solidum , albeit the Debt exceeded their Portion , or only intirely for their own share , and for as much more as the value of their Succession could amount to .

Laird of Cesnock contra Lord Bargany . Eodem die .

THE Laird of Cesnock and the Lord Bargany , and Balcarras , being bound conjunctly and severally in a Bond ; Cesnock being distressed for the whole , takes Assignation , and pursues Bargany for two thirds , who alleadged payment ; and because it was a publick Debt , he produced an incident in termino , which the Lords sustained not , because it buire no warrand to cite Cesnock the Principall Partie , and the Executions were within 48 hours by one Person , in Kyll , Renfreu , Fyfe , and Edinburgh , and so suspect , but they superceeded Extract of the Decreet , to the first of November

contra Wilson and Lodwick Callender her Spouse . Ianuary 2. 1666.

〈…〉 pursues a Reduction ex capite Inhibitionis , against Iean Wilson , and Lodwick Callender her Spouse , of all Dispsitions , of certain Tenements of Leith , made by the Common Author , since the Inhibition . It was alleadged , for the Defenders , absolvitor from this Reduction , because the Defenders produced an Appryzing led against the common Author , before the Inhibition , and which is sufficient to maintain the Defenders Right of the Lands in question ; and to exclude all Rights and Interest the Pursuers can have thereto . It was adswered , non relevat , seing the Pursuer is not insisting in a Reduction of all Right competent to the Defenders , upon general Reasons , either bearing expresly , or by equivalence that the Pursuer had good Right , and the Defender had no Right ; but the Pertner is insisting specially upon particular Rights called for , and upon a special Reason . viz. That they were after the Pursuers Inhibition , so that albeit the Defender have another better Right than the Pursuer , it will not be prejudged by this Reduction , nor can it hinder the conclusion of this Summonds . viz. That the Dispositions are null , as being post Inhibitionem . It was answered , for the Defender , that his Defense is relevant , for he alleadging , and producing a sufficient Right to the Lands whereof the Dispositions are called for to be Reduced , it takes away all Interest in the Pursuer to these Lands ; and therefore he may justly thereupon exclude the Pursuer from troubling the Defender in this , or any other Reduction , which can have no effect . It was answered , that if this ground were layed , no Reduction could be sustained of any particular Right , called for to be reduced , unless the Pursuer did reduce all Rights , that the Defender could produce , which is neither just , nor conform to the Custom ; because Pursuers may have necessity to reduce some Rights , in respect of the probation , which may be lost , as either Oaths of Parties , or Witnesses : and yet may not be in readiness to insist against all the Defenders Rights , not having found out theirs , or their Authors progress , but the Lords may reserve the other Rights , seing their is no possession , or other effect craved , but only Declaratoria juris .

The Lords , in respect the Defenders were very poor , and their case favourable , Ordained the Pursuer to insist upon what he had to alleadge against the Defenders Appryzing produced , as if it had been contained in the Reduction ; but it is not to be layed as a general Ground , that in no case Reduction may proceed , albeit it exclude not all the Rights produced in the Defenders person , especially , if any singularity , as to the probation appeare .

George Graham and Jack contra Mr. Andrew Brian . Ianuary 3. 1666.

GEorge Grahame , as Assigney by Iack , having charged Mr. Andrew Brian , he Suspends , and raises Improbation , wherein he insists , and craves , that the Assigney may abide by the Bond ; the Assigney declared , that he would abide by it , as being delivered to him , as a reall true don Deed , without any knowledge of his in the contrare : and offered to produce the Cedent , to abide by it , who compearing . It was alleadged , that he was a Bankrupt , and had a Bonorum ; and therefore behoved to find Caution , to appear at all the Dyets of Process , or to enter in Prison , till the Cause were Discust ; or at least , that the Assigney would be oblidged to produce him .

The Lords having considered the Case , found that the● Assigney was oblidged no further , then what was offered , and they found the Cedent not oblidged to find Caution , or enter in Prison ; but that he should Enact himself to compear Iudicially , whensoever any Point of the Improbation were referred to his Oath , which might infer the falshood of the Writ , if confest , and that if in that Case he compeared not , the Bond should be improven , not only to him , but as to the Assigney , inferring no hazard to the Assigney , as to the Criminal part , if he were not found accessory .

David and Andrew Fairfouls contra Mr. James Binni . Ianuary 4. 1666.

THE Bairns of the Umquhil Bishop of Glasgow , having charged Mr. Iames Binni to pay a 1000 merks , he Suspends , and alleadges that they were Minors , not sufficiently Authorized , in so far as they did choose Mr. Iohn Harper , and Achmoutie and their Mother to be their Curators ; or any two of them , their Mother alwayes being one ; so that their Mother being Dead , who was sine qua non , there behoved to be a new Election . It was answered ; that the Pupils were willing to compear , and acknowledge thir Curators , as their Curators which is sufficient to Authorize .

Which the Lords found relevant .

Laird● of Milton contra Lady Milton . Eodem die .

THE Laird of Milton pursuing a Reduction of a Decreet of Divorce pronounced by the Commissaries of Edinburgh , at the instance of the Lady Milton his Step-mother , against Calderwood her last Husband , upon Adulterie , desired that the Testimonies of the Witnesses might be made privat to him , being a matter of so great Importance , as tending to take away the Right of the Ladies Jointure , disponed be her Husband to this Milton .

The Lords refused the desire , but Ordained the Clerks to give a Note , expressing the names , Designations , and the preambulatory questions in the Depositions , as their age , married , or Not , purged of partial Council , &c.

Lady Bute and her Husband contra Sheriff of Bute . Ianuary 5. 1666.

THE Ladie Bute and her Husband pursue a Reduction of a Right of a part of her Conjunct-fee , made in favours of her Son , upon this Ground , that it was done after her Contract of Marriage with her present Husband , and publick Proclamation in the Kirk thereupon . It was answered . First , That once Proclamation was not sufficient . 2dly , That it was offered to be proven , that the Husband knew , that the Right was granted , and yet he proceeded in the Proclamation , and Marriage , which behoved to proport his acquiescence and consent ; and alleadged likewise the Case was most favourable : because the Lady had married , unsuitably , her Husbands Chapland . It was answered for the Pursuer , that once Proclamation is sufficient , as has been several times found , and that there is no weight to be layed upon her Husbands knowledge , who knew he had a remeed competent in Law , whereby the Deed done by his Wife after the Contract and Proclamation would be null ; and so his going on in the Marriage did not infer his acquiescence , or Homolagation . And as for the favour of the cause , it is much more on the Pursuers part , who being provided by her Husband , to 27 Chalders of Victuall , had before the Contract of Marriage , quite 20 to her Son ; and of the seven remaining , he had urged her to quite 100 lib. And 7 bolls of Victual were only now in question .

The Lords found the Reason of Reduction relevant , and repelled the Defense upon the Husbands knowledge , for they thought , that as Deeds of a Wife cled with a Husband , without his consent , are null , after the Solemnization of the Marriage , because she is then in potestate viri , & sub ejus tutelà , So that she is truely Wife , after the Contract of Marriage , becoming publick by Proclamation , and it occurring , as a doubt amongst the Lords , whether the Reduction ought to be sustained at the instance of the Husband only , in so far as concerned his interest jure mariti , so that the Right might be valid against the Ladie , if she survived .

The Lords sustained the Reason simply , at the instance of both ; and found it null as to both , as being done without her Husbands consent .

Sir Laurence Oliphant contra Sir James Drummond . Ianuary 6. 1666.

THE Lord Roll● , his Liferent Escheat being Gifted in Anno 1658. to Walter Stewart , He Assigned the Gift , and his own Debt , the Ground hereof , and the General Declarator obtained thereupon , to Sir Iames Drum●●mond in Anno 1665. A second Donatar now insists , for special Declarator ; wherein compearance is made for Sir Iames Drummond , who craved preference upon his first Gift , and on his General Declarator . It was answered for the Second Donatar , that the first Gift was simulat , and null by the Act of Parliament 1592. In so far , as the Donatar suffered the Rebel to continue in Possession untill this day , and never attained Possession of any part of the Lands , nor did any furder diligence , but only the General Declarator in Anno 1658. So , that the Rebel having now possest by the space of 6 , or 7. Years : The presumption contained in the Act of Parliament , that upon the said Possession , the Gift is simulat , and null , takes place . It was answered , that there is no definit time in the Act of Parliament , by which the Rebels Possession shall presume simulation , and in this ca●e , there was but few Anni utiles● in so far , as the Gift being in Anno 1658. Declarator was obtained that same year , and in Anno 1659. Judicatures ceased , and began not again till 1661.

The Lords found , that the Donatar suffering the Rebell to possesse 4 , or 5. Years was sufficient to infer the presumption of simulation by the said Act of Parliament , and therefore preferred the second Donatar .

Inter Eosdem . Ianuary ● .

AT pronouncing of the former Interlocutor , the first Donatar furder alleadged , that the Presumption of Simulation , by suffering the Rebel to possesse , could not take place in this case . First , because the Donatar himself was a lawful Creditor of the Rebells , whereupon there is a stronger Presumption , that the Gift was to his behoove , for his own satisfaction : And the Act of Parliament can be only meant of Donatars , who have no Interest , but their Gift , and are not Creditors . Secondly , The Lands were Apprized , and the Donatar knew he would be excluded by the Appryzers .

The Lords repelled the first alleadgeance , and found the presumptio juris in the Act of Parliament was stronger then the contrair presumption , that the Donatar was Creditor ; because it might be his purpose to apply the Gift to the Rebells behove , and not to take that way , having other wayes of payment , competent : and also repelled the second alleadgeance , unlesse it were alleadged , that the Apprizer had been in possession ; so that there had not been 3 , or 4. Years , in which the Rebel had possest ; and that if the Appryzing had attained Possession at that time , it would have excluded the Donatar : but seing it was offered to be proven , that the Rebel possest for 3 , or 4. Years , which was contrair to the alleadgeance of the Apprizers possession of the hail .

They adhered to their former Interlocutor .

Elizabeth Broun contra John Scot. Eodem die .

THere being an Infeftment feu granted , of the Lands of Inglistoun , as Principal , and of the Lands of Fingland , in warrandice thereof long agoe , and Infeftment taken of both Principal , and Warrandice Lands in on Seasine , Registrat in the Registers Seasines , Since the Year 1617. Thereafter the Warrandice Lands were disponed to the Earl of Traquair , and he , being publickly Infeft , gave a subaltern Infeftment to his Vassal , who assigned Iohn Scot to the Mails and Duties ▪ who having Arrested , insisted to make forthcoming : And likewise Elizabeth Broun , having after the eviction of the Principal Lands , arrested the Rents of the Warrandice Lands , insists to make the same furthcoming to her . It was alleadged , that the Original Infeftment whereupon the said Elizabeth Brouns right is founded , is a base Infeftment , and as to the Warrandice Lands never cled with Possession , and the Earl of Traquairs Right , whereon Iohn Scots Right is founded , is a publick Infeftment holden of the King , which is alwayes preferred to a base Infeftment without consideration , whether the publick Infeftment has attained Possession , or no , or how long , but much more in this case , where the publick Infeftment has attained Possession , not only by year and day , but many years : And therefore is directly in the Case of the Act of Parliament 1540. cap. 105. Preferring publick Infeftments to prior base Infeftments , not cled with Possession . It was answered , that base Infeftments are of themselves valid , and before the said Act of Parliament , the first Infeftment made always the best Right , whether it was holden of the Disponer , or of his Superiour , but that Act of Parliament is correctory of the Common-Law , and Feudal Custom , which by the Act it self , appears then to have been constant , and is only altered by the Statute , upon the presumption of Fraud , which is clear , both by the Title against double Fraudful alienations , and by the Narrative , that diverse persons after they have given privat State and Seasine to their Bairns , or Friends ; do thereafter give for Causes onerous , Infeftment to other persons , and therefore such onerous posterior Infeftments , if they attain Possession year and day , are preferred to the said privat Infeftments ; but in this Case , there is no Presumption of Simulation . 2dly . By several Decisions alleadged and produced , it is clear , that the Lords did prefer base Infeftment of Annualrent to posterior publick Infeftments of Propertie , which interveened before the next Term ; so that the Infeftment of Annualrent could not attain Possession ; but if base Infeftments without Possession , were unvalid Rights ; The Lords could not have found so . 3dly . The Lords have allowed Indirect , and Interpretative Possession to be sufficient , not only in the Case when Liferents are reserved , that thereby the Liferenters Possession is the Feears , though he never possest himself , but even when Liferents are not reserved ; but that the base Infeftment is thereby excluded from Possession : so base Infeftments granted to wyfes are preferred to posterior publick Infeftments , though the Wyfes do not , nor cannot possesse , during the Husbands Life , yet the Husbands possession is counted the Wifes possession , and if a Person Infeft by a base Infeftment should pursue for Mails , or Duties , or Removing ; and were excluded by a prior Liferent , constitute by the Pursuers Author● though not reserved in his Right ; that very Action would be sufficient to validat the base Infeftment without Possession . 4thly , Whatever might have been alleadged , before the Act of Parliament 1617. For Registration of Seasines , there is neither Law , nor Favour since , for posterior acquirers , who might have known the prior Infeftments . And therefore in Infeftments of Warrandice Lands , the Possession of the principal Lands is accompted Possession of the Warrandice Lands ; neither is there any ground to oblidge a Person who takes a Feu of Lands , to demand a more publick infeftment of the Warrandice Lands , then of the principal . It was answered , that albeit the Narrative of the Statute mention Fraudful alienations , yet the dispositive words are General , that wherever an Infeftment hath been publick , by Resignation , or Confirmation , and hath attained Possession year and day , the same shall exclude any prior base Infeftment , attaining no Possession , and if the said Act were only to be measured by Fraud then if it could be alleadged , and astructed , that the first Infeftment , though base , was for a cause onerous , and without Fraud , it should be preferred ; which yet never hath been done . And for the Practiques , they meet not this Case , nor the Act of Parliament , because the posterior publick Infeftment had attained no Possession . It was answered , that now consuetude had both Interpret and Extended the foresaid Act ; for thereby posterior publick Infeftments , though they be not for cause onerous , or cled with Possession year and day , are ordinarily preferred contrair to the tenor of the Statute , and base Infeftments , retenta possessione , where the obtainer of the Infeftment is negligent , are accounted Simulat presumptione juris , & de jure but where there is no delay , nor ground of ●imulation , the base Infeftment is preferred , whether the posterior publick Infeftment attain Possession for year and day , or not .

The Lords having heard this Case at length , and debated the same accuratly amongst themselves , in respect they found no preceeding Decision , whether base Infeftments of Warrandice , where there was possession of the Principal Lands were valid , or not ; against posterior publick Infeftments . They found this base Infeftment of Warrandice valid against the posterior publick Infeftment . The Infeftment in Warrandice being Simul with the Principal , and not ex intervallo , and being after the Act of Parliament 1617. but did not decide the Case to be of generall rule for Warrandice , ex intervallo before the said Act.

Grissell Seatoun and Laird of Touch. contra Dundas . Ianuary 11. 1666.

GRissall Seatoun , and the Laird of Touch younger her Assigney , pursues Dundas , as charged to enter Heir to Mr. Hendrie Mauld , for payment of a Bond of 8000 merks granted to the said Grissall , by the said Mr. Hendrie her Son . It was alleadged that the Bond was null , wanting Witnesses It was Replyed , That the Pursuer offered him to prove it Holograph . It was duplyed , that albeit it were proven Holograph , as to the body , yet it could not instruct its own date to have been any day before the day that Mr. Hendrie died , and so being granted in lecto aegritudinis , cannot prejudge his Heir whereupon the Defender has a Reduction . It is answered , that the Reduction is not seen , nor is there any Title in the Defender produced as Heir . It was answered , that the nullitie as wanting Witnesses , was competent by exception , and the the duply , as being presumed to be in lecto , was but incident , and was not a Defense , but a Duply .

The Lords Repelled the Defense upon the nullitie of the want of Witnesses in respect of the Reply and found the Duply not competent , hoc ordine , but only by Reduction , and found there was no Title produced in the Reduction .

Executors of William Stevinson contra James Crawfoord . Ianuary 12. 1666.

THE Executors of William Stevinson , having confirmed a Sum of 3000. and odd Pounds due by Bond , by Iohn Ker , to the said William , and also by Iames Crawfoord , who by his missive Letter , became oblidged to pay what bargain of Victual should be made between the said Iohn Ker , and Iohn Stevinson for himself , and as Factor for William Stevinson . And subsums , that this Bond was granted for a Bargain of Victual . It was answered , that albeit this Bond had been in the name of William Stevinson , yet it was to the behove of Iohn Stevinson his Brother , who having pursued upon the same ground , the Defender was Assoilzied , and that it was to Iohns behove alleadged , First , That Iohn wrot a Letter to his Brother William , to deliver up his Bond , acknowledging , that it was satisfied , and that Iohn having pursued himself , for the other Bond granted in place of this , The said Umquhil William Stevinson compeared , or a Procurator for him , before the Commissars , and did not pretend any Interest of his own ; neither did William , during his Life , which was ten years● thereafter , ever move question of this Bond , nor put he it in the Inventar of his Testament , though that he put most considerable Sums therein . It was answered . 1. That the presumptions alleadged , infer not that this Bond was to Iohn Stevinsons behove ; because , by Iames Crawfoords Letter , there is mention made of several Bargains of Victual , both with Iohn and William : so that the Bond , and pursuite at Johns instance might be for one Bargain , and at Williams , for another , especially , seing the Sums differ . 2dly , Writ cannot be taken away , by any such Presumptions . It was answered , That if the Defender James Crawfoord had subscribed this Bond , it could more hardly have been taken away by Presumptions , but he hath not subscribed the Bond , but only his missive Letter , which is dubious , whether it be accessory to this Bond , or if that Bond was for this Bargain , and therefore such a writ may well be ●lided , by such strong Presumptions .

The Lords found the Presumption Relevant , and that they instructed , the Bond was to Johns behove , and therefore in respect of the ahs●lvitor at Crawfoords instance , they Assoilzied .

William Dick contra Sir Andrew Dick. January 13. 1666.

WIlliam Dick pursues Sir Andrew Dick his Father , for a modification of his Aliment , whereupon the question was , whether Sir Andrew Dick himself being indigent , and having a great Family , of smal Children , and the Pursuer having been Educat a Prentice , whether the Pursuer should have a Modification .

The Lords considering the great Portion the Pursuers Mother brought , and that he was a Person of no ability to Aliment himself by his industrie , decerned Sir Andrew to receive him in his House , and to entertain him in meat and Cloath , as he did the rest , or else two hundred merks , at Sir Andrews option .

James Crawfoord contra Auchinleck . January 17. 1666.

THE Heirs of Lyne , of Umquhile Sir George Auchinleck of Balmanno being provided to a Portion payable by the Heirs Male , did thereupon charge the Appearand Heir Male , and upon his Renounciation to be Heir , obtained Decreet cognitionis causa , after which that Appearand Heir dyed , and the Decreet being Assigned to Iames Crawfoord Writer , he now insists in in a Summons of Adjudication , containing a Declarator , that he having charged the next Appearand Heir , to enter to the last Appearand Heir against whom the Decreet cognitionis causa was obtained , that that Decreet should be transferred against him , and it should be declared , that the Adjudication should proceed against the next Appearand Heir . It was alleadged , for the Defender , that the former Appearand Heir having dyed before Adjudication , and so the Diligence being incompleat , there could be no Process thereon , till this Defender were again charged to enter Heir to the first Defunct , especially , seing he had Annum deliberandi competent to him , of the Law which would be taken from him , if this order were sustained , and as an Appearand Heir , charged , though the dayes of the Charge were run before his death , the same would be void , if no Decreet had followed thereupon : And the obtainer behoved to obtain his Diligence thereupon renewed , so it ought to be in this Case . It was answered , the Case was not alike , for here there is a Decreet obtained upon the Heirs Renounciation ; and there is no reason to put the Creditor to do diligence again , especially now , since the late Act of Parliament , whereby , if he get not Adjudication within a year , he will be excluded , and there are other Appryzings already deduced .

The Lords Sustained the Process , hoc ordine , with this provision , that if this appear and Heir entred , and Infeft himself within year and day , the Adjudication should be redeemable to him within the Legal Reversion of 10. years , by which , neither the Creditor was prejudged of his diligence , nor the Heir of his Priviledge .

Lord Rentoun Justice Clerk contra Fewars of Coldinghame . Eodem die .

MY Lord Rentoun , as being Infeft in the Office of Forrestrie , by the Abbot of Coldinghame , containing many special servitudes upon the whole Inhabitants of the Abbacie , as such a dutie , out of Waith Goods , and out of all Timber cutted in the Woods of the Abbacie , with so many Woods , H●ns and a Threave of Oats , out of every husband Land yearly ; pursues Declarator of his Right , and payment of the bygones , since the year 1621. And in time coming ; both Parties being formerly ordained before answer , to produce such Writs , and Rights , as they would make use of ; and these being now produced , The Pursuer insisted . prim● Loco for Declaring his Right as to the Threave of Oats . It was alleadged , for the Defenders , absolvitor , because they had produced their Fews granted by the Abbots of Coldinghame , prior to the Pursuers Infeftment , free of any such burden . It was answered , The Defense ought to be Repelled , because the Pursuer has not only produced his own Infeftment , but his Predecessors , and Authors Infeftments , and his progresse to them . viz. The Infeftment granted to David Evin , of the Forrestrie , containing all the Duties a foresaid , which is before any of the Defenders Infeftments produced . It was duplyed for the Defender , that the Infeftment granted to the said David Evin is no original Infeftment , but bears , to be granted on his Mothers Resignation , and has no special reddendo , but only relative to the former Infeftments : And therefore , unless the former Infeftments were produced , or it were instructed , that the Resigner had Right , the Infeftment upon Resignation can operat nothing , especially never being cled with Possession , as to the Threaves of Oats in question● for there is great odds betwixt Infeftments granted by Kirkmen , who are but administrators of the benefices , and others , who have plenum dominium , so that Infeftments upon Resignation of Kirkmen are to be understood to confer no more Right than the Resigner had , and not to constitute any original Right where there was none before , in the same way , as Infeftments granted by the King , upon Resignation , are but periculo petentis , and give no Right further then the Resigner had , even against the King . It was answered , for the Pursuer , that his Reply stands relevant , and he produces sufficiently to instruct his predecessors Right ; for there is no Law nor Reason to compell Parties to produce the old Original Feus granted by Kirkmen , but Infeftments upon Resignation are sufficient , neither is the Case alike , as to the King , and Kirkmen , because things passe not by the King ex certa scientia , which no other can pretend ; but in this Case , declaring a Right granted by an Abbot , with consent of the Convent ; it must be considered what made a Right , the time that it was granted , when there was no more required then his Concession , with consent foresaid , which is sufficient against him , and his successors , neither can they pretend , that such grants are salvo jure suo . And if in matters so Ancient , Original Infeftments from Kirkmen behoved to be produced , that neither Precepts of clare constat , nor Infeftments upon Resignation were sufficient ; Few rights of Kirk-lands in Scotland , would be found valid .

The Lords Repelled the Defense , in respect of the Reply , and found this Infeftment upon Resignation sufficient .

Iohn and Ioseph Heriots contra James Fleming Messenger and Cautioners . January 19. 1666.

JOhn and Joseph Heriots having obtained Decreet before the Lyon , against James Fleming Messenger , and his Cautioners , depryving the Messenger upon Malversation ; in so far , as being imployed to execute a Caption , he had taken the Debitor , and had Denounced , and Appryzed his Lands , and suffered the Debitor to escape , and would not subscribe the Decreet of Appryzing , whereupon he was depryved , and decerned to pay 500. merks , conform to the Act of Parliament 1587. cap. 46. And both he , and his Cautioners were decerned to pay the Sum , as Damnage , and Interest to the Pursuer . They Suspend , and alleadge , that the Decreet is null , in so far as it was pronounced by the Lord Lyon , without the concourse of the Heraulds , which is required by the said Act. 2dly , Albeit the Lyon be impowred to deprive Messengers by the said Act , yet their Cautioners are not under his jurisdiction , nor the damnage , and interest of Parties by Messengers malversation , which is only competent to the Judge ordinary . It was answered to the first , oppons the Decreet wherein the Cautioners compeared , and so acknowledged the Lyons Jurisdiction as he then sat , likeas the Decreet it self bears to be by the Lyon , with the Heraulds . To the Second . The Cautioners having enacted themselves in the Lyons Books , they have made themselves lyable , and for the damnages , they are consequent to every Jurisdiction ; and the Lyons have been constantly in use to determine the same , as to this Point .

The Lords were of different judgements , for they thought , that by the Act of Parliament , the Lyon had no such power , but as to long Custom , some thought it was sufficient to give that power , and there was no inconveniencie , seing his Decreets might be Suspended . Others , thought that Custome being clandestine , and without the contradiction of Parties , who might voluntarly submit themselves to any Authority , could not be sufficient .

The Lords Ordained before answer , the Lyons Books to be produced , to see if there were such a Custome , before it were decided , and how far that Custome would work .

Christian Braidie contra Laird of Fairney January 20. 1666.

CHristian Braidie , having pursued a Reduction of a Disposition , ex capute inhibitionis , against the Laird of Fairney , of all Dispositions made by John Glasfoord to him , after her Inhibition , he produced a Disposition , Holograph , wanting Witnesses , of a Date anterior . It was alleadged , that the Holograph writ could not prove its own Date , contra tertium .

The Lords , before answer , ordained Fairney to adduce Witness , and adminacles , for astructing the Date , he adduced fo●● , the Town Clerk , who deponed he dyted the Disposition , and a Town Officer , who saw it subscribed of the Date it bears , and a third , who deponed he saw it subscribed on a Mercat day , at Coupar , which , as he remembred , was in March or Apryl , 1652. Whereas the Date bears the first of August , 1652. But that Glasfoord , when he wrot it , layed it down upon the Table beside himself , and saw it not delivered , and it being alleadged , that the first of August 1652. fell upon a Sunday .

The Lords considering , that Infeftment was not taken upon the Disposition for three years , and that there was no Witnesses deponed upon the delivery , found the Witnesses adduced , not to astruct the Date of the Disposition , and therefore reduced the same .

Clappertoun contra Laird Tarsonce . Eodem die .

CLappertoun raises a Declarator against Tarsonce , for declaring an Appryzing at his Instance , against the Pursuer , to have been satisfied within the legal , by payment of the sums by the Debitor , or by Intromission with the Mails and Duties , either within the seven years of the first legal , or within the three years thereafter , during which , by the late Act of Parliament , Appryzings not expired in Anno 1652. were declared Redeemable , or by Sums received from such as bought from the Appryzer , a part of the appryzed Lands . It was alleadged absolvitor from that member , of satisfaction by the intromission during these three last years ; because the Act of Parliament does not expresly prorogat the Reversion , but declares the Lands Redeemable within three years ; but does express nothing to whom the Mails and Duties shall belong , which cannot be imputed against the Appryzer , to satisfie the Appryzing , because he enjoyed them as his own , the Apprizing by the Law then standing , being expyred ; & bona fide possessor facit fructus consumptos suos , and therefore a subsequent Law cannot be drawn back , to make him compt for that which he might have consumed the more lavishly , thinking it his own . It was answered , that Appryzings were odious , being the taking away the whole Right of Lands , for a sum without proportion to the true value ; and therefore all Acts retrenching them , ought to be favourably interpret , especially where the Appryzer gets all his own ; and therefore the Act declaring them Redeemable , must be understood in the same case as they were before , and that was either by payment , or intromission .

The Lords Repelled the Defense , and sustained the Declarator , both as to payment and intromission ; and as to the sum , the Appryzer got for a part of the Land sold by him Irredeemably after the seven years legal was expyred . And seing the Acquirer of that Right was called ; they found it also Redeemable from him upon payment of the pryce payed for it , cum omni causa , and he to be comptable for the Rents , unless the Pursuer would ratifie his Right , as an irredeemable Right ; in which case the price should be accounted as a part of the sums appryzed for

Lord Rentoun contra Feuars of Coldinghame . Eodem die .

THe Lord Rentoun insisting in the Declarator of his Right of the Office of Forrestry , and of a Threave of Corn with the Fodder , whereof mention is made , Ianuary 17. The Defenders proponed a second Defense , viz. That the Pursuer shewed no sufficient progress from David Ellen : but only an Infeftment granted by Ianet Ellen , Davids Daughter , and so the Pursuers Goodsir upon Ianets own Resignation ; and albeit there was a Precept of clare constat , produced by the Abbot in favours of Ianet , yet no Seasine followed thereupon ; so that Davids Infeftment was not established in the Person of Ianet ; and consequently could not belong to this Pursuer , and the Defenders having gotten their Fews immediatly after Davids Right free of this Burden ; the Right could not be declared , till it were established in the Pursuers Person : and if he should now infeft himself , the Interruption on the Act of Prescription upon the Summons , lybelling upon Davids Right , and the progress produced from David , would fall . It was answered , that the Abbot having granted the Infeftment to Ianet , upon her own Resignation ; yet bearing to be expresly to her , as heir to David : It was equivalent to a Precept of clare constat , which does not necessarly require the ordinar form , but a Charter infe●ting such a Person , as heir to such another , who was before infeft , would be as valide ; so that in this infeftment of Ianets , all being materially included to establish Davids Right in her Person , she being acknowledged heir to David , albeit it be upon her own Resignation , utile per inutile non vitiatur .

The Defenders further alleadged absolvitor , because by several Acts of Parliament , infeftments of Kirk-lands before the Reformation , are required to be Confirmed by the Pope , or the King thereafter . Ita est , this is Confirmed by neither before the Feuers Right : And by another Act of Parliament , it is declared , that the first Confirmation , with the last Feu , shall be preferred . Ita est , the Defenders has the first Confirmation . It was answered , that no Law , nor Act of Parliament , required Confirmation of an Office ; neither was any Confirmation absolutely necessar before that Act of Parliament ; but the Kirk-men might always have Feued without diminution of the Rental of the Lands , as they were the time of the feu ; but that Act was made , in regard that at the time of Reformation , the Kirk-men being out of hopes of preserving of Monasteries , and Kirk-lands , did Feu them to their nearest Friends ; and therefore the foresaid Act , as being correctory of the common Law , ought not to be extended to any thing , but what is exprest in the Act , which is only Feues of Kirk-lands ; and so would neither extend to an Office , as a Baillirie , Forrestrie , &c. nor yet to a Pension , or Annualrent : neither would it extend to Infeftments , by Kirk-men , Ward , such as most of the Infeftments of this Abbacy , and many others are . And seing Confirmation was not requisit , but the Feu it self was sufficient alone , the last Act preferring the first Confirmation , takes no place , which can only be understood where Confirmations are necessar . It was answered for the Defenders , that albeit an Office requires no Confirmation , where there is nothing given but the Office , and Casualities thereof ; Yet where there is a burden upon Lands given therewith , such as this Threave of Oats out of every Husband-land , being far above the proportion of a suitable Fee for the Office , there being above 111. Husband-lands in the Abbacie , and some Forrester-lands following the Office , besides other Casualities , Confirmation is necessar , or else the Abbots might have eluded the Law , and exhausted the Benefice . It was answered for the Pursuer , that he oppones the Acts of Parliament , requiring only Confirmations of Kirklands ; and albeit the Duties , of this Office affects the Lands nihil est , for if the Abbay had Thirled the Lands of the Abbacy to a Miln without the Abbacy : for a Thirled Duty of a far greater value then the Duties of this Office , the constitution of that Thirlage required no Confirmation .

The Lords Sustained the Pursuers progress , and Repelled the first Alleadgence , and also Repelled the last Alleadgence , and found no necessity of Confirmation of the Office , and Duties thereof aforesaid , whether the samine were holden Feu , or Ward : but did not cognosce , whether the same was Feu , or Ward , &c. albeit that was contraverted : neither whether Infeftments of Kirk-lands , holden Ward , needed Confirmation or no.

●contra Earl of Kinghorn . Ianuary 23. 1666.

〈…〉 having pursued the Earl of Kinghorn , upon a Bond granted by his Father . He proponed Improbation , by way of Exception , which was sustained , and a Term assigned to prove , and that same Term to the Pursuer to bide by his Bond. The Defender supplicat , that seing the Act was not extracted , albeit the Term was come , that he might have yet liberty to propone payment . It was answered , he could not , because exceptio falsi est omnium ultima , after which no other could be proponed , much less after the Term was come , and the Pursuer come to bide by the Write .

Yet the Lords sustained the Defense of Payment .

Colonel James Montgomery and his Spouse contra Steuart . Ianuary 24. 1666.

MArgaret Mcdonald and Colonel Iames Montgomery her Spouse , pursue a Declarator against Steuart , Oye and appearand Heir to umquhil Sir William Steuart , to hear and see it found and declared , that umquhil Dam Elizabeth Hamiltoun , Spouse to umquhil Sir William , had Right to certain Bonds and House-hold Plenishing from Sir William , and that the said Margaret had Right thereto , from the said Dame Elizabeth , by her Assignation , and that the sums , and Goods were Moveable , and thereby the Assignation granted thereto , albeit on death-bed , was valid . It was condescended on , that the Bonds were Moveable by a Charge of Horning . It was answered , that the Charge was but against one of the Cautioners , which was not sufficient to make it moveable .

The Lords Repelled the Alleadgence .

Eleis of Southside contra Mark Cass of Cockpen : Eodem die .

ELeis of Southside pursues Cass , as Heir to Mr. Richard Cass , or as being charged to enter heir to him . Compearance is made for Cockpen , who was a Creditor to the Defender , and had appryzed his Lands ; and alleadged no Process , because the Pursuer pursues as Assigney ; The Assignation being his Title , is posterior to the Charge to enter Heir , or Summons which are raised , not in the Cedents Name , but in the Assigneys . It was answered for the Pursuer , that Cockpen could not object this , because he was Curator to the Pursuer , and had appryzed the Lands , and proponed this alleadgence of purpose , to exclude this Pursuer , from coming in within year and day , because , it this Summons were cast ( the Defender being now out of the Countrey ) before a new Charge to enter Heir , could proceed upon 60. dayes , and Citation upon 60. dayes , and the special Charge upon 60. dayes , the year would elapse . It was answered , that Cockpen had never acted as Curator , and that this Summons was raised by the Pursuer himself , after his Majority , who was Major more then a year ago . It was answered , that the Pursuer had but very lately recovered his Writs from his Curators , though he used all Diligence , and was forced to transume against some of them .

The Lords sustained the Summons , in respect Cockpen had been Curator , and so near the time of Minority .

Earl of Eglingtoun contra Laird of Cuninghame head . Ianuary 27. 1666.

THe Earl of Eglingtoun pursues the Laird of Cuninghame-head for the Teinds of his Lands , conform to a Decreet of Valuation . The Defender Alleadged absolvitor , because he bruiked by vertue of a Tack , at least by tacit Relocation , which must defend , ay and while the famine be interrupted by Inhibition , or Process . It was replyed , the Pursuer produces Inhibition , and craves only the valued Duties for the years thereafter . It was answered , the Inhibition is direct to Messengers at Arms , and is only execute by a Sheriff in that part . It was answered , that it was sufficient , seing the Letters bore Messengers , Sheriffs in that part .

The Lords found the Inhibition sufficient , to interrupt the tacite Relocation .

Iean Crichtoun and Mr. Iohn Eleis her Husband contra Maxwel of Kirk-house . Eodem die .

JEan Crichtoun being Served to a Terce of certain Lands belonging to her first Husband Maxwel of Kirk-house , pursues for Mails and Duties . It is alleadged absolvitor , because the Pursuer hath a competent Joynture , more then the third of her Husbands Estate , as then it was ; and a Provision of Conquest : and albeit it be not expresly in satisfaction of the Terce ; yet it is but a minute , bearing to be extended , and there is a Process of Extension thereof depending : and therefore it ought to be extended with such Clauses as are ordinar in such cases , and this is most ordinar , that competent Provisions use to be in satisfaction of the Terce . It was answered , that the Extension could not be with alteration of any substantial Point , such as this , but only as to Procurators of Resignation , Precepts of Seasine , &c. And to show that it was not Kirk house , his meaning , that the Infeftment should be in satisfaction of the Terce ; the Infeftment it self produced , being extended in ample Form , does not bear to be in satisfaction .

The Lords Repelled the Defenses , and found the Terce competent in this Case .

Colonel James Montgomery contra Steuart . Eodem die .

IN the Declarator betwixt these Parties mentioned the 24. day Instant . It was alleadged that the Plenishing , and Moveables could not be declared to belong to the Pursuer , by vertue of Dam Elizabeth Hamiltouns Disposition , in so far as concerns the Moveable Heirship , in respect it was done on Death bed , and could not prejudge the Defender , who is Heir , even as to the Heirship-moveable . It was answered , that the said Dam Elizabeth being Infeft neither in Land , nor Annualrent in Fee , could have no Heirship . It was answered , that her Husband and she were infeft in certain Lands by Hoom of Foord , which were Disponed to her Husband ▪ and her in Conjunct-fee● and to the heirs of the Marriage , which failzing , to whatsoever Person the said Sir William should assign , or design . And true it is he had assigned that Sum to his Lady , whereby she had Right of the Fee , and so might have heirship .

The Lords found that this Designation made the Lady but Heir appearand , or of Tailzie , whereupon she was never Infeft : and by the Conjunct-fee , she was only Liferenter ; and that the Assignation to the Sums and Right , gave not her heirs any heirship moveable .

Heugh Dollas contra Frazer of Inveralochie . Ianuary 31. 1666.

SIr Mungo Murray having by the Earl of Crawfords means , obtained from the King a Gift of the Ward , and Marriage of Frazer of Streichen his Nephew , he did assign the Gift to Mr. Iames Kennedy , and he to Heugh Dollas , before it past the Scals ; and at the time that the Gift was past in Exchequer , the same was stopt until Sir Mungo gave a Back-bond , bearing , that he had promised at the obtaining of the Gift , to be ruled therein at the Earl of Crawfords discretion , who by a Declaration under his hand , declared that the Gift was purchast from the King , for the Minors behove , and that only a gratuity for Sir Mungo's pains , was to be payed to him ; and that the Earl Declared , he allowed Sir Mungo 5000. merks . There was a second Gift taken in the name of Sir William Purves of the same Ward , and Marriage . Heugh Dollas pursuing Declarator of the double avail of the Marriage , because there was a suitable Match offered , and refused . Compearance was made for Sir William Purves ▪ and the Lord Frazer his Assigney , who declared that their Gift was to Streichans behove , and alleadged that the first Gift could only be declared as to 5000. merks . contained in the Earl of Crawfords Declaration , because of Sir Mungoes Back-bond , the time of passing of the Gift . It was answered , First ; That Sir Mungoes Back-bond , and the Earl of Crawfords Declaration , could not prejudge the Pursuer , who was a singular Successor to Sir Mungo ; especially , seing it is offered to be proven , that the Gift was assigned , and intimate before the Back-bond : after which , no Writ subscribed by the Cedent could prejudge the Assigney . It was answered , that the said Assignation being of the Gift , when it was an incompleat Right , and only a Mandat granted by the King , could not prejudge the Back-bond , granted at the time the Gift past the Exchequer , and Seals ; for then only it became a compleat Right , and notwithstanding of the Assignation , behoved to pass in the Donatars Cedent ; his Name ; so that his Back-bond then granted , and Registrat in Exchequer , behoved to affect , and restrict the Gift , otherways all Back-bonds granted to the Thesaurer , and Exchequer , might be Evacuat by anterior Assignations . It was answered ; that this Back-bond was granted to the Earl of Crawford , then , but a private Person , and hath not the same effect , a● a Bond granted to the Thesaurer .

The Lords found this Back-bond granted at the passing of the Gift , and Registrat in the Books of Exchequer , to affect the said Gift , and therefore restricted the Declarator thereto .

In this Process it was also alleadged that the first Gift was null , bearing the Gift of the Ward , and Marriage to be given upon the Minority of Streichen , and the Decease of his Father ; and the second Gift buire , to be upon the Minority of Streichen , and the Decease of his Goodsire , who dyed last Infeft , his Father never being Infeft . It was answered , that the Designation was not to be respected , seing the thing it self was constant , and that the Fathers Decease , albeit not Infeft , was the immediate cause of the Vaccation ; seing the Oye could have no interest , until the Father , though not Infeft , were dead .

The Lords forbore to decide in this , seing both Parties agreed that the 5000. merks should be effectual , so that it was needless to decide in this ; which , if found Relevant , would have taken away the first Gift wholly .

Colonel Cuningham● contra Lyll . Feb. 1. 1666.

IN a Competition between Colonel Cuninghame and Lyll , both being Arresters , and having obtained Decreets , to make forthcoming in one day ; and Colonel Cuninghams Arrestment being a day prior , he alleadged he ought to be preferred , because his Diligence was anterior , and his Decreet behoved to be drawn back to his Arrestment . It was answered for Lyll , that it was only the Decreet to make forthcoming , that constitute the Right ; and the Arrestment was but a Judicial Prohibition , hindering the Debitor to Dispone , like an Inhibition ; or a Denunciation of Lands to be appryzed , and that the last Denunciation , and first Appryzing would be preferred : So the Decreet to make forthcoming is the judicial Assignation of the Debt , and both being in one day , ought to come in together . It was answered , that in legal Diligences prior , tempore est p●tior jure , and the Decreet to make forthcoming is Declaratory , finding the sum arrested to belong to the Arrester , by vertue of the Arrestment : and as for the Instance of Appryzings , the first Denunciation can never be postponed , unless the Diligence be defective ; for if the first Denuncer take as few days to the time of the Appryzing as the other , he will still be preferred .

The Lords preferred the first Arrester , being equal in Diligence with the second .

contra Mr. John and Henry Rollocks . Eodem die .

IN an Exhibition of Writs , it was alleadged that Mr. Iohn and Henry Rollocks , being Advocat ; and Agent in the Cause , was not oblieged to Depone in prejudice of their Clients , or to reveal their secrets ; but they ought to pursue their Clients ; for a Servant , Factor , or Person intrusted with the custody of Writs , ought not to be Examined in prejudice of their Constituent , unless it were as a Witness . It was answered , that their Client was called .

In respect whereof , the Lords ordained the Defenders to Depone concerning the having of the Writs .

Fodem die .

AN Executor Dative , ad omissa & mala appretiata , pursuing the principal Executrix , and referring the Goods omitted , and Prices to her Oath : She alleadged that she had already Deponed at the giving up of the Inventar , and could not be oblieged to Depone again .

The Lords ordained her to Depone , seing she might have intrometted after , and more might have come to her knowledge of the worth of the Goods , or a greater price gotten therefore .

Arch-bishop of Glasgow contra Mr. James Logan . Eeb. 6. 1666.

THe Arch-bishop of Glasgow pursues a Declarator against Mr. Iames Logan , for declaring he had lost his place , as Commissar Clerk of Drumfreis , because he had deserted his place , and gone out of the Countrey , and because he was a Person insolvent , and denunced Rebel , and had lifted a considerable Sum for the Quots of Testaments , which he had taken with him , and not payed . It was answered that the Defender had his Gift from the former Arch-bishop , with a power of Deputation , and that his place is , and hath always been served by a Depute ; and therefore , neither his absence , nor his being Denunced for Debt , can annul his Gift , or hinder him to Serve by his Deput . It was answered , that the principal Clerk , not having , personam standi in judicio , his Depute cannot sit for him , who could not sit himself , and that he being absent out of the Countrey , for a considerable space , must be esteemed to have Relinquished his Place .

The Lords found the Defense Relevant upon the p●wer of Deputation , which they found not to be annul●e● by his absence , or denunciation , sine crimine .

Livingstoun contra Begg . Eodem die

THomas Begg having granted a Bond to Livingstouns his Wife , bearing , that in respect he thought it convenient that they should live a part , he oblieged him to pay her a certain Sum of Money yearly for her aliment , and oblieged him never to quarrel , or recal that Obligation , being charged thereupon , he Suspends on this Reason , that it was donatio inter virum & uxorem , and so he might recal the same , and now offered to Cohabite with his Wife , and aliment her according to his Means . It was answered , that he had Renunced that priviledge , in so far as he had oblieged himself , never to Recal , or come against this obliegment . It was answered , that though he had expresly Renunced that priviledge , yet the Renunciation was donatio inter virum & uxorem , and he might therefore Recal , and come against both .

The Lords found the Reason of Suspension , and Reply relevant in time coming : but not for the bygone time ; during which , the Wife had actually lived a part , and alimented her self .

Laird of Dury contra The Relict and Daughter of umquhil Dury his Brother . Eodem die .

DVry being Served Tutor of Law to his Brothers only Daughter , pursues her Mother for delivery of her to be Educat by her Tutors . It was alleadged , that he was to succeed her , and so could not have the Custody of her Person . 2. That she was but nine years old , and her Mother unmarried , and so she was the fittest person to Educate her ; especially seing she was the only living Child of many , and so not likely to be lively . It was answered , that the Tutor insisted not for the custody of his Pupil himself , but condescended on several Persons , with whom she might be Educate ; and alleadged , that she having 40000. pounds of Provision out of the Family ; there was no Reason she should be keeped by her Mother , and Disposed of at the pleasure of her Mothers Friends .

The Lords Decerned the Child to be delivered to Mr. Alexander Gibson , one of the Clerks , to be Educate with him : but superceeded Execution of the Sentence , till Whitsonday come a year , that she might be delivered to her Fathers Friends , before she was eleven years old , and could have any thoughts of Marriage .

Watson contra Fleming . Eodem die .

THere being an Infeftment of Annualrent granted out of Lands , and Teinds , and an Assignation to the Teind Duties , in so far as extended to the Annualrent . The Teinds , and Lands were thereafter appryzed from the common Author , before the Annualrenter had obtained Possession by his Real Right , of the Annualrent , but only by his Assignation to the Teind Duties . It was alleadged by the Appryzer , that the Assignation to the Teind Duties could give no longer Right then the property thereof remained in the Cedents Person ; which Ceasing by the Appryzing , the Assignation ceased therewith , as is ordinarly , and unquestionably sustained in Assignations to Mails and Duties of Land . It was answered , that there was great difference betwixt Lands , which require Infeftment to transmit the same , and Teinds which require none , but are conveyable by an Assignation ; for if this had been by an Assignation to the Tack of Teinds , protanto , it would have been unquestionably valid ; and therefore being an Assignation to the Teind Duties , it is equivalent as a Disposition to Lands , which would carry the Right of a Reversion , though not exprest , and though there were no more to Dispone but the Reversion only . It was answered , that if the Assignation had been to the Teinds : That is to the Right , or if it had been to the full Teind Duty in the Tack , or of certain Lands ; then the case might have been dubious ; but being , not of the Teind Duties of any particular Lands , but out of the first and readiest of the Teinds of several Lands , it was not habilis modus .

Which the Lords found Relevant .

Town of Glasgow contra Town of Dumbarton . Eodem die .

THere being mutual Declarators , one at the Instance of the Town of Dumbarton , for Declaring that they had Right by their Infeftments , that all ships coming within Clyde , should make their Entries at Dumbarton , and that they should pay Anchorage , for all Ships Anchoring in the River of Clyde , being within their Infeftment , even from the Water of Leven , to the head of Lochluny , within which bounds is the ordinar station of New-wark , Potterig and Inchgrein , and above which , no Vessel above 24. Tuns goes up Clyde ; and likewise for the Measurage , whereby all Ships casting Anchor there , took the Firlots of Dumbarton and measured with , payed 8. pennies of the boll therefore ; and Weightage , which is a Duty for their Weights : and also Tunage , being so much out of every Tun of the Burden of each Ship . And on the other part , Glasgow pursues Declarator of their Liberty to Traffick freely in the River of Clyde ; and to make Entry at their Burgh , and to be free of any such burden at Dumbarton .

The Lords before answer having ordained either Party to adduce such Writs , and Witnesses as they will make use of in the Cause , for instructing these Burdens , the Possession thereof , Interruptions of the same , and Liberty therefrom ; which all being adduced , Dumbarton produced their original Charter , Erecting them in a free Burgh , by King Alexander , in Anno 1221. and another Charter also by King Alexander , repeating their Priviledges of Burgh , as free as Edinburgh , or any other Burgh within the Kingdom , cum custumiis & teloniis ; and also a Charter in Anno 1609. Ratifying the former Charter , and particularly expressing all these Burdens in question , in the novodamus thereof ; and also produced their Entry Books , bearing , the Merchants of Glasgow to have Entred their Ships at Dumbarton , and to have taken the measures of Dumbarton , for measuring their Salt , and to have payed the Duties thereof , and obliging themselves to make use of no others these Voyages , begining at the year 1616. and continuing till the year 1657. in the beginning whereof , there was ordinarly one Ship every year , and thereafter several Ships every year . Glasgow did also produce their ancient Infeftments by King Alexander , mentioning a prior Infeftment by King William , Erecting them into a free Burgh , with their Books of Entries , of several Ships , for divers years , with an Interlocutor of the Lords , in Anno 1609. wherein Dumbarton having charged for all the Duties now in question . Glasgow Suspended , and Dumton insisted for none of these in question , but only for Entries ; and the Lords found , that the Merchants of Glasgow might either Enter at Glasgow , Dumbarton , or any other free Burgh where the Kings Customers were , and might break bulk there , with a Contract between Dumbarton and Glasgow , in Anno 1590. oblieging them to concur against unfree-men , and not to break bulk upon the River , but in their Towns ; and in case of any difference , six of each Town to meet at Ranfrew , and decide the same , and thereupon alleadged , that they being a free Burgh , and having the precedence of Dumbarton , both in Parliament , and so acknowledged by the said Contract , and enjoying equal , and free Trade in the River of Clyde , without any such Burden , whereof no mention is made in the foresaid Contract , and being charged for , in Anno 1611. there was not so much as an alleadgence of any Possession of Dumbartons of these Dues at that time , and the Entry decerned to be free at either Town ; and therefore they alleadged , that their Priviledge of Trading as a free Burgh , ought to be declared , and they assoilzied . It was answered for the Town of Dumbarton , that they had good Right to these Duties , by His Majesties several Infeftments , granted to them ; for the King having power to impose petty Customs , not only in Ports built , and preserved by Industry , but in Stations , and Rivers , Creiks and Bays , as is the Custom of all Kings and Princes , such are the Customes upon the Rivers of Rhyne , Garonnie , Thaimes , and others , to all Ships that anchor there , or pass that way : and whereof , there are severals in Scotland , as the Tunnage , due to Edinburgh of all the Ships breaking bulk at Leith : and the petty Customs of Alloway , Cockenie , and other places . 2ly . Albeit the Kings grant were not sufficient alone , yet being cled with immemorial , or 40. years Possession , instructed by Witnesses , and the Books of Entry , it is more then sufficient . It was answered for Glasgow , to the first , That petty Duties imposed for Ports , having a mutual Cause , may be appointed at any time by Kings and Princes ; it being free to these who are burdened therewith , to come in to that Port , or not : they also appoint petty Customs to be payed to any City , for Goods Imported , and sold there , in consideration of the upholding of their Harbours , and Mercats , as the Tunage of the Harbour of Leith , or anchorage at any Shore , where anchorage is casten upon the Land , or any Goods laid out upon the Land , or where Imposition for anchorage , or other Dues in a River , or Station , hath been approven by long Custom , and acquiescence ; but where Burghs Royal , have not only by their priviledge of Trading , but by immemorial Possession , prescribed a liberty of making use of Stations , without burding ; no Right granted , or Impetrat by any Party in prejudice thereof , if it be quarrelled before Prescription can take away the liberty of Trading : Nor is the Kings Gift any way to be understood , but periculo petentis : and Dumbartons second Charter did expresly bear , that these petty Customs were due , and accustomed before ; so that the Kings express meaning is , not to Gift them de nova , or to impose a servitude in their favours , upon a far more eminent City then themselves . And as to the Point of Possession , nothing is proven thereanent , till the year 1616. and then it is neither universal , seing more Entered at Glasgow , then at Dumbarton ; nor is it peaceable , nor voluntar , nor is it continual , but interrupted ; and albeit it were uninterrupted , yet it is but by single Persons , which cannot infer a Servitude upon the Burgh , and if the Kings Gift be periculo petentis , and be surrepticiously impetrat upon a false Narrative , no Possession can validat it , as no Possession of it self , without a Title , could infer such a Servitude .

The Lords having considered the Depositions of the Witnesses , Books of Entry , and the hail Writs produced ; they found that the alleadgence against Dumbartons Declarator , as founded upon their Charters , without Relation to Possession , was not Relevant , and that the first Charter could not extend to these particulars , not being exprest , unless it had appeared that they had been in immemorial Possession , before the second Charter , and the interruption by the Suspension , raised by Glasgow , and the Lords Interlocutor thereupon● in Anno 1611. for albeit Immemorial , or 40. years Possession immediatly preceeding , might have presumed Possession continually before , since the first Charter ; yet they found that Interruption , or Suspending that particular in question , and no alleadging of Possession by Dumbarton then ; but on the contrair , an Interlocutor , as to the liberty of Entry at Glasgow , takes off that Prescription : And likewise they found , that there was nothing proven as to 40. years Possession , save only 13. sh. 4. d. for the Anchorage of each Ship , and 8. d. for the use of Dumbartons Measures of Salt , for each Boll : and seing that Possession was also proven to be Interrupted , in that several Ships of Glasgow Resisted , and came away free , and that they had several Salt Measures of their own there . Therefore they found the Charter not validat by 40. years Possession uninterrupted , and Assoilzie from Dumbartons Declarator , and Declared upon Glasgows Declarator of Liberty .

Earl of Panmuire contra Parochiners . Feb. 7. 1666.

THe Earl of Panmuire having Right to the Abbacy of Aberbrothick , pursues for a part of the Teinds thereof . It was alleadged absolvitor , because they had possest their Land 40. years free of Teind to any body : and by the general Act of Prescription , all Right prescribes , not pursued within 40. years , and so doth the Right of this Teind . It is answered , that the Right of Teind is founded on Law , and not upon any particular , or privat Right ; and therefore , albeit in the case of Competition of private Parties , pretending Right to Teinds . One Right may be excluded by another ; yet the Teinds themselves must always be due , except where the Lands are decimis inclusis , and did belong to priviledged Church-men of old , such as the Cistertian Order , or Templars , Manse , or Gleibs .

The Lords Repelled the Defense , in respect of the Answer , for they thought , albeit the bygones of the Teind preceeding the 40. years , might prescribe ; yet the Right of Teind could not , more then Customs could prescribe , if they were neglected to be Exacted for fourty years , or a Feu-duty .

Ker contra Hunter and Tennents of Cambo . Feb. 8. 1666.

THe Tennents of Cambo raise a Double-poinding against Ker , and Hunter , both being Infeft in Annualrents , base , where the last base Infeftment within a month of the former , being cled with Possession , by a Decreet of poynding the Ground , a year after both , and no Diligence on the first .

The Lords preferred the last Infeftment , as first cled with Possession .

It was further alleadged , that this Annualrenter had accepted a part of the Land in satisfaction of his Annualrent . It was answered , that there was Write there required , viz. a Renunciation of the rest , and till that was done est locus penitentiae .

The Lords considering the Case , found that if the Promise were only to restrict the Annualrent to a part of the Land burdened therewith , it was pactum liberatorium , and there was not locus penitentiae ; but if it was a Promise to accept other Lands , or the Property of a part of the Lands burdened , there was locus penitentiae , till the mutual Rights were subscribed , whereby the one Party disponed the Property , and the other the Annualrent .

The Heretors of Johns Miln contra The Feuars . Feb. 9. 1666.

THere being an old Thirlage of a Paroch , which was a part of the Barony of Dumfermling , to Iohns Miln , the Feu of the Miln being first granted by the Abbot of Dumfermling , and the Feu of the Land thereafter : there is a Decreet in Anno 1610. pronounced by the Chancellor , as Lord of the Regality , decerning all the Feuars to pay the five and twenty Curn of all Grains that they brought to the Miln , and a greater of that they Abstracted . The Feuar of the Miln pursuing for Abstracted Multures , and for instructing the Quota , producing this Decreet . It was alleadged for the Defenders , that they offered them to prove that , past memory of man , at least 40. years bygone , they have been constantly in use to pay five Bolls of Bear in satisfaction of all Multure ; and so can be lyable for no further , they having prescribed their liberty from any further . 2ly . That no respect ought to be had to the Decreet , in so far as it Decerns a greater quantity for the Corns Abstracted , then for these grinded , which is without all Reason ; especially seing this is but a Burn Miln , and not sufficient for the Thirle . 3ly . They offer them to prove , that the Miln was insufficient , the years pursued for , and no ways able to serve them , and the rest of the Thirle , as being but a Burn-miln , dry in Summer , and not having Water enough in Winter . It was answered for the Pursuer , to the first , that they offered them to prove , they were in Possession of the Multure Lybelled within these 40. years , at least that any lesser Duty was accepted by a particular Paction for a time only . To the second , opponed the Decreet standing , against which there has neither been Suspension , nor Reduction , nor any ground for the same . for its like the coming to the Miln frees them from a greater quantity , for abstraction . And seing the Quota is but the five and twenty Curn , far below the ordinar Thirle Multures ; it was very reasonable , that the samine being abaited to a less quantity , they should pay a greater if they came not . As to the insufficiency of the Miln , it was answered non Relevat , unless it were through the default of the Pursuer , or his Millers , for they being astricted to a Burn Miln , what defect is therein , without the Pursuers fault , cannot louse the Restriction .

The Lords found the Replys Relevant , unless the Defenders condescended upon an insufficiency , through the Pursuers fault .

Here occurred to the Lords , whether the Feuars could by Possession , prescrive their liberty as to a lesser Multure , seing the Possession of a part of the Multure was sufficient to exclude Prescription , as to the whole : some thought , if the Multure had been a certain Quota in the Infeftment of the Miln : Possession also not of the hail , would hindred Prescription of any part ; but if the Infeftment of the Miln , was only with the Multures used , and wont , and that the speciality was but by a Decreet , as the use and wont : that in that case , use and wont might change . Others thought not , but in respect the Pursuer insisted not on that Point , but offered to prove Possession , conform to the Dec●eet within these 40. years . The Lords decided not that Point .

Here also it was alleadged , that by an Act of the Court of Dumfermling , the Defender consenting , at least present , it was Enacted , that such of the Defenders as could not be served , might go to other Milns .

The Lords found this alleadgence only Relevant , that it was by consent of the Pursuer , or his Authors , but left it to be the Defenders● after production , to qualifie what way the consent was given ; but that his presence and silence was not enough .

The Collector of the Vaccand Stipends contra Parochioners of Mayboll , and Girvane . Feb. 10. 1666.

THe Collector of the Vaccand Stipend , having charged the Heretors of Mayboll , and Girvane , for the Stipend due by them , the year 1663. They Suspend , and produce the Ministers Discharges , who served these years , and alleadged they made payment bona fide , before this Charge . It was answered , they were in mala fide by the Act of Parliament , of the last Session of Parliament , declaring the places of Ministers , Entred since 1649. to be Vacant , if they had not obtained Presentation , and Collation conform to the Act. It was answered , that the foresaid Act was not simple , but conditional , if they had not obtained Presentation and Collation ; and there was nothing oblieging the Parochioners to enquire whether they had done that , which by the Law they were oblieged to do ; but seing there was no Charge against them by the Collector of the Vaccand Stipends , and that the Patron , or Ordinar did not present another ; but suffered the then Incumbents to preach all that year , they were in bona fide , to think that they might pay them for the time they Served . It was answered , there was a Decreet produced against the same Ministers , for the year 1662. and therefore they could have no Right to the year 1663.

The Lords found the Reason of Suspension Relevant and proven notwithstanding of the Answer ; because the Decreet was not against the Heretors , and was but obtained in 1664. after they had made payment of the year , 1663.

The Minister of North-Leith contra Merchants of Edinburgh . Eodem die .

THe Minister of North-leith having pursued some Merchants of Edinburgh Importers of Herring , of dry Fish , Killing , and Ling , at Leith and New-haven , to pay twenty shilling of the Last of Herring , and the twentieth part of the Killing and Ling. It being alleadged , that such a burthen could not be allowable , because the Teinds was taken where the Fish was taken . 2ly . That it could only reach the Parochioners of North-leith , not the Merchants of Edinburgh . And , 3ly . That they had frequently Traded free of such a Burden .

The Lords having ordained the Pursuer to adduce Evidences by Writ , or Witnesses , what Possession they had , and the Defenders what liberty they had ; and having heard the Testimonies of the Witnesses , with an old Decreet for the same particulars , but not against the Merchants of Edinb●rgh , nor for dry Fish , they found 40. years Possession , proven of the said Burthen , and therefore Decerned .

The Laird of Wedderburn contra Wardlaw . Feb. 13. 1666.

WEdderburn pursues a Reduction of a Feu granted to Wardlaw , ob non solutum canonem , by vertue of a Clause irritant in the Infeftment . The Defender offered to purge , by payment at the Bar , and alleadged several Decisions that it hath been so allowed . It was answered , that was only the case of a Reduction upon the Act of Parliament , declaring Feus null for not payment of the Feu Dutie , but where there is an express Clause irritant in an Infeftment , that cannot be purgeable at the Bar ; else such Clauses should be useless , seing without these , de jure , the Feu Duties behoved to be payed at the Bar ; or otherwise the Feu annulled .

The Lords found , that there was a difference betwixt a Clause irritant , and upon the Act of Parliament , and so would not admit of purging at the Bar simply , unless the Defender condescended upon a Reasonable Cause , ad purgàndam moram , and therefore ordained them to Condescend .

Archbishop of Glasgow contra Commissar of Glasgow . Feb. 14. 1666.

THe Archbishop of Glasgow pursues a Declarator , or to hear and see it found and Declared , that Commissars ought to be persons qualified , and able to judge according to Law , and that if they be not , they might be deprived by the Act 1609. empowering the Bishops , then restored , to appoint able , and sufficient men , Commissars in all time coming ; and by the Act of Restitution 1661. whereby the like power is granted , excepting Commissars nominat by the King , unless he be insufficient , or malversant : and subsumes that Mr. William Fleming is not sufficient , nor qualified for that Place ; and also , that by the injunctions given to Commissars ; mentioned in the Act 1609. there is no place for Deputs , unless it were by special consent of the Bishops , and craves that it may be declared , that the said Mr. William may not Serve by a Depute . The Pursuer insisted on the first member . It was alleadged for the Defender , that he had his Place both from the King , and Bishop Fairfoul confirming the same with a Novo damus : and therefore , though he might have been questioned before the said Ratification , and new Gift ; yet now he cannot be questioned upon insufficiency , but only on Malversation , whereof there is no point alleadged , nor condescended on , nor is his insufficiency qualified by any Act of inorderly Process , or injustice committed by him now these five years , and as Bishop Fairfoul , who acknowledged him to be a fit , and qualified Person , by his Ratification could never quarrel him upon insufficiency , neither can this Bishop . 2ly . The Defender has his Place with power of Deputation ; and therefore having given eight thousand merks to the former Bishop for his Ratification , with power of Deputation , he cannot be questioned on his sufficiency , being able , per se aut per deputatum , and no Act alleadged of injustice . It was answered by the Pursuer to the first Defense , that albeit this same Bishop had admitted this Commissar , upon hopes of his Qualifications , yet if contrair to his expectation , it appears he is not qualified for so eminent a Judicature . He may justly quarrel him of insufficiency , as well as a Minister whom he ordained . 2ly . Though the same Person might not , yet his Successor in Office might , and is not bound to acknowledge what his Predecessor did by mistake , or otherwayes to the detriment of the Sea , which were in his option , without a Rule , or requiring Qualifications , as the naming of Commissars . To the Second , albeit Deputs were allowable , as they are not by the Injunctions , yet the principal Commissar , who must Regulat , and answer for them , must also be qualified , both by the Act 1609. and the exception 1661. which enervats both the Defenders Gifts .

The Lords found that Member of the Lybel on the Qualifications , and sufficiency Relevant .

My Lord Ley contra Porteous . Feb. 15. 1666.

MY Lord Ley , having Right by progress to the Reversion of an old Wodset , uses an Order , and pursues Declarator thereupon . The Defender alleadged no Declarator , because by the Reversion , there is a Tack to be granted , to begin after Redemption , and to continue for so many years . It was answered , that Tack was null , and invalide , not only by Common law , as an usurary Paction , giving the Wodsetter more then his ordinary Annualrent , but by a special Act of Parliament , Ia. 2. Par. 1449. cap. 19. whereby such Tacks taken in Wodsets , to endure long time after the Redemption , for the half mail , or near thereby , shall not be keeped : and as by the late Act of Parliament , between Debitor and Creditor , it is provided , that where old Wodsets were granted before 1650. when annual was at ten for ilk hundreth , the Wodsetter may , upon offer of Caution for the annualrent , take Possession , unless the Wodsetter offered himself to be comptable for what exceeds his annualrent . It was answered for the Defender , that his Defense stands yet Relevant , notwithstanding the answer , for as to the old Act of Parliament , it is in desuetude , and it hath been the common custom to grant such Tacks in Reversions , which have still been observed , and were never quarrelled , neither are they usurary , seing the Tacksman has the hazard of the Fruits , and all burdens , so his Tack-Duty , how small soever , unless it were elusory , can be no usurary paction , more then taking Lands in a proper Wodset , which pay more then the true annualrent , which was never found usurary . 2ly . This Wodset is granted since that old Act , whereby the benefit thereof is totally past from . As to the new Act , the Clause bears expresly , that during the none Redemption , or none Requisition , the conditions therein shall take place , which cannot be extended to a Tack , to be granted after Redemption . It was answered , that the first Act bears , not only a Regulation of Wodsets already then granted , but to be granted , bearing expresly , who takes or has taken Lands in Wodsets , &c. and there is nothing in the Wodset to renunce the benefit thereof . As for the custom , Acts of Parliament are not derogat by custom of privat parties , a●quiescing in their agreements ; But the custom of the Lords by current Decisions . As to the last Act , it ought to be drawn , ad pares casus , and the Lands are not effectually Redeemed , till the Tack be ended .

The Lords found the last Act no ground for annulling such Tacks , but found the first Act a good ground , if it were subsumed according to it , that the ●ands were set for half Mail or thereby .

Lyon of Muiresk contra Gordon and others . Eodem die .

JOhn Lyon of Muiresk , having obtained Decreet of Spuilzie of certain Goods , against Gordon and others , they suspend and alleadge the Act of Indemnity , that they took these Goods , being under the Command of the Marquess of Hunlly . It was answered , that the Charger was in friendship with the Marquels , and on his side , and so they cannot Cloath themselves with the Act of Indemnity , as done upon hostility . 2ly . The Act Indemnifies only Deeds done by Command , and Warrant of any pretended Authority ; but here no such Order is alleadged , It was answered , that Orders were not given in Writ , and if none get the benefit of the Indemnity , , but these can shew● or prove Orders , few , or none will enjoy it ; nor need the Suspenders to Dispute whose side the Charger was on ; seing they acted by Order .

The Lords found , that it was sufficient to alleadge that the Charger was , the time of the Intromission , actually in Arms , and acted it with a Party , being then in Arms , but needed not prove their Order , or the application of the Goods to publick use ; but found it Relevant , if it were offered to be proven by the Suspenders Oath , that they had no Warrant , or Order , or pro ut de jure , that they applyed them to their own privat use , not for any publick use .

Iames Borthwick contra Ianet Skeen . Feb. 16. 1666.

JAmes Borthwick , having obtained Reduction of Ianet Skeens Liferent-right , as a non habente potestatem , obtained payment of a Terms Rent before the Decreet of Reduction . Ianet pursues for that Term , and alleadges that the Decreet of Reduction could not be effectual till it were pronunced , albeit it bear her Right to be null , ab initio , yet that is but stylus curiae . It was answered , that the Tennent payed bona fide , after Reduction obtained , and intimat to him , and that the Lords may ex arbitrio , find the effect of the Reduction , either to be asententia , Litiscontestation , or a Citation .

In this Reduction the Lords Assoilzied the Tennent for this Term , though before Sentence .

Earl of Winton contra Countess of Winton . Eodem die .

THe Earl of Winton pursues a Reduction of an agreement made by his Tutors and Curators with my Lady , giving her a certain Duty for her Interest in his Coal , as being minor , and laesed , in so far as by her Contract , she had only Right to the fourth part of the Coal in his Property ; now his Coal for several years , has been in his Feuars Lands , by Reservation in their Rights . And also craved the bygons . It was answered , that bona fide possessor facit fructus consumptos suos , the Lady by the Agreement , could not compt for the years Duty she had gotten . It was answered , that this holds not in the case of Minority , and Laesion . It was answered , that albeit Minority Repones , as to any principal Right , yet not as to the Fruits , and accrescences medio tempore .

The Lords Reduced , but Assoilzied the Lady from Repetition .

Sharp of Houstoun contra Glen . Eodem die .

GLen Pursues for Mails and Duties of some Lands . Houstoun compears , and alleadgesthat he has Right to these Lands , by an Apprizing expired . It was answered , his apprizing was null , because it proceeded on four Bonds , the Term of payment of one whereof was not come the time of the Appryzing , and so not being due , the Apprizing was void , quoad totum . It was answered , the sum was due , albeit the day was not come , and so being but , plus petitum tempore , he was willing to admit the apprizing to be longer time by the double , redeemable after the legal were expired , then all the time he apprized before the hand .

The Lords found the Appryzing void as to that sum . Whereupon occurred to them , to consider whether the appryzing should fall in totum , or stand for the other 3 Bonds . And if it stood for these , whether a proportionable part of the Lands appryzed effirand to the Bond , whereof the Term was not come , should be found free , or if the rest should affect the whole Lands , as if for these only the appryzing had been led , wherein the Lords were of different opinions , and recommended to the Reporter to agree the Parties .

Lady Otter contra Laird of Otter . Eodem die .

LAird of Otter having Infeft his Wife in Conjunct-fee , or Liferent , in certain Lands , cum molendinis , did thereafter build a Miln thereupon , and the question arising betwixt the Liferenter and the Heir , who should have Right to the Miln ? The Liferenter alleadged aedificium solo cedit . The Heir alleadged , that a Miln is distinctum tenementum , that cannot pass without Infeftment , aud the Clause in the tenendo cum molendinis , is not sufficient , not being in the Dispositive Clause , nor any Miln built then : and he offered to make up all the Liferenters damnage , by Building on her Ground .

The Lords found that the benefit of the Miln belonged to the Liferenter , as to the Multures of all that was ground without the Thirlage , but found it not to extend to Lands of the Defuncts , which he had Thirled to the Miln .

John Hay of Knokondie contra Litlejohn . Eodem die .

JOHN Hay pursues Litlejohn for the damnage sustained by a House belonging to Litlejohn , falling on the Pursuers House . It was alleadged the Defender was only Apprizer of a Liferenters Right , and this behoved to lye upon the Fiar , who was oblieged to uphold the Liferenters House .

The Lords found the Defender lyable , seing he possest as Apprizer sixteen years , and also intrometters with the profits of the House , are liable for the damnage sustained thereby , seing both Fiar and Liferenter , were oblieged to uphold it , and are liable de damno .

Lord Salton contra Laird of Park and Rothemay . Feb. 20. 1666.

THe Lord Ochiltry having a Disposition of the Estate of Salton , from the umquhil Lord Salton in anno 1612. Disponed the same to Park Gordon , Rothemay and others . This Lord Salton having granted a Bond to Sir Archibald Stewart of Blackhall , he thereupon apprized all Right that could be competent to the Lord Salton of that Estate : which Right being now retrocessed to the Lord Salton : he pursues Reduction of the Lord Ochiltries Disposition , and of all these Rights founded thereupon in consequence . The reason of Reduction is founded upon an Interdiction , against the Lord Salton , Disponer , before his Disposition ; and there having been a Process formerly depending at the instance of umquhil Sir Archibald Stewart , and being Transferred after his Death , the Lords allowed the Process to proceed upon the Minute of Transferrence , without Extracting the Decreet of Transferrence , which behoved to include the Process , and hail minuts , which could not be done for a long time , whereupon the Lord Salton , now insisting in the principal Cause . It was alleadged , first , No Process , till the Principal Cause were wakened : For albeit the principal Cause be Transferred ; yet it is but instatu quo ; and therefore being sleeping , there can be no Process , till after the Transferrence , there be a wakening .

The Lords Repelled this Alleadgence , and found the Transferrence sufficient without any wakening . It was further alleadged Absolvitor , because the Pursuers Title being an Apprizing , the Defender has an anterior Apprizing , which does exclude the Pursuer● ay and while it be Reduced , or Redeemed . It was answered , that the ground of this Pursute being a Reduction , upon Interdiction ; the Interdiction cannot be directly apprized , but only the Lands belonging to the Person Interdicted , being Apprized , all Apprizers or other singular Successors , coming in the place of the Heirs of the Person Interdicted , may pursue on their Rights , and thereupon Reduce voluntar Dispositions , made contrair the Interdiction : which Interdiction is not a Right it self , but medium impedimentum exclusivè of another Right , as an Inhibition , and as a first Appryzer cannot hinder a second Appryzer to make use of his Right , except in prejudice of the first Appryzer ; so he cannot hinder him to make use of the Interdiction , to take away a voluntar Disposition● but prejudice of the first Appryzers appryzing , as accords : And in the same way a second Appryzer , or any Creditor might pursue upon an Interdiction or Inhibition against a Creditor .

Which the Lords found Relevant , and declared the Pursuer might Reduce this voluntar Disposition upon the Interdiction , but prejudice of the Defenders appryzing .

contra Hugh Mcculloch . Eodem die .

THe Laird of Balnigoun being arrested in Edinburgh , for a Debt due to a Burges , Heugh Mcculloch became Caution for him in these Termes that he should present him to the Diets of Process , and should make payment of what should be Decerned against him , if he did not produce him , within Termes of Law , pendente lite , Balnigoun raises Advocation , and at the same Diet that the Advocation was produced Judicially before the Bailzies , Heugh Mcculloch also produced Balnigoun , and Protested to be free of his Bond as Cautioner : the Bailzies did not Incarcerat Balnigoun , but refused to Liberat Heugh Mcculloch● till they saw the Event of the Advocation . The Cause b●ing Advocat , and Decerned against Balnigoun , who succumbed in an alleadgence of payment . The Pursuer craved Sentence against him , and Heugh Mcculloch his Cautioner . It was answered for Heugh Mcculloch , that he was free , because he had fulfilled his Bond , in presenting Ballangoun , and Protest●ng to be free , albeit the Bailzies did not free him , that was their fault . It was answered , that the Advocation being raised , hindred the Bailzies to Incarcerat , because they might not proceed after the Advocation ; and therefore the Cautionrie behoved to stand , otherwise all Acts of Caution , to answer as Law will , might be so elided .

The Lords found the Cautioner free , and found that the Bailzies , notwithstanding of the Advocation , might Incarcerat the principal Party , unless he had found new Caution , for seing if he had found no Caution , a principio , but had been Incarcerat , till the Cause had been Discust the Advocation would not have liberat him : and whensoever the Cautioner produced him Iudicially , and protested to be free , he was in the same case as if he had been Incarcerat , and therefore the Bailzies might have detained him in Prison , notwithstanding of the Advocation , which did sist the Cause .

Mcbrair contra Sir Robert Crichtoun , alias Murray . Eodem die .

DAvid Mcbrair pursues a Removing against Sir Robert Crichtoun , who alleadged absolvitor , because the warning was null , in so far as he being notourly out of the Countrey . The Warning proceeded on 40 days , not only at the Ground and Paroch-kirk , but also at his Dwelling-house , whereas it ought to have been on Letters of Supplement on 60 days , at the Mercat Cross of Edinburgh , Peer and Shore of Leith . It was answered , that the Act of Parliament anent Warning , was only on 40 days without distinction , being out of the Countrey , or in the Countrey● and it was sufficient that the Summons of Removing upon the Warning , was upon 60 days ; because the Warning at the House , was rather an Intimation then a Citation , which was sufficient , seing the Defender had been butshort while out of the Conntrey , not animo remanendi , and so had still a Domicile where he was Cited .

The Lords sustained the Warning , but in Respect the Defender had probabilem causam dubitandi . They superceeded the Execution to the next Whitsonday , without any violent profits .

Lord Borthwick contra his Wodsetters . Feb. 21. 1666.

THe Lord Borthwick pursues an Accompt and Reckoning against several Wodsetters , who had Wodsets from him in the year 1660. to Count and Reckon for the Superplus of the Wodset , more then their annualrent since the Act of Parliament between Debitor and Creditor , upon that Clause thereof , appointing Wodseters , who have proper Wodsets before the year 1650. or since before the Act to Compt , and be lyable for the superplus more than their due annualrent . It was alleadged for the Defenders , That the Pursuers had in the Wodsets expresly Renunced the Usurpers Act in favours of Debitors , and all such Acts made or to be made : and by the said Act between Debitor and Creditor , there is an Exception● where Persons have renunced such Acts. It was answered that that Exception is insert in the Act before this Clause , in Relation to Wodsets , and does not relate to it , but unto the former Provisions , of Suspending the Sums , which was also the Tenor of the Usurpers Act , and therefore the Exception of the Renuncing such Acts , cannot extend to the Case of accounting for Wodsets , which could not be thought upon , the time of the Wodset , and of the Renunciation ; this Clause being according to common Law , to hinder Usury , which might have been indirectly taken by proper Wodsets , though these by the Custom , use not to be quar●elled .

The Lords Repelled the Defense , in respect of the Reply , and found the Exception not to extend to the Case of Wodsets .

It was further alleadged for the Defenders , that they were not lyable to to compt for the Superplus , for all years bygone since the Act of Parliament , nor at all , except in the Case that they had been required to quite the Possession of the Wodset , and Security had been offered them for their Money , and they had chosen rather to retain the Wodset , and to compt for the Superplus ; for as to all years preceeding , they were bona fide Possessors , and had ground to presume that the Pursuer did acquiesce in the Wodset , as only proportionable to the annualrent , and it were unjust and of evil consequence , that if the granter of the Wodset should forbear to offer Security for 20 years upon his offer then , the Wodsetter should be oblieged to Compt from the Act of Parliament . It was answered , that there was no inconveniency , seing the Wodsetter might , if he pleased , quite the Possession , and then was not comptable at all : But if he would retain the Possession , he could not refuse to compt for all bygones , since the Act of Parliament .

The Lords having considered the Clause of the Act of Parliament , found the Defenders only lyable from the time of the offer of Caution , and Requiring the Possession , and not from the date of the Act of Parliament , seing the Clause bears , they shall have by the Wodset , which looks to be future only ; and seing the Wodsetters might have Builded or Planted for their own accommodation , and therefore might rather reain the Possession then other Security .

Ogilby contra Eodem die .

THe like case was decided betwixt Ogilby and where this was further Represented , that the Summonds could not be Sustained , unless the offer had been made by way of Instrument before the Summons , yet the Lords Sustained the offer instantly , made to have effect ab hoc tempore , but not from the Citation . It was also further alleadged for the Defender , that there was now no Caution offered . It was answered for the Pursuer , that there needed no Caution , if the Wodsetter choised to retain the Possession ; because the Wodset it self was sufficient Security . It was answered , that they were not obliged to declare their option , till Caution were first offered by the granter of the Wodset , and the Statute behoved to be strictly Observed . It was answered , that there was here no detriment to the Wodsetter , and the granter of the Wodset might be so poor as not to be able to find Caution .

The Lords found , in respect of the Act of Parliament , that Caution behoved to be offered , and would not exceed the Terms thereof .

contra The Sheriff of Inverness . Eodem die .

〈…〉 being pursued for Theft-boot before the Sheriff of Inverness , upon the old Act of Parliament Iames 2. bearing , that whosoever should compone with a Thief , for stollen Goods should be lyable in Theft-boot , and punishable as the Thief or Robber . He raises Advocation on this Reason , that the Act was in desuetude , and the matter was of great moment and intricacy , what Deeds should be compted Theft-boot , whereinto no inferiour Judge ought to decide , because of the intricacy . It was answered , that the Lords were not Competent Judges in Crimes ; and therefore could not Advocat Criminal Causes from inferiour Courts , and the Earl of Murray being Sheriff , and having sufficient Deputs , both should concur in the careful Decyding of the Cause . It was answered , that albeit the Lords did not Judge Crimes , yet it was competent to them to Advocat Criminal Causes , ad hunc effectum , to remit them to other more competent unsuspect Judges .

The Lords Advocat the Cause from the Sheriff , and Remitted the same to the Iustice● because of the antiquity of the Statute , and intricacy of the Case .

Lockhart contra Lord Bargany . Feb. 22. 1666.

THe umquhil Lord Bargany being adebted in a sum of Money to Sir William Dick , he appryzed , but no Infeftment nor Charge followed . Thereafter a Creditor of umquhil Sir William Dicks , appryzes , but before the appryzing , Lockhart upon a Debt due by Sir William Dick , arrests all sums in my Lord Bargany's hand , and pursues to make forth-coming . This Lord Bargany takes a Right from the appryzer , for whom it was alleadged , that he ought to be preferred to the Arrester , because the arrestment was not habilis modu● , in so far as Sir William Dick having apprized for the sum in question , the apprizing is a judicial Disposition , in satisfaction of the sum ; and so it could not be arrested , unless it had been moveable by a Requisition or Charge . It was answered , that the Act of Parliament , Declaring Arrestment to be valid upon sums , whereon Infeftment did not actually follow , made the Arrestment habile , and the Apprizing can be in no better case , then an heretable Bond Disponing an annualrent . It was answered , that the Act of Parliament was only in the case of Bonds , whereupon no Infeftment followed , but cannot be extended beyond that case , either to a Wodset granted for the sum , where the Property is Disponed , where no Infeftment had followed ; or to an Apprizing , which is a judicial Wodset , pignus pretorium . It was answered , that the Reason of the Law was alike in both cases , to abbrige the Lieges unnecessar Expences by apprizing .

The Lords preferred the Apprizer .

Bishop of Glasgow contra Commissar of Glasgow . Eodem die .

THe Bishop of Glasgow insisted in his Declarator against the Commissar of Glasgow ; and alleadged first , that by injunctions related to in the Act of Restitution 1609. It was provided , that all Commissars should Reside at the place where the Commissariot Sat , and should not be absent , but upon necessity , and with leave of the Bishop , under the pain of Deposition , and that in case of the absence of the Commissar , through sickness , or other necessity , or through being declined in these Causes , the Bishop should name a Deput : From whence it was alleadged , first , That the Commissar had already Transgressed the Injunctions , and deserved Deposition for none Residence , and for appointing Deputs himself , not appointed by the Bishop ; yea , for continuing to make use of these Deputs , albeit the Bishop did intimat the Injunctions to him , and did Judicially require the Deput not to sit , and took Instruments thereupon . 2ly . That in time coming it ought to be De●lared , that the Commissar ought to Reside , under the pain of Deprivation , and to Act by no Deput , but such as were authorized by the Bishop . It was alleadged for the Defender , Absolvitor from this Member of the Declarator , because the Defender had his Office from the King , and the late Bishop of Glasgow , with power of Deputation . And as to the Injunctions , first , They had no authority of Law ; for albeit the Act of Parliament 1609. related to Injunctions to be made , yet it did not authorise any Persons to make the same , nor is it constant , that these are the Injunctions that is alleadged to be made by the Bishops in anno 1610. 2ly . Albeit they had been then so made , they are in de●uetude , because ever since , all Commissars have enjoyed their place with power of Deputation , and exercised the same accordingly . 3ly . There is no Injunction against the Bishops , giving power to the Commissars to Deput ; for albeit the Injunctions bear , that in such cases he could not give Deputation ; and therefore the Commissar did not wrong , to continue his Deput . And it is most necssar , that the Commissar should have a Power of Deputation , or otherwise , their Office is elusory , seing the Bishop may be absent , or refuse to Depute any Person , in case of the Commissars necessary absence , and so both delay Justice to the Leidges , and Evacuat the Gift . It was answered for the Pursuer , that first , the Injunctions were commonly received and known through all the Kingdom , and are Registrat in the Commissars Books of Edinburgh , being the Supream Commissariot , and according thereto , the Lords have decided in Advocations and Reductions ; and albeit they have not been observed , seing there is no contrair Decision , they cannot go in desuetude by meer none observance . 2ly , That the Injunctions do import , that no Deputation can be granted by Commissars , but only by the Bishops in casibus expressis . It is clear from the foresaid two Injunctions ; for to what effect should the Commissars Residence be required , if he might at his pleasure act by Deputs ; and why were these cases exprest , if Deputation were competent in all Cases . 3ly . Albeit the power of Deputation granted by Bishop Fairfowl be sufficient , during his life , and seclude him from quarrelling the same , personali objectione ; yet that Exception is not competent against this Arch-bishop . 4ly , The Injunctions being sent up to the King , His Majesty has Signed and Approven the same , which therefore Revived them , and for the inconveniency upon the Bishops absence or refusal , is not to be supposed , but that the Bishops concerned in the Commissariots , would provide remeid in such Cases . The Defender answered , that Acts of Parliament were not drawn ad pares casus & consequentias , much less their Injunctions , and though they were now Revived , yet that cannot be drawn back to the power of Deputation granted before : Neither can this Bishop be in better condition then his Prececessor , or quarrel his Predecessors Deed , which he had power to do . The Defender did also resume the Defense , as to sufficiency and tryal , that seing he had power of Deputation , he was not lyable to Tryal , nor to Reside , if his Deput were sufficient .

The Lords found , that albeit the power of Deputation should absolutely stand ; yet the principal Commissar behoved to be be sufficient , and ordinarly Resident , seing his sufficiency was both requisit by the Act of Restitution 1609. and by Exception in the Act of Restitution 1661. and that he ought to direct and over-rule his Deputs , for whom he was answerable ; and therefore was oblieged to Reside , that albeit he did not constantly sit , yet he might advise with his Deputs in important Cases , and the Lieges might have access to him to complain in case of the Deputs Malversation , and as to the power of Deputation it self , and the Injunctions .

The Lords found , that the Defender was in bona fide , to enjoy these Priviledges till it was declared , notwithstanding he was required to the contrair : but as to the future , they found that he ought to reside , and make use of no Deputs , without the consent of the Archbishop , but whether that should be only pro re nata , or by a warrand for such Persons , not only upon necessar occasions , mentioned in the injunctions , but also in others , that the Deputs might ordinarily sit , and advise with the Commissars , in Cases of importance . The Lords were of different judgements , and recommended to the Bishop in common , to consider what was fit in that Case , but declared only according to the Injunctions without interpretating how far the Deputation should reach .

Children of the Earl of Buchan contra Lady of Buchan . February 23. 1666.

THe six Children of the Earl of Buchan pursue their Mother for Aliment . It was alleadged absolvitor , because their was neither Law , Statute nor Custome of this Kingdom , oblidging a Mother to Aliment her Children . 2ly , Albeit there were , she offers her to admit them in her Family , and to entertain them according to her means , but can never be oblidged to pay a modification , in Money out of the Family ; for in all Cases of Aliment of Wives , or Children against Parents , the offer to accept , and Aliment them in the Family , according to the Parents Means , doth alwayes exclude Modification ? as was lately found in the Case of Sir Andrew Dick and his Son . It was answered , that the Law of Nature is a part of the Law of this , and all other Civil Kingdoms , and according thereto the Lords do alwayes decide , in Cases now occurring , where there was neither Statute nor Custome and if Aliment be due , the manner and measure is in arbitrio judicis , who may justly ordain their Children to be bred from their Mothers , seing she hath miscarried , and Married a deposed Minister . It was answered , that the Law of Nature , without our Custome is no sufficient Law to us , and does not induce obligationem civilem , but only pietatem & affectum , upon which ground it is , that there was necessity of this Statute to appoint an Aliment for Heirs against the Wairdatars and Liferenters , which insinuats that there was no such Law before , and if the Law of Nature , be the adequat Rule , we are oblidged to entertain the Poor , and all in distress ; and therefore they might pursue us thereupon . 2dly , There is no Reason to put it in arbitrio judicis , whether a Child should be Educat with the Parent , who must Aliment him , even upon pretence of the Parents miscarriage , for that being the indispensable Right of Parents to educat their Children , as they see cause , especially who demand Aliment of them , it ought not to be in the arbitrament of any Judge , unless it were a Parliament , and this arbitriment would lay the Foundations to encourage Children to desert their Parents , and to claime Aliment out of their Family , and to pretend the Parents miscarriages , as unfit Persons to be bred with , and not breeding them in a fit way ; which accusations were prohibit by the Civil Law , and never admitted by our Custome ; for albeit the Lords may appoint the way of Education of Pupils , their Parents being dead : yet Tutors have no such interest , as Parents .

The Lords found the Mother oblidged to Aliment the Children jure naturae , which was sufficient to infer this Civil Obligation , and Action , but found that the offer of Alimenting them in her Family , was sufficient according to her means and they could demand no Aliment , nor Modification extra familiam : For they found that the Lords had thus sustained Aliment to Children against theîr Fathers , not upon the Act of Parliament , which is competent against all Liferenters and Donatars , without consideration of their being Parents , but super jure naturae , which they found , would not extend to the obligation of Charity , and which had no definite rule , but at the discretion of the giver , and was not allowed as a civil obligation by any Nation

Grant contra Grant . February 24. 1666.

GEorge Crant , having Appryzed a Wodset Right from Grant of Mornithe ; and thereupon obtained a Decreet of Removing , and Mails , and Duties , against Grant of Kirkdails ; Reduction was raised thereof , and of the ground of the same . viz , of the Wodset Right on this Reason , that the one half of the Sum was payed , and the Wodset renunced pro tanto , long before the Appryzing . It was Replyed , that there was an Inhibition , for the Sum , whereupon the Appryzing proceeded , after which Inhibition , if any payment was made , or Renunciation granted , the samine was reduceable , ex capite Inhibitionis . It was answered , that all that the Inhibition , and Reduction thereupon could work , was in so far , as might extend to the satisfaction of the Sum ; and now they were willing to satisfie the whole Sum , cum omni causa . It was answered , that no satisfaction could now be accepted , because Appryzing having followed upon the samine , and being expired , and no satisfaction being offered within the Legal , or the time of the Reduction , it cannot now be admitted . It was answered , that the Inhibition could not only work , that nothing done after the same should be prejudicial to the Sum , but altered not the Case , as to the Appryzing , led long thereafter ; unless the Inhibition had been raised upon the Appryzing .

The Lords found that Inhibition could not be taken away , or satisfied by payment of the Sums after the expiring of the Apprizing , wherein the President remembred of a former Case , that even in the obtaining of the Reduction , ex capite Inhibitionis , the offer to satisfie the Sum , whereon it proceeded was repelled : In respect an Appryzing thereupon was expired .

Sir Robert Sinclar contra Laird of Waderburn . Eodem die .

JOhn Stewart Son to the Earl of Bothwell , being Abbot and Commendator of Coldinghame , the Earl being Forefaulted in Parliament , his Son was dishabilitat to brook any Lands , or Goods in Scotland ; whereby Iohn fell from the Right of Provision of the Abbacie : Thereafter the King annexed the Abbacie of Coldinghame , which was excepted from the general Annexation 1587. to the Crown , excepting the Teinds ; and gave Right of Reversion , both of Lands and Teinds , to the Earl of Hoom , who gave a Tack of the Teinds of Kello and Cumerjame to the Laird of Wedderburn . Thereafter Iohn Stewart was , by Act of Parliament restored , and the former Act of Dishabilitation rescinded , whereupon Iohn Stewart demitted his temporal Provision in the King's hands , and got it Erected in an Heretable Right : he thereupon Infeft Dowglas of Ivleck for relief of Sums . Sir Robert Sinclars Lady , as Heir to him , pursues for the Teinds of Kello , and Cumerjame , upon the Infeftment of Relief . He had before obtained Sentence for the Years preceeding John Stewarts death , during which , his temporal Provision stood , and as to which there was litle controversie by the Act of Rehabilitation ; but now the Pursuer insisted for the years after Iohn Stewarts death . It was alleadged for the Defender , First , That he has Right by his Tack unexpired , from the Earl of Hoom , who had the only Right of Fee , to the whole Abbacie , by his Infeftment granted to him by the King , long before the Infeftment granted to Iohn Stewart . It was answered , that the Earls Infeftment , proceeding upon Iohn Stewarts dishabilitation , that being rescinded , and he rehabilitat , the Earls Infeftment fell in consequentiam , and John Stewarts Right , on his own dimission is the only Right . It was answered , for the Defender , that the Earl of Hooms Right did not proceed solie upon John Stewarts dishabilitation , but on the Act of Annexation following thereon , Anno 1612. And Johns Rehabilitation could put him in no better condition , than before the Dishabilitation , and so could extend no further , but to the Personal Provision he then had , It was answered , That in that special Act of Annexation 1612. The Spirituality , or Teind was excepted , as it was in the General Act of Annexation , and so no Right granted by the King , till the Teinds were dimitted in his hand by the Titular could be respected , as being a non habente potestatem , at least not proceeding legitimo modo . It was answered , that the Teinds , though not Annexed , yet by the suppression of the Popish Clergie , they returned to the Crown , for the General Act of Annexation , doth not give the King a Right , but acknowledged his Right by the Ceasing , of the ends for which these Benefices were granted , but the Annexation makes them indissolvable , from the Crown , and indisposable by the King , and so the Teinds being Annexed , they cease not to belong to the King , but they are at his Disposall , and he having disposed of them to the Earl of Hoom , before he disposed of them to John Stewart , the Earls Right is preferable , and so the Defenders , as his Tacksman . It was answered , That all the Erections of Benefices , in Temporalities were only upon Demissions of the Titulars ; for though the Popish Clergie was supprest , yet the King presented Persons to the Benefices , who had the Titles of Abbots , and Commendators , and sat in Parliament , but had not the Office , and in so far they were not supprest , and so the King could not dispose of the Benefice , till it were demitted by the Titular , in his hands . It was answered , that the King could not dispose in prejudice of the Titular incumbent , but that the Titular , who was a naked Liferenter , his Demission should reach the Fee , it was against reason , and John Stewart being dishabilitat , when the King granted the Earl of Hooms Right , so that there could be no Demission , the King being in the Commendators place , and could not demit to himself the dishabilitation , at least was equivalent to a Demission , though it had been necessar , as it was not ; for albeit de facto , the King Erected upon demissions , yet that he could not after the Abbots death , have Erected it , or provided another , or even during his Life , reserving his temporal provision there could be no doubt , else the Demission of a Liferenter , or Administrator could never give the King Right of Fee , which the Resigner had , and here , the King had the Right of Fee , but not the Resigner .

Yet the Lords found● that seing all Erections by Custome , proceeded on Demissions , that the Earl of Hoom's not proceeding so , and John Stewart's proceeding upon his Demission , was preferable , and therefore repelled the Defense .

It was further alleadged , that Iohn Stewart had Ratified the Defenders Tack . It was answered , that was but personal , and could not be Relevant against the Defender , being a singular Successor . It was answered , that the Pursuers Interest being but for relief , the Defender could satisfie , and pay erest , upon Assignation , and so his singular Title not being absolute , might be so purged .

Which the Lords found Relevant .

Lord Colvil contra Town of Colross . February 27. 1666.

THE Lord Colvil , being Infeft in the Heretable Office , of the Baillerie of Culross , by progress from the Earl of Argyl , first Baillie ; who was Infeft by the Abbots , before the Reformation ; having full power of all Jurisdictions , Civil or Criminal ; and of all the Amerciaments , Bloods , and Casualities to his own behove , he does thereupon pursue a Declarator of the Right , against the Town of Culross , which is within the Lordship of Culross , that he had Right to the Bloods , and to all Jurisdictions , Civil and Criminal amongst the Burgesses thereof . It was alleadged , for the Defenders , absolvitor ; because their Town was Erected in a Burgh Royal , by the King , with power of Heading and Hanging , and other priviledges of Burghs Royal ; by vertue whereof , they have been in immemorial Possession , in Exercing all Jurisdiction , Civil , and Criminal amongst their own Burg●sses .

The Lords before answer , having ordained either Partie to adduce W●●nesses , as to the Possession of their Iurisdiction , which being closed , the Debate was reassumed upon the Towns Right , and Possession .

It was answered , for the Pursuer , that he , and his Authors being Infeft in the said Heretable Office , long before the Erection , and before the Anuexation of the Abbacie of Culross , to the Crown , no Right granted thereafter to the Town , could prejudge his established Right ; especially , seing in the very Act of Annexation , such Bailleries are expresly reserved , and declared to be unprejudged : And as to the Towns Possession . It was but clandestine , and not total , for the Baillies did still exercise Jurisdiction , even upon Burgesses of the Town , committing Bloods in the Town , and likewise Strangers committing Bloods , as is instructed by his Court-books , and Witnesses , which is sufficient to hinder Prescription . It was answered , that the Defense stood yet relevant , for the granting of the Bailliery could not be exclusive of the granters own Jurisdiction ; but cumulative : and as the Abbots , so the King retained Jurisdiction , and might dissolve a part of the Barony , which thereby ceased to be within the Jurisdiction of the Bailly of the Barony● and might Erect the same in a Burgh Royall , as he has done in the same way , as the King , after granting an Heretable Sheriff-ship , may yet Erect a Barony within the same , which may exclude the the Sheriffs , if the Baron use diligence .

The Lords found , that the Erection of the Burgh Royall being after the Constitution of the Baillerie , could not exclude the same of its Jurisdiction , and Casuality , unless it had been by Possession , sufficient to make prescription , and that the Case was not alike , as if the Barony of a Baron were constitute within an Heretable Sheriff-ship ; because the Casualities of the Heretable Sheriff-ship belonged to the King himself , and could be only understood , without prejudice of subordinat Jurisdiction of Baronies , which were ordinar , and known , but here the Casualities belonging to the Bailli● proprio jure , the Constitution of the Burgh could not prejudge them , even albeit the Lord of the Regalities consent was thereto produced , seing the Ballie consented not ; but as to the Possession , and Prescription , whether the Town could Prescribe the Right of the Civil Jurisdiction ; albeit the Baillie exercised the Criminal Jurisdiction of Bloods , or whether the Town could Prescribe their Right of a part of the Civil Jurisdiction , in so far as concerned Trade : The Lords superceeded to give answer while the first of Iune , and that they had time to consider the Depositions of the Witnesses fullie .

Creditors of Lord Gray contra Lord Gray . Eodem die .

CErtain Creditors of the Master of Grayes , being Infeft in Annualrent out of certain of his Lands , pursues Poynding of the Ground . It was alleadged , for the Lord Gray his Son , absolvitor , because he has Right to an Appryzing , and Infeftment of Alexander Milne ; which is expired , and prior to the Pursuers Infeftments . It was answered , that the Appryzing was satisfied by the Umquhile Master of Gray , and a blank Assignation thereto , was taken , which was amongst the Masters Writs , and this Lord filled up his Name , after the Masters death ; this being unquestionably relevant , the difficultie was , concerning the manner of the Probation .

The Lords before answer , ordained Witnesses ex officio to be examined , whereupon the Lord Gray's Brother was examined , who acknowledged , he saw the blank Assignation , by his Brother , and Mr. Robert Prestoun being examined , and several other Witnesses , above all exception ; and also the Lord Gray himself , who acknowledged he got the Assignation blank after his Fathers death , but not amongst his Writs , and that he gave a Bond therefore ; Many of the Lords thought , that seing by the late Act of Parliament , the Appryzing , though expyred was Redeemable from him , for the Sum he truely payed for it , that it were more just , and safe , that he should be preferred , unless the Creditors would purge , and satisfie the Sum , and that it were a dangerous example to find so important a Writ , as this Assignation , to be taken away by Witnesses ; yet the plurality found the Testimonies so pregnant , and unquestionable : They found the Reply proven thereby , and found the Appryzing retired , and satisfied by the Debitor , and so extinct .

Earl of Landerdail contra Viscount of Oxenfoord . last of February 1666.

THE Earl of Lauderdale , being Infeft in the Barony of Muslburgh , which is a part of the Abbacie of Dumfermling , and was Erected into a Temporal Lordship , in favour of the Lord Thirlstoun , thereafter Chancellour● the Lord Lauderdales Grand-father● in Anno 1587. Before the Act of Annexation , wherein the Erection of Musleburgh , to the Lord Thirlstoun is expresly excepted . Thereafter in Anno 1592. the Queen was Infeft by the King , in Liferent , in the Abbacie of Dumfermling , with the consent of the Lord Thirlstoun , as to Musleburgh , and his Resign●tion , as that effect : shortly after , that same year , the King gave the Queen an Heretable , and Irredeemable Right of the whole Abbacie of Dumfermling , which was Confirmed by a Printed Act of Parliament ; the Queen lived till the Year 1618. After which the King was served Heir to his Mother , in the Abbacie of Dumfermling , and Infeft therein , being then Prince . The King gave an Heretable , and Irredeemable Right to the Lord Oxenfoords Authors , of the Teynds of Coutsland , as a Part of the Lordship of Musleburgh , in Anno 1641. And shortly thereafter , His Majesty did renew the Earl of Lauderdales Infeftment , of the Lordship of Musleburgh , with a novodamus ; Lauderdale being Forefaulted by the Usurpers , Swintoun got a Donative of the Lordship of Musleburgh , and amongst the rest , of the Teyn is of Coutsland ; and did raise Inhibition and Reduction of their Rights . After the Kings Restauration , the Earl of Lauderdale obtains his Infeftment Confirmed in Parliament , with an express Exception therein , that it should not be derogat , by the Act salvo jure , raises Inhibition of the Teynds , and pursues Action of Spuilzie , and also of Reduction . It was alleadged , for the Defender , absolvitor , because he stands Infeft in the Teynds lybelled by Infeftment , granted by the King , before the Earl of Lauderdales Infeftment pursued on , and by vertue of his Infeftment , King Charles the first , and Queen Anne his Authors have been in peaceable Possession , uninterrupted , since the Year of God 1593 And therefore their Right is accomplished , and established by Prescription . It was answered , for the Pursuer , that the Defense ought to be Repelled , because , since the death of Queen Anne , who died in Anno 1618. Till the Interruption made by Swintoun , by Inhibition , and Reduction , in Anno 1656. there are not 40● years run ; and till the Queens death , the Earl of Lauderdales Grand-father could not pursue , because he had granted Resignation in her favours , for her Liferent , & contra non valentem agere non currit Prescriptio ; So Wyves Provisions in their Contract of Marriage , Prescribe not from their Date , but from the time of their Husbands death , all Obligations Prescribe only from the Term of payment , and Infeftments , and Oblidgements of Relief from the Distresse . It was answered , for the Defender , that this Defense stands still Relevant . First , because , as to any interruption made by Swintoun , it cannot be profitable to the Pursuer , because he derives no Right from Swintoun : And as to the Queens Liferent Infeftment , consented to by Thirlstoun , the Queen never accepted the same , but an Heretable Right from the King that same Year , by which Heretable Right only she possest , and did all Deeds of Property , by entring of Vassalls , and granting of Fews , which a Liferenter could not do ; which Heretable Right , Thirlstonn could not misken , because , by a special Printed Act of Parliament , it is Confirmed in Parliament , and past the great Seal , himself being Chancellor . It was answered for the Pursuer , that the Defense , and Duply ought to be Repelled , in respect of the Reply , because the Confirmation of the Queens Heretable Right in Parliament was salvo jure , and he was secured by the Act salvo jure , in the same Parliament , and that he knew thereof , at the passing of the great Seal , is but a weak presumption , and such knowledge could not prejudge him , nor was he in any capacity to pursue upon his own Right , for attaining possession ; seing the Queens Liferent Right , and Heretable , were both compatible ; and it was evident , the Queen would exclude him , by his Consent , in the Liferent Right , neither can the Queens acceptance be questioned , after so long time ; seing the acceptance of the Liferent was to her advantage and profit , before she got the Fee , and did exclude Thirlstouns prior Right , which would have undoubtedly reduced the Queens Right ; and was excepted in the General Act of Annexation ; and would not fall under the Act salvo jure . It was also severally alleadged , that this Earl of Lauderdales late Right was Confirmed in Parliament 1661. And all other Rights declared void , and that the Ratification should have the force of a publick Law , and not be derogat by the Act salvo jure . It was answered , for the Defender , that in Prescriptione longissimi temporis non requiritur tempus utile , sed continuum , In consideration whereof the time of the said Presciption is made so long , and therefore captivity absence reipublicae causa , want of Jurisdiction , or the like are not respected . 2dly , Thirlstone valebat agere , because he might have Reduced the Queens Infeftment of Fee , or declared his own Right of Fee to be effectual after her death . And as to the late Act of Parliament , albeit it does exclude the Act salvo jure , yet that is parte inaudita ; and upon the impetration of a Party suo periculo , but the Parliament have never assumed power to take away the privat Rights of Subjects , except upon another , or better Right , otherwayes , no man in Scotland can call any thing his own , but a Confirmation in Parliament , with such a clause surreptitiously obtained , shall take away the Unquestionable Right of any other . It was answered , for the Pursuer , that the Parliament had not incroached upon the just Right , of any other , but had only restored the Pursuer to his Grand Fathers Right ; and seing there is no question , but that Right was prior , and better than the Queens , and the Defenders , and was in no hazard , but as to the point of Prescription , that being a rigorous Statute , the Parliament might well excuse the Pursuer , for not pursuing the King and Queen , but rather patiently to abide their pleasure , till they were denuded , in favours of privat Parties . It was answered , for the Defender , that all our privat Rights , especially of Property , are founded upon positive Law , and there is none stronger then the Right of Prescription ; and therefore , if the Parliament can take that away , as to one Person , and not generally , they may annul the Right of any privat Person whatsomever .

The Lords were unwilling to decide in the whole points of the Debate , but did in the first place , consider the Right of the Parties , without the Act of Parliament , in favours of the Queen , or the late Act , in favours of the Earl and in the point of Right , they repelled the Defense of Prescription , in respect of the Duply of Swintouns interruption , which they found to accresce to the Pursuer cujus jure utebatur , and found , that before the Queens death , the Prescription could not run , in respect of the Queens Infeftment of Li●erent consented to by Thirlstoun , which would exclude him from any Action , for attaining Possession , and they found , that he was not oblidged to use Declarator , or Reduction , which might be competent in the Cases of Distress , or the Rights of Wifes , or any other Right , which yet do alwayes exclude Prescription , till Action may be founded thereupon , that may attain Possession .

Thomas Millar contra Howison . Iune 5. 1666.

THomas Millar , having pursued the Tennents of one Bailie his Debitor , for making forthcoming , their Duties arrested in their hands . Compears Howison , and produces a Disposition , and Infeftments from Baillie of the Tenements , prior to the Arrestment , and craves to be preferred . It was answered for Millar , that Howisons Disposition was null , as being in fraudem Creditorum against the Act of Parliament , being granted after the contracting of Millars Debt ; and albeit , the narrative of the Disposition bears , causes onerous , yet he offered to prove , by Howisons Oath , that it was not for causes onerous , at least equivalent to the worth of the Land ; which was found relevant , and Howison having deponed , that his Disposition was granted for a Sum of 300. merks addebted to himself , and the Sum of 1600. merks adebted to Iohn Burd , for which he was Cautioner for Baillie , the Disponer . At the advysing of the Cause . It was alleadged , that the Disposition , nor the Disponers Oath could not sufficiently instruct the cause onerous ; seing the Oath did not bear , that there was a price made , but only that there was no Reversion , nor promise of Redemption granted ● yet the Disposition was truely in Trust , which ofttimes is tacit , as being the meaning of the Parties , and is not expresse by Reversion , or Back-bond ; so that if Baillie , or this Arrester would pay these Sums , Howison could have no further Interest . It was answered , that the points referred to Howisons Oath were denyed , and that he was not oblidged to keep the Bonds , but might destroy them , as being satisfied .

The Lords found , that as to Howisons own Bond , he needed not instruct the same , but as to Burds Bond , they found , that he ought to instruct it , by some adminicles , further then his own Oath , that the Debt was , and was payed by him , in respect his Oath bore not a price made , and that he was Vncle to Baillie the Disponer .

Mr. Alexander Nisbit contra Eodem die .

MR. Alexander Nisbit , as Assigney to a Sum , pursues the Debitor for payment , compears the Arrester , who had arrested it in the Debitors hand , for a Debt due to him by the Cedent , and whereupon he had obtained Decreet before the Sheriff of Berwick . It was alleadged , for the Assigney , that the Decreet was null , because the principal Debitor was not called in the Decreet , for making forthcoming , or at least , at that time , he lived not within that Jurisdiction . It was answered , that albeit the Arrester had no more , but his naked Arrestment , he might compear for his Interest , and crave preference to the Assigney , whose Intimation was posterior . It was answered , he could not be pursued , hoc ordine● because he , whose Money was arrested , was not yet called , viz. The Assigneys Cedent , who is the Arresters principal Debitor ; who , if he were called , might alleadge , that the Debt whereupon the Arrestment proceeded , was satisfied , which was not competent to the Assigney , being jus tertij , to him .

The Lords found the Arrester might compear in this Process , without calling his Debitor , but they found , that the Assigney might either alleadge payment in name of his Cedent , or if he craved a time to intimate to his Cedent , they would superceed to extract , till that time , that the Cedent might defend himself .

Earl of Cassils contra Sir Andrew Agnew . Iune 6. 1666.

THe Earl of Cassils , as Superior of some Lands holden of him , by Iohn Gardener , obtained Declarator of his Liferent Escheat , and that a Gift of the said Liferent , granted by the said Earl , to the said Iohn , was null , in so far as it contained a Clause irritant ; that if Iohn Gardener should give any Right of the Lands to any of the name of Agnew , the Gift should be null , ipso facto , whereupon in anno 1650. The Earl obtained Declarator of the Clause irritant , by Iohn Gardeners giving Right to Sir Andrew Agnew , and now insists for the Mails and Duties since that Declarator . It was alleadged , that the said Earl had accepted the Feu Dutie of several Years , since the said Declarator , and thereby had tacitly past from the Declarator , and could not seek both the Feu-dutie , and also the whole Mails and Duties by the Escheat . It was answered , for the Earl , that having both Rights in his Person , he might poynd the Ground for the Feu-dutie , and his Donatar might pursue for the Maills and Duties . 2dly , His acceptance of the Feu-dutie , albeit it could not consist with the Maills and Duties , yet it would only extend to these Years , that the Feu-dutie was accepted , and to no others .

The Lords found the acceptance of the Feu dutie Relevant , only for these Years , for which it was received , but it occurred to some of the Lords , that if it were alleadged , there were three consecutive Discharges of the Feu-dutie , that these , as they would presum , all bygone Feu-dutie payed , so they would extend to the Maills and Duties , for all years preceeding the Discharges ; Therefore the Defender was ordained to condescend , if so many Discharges were , and that this point might be debated .

William Crawfoord contra Andrew Duncan . June 7. 1666.

WIlliam Crawfoord , as Assigney to a Bond of 200. merks , granted by Andrew Duncan , pursues for payment . It was alleadged , absolvitor ; because the Bond was null , having no Date at all , & data est de substantialibus . It was answered , that the Pursuer offered him to prove by the Defenders Oath , that it was his true Subscription , which was sufficient , and the Date is only substantial , when Improbation is alleadged , or any Right that might take away the Writ , if it were of such a Date ; as a prior Assignation , or general Discharge .

The Lords found the Reply Relevant , with this provision , that the Defender might adject , what quality he thought fit , as these mentioned , or that it was done in Minority , or not delivered , &c. but they found him not oblidged to depone simpliciter , upon the verity of the subscription , and to prove such qualities , as they had done before , in a Holograph Writ , wanting Date the last Session , in the Process betwixt the Earl of Kinghorn and Sir James Murray .

Elizabeth Anderson contra George Cunninghame . Iune 9. 1666.

THis Cause betwixt Elizabeth Anderson , and George Cunninghame , anent a Legacie lest by the said George his Wife , to the said Elizabeth Anderson , being debated the 7. of February last . The Lords then found , that George , by confirming his Wifes Testament , in giving up his Debts , to exhaust the free Gear , and abate the Legacie , did not hinder himself to adduce further Debt , for a further abatement : but now it being further alleadged , that immediately , before the Confirmation , the Bond he would now add , was registrat , and he charged therewith , he could not be ignorant thereof , at the time of the Confirmation .

The Lords altered their Interlocutor , and found that having scienter omitted that Deb● , he could not bring it in to the Legatars prejudice .

This was stopt by Bill the next day .

Colin Hay contra Magistrates of Elgin . Iune 12. 1666.

COlin Hay pursues the Magistrats of Elgin , for the Debt of a Rebel escaping out of the Prison of Elgin , whom he had arrested there . It was alleadged , for the Defenders absolvitor , because the Rebel was not incarcerat by the Pursuer , upon his Caption , but being incarcerat by another , was only arrested in the Tolbooth by the Pursuer , and all that is produced to instruct the same , is only the Execution of a Messenger , who arrested the Rebel . It was answered , there was no difference , whether the Rebel had been incarcerat upon the Pursuers Caption , or had been arrested ; for in both Cases the Magistrats are lyable : and the keeper of the Tolbooth ought to have a Book , for certifying the Magistrats of all incarcerations , and Arrests in Prison ; and if they be neglective therein , it is on their perills ; and yet here the Messenger not only Arrested , but the Executions bore , that he intimat the same to the Provost , and Baillies .

Which the Lords found sufficient , and Repelled the Defense , and found no difference betwixt Incarceration , and Arresting in Prison .

Sinclar of Bryme Supplicant Eodem die .

SInclar of Bryme gave in a Bill , bearing , that he had obtained Suspension of all Execution , and specially of Appryzing , which he presented at the time of the Appryzing , and yet the Messenger , and Writer went on , and Appryzed ; and therefore craved , that the Appryzing might be stopt at the Registers , and Seals .

The Lords refused to grant the desire of the Bill , without there had been a Summons against the Appryzer past the Signet ; but would not upon a Bill cite Parties out of the Town , having no dependence on the House , nor annull , or hinder any pretended Right they had , without citing of them , but resolved to take in consideration the contempt of the Messenger , and Writer , at the discussing of the Cause .

Sir Hendrie Hoom contra Tennents of Kello , and Sir Alexander Hoom. Iune 13. 1666.

JOhn Hoom Younger of Kello , being Forefaulted in the Parliament 1661. For being with the English Armie , against the Kings Armie , at Worchester , 1651. Sir Alexander Hoom obtained Gift of the Forefaultry , and thereupon came in possession . Sir Hendrie Hoom having Appryzed the Lands of Kello , from the said Iohn Hoom , and his Father Alexander Hoom upon their Bond , and having charged the Superiout , in 1653. to Infeft him , obtained Decreet of Maills and Duties against the Tennents ; which being Suspended upon double Poynding ; and Sir Hendrie and Sir Alexander competing . It was answered , for Sir Alexander , the Donatar , that he had possest three years , and offered him to prove , that the Rebel had possest five years before ; therefore craved the benefit of a possessorie judgement . 2dly , That he was preferable in poynt of Right , in so far as he offered him to prove , that the Rebel was five years in possession , before the Forefaulture , which gives the King , and his Donatar compleat Right by the Act of Parliament . It was answered , for the Creditor , that he ought to be preferred , because , there being no retour upon the Act of Parliament , finding by the Inquest , that the Rebel was five years in possession , as Heretable Possessor , he can neither have the benefit of a possessory Judgement , nor stop the Creditors Diligence , who found themselves upon the Appryzing against the Father , who stood publickly Infeft , and there is no sufficient Right in the Rebels Person alleadged , nor produced . It was answered , that the five years possession might be proven by Witnesses , by way of Exception . 2dly , It was offered , to be proven by an Inquest , conform to the Act of Parliament .

The Lords found no benefit of a Possessory Iudgement competent ; neither would they sustain the five years possession by way of Defense ; but decerned superceeding Extract , while the 15. of July , within which time , if the Donatar obtained the retour of an Inquest , he should be heard thereupon .

The Donatar further alleadged seperatim that the Rebel was Infeft by the Father , which was sufficient to prefer him without an Inquest . It was answered , non relevat , unless he had either been publickly Infeft , or by base Infeftment cled with possession , before the Superior was charged upon the Creditors Appryzing , which , being equivalent to a publick Infeftment , is preferable to the Rebels base Infeftment . It was answered , that the King , or his Donatar needed no possession , nor can be prejudged for want of Diligence .

The Lords found the Creditors alleadgeance relevant .

Iack contra Mowat . Eodem die .

THE Lords found , that Iack having obtained Decreet , as Assigney by his Father , it was relevant for the Debitor , to alleadge and prove by the Assigneys Oath , that the Assignation was without a cause onerous , and by the Cedents Oath , that the Debt was payed before Intimation .

Sir Henrie Hoom contra Sir Alexander Hoom. Iune 14. 1666.

IN the Cause debated yesterday , betwixt Sir Henrie Hoom , and Sir Alexander Hoom. It was further alleadged , for Sir Alexander Hoom , that the Rebel had not only five years possession ; but was Infeft by an Infeftment holden of his Father , which was cled with Possession , before the Appryzers charge against the Superior , in so far as the Infeftment bore a reservation of the Fathers Liferent , and so the Fathers Possession was the Rebells Possession , and was sufficient to validat the base Infeftment ; seing there could be no other Possession attained , during his Fathers lifetime ; or at least , there was reserved to the Father a yearly Rent , and the Rebel gave his Father a Warrand in Writ to continue his Possession , of such of the Lands for the same .

The Lords ordained the Donatar to condescend , whether the Rebells Infeftment proceeded upon his Contract of Marriage ; And he declaring that it was by a distinct Right thereafter .

The Lords found the Possession of the Father not relevant , it being betwixt Conjunct Persons , privat , and suspect : For they thought , if possession by such Reservation , betwixt Father and Son were sufficient , the Creditors would hardly be secure .

Dumbar contra Lord Duffus . Eodem die .

THE Lord Duffus having obtained a Decreet of removing , against Dumbar , his Tennent , and having execute the same , by Letters of Possession . The Tennents raises Suspension , and Reduction of the Decreet , and a Summons of Ejection ; the Reason of Reduction was , that the Sheriff had done wrong , in repelling and not expressing in the Decreet a relevant Defense . 2dly , That the Tennent could not be decerned to remove ; because he was already removed irregularly , by Ejection ; and ought not to be put to defend in the removing , till he were repossest , spoliatus ante omnia est restituendus : which he instructed , by an Instrument taken in the hand of the Clerk of Court ; and where it was replyed before the Sheriff , that he had not found Caution , for the violent Profits . He answered , that he needed not , seing the Pursuer himself was in possession , by the Ejection . It was answered , that the Lord Duffus offered him to prove , that all he did , was to put in some Corns , and Plenishing in an ou● house , long after the warning , of the Tennent that had taken the Roum ; and that he continued to possesse all the rest of the house , and the whole Land , by his Cattel , till he was Legally removed ; and neither the Family , nor Goods of the new Tennent came in , till then . It was answered , that the alleadgeance was contrair to the Tennents Lybel of Ejection , bearing , that he was dispossest , both from the house , and Lands .

The Lords considering , that the Tennents was only positive , in Ejection from the House , and had once acknowledged , that he was not Ejected from the Land ; they Asso●lzed from the Reduction of the Decreet of Removing ; but they sustained the Action of Ejection , and Repelled the Defenses , as contrair to the Lybell , Reserving to themselves the modification of the violent profits , and the other party to debate , whether , after the Decreet of Removing , the Tennent should have re-possession , or only the profits , or damnages .

George Tailzor contra Iames Kniter . Jun● 15. 1666.

GEorge Tailzor , having Appryzed some Lands in Perth , set a Tack of a part of it to Iames Kniter , who , thereafter Appryzed the same . Tailzor now pursues a Removing against Kniter , who alleadged , absolvitor , because he had Appryzed the Tenement , within year and day of the Pursuer ; and so had Conjunct Right with him . It was answered , that he could not invert his Masters Possession , having taken Tack from him . The Defender answered , it was no inversion , seing the Pursuer , by Act of Parliament had Right to a part , but not to the whole , and the Defender did not take Assignation to any new Debt , but to an old Debt , due to his Father .

The Lords sustained the Defense , he offering the expenses of the Composition , and Appryzing , to the first Appryzer , conform to the Act of Parliament .

Alexander Stevinson contra Laird of Hermishills . Eodem die .

ALexander Stevinson , as Assigney by his Father , pursues Hermishills for payment of a Bond , who alleadged , absolvitor , because the Defender , as Heir to his Father , had right to a Bond , due by the Pursuers Father , before the Assignation ; after which the Assignation was a Deed , infraudem Creditorum ; and so null . It was answered , non relevat , unless the Cedent had been Bankrupt , or at least insolvend● .

The Lords Repelled the Defense , in respect of the Answer .

The Defender furder alleadged Compensation upon the said Bond ; which was relevant● against the Pursuer , both as Heir to , and as Assigney by his Father . It was answered , non relevat ; against the Pursuer , as Executor , but for his fourth part , being one of four Executors . 2dly , The Defenders Father was Tutor to the Pursuer ; & nondum reddidit rationes .

The Lords found , that Compensation being equivalent to a discharge , taking away the Debt ipso facto ; it might be proponed against any of the Executors , in solidum : but in regard the Tutors accompts were depending , the Lords sisted his Process , till he Tutors Compts proceeded .

Sir Robert Sinclar contra Laird of Houstoun . Eodem die .

SIr Robert Sinclar pursues a Poynding of the Ground , of the Lands of Leni , upon an old Annualrent , of 20. merks . Constitute above a 100. years agoe . Houstoun alleadged absolvitor , First , Because he brooked these Lands past Prescription , peaceably , without any pursuit upon this Annualrent . 2dly , Because this Annualrent was base , and never yet cled with Possession ; and his Infeftment was publick . It was answered to both , that the Pursuer produced a Decreet of Poynding the Ground , in Anno 1608. Since which , the Pursuers Minority being deduced , it is not 40. years . Likeas , there is produced a Precept of Poynding , for the said Annualrent . It was answered , that the Decreet in Anno 1608. was only against the Tennents , and Possessors ; and so is null , the ●eretor not being called . It was answered . First , That albeit the Decreet had been defective , for not calling the Master , yet it was sufficient to interrupt Prescription . 2dly , It was sufficient to give possession , and to validat a base Infeftment , by a civil possession : for as natural possession , by the Tennents payment would have been sufficient , though without their Masters knowledge , or consent : So a Decreet , yea , a citation against them , is sufficient for a possession , as being equivalent to a natural possession : and albeit the Proprietar could not be prejudged , as to the constituting an Annualrent , in the point of Right , not being called : yet as to the Point of Possession the Right being constitute , he might . 3dly , Albeit the Heretor must be called , when his Ground is first affected with an Annualrent , in attinenda possessione , yet if the Annualrenter be in possession , he may continue the same , without calling the Master ; as well as in Tyends , Thirlage . &c. And here the old Precept of Poynding was evidence sufficient of a prior Possession , in re tam antiqua .

The Lords found , that the Decreet was Possession sufficient , to interrupt Prescription .

Minister of contra Lord Elphinstoun . Iune 16. 1666.

MInister of pursues the Lord Elphinstoun , for the Viccarage Teinds of his Lands in his Paroch . It was alleadged , absolvitor , because he brooked these Lands by immemorial possession , without paying any Viccarage , and so had prescribed Exemption , and Liberty . It was answered , that the Viccarage being due de jure cummuni ; desuetude cannot take them away , nor can any Prescription give Right to them , unless it were by a Title ; as if the Lands had been Templar Lands , or belonging to these Orders , which payed no Teynds , but were exempted by the Cannon Law ; and therefore , in the last Session , it was found in the Case of the Earl of Panmoor , that 40. Years did not prescribe the Right of Parsonage , except for the Years preceeding the 40. It was answered , that there was a great difference betwixt Parsonage and Viccarage , which is Local , and Consuetudinary , which is therefore only found due , according to what has been accustomed to be payed ; so that the Teynd of Lint , Hemp , Geess , Stags , Swine , Fruits , Fishes are only due in these parts , where they have been so accustomed : and therefore , as custome may take away a part , so it may extinguish the whole .

The Lords found the Defender could be no furder lyable , then for that Viccarage , which was commonly payed throughout all the Kingdom . viz. Stirk , Lamb , and Wool ; and sustained not the same for Milk , or any other particular .

But the Defender , upon the twenty one of Iune , having Supplicat to be further heard , alleadging , that it was a common Case , that when the Lands were most in Labourage , and the Viccarage small , and not considerable , that through the whole Country Viccarage was never craved , time out of minde .

The Lords stopped Interlocuquutor , till they were further heard .

Thomas Begg contra Patrick Nicoll . Iune 22. 1666.

THomas Begg gave Commission , bearing , that he had delivered a certain Sum of Money to Patrick Nicoll , to buy Wair for him in England ; whereunto there is subjoyned the said Patrick his acceptance , bearing Sea hazard excepted . Thomas Begg now pursues for the Money , or Wair● Patrick Nicoll alleadged absolvitor ; because he offers him to prove , that shortly after the said Commission , he went upon the Voyage , and that the Ship was taken , and the whole Goods there , wherein it must be presumed , the Pursuers Money was . It being impossible for the Defender , to prove that , that individual Money was there , and yet he is willing to make faith , that it was there . It was answered , that the Defender had Factor-fee , and should have transmitted the Money by Bill , as he did some of his own ; and at least he might prove , that he had a considerable Sum of Money in the Ship .

The Lords sustained the Defense , and Repelled the Reply , and that the Defender being trusted by the Pursuer , he could not refuse his Oath , in Supplement , that his very Money was taken ; seing he neither might , nor could show , what money he had , when he entrèd to his voyage , unless the Pursuer alleadged , that he gave the Defender allowance for the Exchange .

Earl of Eglingtoun contra Laird of Cunninghamhead . Iune 23. 1666.

THE Earl of Eglingtoun , pursues the Laird of Cunninghamhead for the Teynds of Peastoun , who alleadged absolvitor , for 60. lib● Yearly , which by Decreet of the Plat , he payed to the Minister of Irving , and produces the Decreet . It was alleadged , that where the Decreet bore , out of the Teinds , it was meer Error of the Clerk , and disconform to the ground of the Decreet ; which was a tripartite Contract , whereby the Earl of Eglingtoun agreed for so much Victual , out of his Teynd , beside what was to be payed by the Town of Irving , and Heretors ; and the Heretors oblidged them , and their Heirs , and Successors of these Lands to pay so much Money ; which cannot be understood , out of their Teynd ; they being oblidged , as Heretors , and the Teynd not being theirs ; but the Earl of Eglintouns , who was oblidged so much out of his Teynds , besides these oblidgments . It was answered , that this being , to lay a burden of Stipend upon the Stock , is most unfavourable , and the meaning thereof cannot be inferred , unless it had born expresly , out of the Stock ; especially , seing the Teynd was under Tack , and it was ex gratia , for them to pay any more then their Tack-duty , but now when the Tacks are expired , the Earl cannot crave the whole Teynd , and lay this burden upon the Stock . 2dly , The Lords cannot alter the express tenor of the Decreet of Plat , which was a Commission of Parliament .

The Lords found , that the tripartite Contract ; as to this , did not burden the Teynds , and therefore , seing the Plat could only decern out of Teynds , they found that by this Contract , the Heretors behoved to relieve the Teynds of this burden , out of their Stock .

Arbuthnet contra Mary Keith . Eodem die .

Andrew Arbuthnet , having gotten a Gift to the behove of the Viscount of Arbuthnet , of the Marriage of the Heirs of Iohn Keith of P●tten , did thereupon pursue the two Heirs Portioners , one of them being dead , he insists now against the other , for her part , who alleadged no Process , because none was called to represent the other , who is thus far interessed , that the Probation of the avail of the Marriage , against the one will prejudge the other .

The Lords Repelled the Defense , and found it would not prejudge the other , against whom new Probation behoved to be used .

Patoun and Mercer contra Patoun . Eodem die .

JOhn Patoun , as Heretor of the Miln of Mukart , pursues for the abstracted Multures , and alleadges , that the Miln is the Miln of the Barony , and the Lands a part of the Barony , and that they being in immemorial Possession of Intoun Multures , of one peck of the Boll ; and that above thirty years ago , there was a Decreet arbitral , by the Marquess of Argyle , Decerning these Multures . The Defenders alleadged Absolvitor , because they were Infeft before the Pursuers Right produced , cum molindinis ; and as to the Act of Court , the whole Tennents were not present : and the Decreet Arbitral , it is under Reduction .

The Lords sustained the Pursuers Condescendence , reserving the Reduction as accords .

Masson contra Iune 27. 1666.

MAsson pursuing a Declarator of Escheat . It was answered , that all Parties having Interest were not Cited at the Mercat Cross , conform to the Warrand of the Letters . It was answered , that was but stilus curiae , long indesuetude , and it is enough that the Rebel is Cited , and none would be prejudged , who were not Cited , and any may compear that pleases , for their Entress .

The Lords Repelled the Defense , and Forefault the amand given thereupon , as being contrair to the common Custom .

Laird of Philorth contra Lord Fraser . Iune 28. 1666.

THe Laird of Philorth pursues a Declarator of Property , of Lands lying about the Kirk-yard of Rathan , and particularly , that a part of the Land within the Kirk-yard-dyke , is his Property , and that therefore the Dyke ought to be Demolished , and specially the Lord Fraser's Arms upon the common Entry of the Kirk-yard-dyke . It was alleadged for the Defenders ; first , absolvitor , because the Pursuer had homologat the Right of the K●rk , as to the Kirk-yard-dyke , and all within it , in so far as he had buried the Dead of his own Family in the bounds in question ; and likewise his Tennents .

The Lords found the former part Relevant ; but not the latter , unless he had been present at his Tennents Burials , or otherwise had consented .

The Defenders further alleadged Absolvitor , because the Minister , and Parochioners of Rathan had possest the Kirk-yard , and Dyke peaceably , by the space of 30 years , which is sufficient , to give them a Right upon this Point .

There occurred to the Lords these Points ; first , Whether less Possession then 40 years could Constitute the full Right of a Kirk-yard ? 2ly . Whether less Possession , by burying of the Dead , could take away anothers Property ? And whether simply , or so as to give him Damnage , and Interest ? 3ly . Whether an Interruption , made after the Building of this Dyke , by the Pursuers raising Summons , shortly thereafter , could operate any thing ? if the Defenders had bruiked , since the Interruption , by that space , that would have been sufficient to Constitute a full Right before Interruption .

Many were of the opinion that Kirk-yards have as great priviledge as any Kirklands ; and that in Kirk-lands , 10. years Possession before the Reformation , or 30. years after , according to the old Act of Sederunt of the Lords , did Constitute a full Right ; as well as the long Prescription in other Cases ; and likewise that in Ecclesiasticis , 13. years Possession did Constitute a Right , decennalis & triennalis possessor non tenetur docere de titulo ; and that accordingly the Lords were in use to decide in all such Rights ; But the Point to be decided was , Whether Interruption once used , endured for 40. years ? so that albeit 13. years would suffice ; yet the Interruption long before these 13. would alwyse be sufficient till the Interruption did prescrive by 40. years ; wherein many were in the Negative , that as in a possessoy Judgement on 7. years , if Interruption were alleadged , it was always a relevant Reply , that since the Interruption , the Defender has Possest 7. years without Interruption : so if 10. or 13. years be sufficient to the Kirk , no Interruption preceeding , but only such as are done during these years , can be sufficient ; for if 13. years will take away the Solemnest Rights , and Writs ; much more may it a Citation .

Others were for the Affirmative , on this ground , that in the short Prescription of 3. years , in Spuilzies , &c. Interruption once used serves for 40. years ; so it must in this case ; for he that once Interrupts , is alwise holden as continuing in that Interruption , until it Prescrive , or be otherwise past from . But it was answered , that it did Prescrive by Possessing 13. or 30. years in rebus ecclesiae , Church-men seldom have , or keep Evidents ; albeit in other Cases , Interruption would only prescrive in 40 years .

Yet the plurality found , that after Interruption , no less then 40. years Possession was sufficient , but reserved to the Lords the Question anent the ground , in so far as dead were buried therein , after Probation .

Iohn Mcmorlan contra William Melvil . Eodem die

WIlliam Melvil , and one Hatter an Englishman , both Residing in England , gave Bond to Gawin Lourie Residing there , after the English Form , who Assigns it to Iohn Mcmorlan . Melvil Suspends upon this Reason , that he had made payment to Gawin Lourie the Cedent , which he offered to prove by Gawins Oath , and which could not be refused , because he offered to prove that it was the Custom of England , that the Cedents Oath can never be taken away by Assignation , as it is in Scotland , but that Assignations are only as Procuratories , and that payment might be proven there by Witnesses , to take away Writ . It was answered , that the Law of Scotland must regulate the case , because the Assignation is according to the Scots stile , and the Debitor , albeit Residing in England , was a Scots man , and knew the Custom of Scotland .

The Lords found that the manner of Probation behoved to be Regulate according to the Custom of England , and so , that payment might be proven by witnesses , or by the Cedents Oath , yet so , as the Cedent could not be holden as confest , but the Debitor or Suspender behoved to produce him , and move him to Depone : Wherein the Lords so Declared , because they were informed , that the Suspender proponed the Alleadgeance , because the Cedent was Quaker , and would not swear at all .

Duke of Hamiltoun contra Duke of Buckcleugh . Eodem die .

THe Duke of Hamiltoun , as Collector of the Taxation , having Charged the Duke of Buckcleugh for the Taxation of the Lordship of Dalkeith . He Suspended upon this Reason , that the King Possest these Lands Himself , the years of the Taxation , and so cannot demand them from the Suspender , who is a Singular Successor . The Charger answered , that he had the Taxation from the King for a Cause Onerous , viz. a Debt .

The Lords found the Reason of Suspension Relevant .

Dougal Mcpherson contra Sir Rory Mcclaud . Iune 29. 1666.

DOwgal Mcpherson pursues Sir Rory Mcclaud , for payment of a Sum , upon his promise , and the Summons bears a Warrand to Cite him at the Mercat Cross , nearest the place of his Residence , being in the lsles : whereupon the Pursuer craved him to be holden as confest . The Defender alleadged , that he was not Personally apprehended , and so could not be holden as consest ; and that this Citation at the Mercat Cross was periculo petentis , and not to be Sustained in the time of Peace , when there was no Trouble in the Countrey .

The Lords found , that Warrands for such Citations ought not to be granted by common Bills , of course , but only by the Lords , upon special Bills in presentia , but seing the Defender compeared , they allowed his Procurator a long time to produce him .

Ianet Kid contra Dickson . Eodem die .

JAnet Kid pursues Reduction of a Disposition of some Tenements in Forfar , made by her Father on this Ground , that the Disposition is subscribed but by one Nottar , and one Witness , and the Charter by one Nottar , and two Witnesses , and so is null by the Act of Parliament , requiring two Nottars , and four Witnesses , in Writs of importance . It was answered , that the Tenements being small , the price of one exprest , being 200. merks , and the other 300. merks , the foresaids two Writs were sufficient , cled with many years Possession , in the Defuncts time . who never challenged the same . 2ly , They are Established by the Seasine given propriis manibus , conform to the Obligement of the Disposition , and Charterby a Town-clerk , Registrat in the Town Books .

The Lords having Ordained the Defenders to condescend , upon any Adminicles they had , for astructing the verity of the Subscription , they condescended only on seven years Possession , which the Lords found was not sufficient to Establish the Right , without Reduction : but if the Defender had condescended on 40. years Possession , The Lords Declared they would hear them Dispute , whether that could be sufficient , or not .

Chalmers contra Bassily . Iune 30. 1666.

MR. William Chalmers being to go abroad , grants a Factory to Bassily , bearing , to endure untill he returned , and after Discharged the same in Writ ; he now writes a Letter to his Father , bearing , That he would do any thing he could to recal , and reduce that Factory , whereon a Reduction was raised on this Reason , That all Factories of their Nature are Revockable at the pleasure of the Constituent , albeit they contain a Term of endurance . It was answered , that this Factory , containing such an endurance , cannot be Revocked till the Term come . 2ly . Albeit Factories be Revockable , yet it must be re integra ; but here the Factor hath advanced considerable sums of Money , upon consideration of the Factory .

The Lords found the Factory Revockable , the Factor being always refounded of what he profitably Expended upon consideration thereof before he quite Possession .

Martin Stevinson contra Dobbie . Eodem die .

DObby being Tennent to Iames Stevinson of certain Lands , he gets an Infeftment of Annualrent out of the same Lands , before Whitsonday , but the first Terms payment of the Annualrent was Martinmas thereafter ; after Whitsonday and before Martinmas , Martin Stevenson apprizes the Land , and Charges the Superiour , and thereupon pursues for Mails and Duties . Dobby excepts upon his Infeftment of Annualrent . The Pursuer answered , that the Infeftment was base , and before it was , or could be cled with Possession , he had Charged the Superiour , which was equivalent to a publick Infeftment . The Defender answered , that a publick Infeftment interveening , before the first term of payment of the Annualrent , did not prejudge the base Infeftment , which could not be presumed to be privat , or simulat for want of Possession , till the Term came , at which Possession might be attained , or pursued for . 2ly , The Defender being in Natural Possession , from the very Date of his Seasine , intus habet , and he may retain his own Annualrent , which begins to become due from the Date of his Seasine , de momento in momentum , albeit there be a Term appointed to pay accumulative , so that as the getting payment from the Possessor of any part of the Annualrent , or his Obligement for the same , would be a Possession sufficient ; so the Defender having the same in his own hand as Possessor , it is equivalent .

The Lords found this Member of the Defense Relevant , and had no necessity to decyde the other Point ; whether the interveening publict Infeftment , before the first Term , would exclude the base Infeftment , without Possession , wherein they thought that there was great odds , if the Appryzers Infeftment , or Diligence had been before Whitsonday , in respect the first Term of the Annualreni ; was not the next Term after the Seasine , and so if it might pass one Term , by the same Reason it might pass ten Terms , and be valid ; because in neither Case , could Possession , or Action proceed thereon , and therefore might be suspected of Simulation , so that if the Appryzers Diligence had been before Whitsonday , the Annualrenter could have no Right to that Term , and so the Appryzer would attain to the Possession , and could hardly be excluded thereafter .

Stevin contra Boyd . Eodem die .

STevin pursues his Mother as his Tutrix , and Iohn Boyd as Husband , and Factor , for an Accompt of his Fathers means : In which Accompt these Points were reported : First , There was some old unfashionable Ware in the Defuncts Inventar not Sold , whereof the Tutrix offered to the Pursuer his two third parts in specie . The Pursuer answered , that the Tutrix had priced the same , and behoved to accept them at that price , and that she ought to have done Diligence to have Sold them ; and Executors are never liberat but upon payment of the price .

The Lords found , that albeit Executors are comptable to Creditors always for the price ; yet not so to the Children ; and therefore if it was visible that the Ware was old , and could not be Sold , wherein the Tutrix was at the loss of her Third , They found the same should be accepted ; but in that Case they found the Tutrix lyable for any greater price she got , then that contained in the Testament . The second point was , what Diligence the Tutrix should be lyable for , whether Registrat Horning were sufficient , or if Poinding and Apprizing behoved to be used .

The Lords found , that Horning would not be sufficient in all Cases , but according to ehe Condition of the Debitors , and therefore ordained the Parties to condescend thereon .

Fleming contra Fleming . Iuly 3. 1666.

DAm Elizabeth Fleming being Executrix to her Husband , and Tutrix to her Children , gave out the sum of 6000. merks to the Lord Cardross , and took a Bond● bearing the same payable to her self in Liserent , and to Malcolm , and Andrew Flemings , and failzing the one by Decease , to the other ; This Bond by a former Interlocutor , was found not to be altogether a Donation ; but it satisfied the two Bairns Portions pro tanto . Malcolm being now dead , Andrew the surviver claimed the sum by the Substitution . Thereafter the Children as Executors to Malcolm , claimed the same , on this ground , that this sum not being found a Donation , but to be given in satisfaction of of Andro's Portion , the Tutor could not Substitute any Heir to Malcolm , but behoved to remain as it had been lent , as Malcoms own means , in which case it would belong to his whole Brethren and Sisters , and not to Andrew only . Andrew all eadged , that he being Substitute by his Mother , who had now Right from the remanent Children , she who had Constitute this Substitution could never quarrel the same . It was answered for the Mother , that she did not quarrel the Substitution ; but that albeit the Substitution took place , Andrew was her Substitute , and so was in the same condition as Malcolm , so that Malcolms half behoved still to be taken away by Compensation , in so far as she was Creditor to Malcolm , as if Malcolm were alive . It was furder alleadged for Andrew , that in such a Clause as this , there was no Fiar , and Heir , but two conditional , or alternative Fiars , viz. either of the Children that Survived ; and therefore such Clauses would never make the Substitute Heir to represent the Defunct , and be lyable to his Debts .

The Lords found , that by the Clause of Substitution , the Person Substitute was Heir of Provision , yet not so as to be lyable to the Person Substitute his whole Debt ; but quoad valorem , of what the Substitute had obtained by the Substitution ; And therefore found the Sums to belong to Andrew as Heir Substitute , and yet with the Burden of the Compensation , in the same Case as was Competent against Malcolm himself .

By which Decision it follows , that the Mothers Substitution to Malcolm was Effectual , for which there is no reason , but the Error was in the first Concoction , for this Sum should have been found a pure Donation by the Mother , not only in respect of her Liferent reserved , which she past from , but in respect of the Substitution , which she could not pass from , being jus tertij .

Earl of Kinghorn contra Laird of Udney . Eodem die .

THe umquhil Earl of Kinghorn having granted a Wodset to the umLaird of Vdney , he by his Missive● acknowledged the Sums to be satisfied , and obliged him to grant a Renunciation , whereupon the Earl of Kinghorn pursues this Vdney , as representing his Father to grant Renunciation , and Procuratory of Resignation ; and condescended upon the passive Titles thus , that umquhil Vdney , after the Receipt of the Sums contained in the Wodset , had Infeft the Defender in the Estate of Vdney , reserving to himself a power to alienat , and Dispone ; after which Infeftment , this Missive is subscribed , acknowledging the Receipt of the Sums of before ; and thereupon alleadged , first , That the Father was oblieged by the Contract of Wodset , upon payment of the Sums to Renunce , and Resign , in prejudice of which Obliegements , he had Disponed his Estate to the Defender , who was alioqui successurus , and so as lucrative Successor , is oblieged to grant the Resignation . 2ly , The Letter obliging the Father to grant Resignation , albeit it be after the Infeftment ; yet seing there is a power reserved to the Father to Dispone his Obligement , must oblige the Son . It was answered , that there was nothing before the Defenders Infeftment , to instruct payment , the Letter being after , and no Obligement therein could burden him thereafter , unless his Father had Disponed , or had given a Security out of the Estate , conform to the Reservation .

The Lords found this passive Title new and extraordinary , therefore moved to the Pursuer to alter this Libel , and Libel therein a Declarator of Redemption , and to conclude the same , either with a Reduction or Declarator , for declaring that the Wodset Right being acknowledged by the Wodsetter to be satisfied , might be declared Extinct ; in which case there needed no Resignation ; or otherwise might conclude the Defender to grant Resignation , and the Defender thereupon Renuncing to be Heir , the Pursuer might adjudge , and thereupon be Infeft : But others , thought that hardly could a Right be adjudged , which was satisfied and extinct . The Lords referred to the Pursuers choise , which of the wayes he thought fit .

Iean Cuningham contra Laird of Robertland . Iuly 4. 1666.

JEan Cuningham as Donatrix to the Escheat of umquhil Sir David Cuningham of Robertland , pursued general Declarator against his Son , who alleadged Absolvitor , because the Horning was null , seing the Charge and Denunciation was only at the Mercat Cross of Edinburgh , whereas by the Act of Parliament , 1597. c. 294. all Hornings Execute against Persons within the Realm , dwelling within Bailleries , or Stewartries , should be Execute at the head Burgh thereof . Ita est , umquhil Robertland , had his Dwelling-house at Robertland , within the Baillerie of Cuningham , albeit for a time he was out of the Countrey , and was a Prisoner of War for the King .

The Lords Repelled the Defense , and sustained the Horning , and found that the Act of Parliament met it not ; seing neither the Person Denunced was within the Realm , nor dwelt within the Baillerie at that time ; but had remained several years in England .

Hallyburton contra Hallyburton . Eodem die .

HALLYBURTON pursues a Reduction of an Infeftment , granted by by his Father upon his Death-bed , to his Sisters , who alleadged absolvitor , because he had consented to the Disposition , in so far as he had Subscribed Witness thereto , and if need beis , offered to prove that he had read the same . It was answered , non relevat , because the Subscribing as Witness , relates only to the verity of the Parties Subscription , and nothing to the matter therein contained , so that whether the same was Read or not , it can import no Probation .

The Lords found the Defense Relevant , reserving to themselves to consider what the naked Subscription without the Reading of the Writ should work , in case the Reading thereof were not proven .

Earl of Hume contra His Wodsetters . July 5. 1666.

THE Earl of Hume pursues certain Wodsetters to Compt and Reckon for the Superplus , more then their Annualrents , conform to the late Act between Debitor and Creditor ; Who alleadged , first , Absolvitor , because the Reversion produced is null , not being Registrat conform to the Act of Parliament 1555. c. 29. Ordaining all Reversions to be Sealed , and Subscribed by the Parties own hand , or a Notar , which shall make no Faith , if it be not Registrat . It was answered , that that Act of Parliament was in desuetude , not only upon the Point of not Registration , but want of Seasine ; otherwise the Act of Parliament 1617. Anent the Registration of Seasines , had dot been necessar .

The Lords Repelled the Defense , and found the said old Act of Parliament to be in desuetude .

One of the Defenders further alleadged , that the Rights of these Reversions are prescribed , because they were not pursued within the 13 years appointed by the Par. 1617. c. 12. It was answered , that the Pursuer , or his Predecessor were Minors , during the space of 4 or 5 years of the said 13 & prescriptio non curit contra minorem . It was answered for the Defenders , that in this part of the Act , there is no exception of Minors ; albeit in the former part of the Act , anent the 40 years , Minority be expresly excepted . & exceptio firmat regulam in casibus non exceptis , especially seing Reversions being but pacta de retro vendendo , and so Bonds were prescribed by the old Act of Parliament , so the addition of 13 years was ex mera gratia , and ought to be strictly interpret .

The Lords did also Repel this Defense , and found that the 13 years run not against Minors .

It was further alleadged for one of the Defenders , that the Reversion made use of against him , was since the Act of Parliament 1617. and not Registrat , and so could not operat against him , who is singular Successor to the Granter thereof . The Pursuer Replyed , that before the Defenders Right , he had used an Order of Redemption , and had Execute a Summons of Declarator , whereby res fuit litigiosa ; and no Right granted thereafter , can prejudge the Pursuer .

The Lords found the Reply Relevant to elide the Defense .

Laurence Scot contra The Heirs of Line of Auchinleck . Eodem die .

LAurence Scot pursues the Daughters of umquhil David Boswel of Auchinleck , and the Lord Cathcart , and the Lairds of Adamton , and Sornbeg , for a thousand merks adebted by him to the Defunct . The Defenders offered to Renunce . The Pursuer Replyed , they could not Renunce , because they had behaved themselves as Heirs , in so far as by agreement betwixt them , and the Heir-male , they had Renunced their Interest of the Heretage in his favours , and had gotten sums of money therefore . It was answered , non relevat , unless they had so Renunced , as to prejudge the Creditors , or to Assign , Dispone , or Discharge any thing they might succeed to , but if they only got Sums of Money from the Heir-male , in way of gratuity for their kindliness to the Estate , and to grant a Renunciation voluntarly , as Law would compel them , it would not make them lyable ; and the truth is , that by the Defuncts Contract of Marriage , the Estate is provided only to the Heirs-male , and only 10000 merks to the Daughters : Likeas , the Defunct Disponed the Estate to his Brothers Son , who adjudged both upon the Clause of the Contract , and Disposition , and the Defenders Renunced to him ; as a Creditor , in common form .

The Lords found that the geting of Sums of Money , for such a Renunciation , by which the Creditors were not prejudged , did not infer behaving as Heir .

Collin Hay contra Magistrats of Elgin . Eodem die .

COllin Hay insists in his pursuit against the Magistrats of Elgin , for payment of a Debt due to him by a Debitor , who escaped out of their Prison . It was alleadged by the Defenders , that the Prisoner escapt vimajori , without their fault , in so far as on a Sabbath , when the People were all at Preaching , the Officer Keeper of the Prison opening the Door , a Woman did cast a Plaid over the Officers head , and pull'd him at unawars to the ground , in the mean time the Rebel escap't , whom the Officer followed , and was wounded by several persons , whom he had lying darn't in the Town , to assist him .

The Lords found the Condescendence not Relevant , and that the Magistrats should have had their Tolbooth better Secured , then the same could be forc'd by one Woman ; for there was no other alleadged present , before the Prisoner got out , neither was it a competent time to open the Tolbooth upon the Sabbath , when the People could not concur in case of Force .

Parson of Morum . contra Laird of Beirford and Beinstoun . Iuly 6. 1666.

THe Parson of Morum pursues Reduction of a Tack set by the former Parson to Beirford and Beinstoun , as being granted without consent of the Patron . The Defenders alleadged absolvitor , because the Tacks were set by the Parson , who had Commission from the Earl of Buckcleugh , Patron to Set Tacks . 2ly , The Tacks were Set with consent of Francis Steuart , Lord Bothwel expresly , as Patron , which Francis Steuart had Right to the , Patronage , in so far as this Patronage , with the rest of the Estate of Bathwel , being Forefault , the Earls of Buckcleugh , and , Roxburgh got Gifts thereof , but by the Kings Decreet Arbitral , betwixt Francis Steuart and them , Buckcleugh was ordained to denude himself of this Patronage , and others in favours of this Francis . The Pursuer answered , first , That no Commission granted by the Patron to the Parson himself , could be sufficient , because the intent of the Act of Parliament , requiring the consent of Patrons , was not for any advantage , or Interest of the Patron , to his own behove , but to the behove of the Benefice , that the Incumbent might meliorat the same ; and so the Patron was by his Right of Patronage , as Curator Ecclesiae ; but Curators cannot authorize their Minors by Commission , at least the Patron cannot give commission to the Beneficed Parson himself , no more then he could Renunce the benefit of the Act of Parliament , and leave the Parson to himself . 2. Before the Tack was Set , the Earl of Buckcleugh , Granter of the Commission was dead , & morte mandatoris perimitur mandatum . As for Francis Steuarts consent , he was not Patron , not being Infeft ; but the Kings Decreet Arbitral , imported only a Personal obligement for Buckcleugh to denude ; so that if Buckcleugh thereafter should have consented to another Tack , that would have been preferred .

The Lords found that Member of the Alleadgence , of Buckcleughs , being dead before the Tack , not Relevant , to annul the same , as depending on his Commission ; but decided not the first Point , whether Commission could be granted by the Patron , to the Parson himself ; but found the last Member Relevant , to defend the Tack ; for the Right of Patronage , being jus incorporale , might be Transmitted by Disposition , without Infeftment , and albeit Buckcleugh was not formerly denuded , even by Disposition , so that if he had consented to another Right , that , as more formal , would have been preferred , yet , there being no competition , the Parson cannot quarrel the want of the Patrons consent upon that ground .

Isobel Tosh contra David Crookshank . Eodem die .

ISobel Tosh pursuing Reduction of a Decreet , pronunced in foro contradictorio , and in presentia , on this ground , that it was Extracted by the Clerks unwarrantably , contrair to what was done by the Lords , which they offered to prove by the Oaths of the Advocats on the other side . It was answered , this were a ground to Reduce all the Lords Decreets , in foro .

Yet the Lords sustained the reason to be proven , as said is .

Corbet contra Sterling . Eodem die .

COrbet of Concorse pursues a Spuilzie of certain Goods out of his House at Glasgow , against William Stirling , who alleadged Absolvitor , because he had lawfully poinded them from his Debitor , in whose Possession they were . The Pursuer answered , that he offered him to prove , that he had Disposition of these Goods from that Partie , from whom the Defender alleadged to have poinded them , and an Instrument of Possession thereupon ; and that he had payed Mail for the House where they were several years , and still when he came to Glasgow he did Reside in the House , and made use of the Goods . The Defender answered , that his Defense did yet stand Relevant , because the Condescendence makes it appear , that the Pursuers Right was from the Defenders Debitor , and any Possession he alleadges might be simulat ; and the Defender in Fortification of his Legal Execution , offered him to prove , that his Debitor remained in the natural Possession of the House , and made use of the Goods , as his own Goods , and so was in natural Possession thereof , whereby he might lawfully poynd from him . The Pursuer Repeated his Reply ; and further alleadged , that one of the Baillies of Glasgow alleadged that they were his Goods , at the time of the poinding , and offered his Oath . The Defender answered , that that Baillie was neither the Pursuers Servant , neither had Commission .

The Lords found the Defense for the Poynder Relevant , and more pregnant then the condescenders alleadgence , and Repelled that Member of the Duply , anent the Baillies offering of his Oath .

Cranstoun contra Wilkison . Iuly 10. 1666.

IN a Pursuit betwixt Cranstoun and Wilkison ; The Defender being conveened as Heir to his Father , who was Vitious Intrometter with the Pursuers Debitors Goods and Geir .

The Lords having of their own proper motion , taken this passive Title to Consideration , as to this Point , whether Vitious Intromission , as it is an universal passive Title , died with the Intromettor , or if it might be pursued against his Representatives , they ordained the Parties to be heard thereupon . which being Reported this day , The Lords found , that no person● as representing a Defunct , could be lyable universaliter , upon that Defuncts Vitious Intromission , but only for the true value of his Intromission , and that either by Action or Exception ; upon this Consideration , that albeit ●uch Titles have been oft times Libelled , and sometimes Sentence thereupon , when none opposed ; yet there had never been a Decision , nor Interlocutor for it ; and that the passive Title being poenal , sapiens naturam delicti , non transit in haeredes delinquentis in quantum penale ; for they thought it were of dangerous consequence , if Persons might be lyable , not only to their immediat Predecessor , but to their Goodsire , Grandsire , or Fore-grandsires , vitious Intromission ; but if the vitious Intromission had been Established against the Defunct , in his own time , it would be sufficient against all his Successors : Otherways after his death , they could not be put to purge the Vitiosity . or to shew the manner , or the Warrand of his Possession . But it was not determined , if Action had been intented against the Defunct , and he dyed before Sentence , whether his Heir would be lyable , there being different Cases as to that Point , which required different Considerations● as if the Defunct dyed after Probation , or if after Litiscontestation , when at least the particulars were condescended on , and the Defunct compearing , alleadged nothing to purge : or if the Pursuit were de recenti , and not long delayed , but the Defunct dyed , the Pursuer doing all Diligence ; or if Diligence were not used , but the matter lay over ; in which case , it seems litle respect could be had to the intenting the Action only ; and it would be as litle questionable , that if Probation were led , the Defunct compearing , it would be as valid against him , as if Sentence were obtained , the midle Cases are more dark : But none of them were comprehended in this Decision .

Iames Thomson contra Binnie . Eodem die .

THere being a Decreet obtained against Binnie , his Creditors finding him at Linlithgow , secured him , and he found two Burgesses Caution as Law will , who being conveened for payment of the Debt , alleadged absolvitor , because they were only in common Form Obliged as Cautioners as Law will , which doth not import judicio sisti , & judicatum solvi , but judicio sisti , aut judicatum solvi . Ita est , They sisted the Party for whom they were Cautioners , and put him in the Provosts hands , who put him in Ward , and Protested to be free conform to an Instrument produced . It was answered , non relevat , because they only sisted him judici , but not judicio ; they ought to have presented him in the Court , when that Cause was called ; and the Pursuer was not obliged to know , or take notice what they did otherways , which might be by way of Collusion .

The Lords found the alleadgence Relevant , for there was no Collusion condescended on , providing the Defenders prove by the Witnesses , insert i● the Instrument , that it was so Acted : For they thought , that if the Cautioners put the Debitor in Ward , at any time during the Process , the Pursuer was not prejudged ; For if he insisted in his Process , and upon not presenting of the Defender Protested , the Cautioners would either then alleadge that he was in Prison , or otherwayes it would import Collusion .

Mr. Iohn Hay contra Sir Iames Dowglas . Eodem die .

MR. Iohn Hay of Haistoun , and Sir Iames Dowglas having both Rights of Appryzing of the Estate of Smithfield , did agree , that Sir Iames should have three parts , and Mr. Iohn one , and did obtain a Decreet at both their Instances for removing a Tennent , from some Aikers ; but Sir Iames Laboured and did Sow the whole ; Mr. Iohn did thereafter Sow as much Corn upon the Sown Land , as would have sown his quarter , and now pursues an Intrusion against Sir Iames , who alleadged absolvitor , because Mr. Iohn was never in natural possession , and offered to give the 4. part of the Rent the Aikers payed before . The Pursuer answered , that the removing of the natural Possessor was equivalent , as if Mr. Iohn had been in natural Possession of his Quarter ; and therefore the offering to him the Rent was not sufficient , yet he was willing to accept the Rent for this year , so as Sir Iames would devide for time coming .

The Lords found that in this Process they could not compel Sir Iames to devide , but sustained the Process , ad hunc effectum , that Mr. Iohn should have the 4. part of the Cropt , paying Sir Iames the Expences of Labourage .

Dam Margaret Hume contra Crawford of Kerse . Eodim die .

DAM Margaret Hume having charged the Laird of Kerse , who was Cautioner for the Earl of Lowdoun , for her Liferent , that she had out of the Estate of Lowdoun . He Suspends , and alleadges that the Charger ought to assign him , seing the Bond wants a Clause of Relief , whereby he will have difficulty to have Relief of the other Cautioners bound .

The Lords found that they could not compel the Charger to assign , but in so far as of her own consent she would .

Canna contra Eodem die .

THere was a Disposition of some Tenements in Dumbar , containing this provision , that the Buyer should pay such a sum of Money● to a Creditor of the Sellers , under the pain , and penalty , that the said Disposition should be null . Infeftment followed upon the Disposition , and the Land is now Transmitted to singular Successors , who pursuing for Mails and Duties . It was alleadged for the Creditor by the Reservation , that this Reservation being a real Provision , the Creditor must be preferred to the Mails and Duties , ay and while the Sum be payed . It was answered , first , That this provision was neither in the Charter , nor Seasine , and any Provision in the Disposition , could only be Personal , and could not affect the Ground , nor singular Successors ; seing no Inhibition , nor other Diligence was used on it before their Right . 2ly . Albeit it had been a Provision in the Investiture ; yet it could have no Effect against the Ground ; which can●not be affected but by an Infeftment , and upon a Provision , neither Action , nor Poynding of Annualrents , nor Mails and Duties could proceed . It was answered , that real Provisions must necessarly affect the Ground , and there can none be more real than this , not only being a condition of the Disposition ; but also containing a Clause Irritant .

The Lords having first ordained the Infeftment to be produced , and finding that the Seasine proceeded upon the Precept in the Disposition , without Charter , being within burgh , the Lords found that the Provision could give no present access to the Mails and Duties , until the Clause Irritant were declared ; or that it were declared , that they should have like Execution , by vertue thereof , against the Lands , as if it were in the hands of the first Buyer , which the Lords thought would operat , but had not the occasion here to decide it .

Iohn Scot contra Sir Robert Montgomery . Iuly 12. 1666.

JOHN Scot pursues Sir Robert Montgomery , as vitious Intrometter with the Goods and Gear of Sir Iames Scot of Rossie , to pay a Debt due by Sir Iames to the Pursuer . The Defender alleadged absolvitor , because , any Goods he Intrometted with , were Disponed to him , for Onerous Causes , by the Defunct , and delivered conform to an Instrument of Possession produced .

It was answered , that the Disposition bears , Horse , Neat , Insight , Plenishing , and all other Goods and Gear , which cannot be extended to any thing of another kind , nor of greater value , as current Money , Jewels , Silver-plate , Chains , &c. which never past by such general Clauses , unless it be specially Disponed . It was answered , that albeit there had been such Moveables , and the Defender had Intrometted therewith , though another having a better Right , might Evict the same ; yet the Defender had a probable Ground to Intromet , which is sufficient to purge this Odious passive Title .

The Lords found the Disposition and Delivery Relevant , to purge the Vitiosity .

Normand Livingstoun contra Lady Glenagies . Iuly 13. 1666.

NOrmand Livingstoun having appryzed the Lands of Glenagies , pursues the Tennents for Mails and Duties , wherein the Lady compeared , aud alleadged , that she ought to be preferred , because she is Infeft in a Liferent in the Lands by her Contract of Marriage . It was Replyed , that the Lady and her Husband , for all Right that either of them had , had given a Right to their Cautioners to uplist the Mails and Duties of the Lands in question , for payment of Debts , and this Debt particularly , whereon this Appryzer proceeds ; with power also , to the Cautioners , to Dispone any part of the Lands for payment of the Debts ; which the Lady Ratified Judicially , and which now Excludes her from hindring any of these Creditors to get payment . It was answered for the Lady ; first , That this Right was but a Factory , or Commission , and so Expyred by the Lairds Death . 2ly , It was only in favours of the Cautioners , for their Relief ; but the Creditors had no Interest to alleadge thereupon . 3ly , The Cautioners were never Distrest ; and it was a mistake ; being to them as Creditors in the Sum ; not being so in effect .

The Lords having considered the Commission , and that it buir not only the Lady to consent , but for all her Right , to grant Commission , and that , not only it was in favours of the Cautioners , in case of Distress ; but also in favours of the Creditors : bearing , to be for payment of the Creditors : Therefore they found the same Relevant against the Lady ; to exclude her Infeftment , ay and while the Debts were payed . But this occurred to the Lords , that if the Lady could condescend , that by the Creditors , or Cautioners fault , in not making use of this Commission , the Laird was suffered to continue in Possession , so that if they had used Diligence , the Debts would have been payed , in whole , or in part , and the Ladies Liferent disburdened , pro tanto ; they would find the same Relevant .

Patrick Keith contra Laird Lesmore , Troup and others . Iuly 14. 1666.

PATRICK Keith having Right of Wodset , granted by the Earl of Marischal , pursues a Reduction against the Laird of Lesmore , of a posterior Right , granted by the Earl to him ; Which Right was Disponed to Muiresk , who was Infeft , and Dispon'd to Troup , who is present Heretor ; who being all Called , and Litiscontestation made , and the Cause concluded ; at the Advising thereof , it was alleadged for Troup , that Muiresk was dead , and there could be no advising of the Cause , till some Representing him were Called ; for as in initio , there could be no Process against Troup , the present Heretor , till Muiresk his Author were Called : So neither can there be any procedor now , till some Representing him be Called . It was answered , the Pursuer declares that he Insists against Lesmores Right principaliter ; against which only the Reasons are Sustained ; and as for Muiresk , and Troups Rights , they will fall in , consequentiam●

The Lords found that the Process behoved to be Transferred against Muiresks appearand Heir , before it could be advised : For as the declaring that the Pursuer Insisted principaliter against the first Right , would not have been Relevant ab initio ; seing the Law allows all mediat Authors to be Called , that they may defend the Right , whether and Reasons be Libelled against their Rights , or their Authors ; which comes in the place of the old Custom , of sisting Process until the Defenders Warrand were Called , and Discust : So every Author has alike Interest , to Object against the Reasons . although Libelled principaliter , against the first Authors Right .

But the Lords declared , that , seing the Defender made this unnecessar delay , they would be more favourable in drawing back the Reduction , ad litem motam , aut contestatam .

Sharp contra Glen . Eodem die .

IN a Competition betwixt two Compryzers ; It was alleadged , that the Pursuer , who Insisted for the Mails and Duties , his Appryzing was extinct , by Intromission within the Legal ; Which was offered to be proven by his Pursuers Author , his Oath . It was answered , that his Authors Oath could not be Received against a Singular Successor , standing now Infeft ; for as the Cedents Oath is not Receivable against the Assigney in personal Rights ; much less is the Authors Oath against the singular Successor in real Rights .

It was answered , that before this Pursuers Right , res fuit litigiosa , in so far , as the Pursuers Author having before pursued Mails and Duties , in that Process , the Defender offered to prove by his Oath , that the Appryzing was satisfyed , whereupon litiscontestation was made , whereby res fuit litigiosa , and no posterior Right could prejudge the Defender .

Which the Lords found Relevant , and ordained the Authors Oath to be taken .

Fountain and Brown contra Maxuell of Nethergate . Eodem die .

BRown , as Heir to Mr. Richard Brown , who was Heir to Thomas Brown pursued for exhibition . and delivery of a Wodset Right , granted in favours of Thomas ; Wherein the Lords having sustained Witnesses to be admitted to prove , not only the having of the Writs , since the intenting of the Cause , but the having them before , and the fraudful putting them away , which ordinarly is only probable by Writ , or Oath ; unless evidences of Fraud be condescended on , in respect the matter was ancient , and the Pursuer had long lived in England , now at the advising of the Cause ; severall of the Witnesses were found to Depone , that the Defender , before the intenting of the Cause , not only had such a Wodset Right ; but was dealing to get the same conveyed in his own Person , which importing Fraud .

The Lords would not absolutely decern him to exhibite , but found that he behoved , docere quomodo desijt possedere , or otherwayes produce , and therefore ordained him to compear , that he might be interrogat , and condescend upon the particular Writs .

Thomas Ogilvy contra Lord Gray . Iuly 17. 1666.

THomas Ogilvie pursues the Lord Gray , as behaving himself as Heir to his Father , by Intromission with the Mails and Duties , of the Lands wherein his Father dyed Infeft : as of Fee ; for payment of a Debt of his Fathers ; who alleadged absolvitor , because any Intromission he had , was by a Warrand , and tollerance of Sir George Kinnaird , who stood Infeft in the Lands , upon a Gift of Recognition . It was answered , non relevat , unless the Gift had been Declared , before the Defenders Intromission ; because the Gift would not have given Right to the Donatar himself , to possess . The Defender answered , that the Gift was Declared before the Intention of the Pursuers cause , which Declarator , albeit after Intromission , yet must be drawn back to the Gift , to purge the vitiosity of the Defenders Intromission , in the same way , that the Confirmation of a Testament will purge anterior vitious intromission , the Confirmation being before the intenting of the Cause .

The Lords found the Defense relevant , to elid the passive Title , seing any colourable . Title is sufficient , to excuse the vitiosity : but did not find , that the Declarator , before intenting the Cause , had the same Effect , as a Confirmation ; because by constant Customs , such confirmations , purge the preceeding vitiosity ; which has never yet been found in this Case of an Heirs intromission with the Rents of Lands : but the Lords found the Defender lyable for the single value of his Intromission .

Alexander Burnet contra Iohnstouns . Eodem die .

JOhn Iohnstoun , having disponed the Lands of Fraster-hill , to Gordoun of Lesmore , whose Right Alexander Burnet having appryzed , and by the appryzing , having Right to the Clause of Warrandice contained in the Disposition ; charges Iohnstoun the Disponer , to warrand the Right against a posterior Right , granted by him , to William Iohnstoun , who had obtained first Infeftment . It was answered , that the Warrandice could have no effect , because there neither was , nor could be a distress , in so far , as in William Iohnstouns Disposition , Iohn Iohnstouns , and his Wifes Liferent were reserved , during whose life he could never distresse Burnet . 2ly . It was Burnets authors fault , that for many years , he did not take Infeftment , having long Right before the second Disposition . It was answered , that Iohnstoun himself could never object this delay , to excuse his fraudulent Deed , of granting double Dispositions , whereby Parties become infamous by the Act of Parliament , 1540. cap. 105. and unto the other point , albeit there was no present distress , yet there was unquestionable ground of a future distress , against which the Defender could answer nothing , that could elid it , and who being but a naked Liferenter , if no execution should pass upon the Clause of Warrandice during his Lifetime , he would be fully frustrat .

The Lords decerned Johnstoun the Disponer , to purge the posterior Disposition , granted by him , and found neither of the alleadgeances , in the contrair relevant .

Brown and Duff contra Bizet . July 18. 1666.

BRown , and Duff , having obtained Decreet against Bizet , for a Sum due to Umquhil Andrew Duff Merchant in Polland , Bizet raises Suspension , and Reduction , upon this Reason , that this Sum having been in bonis defuncti , the Charger could have no Right thereto , till it were established in their Persons , by a Confirmation in Scotland , by the Commissaries of Edinburgh , ut in communi patria . It was answered , moveables sequuntur personam , and therefore , wheresoever the moveables be , they are regulat according to the Law of the place where the Defunct resides , and it is instructed by the Testimony of the Consul , and Counsel civitatis Regiae pusensis , that by the Common Law , and Law of that place , moveables belonged to the Wife , and Bairns , and the Pursuers were so cognosced by them , declaring the said Clares Brown Wife , and the said Duff , the only Daughter of Andrew Duff , and therefore they have sufficient Right without Confirmation in Scotland , which appears by the Act of Parliament , James 1. cap. 89. Par. 1426. And it hath been still the Custome so to do , and that it was so decyded , the 16. of Feb. 1627. Lauson contra Bastil Kello . It was answered , that it was otherwayes decided , in the Case of Rob contra French , 25. Feb. 1637. And there was no reason , that these that lived out of the Country animo remanendi , should be in better condition , then these that resided in the same , and behoved to Confirm , and to pay the Quot .

The Lords found , that the Testament behoved to be Confirmed , by the Commissars of Edinburgh ; for having considered the old Act of Parliament , they found , that the poynt there ordered was , to what Judicatures the Merchants going abroad to Trade , should be lyable , and that such as went abroad , not animo remanendi , should be subject to the jurisdiction of that place , where their Testament would be confirmed . ( viz. where they had their Domicills ) but these that went out of the Country , to remain , are excepted ; but nothing exprest where their Testament should be Confirmed ; and for the Decision , the Point in question , was not whether a Confirmation in England was valid , but whether a Confirmation without an Inventar , was valid , and therefore , seing nothing was objected against the Confirmation it self . The Lords did justly find , that the wanting of an Inventar , in an English Confirmation , where that was the custome , did not prejudge it , neither is the Case determined by the Decision betwixt Rob and French , in respect , that the Executor having Confirmed in England , and rather being Confirmed by the Legatars , would not own the Confirmation , but renunced the same ; and therefore the Lords found no Consuetude , or Decision in the Case , but determined the same , ex bono & aequo .

Hellen Millar contra Watson Iuly 21. 1666.

WAtson having obtained a Decreet before the Lords , against Hellen Millar , for the Rent of some Tenements in Glasgow . she Suspends , and raises Reduction , on these Reasons . First , That the Decreet was null , as being ultra petita , in so far as the half of the Duties was only lybelled , and the whole was decerned . 2dly , That Watson's Right was , as Heir to Watson , who was first Wife to Brown , who stante matrimonio acquired this Right to him , and her , and the one half to her Heirs , and the other to his , which was a Donation betwixt Man and Wife , revocable , and revocked by the Infeftment granted to Hellen Millar , in Liferent , his second Wife . It was answered , that the Decreet being in foro contradictorio , was irreduceable . 2dly , That the Right was not granted by the Husband to the Wife ; but acquired from a third Partie .

The Lords reduced the Decreet , finding that it was visibly Extracted by error of the Clerks , being ultra petita , and therefore sustained the second Reason , albeit it was omitted , that it was a Donation betwixt Man and Wife , being acquired to the Man and Wife ; and so presumed to be by his means which is equivalent , as if he had been Author , unless that Watson could condescend , that it was by the Wifes means .

Gavin Hamiltoun contra Duke Hamiltoun and Bishop of Edinburgh , Eodem die .

GAvin Hamiltoun , as Assigney by the Collector of vaccand Stipends , charges the Parochiners of Craufoord , Compearance is made for the Bishop of Edinburgh , alleadging , that this was a Patrimonial Kirk of the Bishoprick of Edinburgh , and so was not comprehended in the late Act of Parliament , anent vaccand Stipends .

The Lords repelled the Defense , and preferred the Collector of the Vaccand Stipends ; for they found the Act was general , without any such exception .

Mr. John Thomson contra Mckitrick , Eodem die .

MR. John Thomson pursues M●kitrick , for reduceing of an Infeftment of some Tenements in Dumfries , upon an appryzing , on these Reasons ; First , That the appryzing was null , proceeding upon a Bond without Requisition , or Charge ; without which , the Heretable Bond could not become moveable . 2dly , Infeftment , being within Burgh , was not given by the Baillies , and Town Clerk . 3dly , That it was neither Registrate in the Town Books , nor in the Register of Seasings of the Shire . It was answered , to the First , that the Bond bare no Clause of Requisition , but bore on the contrare to be payable , without Requisition , and so , as Moveables the Defender might have poynded therefore , without Charge , so might Lands be Appryzed ; to the Second , there being no Magistrats , nor Town Clerk in Office at the time of this Seasine , and the Defender being an Appryzer , necessitat to do Diligence , took Seasine by the Sheriff Clerk , which was necessar , and sufficient : To the Third , the Act of Parliament requires no Registration of Seasines within Burgh , and albeit , they be ordinarly to be found in the Town Books , yet if that should be neglected , they would not be null .

The Lords repelled the first Reason , and found no necessity of a Charge : and they had formerly repelled the second Reason , in respect of the Answer made thereto , and did also repell the third Reason .

Earl of Southesk contra Marquess of Huntlie . Iuly 23. 1666.

THE Earl of Southesk , and the late Marquess of Argyl , being Cautioners for the late Marquess of Huntly , for the Tochers of the Daughters of Huntly , they got an Infeftment of the Lands of Badzenoch , for their relief , bearing , that according as they should be distrest , they should have access to the Rents of the Lands , in so far as might pay the Annualrent of the Sum , which they should be distrest for . whereupon they were Infeft in Anno 1643. And thereafter Southesk was distrest , in Anno 1653. Whereupon , in Anno 1655. He pursued an Action of Maills and Duties , upon the said Infeftment of relieff against the said Lord Argyl , who was in Possession ; and my Lord Argyl having long before granted an Bond of relieff to Southesk , he used Horning , and Caption thereupon , in Anno 1655. and in Anno 1658. he used Inhibition upon the said Bond against Argyl , who in Anno 1658 Entered in a new Contract with Southesk , whereby , in Corroberation of the first Infeftment , he granted him a Wodset of the Lands of Enzie , with a Back-tack , by vertue whereof , Southesk uplifted several years of the Back-tack Dutie . Southesk now pursues the Marquess of Huntly , and his Tenents , for declaring of his Right , and payment of the Maills and Duties . it was alleadged for the Defenders . First , absolvitor , because the Marquess of Argyl hath been Retoured , to have possest the Lands of Badzenoch , peaceably , by the space of 5 years before his Forefaulture , which was in Anno 1661. Conform to the Act of Parliament 1584. By vertue thereof , this Marquess of Huntly , as the King's Donatar , to the Forefaulture , in so far as concerns the Estate of Huntly , has undoubted Right , and needs not dispute what Right Southesk had , before the five years . It was answered , for the Pursuer . First , That the Act of Parliament , 1584 , ought not now to take effect , because , by the late Act of Parliament 1617. Seasine and Reversions are appointed to be Registrat , otherwise they are null , and therefore the ground of the Act of Parliament 1584. viz. The abstracting of Evidents Ceasing , the said Act it self must also cease . 2dly . The said Act can only take place , where it is not constant , what Right the Forefault Person had , but that he was repute to be the ancient Heretor of the Lands , but where the Forefault Persons Right is known , to have been Beations Compryzing , or this Conjunct Right , granted to him● and the Pursuer , for their Cautionrie , presumptio cedit veritati , and the Right must only be holden to be such a Right as truly it was . 3dly . The five years Possession being in effect a Prescription , in favours of the King , and his Donatar , whatsoever would interrupt any other Prescription ; must interrupt this ; as if within the five years , the Pursuer had intented a Reduction of the Forefault Persons Right ; or an Action for Maills and Duties , or had required for his Sums , and charged thereupon , all these would be sufficient interruptions , against this quinquennial Possession , and would take away the presumption of Collusion , or abstracting . 4thly , The five years possession , by the Act of Parliament bears , expresly , to be peaceable , so that if it was turbata possessio , it would not be enough , and being once a troubled possession , by any legall interruption , after the said interruption , that subsequent possession ceases not to be a troubled possession ; though there be no furder interruption , within the 5 years , because interruption once used , endures for 40. years . Ita est , Argyls possession was troubled , by pursuits , to compt for the Maills and Duties of these Lands , upon this Right , and that within a year , or two , before the five , and likewise within the 5. year , the Marquess of Argyl did corroborat this Right , and in corroboration thereof granted Wodset of the Lands of Enzie , for the Sums accummulat , by vertue whereof , the Pursuer , within the 5. years , was in Possession● by uplifting the Back-tack Dutie ; which being a Cumulative Right , possession thereon is valid , for both . The Defender answered , that his Defense upon the Act of Parliament stood valid , notwithstanding of all the Replyes , because the Act is clear , and unrepealled , that 5. years peaceable possession of the Forefault Person , gives the King unquestionable Right , it being retoured by an Inquest , as now this is . And as to the troubling of the possession , no Deed , done before the 5 years , can have any effect , because , as the 5 years cut off the most Solemn anterior Rights , much more a Citation , or other Interruption , and as to the Interruptions , within the 5. years , they are only two , one is an Inhibition against Argyl , which proceeds not upon this Infeftment , but upon a Personal obligement , by Argyl , to relieve the Pursuer ; neither does it at all relate to the possession , nor any other Action ; but only as an Inhibition , prohibits Alienation . And as for the Contract of Wodset with Argyl , it is post commissum crimen , and so cannot prejudge the Donatar . It was answered , that albeit the Forefault Persons Deeds being voluntar , post commissum crimen , cannot be effectual ; yet where it is upon a cause anterior to the Crime . viz. Argyls Intromission , by the Infeftment of Relieff● and the distress occurring against the Pursuer after the Crime , and he having pursued Argyl for compt and reckoning , in anno 1655. does not constitute any new voluntar● Right , nor can it be any way collusive , being for an anterior cause ; and after a pursuit : and therefore it must work this much , to show , that the 5 years was interrupted , and in the Course thereof , both the Pursuer , and Forefaulted Person acknowledged this Right in question .

The Lords found the Reply relevant , upon the Deeds of Interruption , alleadged by the Pursuer , joyntly , to elid the Act of Parliament .

Mr. Iohn Harper contra his Vassall . Iuly 25. 1666.

MR. Iohn Harper , pursues a Declarator of Non-entry , against his Vassall , who alleadged that he was only lyable for theretour Maills , till the Decreet of general Declarator was obtained : It was answered , the common custome was , that from the Citation in the general Declarator , Mails and Duties were due in the special , because the general Declarator , declares the Non-entry since the date of the Summons , and so the Mails and Duties are not due from the date of obtaining the Decreet , but from the years decerned therein , which is from the date of the Summons .

The Lords found the Mails and Duties due since the time of the Citation , and not only since the time of the Sentence .

Earl of Southesk contra Marquess of Huntly . Iuly last , 1666.

EArl of Southesks cause mentioned 23 Iuly last , was this day advised , as to another Defense . viz. That my Lord Argyl had right to Beatouns Appryzing of the Estate of Huntly , which was long anterior to the Pursuers Infeftment , and whereunto Huntly hath right , as Donatar to Argyl's Forefaulture . This Coutract of the Cumulative Wodset , being granted , in Anno 1656. It was answered , that Beatoun , before he was Infeft upon that Appryzing , had renunced all benefit of the Appryzing , and discharged the same , in so far as it might be prejudicial to the Pursuers Right ; which is presently instructed . It was answered , that Renunciation was but personal , and was never Registrat ; and so could not be effectuall against any singular Successor ; much less against the Kings Donatar , having a real Right . It was answered , that Appryzings are not of the nature of other real Rights , but they may be taken away , by Intromission , Payment , or Discharge of the Appryzer , and there needs no Resignation , nor Infeftment . It was answered , that albeit , by the Act of Parliament 1621. Appryzings may be taken away by Intromission , and that it hath been extended to payment , yet never to such personal Back-Bonds .

The Lords found the Appryzing to be taken away , by Beatons Back Bond , renuncing the same , in so far as concerns this Pursuer ; and found the same relevant against the Donatar .

Thomas Crawfoord contra Town of Edinburgh . Eodem die .

THomas Crawfoord , having Gift of ultimus haeres of a person , to whom the Town of Edinburgh was Debitor , pursues for payment thereof . The Defender alleadged no Process , till the Gift were declared . The Pursuer answered , no necessity of a Declarator in this case , more then in a Gift of Recognition , and Waird , and that there was no person that could be particularly cited .

The Lords found the Defense relevant , that this Gift , behoved to ●e declared albeit it were but upon a Citation generally against all and sundry at the Mercat Cross.

Sir Lodovick Gordon contra Sir Iohn Keith . Eodem die .

SIr Lodovick Gordon , being Assigned to a Sum due to Sir Robert Farquhar by Sir Iohn Keith , pursues Sir John , for payment , who alleadged absolvitor , because he had Right to the Sum himself , as Donatar to Sir Roberts Escheat , and that the Sum was Moveable , albeit it bare Annualrent , in so far as the Term of payment was not come . It was answered , that Sums were Heretable , as to the Fisk , by the Clause of Annualrent , and the only exception was , that if the Term of payment of the Annualrent was not come , the Same was Moveable ; and nothing in relation to the Term of payment ; if the Annualrent was come due , before the Rebellion .

The Lords found , that the coming of the Term of payment of the Annualrents made the Sum to become heretable , as to the Fisk , and therefore repelled the Donatars defense .

Merchants in Dundee contra Spruce Englishman . November 3. 1666.

SOme Merchants of Dundee having sold a considerable quantity of Winesto one Spruce , an Englishman , they pursue him for the price , and because , he disappeared , and no body came to receive the Wines , they supplicat the Lords , that they would give warrand to them , to sell the Wines , least they should perish , and to be lyable only for the best price they could get for them : they did also represent , that Spruce had a Factor in Edinburgh , who being cited by a Macer , did not appear .

The Lords refused the Supplication , and found , that the day of the appearance of the Summons , not being come , and the Englishman , neither being present , nor oblidged to be present , they could do nothing against him , more then if he had not be in cited , and so could not sequestrat , nor appoint the Wines to be sold : but they lowed the Partie to protest , that they had done all diligence● that the Wines might not perish , whereof the Lords would take consideration in any Process that should occure .

Thomas Canham contra Iames Adamson . November 7. 1666.

JAmes Adamson , having disponed a Tenement to Ioseph Iohnstoun , who married his Daughter , in Conjunct-fee , and the Heirs betwixt them , which failzing , to devide between their other Heirs , in the Disposition there was expresly this Clause , providing that the said Joseph , and his foresaids make payment to the said James Adamson , or any he shall name , the Sum of six hundred pounds , wherein , if he failzie , the said Right , and Disposition shall expire , ipso facto . In the Infeftment the former Clause was repeated , but not the Clause Irritant . This Canham appryses the Land from Joseph Johnstoun upon Joseph's debt , and being Infeft , did pursue James Adamson for removing , who objecting the proviso , was notwithstanding decerned to remove . Now he pursues for the Maills and Duties , during his occupation . James Adamson alleadges that he ought to have the 600 lib. because he had disponed with that provision . It was answered , this was but personal , to pay , and could never oblidge a singular Successor ; and all the Pursuer could do , was to proceed upon the Clause irritant by way of Declarator .

The Lords , in the end of the last Session , having only seen the Disposition containing the said Clause , but not the Infeftment , repelled the Defense , but reserved the Declarator : but now having seen , that the proviso of payment was in the Infeftment ; the cause being so favourable , a person disponing to his own Daughter , and good Son , and the Disponer yet in possession , they did without multiplying furder Process , sustaine it by exception .

George Shein contra James Chrystie . November 15. 1666.

GEorge Shein , having pursued umquhil David Chrystie , as charged to enter Heir to James Chrystie his Father , for payment of a Debt of his Fathers , David renunces to be Heir , whereupon George obtained Decreet , cognitionis causa ; and David being now dead , he pursues James Chrystie , as now appearand Heir to his Debitor , for Adjudication of an Annualrent , as belonging to the Defunct Debitor , out of the Lands of Bassilie . It was alleadged for the Defender , absolvitor , because that Annualrent was but base , never cled with possession , and the Defender stands validly Infeft , singulari titulo . The Pursuer answered , that the Defense is not competent hoc loco , when the Pursuer is but suo periculo , craving Adjudication of his Debitors Right , and cannot be forced to dispute the same , till after Adjudication , he use diligence for getting of the same ; but this Defense will be Competent , whensoever upon his Adjudication , he shall pursue . The Defender alleadged a Pratique betwixt S●haw of Sornbeg and the Lord Forrester , wherein Forresters publick Infeftment was excepted in the Adjudication .

Yet the Lords shewed no Inclination to follow that Pratique , and therefore Repelled the Defense , and Adjudged .

Mr. Iohn Abercromie contra Anderson . Eodem die .

MR. Iohn Abercromie as Assigney having pursued Anderson , as Debitor for the Debt Assigned : he alleadged no Process , because the Assignation was posterior to the date of the Summons and Executions ; so that the Assignation , being his sole Title , the Process could not be sustained . It was answered , that the Defender had no prejudice , and that the Cedent concurred . It was answered that the Summons was not in the Cedents name , and so his Concourse could operat nothing , so that the Decreet thereupon would be null : For in the like case , the Lords , last Week , in the Cause betwixt David Hamiltoun and Iohn Kennedy and Symintoun , Reduced an Appryzing led twenty years since , because the Appryzing proceeded upon a Charge to Enter Heir ; and some of the Debts were Assigned to the Appryzer , after the date of the Charge , As to which the Lords found the Appryzing null.

The Lords sustained the Defense , and found no Process , and had respect to the said Decision of Reduction of the Appryzing , which they found to be , as is r●a●ed , though it was alleadged that after so long time , an Appryzer was not oblieged to produce the Letters of Appryzing , or Charge to Enter Heir , or Executions ; yet seing de facto these were produced , and deduced in the Appryzing , and mentioning the dates as aforesaid , the same was Reduced pro tanto ; but there was no debate reported , whether it should stand pro reliquo ; or how far it should extend , seing the Appryzer , as to the rest , offered to prove it satisfied by Intromission .

Alexander Downy contra Robert Young . Nov. 17. 1666.

UMquhil Alexander Downy granted an Assignation to his Oye Alexander Downy , of two Bonds , who finding , that after his Goodsires Decease , Mr. Iohn Hay was Confirmed Executor to his Goodsire , and had given up these bonds in his Inventar , but had not recovered payment : He Confirms himself Executor , ad non Executa , to his Goodsire , and pursues the Debitors for payment of the Bonds . Compearance is made for Robert Young , who alleadges that he is Executor Da●ive to Mr. John Hay , who Execute Downies Testament , by obtaining Sentence for payment of their Bonds ; so that the Bonds were no more in bonis of Alexander Downie , but of Mr. John Hay : and that the Testament being Execute by Decreet there could be no Executor , ad non executa to Downie , the first Defunct . It was answered that the Testament was not Execute by a Decreet , unless the Executor had obtained payment ; especially where the Executor was a meer stranger , and was neither nearest of Kin , Creditor , nor Legatar .

The Lords found the Testament of Downie Execute by Hay , by the Sentence obtained in Hayes Name ; and therefore found that Alexander Downie , the Oye , his Confirmation as Executor , ad non executa null .

It was further alleadged that Downie being not only Executor , but Assigney by his Goodsire ; the Assignation , though it had been but a Legacy , would have been sufficient against Mr. Iohn Hay , who is the Cedents Executor : and therefore is also sufficient against Young , who is the Executors Executor , and so represents the first Defunct , Downie the Cedent . It was answered , that Young was not only legitimo modo the Executor , but he is also Creditor of the first Defunct , Downie , in so far as he is Donatar of the Escheat of Iohn Hilstoun , and thereupon has obtained Declarator , and so is in the place of Iohn Hilstoun , to whom umquhil Alexander Downie was Debitor , by his Ticket produced , whereby Downie acknowledges that he had in his hands , Goods worth 6000 pounds , belonging to him , and Hilstoun , in Copartinary ; and obliged him to be comptable therefore ; which is anterior to the Assignation , granted to Downies own Oye for Love and Favour ; whereupon he hath Reduction depending against the Assignation , as in fraudem Creditorum . It was answered that the Ticket , in relation to the Copartinary , was not liquid , bearing only an Obligment to be comptable , with express Exception of desperat Debts , and others .

The Lords found , that in respect the Debt was not liquid , Downie the Assigney ought to be preferr'd , and get payment , but Ordained him to find Caution , that in case Young prevailed , he should refound .

William Blackwood contra Adam Purves . Nov. 20. 1666.

ADam Purves pursues Reduction and Improbation of two Bonds , alleadged granted by him to Ianet Baxter , and of an Appryzing led thereon , against certain Tenements in Edinburgh , belonging to him , and craved Certification contra non producta . William Blackwood , to whom by progress , the Right is now come , produces the Appryzing , and the Extract of one of the Bonds , whereupon it proceeded , and alleadges no Certification against the Letters , and Executions of the Appryzing after so long time ; the Appryzing being led in Anno 1621. and no Process of Reduction Rais'd , till after the year 1650.

Which the Lords found Relevant .

Likeas , he further alleadged , no Certification for not production of any of the principal Bonds , because they were Registrat in the Registers of Session , and the Principals were lost . The Pursuer answered , that there were pregnant Points of Falshood , viz. Purves having gone and left the Kingdom in Anno 1618. And having been a Souldier Abroad , till the year 1630. and these Bonds and the Appryzing thereon , both in one Month , and the Bonds granted to a Woman who had no such Estate , but the Servant of a Waiter , of an evil Fame : and one Blair a Witness who was hang'd for Falshood .

The Lords refused Certification for not production of the principal Bonds , but prejudice to the Pursuer to insist in his Improbation , by these or other Evidences , by the direct manner , but they admitted Certification against that Bond , the Extract whereof was not produced : yet conditionally to a time , that the Defender might upon the Adminicle of the Appryzing , Insist to prove the Tenor.

The Parochioners of Port Supplicant . Decem: 4 : 1666 :

THe Parochioners of Port having built a Manse upon the Gleib to their Minister , where there was no Manse before , and having valued the same according to the late Act of Parliament , and stented the same upon the Parochioners and others ; They did Supplicat the Lords for Letters of Horning , conform to the stent Roll , in respect that the said late Act of Parliament , being the twentieth Act of the third Session of the last Parliament , bears no warrand for Horning .

The Lords ordained Letters of Horning to be past .

Sir Alexander Vrquhart contra Sherem . Eodem die .

IN anno 1636 : Sir Thomas Vrquhart of Cromerty gave a Security of a House and some Lands , and a Salmond-fishing near Bamff , for 4000 : merks : and in anno 1637 : There was 700 : merks eiked and a Back-bond relating to the first Wodset Renounced , and a full Possession granted on both : There is a Clause of Redemption and Requisition upon payment of the principal Sums , and Annualrents resting for the time . Sir Alexander Vrquhart pursues Sherem , as now having Right to the Wodset , for Compt and Reckoning : Who alleadged Absolvitor , because this being a proper Wodset , wherein he had the full Possession , hazard of the Profits was not comptable , especially , seing the chief part of the Wodset was a Fishing , which was most uncertain ; and though de facto he happened to get much more then his Annualrent yet it is no Usurary Wodset , seing he might have losed all . The Pursuer Replyed , that by the saids Clauses of Redemption , and Requisition , he was not only obliged for the principal Sums , but for the bygone Annualrents , resting unpayed ; so that the Wodsetter had no hazard : and therefore it is no proper Wodset , and he is comptable . The Defender answered , that the Clause was only adjected ex stylo , for it did not bear , that what Annualrent should be resting over and above Intromission , should be Consigned , but the whole resting Annualrents ; or at least it had been adjected , in respect of the Back-bond , restricting the first Wodset : or in case the Wodsetter had been excluded from Possession .

The Lords found the Defender comptable in respect of the saids Clauses , but there occurred to themselves this question , whether the Superplus more then the Annualrent should compense ? and abate the principal Sum at the time of the Intromission , or only now , whereanent the Lords were of different opinions , many thought that when the meaning of the Parties was not full , and express , that should be followed , which is most ordinar amongst provident Pers●ns , hardly could it be thought that any would take a Wodset upon these Terms to draw out the principal Sum , with excress yearly , but the Lords reserved that Point to be considered , while it appeared whether there was any excress above the Annualrent .

Monteith contra Laird of Gloret . Dec: 7 : 1666 :

IN a Competition between Monteith and the Laird of Gloret . It was alleadged for Monteith , that he ought to be preferred to the Sums in question , because Glorets Assignation was obtained by Hamiltoun of Kinglass , and was lying by him blank in the Assigneys name , and by him filled up with Glorets Name , and delivered to him , so that Kinglass being his true Author , any Discharge granted by him while the Bonds were blank , and in his power , was relevant against Gloret his Assigney , Ita est Kinglass , while or before the Bonds were in his power , did equivalent to a Discharge , viz. oblieged himself to pay this Sum , and relieve the principal Debitor thereof ; and instead of the Discharge he took this blank Assignation , filled up by him in Glorets Name . 2ly , The Charge though in Glorets Name , is to Kinglass's behove : and if he were Charging his Obliegment to pay the Debt , would exclude him : And therefore must exclude the Charger . It was answered that Gloret was in bona fide , to take this Assignation , knowing nothing of the Back-bond ; and that an Obliegment to satisfie the Debt , was not equivalent to a Discharge : Neither is the having of the Assignation , though blank , equivalent to an Assignation , unless the Name of Kinglassie had been filled up and Intimat .

The Lords having taken Glorets Oath before Answer , wherein he acknowledged , that he got this Assignation from Kinglassy , and payed no money for it , and that it was on these Terms ▪ Kinglassie being owing him a greater Sum , he was to allow what he got by this Assignation , in part thereof , but Deponed he knew not if it was blank when Kinglasse had it or not .

The Lords found that the Assignation being accepted by Gloret in Terms aforesaid , that it was but a Corroborative Security , and so found the Assignation to Kinglassies behove , and found the Back-bond Relevant to exclude him , and therefore preferred Monteith .

Sir George Mckenzie contra Fairholm . Eodem die .

SIr George Mckenzie Advocat pursues a Reduction of a Bond granted by him as Cautioner for his Father , ( the Bond is now Assigned to Iohn Fairholm ) on these Reasons . First , That the Bond is null , as being done by a Minor , being in his Fathers Family , and not being Authorized by his Father , as lawful Administrator : And therefore in the same condition as a Minor having Curators , they not Confirming such Deeds are null , and may be Reduced at any time , though they have not been quarrelled within the Minors Age of twenty five . 2ly , Because Curators being chosen as a Security to the Levity of Minors , they cannot Authorise the Minor to the Curators behove , but such Deeds are null : So neither could the Pursuers Father Authorize him to be Cautioner for himself . The Defender answered ; First , That albeit a Father , as lawful Administrator , and Tutor to his Children , excludes all other Tutors , yet he is not Curator after their Pupillarity , because they may choose other Curators , and that filij familias , in the Civil Law could not Contract without their Fathers consent . It was a special Statute , per Senatus consultum Macedonianum , and not as Curator . 2ly , The Father cannot be lyable for his Omissions by his unprofitable Authorizing his Children , for such Actions would be contra pietatem & obsequium . 3ly , There is nothing more frequent in Scotland , then Sons to have a distinct Estate , while in their Fathers Families , given by the Father , or otherwise , whereof they have the full Administration without Authority . 4ly , Whatever may be alleadged for Children residing in the Family of their Father , yet that cannot be extended to Children , Acting by themselves , far from their Fathers Family : but the Pursuer was so living , and Acting at Edinburgh , attending the Tolbooth , and was majori ae●ati proximus , being past 20. The Pursuer answered , that his Reason stood still Relevant , because by the Law of Scotland , a Father is lawful Administrator to his Children , and is not ordinarly designed lawful Tutor , but lawful Administrator , which does not only endure during their Pupillarity , but during their Minority ; but at least , till they be Married , or Forisfamiliat ; or till they have a distinct Subsistence or Calling . And albeit the Children be not Residing in the Family , yet they are in familia , so long as they are there , and not separat from the same , as the Pursuer was : and albeit the Son may choose other Curators , if the Father permit , or the Judge think fit , and is not conveenable for his Mis-authorizing , or Omission , that infers only that he is only Curator honorarius . The Defender did furder alleadged , that the Father had furder Authorized , in so far as he Subscribed the said Bond , and so consented that his Son should Subscribe , and neither was the Deed in rem su●m , but in rem credito●is .

The Lords found the Reasons of Reduction Relevant , and Repelled the Defenses : and albeit many thought that the Father Subscribing with the Son , was sufficient to Authorize ; yet that it was not sufficient , being Caution for himself , in rem suam but did not proceed to cause the Parties condescend how near Sir George was to Majority , and what was his way of living .

Earl Cassils contra Tennents of Dalmortoun and John Whitefoord of Blarquhan . Decem: 11 : 1666 :

AN Action of Double Poynding , at the Instance of the Tennents of Balmortoun , against the Earl of Cassils on the one part : and Iohn Whitefoord of Blarquhan on the other , both claiming Right to their Multures . It was alleadged for the Earl of Cassils , that the Lands in question being holden Ward of him , is now in his hands , by reason of the Ward of Knockdaw his Vassal , he had now Right to their Multures , and they ought to come to the Miln of his Barony , whereof these Lands were Pertinent , and shew his Infeftment , containing the Lands of Dalmortoun per expressum . It was alleadged for Iohn Whitefoord , that he ought to be preferred , because that Kennedy of Blarquhan , the Earls Vassal , both of the Lands of Dalmortoun and Blarquhan , had Disponed to him the Lands of Blarquhan and Miln of Sklintoch , with astricted Multures , used and wont : at which time Blarquhan caused his Tennents of Dalmortoun , to come to the said Miln of Sklintoch , whereby the Thirlage was not only Constitute of the Lands of Blarquhan , but of Dalmortoun . It was answered for the Earl : First , That the Thirlage of Dalmortoun could not be Constitute by the said Clause ; because the Lands of Dalmortoun being no part of that Barony , whereof the Miln of Sklintoch is the Miln : But a distinct Tenement holden of a distinct Superiour : Such a general Clause could never have Constitute a Thirlage , unless the Lands had been exprest . 2ly , Albeit the Servitude had been Constitute never so clearly by the Vassal : Yet if it was without the Superiours consent , it could not prejudge him by Ward , or Non-entry . It was answered for Iohn Whitefoord to the First , That the Clause was sufficient to Constitute the Thirlage : and if it wrought not that Effect , it was of no Effect , because the hail Lands of the Barony were Disponed with the Miln , and neither needed , nor could be Thirled : And therefore the Clause of Thirlage behoved to be meaned of some other Lands . 2ly , Vassals may lawfully Constitute Servitudes without consent of the Superiour which are not Evacuat by Ward , or Non-entry . 3ly , It is offered to be proven , that the Earl consented to the Right of the ●●lture , in so far as the Lands of Dalmortoun being Appryzed from Blarquhan by Iohn Gilmour , he assigned the Appryzing to Iohn Whitefoord , who Assigned or Disponed the same to Kilkerren : in which Asignation , there was an express Reservation of the Multurs of Dalmortoun to the Miln of Sklintoch : upon which Infeftment the Earl received Kilkerren in these Lands , who is Author to the present Vassal .

The Lords found the Clause aforesaid in Iohn Whitefords Charter not to infer a Servitude of the Lands of Dalmortoun , not being therein exprest ; and holden of another Superiour : Nor no Decreets nor Enrolments of Court , alleadged to astruct the Servitude . And found also the second Reason Relevant , viz. That the Earl as Superiour , not having consented , was not prejudged by any Deed of the Vassals . But as to the third Point , the Lords found that the Reservation in Kilkerrens Right , unless it were per expressum , contained in the Charter Subscribed by the Earl of Cassils , could not infer his consent ; albeit the Charter related to a Disposition , containing that Clause , but if it were alleadged to be exprest in the Charter : they Ordained before answer , the Charter to be produced , that they might consider the terms of the Reservation .

Sir Henry Home contra Creditors of Kello and Sir Alexander Home . Decemb: 12 : 1666 :

SIR Henry Home having appryzed the Lands of Kello , before the year 1652. pursues the Tennents for Mails and Duties : Compearance is made for either Creditors appryzers , who alleadged they ought to come in with him pari passu , by the late Act between Creditor and Debitor ; because the appryzings being since the year 1652. was within a year of his appryzings , being effectual by Infeftment , or Charge . It was answered ▪ that the Act of Parliament was only in relation to Compryzings , both being since the year 1652. and the Pursuers appryzing being led before , falls not within the same . It was answered , that the Act of Parliament in that Clause thereof in the beginning , mentions expresly , that Compryzings led since 1652. shall come in pari passu with other appryzings ; but doth not express , whether these other appryzings are since 1652 : but in that is general , and the Reason of the Law is also general , and extensive to this Case . It was answered that the posterior part of that same Clause , clears that point , both in relation to the appryzings , in whose favours , and against which the Law is introduced , viz. that the Clause is only meant the appryzings led since 1652 : shall come in pari passu , which must both comprehend these that come in , and these with whom they come in .

The Lords Repelled the alleadgence , quoad other Compryzings , and found that their Compryzings could not come in with the Pursuer , he having appryzed before the year 1652. and Charged before their appryzing .

Ianet Thomson contra Stevinson . Decem: 13 : 1666 :

JAnet Thomson pursues a Reduction of a Disposition made by her to Stevinson , upon Minority and Lesion ; and also upon this Reason , that the Disposition was done within some few dayes after her Pupillarity , and it being of Land , ought not to have been done without authority of a Judge , especially seing she had no Curators . The Defender answered to the first , there was no Lesion , because the Disposition bears a sum equivalent to the value of the Land . To the second , non Relevat . The pursuer answered , that the Subscribing and acknowledging the receipt of Money by a Minor , cannot prove it self , but the Minor is Les'd in Subscribing the same . The Defender Duplyed , that he offered to prove by Witnesses , that the price was truely payed , and profitably Employed .

The Lords found not the second Reason of Reduction Relevant , the authority of a Judge being only required to the alienation of Lands made by Tutors of their Pupils Lands .

Anna Fairly contra Creditors of Sir William Dick. December 14 : 1666 :

ANna Fairly alleadging that she obtained an Assignation from umquhil Mr. Alexander Dick , as Factor for his Father , in satisfaction of a Sum due to her by his Father , pursues for delivery of the assignation . The Creditors alleadged that the assignation being in the hands and custody of Mr. Alexander the Granter , it must be proven by Writ , he being dead ▪ that it was delivered , and not by Witnesses ; for there is nothing more frequent , then Parties upon intentions , to subscribe Bonds , Assignations , and other Rights , and yet do not , de facto , deliver them : or if they have been delivered , to satisfie them and retire them and if Witnesses were admitted to prove the delivery , or redelivery of such Writs , the Lieges would be in extream unsecurity , contrary to our Law , that admits not Witnesses above an hundred Pounds ; and therefore Chirographum apud debitorem repeatum praesumitur solutum ; which presumption cannot be taken away by Witnesses . The Pursuer answered , that though this holds in Bonds , where there is a Debitor , and no other adminicle to instruct the Debt ; yet this is an Assignation , and the Cause thereof otherwise instructed , and most likely to be truely done : and it is offered to be proven , that this Assignation was delivered back to Mr. Alexander , to be made use of as Agent for the Pursuer .

The Lords refused to sustain this Member of the Probation , but because of the poverty of the poor Woman , recommended the case to the Creditors , to be favourable to her , and did forbear to write the Interlocutor .

Hay of Knockondy contra Litlejohn . Eodem die .

HAY of Knockondy pursues Litlejohn for the damnage sustained by him , by the fall of Litlejohns House , called the Tower of Babylon , whereby the Pursuers House , adjacent , was broken down . The Defender alleadged ; First , The Libel was not relevant , unless he had been required to find Caution , de damno infecto , as is required by the Civil Law , whereby if that Caution were not required , there is an express Text in the Title de damno infecto , that there shall be no Action , but the Party shall impute his loss to his own negligence . Likeas we have two special Statutes , concerning ruinous Houses , which prescrive the method of preserving them , and making up the damnage , none of which being followed , the Defender is not lyable .

2ly , Whatsoever might be alleadged against the Heretor of the said House , the Defender is only an Appryzer of a Liferent-Right , for a small Sum ; and the Liferenter was not obliged to repair a Tenement manifestly ruinous , that could not be preserved , but with great Expence and Rebuilding : much less the Appryzer who hath but a small Sum on it . The Pursuer answered to the first Defense , that his Libel was most Relevant Damnage upon any fault , being due and Reparable by the Law of Nature : and as for the Civil Law , it hath no Effect with us in this point , our Custom neither giving nor requiring such Caution ; much less refusing Action , if it be neglected : and as to our own Statutes , though they be very convenient wayes for securing of damnage , yet they are not exclusive , nor have they any Clause , except in these Cases , and in that method , Damnage shall be irrecoverable . To the 2d , it was answered , The Pursuer was not obliged to know , or enquire whether the Defender was Heretor or not : but he finding that he was a Neighbour , behaving himself as Heretable Possessor , by uplifting the Duties he did pursue him , and if need beis , offers him to prove , that he did require him to keep him skaithless , though he took no Instrument thereon . The Defender answered , that he was not obliged to take notice of such Requisitions , not being Solemn by Instrument .

The Lords found the Defender lyable , albeit there had been no Requisition verbal or otherwise , it being proven that the Ruinousness of the Tenement that fell , was notour and manifest to the Defender himself , whereby he was obliged , either to demolish the House , if it was not Reparable , or to have quite his Possession , to evite the imminent damnage of Neighbours .

Lord Colvil contra Feuars of Culross . Decemb. 15. 1666.

THe Lord Colvil as Heretable Bailzie of Culross , having Charged the Lord Kincairn and others for the Taxation of their Lands in Culross , conform to the stent Roll ; They Suspended , and alleadged that the stent Roll contained a fifth part more then the Taxation . It was answered , and offered to be proven , that it was the Custom of that and other Benefices at their meeting of making the Stent-roll , to add a fifth part for Expenses and Charges of ingathering the Taxation . The Defenders answered , that if any such Custom were , it was against Law , and against the Liberty of the Subject , who could be lyable for no payment , but by Law , or of their own consent ; or if any such Custome were , it hath been by the consent of the Vassals , or at least they have not questioned the same , nor is there any ground for such an addition , for the Kings Officers being obliged by their Office , to Collect His Majesties Taxations , they can demand nothing of them who payed without Process ; and if they be put to Process , the Lords will modifie such Expences as they see cause . The Charger answered , That such immemorial Customes have the strength of Law ; and that it was done with the consent of all the Vassals who conveened ; and that it was the Suspenders fault that they conveened not to make the stent Roll , which should not put them in better case then they had conveened : or if they had conveened , and disassented , there is no reason , that the dissassent of a few should be preferred to the consent of the most part , who as they may Vot in the stent Roll , for the Taxation it self ; in which the plurality carries : so must they for the necessary Expences : and all that can be alleadged with reason is , that the Lords may modifie the Expences of a fifth part , if it be too high . The Suspenders answered , that Law authorized the Feuars , as a Court and Judicature , to meet and stent , which implyes a power to the Plurality , but there is no such warrand for Expences ; as to which , the consent of a hundred cannot oblige the dissassent of one , or of one absent , and the absents have loss enough , that they have not a Vot in their own Stent .

The Lords sustained the Reason of the Suspension , notwithstanding of the answer ; and found that no Expences , nor any thing more than the Taxation could be stented , to have effect against these who consented not , but they would modifie Expences , in case of Suspension , as the Cause required , but modified none in this case , because a fifth part was Charged for , more then was due .

Lord Newbeath contra Dumbar of Burgie . Decemb. 18. 1666.

THE Lord Newbeath having right from Iames Mcken , who had appryzed the Lands of Burgie , pursues Reduction and Improbation against young Burgie and Iohn Watson ; and insists on this Reason , that any Rights they have are null , and fraudulent , being Contracted after his Debt , and the Right granted to young Burgie is null , as being but a base Infeftment , not cled with Possession , before the Pursuers publick Infeftment . The Defender alleadged that his Infeftment was cled with Possession , in so far as his Fathers Liferent was reserved thereby , and his Father Possessing by vertue of the Reservation , did validat his Infeftment . 2ly , Albert the Fathers own Possession could not be sufficient , yet the Father having Transmitted his Right to Watson , and Watson Possessing , the Suspicion of ●●mulation ceased , and there is a Disposition produced by the Father to Watson , which though it bear to be of the Fee , yet can import no more , but to be of the Liferent , seing the Father had no more , neither needs it have an Infeftment , seing it hath but the effect of an Assignation to a Liferent . It was answered , that if the Father had expresly assigned his Liferent , reserved in the base Infeftment , it might have been the ground of a question , whether the Assigneys Possessing so , would have validat the base Infeftment ? But since the Father has not taken notice of the Reservation , but Dispones as Heretor , it clears that he did not Possess by the Reservation , but by his own prior Right .

The Lords found the Reason of Reduction and Reply Relevant , and that the Fathers Possessing by himself , or Watsons Possessing by himself , could not validat the base Infeftment .

Charles Cass contra Mr. Iohn Wat. Eodem die .

DOctor Cass having taken Infeftment of an annualrent , out of the Lands of Robertland , in name of Cockpen and Adam Wat , Charles Cass as Heir to the Doctor , pursues Mr. Iohn Wat , as Heir to his Father , for Compt and Reckoning of the Mails and Duties , and Charges him with the hail Rental being intrometted , or ought to have been intrometted with by him and his Father , by vertue of the Trust in their Person ; and also Adam Wat took a gift of Tutory to the Pursuer , and so is lyable as his Tutor . The Defender answered , that his Fathers Name being borrowed on Trust , could lay no Obligation on him to do any Diligence , but what he thought fit , seing by his Back-bond he was obliged to denude himself , whenever the Doctor pleased ; and the Pursuer has reason to thank him for what he did , and not burden him with what he omitted , seing he had no allowance therefore : and as for the Tutory , there was a multiple Poinding all the time thereof , depending among five or six Parties , pretending Right by the dependence whereby the Tutor was excluded . The Pursuer answered , that the Defenders Name was not borrowed without his knowledge , but that he accepted thereof , and entred to Possession ; and as an Appryzer is not obliged to Possess , but if he Possess , must be answerable for the Rents of the Lands conform to the Rental , so must the Defender .

The Lords found the Defender not lyable to Diligence . by vertue of the Trust , albeit he did Possess , but Ordained him to Compt for his intromission , and to condescend what Diligence his Father did as Tutor , that if he be found deficient therein , there might be an additional Accompt to what he intrometted with .

Mr. Iames Cheap contra Mr. Iohn Philip. Decem. 19. 1666.

MR. Iames Cheap charges Mr. Iohn Philip , to fulfil a Minute of Alienanation of the Lands of Ormestoun , sold by Mr. Iames to Mr. Iohn , whereby Mr. Iohn was obliged to pay 25500 merks , as the price , or to assign sufficient Bonds therefore : He Suspends , and offers to Consign Bonds , and amongst the rest , a Bond of 8000 merks due by the Town of Edinburgh . The Charger alleadged that he was not obliged to accept that Bond , because at the time of the agreement , and Subscription of the Minut ; the Charger particularly excepted the Town of Edinburghs Debt , and the Suspender declared , that it should be no part of the price , which he offered to prove by the Writer and Witnesses insert in the Minute . The Suspender answered , that Witnesses were not competent in this Case , where the words of the Minute are not dubious , but clear and general of any sufficient Debt , for if this were sustained , the alteration of the price , as well as the manner of payment , might be proven by Witnesses . It was answered , that it was no way alike , nothing being here in question , but the manner of payment , and not the quantity of the price .

The Lords Ordained the Writer and Witnesses to be Examined before answer .

Ianet Thomson contra Stevinson . Eodem die .

IN the Reduction on Minority , at the Instance of Ianet Thomson contra Stevinson .

The Lords Ordained the Pursuers Mother to be received Witness of her Age , cum nota , there being a Testificat already produced , and there being 30 or 40 years since the Pursuers Birth : after which time , it was not likely that others would remember ; but she was ordained to Depon● who were Witnesses at the Birth and Baptism , and these to be Examined .

Corstorphin contra Martines . Decem. 21. 1666.

JAmes Corstorphin pursues a Reduction of a Disposition made by his Fathers Sister , in lecto . It was alleadged by Martines , to whom the Disposition was made , that he could not quarrel the same , because his Father to whom he is Heir , and the other Brethren and Sisters of the Defunct had approven whatsoever Testament , Legacy or Disposition , made or to be made by the Defunct , of her Goods and Gear , Debts and sums of Money , and others whatsoever , that she had , or should have the time of her Decease ; so that she having made this Disposition , he cannot quarrel the same . The Pursuer answered ; First , That the Ratification in the Terms foresaid , could not be extended to Lands or Annualrents , Constitute by Infeftment , there being no mention of Lands , Annualrents or Heretage therein . 2ly , It could not be extended to any Disposition , but Legally made , and therefore not to Dispositions on Death-bed . The Defender answered , that the Ratification bearing expresly sums of Money , did comprehend all sums , although Infeftment of Annualrent were granted for security thereof , which being but accessory to the sum , follows the same . 2ly , There could be no other effect of the Ratification , if it were not to exclude the Heir from quarreling thereof , as being in lecto , for if the same was made by the Defunct in her leige poustie , it were valide and unquarrelable in it self , and albeit it bear not mention of Death-bed , yet it expresses Disposition of all Goods , she should happen to have the time of her Death ; so that if she had acquired Rights after her sickness contracted , she might Dispone the same validly by this Ratification , and yet behoved to be on Death-bed .

The Lords found this Ratificatiou not to extend to sums whereupon Infeftment of Annualrent followed , which was carried but by one Vote , and so they came not to the second Point .

William Yeoman contra Mr. Patrick Oliphant : Eodem die .

WIlliam Yeoman having apprized the Lands of Iames Oliphant , Son to Sir Iames Oliphant ; and Mr. Patrick Oliphant having also appryzed the same , William insists on this reason , that Mr. Patricks appryzing was satisfied by Intromission within the legal ; Mr. Patrick alleadged that his whole Intromission could not be countable to satisfie his Appryzing , because the two part thereof did only belong to his Debitor , and the third part to Dame Geils Moncrief , who had right to a Terce thereof , and to whom Mr. Patrick was only lyable and countable , and for a part of the years he was her Tennent , and had Right from her . It was answered that the Tercer had no compleat Right , till she was Served , and kend to her Terce , which , being done after the years in question , the Fiar might have Possest the whole till her Service , and might have forced the Possessors to pay him , so the Appryzer entring in Possession of the whole , upon his Appryzing , cannot pretend the Right of the Tercer , and his taking Tack of her , was unwarrantable till she was Served , and done of purpose , that his Appryzing might not be fully satisfied , and so the Legal might expyre , which is most rigorous and unjust , and offered presently to satisfie the Tercer of her third . It was answered that the Service whensoever done , is drawn back to the Husbands death , and doth but declare , and not constitute the Wifes Right , like the Service of an Heir .

The Lords found that Mr. Patrick could not cloath himself with the Tercers Right , to cause the legal expyre ; but found the offer Relevant , for besides the favour of the Cause , the case is not alike with an appear and Heir , whose Right , though not declared , yet he continues in his Predecessors Possession , and none other hath any Interest , but the Fiar might possess the whole , and exclude the Tercer till she were Served .

Paul Henrison contra Laird Ludquharn . Decemb. 22. 1666.

PAul Henrison Indweller in the Island of Helgilland , being at the mouth of the Elve , fraughted to Scotland by Hamburgers , was taken by a Privateer , and declared Pryze at Peterhead by the Laird of Ludquharn , Admiral Depute there , whereupon he addrest himself to the Admiral Court at Leith , and obtained Decreet for restoring of his Ship upon compearance : Ludquharn gives in a Bill of Suspension of this Decreet , and to dispatch the Stranger , because it was ordained to be heard upon the Bill : Ludquharn alleadged that the Admirals Decreet was unjust , because he offered him to prove by Merchants in Edinburgh , that Helligilland is a part of the Dominion of Denmark , and albeit it be in the present Possession of the Duke of Holstein ; yet he holds it of the Crown of Denmark , and as to that , he is Subject to the King of Denmark , and therefore the Inhabitants of that Island are in the state of enimity with the King , and so lawful Pryze , It was answered , that the Stranger hath produced a Pass of Sir William Swan , the Kings Agent at Hamburgh , bearing that he had taken tryal ; and found the Ship to be free ; and it being notour and acknowledged , that this Stranger is a Subject of the Duke of Holstein , who is a Prince of the Empire , and in Amity with His Majesty , as is declared by a Letter of the King to the Lord Commissioner , it must extend to all His present Subjects , who are not oblieged to Dispute how he holds this Islands , or when he got the Right thereof : and his Pass bears him to be a Natural Subject of the Duke of Holsteins , and not of the King of Denmark . It was answered , that the Right of this Island was only in Impignoration , and only in Possession of the Duke of Holstein within this ten year .

The Lords adhered to the Admirals Decreet , and Repelled the Reasons of the Bill .

Tweeddies contra Tweeddie . Eodem die .

UMquhil Tweeddie of having Disponed his whole Estate to his Eldest Son , at the same time , his Son gives a Bond to his Mother and her Heirs of six thousand merks , the Mother being dead , the other five Bairns pursues a Declarator of Trust against the Heir , that this was the Bairns Provision , put in the Name of the Mother , and offers to prove the same by the Wryter and Witnesses insert . It was answered , that Trust was not so probable , otherwise all Rights might be inverted by Witnesses , whose Testimonies , our Law hath Restricted to an hundred Pounds . It was answered , that much more was to be attribute to Witnesses insert , upon whose Testimonies the Parties condescend , and confide , than to common Witnesses . 2dly , Albeit Witnesses were not receiveable to prove Trust alone : Yet where there are strong presumptions concurring , they are admittable even to annul Writs of the greatest importance , as is ordinarly used in the indirect manner of Improbations ; and here are strong presumptions , viz. That the Father , at the time of this Bond , did Dispone to the Defender , his Eldest Son , his whole Estate , without a Reservation of his own Liferent , or any other thing , and there were five Children beside , who had no Provision : So that albeit this Bond be conceived to the Wife , her Heirs and Assigneys , yet cannot be presumed to be intended to have fallen back to the Defender as her Heir .

The Lords in respect of the presumptions , were inclinable to admit the Witnesses , but they ordained the Pursuers before answer , to what could make a sufficient Probation to adduce such Witnesses as they would make use of for astructing these Presumptions and the Trust.

Iames Hoge in Edinburgh contra Iames Hoge in Dalkeith . Ianuary 2. 1667.

JAmes Hoge in Edinburgh , pursues a Declarator of Redemption agaist Iames Hoge in Dalkeith , who alleadged Absolvitor , because the whole sum , contained in the Reversion , was not Consigned . It was answered , there was Consigned the equivalent , viz. A Decreet against the Defender , for a Liquide sum , which behoved to compense . It was answered , that Reversions being strictissimi juris , Compensations are not to be admitted therein : otherwayes Wodsetters may be much prejudgeed by taking Assignations from their Creditors , and Consigning the same , and frustrating them of their Moneys , which they had designed for other Creditors , and other uses . It was answered , that this was no Extrinsick Compensation , but a Decreet founded upon an Article contained in the Contract of Wodset .

Upon which consideration the Lords Sustained the Order , and Declared .

Earl of Murray contra Iohn Hume . Eodem die .

THE Earl of Murray pursues Hume his Tennent to find Caution for his Duties , or else to Remove : Who alleadged Absolvitor , because the Earl was Debitor to him in a Sum exceeding all the bygone Rents , and this Action hath no place , but when there are some years Rent Resting . It was answered , That the Defender was at the Horn , and his Escheat taken , and so was manifestly , vergent ad inopiam .

The Lords would not Sustain this Member , unless bygones had been owing , but Superceeded to give answer , till the Compensation were proven .

Francis Hamiltoun contra Eodem die .

FRancis Hamiltoun having Suspended a Decreet , obtained against him for House-mails , on this Reason , that his Wife only took the Tack , which could not oblige him . It was answered , that his Wife keeping a publick Tavern , was evidently praeposita huic negotio .

Which the Lords Sustained .

Another Reason was , that the House became insufficient in the Roof , and the Defender before the Term , required the Pursuer to Repair the same , which he did not ; and the Neighbouring House , called The Tower of Babel , falling upon the Roof , made it Ruinous . It was answered , That was an accident without the Pursuers fault , and the Tennent ought to pursue these whose Tenement it was that fell .

The Lords found the Reason was not Relevant to Liberate from the Mail , unless the Suspender had abstained to Possesse , but found it Relevant to abate the Duties in so far as he was Damnified .

Oliphant contra Hamiltoun of Kilpoty . Eodem die .

WILLIAM OLIPHANT having obtained a Decreet for Poynding of the Ground , against Hamiltoun . He Suspends on this Reason , that he was neither Decerned as Heir , nor Possessor , but as appearand Heir to the Heretor , and was never Charged to Enter Heir .

The Lords Repelled the Reason , and found this Action , being real , was competent against the appear and Heir without a Charge .

William Oliphant contra Hamiltoun . Eodem die .

OLiphant pursuing the foresaid Poinding of the Ground upon an Annualrent . It was alleadged Absolvitor from the bygones before the Pursuers Right , because his author was Debitor to the Defender in a liquid sum equivalent . It was answered , that the Pursuer was singular Successor , and no personal Debt of his Authors could infer Compensation of a real Right against him .

The Lords found that the bygain Annualrents were moveable and compensable with any liquid Debt of the Pursuers Authors .

contra Brand. Ianuary 3. 1667.

Chapman having left his Pack in custody with Brand , In Dundee , about ten or twelve dayes after , Brand opened the Pack , and made use of the Ware . The Chapman now pursues him for a Spuilzie , who alleadged Absolvitor , because the Pack was put in his hands for security of a Debt due by the Pack-man , and he being informed that the Pack-man would not rerurn , did , by warrand of a Baillie in Dundee , cause four of the Neighbours , Inventar and Price the Ware . It was answered non relevat , for though the Pack had been impignorat , the Defender could not appryze it summarly , but behoved to take a Sentence to Poind the same .

The Lords Repelled the Defense .

It was further alleadged , that there could be no Spuilzie , nor Oath in litem of the Pursuer , because there was no Violence . It was answered that the Oath in litem is Competent , whether it were a Spuilzie or a breach of Trust , actione depos●● . It was answered , that the Oath in litem being granted mainly , because Parties injured by breach of such Trusts , cannot be put to prove by Witnesses , that which is taken from them , none being oblieged to make patent his Pack , or other privat Goods to Witnesses , yet where there is another clear way to prove the quantities , viz , the Oathes of the four Persons who opened the Pack , there is no reason to put it to the Pursuers Oath , especially seing their Inventar is not the eight part of what he claimes .

The Lords admîtted the Pursuers Oath , in litem , reserving their own Modification , with liberty to the Defender , if he thought fit to produce what of the Ware he had , and to produce these four Persons , that the Pack-man may Depone in their presence .

Earl of Sutherland contra Earls of Errol and Marischal . Eodem die .

THere being a Decreet of Parliament ranking the Nobility , whereby Earl of Sutherland was put after the Earls of Errol and Marischal : In which Decreet , there is a Reservation to any to be heard before the Judge Ordinar , upon production of more ancient Evidents ; whereupon the Earl of Sutherland pursues Reduction of the Decreet of Ranking , containing an Improbation of all Writs , Patents , and other Evidents granted to the Defenders , or their Predecessors , whereby they are Constitute or Designed Earls : they did produce the Decreet of Ranking , and the Earl of Errols Retour , whereupon the Pursuer craved Certification contra non producta , after all the Terms were run . The Defenders alleadged no Certification , because they had produced sufficiently , by producing the Decreet of Ranking , and their Retoures , and the Pursuer had only produced his own Retoure , which was since the Decreet of Ranking ; so that the Decreet of Ranking was sufficient to exclude all his Titles produced . It was answered , the Retour being the Sentence of a Court , Serving this Earl as Heir to his Fore-Grandsire Grandsires Grandsires , Fore-Grandsires Goodsire , who is Designed Earl by King Alexander the second : It was sufficient in initio litis . Likeas he did formerly produce the Original Evidents , and which was now in the Clerks hands , and might have been seen by the Defenders , if they pleased .

The Lords found the Retoures not sufficient alone , and Ordained the rest to be Reproduced , and seen by the Defenders .

Smeatoun contra Crawfoord . Eodem die .

UMquhil● Patrick Smeatoun granted a Disposition to Crawfoord his Wife , and her Heirs , of a Tenement of Land , whereupon nothing followed during her Lifetime , her younger Brothre Iames Crawfoord Served himself Heir-General to her , and obtained a Decreet of Implement against Iohn Smeaton as Heir to his Father , and having used Horning thereon , obtained Adjudication against Smeatoun , and his Superiour , and thereupon was Infeft : which Right was Disponed by him , with consent of William Crawfoord , elder Brother to the Wife . The said Iohn Smeatoun Dispones the same Tenement to Alexandor Smeatoun , and he is Infeft , and thereupon pursues a Reduction of Iames Crawfoords Retour , and of all that followed thereupon in consequence on this Reason , that the Disposition to the Wife belonged not to Iames Crawfoord her younger Brother , who was Heir of Line , but to William Crawfoord , her elder Brother , as Heir of Conquest , and so the Service was null , following thereupon ; and the Pursuer being first Infeft from Smeatoun , he hath the only Right , because any Infeftment to William the Heir of Conquest will be posterior . It was answered , that it was jus tertij to the Pursuer , whether the Heir of Line was Served or Infeft , or the Heir of Conquest : likeas the Heir of Conquest did concur , and had consented to the Disposition .

The Lords found not the Defenses Relevant , but considering the Case as Calumnious , seing it was but of late cleared by Decisions , whether the Heirs of Line , had right to Dispositions without Infeftment , they did superceed to give answer , but ordained the Defender to give in what Evidences he could give , of the onerous cause of his Disposition .

Paul Henrison contra Laird of Ludquharn and Captain Seatoun . Ianuary 4. 1667.

THe Debate betwixt Paul Henrison and Ludquharn , was this day heard again , and it was alleadged that the Kings Proclamation declared War against the King of Denmark and his Subjects , Ita est the Owners of the Ship are Subjects to the King of Denmark , because it is notour that this Isle is a part of the Kingdom of Denmark , and till of late was in the same condition , as any other of his Territories ; and albeit the Duke of Holstein have now an Interest by Possession , or Infeodation , that alters not their subjection to the Crown of Denmark , but the same is still presumed , unless they will positively prove , that the same is alter'd , and the Duke of Holstein constitute Soveraign therein , and they liberat from his Jurisdiction , Tolls , and Imposts for War . It was answered , that this Stranger was not obliged to Dispute the Right or Investiture of the Duke of Holstein ; but it was sufficient for him to say , that before this War they did own him as their Prince for simple acknowledgement of a Superiour , or Investitur from him , doe not make Subjects , or comprehend them within the Wars , and Quarrels of their Superiours : yea , though there were a Tribute or Jurisdiction due to that Superiour , yet if the Prince do enjoy the Priviledges of making War and Peace , he is not a simple Subject , but in so far a Soveraign Prince , as some of the Princess of the Empyre , hold of the Emperour paying him Tribute : and there lyes an appeal to the Soveraign Imperial Court ; yet because they can make War and Peace , they are not necessarly involved within the Emperours Quarrels . So the Duke of Holstein being a Soveraign Prince , and possessing this Island , so as to make use of the Subjects thereof in Peace and War ; therefore is not comprehended in the King of Denmarks Quarrel ; nor is he , or his Subjects in the Sense of the Proclamation .

The Lords adhered to their former Interlocutor upon the 22 of December , when this Case was Debated , and Repelled the Alleadgences proponed for Ludquhurn , unless it were alleadged that the Inhabitants of this Island do contribute with the King of Denmark in this War against the King , and they so alleadging .

The Lords Ordained the Ship and Goods to be valued , and delivered to the Stranger upon Caution ; or otherwise to be Sequestrat in some Merchants hands , that the Ship might be made use of for Fraught , and the Goods sold , and not made unprofitable : and according to the course of Admirality , the Lords Ordained Ludquharn to find Caution for Cost , Skaith and Damnage , by the delay of that alleadgence .

Mr. Iames Cheap contra Mr. Iohn Philip. Ian. 5. 1667.

THe Lords having Considered the Testimonies of the Witnesses adduced before answer , betwixt Mr. Iames Cheap and Mr. Iohn Philip , upon the Debate mentioned the 19. of December last , found the same to prove , and to qualifie the Minute , they being the Witnesses insert above exception , and it but a Minute , wherein particulars are not at all , nor fully set down , which will not be drawn in example , as to any full and extended Writs , either for altering any Clause therein exprest ; or for adding thereunto any omitted .

Laird of Polwart contra Laird of Halyburtoun . Ianu. 16. 1667.

THe Laird of Polwart as Heir to his Father , pursues Hallyburtoun for payment of a Ticket of 250 merks , due by the Defender to the Pursuers Father , and for a composition payed by the Pursuers Father , for receiving him in certain Lands , Disponed to him by the Defender , wherein he was oblieged to obtain him Infeft . The Defender alleadged absolvitor from the payment of the Ticket , because it must be presumed to be payed on these grounds ; first , Since the Ticket , the Defender sold Land to the Pursuer , so that it must be presumed it was Counted and included in the price , and albeit that presumption were not sufficient alone , it is fortified by these two , viz. That it is twenty eight years since the Bond was granted , and no word ever heard thereof : and that umquhil Polwart in his Testament , gave up an Inventar of the Debts owing to him , wherein no mention is of the Bond. It was answered , that a Writ could not be taken away by Witnesses proving payment : much less by presumptions : and as to the Taciturnity , which is the main one , umquhil Polwart dyed about seven years after the Bond was granted , and the Pursuer was Minor most of the time since . It was answered , that Presumptions have been oftimes sufficient to take away Writs , as was found in the case of the Lady Trabroun .

The Lords Found the Presumptions not Relevant , and that they were nothing so strong , as these of the Lady Trabroun , which were thus ; Trabroun granted a Bond of 5000 merks to Alexander Peebles , which was taken away on these Presumptions , that thereafter Trabroun had granted a Bond of 10000 merks to the said Mr. Alexander , who was his Advocat , with whom he had many Affairs ; and therefore it was to be presumed , the last Bond included the first ; especially seing Trabroun decaying in his Fortune , Mr. Alexander apdryzed his Lands upon the last Bond , and not upon the first , which he might have done with the same Expence , and that he never moved any thing thereupon all his Life , by the space of twenty six years ; and in the Inventar of his Testament , he made no mention of it : and that his Executors being Examined ex officio , did acknowledge they had found it amongst old cast Papers . The Defender furder alleadged absolvitor from the Composition , because he was never required by Polwart , to procure the Infeftment from the Earl of Hume , which he could easily have done gratis , he being his Uncle , especially seing there was no Term in his Obligation to perform ; and therefore Interpellatio tantum inducit moram .

The Lords found the Defense Relevant , and Assoilzied from the Composition . albeit it was alleadged that Polwart for several years had not Componed , that the Composition was much less then a years Rent , and that Halyburtoun was not in good Terms with the Earl of Hume , which was not respected , seing Hslyburtoun was not required .

Reid contra Salmond . Eodem die .

REid pursues Barbara Salmond and Iames Telz●fer her Husband , for a debt due by her Father , as behaving her self as Heir , by Possessing a House wherein her Father died Infeft ; and by Setting another House of his to Tennents . It was answered , that Iames Telzifer was Tennent in the House Possest by him , before the Defuncts Death , and might Possess , per tacitam relocationem : Neither could he safely leave the House , till he had given it over to some having Right .

Which the Lords found Relevant :

2ly . It was alleadged that the Defunct had Disponed the same Tenement to the defenders Son , his Oye , which disposition , albeit it attained not Infeftment ; yet it was a sufficient Title for Mails and Duties , and to continue Possession , and to purge the vitious Title of behaving as Heir .

Which the Lords found also Relevant .

Barbara Chapman contra Iohn White . Ianu. 18. 1667.

BArbara Chapman pursues a Reduction ex capite inhibitionis , viz. That Calander being Charged to enter Heir to his Father , who was the Pursuers Debitor , and upon the Charge Inhibition was used against him , after which he Disponed to the Defenders Father . It was alleadged by the Defender , that he is minor & non tenetur placitare de haereditate paterna . It was answered , that Calander , his Fathers Author , was never Infeft . Secondly , That the Defenders Father did Dispone the Land to his second Son , by both which , it could not be called haereditas paterna .

The Lords Sustained the Defense , notwithstanding of the Reply , and found no Process , till the Defenders majority , and that he was not oblieged to Dispute whether his Fathers Authors were Infeft : or whether his Father had disponed , or not until his Majority , that he might seek out his Evidences , and defend himself .

Reid contra Ianu. 19. 1667.

IN a Process betwixt Reid and whereof the Title was a Service of the Pursuer , as Heir deduced before the Bailzie of Regality , of Spenzie . It was alleadged by the Defender , that this Title was not sufficient , seing the Service was not retoured . It was answered , that the Service being within the Regality , and of a Person dwelling there , neither needed , nor used to be Retoured , in respect the Service it self was in Record in the Bailzies Books . It was answered , that albeit a special Service of Lands within the Regality , needed not be Retoured in the Kings Chancellary , because there was no Precept thence to issue , but the Service within the Regality was sufficient , that thereupon the Precepts of the Lord of the Regality might proceed against the Superiour within the Regality , who was Infeft : but in a general Service , which may be before any Judge , whether the Heir Reside in his Jurisdiction or not ; there is no difference betwixt a Regality and any other Court , but all must be Retoured in the Chancellary . It was answered , that the Regality having their own Chapel and Chancellary , were not oblieged to Retour it in the Kings Chancellary .

Which the Lords found Relevant and sustained the Service .

Isobel Findlason contra Lord Cowper . Ianu. 22. 1667.

ELphingstoun of Selmes having given a Precept to Isobel Findlason , and direct to the Lord Cowper , that he should pay to the said Isobel , a Sum owing by Selmes to her , and receive Selmes Bond from her ; upon the foot of which Precept , the Lord Cowper directs another Precept to Iames Gilmore , to pay the said sum : the Woman not being payed , pursues both the Lord Cowper and Iames Gilmore , for payment . It was alleadged for Iames Gilmore absolvitor , because he had not accepted the Precept , neither was there any ground alleadged for which he was oblieged to accept , or pay the Lord Cowpers Precept .

Which the Lords found Relevant .

It was alleadged for the Lord Cowper , that the giving of the Precept should not obliege him , seing it mentioned not value received , or any other Cause ; and therefore resolved into a meer desire . It was answered , that the giving of the Precept was an acceptance of Selmes Precept , and behoved at least to import a Donation , to be made effectual by the Drawer of the Precept : or otherwise , an Intercession , or Expromission for Selmes .

The Lords sustained the Process , and found the Lord Cowper lyable by the Precept , to pay in case of none acceptance , especially seing it was consequent to Selmes Precept direct to Cowper .

Mr. Iohn Mair contra Steuart of Shambelly . Eodem die .

MR. Iohn Mair Minister of Traquair , having obtained Decreet against Shambellie , and the Parochioners , to pay him 545. merks , Expended for Reparation of the Manse , and to meet and Stent themselves for that Effect : upon which Decreet , he took Shambellie with Caption , whereupon he gave him a Bond of fourscore pounds for his part . Shambellie now Suspends the Bond on this Reason ; that albeit it bear , borrowed Money , he offers to prove by the Chargers Oath , that it was granted for his part of that Stent , and that his proportion thereof , casting the Sum according to the Valuation of the Paroch would not exceed fourty merks ; and that he granted this Bond for fear of Imprisonment . It was answered , the Reason was not Relevant to take away the Suspenders Bond , being major sciens & prudens ; and there was here no justus metus , because the Caption was a lawful Diligence , so that the giving of the Bond was a Transaction of the Parties , which is a strong Obligation . It was answered , that the Suspender when he was taken at his House , was sick and unable to travel ; yet the Messenger would carry him away , and being at the Tolbooth , gave the Bond rather , than in that Case to go to Prison , which was an irregular force , and a just cause of fear ; but this addition was not proponed peremptory .

The Lords Repelled the Reason of suspension , unless the said addition were also instructed instanter , otherways it could only be reserved by Reduction , ex metus causa .

Sir Henry Hoom. contra Tennents of Kello and Sir Alexander Hoom. Janu. 24. 1667.

SIR Henry Hoom having Appryzed the Lands of Kello from Henry and Iohn Hooms , and being Infeft , pursues the Tennents for Mails and Duties . Compearance is made for Sir Alexander Hoom , Donatar to the Forefaultor of the said Iohn Hoom of Kello , who alleadged that the Forefault Person , the time of the Doom of Forefaultor , was in Possession of the Lands in question , in whose place the Donatar now succeeds , and by the Act of Parliament 1584. It is Statuted , that where the forefault Person was in Possession the time of the Forefaulture , albeit not by the space of five years , which would Constitute a Right to him , that the Donatar must be put in Possession , and continue five years in Possession , that in the mean time he may search and seek after the Rebels Rights . It was answered ; First , That this part of the Statute is only in case the Rebel had Tacks , or Temporary Rights , which neither is , nor can be alleadged in this Case . Secondly , The five years Possession must be reckoned from the Doom of Forefaulture , after which the Kings Officers or Donatar , might have attained Possession , and if they did not , their neglect cannot prejudge others . Ita est , there are five years since the Forefaulture , and the Rents are Extant , being sequestred . It was answered that the Act Expresses , not only in Case of Tacks , but also in Possession , and that the five years must be after the Possession began , and not the Forefaulture .

The Lords found the alleadgance Relevant , that the Rebel was in Possession , and preferred the Donatar to the five years Rent , after the date of the Forefaulture .

It was further alleadged , that the Pursuers Right being but an Appryzing , the Donatar would instantly satisfie the same at the Bar. It was answered non Relevat , to retain by way of Exception , but the Donatar behoved to use an Order , and pursue a Declarator . It was answered , that in Appryzings , an Order upon 24 hours Requisition , was sufficient , there being no further Solemnity required , then that the Appryzer might come to receive his Money .

The Lords found that the Appryzing might be summarly satisfied hoc ordine .

Earl of Argile contra George Campbel . Eodem die .

THE Earl of Argile pursues George Campbel , to remove from certrin Lands , who alleadged absolvitor , because the Warning was null , not being used at the right Paroch Kirk , where Divine Service at that time was accustomed . It was answered non Relevat , unless it were alleadged that the other Kirk were Erected by Parliament or Commission thereof , and that thereby the Old Paroch was supprest and divided . 2ly , Though that were alleadged , it ought to be Repelled , because it is offered to be proven , that all Warnings and Inhibitions have been used at the Old Paroch Kirk , and particularly by the Defender himself .

The Lords Repelled the Defense simply , unless the Erection were alleadged as aforesaid , and found in that Case , the Reply Relevant to elide the same .

Earl of Argile contra George Campbel . Ianu : 25 : 1667 :

THE Earl of Argile insisting in the Removing against George Campbel . It was alleadged no Removing , because the Warning was null , not bearing , to have been Read at the Kirk Door , either at the time Divine Service uses to be , or at least before Noon . It was answered , that the Wairning bore , that the same was affixed on the Kirk Door , and lawfully Intimat there ; which does import the lawful time of the Day . 2ly , The Pursuer offered to mend the Executions at the Bar , and abide by it as so done . It was answered , that the Defender accepted the Executions , as produced , after which they could not be amended , and that lawfully could not supply that Speciality ; otherwise if the Warning had only born , that the Officer had Warned the Party lawfully , it would have been enough .

The Lords admitted the Pursuer to amend the Execution , he biding thereby , and Ordained the Defender to see the same .

Hercules Scot contra Gibb . Ianuary 29 : 1667.

HErcules Scot having given his Horse to John Gib , Stabler in Brunt-Island , to be kept : pursues Gibb for the price of his Horse . The Defender alleadged Absolvitor , because he having put out the Horse to the Grass , it being in the Month of July , the Horse fell over a Rock and brake his neck , and the Defender is not lyable pro casu fortuito . It was answered , that the Accident was by the Defenders fault , because he put the Horse to Grassing above the Craigs of Brunt-Island , and caused ty his Head and Foot together . 2ly , It is offered to be proved by Witnesses , that the Pursuer directed him to keep the Horse in the Stable at hard Meat , and not to put him out to Grass . The Defender answered , that he was not in culpa , because he had put out the Horse in a place , where ordinarly other Horses were put out , and had tyed him no other way then the rest of the Horses .

2ly , The Command to keep , is only relevant to be proven , scripto vel ju●amento , and the emission of words without any Fact , is not otherwise probable .

The Lords found the Defense and Duply Relevant to elid the Summons , but found the Reply and Triply Relevant to elide the same ; and found it Probable by Witnesses , in respect it was a part of the Bargain betwixt the Pursuer and the Stabler .

Henderson contra Henderson . Ianu. 31. 1667.

UMquhil Henderson grants a Writ in favours of Allan Henderson , whereby he appoints the said Allan to be his Heir , and Donatar to all his Lands and Estate , and assigns him to the Rights and Evidences thereof ; with power to Enter by the Superiour : But in the Narrative , it bears the ordinar Narrative of a Testament , and has a Clause subjoyned to all , in case of his Return , he may alter and annul the same , there having nothing followed in his Life . The said Allan pursues Henderson his appearand Heir , to fullfil the former Writ , and to Enter Heir , and Resign in his favours , conform to the meaning thereof . The Defender alleadged Absolvitor ; First , Because this Writ is no Disposition , but a Testament , or a Donation , mortis causa , in which no Disposition of Land can be valid . 2ly , Albeit this could be a Disposition , yet it is not done habili modo , there being no Disposition of the Right of the Land , or any Obligement to Infeft , neither can a Person be Constitute Heir , but either by Law or Investiture ; or at least , by an Obligement to grant Investiture . 3ly , This being dona●io mortis causa , expresly Revocable by the Defunct at his return , it is ambulatory and conditional : Ita est , he returned and granted Commissions , and Factories , whereby his mind appeared to be changed .

The Lords Repelled all these Alleadgances , and sustained the Summons , because though the Writ was unformal , yet they found the Defuncts meaning was to alienat his Right from his Heirs to this Pursuer , to take effect after his death ; and albeit he returned , seing he did no Deed to annul , or recal this Writ , this was effectual against his Heir to compleat the same .

Creditors of Sir James Murray contra Iames Murray . Feb. 1. 1667.

THere being a Wodset of the Lands of Stirling granted by Sir Iames Murray to Iames Livingstoun of the Bed-Chamber , containing a Clause of Requisition , and Reversion , on payment at London , the Lands being Appryzed by Sir Iame's Creditors , they having the Right of Reversion , did use an Order at Edinburgh , against Iames Murray , as now having a Right to the Wodset , and pursue a Declarator . The Defender alleadged Absolvitor , because the Order is not conform to the Reversion , which is strictissimi juris , and behoved to be done at London . It was answered , the place being adjected in favour of Iames Livingstoun , who resided at London : The Pursuers have done more , having consigned at the present Wodsetters Domicile , London being only appointed , as it was the former Wodsetters Domicile , wherein he hath benefit , and can have no detriment . It was answered , he was not obliged to Debate his detriment , for if his Money were in London , he would get six of the hundreth of Exchange to Scotland .

The Lords sustained the Order , the Pursuers making up what should be modified by the Lords , for the Interest of the Wodsetters .

Earl Tullibardine contra Murray of Ochtertyre . Eodem die .

THe Earl of Tullibardine having Wodset the Lands of Logie-Almond , to Murray of Ochtertyre , he did thereafter Discharge the Reversion , and at that same time , got a Back-bond , bearing , That for payment of 56000. merks , with all other sums that should happen to be due to him by Tullibardine , and all Expenses , that he should Dispone the Lands back to Tullibardine , or the Heirs or Assigneys of his own Body ; but with this provision , that if he were not payed before Martinmass 1662. the Bond should be null , without Declartor . Tullibardine premonishes , and after Premonition , Dispones the Lands to Sir Iohn Drummond , and they both joyntly Consign , and now pursue Declarator . It was alleadged for the Defender Ochtertyre . First , No Declarator upon this Order , because the Back-bond is Personal to my Lord , and to the Heirs or Assigneys , being of his Body ; so that Sir John Drummond , nor no Stranger can have Right thereby to Redeem . 2ly , The Back-bond is extinct , and null by committing of the Clause Irritant , in so far as payment has not been made before 1662. The Purswer answered to the first , that albeit the Reversion had been Personal to my Lord , only excluding his Heirs and Assigneys ; yet my Lord in his own Lifetime might Redeem , and being Redeemed , the Right would belong to any to whom my Lord had , or should Dispone . 2ly , This Clause Irritant is pactum legis commissoriae in pignoribus , which by the Civil Law and our Custom is void , at least may be still purged before Declarator obtained , as being rigorous and penal , and so abiding the Lords Modification , as well as Penalties in Bonds Modified of consent of Parties , especially in this case , where the performance is not of a single liquid sum , but comprehends a general Clause of all Debts that were , or should be after due . The Defender answered , that Clauses Irritant in Wodsets , are not rejected by our Law , but are valide , only , where Declarators are requisit , The Lords may Reduce them to the just Interest of Parties before Declarator : But here there needs no Declarator , because the Defender is in Possession , and may except upon the Clause Irritant committed , and the Clause bears , to be Effectual without Declarator , and albeit this Clause could now be Reduced to the just Interest , it is only this , that seing Tullibardine hath sold the Land , the Defender should give as great a price as it is sold for to Sir Iohn Drummond , which the Defender is willing to do .

The Lords sustained the Order , in so far as it is at the Instance of Tullibardine , but not as to Sir John Drummond , but prejudice to Sir John Drummonds Disposition ; They found also that this Clause Irritant might be purged now at the Bar , or any time before Declarator , which is always necessar , though Renunced , that medio tempore , Parties may purge ; And the Lords inclined , that Ochtertyre should have the Lands for the Price Sir John Drummond gave , which is eighty eight thousand merks ; but upon Examining him and my Lord , it appeared that my Lord had offered the Land to him , re integra , and that he had never been special , as to so great a Price as this ; but only general , that he would give as great a price as any other would give , which they thought not sufficient , seing any other thereby would be scarred from Bargaining .

Executors of Lady Pilton contra Hay of Balhousy . Feb. 2. 1667.

MR. Francis Hay granted a Bond to his Wifes Sister , the Lady Piltoun , bearing , That for good Considerations , he obliged him to pay her a 1000 merks yearly , during her Life , with this Provision , that it should be Leisum to her to Employ the same , for the Abuliaments and Ornaments of her Body , or any other use she pleased ; and but any Right and Interest in her Husband thereto , jure mariti ; her Executors do now pursue Balhousie as Heir , for payment , who alleadged-Absolvitor , because he had payed to Piltoun her Husband ; and albeit it was provided , that it might be leisum to his Wife to Dispose upon the sum , yet she had not done it , but the Husband had provided her with all Abuiliaments necessar . It was answered , that the Husbands jus mariti , was excluded by Mr. Francis himself : And whatever might be alleadged of what belongs to a Wife , proprio jure , that nothing more can remain with her , but her necessary Aliment , and all the rest being in the Person of the Wife , doth return to the Husband jure mariti ; albeit the jus mariti were renunced in her favours ; yet the Right here is freely given by a third Party , excluding the Husband , which third Party might gift with what Provisions he pleas'd , and his gift returns to himself , unless these Provisions be observed , and this must be thought to be a gift , seing it bears no Cause onerous . It was answered , that it bears good Considerations and Expresses not to be a Gift , or done for love and favour . 2ly , If the Gifter were opposing the Husband , or his Creditors Right , and making use of that Provision , that his Gift might return , seing the Provision was not keeped , it might have weight ; but here the Donators Heir makes not use of the Provision , but concurreth with the Husband and payeth him .

The Lords found the payment made by the Donator , or his Heir to the Husband Relevant , to exclude the Executors of the Wife .

Pourie contra Dykes . Eodem die .

UMquhil Dykes having Subscrybed a Bond to Pourie , of this Tenor , That he acknowledged himself to be resting to Pourie 56 pounds yearly , as the annualrent of a 1400 hundred merks ; which sum of 56 pounds , he oblieged himself to pay yearly . This was the Tenor of the Bond , whereupon Pourie pursued Dykes his Successors , not only for the payment of the annualrent , but for payment of the principal sum of 1400 merks , alleadging that she being but a simple Woman , had entrusted Dykes with the drawing of the Bond , and he had deceived her , and not mentioned the payment of the principal , but that the acknowledgement that the Annualrent was due , as the Annualrent of 1400 merks , behoved to infer that the 1400 merks was also due ; this Ticket being holograph , without Witness , there was no clearing of the meaning by the Witnesses insert .

Therefore the Lords allowed the Pursuer to adduce such adminicles and witnesses , as she would use for clearing of the same .

She adduced an Instrument , bearing , Umquhil Dykes upon his Death-bed , to have acknowledged that he thought the principal sum had been contained in the Obligatory Clause , and that it was through his neglect , or unskilfulness , all the Witnesses in the Instrument being now dead , the Nottar , and he who is mentioned as Procurator , to have taken Instruments in the Pursuers Name , were Examined , both acknowledged that Dykes had exprest his mind in the matter before them ; but they were contrary in the particular ; the Nottar Deponed conform to the Instrument ; but the Procurator Deponed contrary , that the woman had quite the principal sum , and had taken her to the Annualrent .

The Lords having considered the whole matter : And first , Whether the Ticket could import that the principal sum was due ? They found neither by the Ticket nor by the Instrument , that that could be Instructed : They considered next , Whether the Annualrent was due , during the womans Lifetime only , or as a perpetual Annualrent , to her , her Heirs or Assigneys ? The difficulty was , that the Obligement bore , that Dykes should pay the Annualrent yearly , but did not express , neither to her , her Heirs nor Assigneys , but simply in these Terms , To pay the 56 pounds yearly ; Which the Lords found to carry a perpetual Annualrent , though Heirs and Assigneys were not exprest .

Lady Traquair contra Marion Houatson . Feb. 5. 1667.

THe Lady Traquair pursues Marion Houatson for the Mails and Duties of a part of the Liferent-Lands ; who alleadged Absolvitor , because her umquhil Husband , who was immediat Tennent to the umquhil Earl , had , bona fide , made payment to him . Likeas the Defender being only Sub-tennent to her Son , had , bona fide , made payment to her Son of her Duty . The Pursuer answered . that neither of the Alleadgances were Relevant ; because any payment that was made by the Defender , or her umquhil Husband , was before the Term of payment , and so could neither be said to be bona fide nam ex nimia diligentia suspecta est fides , neither could it prejudge the Pursuer .

The Lords were all clear that the payment made by the principal Tacks-man , before the Term , was not Relevant ; but as to the payment made by the Sub-tennent to the principal Tennent . The Lords Debate the same amongst themselves , some being of opinion , that the Sub-tennents payment bona fide , before the Term was sufficient , because he was only obliged to the principal Tennent , and he might have a Tack for a less Duty then he , or for an elusory Duty , which if he payed , and were Discharged , he was not conveenable : and oft times the Sub-tennents Term was before the principal Tennents Yet the Lords found that payment made bona fide , by the Sub-tennent to the principal Tennent , was not Relevant , and that because the Master of the Ground has Action , not only against the Tennent , but also against the Sub-tennent , or any who enjoyed the Fruits of his Ground , and may conveen them personally for his Rent , as well as really , he has an Hypothick in the Fruits ; neither can the Sub-tennent prejudge the Master of the Ground of that Obligation and Action , by paying before the Term ; otherways he might pay the whole Terms of the Tack , at the very entry thereof , and so Evacuat the Heretors Interest , as to the Sub-tennent ; yea● though the Sub-tennents Tack-duty were less then the principal Tennents , it would not Exclude the Heretor , pursuing him as Possessor for the whole , but only give him Regress for Warrandice against the principal Tacks-man ; but the Term being come , if the Heretor Arrested , nor pursued not the Sub-tacksman , he might impute it to himself , and the Sub-tacks-man might justly presume that the principal Tacks-man had payed , and so might pay him bona fide .

Countess of Hume contra Tennents of Alcambus and Mr. Rodger Hoge . Eodem die .

THe Countess of Hume being provided by her Contract of Marriage , to the Lands of Alcambus ; Pyperlaw , and Windilaw , extended to 24 Husband-Lands , she gets a Charter upon her Contract , bearing , For Implement thereof , to Dispone to her the Lands and Barony of Alcambus , &c. with a Seasine taken at Alcambus ; She thereupon pursues the Tennents . Compearance is made for Mr. Roger Hog , and other Creditors , who bought these Lands from Wauchtoun , who had bought them from the Earl of Hume , and alleadged Absolvitor from the Mails and Duties of the Miln of Alcambus , because my Lady by her Contract of Marriage was not provided to the Miln ; neither was she Infeft therein , per expressum ; and Milns do not pass as Pertinents , without a special Infeftment . 2ly , Absolvitor for the Rents of Pyperlaw and Windilaw , because my Ladies Seasine● bears , Only In●eftment in the Lands of Alcambus , and mentions not these Lands which are particularly in the Contract . The Pursuer answered to the first , That by her Charter , she was Infeft in the Lands of Alcambus , with the Milns ; with other Lands mentioned therein , &c. 2ly , That Alcambus bore , by her Charter , to be a Barony , which is nomen universitatis , and carries Milns , albeit not exprest . To the second , It is offered to be proven , that Alcambus is the common known Designation , and is commonly known to comprehend Pyperlaw and Windilaw , as Parts and Pertinents thereof , and that they are all holden of one Superiour , and lyes contigue ; so that they are naturally unite , and without any further union in a Barony or Tenement ; and a Seasine upon any place of them serves for all . It was answered for the Defender , to the first Point , That Alcambus was not a Barony , neither doth the Designation thereof by the Earl of Hume , make it a Barony , unless it were instructed . 2ly , The adding of Milns in the Charter , if the Lady had not Right thereto by the Contract , is a Donation by a Husband , and is Revocked by his Disposition of the Lands of Alcambus , and Miln thereof , to the Laird of Wauchtoun , the Defenders Author . The Pursuer answered , that the Charter was but an Explication of the meaning of the Parties , that by the Contract , the intention was to Dispone the Miln , especially , seing the Miln hath no Sucken but these Husband-Lands of Alcambus , which are Disponed without any Rest●iction of the Multure ; so that the Miln would be of little consequence without the Thir●e .

The Lords having compared the Contract and Charter , found that by the Contract , the Lady could not have Right to the Miln , 〈◊〉 she would be free of the Multures ; and found that the Charter did not only bear for Implement of the Contract , but also for love and favour , and so found the Adjection of the Miln , to be a donation Revocked ; Nor had they respect to the Designation of the Lands as a Barony , but they found it Relevan● , if the Lady should ●rove that it was a Barony , to carry the Right of the Mi●n , or that in my Lords Infeftments , there was no express men●●●n of the Miln , but that my Lady had them in the same Terms my Lord had them : They found also , that Reply Relevant , that Alcambus was the Name of the whole Lands , to extend the Sea sine to the Lands of Pyp●rlaw and Windilaw , though not named , and that they might be yet Parts and Pertinents of the Tenement , under one Common Name .

Andrew Smeatoun contra Tabbert . Feb. 7. 1667.

ANdrew Smeatoun being Infeft in an Annulrent out of a Tenement in the Canongate , pursues a Poinding of the Ground , and produces his own Infeftment and his Authors , but not the original Infeftment of the Annualrent . It was alleadged no Process , until the original Infeftment were produced , constituting the Annualrent , especially seing the Pursuit is for all bygones , since the date of the Authors Infeftment ; so that neither the Pursuer , nor his immediat Author hath been in Possession . 2ly . If need beis , it was offered to be proven , that before the Rights produced , the Authors were denuded . It was answered , that the Pursuer hath produced sufficiently , and that his Right was cled with Possession , in the Person of his mediat Author , before the years in question . To the second , this Pursuer hath the benefit of a possessory judgement by his Infeftment , cled with Possession , and is not obliged to Dispute , whether his Author were denuded or not , unless it were in a Reduction .

The Lords sustained the Pursuers Title , unless the Defender produced a Right anterior thereto ; in whi●h case they ordained the Parties to be heard thereupon , and so inclined not to exclude the Pursuer , upon the alleadgeance of a poss●ssory judgement ; but that Point came not fully to be debated : It is certain that a possessory judgement is not relevant in favours of a Proprietar , against an Annualrenter , to put him to Reduce , because an Annualrent is debitum fundi ; but whether an Annualrenter possessing seven years , could ex●●ude a Proprietar , until he Reduce , had not been decided , but in this case the Lords inclined to the Negative .

Mr. Alexander Foulis and Lord Collingtoun contra Tennents of Innertyle and La. Collingtoun . Feb. 9. 1667.

SIr Iames Foulis of Collingtoun , being in treaty of Marriage with Dam Margaret Erskin , Lady Tarbet , She did dispone 36 Chalders of Victual , of her Joynture in the North , to a confident Person , that she might make use thereof , for the benefit of her Children ; and Disponed 36 Chalders of her Liferent of the Lands of Innertyle , to Cuninghame of Woodhal , who transferred the same to Mr. Alexander F●ulis of Ratho , who granted a Back-bond , bearing , That his Name was made use of for the use and behove of Collingtoun and his Lady , and that to this effect , that the profit of the Liferent should be applyed to the Aliment of their Families joyntly ; and therefore obliged himself to Dispone in their favours , and de presenti did Dispone . The next day after this Disposition , there is a Contract of Marriage betwixt Collingtoun and the Lady , wherein there is this Clause , that Col●ingtoun Renunces his jus mariti , to the Lady's Liferent , or any other Right he might have thereto by the subsequent Marriage , and takes his hazard for what he may have any other way . Mr. Alexander pursues the Tennents upon his Disposition . Compearance is made for the Lady , who alleadges he hath no interest● because he is denuded by the Back-bond . Compearance is made for Collingtoun , who declared he concurred with Ratho , and consented he should have the Mails and Duties , to the effect contained in the Back-bond , and that he would not make further use of the Re-disposition contained therein . It was answered for the Lady , that Collingtouns concourse could not sustain this Process , because Ratho was already de presenit , denuded in favours of Collingtoun and her ; Likeas Collingtoun was denuded by his Contract of Marriage whereby he renunces his jus ma●iti , and all other Right he can have to the Liferent La●ds , in favours of the Lady , and so renunces the Clause of the Back-bond , in so far as it is in his favours . It was answered , that the Contract of Marriage could not derogat to the Back-bond , unless the Back-bond had been per expressum , Discharged or Renunced therein , because albeit the Contract of Marriage be a day posterior to the Back-bond , yet both are parts of one Treaty of Marriage , and so in the same condition , as if they were in one Writ , so that a posterior Clause in general Terms , cannot take away a prior special Clause of this moment ; yea though it were in a Contract le●s favourable then a Contract of Marriage , which is ube●●mae fidei , general Clauses are not extended above what is specially exprest , and the jus mariti being exprest , and the Back-bond not exprest , it cannot be presumed , that they changed their minds in one night , to Renunce the benefit of the Back-bond ; but this Conveyance was made of purpose , because Collingtoun being in Debt , if the Right were Constitute in a third Party , and only to their behove as an aliment , the Creditors could not reach the same , but it were the greatest Cheat imaginable , to conceive that the general Clause subsequent , should evacuat the whole design , and take away the provision of the Back-bond : Neither doth the general Clause renunce all Right that Collingtoun had , or might have to the Liferent-lands , any manner of way ; but only all Right he could have by the subsequent Marriage , any manner of way . Ita est , that he doth not claim Right jure mariti , nor by the subsequent Marriage ; but by the Paction contained in the Back-bond ; and it is most certain that the jus Mariti , which is most peculiar to this Nation , doth not comprehend all Rights a Husband hath , in relation to the Person , or Means of his Wife , but only the Right of moveable Goods , or Sums , which without any Paction , whatsoever way they come in her Person , belong ipso facto to him , not by Paction , but by Law ; and that jure mariti , or by vertue of the Marriage : so tha● albeit he could not have Right , even by the Paction , except that he were Husband , or that Marriage had followed , yet his Paction is his Title , and not the Marriage , which is but tacita conditio , or causa sine qua non , so that Discharging , or Renuncing of the jus mariti , or the benefit by the Marriage , if it were posterior to the Contract of Marriage , would not take away the Contract , and being in the Contract , cannot take away the prior ●action , and Disposition granted by the Wife , in favours of a Husband , or a third Party to his behove . It was answered for the Lady , that she adheres to the clear express Terms of the Contract of Marriage , which Renunces not only the jus mariti , but all other Right to the Liferent-lands , by the subsequent Marriage , which being a several Writ , and a Day posterior , most necess●rly take away the Back-bond , without considering the meaning of Parties , quia in claris non est lo●us conjecturis ; at least the meaning can be no otherways cleared but by Writ , or the Ladies Oath ; otherwise the most clear and solemn Contract shall be arbitrary , and may be taken away by presumptions or conjectures , and no man shall be secure of any Right . 2ly , Verba sumendasunt cum effe●●u ; i● this did not take away the Back-bond , it had no effect for the L●dy , before the Contract was denuded , of her whole Liferent , both of Inne●tyle and in the North , so that there was no need to Renunce the jus mariti , or Right by the Marriage to the Liferent-lands . It was further alleadged by the Lady , that albeit the Renunciation could not reach the Back-bond , in so far as it is a Paction , so that it yet stood effectal for application of the Liferent right , for the aliment of the Lady and Collingtouns Family joyntly , yet thereby they both had a Communion and Society equally , and the Husband could pretend no Right in the administration or manadgement , but only jure mariti , in so far as he is Husband , and therefore he acknowledging that he has renunced his jus mariti , cannot pretend to the administration of this aliment , but it must remain intirely to the Lady .

The Lords found that the Claus● in the Contract of Marriage , did not derogat to the Back-bond ; and as to the Point of administration , they consid●red it to consist in two things , in uplifting the Rent , and manadging the Liferent-lands , and in the application thereof to the use of the Family , and manadging the Affairs of the Family , As to the first , they found th●● both Parties having entrusted Ratho , the Trust of manadgement of the Rent , could not be taken from him without Collingtouns consent ; and as for the manadgement of the Family it self , they found , that it neither was , nor could be re●un●ed by the Husband , in favours of the Wife , and that any such Paction , though it had been clear and express , taking the Power and Government of the Family from the Husband , and ●●ating it in the Wife , is contra bonos mores● and void , a●d that the jus mariti● as it is properly taken in our Law , for the Husbands interest to the Wifes Moveables , being Renunced , cannot be understood to re●●h to the Renunciation of the Husbands power , to Rule his Wife and Family , and to administrat the aliment thereof .

Elizabeth Ramsay contra Ker of Westnisbet . Eodem die .

ELizabeth Ramsay having pursued an adjudication of certain-Lands upon the Renunciation of Barbara Nisbet , insists upon that Member of the Summons against the Superiour Iohn Ker , that he should receive and Infeft her ; who alleadged no Process , unless the Pursuer show the Right of the former Vassal , whose Heir had Renunced , for the Pursuer can be in no better case then the appearand Heir , who if she were craving to be Entred , behoved to Instruct her Predecessors Right . The Pursuer answered , that her adjudication against the Defender as Superiour , is in common form , which hath been ever sustained upon good ground , because a Creditor has no Interest to have his Debitors Rights , when he is seeking adjudication , which must be his Title , to demand the Rights , but the Superiour is obliged by Law to reserve the Adjudger , without Instructing any Right further then the adjudication , which hath been frequently so found in the case of Appryzers .

The Lords having considered the case and paralel , with that of Appryzers , found this difference , that Superiours got a years Rent for receiving Appryzers , but not of Adjudgers ; yet in respect of the common custom of these Summons , they ●epelled the defence , and Decerned the Superiour , to receive the Pursuer , salvo jure ●ujuslibet & suo .

Dam Geibs Moncreiff contra Tennents of Neutoun and William Yeoman Eodem die .

DAm Geils Moncrief being Served to a Terce of the Lands of Newtoun pursues the Tennents for a third part of the Duties , who having Deponed that they payed so much for Stock and Teind joyntly for Yeards , Parks , and the whole Lands possest by them . Compeared William Yeoman , as now having Right to the Fee , who alleadged no Terce of the Teinds , because they fell not under Terce . 2ly , No Terce of the yeards , because as the Mannor-place belonged to the Fiar without division , so behoved the closs Gairdens , Orchards , yards , &c.

The Lords found the Pursuer to have no Right to the Teind by her Terce , unless there had been an Infeftment of the Teinds by Erection , and therefore laid by the fourth part for the Teind ; and found that the years in question being possest by the Tennents , and there being nothing alleadged nor instructed , that there was a Tower , Fortalice , or Mannor-place , having a Garden , or Orchard for pleasure , rather then profite , they found no necessity to decide , what Interest a Tercer would have in such , but these being set by appearance , as Grass Yeards , they Repelled the alleadgeance .

Earl Tullibardine contra Murray of Oc●tertyre . Feb. 12. 1667.

IN the Declarator at the Instance of Tullibardine , against Murray of Ochtertyre , Dispute the first of ●ebruary last , It was now further alleadged for Ochertyre , that Clauses Irritant in Wodsets , not being illegal , or null by our Law , albeit the Lords do sometimes Restrict the Effect thereof , ad bonum & aequum , to the just Interest of the Parties , against whom the same is conceived , they do never proceed any fur●her ; But here Ochertyre is content to make up to the Earl his just Interest , by paying a greater price for the Land then Sir Iohn Drummond : and whereas it was alleadged , that this was not receivable now , after the Earl had made bargain with Sir Iohn Drummond , Ochetyre now offered to prove , that before any Bargain was agreed , in Word or Writ , he did make offer to the Earl of fourscore ten thousand merks , which he offered to prove by Witnesses , above all exception , who communed betwixt them , viz. the Lord ●tormount and the Laird of Kylar . It was answered , that the Pursuers adhered to the Lords former Interlocutor , whereby they have restored the Earl against the Clause irritant , he satisfying Ochtertyre his whole Interest , cum omni causae , the same Point being then alleadged and Dispute , a●d both Parties being judicially called , and having declared their minds concerning any such offer , whereby the Earl upon his ho●our , declared that before the agreement with Sir Iohn Drummond : Ochtertyre offered not so much by 4000 merks . 2ly , Any such alleadgence albeit it were competent , it were only probable s●ripto vel juramento ; the Earl now having Disponed to Sir Iohn Drummond , so that the Effect would be , to draw him into double Dispositions , which is of great consequence , both as to his Honour and Interest , especially seing that Ochtertyre did not take an Instrument upon the Offer . It was answered for Ochtertyre , that the former Interlocutor cannot exclude him , especially seing he did only then alleadge , that he made a general offer of as much for the Land as Sir Iohn Drummond would give therefore , but now he offers to prove , that he offered 90000 merks , which is 2000 merks more then Sir John's price .

The Lords found that they would only restrict the Clause irritant , to the Effect that the granter of the Wodset might suffer no detriment , which they found to be Effectual , if the Wodsetter offered as great , or a greater sum then the other buyer , before any Bargain agreed between them , either in Word or Writ ; ●ut found it not probable by Witnesses , but by Writ , or the Earls Oath ; and found that a general offer was not sufficient , unless it had Exprest a particu●ar sum .

Lord Iustice Clerk contra Rentoun of Lambertoun . Feb. 13. 1667.

THe Lord Rentoun , Justice Clerk , putsues Rentoun of Lambertoun , as heir to his Father for Compt and Payment of his Rents , Woods and Planting , intrometted with by Lambertoun , in the beginning of the troubles . It was alleadged for the Defender , absolvitor , because by the Act of Indemnity , the Leidges are secured , as to all things done by any pretended Authority for the time . Ita est , The pursuer being sequestred , the Defenders Father medled by Warrand from the Committee of Estates , and made Compt to them , as appears by his Compt produced● which is ballanced by the Committee . 2ly , The said accompt bears , That Lambertoun made Faith that it was a true accompt , nothing omitted in prejudice of the publick ; after which he could not be questioned , either for any thing in the accompt , or for any thing omitted and not charged . The Pursuer answered , that the Act of Indemnity contains an express exception of all Persons , that medled with any publick Moneys , and had not made Compt therefore , that they should yet be comptable . 2ly , The accompt produced contains two accompts , one in anno 1641 : another in anno 1643. The first is not approven by the Committee , but adjusted by three persons , who were no members of the Committee , and whose Warrand is not Instructed : and the second compt is only approven , wherein the Charge is a Rest in the Tennents hands of the former accompt , and the Oath is only adjected to the second accompt , which cannot Import that Lambertoun ommitted nothing in the first accompt , but only that he ommitted nothing in the second , and his Oath is only to the best of his knowledge , and can import no more , than the Oath of an Executor upon the Inventar , which excludes not the Probation of super Intromission . It was answered for the Defender , that the second accompt being the rest of the first accompt , the approbation of the second must approve both , and the approbation is sufficient Warrand for him to intromet , and the Auditors to compt with him .

The Lords Repelled the Defense upon the Act of Indemnity , in respect of the foresaid Exception contained therein ; and likewise found , that the Oath subjoyned to the second accompt , could not exclude the Pursuer from insisting , for the Defenders Fathers intromissions ommitted out of the first accompt , and wherewith he Charged not himself , but found that the Defender was secure by the Act of Indemni●y , so far as he had charged himself with , and compted ; and found that he was not obliged , after so long a time to instruct his Commission , or the Warrand of the Auditors , that fitted his accompts ; but that the approbation was sufficient to astruct the same .

Lady Diana Maxwel contra Lord Burley and others . Feb. 15. 1667.

LAdy Diana Maxwel , Lady Cranburn and other Executors confirmed to the Countess of Dirletoun ; pursued the Lord Burley , as Representing his Father , for payment of a Bond granted by his Father and others ; to the umquhil Earl of Dirletoun , for the price of a great quantity of Victual , and that upon these Grounds , that the Pursuers are Executors surrogat to the Countess , and have licence to pursue ; which Countess had an assignation from the Earl to his Houshold-stuff , which bore this general Clause , And to his Chattel , and other Moveable-goods and Gear whatsomever ; under which generality , this Bond is Comprehended , being moveable , and for Victual , and so is a Chattel , as the word is understood by the Law of England ; whereby all that is not by Infeftment of Fee , is comprehended by the word Chattels , and belong to the Executors , as Laisses , &c. 2ly , The Countess was nominat universal Legatrix in the Earls Testament , and thereby has Right to this Moveable-bond : 3ly , As Relict she has Right to the half . It was alleadged for the Defender , no Process upon any of these Titles . First , Because the assignation cannot be extended to this Bond ; neither is the word Chattels to be Interpret according to the Law of England , the assignation being made by a Stots-man , and made in Scotland , after the Scottish manner . 2ly , The Pursuers as Executors to the Countess , cannot pursue upon the universal Legacy , the Debitors of the Defunct , but only the Defuncts Executors● because this Bond is yet in bonis primi defuncti , and must be Confirmed . 3ly , The Relict cannot pursue the Debitors for her half , but at least , she must call the Executors .

The Lords found both the last Alleadgences Relevant , but as to the first , before answer they ordained the Pursuer to adduce what Evidences they had to instruct the signification of the word Chattels , by the Law of Engl●nd , in respect it was notour to them , that the Lord Dirletoun beìng a Servant of the Kings , lived the most part of his time in England , and in Scotland there is no use of the word Chattels .

Isobel Glen contra Iohn Hume . Feb. 19. 1667.

ISobel Glen as assigney by Mr. Edward Jameson , having obtained Decreet against the umquhil Earl of Hume , for certain by-run Stipends , and thereupon having arrested in my Lord Whitekirks hands , certain Sums due by him , to the Earl of Hume : She now pursues to make forthcoming . Compearance is made for Iohn Hume ▪ who produces an assignation by the Earl of Hume , to the sums due by Whitekirk , and also produces a Gift of the Earls Liferent-Escheat ; and alleadges , first , No Process at the Arresters Instance , because the Earl of Hume being dead , the Debt must be first Establisht by a Decreet , against one Representing him , who must be called principaliter , before the Person in whose hands the arrestment is made , can be decerned to pay that which was the Defuncts . 2ly , Iohn Hume must be preferred as Donatar , because the arrestment was laid on after the Earl of Humes Rebellion , by which his Goods belonged to the King , and no Sums can be made forth-coming , as belonging to him after the Rebellion , because they belonged to the King . It was answered to the first ; That if the Earl of Hume had not dyed at the Horn , the Pursuer would have either Confirmed as Ex●cutor Creditor , or called the Earls Executors , but that is not necessar , seing the Earl died at the Horn , and could not have one to Represent him in mobilibus ; and that now the Donatar who succeeds , compears . To the 2. the Pursuer as Arrester , ought to be preferred ▪ because albeit the arrestment be after the Rebellion , yet it is before the Gift or Declarator ; and it is for a Debt due by the Earl , before the Rebellion , and so doth exclude the Donatar , for which they produced a Decision marked by Dury , Pilmour contra Gaigie . In which case the Gift was granted by a Lord of a Regality , having the benefit of the Escheat , whereanent the Lord Advocat Represented , that this could not be drawn in consequence , to prejudge the King or his Donatar , because the Lord of Regality being a Subject , debuit invigilare sibi , by declaring the Rebellion without delay , but the King cannot so soon know , nor is he prejudged by the neglect of his Officers .

Yet the ●ords u●animouslie preferred the Arrester , the Advocat forbearing to Vote , for they t●●ught the c●se of Creditors for Debts before Rebellion were not to be prejudged , ●●●ng Diligence before Declarator , or if they should Poind , Arrest , Adjudge , &c.

Cranstoun contra Wilki●on Feb. 20. 1667.

BY Contract of Marriage betwixt Wilkison and his Spouse , he is obliged to Infeft her in a Tenement , exprest therein , and in all the Conquest during the Marriage ; which Infeftments were to be taken to them , the longest liver of them two , in Conjunct-Fee , and their Heirs betwixt them : Which failzing , to the Heirs of the Mars Body : Which failzing , to the Wifes Heirs whatsomever ; after which the Husband purch●sed a piece of Land , but took the Infeftment thereof● to him and his ●ife , and the heirs betwixt them : Which ●ailzing , to his own heirs whatsomever , omitting the wifes heirs . This Cranstoun obtains hi● self Infeft in this Conquest Tenement , as Heir to the Wife , and thereupon obtained Decreet for Mails and Duties . Wi●●ison as Heir to the Husband , pursues Reduction of the Decreet on these grounds : first , That Cranstouns Infeftment , as Heir to the Wife● was null , because the Wife was not Fiar , but Liferenter . 2ly , The Wife having accepted of an Infeftment , posterior to the Contract , without mention of her Heirs , that innovat the Provision of the Contract , and excludes her Heirs . It was answered ; first That the Man and Wife being Conj●nct fiars , the Wife was Fiar● and the Man but Life ●enter , because the last Termination of Heirs whatsomever , Terminat upon her . 2ly , Albeit Cranstoun had taken his Infeftment wrong , Wi●kison cannot quarrel the same , because he , as Heir to Wilkison , was obliged to Infeft him , as Heir to the Wife ; and to the posterior In●eftment , it is contrair to the provision of the Contract of Marriage , and there does appear no accepting thereof by the Wife . 3ly , Cranstoun is not obliged to disput the validity of this Right , because he hath been Infeft qua●●ter qunque , and by vertue of his Infeftment , hath been seven years in Possessi●n , whereby he hath the benefit of a possessory Judgement , ●ay and while his Infeftment be Reduced .

The Lords found , that even by the Contract of Marriage , the Husband was Fiar , and not the Wife : But that the Wifes Heirs of line , were Heirs of Provision to the Husband , and that if there had been an heir of the Ma●riage , or an ●●ir of the Mans Body , they could never have been served ●eirs to the Wife : and that by the deficiency thereof , the condition of the Fee cannot change : and therefore they found that Cranstoun was wrong i●feft ; yet they found the alleadgence of his seven years Possession Relevant , to give him the b●n●fit of a possessory judg●ment , without Disputing , whether the Provision of the Contract of Marriage , in favours of the wife , was derogat , by the posterior Infeftment , omitting her heirs .

Andrew Litlejohn contra Dutches of Monmouth . Eodem die .

ANdrew Litlejohn pursues the Dutches of Monmouth , and her Curators , for payment of a Taylor accompt , taken off by the Dutches for her Marriage Sow ; to the fit whereof , she adjoyns these words , I acknowledge the Accompt above-written , and subscrives the same . It was alleadged by the Curators , that the Countess Subscription , being after her Marriage , can neither oblige her self , nor her Husband , because Wives Obligations are ipso jure , null . It was answered that the Dutches being persona illustris , and the accompt for Furniture to her Body at her Marriage ; her accompt fell not under the Nullity of Ordinary Obligations by Wives , whose Bonds are null , not so much because their Subscriptions prove not the Receipt of the Money , as because , being in potestate viri , they cannot imploy it profitably for their own use , which ceases here , the accompt being for necessar Furnishing , which both obliges the Wife , and her Husband , who is obliged to Entertain his Wife .

The Lords Decerned , the Pursuer always making Faith , that it was a just , and true accompt , truely Resting , and owing ; and would not put the Pursuer to instruct the delivery by witnesses , who are at London : considering especially , that the Dutches , being such an illustrious Person , her Subscription could not be questioned upon so small a Matter , as obtained without delivery .

Helen Iohnstoun contra Robert Johnstoun . Eodem die .

HElen Iohnstoun alleadging that there was a Blank-bond in her Brother Roberts hand , to her use , and that he promised to apply the benefit thereof to her , doth pursue the brother , either to deliver the Bond , or otherwise the sums therein , and offers her to prove by the Debitors Oath , that the Bond was blank in the Creditors Name , when it was Subscribed by him , and by Witnesses above Exception , that it was blank when she delivered it to the Defender ; and craved the Defenders Oath of Calumny concerning the promise . The Defender alleadged , that he was not obliged to give his Oath of Calumny upon one Point of the Lybel , but upon the whole .

The Lords found , that he was obliged to give his Oath upon one point of the Lybel ; But they found that Witnesses were not Receiveable to prove the Bond to have been Blank , to infer Redelivery of the Bond , or Sums ; And found likewise , that s●ing the whole Lybel was only probable by his Oath , he was not oblieged to give his Oath of Calumny , but only his Oath of Verity , seing he might be ensnared by denying upon his Oath of Calumny , which was lubrick , and of d●bious ●nterpretation , what it imported , and so might be prompted to wrong himself in his Oath of verity , least it should clash with his Oath of Calumny . vid. 21. Feb. 1667. inter eosdem .

Lord Thesaurer , and Lord Advocat , contra Lord Colvil , Eodem die .

THe Lord Thesaurer , and Lord Advocat pursue the Lord Colvil for the single avail of his Marriage , in so far as he was Married when his Predecessor was on Death-bed , and was moribundus , and was Married without proclamation , within seven , or eight dayes before his Predecessors Death , which precipitation of his Marriage did manifestly p●esume that it was of fraud , to seclude the King from the benefite of the Marriage , and so it was in the same case as if he had been Married after his Predecessors death ; and repeated the opinion of Sir Iohn Skeen in his Explicati●ns upon Quoniam Atachiamenta se Maritagio , bearing that it was praxis fori , that if the Vassal g●ve his Heir in Marriage upon Death-bed , it was est●emed a fraud●●ent precipitation , in prejudice of the Superior , and gave the Superior the single avail of the Marriage ; and sets down three Decisions , whereby it was so found . It was answered for the Defender Absolvitor , because there is neither Law , nor Custome gives the Superior the avail of the Vassals Marriage , if he be Married before his Predecessors Death , but Craig , and other Lawyers do define this casualty to be , the avail of the appearand Heir of the Vassals Marriage , Marrying after his Predecessors Death : and as to the ground insinuat of fraud , by precipitation it is no wayes relevant . First , Because , albeit it did appear that the Defunct Vassal had Married his Heir , of design to prevent the Marriage , yet here is no fraud , but a warrantable Providence , which is not dolus malus sed do●us bonus ; for fraud is never understood , but when it is contra jus delatum , and not of the preveening of jus deferendum , for thereby only the Right , and Interest of another is taken away : as for example , any Heretor may dam , or divert the water upon his ground , as he pleases , and cannot be hindred , upon pretence that his Neighbour might thereafter make use of that water for a Miln to be built , and yet if the Miln were built , he could not thereafter alter the course of the water ; so here the Superior having no present Right , but in spe , the Vassal endeavouring to prevent the casualty , commits neither fraud , nor fault ; otherwise upon pretence of fraud , a Marriage might be claimed , when the Predecessors resign in favours of his appearand Heir , or suffers his Land to be Appryzed , in name , or to the behove of the appearand Heir , which yet was never challenged , neither hath a Marriage been obtained , or demanded upon this ground by the space of these threescore years . 2ly , Albeit prevention could be fraud , yet here is nothing alledged to infer fraud , which is never presumed , unless it be evidently proven , and when any other Cause is possible , the Effect is never attribute to a fraudulent Cause : But here there is a most probable Cause . viz. That the Defunct desired to see his Successor Married to his satisfaction , it being very ordinar that the ruine of Families arises either through the not Marrying , or Marrying unfitly of the Heir . And as for the presumptions of fraud ; here they are neither evident , nor pregnant : As to the Decisions , no respect to them ; first , Because they are three●core years in desuetude ; 2ly , There is here nothing but the very instancing of the Practiques , without deducing the Case dispute , and Reason of Decision , neither can Sk●ens conclusion take place , in all the largeness he sets it down , or else there shall need no more to infer a Marriage , but that the Vassal was in lecto egritudinis , albeit he had so continued of a Lent Disease , above a year , nothing should Capacitat him to Marry his Heir , although he used all the Solemnities of Treaty , Contract , and Proclamation : so that the Law de lecto ●gritudinis , which is only introduced in favours of Heirs , that their Predecessors shall not prejudge them , shall now be made use of against the Heir , that his Predecessor can do nothing to his benefite , on Death-bed . The Pursuer answered , that the feudal Contract being of its own Nature Gratuitous and most favourable on the Part of the Superior , that which he hath for his Fee , being ordinarly the Service of the Vassal , and the profit of the Fee when the Vassal is unserviceable , through Minority ( reserving the Vassals own Aliment ) and the profit of the Vassals Tocher ; the Vassal ought not to defraud , or prejudge him therein . And albeit custom hath introduced an exception , that the Tocher is not due to the Superior , which was gotten during the Predecessors Life , it being ordinarly consumed , and applyed to the Predecessors use ; yet that by precipitation the appearand Heir should enjoy the same , and not the Superior , is against the Gratitude , Amity , and Obliegement of the Vassal : neither is there any Parity in the Case of a Resignation , to which the Superior consents , or in the Case of an Appryzing , wherein the Superior must Receive , by the force of Law ; nor can the forbearance of sixty years infer a contrary Custome , because this is a Case rarely contingent , and oft times not known to the Kings Officers ; and though it were , their negligence prejudges not the King , by an express Act of Parliament ; neither is that a Custome which People use to do , but Customes here are only such as are Judicial , by the Kings Ministers of Justice , whereanent Skeen expresly saith , that this is praxis , forensis ; and albeit the Decisions Adduced by him be not at large , yet the circumstances of fraud here , are so pregnant , that they cannot be thought to have been more pregnant in any other Case , where there was no Proclamation , and where the Defunct was not only in lecto , but was moribundus , Physicians having so declared , the common Reputation being , that he would not Live , and D●ing de facto , within a few dayes after , and there being no singularity in the Match , nor any pressing necessity of the Marriage , for any other Effect .

The Lords found the Lybel , and Reply relevant ; viz. That the Marriage was done , when the Predecessors Father was moribundus , and done wîthout Proclamation , and that he Died within eight dayes after , there being nothing alleadged to take off the Presumption of fraud upon these Circumstances .

Robert Miln contra Clarkson , February 21. 1667.

RObert Miln as Donatar to a Liferent Escheat , having obtained a general Declarator , insists now in a special Declarator for Mails and Duties . It is alleadged for Clarkson , that the Pursuer has no right to the Mails and Duties , because he stands Infeft before the Rebellion . It was answered , any Infefetment Clarkson has , is but a base Infeftment , never clede with Possession till the Rebellion , and year and day was run , and so is null , as to the Superiour , or his Donatar . It was answered , that the base Infeftment is valide in it self , and albeit by the Act of Parliament , 1540. A Posterior publick Infeftment , for Causes Onerous be preferable , yet that cannot be extended to the Right of a Liferent Escheat , or to a Donatar . It was answered , that by the course of Rebellion , year and day the Superiors Infeftment Revives , as to the Property , during the Rebels Liferent , and cannot but be in as good condition as any Posterior publick Infeftment ; and it was so decided , March 19. 1633. Lady Rentoun contra Blackader .

The Lords found that the base Infeftment , though Prior to the Denunciation , not having attained Possession within year and day , could not exclude the Liferent Escheat .

Helen Iohnstoun contra Robert Iohnstoun , Eodem die .

IN the Cause betwixt Helen Iohnstoun and Robert Iohnstoun her Brother , It was further alleadged for her , that the Pursuit , being a matter of breach of Trust , and Fraud , betwixt Parties so nigh as Brother and Sister ; the same ought to be Probable by Witnesses above exception , and ought not to be referred to the Defenders Oath ; because it s offered to be proven that he did Depone before the Justices of Peace in Fife , that he had never had the Bond in question , and yet in this Process it is Judicially acknowledged in the Dispute that he hath the Bond , and that he received it blank from the Pursuers Husband ; and it s now offered to be proven by his own Brother , and other Witnesses , above exception , that the Pursuer delivered the Bond to him blank after her Husbands death , which being a matter of Fact , and Probable by Witnesses , necessarly infers that the Bond was not redelivered to her Umquhil Husband .

The Lords before answer ordained the Witnesses ex officio to be examined , upon the Pursuers delivery of the Bond after her Husbands Death .

Earl of Errol contra Hay of Crimunmogat . February 23. 1667.

THe Earl of Errol Pursues a Declarator of Redemption , against Hay of Crimunmogot : It was alledged Absolvitor , because the Defender stands Infeft upon a Charter granted by Barcklay , with the consent of the Earl of Errol , proomni suo jure , long after the reversion , granted be Barcklay , whereupon this Redemption proceeds . It was answered for the Pursuer . 1. That the Earl only consents , and the Charter bears that the Sums were payed to Barcklay , whose Right produced is a Wodset , granted by the Earl of Errol , and Hay of Vrie , bearing an Expresse Reversion to any lawful Eldest Son of Hay of Vrie , which failzieing to the Earl of Errol . Ita est that the time the Earl Subscrived this Charter , Hay of Vrie was alive , and had Sons , at least in spe ; so that the Earl of Errol had not thereby the Right of the Reversion , and therefore his consent , without any Sums received , or any absolute Warrandice , cannot extend to any superveening Right , which he then had not actually , but in spe et in apparentia . 2ly , The Earls consent to Barcklayes Disposition , who had only the Right of Wodset , not bearing irredeemable , or absque reversione , cannot take away the expresse Reversion of Barcklayes Right : for albeit an Heritable Right be presumed Irredeemable , presumptio cedit veritati , and it cannot take away a Reversion where it is .

The Lords found that the Reversion granted in Barcklayes Right was not taken away by this Posterior Right , and Charter ; but that the Earls consent imported only his Favour , and Goodwil to transmit the Right to the Defender ; in respect of the alledgeances aforesaid .

Laird of May contra John Rosse . Eodem Die .

UMquhil Dumbaith having Disponed several Lands to his Oy , Iohn Rosse Brother to Kilraick , the Laird of May , Dumbaiths Heir-male pursues Improbation and Reduction of the Disposition : and insisted upon this ground that the Disposition was false in the Date ; and that the Defunct was ali●it the time it appeares to have been subscrived , and therefore is false in all . It was answered that there was only an Error in the Date , in respect , the same Right having been conceived formerly in formerly in favours of another , Dumbaith gave order to draw it over in favours of the Defender verbatim , and the Writer ignorantly Wrote over the Date as it was in that first Disposition , which can no ways annul the Writ , especially seeing it was offered to be proven by the Witnesses insert that the Writ was truly subscribed by Dumbaith , and them as Witnesses , when he was in his Liege-poustie , against which no alledgeance of alibi by other Witnesses not insert can be respected .

This having been Dispute in the English time ▪ the Witnesses were Examined before answer , by three of the Judges , and now the Cause was Advised .

The Lords found the Defense relevant to elide the Improbation , that the Writ was truly subscribed before the Defunct was on death-bed , and found the samen proven by the Witnesses adduc'd , and thereafter assoilzied .

Laird of Rentoun Iustice Clerk , contra Lady Lamberton , Eodem Die .

THe Lord Rentoun insisted in the Cause against Lambertoun mentioned the 13. February 1667. He now insists on this member , offering to prove that Umquhil Lambertoun by his Commission or Bond was oblidged to the Estates for exact diligence ; and the Pursuer being now Restored , he is lyable to Count to him in the same manner as to the Estates , not only for his Intromission , but for his Negligence , whereby he suffered other Persons publickly , and avowedly to cut the Pursuers Woods of a great value , and did no ways stop nor hinder the same , nor call them to an Account . 2ly , He himself Intrometred with the said Wood , at least others by his Warrand ; which Warrand must be presumed in so far as he having a Commission , and oblidged for diligence , did not only suffer the Wood openly to be cutted , but applyed a part thereof to his own use , and was oftimes present when it was in cutting by others● The Defender answered , First , That he could never be lyable to the Pursuer for his Omission , because his only Tittle was his Right of Property , whereby the Defender was lyable to Restore to him what he had Intrometted with , and not Counted for , but for his oblidgement to do Diligence , it was only personal granted to the Estates ; and albeit they Restored the Pursuer to the Estate , they never Assigned him to that Obligation . 2ly , The Defender is secured by the Act of Indemnity , except in so far as he Intrometted , and did not duely Count , as was found by the former Interloquitor in this Cause : and as to the second member , It was answered that the Defender being only Countable for his Fathers Intromission not Counted for , albeit he had given warrand to others , except he had received satisfaction from them , it is not his own Intromission . 2ly , Warrand or Command , is only Probable by Writ or Oath , and no way by Presumption , upon such Circumstances , which Presumptions are also taken off by others more pregnant , viz. That these Woods were cutted by Persones in Power and Interest in the Countrey , who had no Relation or Interest in the Defenders Father , whom he was not able to stop or hinder , and most part thereof was Clandestinly cut and stolen away by meaner Persons . It was answered for the Pursuer , that he being Restored , Succeeds in place of the Estates , and as what is done by a negotiorum gestor without Warrand , is profitable for these for whom he negotiats , so must this be which was done by the Estates . As to the Act of Indemnity , the meaning thereof can be no more then that Parties who Acted shall be in no worse case then they would have been with that Party whom they followed , As to the second member , the Pursuer answered , that what was done by others , by the Defenders Fathers Commission must be his Intromission , seing it is all one to do by himself , or by another ; and seing it cannot be called Omission , it must be Intromission . 2ly , Though Command or Warrand is ordinarly Probable by Writ , or Oath . Yet there are casus excepti , as whatsoever is done for any Party in his presence , is by all Lawyers said to be ex mandato & inde oritur actio mandati , & non negotiorum gestorum , so that the presence , or tollerance of a person not only having Power , but being oblidged for Diligence , must much more infer his Power or Warrand : And albeit he was not alwayes present , yet the Deeds being publick , and near the place of his abode , it is equivalent :

The Lords inclined not to sustain the first member , both in respect of the Act of Indemnity which bears in it self to be most amply extended , and in respect that the Pursuer had no Right to the Personal Obligation , or Diligence : but as to the second member , the Lords were more clear as to what was done in the Defenders Fathers presence , but in respect it was more amply proponed . The Lords , before answer , ordained Witnesses to be Examined by the Pursuer , whether or not the Woods were publickly cutted , and whether or not Lambertoun was at any time there present , and apply'd any thereof to his own use ; and Witnesses also for the Defender to be Examined , wheth●r a part was cut Clandestinly , and other parts by persons having no relation to Lambertoun , and to whom he used any Interruption .

Eodem die .

THis day there being a Query formerly given by the Lord Thesaurer , whether or not there should be a Processe of Forfaulture intented against these who rose in the late Rebellion , before the Justice General , so that the Justice might proceed against them , though absent , by putting the Dittay to the Tryal of an Assyze , and taking Witnesses thereupon ; and upon Probation to proceed to the Sentence of Forfaulture , or whether Probation in absence could not be admitted but before the Parliament . There were Reasons given with the Query for the affirmative , viz. That there was a special Statute for Forfaulture of Persons after their death , in which case they were absent , multo magis when they were living and contumacious . 2ly , Because by the Civil Law , albeit Probation , especially in Criminals , cannot proceed unlesse the Defender be present . Yet the chief Criminal Doctors , except the case of lese majesty , as Clarus Farenatius and Bartolus . 3ly , That the Parliament proceeds to the Forfaulture in absence , not by their Legislative Authority , but as a Judicature , and what is just by them , it is just also by the Justice .

The Lords demured long to give their Answer upon thir Const ●erations , that by Act of Parliament it is Statuted that Probation shall be only led in presence of the Party , and that there had never been such a Practice for the Justices to Forefault Absents , but only to declare them Fugitives ; whereupon , being denunced , their Escheat fell , and after their Liferent , and that it was not proper to the Lords , especially in cases Criminal , to give advice in that which might predetermine the Justice General , and the Justice Clerk , and Advocat who had been desired to peruse the Books of Adjournal , and they reported that they had not found a Forfaulture by the Justices in absence , but that they had found that a Party accused for Treason in holding out a house against the King , was declared Fugitive , but they did not find that it was proponed to the Justices to put an Absent to an Inquest for Treason , and that it was repelled . The matter being resumed , this day , the plurality resolved for the affirmative , especially considering that of old Parliaments were frequent in Scotland , and now are but rare ; and that the Lords of Council and Session , were the Kings Council to give his Majesty their advice in general Cases , what might Legally be done , whether Civilly or Criminally

Andrew Ker , contra Children of Wolmet . Eodem Die .

UMquhil Wolmet having set a Tack of his Coal to his Children for their Provision , and Named Andrew Ker of Moristoun and Tarsonce , Overseers ; the said Andrew Intrometted with the Coal for some years , the Children pursued him before the late Judges for Payment of the Profit of the Coal . In which pursuit he did alledge that he could not Count , nor Pay to the Children the whole Profit of the Coal , but so much thereof as was free over and above the Back-tack Duty , due both out of Land and Coal , by vertue of the Wodset granted to Iames Loch , who stood thereupon publickly Infeft , and to which Wodset Mr. Mark Ker his own Son had Right , to whom he had payed the Back-tack Duty , and obtained his Discharge ; this being found relevant by the Judges , he produced Holograph Discharges granted by his Son ; the Judges found that these Holograph Discharges did not prove Payment made debito tempore , and therefore decerned without allowance of the Back-tack Duty : Andrew Ker pursues a Reduction of this Decreet as unjust , in so far as the Back-tack Duty was not allowed , as not payed debito tempore , whereas the Back-tack being a real Burden upon the whole Profits jure hypothecae ; all Intrometters with the Profits were lyable to the Wodsetter ; and so Andrew Ker as Intrometter was lyable to the Wodsetter , and was not obliged to imploy that part of the Profit for Anualrent to the Children , although he were obliged to imploy their own means , and so might lawfully have payed the Wodsetter , or keeped it in his own hand for his own relief , and the Wodsetters Discharge at any time was sufficient to free the Children . It was answered that there was no iniquity committed , because Andrew Ker could only be lyable for the Back-tack Duty as Tutor and Overseer to the Children , and even in that case he ought not to have payed without a distresse , otherwise he prejudged the Children of their relief against the Heir , who is obliged to relieve them of the Back-tack Duty , and when ever he were distrest , he would not he obliged to pay any Anualrent to the Wodsetter for the Back-tack Duties which was the Wodsetters own Annualrent , so that till the time of the distresse the whole Annualrent should have been put out to the use of the Children upon Annualrent , so that the Back-tack Duties can only be allowed from this time , but not yearly as they were due , otherwise the Bairns lose the benefit of the Anualrent the mean time , but there being no distresse Andrew Ker could never be lyable to the Wodsetter . It was answered for the Pursuer , that the Wodsetter being his own Son , there was no reason to put him to any Action , especially seing the Defenders cannot alledge that in any such Action they had a competent Defense , or that the Heir has any Defense whereupon to exclude their relief : Neither is there any reason that the Children should have Anualrent for the Back-tack Duty till it was payed , because it was not theirs , nor might he safely put it out of his hands , albeit the Wodsetter had been a stranger , and albeit he be now functus officio as Overseer , the Title that made him lyable to the Wodsetter , was as Intrometter which is a perpetual obligation , the Wodsetter , as all Masters of the ground , having jus hypothecae upon the Profit ; for payment of Tack Duty for which all Intrometters are lyable .

The Lords reduced that part of the Iudges Decreet , and found that Moristoun as Intrometter was lyable to the Wodsetter , and might retain so much of the Profits in his hands as would pay the Back-tack Duty , and was not obliged to give out for the Children upon Annualrent : But if de facto he had given it out in his own name for Annualrent found that the Children should have the benefite thereof .

Lady Milntoun contra Laird of Milntoun . Feb. 25. 1667.

THe Lady Milntoun having obtained Divorce against Iohn Maxwel younger of Calderwood her Husband , before the Commissars of Edinburgh , Sir John Whitefoord of Milntoun , who had gotten a Disposition of her Liferent-right from her Husband , pursues Reduction of the Decreet of Divorce , on these Reasons that the Decreet was in absence , and that he compeared befor the Commissars , and craved to be admitted for his entrest , and was refused , and if he had been admitted he would have objected against Paterson and Clerk the only two proving Witnesses , that they were not habile Witnesses , being neither men of Fame nor Estate , and Paterson by common Reputation of very evil Fame , and that they were not purged of partial counsel , but suborned by the Lady , and had both received money to bear Testimony , and promise of more , and were prompted by the Pursuer how to Depone . 2ly , As they were not habile , so neither did they prove the Commission of Adultery . The Lords caused produce the Processe , and Testimonies before the Commissars , and finding that the Witnesses were not purged of partial counsel , they ordained them to be re-examined upon such Interrogators as were not contrair to their former Depositions , whereupon they were twice re-examined . Paterson in his first examination before the Commissars , Depones that he knew John Maxwel and his Lady , and that he saw John Maxwel in naked Bed with Margaret Davidson lying above her , and that he upbraided Iohn Maxwel for it , who answered he carried not alwise his Wife about with him . Clerk Deponed that in another Moneth , at Edinburgh he saw John Maxwel in naked Bed with Margaret Davidson , and that the said Iohn was very displeas'd at his coming in to the Room . The Goodman of that House being another Witnesse , deponed that John Maxwel and another Man , and two Women lay altogether at one time in one Bed in his House , and that he saw John Maxwel very familiar with one of the Women , Embracing and Kissing her , and keeping her upon his knee , whereupon he put them out of his House . Another Witnesse Deponed , that seeing Margaret Davidson with Child , she acknowledged to him that it was to John Maxwel , and that it was commonly reported that she called the Child Maxwel after John Maxwel . Paterson and Clerk being re-examined by the Lords , did purge themselves of partial counsel , but at the close of their Deposition , Paterson acknowledged that the Lady threw down a Dollar and a half upon the Table , which he took up before his first Testimony ; and in his second Re-examination acknowledgeth that she offered him five hundreth Merks , and to be a Bairn of the House . And both acknowledged that she gave them Tokens , to make appear they knew Margaret Davidson by her Countenance and Cloaths , but both adhere to the truth of the former Deposition , and being asked how they knew that Woman was Margaret Davidson Deponed that they knew her not , nor saw her ever before nor after , but that John Maxwels Servant , called Dougal Campbel being in the utter Room told them several times that that Womans name was Margaret Davidson .

The Lords having considered the Depositions first and last , ordained the Parties to Debate , whether Corruption or Subornation of the Witnesses being acknowledged by themselves in their Re-examination did invalidat their Testimony , and whether their Testimonies not ag●eeing as in the same individual Act , but as to divers Facts , and divers Times , and Places , were sufficient to prove .

IT was alledged for the Lady , that whoever adduced Witnesses was obliged to entertain them , and also denied that ever she gave Money , or promise ; and that it could not be instructed by the Re-examination of the Witnesses , whose Post●rior Testimony could never invalidat the first , or else there were an open door for prevarication and bribing of Witnesses to alter their Testimonies , but the opinion of all Lawyers is , that a Witnesse may correct himself before his Testimony be perfected , and subscrived , not after . But the only way was to protest for Reprobators and by other Witnesses to prove the Corruption of the witnesses , in which Case it behoved to be Proven , that there was an undertaking , or at least endeavour , that they should bear witnesse to that which they knew not to be true . As to the second point , it was alledged , that albeit the common rule be that in matters Criminal , the witnesses must be Contestes , both being witnesses at once to the same indevidual Act , yet it had these limitations . 1. That though this hold in Criminals specifico , yet not in crimine generico , which may be perpetrat by reiterable Acts when the pursute is not Capital , but either for Tortour , Canonical Purgations , or to any Civil Effect , as in Adultery it is crimen genericum , by reiterable Acts , and therefore being pursued civiliter to separat the Marriage , or to restore the Joynture , it might be proven by two witnesses , though not concurring in the same individual time and place , and therefore singular , albeit not single witnesses . And the Lawyers do generally give the instance in Adultery , which is a secret and transient Fact . And if such proof were not sufficient it would be impossible to prove it ; but if Adultery were pursued Criminally in these Cases where it is Capital , Probation were required more exact , and agreeing in time and place . Or if the Case were in Murder , which is not reiterable , witnesses not agreeing in time and place could not prove , but in Adultery , haeresie simonie , and such reiterable Crimes , witnesses to divers Facts being in the same Crime are sufficient ; for which Clarus , Farnatius and Covaruvias were cited . It was answered , to the first point that Subornation of Corruption of witnesses is inferred by attempts , or endeavours to prompt the witnesses to Depone that they know not , albeit they did it not , nor yet undertook it ; and that taking of any Money , not only inhabilitats the Witnesses , but makes the Takers and Givers falseers , is the opinion of all Lawyers , neither may the Witnesses take the Expences of their Travel and Attendance , till it be Decerned by a Judge ; and as to the matter of Corruption the Witnesses own Oath is sufficient , even by Re-examination , because the Adducer can never quarrel the Oath of the Witnesses adduced by himself , by which he carries the Cause , but much more where the Witnesses acknowledge , that at the first Examination they were not Interrogate if they were free of partial Counsel , and if that be omitted , or not understood be them , they may be Interrogat specially thereupon again , as was done in this Case . To the second point , albeit more Witnesses being singular , but not agreeing to the same Fact , or some times one Witness may be receiveable to infer Tortour , or that the several Witnesses agree not as to all the same points , and circumstances , as if the Witnesses look through a rift or hole , albeit they cannot see all at the same instant , yet all of them see the same individual Fact , or if one Witness Depone in the case of Murder , that he saw the Party accused with a bended Pistol , or drawn Sword go in to a Room , but going out saw no further , and another hear the Shot and the Stroaks , and saw the accused coming out alone , or with a bloody Sword , and a third saw the slain lying Dead in a Room , and no more then these , although they agree not as to the same points and minuts of Time , yet all agree in one Fact , but the Witnesses not agreeing to one Fact , are all single Witnesses , and are not Contestes , and so cannot be Confronted , Confirm'd , or Redargued each by other , which is the great ground of Faithfulness , and Trust of Testimonies ; but if one person alone can bear Witness where he knowes none can gainsay him , it would prompt him to Perjury , or Mischief , and here the two Witnesses are only ex auditu , seing neither of them knew Margaret Davidson but only by the Report of Dougal , so that both did not positively know that the Person with whom they found Iohn Maxwel was not his Lady , seing Clerk neither knew the Lady nor Margaret Davidson . It was answered for the Lady , that whatever may infer Subornation or Corruption , it cannot be proven by the Testimonies , to derogate their former Depositions , unless it were proven by others upon Reprobators , and as to the other point in facto reiterabili , to a Civil effect , Witnesses though not agreeing in the same Fact , yet agreeing in divers Facts of the same Crime were sufficient .

The Lords found that Subornation or Corruption of the Witnesses could be instructed by their own Posterior Testimony , and found the Adultery sufficiently proven by the Testimony of the Witnesses , and Assoilzied from the Reduction , and found the Letters orderly proceeded , used against Milntoun for Removing . But Milntoun gave in a new Bill , offering him to prove by other Witnesses , the Subornation and Corruption of the Witnesses in the Divorce , being in effect a Reason of Reprobator , which is very competent in his Reduction , and yet the Lords refused the same in hoc statu Processus , not being Libelled or Insisted in before , but superceeded Execution in the Removing , & as to the House and Mains Possest be Milntoun till Martimass , that in the mean time he might Insist in his Reprobators , as he would be Served .

Countesse of Carnwath contra Earl of Carnwath , February 22. 1667.

THe Countess of Carnwath Insists in her Action of Poinding the ground . It was alleadged for the Defender , that the Countess Seasing was null , not being Registrate conform to the Act of Parliament ; It was answered , that nullity cannot be proponed , either be the Granter of the Infeftment , or any Representing him , or by any person who is obliged to acknowledge the Infeftments ; but the Earl is such a Person , that albeit he Brooks by a Disposition from his Father , yet his Infeftment containes this Express Provision , that his Father at any time during his Life may Dispone the Lands , or any Part thereof , and grant Infeftments , Tacks , or Annualrents thereof ; so that this being unquestionably an Infeftment , he cannot quarrel the same upon the not Registration , but if his Father had granted an Obliegment to Infeft , the Defender could not have opposed the same , much more the Infeftment being Expede . It was answered , that the Provision did not contain an Obligation upon the Defender to Dispone , Ratifie , or do any Deed , but left only a Power to his Father to Burden the Lands , which can only be understood , being done legitimo modo , and therefore the Infeftment wanting the solemnity of Registration is in the same Case , as if there were no Infeftment , and so is null .

The Lords Repelled the Defense , and found the Seasine valide , as to the Defender , in respect of the foresaid Provision in his Infeftment .

Earl of Southesk contra Lady Earls-hall , Eodem die .

THe Earl of Southesk being Infeft in certain Lands upon the Water of Eden , and the Salmond Fishing , peruse Declarator that Earls-hall hath no Right thereto . The Pursuer produces an Infeftment , in Anno 1558. in which after the Land is Disponed , there followes a Clause , una cum Salmonum in piscationibus in aquâ de Eden , with a novo damus ; it was alleadged for the Defender , that he hath the ●like Declarator against the Pursuer , which he repeats by way of Defense , and produces an infeftment of the same year of God , bearing in the dispositive Clause , una cum Privilegio piscandi in aqua de Eden solito & consuet , and alleadges that by vertue thereof , he hath good Right to Fish in the Water , and that he had been in Immemorial Possession by vertue thereof . It was answered , First , That this Clause cannot carry Salmond Fishing , which is inter Regalia , and must be specially Disponed . 2ly . The Defenders Right , though in the same year of God , is yet some Moneths Posterior to the Pursuers , and as to the Defenders Immemorial Possession , it cannot consist nor give Prescription , without a sufficient Title by Infeftment , and it hath been frequently Interrupted by the Pursuer . It was answered by the Defender , that he and the Pursuer , and the Laird of Reiris having three Thirds of one Barony , all lying Rin-ridge , the Kings granting the Pursuer his Third cum Salmonum piscationibus , added to the Lands as a Pendicle thereof , it cannot be understood exclusive , of the other two Third Parts of the same Barony ; likeas Reiris hath the same Clause in his Infeftment : and albeit Earls-halls Clause be not so express , yet it not being the common Clause in the Tenendas cum piscationibus , but in the Dispositive Clause of this special Tenor , it must needs comprehend Salmond Fishing , or otherwise it would have no Effect , verba autem interpretanda sunt cum effectu , and albeit the Clause were dubious , yet it hath been in long possession , Immemorial , which sufficiently Instructs the Accustomed Fishing to have been before the same . 2ly , As to the Anteriority of the Pursuers Infeftment , the Defenders offers to prove that his Predecessor was Infeft before him , with this Clause that is in his own Infeftment produced . 3ly , Albeit the Defenders Right were Posterior , yet it is sufficient to give him a Joint Right to the Salmond Fishing , with the Pursuer , because he offers him to prove that he hath fourty years peaceably Possest the Salmond Fishing as the Pursuer hath , when ever they were in the River .

The Lords found that the Clause in the Defenders Infeftment , albeit it had been prior to the Pursuers , could not give Right to the Salmond Fishing in prejudice of the Pursuers expresse Infeftment of Salmond Fishing , unlesse the Defenders Infeftment had been clede with Immemorial , and fourty years peaceable Possession , which being so alleadged by the Defender , the Pursuer offered to prove Interruption , and therefore a Term was granted to either Party to prove .

Mr. Iohn Elies contra Wishart and Keith , Eodem die .

MAster Iohn Elies having Inhibit Elizabeth Keith his Debitor , she did thereafter acquire a Wodset of certain Lands within the Shire , where the Inhibition was published , and thereafter upon payment of part of the Sums , the Wodset Right was Renunced pro tanto , and the rest being Consigned , there is now a Process of Declarator of Redemption , wherein Mr. Iohn Elies Compears , and produces a Declarator at his Instance for declaring the Sums of the Wodset to belong to him , and alleadges no Declarator of Redemption till the whole Sums contained in the Wodset Consigned be given up to him , without respect of the payment or Renunciation of a part , because it being done after his Inhibition , it was null , and so is craved to be declared by his Declarator ; It was answered ; First , That Inhibitions can reach no further then to the Lands the Person Inhibit had the time of the Inhibition , but not unto Lands he should happen to acquire after the Inhibition , because the Inhibition bearing , that the person Inhibit should not Sell or Alienat to the prejudice of the User of the Inhibition , albeit she should Sell what thereafter he acquired , the User of the Inhibition were in no other case , then when the same was published , the Land being both gotten and gone thereafter ; and if that were the effect of Inhibitions , every provident person would Publish and Registrat them in all the shires of the Kingdom , because they can only reach Lands lying in the shire where they are Registrated , which was never done , neither was it ever Decided , that Inhibitions reached Lands acquired thereafter . 2ly , Inhibitions can never hinder persons , having Right of Reversion , to pay the Sums , and the Wodsetter to Renunce , because Inhibitions only Restrain , Debar , and Inhibit to Sell , &c. But doth not hinder him to pay his Debt ; or upon payment of the Wodset Sums , to Discharge the Sums , and Renunce the Lands , these being Deeds necessar , to which he might be compelled , and if this hold , no man might saflie pay an Heretable Band , having Infeftment of Annualrent , without searching the Registes , which the most cautious man never did , and for this alleadged the expresse Opinion of Craig , that Inhibitions hinder not Discharges of Heretable Sums , or Renunciations of Wodsets . It was answered , that Inhibitions are personal Prohibitions , Restraining the Person Inhibit , and the Leiges to Alienat , Buy , or Sell any Lands in prejudice of the User of the Inhibition , and until he be satisfied of the Ground thereof . Which Prohibition respecteth the Person Inhibit directly , and the Lands ; but indirectly as they belong to him , so that there is no difference whether they belonged to him before or after ; for hoc ipso that they are his , they fall under the restraint : and the alienation thereof , is to the prejudice of the User of the Inhibition , because if they were not Sold , they might Appryze the same , so that , albeit he be not in worse case then he was the time of the Inhibition , yet he is in worse case then he would be , if the Land had not been sold : And albeit upon uncertainty men will not Registrat Inhibitions through all the Kingdom , that infers not but they might , and that they would be effectual to Lands thereafter acquired in these shires , neither is there any ground to except the Renuncing of Wodsets , which are Alienations of the Wodset Lands , but the Redeemer , before he declare , or deliver the Money , and take Renunciation , he ought to search the Registers , and to call these persons who have used Inhibitions for their Interests .

The Lords found that Inhibitions reached to Lands acquired after the Inhibition , but were not clear that Inhibition hindred Renunciations of Wodsets , but superceeded to give answer to that Point till the first of June .

Laird of Dury contra Anna Gibson , Feb. 28. 1667.

UMquhil Sir Alexander Gibson of Dury having given Bond to his three Daughters , for twenty thousand Merks of portion a Piece , and in case of Decease of any of them , her Portion to belong to his Heir-male ; but upon the Margent there is added , that the Portion of the Deceasing should accresce to the Survivers . This Dury , Brother and Heir-male , pursues Reduction , and Improbation of this Bond , in so far as concerns the Marginal addition , upon these grounds , that the samine was not Subscribed before the Witnesses insert in the Bond , nor insert at that time : And that it is written by another Hand , then his that wrote the body of the Bond. And that it is contrair to the substitution of the body of the Bond. And that albeit the writer of the body be insert in the Bond , and that the Bond bears , that the Date and Witnesses are insert by Dury himself , yet it does not bear that he insert the Marginal addition , which is of greater importance . It was answered , that Bonds being Subscribed before Witness●s their Testimony reaches not only to the Subscription on the foot , but to the Subscription of joyning the Sheets , and whole Marginal additions , which are as valide as any part of the body , unless it were positively proven by the Witnesses that they remember that there was no addition on the Margent when they Subscribed ; and albeit the Marginal addition be of another Hand , it is offered to be proven that it is the Hand-writing of Dury himself , who insert the Date and Witnesses , which is more Solemn then any other writer , especially seing the writer was not present , or witness , but only drew the draught of the Bond ; and albeit he mentions not the inserting of the Marginal addition , but only the inserting of Date and Witnesses that has been , because of the ordinar Stile of Bonds , whereof the Date and Witnesses are filled in by another Hand , not being ordinar for these to write Marginal additions ; and as for the importance , or contrariety of the Margent to the Body , that is most ordinar , especially where the body is but a draught drawen by another Hand , who has erred in his intention in the Substitution ; it was answered for the Pursuer , that albeit the Marginal addition should be proven to be Holograph , yet unless it were proven to have been truely written , and subscribed at the Date of the Bond. It cannot prove that it is of the same Date , or of any Date before the Defunct was on Death-bed , and so it is null , and cannot prejudge the Pursuer as Heir , especially seing the Defunct having then no Sons , might probably adject this in favours of his Daughters , contrair his former Intention , which if it should take effect , would ruine the Heir-male .

The Lords having taken the Deposition of the Witnesses insert , and both Deponing that they did not remember whether the Marginal addition was upon the Bond when it was Subscribed or no , and that it did appear by inspection , that the Marginal addition was by another Hand then that that wrote the body , and that it was not mentioned at the conclusion , where the Defunct exprest , that he himself was Filler up of the Date and Witnesses , and nothing was adduced to astruct that it was of a true Date before his taking Bed . Vpon all these considerations joyntly , the Lords found that the Marginal addition was not of the Date of the Bond , and that having no Date of it self , it was not instructed to have been done before the Defunct was on Death-bed , and so was null as to the Heir : but the Lords did not find that these alleadgeances severally could have derogat to the Marginal addition , but only that all joyntly was sufficient , the matter being also accorded amongst the Parties .

Antrobus contra William Anderson Provost of Glasgow , Iune , 13. 1667.

WIlliam Antrobus having Caption against Iohn Herbertson in Glasgow , the Messenger having therewith taken Herbertson in his own House , and having required William Anderson present Provost to Concur and put him in Prison , and he refusing , pursues now the Provost for payment of the Debt . The Defender alleadged , first , that the Lybel was not relevant , because it did not subsume that the Rebel was showen to the Defender ; 2ly , The Defender was required at an unlawful time , being betwixt eleven and twelve at night ; 3ly , The Defender offered the concourse of the Town Officers ; 4ly , The Army being come to Glasgow that night , the Provost was taken up at the time he was required , with the ordering of their Quarters , which being a publick Service of greater Importance : he offering of the Officers was sufficient ; 5ly , This subsidiary Action being but for the Pursuers damnage , he can pretend none , because the Rebel was Bankrupt , and insolvent long before , and he was Incarcerat within some few dayes , where he remained a long time , during which , the Pursuer might have Arrested him ; and the Defender yet offers to put him in Prison in as good case as he then was . The Pursuer answered that his Lybel was most Relevant , because the Letters being directed to Provost and Bailies of Burghs ; and if they be required , albeit the Rebel be not in their sight , they must go with the User thereof , to any place within their Jurisdiction , which they must do in their own persons , and it will not be sufficient to send their Officers , and as to the time of requiring , any time that men do use to go about their Affairs is sufficient , and the Defender was required between seven and eight at night , and albeit it had been later , that the Defender might be excusable not to come out of his own House to search , yet here he was in the same house with the Rebel , and in the next Room to him , and heard the noise of these that deforced the Messenger , which was done by the Towns Officers ; neither can any pretence of Ordering of Quarters , stop the Execution of the Kings Letters , which might have been done with so little diversion , and the Quarters might have been Ordered by the Baillies .

The Lords found the Libel Relevant , but found the Defenses joyntly also Relevant , viz. The Ordering of the Quarters of the Army , the Ordering of the Officers , and the offer now to put the Rebel in Prison , in as good case , and the time of night .

Harner contra Haitly , Eodem die .

HArner pursues Haitly as representing her Husband , for proving the Tenor of her Contract of Marriage , who alleadged no Process because there was no Adminicle produced in write , which was most necessar in any Case , but especially in this Case , where the Tenor of the Contract was extraordinar , Constituting the one half of the Fee of the Husbands Estate to the Wifes Heirs , failzing the Heirs of the Marriage . The Pursuer answered , that albeit Adminicles in Writ were ordinarly required , especially in Writs that use to be taken away by Redelivery , or Cancelling ; as Bonds , &c. Yet the intent of Adminicles , is to render it probable that such a Writ was , and thereby to give ground to admit Witnesses to prove , rei gestae veritatem : But here there was as strong grounds of probability , there being a Marriage of a Landed Man , and the Copy of the Contract taken of the Writer thereof , Iohn Nicol , his Style Book , he and his Servants being Witnesses , who are yet alive , and the Tenor offered to be proven by them ; whereas other Tenors use to be proven by Witnesses that saw the Writ though they were not the Witnesses insert . Likeas the Husband having taken the Right of an Infeftment , for a sum , payable to him and his Wife , and the Heirs betwixt them ; which failzing , to his Heirs , he took a Ratification thereof , from the Pursuer which could have no intent , if in case of failzie of Heirs of the Marriage , the half had not been appointed to return to her Heirs . Likeas , it is offered to be proven by Witnesses , that the Husband acknowledged that he had the Contract in custody from his Wife . The Defender answered , that our Law had rejected Probation by Witnesses , in matters of Importance , and therefore Tenors are only Sustained , when their Probation is partly by Writ , and partly by Witnesses , neither is any other probability sufficient : and it is offered to be proven , that the Husband Infeft his Wife in his Houses , of a considerable value , without any mention of a Contract of Marriage .

The Lords refused to sustain the Libel without Adminicles in Writ , and assoilz●ed , albeit it was also offered to be proven , that the Husbands whole means came by the Wife .

Patrick Wat contra William Halyburton . Iune 14. 1667.

PAtrick Wat as Assigney by Adam Wat his Father , to a Disposition granted by umquhil Halyburton to him , pursues William Halyburton , as Representing him , to fulfil that part of the Disposition , obliging him to procure the Pursuers Father Infeft ; and for that effect , that the Defender should Infeft himself , and grant Procuratory of Resignation , for Infefting the pursuer . It was alleadged for the Defender , that he was not obliged to Infeft the Pursuer , because it was his Fathers fault he was not Infeft , seing he had received Procuratory of Resignation , and Precept of Seasine , with which he might have Infeft himself ; and though the Granter , and he the Receiver , lived for twelve or fifteen years thereafter , he was negligent . 2ly , Though the Defender were obliged to Enter , and Denude himself ; yet it must be the Pursuer finding Caution to warrand and relieve him of the hazard of the Ward and Marriage , because the Lands in question being Ward through the Pursuers Authors fault , the Defenders Marriage will fall . 3ly , The Defenders Fathers Name was only borrowed by Hallyburton of Egles-cairn , who acquired the Rights blank ; and filled up the Defenders Fathers Name therein , and moved him to Dispone .

The Lords Repelled these Defenses , but Reserved to the Defender to pursue Damnage and interest , for any hazard occurred by Adam Wats fault , as being more proper against his Heir , than against the Pursuer his second Son .

Mr. Heugh Gray contra Forbes Minister of Innerkeithing , and Tennents of Nether-Horseburgh . Iune 15. 1667.

THe Tennents of Nether-horseburgh having Suspended these two Ministers upon double Poynding , they alleadged they had made payment , bona fide , of their Rents conform to their Tacks . It was answered , that they were called to Mr. Heugh Grays Decreet in anno 1656. and Charged thereupon thereafter the same year , which did put them in mala fide . It was answered , that there having nothing followed upon the Charge , but the Charger being silent for fifteen years , the Tennents favore rusticitatis , cannot be thought to continue in mala fide all that time , to infer double payment , else it might continue for fourty years . It was answered once in mala fide , ay in mala fide , and that thir Tennents did still remember and suspect the Pursuers Right appears because they took Discharges , bearing warrandice of the same .

The Lords ordained the Defenders to produce their Discharges , that the warrandice might appear , being loth to decern the Tennents in double payment , if the Charge could have access to the other Minister , or his Representatives .

It was alleadged for the present Incumbent of Innerkeithing , that in a former double Poynding , raised by the Tennents , he was preferred to the Cropt 1665. and in time coming . It was answered , that the said Decreet was in absence of Mr. Heugh Gray ; and that it was null without Probation , for there was nothing produced for the Minister of Innerkeithing , but his Presentation and Collation , which were but meerly general , and nothing produced to Instruct , that their Teinds were of his Paroch , or within his Benefice . It was answered , that he was secured by the Act of Parliament anent Decreets of double Poynding .

The Lords found that what the Minister of Innerkeithing , had uplifted , by vertue of that preference , the Act of Parliament would secure him thereanent , but found he had no Right as to the future .

Iohnstoun contra Cuninghame . Iune 19. 1667.

JAmes Iohnstoun as Assigney by William Iohnstoun , to a Bond granted by Iames Cuninghame , Charges him thereon : he Suspends upon this Reason , that the Bond bears the sum borrowed from William Iohnstoun and his Spouse , and payable to them , the longest liver of them two , and their Heirs , there being no Children betwixt them , the one half must belong to the Heirs of the Wife , to whom the Suspender is Curator , and which he ought to retain for their use : and albeit in such Clauses in Rights of Land , or Heretage , potior est conditio masculi : yet it is not so in Rights Moveable , and this Bond is moveable , being after the Act of Parliament 1641. which was so found in a Practique produced , observed by Dury , where the Wife by her Contract of Marriage , Disponing her Goods and Debts to her Husband , her self ; and their Heirs , the same was found to divide betwixt the Husbands and the Wifes Heirs . It was answered , that here the Bond bore Annualrent , and so was Heretable , quod fiscum & relictam and there being nothing to evidence that the sum was the Wifes own Means , the same is presumed to be the Husbands : and the taking of a Bond of this Tenor , if it did import to give her the half , is a Donation by a Husband to his Wife Revockable , and now Revocked .

The Lords found that the Wifes Heirs had no interest in the Sum.

Iohn Watson contra Feuers of Dunkennan Iune 21. 1667.

JOhn Watson being Superiour of a number of Tenements and Roads about the Town of Kirkaldie , pursues a Declarator against the Vailals , to hear and see it found and declared , that he might Rive and Plough the Muire of Dunkennan , leaving as much of the Muire as would be sufficient , and convenient for the use of the Vassals● their Roads and Tenements , for Fail and Devot , Clay and Stone , to the use foresaid . It was alleadged for the Feuars , that they had raised a Declarator of the Right of their Servitude , through the bounds of the Muire , which they repeated by way of Defense , and alleadged that wherever a Servitude was Constitute it affected the praedium serviens wholly , and every part thereof , capable of the Servitude , and could not be restricted without the consent of the Parties , having Right of the Servitude , as if any person had Right of Pasturage , albeit limited to so many Goods , or to the Goods of such Land , which is the praedium dominans , beyond which it could not be reached ; a Declarator of this Nature would never be sustained , to astrict him to a portion of the Muire , that would be sufficient for the Goods of that Town , or of that number ; or if he were Infeft with the liberty of Feuel , though there were two M●●sses , that could not be exhausted within the bounds he could not be restricted to the one , so here the Vassals being Infeft with the priviledge of Fail ; in this Muire , they may take it out of any place of the Muire they please , and can be restricted to no particular place . It was answered that this Servitude being limited to the use of the Roads , and Houses , could not be thought to be so Constitute , as to make useless the whole Property of the Muire , the Pasturage whereof is worth nothing , and the only use is , Lyming and Labouring , that it was hurtful to the common utility , and improvement of Land , so to extend such a Servitude , and that if there were a Servitude of a way through the Constituents Ground , it would not import a Liberty to make as many ways as could be made through the Ground : or to change the way at the Dominants pleasure . It was answered , that the nature of the Servitude of a way or passage , is ordinarly limited by Bounds , and is always understood to be one way , as is most convenient for the Dominant , which having chosen , he cannot thereafter change ; but it is not so in the Servitudes of Feuel , Fail , or Devot ; neither can the consideration of publick Utility , or that the Defenders have no detriment warrand , the Lords to take from him his Right , or to limit it without his Consent , which were only proper for a Parliament , having not only the Judicative , but also the Legislative Authority , and the Rights and Securities of Parties , should not be lyable to conjecture , or arbitriment upon the supposition of conveniency , but should be fully enjoyed according to Law .

The Lords found that this Servitude might be astricted to a part of the Muire , which might be beyond all question sufficient for the use , and with this quality , in case it failzied , they might return to that which was Laboured , which behoved to be l●ft lye , as far as would be sufficient .

Hay of Strowy contra Feuers . Iune 22. 1667.

HAy of Strowy being Infeft in the Miln of Strowy , and having lately built a Walk-miln , and made a new Dam-head therefore , over that Burn , which is the March betwixt him and the Feuers , thereupon the Feuers demolished the Miln and the Dam. He now pursues the Feuers to hear and see it found and declared , that he has Right to enjoy the Walk-miln and Dam , and that they did wrong at their own ha●d , to demolish the same . It was alleadged for the Feuers , and the Laird or Ketr , their Superiour , Absolvitor , because the building of this Miln , being novum ●pus , they might lawfully stop the same , and might demolish the Dam , the end thereof being fixed upon their Ground , without their consent . The Pursuer answered ; First Albeit the Defenders might have impeded while the work was doing , yet they● could not after the Walk-miln was a going Miln , demolish the Miln , or Dam thereof , via facti , albeit they might have used civil Interruption , and stopped it , via jur● , because its a known and common custom , that a going Miln cannot be stopt summarly , being an Instrument of Service for common good . 2ly , The Defenders could have no detriment by putting over the Dam , because it was a Precipice at their side , to which the Dam was jo●●n●d , so that they had no detriment , either as to the Inundation of their Ground , or Watering . The Defenders answered , that cui libet licet uti re●uâ ad libitum and they were not obliged to Dispute , whether they had Damnage or not , but might cast down the Dam built on their Ground , unlesse their consent had been obtained ; and that there is no Law nor Decision for such a priviledge of Milns , neither was it ever extended to Walk-milns .

The Lords found the Defenders might hinder the Building of a Dam● upon their Ground , without necessity , to alleadge detriment ; but they found if the Walk-miln was a going Miln fourty eight hours● that the Defenders could not brevi manu , without the Authority of a Iudge demolish the Dam or Miln .

Mr. David Deuar contra Paterson . Iune 26. 1667.

MR. David Deuar pursues a Transferrence of a Compt and Reckoning which formerly was depending betwixt him and umquhil Henry Paterson , and craves it may be Transferred against Henry the Heir , and proceed where it left . It was alleadged for the Defender , absolvitor , because the Citation was given before year and day , after the Defuncts death , contrary to the Defenders priviledge of his annus delibera●di , by which he hath inducias legales , and cannot be forced to own or repudiat the Heretage . The Pursuer answered ; First , That annus deliberandi is only competent , where the appearand Heir is Charged to enter Heir , and so must either Enter or Renunce● and so has no place in Reductions , or Actions Declaratory , or real Actions , which may proceed against the appearand Heir , without a Charge . The Defender answered , that albeit the annus deliberandi , be most ordinary in such Cases , yet it is not limited thereto , but must take place also in all Cases , where the reason of the Law holds , viz. where the Defender must be either absent , and suffer Sentence ; or if he compear , must found himself upon the Defuncts Right , and so behave himself as Heir , as in this case , the Defender cannot alleadge Articles of Deduction or Discharge , but upon the Defuncts Right ; for finding out of which Right , the Law giveth him a year to inquire , and use Exhibitions , ad deliberandum ne incidat in damnosam haereditatem ; and therefore during that year , he cannot be prest contestare litem .

The Lords sustained the Defense .

It was further alleadged by the Pursuer , that now the annus deliberandi was past . It was Duplyed for the Defender , that albeit it was now past , the Citation was used within the year , so that that Citation cannot be sustained .

The Lords refused to sustain the Citation , and found no Process till a new Citation ; but here the day of compearance filled in the S●mmons , was also within the year , which if it had been after the year , us like the Summons would have been sustained , especially , seing the Decision of this case extending the year of Deliberation , to Declaratorie Actions in Custom had not occurred , nor been decided .

Minister of Dalrymple contra Earl of Cassils . Iune 27. 1667.

THe Minister of Dalrymple having Charged the Earl of Cassils for his Stipend , he Suspends on this Reason , that he offered payment of the Bolls in the Ministers Decreet , conform to Linlithgow Measure , which was the common Measure of Scotland , by the Act of Parliament , and is by Act of Parliament , the measure of Ministers Stipends . It was answered , that the Ministers Decreet of Locality , was indefinit , and mentioned no measure , the meaning thereof was sufficiently cleared , because it was offered to be proven by the Earls Oath , that he payed ever since the Decreet of Locality , being 15 years , conform to the measure of Air , and that he knew it was the common Custom of that Countrey , to pay all Ministers with that measure . The Suspender answered , that his use of payment , either by mistake ; or benevolence of more then what he was due , could not oblige him to the future , especially where the Minister did not found upon his decennalis & triennalis possessio ; but upon a Decreet of Locality , wherein , though the measure be indefinit , it cannot be understood to be any other measure , then the common measure of Scotland , seeing the Act of Parliament anent Ministers Provisions , bears expresly , that they shall have eight Chalders of Victual , Linlithgow measure .

The Lords having considered the Decreet of Locality , and that it did not extend to eight Chalders of Victual , but to three Chalders of Victual , and 400 pounds , which is the rate of four Chalders of Victual , at 100 pounds the Chalder , as is ordinarly Rated by the Commission in that place of the Countrey , they found the use of payment and common Custom of the Countrey , sufficient to declare it to be the measure of Air , seing by that measure , it would not come up to eight Chalders of Victual .

Mr. Iames Dowglas contra William Leisk , Iune 28. 1667.

MR. Iames Dowglas , as Donatar to the Liferent Escheat of William Leisk , pursues a special Declarator , against the Tennents , for Mails and Duties . It was alleadged for William Leisk , that the Lands in question were Appryzed from William Leisk the Rebel , and the Superiour granter of this Gift , Charged to Infeft the Appryzer long before the Rebellion ; to which appryzing William Leisk has Right , during his Life , so that the Charge being equivalent to an Infeftment as to the time , and to the anteriority of the Infeftment , and by drawing it back to the Charge , doth prefer the Appryzer from the time of the Charge : It was alleadged for the Donatar , that albeit a Charge against the Superiour , be equivalent to an Infeftment in some cases : Yet in other things it is not equivalent , as it is not a Right sufficient for the Appryzer to Remove Tennents ; and therefore the Vassal is not denuded thereby , otherwise the Superiour could have no Casuality after such a Charge , because the Appryzer not being Infeft , his Liferent could not fall . It was answered for the Defender , that albeit this consequence should follow , it is the Superiours own fault , that did not receive the Appryzer . It was answered , non constat , it was his fault , for he might have just reason to Suspend ; and albeit it were his fault , the Law hath not determined this to be his Penalty , to lose his Casualities .

The Lords Repelled the Defense , and found the charge on the Appryzing did not denude the former Vassal , but his Liferent fell , and affected the Ground .

Sir Alexander Hume contra Creditors of Kello . Eodem die .

SIr Alexander Hume being Donator to the Forefaulture of Iohn Hume of Kello , did obtain a Warrand for Retouring the said Iohn five years in Possession of certain Lands , before the Forefaulture , but the Inquest served Negative● and now he pursues a Reduction of the Retour , on this Reason , that it is contrary the Testimonies of the Witnesses adduced . It was alleadged no Process , because the Reduction of Retours is only competent by a Summons of Error , in Latin , under the quarter Seal . It was answered , that is only in the Case where the Assizers are insisted against for their Error , and the constant Custome of the Lords has been to sustain a Summons of Reduction before themselves of this method .

The Lords sustained the Defense , and refused Process , albeit it was known to them , that the Custom has been contrary of a long time before .

Sir Iohn St. clair contra Iohn Cowper . Iuly 2. 1667.

UMquhil Mr. Iohn Rae having two sisters , and Heirs portioners , the one married to Robert St clair , and the other to umquhil Alexander Cowper , the said Alexander and his Spouse , as Heir portioner , assigns to Robert St. clair , a number of her Brothers Bands : And likewise , as Heir , assigns him to the Maills and Duties of a Tenement of Mr. Iohn's for such Terms , and in time coming . Sir Iohn St. clair , having appryzed Robert St. clairs Right , pursues Iohn Cowper as Representing his Father , to hear it declared , that this perpetual assignation to the Mails and Duties , did import an absolute Disposition of the Lands , and did carry in consequence an obligment , and all things to make the Disposition effectual , and so to renew it into a legal Form , containing a Procuratory and Precept . The Defender alleadged absolvitor , because his Father had granted no Disposition , but only an Assignation , and so the Defender could be obliged to do no further . The Pursuer answered , that this assignation behoved to be understood , cum effectu , and to be done to denude the Granter , and to settle the Right of the Duties in the Purchaser , and therefore , whosoever gives the Right gives all necessaries in his power to accomplish it , and the Informality of a Clerk , ought not to Evacuat the Pursuers Right .

The Lords sustained the Process , and found this Right to import a perpetual Disposition .

George Allan contra Fairie . Eodem die .

GEorge Allan pursues Reduction of a Disposition , granted by him to Fairie , upon the Reason of Circumvention , in so far as the Disposition , though it was conceived absolute ; Yet it was expresly Communed , that it should contain a Reversion , and was Read as containing a Reversion at the Subscribing thereof , which was offered to be proven by the Wryter and Witnesses insert . The Defender answered , that the Reason was only probable Scripto vel juramento , and so solemn a Writ , could not be taken away by Witnesses . The Pursuer answered , that the Writer and Witnesses insert , were most competent to prove a Point in facto , viz. the fraudulent Reading of that which was not contained ; and there is here also produced an antecedent Adminicle in Writ , to grant a Right Redeemable .

The Lords before answer , ordained the Writer and Witnesses insert , to be examined anent the Terms of the Treaty , and whether the Disposition was Read at the Subscrybing , as an absolute or redeemable Disposition .

William Litster contra Aitoun and Sleich● Eodem die .

WIlliam Litster having Arrested his Debitors Rent on the fifth of Aprile 1665 he thereupon obtained Decreet for making forthcoming in Iuly 1666. which being Suspended ; conpearance is made for Sleich , who had Right to several Appryzings of the Lands , which were deduced befo●e the Terms of payment of the Rent , and craved preference to the Arrester● because his Arrestment was before the Term , and the time of the Arrestment , there was nothing due , and also before the Term the Debitor was denuded by an Appryzing , whereupon Infeftment followed , in Decemb. thereafter , and must be drawn back , ad suam ●ausam , to the Appryzing . The Arrester answered , that his Arrestment was valid , being laid on c●rrente termino , for the next ensuing Term , at least as hath been oft times decided by the Lords , and is now their constant practice : And as for the Appryzing before Infeftment , albeit it will carry the Mails and Duties , yet it is an incompleat Right , and hath only the effect of a Judicial Assignation or Disposition , so that the Competition being betwixt an Assigney , viz. an Appryzer and the Arrester , the Arrestment being prior , is preferable to any Assignation : Neither can the Infeftment on the Appryzing , after the Term , give any Right to the Rent , prior to the Infeftment , but the Right thereto is by the Appryzing , which is but an naked Assignation .

The Lords preferred the Arrester .

Lord Blantyre contra Wakinshaw . Eodem die .

THe Lord Blantire pursues a Reduction of a Bond , as being granted in his Minority . It was alleadged for Wakinshaw , assigney to the Bond , absolvitor , because there was no Process intented against him intra annos utiles , till the Pursuer was past twenty five years . It was answered , that the Defenders Cedent was Cited , to whom the Bond was granted , and this Defenders Right will fall in consequence , and there was no necessity to Cite him in the same way , that the Service of an heir may be reduced , without Calling of his Creditors , or these that are Infeft by him .

The Defender answered that his Assignation was Intimat before the Citation against his Cedent , which cannot be miskenned by the Pursuer , to whom the Intimation was made , after which the Cedent had no Right , and any Citation against him was of no moment , neither is the Case alike to the Reduction of a Retour , wherein the Reducer doth neither know nor is obliged to know the Creditors Rights .

The Lords found that the Assigney , after the Intimation , behoved to be Cited intra annos utiles ; but they sustained Improvation against the Citation , made against the Assigney by way of Defense . In this case it was not urged , whether the Intimation was personal to the Pursuer , or only at his dwelling House ? Or whether it was Recent before the Citation ; for if it were not Personal , or Recent , it were hard to oblige the Pursuer to remember so transcient an Act , as an Intimation .

It was furder alleadged by the Defender , that there was no Lesion ; because he offered him to prove , that the sum was delivered to the Minors Curators , at least to the Minor and his Curators joyntly , who being persons abundantly solvendo , and very provident , the Minor could have no Lesion , seing they were comptable . It was answered non Relevat , unless it were alleadged positive , that the sum were utiliser impensum , for the Minors profit ; for the Minor has his option , either to pursue the Curators , as intrometting , or to Reduce hi● Obligation , and the Curators not being in this Process , no Probation of the delivery of Money to them will bind them , but there were necessity , that they were both Cited , and it instructed by Writ .

The Lords Repelled this Defense , but severals inclined not to sustain Processe , till the Cura●ors were first Discust : And whether the Minor was laesed or not .

Mr. Roger Hogg , and other Creditors of Wauchtoun contra Countess of Hume . Iuly 3. 1667.

IN an Incident pursued by the Creditors of Wauchtoun , against the Countess of Hume . It was alleadged for the Countess , that the Incident as to several of the Creditors , could not be sustained ; and likewise could not be sustained against several of the Havers ; because as to these , the Incident was without Warrand , their Names not being contained in the Bill at the Signet . It was answered , the Bill contained several Names and a blank for others , which is a sufficient Warrand for the Raisers of the Incident , to insert whom they please . It was answered , that Incidents being odious , strict form should be observed , in relation to them , so that a new Pursuer cannot be supplyed by the blank , who did not supplicat by the Bill , and alleadged a Decision the last Session , where it was so found in an Incident , at the Instance of the Feuers of Coldinghame against the Lord Justice Clerk .

The Lords sustained not the Incident as to any of the Pursuers thereof , whose Names were not in the Bill , but sustained the same against any of the Havers , albeit their Names was not contained in the Bill , it being ordinar to get Summons upon Bills , upon such persons named , and others wherein the persons Names insert , are alwayes sustained ; but it is not so in the Pursuers : and yet this would hardly been sustained in another Case then an Incident , which is unfavourable :

Cumming of Alter contra Lumsden . Iuly 4. 1667.

CVmming of Alter having set a Salmond Fishing to Alexander Lumsden , for payment of 60 pounds Scots of Tack-duty ; he pursues Matthew Lumsden , as intrometter with the Fish , taken for the Tack duty , as having an Hypotheck upon the Profits for the Rent . It was alleadged for the Defender , Absolvitor , because he intrometted with these Fish , as Donatar to Alexander Lumsden's Escheat , at least having now the Right of the Escheat , he was not lyable for that priviledge , preferring Masters of the Ground , for the Rent cannot take place against the King and his Donatar , who is more priviledged .

The Lords Repelled the Defense , and found the Donatar lyable for the Rent , in so far as ilk years intromission would extend to the Rent of that year .

George Schine contra Iames Christie . Eodem die .

GEorge Schine having Adjudged an Annualrent , and having Charged Iames Christie his Superiour , to receive him ; He Suspends and alleadges he had Appryzed the same Lands before , and that his Author was only Infeft base , never cled with Possession .

The Lords Repelled the Defense , hoc loco , and ordained him to Infeft , Reserving his own Right as accords .

Schaw contra Tennents . Eodem die .

SChaw pursues certain Tennents for their Duties , who produced several Discharges , against which it was alleadged , that the Discharges were null , wanting Witnesses , and were not Written with the Dischargers own hand , and so were null by the Act of Parliament . It was answered , that Custome had introduced several exceptions from that Act , as Bills of Exchange , of the greatest importance , which are valid , being Subscribed without Witnesses , albeit not holograph : And in like manner the Discharges granted to Tennents , which by long Custom , through all the Kingdom , use only to be subscribed by the Landlords , without Witnesses , and writen with another hand .

The Lords sustained the Discharges , and would not put the Tennents to prove , that they were truely subscribed , unless they were offered to be improven ; in which case , though the indirect manner was wanting , they might be improven , by comparison of Subscriptions , and other Adminicles , wherein less would serve , then in other Improbations .

Sir Henry Hume and other the Creditors of Kello contra Sir . Alexander Hume . Iuly 6. 1667.

SIr Henry Hume and others , being both Creditors to Alexander Hume of Kello : And Iohn Hume his Son Appryzed the Lands of Kello in anno 1649. And in anno 1653. Charged the Superior in anno 1661. Iohn Hume is Forefault upon the Treasonable Crimes committed in anno 1651. Sir Alexander Hume is Donatar to the Foresaulture ; the case of Alexander Humes Right before the Appryzing was , that by Contract of Marriage , Alexander Hume had Disponed several Husband Lands to Iohn , reserving his own Liferent of certain Husband Lands . The Father continued to possesse the Lands Reserved ; and the Son of the rest . The Question is now concerning the Lands Reserved , whereanent the Competition is betwixt the Creditors Appryzers and the Donatar . It was alleadged for the Donatar , that he ought to be preferred ; because any Right the Creditors had , is but an Appryzing , and a Charge without Infeftment ; which Charge , albeit it be equivalent to an Infeftment , in the Competition betwixt Con-compryzers : yet it is no way equivalent , as to the King ; for after the Charge , all Casualities of the Superiority , would fall to the Superior , and so must the Casuality of Forefaulture , fall to the King . 2ly , Though the Appryzers had been Infeft , when they Charged their Infeftment , would have been long after the committing of the Crime ; and there was nothing before the Crime , but the naked Appryzing , which was no real Right ; so that the Forefaulture , devolving the Fee to the King , with the burden only of such real Rights , as the Superiour had consented to before the Cryme , which cannot extend to this Appryzing , which is no real Right , or to the Charge and Infeftment thereon ; because after the Crime . 3ly , Albeit the Infeftment of the Son , who was Forefault , was base , holden of the Father ; yet it coming in the Person of the King , or his Donatar , can no more be a base Right , but becomes publick , so soon as it is devolved to the King , which was at the committing of the Crime , before the Appryzers Infeftment , or Charge . It was answered for the Creditors , that they ought to be preferred upon their legal Diligence , for satisfaction of the lawful Debt , contracted before the Crime ; because they had Appryzed before the Crime , and had Charged the Superiour before the Sentence of Forefaulture : Which Charge is equivalent to an Infeftment , and the King succeeding in the place of the Forefault Person uti●ur jure privato ; and albeit no● voluntar Deed , after the Committing of the Crime , would be effectual against the King , or his Donatar : Yet an Appryzing before the Crime , and a Charge before the Sentence , or Process of Forefaulture , is sufficient in favours of the Creditors ; especially seing the Superiority being unquestionably in their Father , they might Charge him when they pleased , and having Charged him , they become in his place , and cannot Charge themselves as Superiours of the Forefault Person .

The Lords preferred the Appryzers in respect of their Appryzing before the Crime , and the Charge after , before the Forefaulture .

It was further alleadged for the Appryzers , that the forefault Persons Right being only base , never cled with Possession , their Appryzing against the Father , who was not forefault , was preferable . It was answered for the Donatar , that the Forefault Persons Right was cled with Possession , in so far as the Forefault Person possest a great part of the Lands Disponed ▪ lying all together , and of the rest , the Fathers liferent being reserved the Fathers Possession was the Sons Possession . It was answered , that Possession of a part , cannot be sufficient for the whole , where there is an express Reservation , hindering the Natural Possession of the rest ; and where the rest are actually possest by another Party , neither can the Fathers Possession be the Sons ; because it is ordinarly found , that Dispositions by a Father to his eldest Son , and Infeftments thereon , reserving the Fathers Liferent , are not thereby cled with Possession . And albeit in Reservations in favours of Wives , the Husbands Possession be the Wifes Possession ; yet that is a special priviledge , favore matrimonij & dotis , and is not competent to any other . It was answered for the Donatar , that a Reservation in favours of a Father , in any gratuitous , and clandestine Infeftment granted to the Son , does not validate the same : yet the Infeftment being for a Cause onerous , viz. a Marriage , which is a solemn and publick Act , the Infeftment following thereupon , is void of all suspition of Simulation ; and as an Infeftment to a Stranger , reserving the Disponers Liferent ; would be valid by the Disponers Possession : So must a Sons upon a Contract of Marriage ; otherwise great prejudice will follow , Sons being frequently Infeft in their Fathers whole Estate , reserving their Liferent of a part , and ordinarly , but basely Infeft , to secure the Property , being more desirous to Enter themselves as Heirs to their Fathers , after their death , if no posterior prejudicial deeds be done , which is more honourable for the Family , all the Infeftments would be overthrown , being upon Debts contracted after the Infeftment .

The Lords being of different Iudgements in this Point , were loath to decide them , because the Case was decided by the former Vote .

Stevin contra Iohn Boid . Iuly 9. 1667.

IN a Tutor Compt at the Instance of Stevin , against Iohn Boid , these Queries were Reported by the Auditor , and determined by the Lords : 1. How soon a Tutor was obliged for Annualrent of the Defuncts Bonds , that bare no Annualrent .

The Lords found that the Tutor behoved to have a competent time to uplift and Re-imploy these Sums , for which they allowed him a year , and that he was lyable for Annualrent after that year .

2ly , How soon a Tutor was obliged to do Diligence to uplift his Pupils Means , so that if the Debitor became Irresponsable , the Tutor was lyable .

The Lords found that if the Pupils Sums were in the hands of Debitors , unquestionably Solvendo , the Tutor was not obliged to lift the same , unlesse the condition of some of the Debitors , or Cautioners , became worse , at which time he was obliged to do all Diligence for uplifting the sums , unlesse the Debitors became to be known , to be altogether broken upon a sudden , which he could not foresee .

3ly , What Diligence a Tutor was obliged to do , whether Horning was sufficient , or if Caption● Poynding and Appryzing , were necessary .

The Lords found that in different Cases , different Executions were requisite , viz. If the Debitor were known to have Lands appryzable , or Goods poyndable , or Sums arrestable , that the Tutor was obliged to do Diligence accordingly , and if not to use personal Execution .

4ly , Whether the Tutor should have allowance of such Sums as he payed without Sentence .

The Lords found such sums allowable , unless a competent Defense could now be proponed , which was known and probable to the Tutor , at the time of payment .

Iohn Watson contra Iames Law . Iuly 12. 1667.

JAmes Law having Disponed certain Lands to Iohn Watson , with absolute warrandice , and after the Disposition , there being a Designation of a part of the Land for Horse , and Kines Grasse , to the Minister , conform to the Act of Parliament 1661. Watson pursues for Warrandice upon that distresse . The Defender alleadged absolvitor , because the distresse is by a subsequent Law , falling after the Disposition . It was answered : first , That absolute Warrandice does even take place in the case of a subsequent Law , at least in so far as the Pursuer suffers detriment ; because if the Lands had continued , the Defenders had been so burdened ; and therefore is lyable in quantum lucratus est. 2ldy , This is no supervenient Law , because the Act of Parliament 1661 Is a Reviving of the Parliament 1649. which being Rescinded in the said Parliament 1661. By a posterior Act thereof , concerning Manses and Gleibs , is declared to be valid , as if it had been made in the year 1649. It was answered to the first , that nothing can infer Eviction , or Recourse , but that which had a Cause anterior to the Warrandice , unlesse it had been otherwise exprest : Nor is it any ground , that if the Disponer remained Heretor , he had been lyable , otherwise all other supervenient Burdens would Return , not only upon the Immediat , but upon all the Disponers ; but all such accidental Superveniencies , are upon the Purchasers hazard , as well as the Advantages are to his benefit . To the second , the time of this Disposition , the Parliament 1649 was Rescinded , and the new Act was not Enacted ; Neither by the new Act , is it declared to be effectual from the year 1649. As to the Horse and Kines Grasse , but only as to the Manse . It was answered , that was but a mistake of the Draught of the Act of Parliament , there being no Reason wherefore it should be drawn back as to Manses , more then to the rest ; but it was the meaning of the Act of Parliament , to Revive the former Act in all points . It was answered that the meaning of Acts of Parliament , may not be extended contrair to the words , neither can any thing be supplyed that is omitted in a Statutory Act.

The Lords found no Recourse upon the Distress arysing from the Act of Parliament 1661. and that the drawing back thereof being expresly , as to Manses , which is adjected as a limitation , could not be extended to the Ministers Grass , which is statute in a different way in this , then in the Act of Parliament 1649. From this the Heretors are only to pay twenty pounds of Money : and in the former , Lands were only to be designed ; therefore found , the Distress that being by a supervenient Law , that the Warrandice did not reach thereto .

Margaret Scot contra Sir Laurence Scot. Iuly 14. 1667.

SIr William Scot of Clerkingtoun , having granted Assignation to his Daughter Margaret Scot , of a Sum due by Wauchtoun : Pursues Sir Laurence his Son , as Haver , to deliver the same . It was alleadged for the Defender , that there was a Clause in the Assignation , reserving a power to Sir William , to alter and Dispone , during his Life , and that he did Assign this Bond to Iohn Scot. It was answered , that he took a Back-bond from Iohn Scot , bearing , that the Assignation was granted in Trust , to this effect only , that Iohn Scot should do diligence thereupon . It was answered , that the Back-bond bears Iohn Scot to be obliged to denude in favours of Sir William Scot , his Heirs and Assigneys , whereby the Assignation is altered . The Pursuer answered , that there appears nothing of the alteration of the Defuncts mind , more then if he had appryzed in his own name , whereby the Bond would have been adjudged to him , his Heirs and Assigneys , which is no more , then if an Assigney should use the name of the Cedent , which would no ways infer , that by adjudging Land to the Cedent and his Heirs , they pass from the Assignation .

The Lords found no alteration in the Pursuers Assignation by the Right made to John Scot in his Back-bond , which also bare the Right to John Scot , was made to do Diligence , and for no other end .

Mr. John Eleis contra Elizabeth Keith Mary Steuart and Keith . Iuly 16. 1667.

THis Cause at the Instance of Mr. Iohn Eleis against Keiths , being Dispute the twenty seventh of February last .

The Lords found Inhibitions to reach Lands Acquired after the Inhibition , but superceeded to give answer to that Point , whether the Inhibitions were to be extended to take away Renunciations of Wodset Lands , which being now Debated .

It was alleadged that an Inhibition could not hinder the Granter of a Wodset to pay his Debt , and accept of a Renunciation from the Person Inhibit , because a Renunciation is but a Discharge , and Inhibitions were never found to take away Discharges of Heretable Bonds , nor to hinder any Party to pay their Debt ; but on the contrair , It was an universal Custom over all the Kingdom , that Debtors should pay their Debts , and did accept Discharges , and Renunciations , without looking into the Registers , which hath been most frequent , not only in Wodsets , but mainly in Infeftments of Annualrent upon Heretable Bonds , which no man ever doubted to pay , till he searched the Registers of Inhibitions , et communis consuetudo pro lege habetur ; It was answered , first , That the Inhibition bears , expresly a Prohibition to grant Renunciations , but no Prohibition to grant Discharges , and as to the Custom , it cannot be showen that persons did pay Wodsets , and take Renunciations from these that were Inhibit , much lesse that the Lords by their Decisions did approve the same , which Decisions can only make a Custom equivalent to Law ; 2dly , Albeit where Wodsets were before the Inhibition , the Debtor might accept Renunciation , because by the Reversion , the Wodsetter is obliged to grant Renunciation upon payment , so that the granting of the Renunciation being upon an obligment Anterior to the Inhibition , could not be prejudged by the Inhibition , as is found in all cases , but here the Wodset was contracted after the Inhibition . 3dly , The Renunciation here granted , was voluntarly accepted , and payment was voluntarly made , because there was a Clause of Premonition and Requisition in the Wodset , which was not used . It was answered that the Stile of Inhibitions is no Rule , seing it prohibits the Selling of Goods and Geir , to which no Inhibition is extended , and there being no Law , nor any Dicision that an Inhibition should be extended against a Renunciation of a Wodset , the common Opinion , and common Custom of the Nation to the contrair is sufficient ; neither is there any difference in the Custom , whether the Wodset be contracted after the Inhibition , or before ; and if there were , there is much more reason that Wodsets contracted before , should rather be subject to the Inhibition , then Wodsets contracted after , by which the Creditor Inhibiter is in no worse condition when they are Renunced , then he was the time of his Inhibition , neither was the payment here made voluntar , albeit Requisition was not used , because there being an obligement to pay the delay upon the Requisition , being only for a few days , no prudent Man would suffer himself to be charged upon the Requisition , and it is no more voluntar , then if a Creditor should pay before the Registration of his Bond , because he could not be compelled before it were Registrat , and he charged ; but seing Law and Custom obliged not Debtors to inquire for Inhibitions , they may pay what way they please , and albeit there had been a Requisition , yea , and a Consignation , unless the Debtor after Inhibition , had been obliged to call the Inhibiter , it could operat nothing as to the Inhibiter . It was answered that there would be a great Detriment to Creditors , if they cannot affect Wodse●s by Inhibition , seing these cannot be Arrested . It was answered they might be Appryzed . It was answered they might be Renunced before the Term of payment of the Creditors Debt , so that Appryzing could not proceed , and that a Debtors whole Estate may consist in a Wodset . It was answered that that case could seldom occur , and that there was neither Law nor Custom introduced upon that account .

The Lords found that the Inhibition could not operat against the Renunciation of the Woose , and decided that general point by it self , for clearing the I ieges , and ordai●ed the Parties to be heard upon some other Points in this particular Case , as that payment of this Wodset was made after the parties was in mala fide , after processe intented against him , by Mr. John Eleis .

Hamiltoun contra Symintoun , Eodem die .

DAvid Hamiltoun as Assigney by Robert Steel to a Bond granted by Andrew Symintoun , pursues Grissel Symintoun as representing him , for payment , who alleadged absolvitor , because the alleadged Bond is manifestly null , in so far as on that side where the Subscriptions is , there is only the Clause of Registration , and all the rest is filled on the other side with another Hand , and there is not one word on the Subscribed side of the Matter of the Bond , that might have Connexion with the back-side , which is unsubscribed , so that this has been the last Sheet of a Writ taken off , and filled upon the back , upon which anything might have been filled up , that the Pursuer pleased . The pursuer answered that he oponed his Bond subscribed by Witnesses , which he byds by as a true Deed , and is valide unless it were improven .

The Lords found this Writ null , and yet declared , that if the pursuer could adduce Writs , or Adminicles to astruct the same , they would Examine the same ex officio , as the Writer and Witnesses if they were alive .

The said pursuer did also insist against the Defender for her own Aliment , as having Right thereto from his own Son , who had Married her Mother . It was alleadged for the Defender that her Mother Liferented her whole Estate , and so by Act of parliament was obliged to Aliment the appearand Heir . It was answered the Defender had Renunced to be Heir to the same Pursuer , and so could not crave that Benefite . It was answered , that as Appearand Heir , She had Right to the Aliment , and her offering to Renunce , was but to save her from personal Excution , and it could not prejudge her of her Aliment , which she had received before she Renunced .

Which the Lords found Relevant .

Lady Burgy contra Her Tennants , and Sir John Strachan , Iuly 18. 1667.

THe Lady Burgy pursues the Tennants of her Liferent-lands to Remove . Compearance is made for Sir Iohn Strachan , who alleadges that he stands publickly Infeft in this Land , and in Possession , and will not suffer his Tennents to Remove . It was replyed that the Pursuers Infeftment in Liferent is long before Sir Iohns , and could take no effect till now that her Husband is dead . It is answered that the Ladies Infeftment is base , and therefore though it be prior to Sir Iohns publick Infeftment , it cannot be preferred thereto , unless it were alleadged it was cled with Possession before the publick Infeftment , either by the Ladies own possession , or at least by her Husbands possession , but she cannot alleadge either , because these parties were in possession from the Date of her Infeftment , till the Date of this publick Infeftment . It was answered for the Lady , that she offered her to prove , her Husband was in possession after her Infeftment and before the Defenderes Infeftment by himself , or at least by these who derived Temporary , or Redeemable Rights from him , or his Authors as Liferents , Wodsets , and unexpired Comprysings . It was answered , that albeit favore Matrimonij the Husbands possession , though common author be counted the Wifes possession , yet the possession of a Wodsetter , or Appryzer are neither said to be the Wifes possession , nor the Husbands , because they possess prop●io jure , and the Husband had only a Reversion .

The Lords found the alleadgeance Relevant for the Lady , that her Husband possest after her Infeftment , and before the publick Infeftment , either by himself , or by any deriving a Temporary Right from him , or his Authors .

Executors of the Earl of Dirletoun , contra Duke Hamiltoun , Earl of Crawford , and others . Eodem die .

IN August 1645. the Earls of Crawford , Lanerk and several other Noblemen , and Gentlemen granted Bond to the Earl of Dirletoun , bearing an Obligement therein , Conjunctly , and Severally to pay ten Merks for ilk Boll of 6000 Bolls of Victual , that should be Delivered by Dirletoun to Iames Riddel , or his Deputes , the said Earl always obtaining Iames Riddels Receipt thereupon ; which Delivery , and Receipt were to be betwixt and a blank day , and the Receipt to be Delivered before payment , the Term of payment of the price was Candlemas 1646. Whereupon Dirletouns Executors pursues the Subscribers of the Bond , who alleadged that this Bond was clearly Conditional , that the Victual should be Delivered betwixt and such a Time , which though it be blank , yet must be understood to be before Candlemas , which was before the Term of payment of the pryce , and upon obtaining Iames Riddels , Receipt thereof , Ita est , there is nothing to instruct the Delivery to Iames Riddel , or the obtaining his Receipt , Debito tempore . It was answered that the Condition bears Delivery to Iames Riddel , or his Deputes , which Terms signifies only persons under him in Office , and therefore it must relate to James Riddel as he was then a publick person , one of the Commissars of the Army under Humby , Ita est there is produced Humbies Discharge , and Receipt of the Victual , which is better then Riddels who was his Depute ; and there is also a Declaration by Riddel , that the Victual was truely Delivered . It was answered for the Defenders , that their Obligation being Conditional , must be performed in forma specifica , so that it being in Dirletouns option to Deliver or n●t , if he Delivered on other Terms then the Bond bears , it was on his own peril , neither is there anything to show that this Victual was destinat for pulick use ; and albeit it had been the purpose of the Defenders so to have employed the Victual , yet they might choise their own way of putting it in the hands of a Person whom they did Trust , who without their Warrand could have given it out to none , and whose trust they only followed thus qualified , that a Receipt were then obtained from him , so that they are not obliged to trust Humbies . Receipt , nor can that prove against them for his Oath , much less his acknowledgment could not bind upon them his Debt , neither is Humbies Receipt Debito tempore ; and likewise Humbies Receipt relates not to this Bond , but bears to be conform to a Contract betwixt Dirletoun and the Committee of Estates ; neither can Riddels Declaration ex post facto prove against the Defenders , or burden them , because they have qualified Riddels Trust , not to his Write at any time , yea not to his Oath , but to his Receipt within the time limited , and there is no reason to enforce the Defenders Contract , to the Tenor of their Bond , to trust the Declaration of Iames Riddel Emitted at any time , for his Condition mighht change , both as to his Estate , and to his Trustinesse ; and they were not obliged , though they were to Trust his Receipt within such a time , therefore to trust his Declaration for ever ; and albeit the Victual had been appointed for publick use ; yet the Delivery , and Receipt should have been made forthcoming to the Defenders , that they might have obtained Releif of the publick , but never having been delivered to this day , the Defenders cannot be burdened therewith . It was answered , that Dirletoun was known to be an Illiterat Person , and albeit he takes Humbi●es Discharge relative to a Contract of the Committee of Estates , yet this same Bond is understood for the name of Contract , may well comprehend a Bond , and the Subscrivers of this Bond , albeit they be not so Designed in the Bond , yet all of them were Members of the Committee of Estates , and a Quorum thereof , and the quantity of Victual was the same , and the Date of that Contract is , the day of August 1645. which showes it was not then present , and this Bond is in August 1645. and it cannot be imagined that Dirletoun would have engaged in the same Moneth , for 6000. Bolls of Victual twice , and as to the time of the Receipt and Declaration , there is no Clause irritant upon nor obtaining it at such a time , and that is no Detriment to the Defenders , neither can it be presumed that they would have obtained Releif , seing they attained no Releif of many publick Bonds , they were ingaged into at that same time .

The Lords found the Defense founded upon the Conditional Clause relevant , and the Condition was not fulfilled , chiefly upon this consideration , that Iames Riddels Receipts were not obtained in the time limited , after which the Defenders were not obliged to trust any Declaration of Riddels , or Humbies .

Iohn Ker contra Iean Ker , Eodem die .

Iohn Ker being Executor dative ad omissa et male appreciata , pursues Iean Ker as principal Executrix for payment , and referred the particulars to her Oath , she alleadged that she had made Faith at the time of the Confirmation , that nothing was Omitted , or wrong Prized , she could not be obliged to Depone again . It was answered that this was the ordinar Custome , and was no more then a Re-examination , and that it would not infer Perjury , though it were different , because if she had any thing Omitted that had come to her Possession , and Knowledge after the Inventar , or if she had then possest it , but did not know , or remember that it was in her Possession , or in bonis defuncti , and ordinarly the Prices are made be the Commissar , and but upon Conjecture , and may by much better known thereafter .

The Lords Repelled the Defense , and ordained the Executrix to Depone .

Mr. Iames Daes contra Kyle , July 10. 1667.

MAster James Daes being Infeft by the Earl of Hadingtoun in certain Husband Lands , and Aikers in Earlstoun , with a general Clause , of all Lands within such bounds , pursues Robert Kyle to remove from certain Aikers within that bounds , who alleadged Absolvitor , because he has Tacks standing from the Earl of Hadingtoun of all the Lands possest by him , and produces the Tack , bearing , the Earl to have Set him fourteen Aikers of Land presently possest by himself , and declares he has no other then what he possest before the Tack , and during the time of the Tack , now by the space of thirty years . The Pursuer answered that his Tack gave him only Right to fourteen Aikers , so that the Pursuer , by the general Clause , must have all the rest : It was answered that the Defender was not obliged now to Dispute the extent or quantity of his Aikers , nor to restrict to the present extent of Aikers , especially seing that which he did possess the time of the Tack , was Set to him by his Tack simply without Reservation ; and albeit designed fourteen Aikers , and were more , it is nothing , for an Erronious Designation vitiats not , unless it did appear to be Restrictive , or Taxative ; likeas the Pursuers Aikers in his Infeftment , will be as large proportionally as the Defenders . The Pursuer answered , that whatever the extent of his Aikers were , the general Clause gave him all that was not reserved to the Defender , and he offered him to prove ; that there were six aikers beside the fourteen aikers , severally kend and known , and possest by different Possessors before this Tack . The Defender answered , that he opponed his Tack , bearing the Lands to be then in his own Possession , at the granting of the Tack , and he having possest thirty years accordingly hoc judicio , he was not obliged to Dispute any anterior Possession .

Which the Lords found Relevant .

Hans Iurgan contra Captain Logan , July 23. 1667.

CAptain Logan a Privateer having taken Hans Jurgan Citizen of Lubeck obtained his Ship and Goods , adjudged Prize by the Admiral , upon this ground that he had carried in Prohibit , or Counterband Goods to the Danes , being then the Kings Enemies , viz. Hemp and Victual , and that he was taken in the return of that Voyage , which was instructed by the Oaths of the said Hans and Sailers , Hans raises a Reduction of the Admirals Decreet on these Reasons ; First , That the Victual was no Counterband Goods , but such Goods as the King allowed his own Subjects to Export out of England , and declared that there should be no question thereupon , nor upon any Goods , not enumerat in an Act of Council produced all which are bellicus Instruments and Furniture , and hath nothing of Victual ; and albeit Hemp be Prohibit by that Act , and commonly counted Counterband Goods , yet the quantity Deponed was only sixteen Stones , which is an unconsiderable quantity , and necessar for Calfing the Ship , and Sowing the Sails , 2ly , The Pursuer produced the Duke of York his Pass , Warranting this Ship to come from Bergen , and therefore she could not have been taken in her return by any Privateer . 3ly , Whatever might have been alleadged , if the Ship had been taken , having unfree Goods in her , there is neither Law nor Custom to sease upon the Ship in her return , when these Goods are not in her , for the Sh●p might have been sold to another , then he that did the wrong ; and it cannot appear whether the return was made out of the price of the former Fraught , and though it were , it might be of a hundreth times more value . And albeit such seasures in return were allowable , yet they could only be sustained when it is evident , at the time of the Seasure at Sea , that the Counterband Goods had been in the Ship that Voyage , either by Bills of Loading , Charter parties , or other Writs taken in the Ship , or by the O●ths , or acknowledgements of the Company , otherwise upon that pretence Freedom of Commerce would be altogether stopped , seing every Ship might be brought in● that they may be tryed by the Admiral , whether or not , they had in Counterband Goods that Voyage . 4ly , These Strangers could not be in culpa before the Indiction of the War could come to their Ears , but the Indiction of the War , was by the Kings manifesto of the Date the ninteen of September , 1666. and this Ship Loosed from Lubeck the 24 of September , within five days after , and so could not possibly know the Indiction , and they Trading , bona fide , as they were formerly accustomed , cannot be seased as injuring the King , in assisting his Enemies , and they did , nor could not know they were such . It was answered for the Defender , that he had walked exactly according to his Commission , bearing expresly all kind of Grain to be Counterband Goods , and being impowered to sease upon any Ship in return , that had carried in Counterband Goods , and that it was in the Kings power leges imponere bello , and that Victual is Counterband Goods it is evident , not only because it is the first necessary in War , especially for Victualling of Ships , Norway being a barren Countrey that hath little Grain of its own , and produced a Treaty betwixt the King , and the Crown of Sweden , wherein the Swede hath a liberty to carry Counterband Goods ; bearing expresly in the Latin Ann●na , in the Dutch Proviant , which shows , what Goods are accounted Counterband Goods , not only by the King , but other Nations : and for this Seasure in the return , it is not only warranted by the Commission , but upon evident Reason , because the Kings Allies have free Trade , both with Him , and his Enemies , so that they partake not with his Enemies against Him , by furnishing them Instruments , or Furniture of War ; and any privat Party transgressing the same , might , de rigore juris , be seased upon as an Enemie● and it is favour and benignity , that the seasure is allowed only in that very Voyage , in which the wrong is done . As to the Duke of Yorks Passe , Scotland being a free Kingdom , and the Duke not Admiral of Scotland , his Passe , or passing from any Delinquents , can only be Operative in England ; and that which is produced , is only an Extract out of the Admirality Court , bearing that such a Ship was Cognoseed to be a Lubeck Ship , and so that she might freely passe , which cannot import the Dukes knowledge , much lesse his passing frae her carrying of Counterband Goods , as to the pretence of Trading , bona fide , and the ignorance of the War , no respect ought to be had to the alleadgeance , because the War was begun , and flagrant long before the Lousing of the Ship , and there is no necessity of Manifesto's to indict War , but Acts of Hostility and publick fame of a War , are sufficient to hinder Allies of either Parties , or Neuters to assist against their friends : and here it s offered to be proven , that six Moneths before this Ship Loused , many Commissions were granted against the Danes , Prizes taken , and the Kings Subjects taken by the Danes , and declared Pryze at Bergen , upon the account of the War , which must be presumed to be known by the Pursuer : and the City of Lubeck being a Hanse Town of Trade , which keeps Intercourse with London , and other Towns of Trade : and as to the Act of Council , permitting the Kings Subjects to Trade , even in Corn with his Enemies , it is a special Indulgence in Favours of England only , and could not be effectual as to Scotland , and much lesse to Strangers . The Pursuer answered , that there Was nothing alleadged to show by Law or custom , that Victual is Counterband Goods , unlesse it were carried in to an Enemy for Relieving a Besieged place , but not when it is but in common Commerce , and if the Lubeckers be hindred to Trade in Corn , or the like , being the only Growth of their Country , their Trade is altogether marred , contrary to the Kings Interest and Intention , who has written to the Emperour most favourably in behalf of the Hanse Towns , for the freedom of their Trade , and acknowledges them his good Allies , and not meerly Neuters , which Letter is produced , neither is the palpable inconvenience answered , if Privatteers may bring in all the Ships , whether they carried Counterband Goods in that Voyage , though they find none in them , neither is there any thing alleadged sufficient to instruct , that the Pursuers knew , or were obliged to know of the War betwixt the King and Denmark , before they Loused from Lubeck for any Acts of Hostility , before the solemn Indiction produced , were such Deeds as the Pursuers were not obliged to notice , for the taking and declaring of Prizes doth not include Enimity● or War , but may be for reparation of privat injuries without intention to make an open War , although a Pryze of the King of Britains Subjects , had been declared at Buirran , it does not infer , that Lubeck being a free State , at so far distance , behoved to know the same ; much lesse , that thereby there was a War betwixt the King and Denmark .

The Lords having considered the whole Debate , were of different opinions , whether the Victual could be called Counterband Goods simply , or only when imported for relieving of Sieges , or for the like War-like use , and whethe● Ships could be seised in their return not having actually Counterband Goods in , but especially whether they could be seised without evidence at the time of the seisure at Sea , that in that Voyage they had in Counterband Goods , but they did only Determine the first Reason , and found it relevant , to infer that the Lubeckers was in bona fide to continue the Commerce , having Loused within to few days of the Kings Manifesto ; and that no other Act of Hostility before , were to be presumed to have come to the knowledge of Lubeck , or that thereby they were obliged to know , that there was an actual War , unlesse these Strangers : knowledge were instructed by their own Oaths , or that it was the common Fame notour at Lubeck before they Loused , that there was War betwixt the King and Denmark , and the Defenders offering to prove the same .

The Lords granted Commission to the Kings Resident at Hamburgh to receive Witnesses above exception , and in the mean time , ordains the Strangers Ship and Goods to be Inventared , and Estimate , and delivered again to the Strangers ▪ upon Caution to make the same or price forthcoming , in case the Defender prov'd , and prevail'd , and with the burden of the Strangers damnage and expences , if they betook themselves to this manner of Probation , and not to the Oaths of the Strangers who were present , reserving to the Lords the remanent Points to be Decided , if the Strangers knowledge of the War were known .

In this Processe the Lords found also that competent , and emitted before the Admiral , could not operat against thir Strangers , qui utuntur communi jure gentium .

Sir Harie Hume contra Tenents of Kello , and Sir Alexander Hume . Iuly 23. 1667.

SIr Harie Hume having Comprized the Lands of Kello , compearance is made for some Annualrenters , who craved preference , because their Infeftments of Annualrent was before the Apprizing : It was answered that the Infeftment of Annualrent was base , never cled with Possession : It was answered for the Annualrenter , that he produced an Antaphocha , bearing the Receipt of a Discharge granted by the Debtor of the Annualrent , which did instruct the Annualrenter was in Possession before the Apprizing , by uplifting the Annualrent from the Debtor : It was answered that the Sum was of fourscore Merks , which was far within an Terms Annualrent , and that it related only to the personal Bond , and not to the Infeftment , and that there was more then this Sum due of Annualrent by the personal Bond , before the Date of the Infeftment , to which only it behoved to be imputed : It was answered that the Receipt being general in part of payment of the Annualrent , he that payed the Sum might impute it to what Term he pleased , and so would impute it to a Term after his Infeftment : It was answered that before that Discharge , the Pursuers Apprizing was led , though no Infeftment thereon , after which so small a part of the Annualrent could not be impute to any , but the first Annualrent due , and could not validat the base Infeftment .

The Lords found it sufficient to validat the base Infeftment , notwithstanding of what was alleadged on the contrair .

Sir George Mckenzie contra Iohn Fairholm , Iuly 25. 1667.

SIr George Mckenzie Advocat having formerly pursued Reduction of a Bond , granted to Umquhil Iohn Fairholm , wherein he was Cautioner for his Father , and Pluscardy , upon this Reason , that he then being Minor ▪ intertained by his Father , as in his Family ; his Father was his Administrator , and in place of a Curator , so that Deeds done without his Fathers authorizing as Curator , was null ; neither could his Father authorize him to his Fathers own behove , as Cautioner for his Father , which the Lords found relevant to annul Sir George's Subscription ; and now Sir George desiring the Extract of the Interloquitor . It was further alleadged , that Sir George was not only Cautioner for his Father , but also for Pluscardy , and that his Father might authorize him to Subscrive Cautioner for Pluscardy , and therefore the Bond behoved to stand against him as Cautioner for Pluscardy ; It was answered that albeit his Father might authorize him as Cautioner for Pluscardy , in a Bond apart , wherein his Father was not concerned ; yet if his being Cautioner to Pluscardy were to the behove of his Father , he could not authorize him therein , but this Bond is of that nature , for Pluscardy and the pursuers Father being bound Conjunctly , and Severally , Caution adjected for any of the correi debendi , could not but be to the behove of both , because in so far the Obligation was strengthned , and the payment made by the Cautioner would liberat both , and if Sir George should be Decerned Cautioner for Pluscardy , it would Liberat his Father , and so is clearly to his behove .

In respect whereof , the Lords repelled also this new Defense , and adhered to their former Interlocutor , and found Sir George's Subscription for his Father , and for Pluscardy , to be to his Fathers behove , and that he could not authorize him therein , neither did he at all directly authorize him , but in so far as they both Subscrived as Principal and Cautioner in one Bond.

Mr. Iohn Philip contra Mr. Iohn Cheap , Iuly 26. 1667.

MAster Iohn Philip pursues his Tenents upon a Disposition granted by Michael Philip , Compearance is made for Mr. Iames Cheap who Apprized from Michael Philips Heir , who alleadged that the Disposition is null , neither being Subscribed by the Disponer , nor by two Notars for him for albeit it mention the Subscription of three Notars , yet two of them Subscribed not at the same time with the third , and neither of these two bear , that they did Subscribe at command , but that they Subscribed only for Michael Philip , because that he could not Subscribe himself : and albeit the Body of the Writ mention such Witnesses to the Command given to these Notars , yet it is written with another Ink , and does not appear to be Written at the time of the Subscriptions , being the Hand-writ of him that Wrote the Body , which mentions to be Written by him at Edinburgh , and the Subscription is at Newburgh , and because the Notars Subscription must give Faith to the Body of the Writ , and not the Body to it . It was answered , that they offer to prove by the Witnesses insert , that the Command was given : It was answered that the Command being the most substantial point of the Subscription , could not be proven , or supplied by Witnesses , for the Subscription of the Notar , because the party could not Subscribe signifies nothing without the Command of the party , for whom they subscribe , and Warrand or Command in most ordinary Matters is not at all probable by Witnesses .

The Lords found the Disposition null , and that the subscription of these two Notars not bearing , that it was by Command , could not be supplied by the Witnesses , insert , unlesse it had been the subscription of an Connotar Subscribing at the same time with a Notar , whose Subscription bore Command . Here it was Debated whether the Subscriptions of Notars at divers times were sufficient , or if the Subscription of a Notar who was not authorized by the English , and did forbear to Act at that time were sufficient , but the former Vot made these to be undecided , as not necessar , seing the Writ was annulled by the former Vot .

Sir George Prestoun contra Sir Iohn Scot , Iuly 1667.

SIr Iohn Scot having pursued for payment of an Annualrent of 500. Merks , out of Sir Iohn Prestouns Lands , he alleadged payment , thereupon Li●●scontislation being made , he produces three Receipts , each 500 pounds , bearing to an Accompt ; and alleadged that the odd fifty Merks was for publick Burden , which compleating three years , must Assoilzie from bygones . It was answered the Discharges bore to be but granted by a Factor , which was not probative , and that they wanted Witnesses , and that being given by a Factor , they could not infer payment of all proceeding : It was answered that Discharges of Annualrents , or Rents , are sufficient without Witnesses .

The Lords found that Discharges to Tenents were suffi●ient without Witnesses , but not being granted by an Annualrenter to an Heretor , and found that the Factors Discharge could not in●er payment of bygones .

The Owners of the Ship called the Castle of Riga , contra Captain Seatoun Eodem die .

CAptain Seatoun a Privateer having taken a Ship at Sea , she was declared Pryze at Cromarty ; the Owners pursue Reduction of that Decreet before the Admiral at Leith , who Ass●●●zied from the Reduction , and adhered to the D●creet● the Owners now pursue a Reduction of both these Decreets upo● this Ground , that by the Treaty betwixt the King , and the King of Sweden ; it is expresly declared , that if any Swedish Ships , having a Passe from the Kings Council , or Colledge of Trade , or Governour of the Province where frae she Louseth , she shall not be questioned , nor any Inquiry anent the Goods , or Men , and that because , by the said Treaty it is Agreed that the said Passes , shall expresly contain that the Ship and whole Goods , belonging to the Subjects of Sweden , contained no Counterband Goods , and that upon Oath taken at the obtaining of the Passe , na est , the Governour of Livinia , wherein Riga lyes , hath given a Passe , bearing that the Owners of the Ship called the Castle of Riga , being Citizens of Riga , did make Faith that Ship , being then at Amsterdam , did truely belong to them , and was Loaded with their Goods only , and was direct to France for a Loading of Salt , to be returned to Riga , and that there is produced an Extract out of the Admirality of ●rance , bearing Faith to have been made , that the Ship , nor Goods , nor any part thereof did not belong to the French nor Hollanders , and a Certificat from the Swedish Resident in Holland , Registrat in the Office of Admirality in England , bearing this Ship to be a ship belonging to the Swedes , and yet she was declared Pryze , upon this ground only , that the Sea-men did acknowledge they were Inhabitants in , and about Amsterdam , and that some of them Deponed , that the ship was a Dutch bottom ; and one of them Deponed , that they were paved by the Skipper , who received the Money from a Water Bailzie in Amsterdam , without proving that the ship or goods belonged to Hollanders , which could not have been ground , seing the Passe , and Treaty did Exeem them from giving an Accompt , or Inquiry anent their Mariners . It was answered for the Defenders , that all these Passes and Papers were a meer Contrivance , and ●alls not in the Case of the Treaty , because the ship Loused not from Riga , but from Amsterdam , and the Pass did not contain the particular Goods , and Quantities , according to the Conditions of the Tre●ty , and that the Testimonies proved that the ship had on a Dutch Flag , that she came hot by the Channel , but about the Back side of England , and that the Company was afraid to meet with Scotish and English Privateers ; and having met with a ship in their Course , asked for the Dutch Fleet , calling it their own Fleet , all which were strong Evidences that the ship belonged to Holland . It was answered that albeit the Pass mentioned not the particular Goods , which it could not do , the ship being but to be Loaden , the Certificat did abundantly supply that , expressing the Loading , as for the presumptions they are of no force , because the Skipper , though a Dutch-man , yet was sworn a Citizen of Riga , and might justly be more afraid of the English and Scots , then of the Dutch , and they might call the Dutch Fleet , their own Fleet , as being of their Nation ; at last they produced a Letter of the Kings , bearing that His Majesty knew by sufficient Information , that this was a ship belonging to Sweden ; and both by it , and by a former Letter , did peremptorly Command the Delivery thereof , and the Goods . It was answered the Kings Letter was impetrat upon false Information ; and if His Majesty had known the true state of the Case as it now stands in the Evidence , He would not have so Written ; nor doth His Majesties Letter , granted inaudita parte , prejudge the privat Rights of his Subjects .

The Lords found that the Testimonies of the Witnesses did not prove , that the ship and goods belonged to any of His Majesties Enemies , and therefore , in respect of the Pass , Certificat , Treaty , and His Majesties Letter , they Reduced both the Decreets .

Iuly 31. 1667.

THis Cause being again Debated , it was alleadged that the former Interlocutor having proceeded mainly upon His Majesties Letter , there was no ground to proceed thereupon , because it was granted inaudita parte , and Acts of Parliament being done by His Majesty , without consent of of Estates , prejudge no party as to their privat Right , but such as are called , much less Letters thus impetrat upon importunity , and groundless Representation , and this Letter is Derogat by a posterior general Letter to the Lords , Recorded in the Sederunt , warranding the Lords to proceed . And as to the Swedish Treaty , it can never be understood further , then as to Counterband Goods , which are the Native Commodity of the Swedish Dominions , for albeit some of these be dispensed to the Swedes , because most of the Growth of their Countrey is such , yet it cannot be extended to this Case , where the Swedes Loadned Counterband Goods in Norway , and carry them to France , both being His Majesties Enemies , neither can the Pass be sufficient , except as to such ships as are within Sweden , and where the particular Goods , upon Oath are Attested , and expressed in the Pass , neither of which is in this Case . It was answered that they opponed the former Interlocutor , and that a solemn Treaty , with so considerable an Allie as the King of Sweden , is not to be Retrenched , nor Limited , but by the exceptions contained in it self , and in it there is no such exception , but generally the Pass , as is there qualified , excludes all search or question of Men or Goods , which is also the Kings meaning , which appears expresly by the foresaid Letter , which albeit it could not Derogat from a privat Right , yet may well clear the dubious interpretation of a Treaty , and is sufficient in this Case , where the King alone dat leges bello .

The Lords upon consideration of the last Dispute , did ordain the President to state the Case , and represent it by the Secretary to the King , both as to the meaning of the Treaty and the Letters , and specially whether Counterband Goods , not being the Growth of , nor Loaden in Sweden , were priviledged to the Swedes thereby .

November 6. 1667.

THe said Cause being again called , the President presented the Lord Secretaries Letter , bearing the Kings Answer , that the Treaty , or Letter did not warrand the Swedes to carry Counterband Goods to the Countrey of his Enemies , except their own Countrey Commodities , Loaden within their own Dominions .

Whereupon The Lords sustained the Admirals Decreet , as to that Reason of Reduction , but gave the Parties a time to be further hear'd before Ex●ract .

Hend●●son contra Henderson , November 14. 1667.

HEnderson insisted in the Cause mentioned , Ianuary 31. 1667. which was again fully Debated above ; and it was alleadged that the Writ in question was a Testament , or at least donatio mortis causa , or at least a Conditional Donation , to take effect only in case the Disponer died before he returned , so that his simple returning , without any further , purified the Condition , and made it null .

The Lords having considered the Writ , found that albeit it was not formal , yet it had the Essentials of a Disposition , and Donation , interviros , and that it was not null by the Disponers return , unlesse he had revocked it ; for they found that the words being , that he Nominat , and Constitute Henderson his Heir , and Successor , and Donatar irrevockably to certain Tenements in particular , with power to him ( in case the Disponer returned not ) to enter by the Superior , and Enter to Possession , and transferring all Right he had in that case , which words Constituting him Dona●ar , they found were Dispositive words , and Effectual , and the adding of Heir , and Successor , could not Evocuat the same ; and found the Condition of his not returning , was not annext to the Dispositive words , but to the Executive Clause of Entering by the Superior , and taking Possession , which was cleared by the Posterior Reservation , to recal it after his return .

It was further offered to be proven , that the Disponer not only returned , but recalled the Disposition , in so far as he had it in his own hands , and power after his return . It was answered that it was no way relevant , unlesse the Delivery of it hoc intuitu were proven , for he might have had it in his hands upon many other accounts . It was answered that the very having of the Writ , did presume that it was Delivered , unlesse the other Party would offer them to prove that it came in his hands alio nomine .

Which the Lords found Relevant .

Thereafter it was alleadged , that as the Disponers having of it , presumed Revocation , so the Acquirers having of it hereafter , presumed a passing from that Revocation , and a Reviving of the Right , and now it is in the Acquirers hands ; as to this point the Parties did not Debate , but it occurred to the Lords that the Disponers having , might be sufficient to infer Delivery , but would not infer that the Acquirers having thereafter , would presume passing from the Revocation , because the Clause reserving to the Disponer a power to Recal , made the naked Recovery of the Writ sufficient to him , and did annul it , but it was more dubious , what was requisit to revive it , whether naked Having , or expresse Delivery , hoc intuitu , or if something were not requisite in Writ , and therefore before answer to that point .

The Lords ordained the Pursuers who now had the Writ to condescend , and prove how they got it .

Iames Maxwel contra Adam Maxwel , November 15. 1667.

JAmes Maxwel , and the Umquhil Lady Hiltoun his Spouse , having Disponed their Land to Adam Maxwel , Iames now pursues a Declarator of Trust , whereupon the Lords formerly ordained Compt and Reckoning , that it might appear what Adam had Expended upon the accompt of the Trust. In which Accompt Adam gives up certain Bonds by Iames , whereunto he had taken Assignation , against which , he could alleadge no more then what he truely payed out , in respect the time of the Assignation he was intrusted by the Pursuer . The Defender alleadged non relevant , unlesse it were alleadged he was intrusted to Compone for the Pursuers Debts ; but if it was only a Trust of his Land , and not a general Trust of all his Affairs , it could not reach their Bonds , and albeit upon the account of Friendship , or Charity , the Defender might be desired to take no more then he gave , there lyes no Obligation in Law , or Equity upon him so to do ; but he may demand what the Creditors , his Cedents , or any other Assigney might demand . The Pursuer answered that the intent of his Trust in his Lands , being to preserve him from the rigour of his Creditors , it was against that Trust , to the Trusty to use the same rigour himself .

Which the Lords found relevant , and ordained Adam only to get allowance of what he payed out .

Laird of Culteraes contra Silvester Chapman , November 16. 1667.

CVlteraes having pursued Silvester Chapman for payment of a Bond of two hundreth Merks , subscribed by the initial Letters of the Defenders Name .

The Lords sustained the pursute , the Defender being in use thus to subscribe , and that he did subscribe this Bond , the Notar and three Witnesses insert being Examined , they proved the Defenders custom so to subscribe , but as to the Actual subscribing of this Bond , two were affirmative , and two were negative , denying their subscription , Deponing that they remembred not they saw the Defender subscribe . The Pursuers own Oath was also taken ex officio , who affirmed the truth of the subscription , and that the Witnesses insert were present , the question arose whether the verity of the subscription were proven .

The Lords found that it was sufficiently proven , the Pursuer being a man above all suspition , and no improbation proponed .

Chalmers and Gardner contra Colvils , Eodem die .

CHalmers and her Children pursues Hugh Colvil and others , for Ejecting them out of their House and Lands of Lady kirk , and spuilzy of their Goods therein ; the Lybel being admitted to Probation , not only a Witnesse Deponed , that he saw the Defender open the Pursuers Doors , they , being absent in Edinburgh , and the Keys with them , and cast out their Goods and enter in Possession , who was admitted , cum nota , as being Interessed as Tennant , and concurring with these Pursuers , in a pursute with the same Defenders before the Council , upon the same Ground , the rest of the Witnesses proved , that the Pursuers were in possession at , or about the time Lybelled , and that they went to Edinburgh , and Locked their Doors , and took away the Keys ; and some of them Deponed , that the night before the Defenders Entry , they saw the Doors Locked , and that the next day after they saw Hugh Colvil , and several others in the House , and several Goods that were in the House cast out of the Door , and that Hugh continued in Possession , and took in the Goods again .

Which the Lords found sufficient to prove the Ejection and Spuilzie , seing the Defender did not instruct that he entered by Authority of Law .

The Defender alleadged at Advising the Cause , that the Pursuer had a Husband , who within this Moneth , was seen at Air , and offered to prove by his Oath , that he had Ceded the Possession , being Warned , and gave Warrand to the Defender to Enter , and therefore , he being Dominus bonorum , his Wife and Bairns had no Interest to pursue , and though they had , his Oath was sufficient to instruct the Lawfulness of the Defenders Possession , and that the Wifes Oath in litem could not be taken , to Esteem her Husbands Goods . It was answered , that it was notourly known , that the Husband had been two years out of the Countrey , and having gone to Sea , was commonly repute dead , and therefore the Wife being in Natural Possession , might lawfully pursue this Action , neither was it relevant that the Husband promised to quite the Possession , which being but an obligation , could not warrand the Defender , brevi manu , to cast them out , unless he had been present , or consented to the Entry , or had given a Renunciation of his Possession , with a Warrand to Enter brevi manu .

The Lords , in respect both Parties acknowledged , that the Husband had been a great while absent , found the Action competent to the Wife : and found that the Husbands Ceding the Possession , as was alleadged was not relevant , and ordained the Wifes Oath , as to the quantity and value of the Goods Spuilzied , to be taken , and granted diligence to the Defender to Cite the Husband , if they could find him , to the same Dyet to give his Oath , reserving to the Lords what the Wifes Oath could work , as to the estimation of the Goods , without the Husbands Oath .

White-head of Park contra Iohn Stratoun , Eodem die .

WHite-head of Park pursues Iohn Stratoun for restitution of an Horse , which he delivered to his servant , to be put in the Park of Holy-roadhouse to the Grass , and which now cannot be found . The Defender alleadged that he was lyable for no Loss or Hazard , because at that time , and long before , there was a placad fixed upon the Port of the Park , that he would be answerable for no Hazard or Loss of any Horse put in there , by Stealling or otherwise , which was commonly known at , and long before that time . It was answered , that this Action being founded upon the common ground of Law , nautae caupones stabularij , ut quae receperint restituunt , the same cannot be taken away but by paction ; and the putting up of a placad is no wayes sufficient , nor was it ever shown to the pursuer . The Defender answered , that the Pursuer having only delivered his Horse to his Servant to be put in the Park , without any express communing or conditions , it behoved to be understood on such Terms as was usual with others , which were the Terms exprest in the placad .

Which the Lords found relevant , unlesse there had been a special agreement , in which case they found the Defender , or his Servant , should have showen what was in the placad .

Executors of Isobel Trotter contra Trotter , November 20. 1667.

GEorge Trotter and Iames Lundy his Cautioner , having granted a Bond of 636. pounds to Iohn Trotter , and the same being Assigned to Isobel Trotter , and Confirmed by her Executors , they pursue Lundy , who alleadged Absovitor , because he offered him to prove , that the Bond was granted blank in the Creditors Name to Iames Trotter , Father to the said Isobel , who filled up the Name of Iohn Trotter ( his Brother ) therein , and took an Assignation thereto , in Favours of Isobel , who was then in his Family , having no Means of her own , and therefore it is in the same case , as if it were a Bond of provision , granted by the Father to the Daughter , or taken in her Name , which may alwayes be discharged by the Father , or altered by the Father at his pleasure ; and true it is that the Father Submitted the same , and was Decerned to Discharge the same , which is equivalent to a Discharge . It was replyed , albeit Bonds of provision to Children be alterable by their Fathers before any thing follow , yet if they be delivered to the Children , or which is more , if they be Registrate , they become the Childrens proper Right , and cannot be recalled , Ita est , this Bond though it had been blank , ab origine , it was filled up in Iohn Trotters Name , and filled up before the Submission ; yea Isobel was dead , and the Sum confirmed in her Testament , so that her Father could not Discharge it proprio nomine , or as his Administrator . It occurred further to the Lords , that albeit the Bond was Registrat , the Assignation granted to the Daughter was not Registrat , so that if that Assignation remained still in the Fathers power , the case would be alike , as if it were a Bond of provision , taken originally in the Daughters Name , yet this not being pleaded by the Parties ; And that the Asignation was Intimat that it was not constant , that the Assignation remained in the Fathers hands .

The Lords repelled the Defense , in respect of the reply .

Colonel Seatoun contra the Laird of Balwhilly , November 22. 1667.

THe Laird of Balwhilly having seased upon a Ship belonging to the Dutch , during the War , Colonel Seatoun , Governour of the Fort at Brassie sound , medled with the Ship and Loadning , brevi manu , for the use of the Garison ; Balwhilly pursues a Spuilzie before the Admiral : Colonel Seatoun gives in a Bill of Advocation on this Reason , that Balwhilly having no Commission , albeit he did sease upon the Ship , yet it belongs to the King , and the Colonel had a Warrand from the Lord Commissioner to Intromet therewith , for the Garisons use , and therefore in the Cause concerning the King , His Majesties Advocat and Officers were not obliged to answer before the Admiral , nor could they attend there , and therefore the Advocation ought to be past . It was answered , that the Reason was in causa , and not relevant , for the Advocat ought to have a Depute before the Admiral , which is a Supream Court , and Process maritime in the first instance ought not to be Sustained before the Lords , and that whatever they pretended in the poynt of right , Spoliatus est ante omnia restituendus .

The Lords having heard the Parties upon the Bill in presentia , ordained the same to be past .

It was then desired , that as before the Admiral , the Colonel behoved to find caution , not only judicio sisti , but also judicatum solvi , that he may be ordained to do the same before the Lords .

Which the Lords refused , but granted the Advocation in common form .

Sir Robert Montgomery contra Alexander Rankein , November 23. 1667.

SIr Robert Montgomery having obtained Decreet against Antonia Brown , as representing Sir Iohn Brown her Father for two thousand Merks , Arrests the price of a chain due to Antonia , in the hands of the Lord Melvil , and pursues to make forthcoming ; Compears Alexander Rankein and produces a Decreet obtained against Antonia , and thereupon an Arrestment by the Sheriff of Fifes Precept , and a Decreet of the Sheriff thereupon , in July last , the Arrestment being in the same Moneth , and craves preference , because he had the first compleat Diligence . It was answered , that Sir Robert having first Arrested in March last , and first intented Processe thereupon before the Lords , and having insisted therein the last Session , was kept off by the compearance of the Lady Cullerny , who also pretended Right to the Chain and has failed in no Diligence , and therefore ought to be preferred to a posterior Arrestment , albeit it have the first Decreet of an inferiour Court , both Arrestment and Citation being after his , for he having affected the Sum by an Arrestment , the matter became litigious , and no posterior Diligence , nor Sentence of an inferiour Court could exclude him , he using all Diligence before the Supream Court , and not living within the Sheriffs Jurisdiction , and the Sheriffs Decreet being only in absence , otherwise no Process upon , any Arrestment before the Lords can be secure , but others may anticipat them , by obtaining Decreets before inferiour Courts , which are far sooner obtained . It was answered , that it was not the Arrestment , but the Sentence to make forthcoming , that transmitted the Right , as being a Judicial Assignation , and therefore the first Decreet is preferable , for as Poinding might have been used upon the Sheriffs Precept , notwithstanding of a prior Arrestment , and Dependance before the Lords , so must the Sheriffs Decreet which is equivalent , have the same effect , and Sir Robert ought to impute it to himself , that took not the shortest way in pursuing before the Sheriff .

The Lords found the first Arrestment , pursued before themselves sine mora , and the first Citation preferable to a posterior Citation , and Arrestment , though obtaining the first Decreet , and therefore preferred Sir Robert Montgomery , and would not bring in the Parties pari passu , the first Arrestment and Citation being several Moneths before the other .

Lord Iustice Clerk contra the Laird of Lambertoun , Eodem die .

THe Lord Rentoun Justice Clerk having pursued Lambertoun for the Spoiling of his Woods , and Planting in the beginning of the Troubles , the Parties did agree , that what Detriment of the Wood should be proven by Witnesses to be Adduced hinc inde , the one half thereof should be payed by Lambertoun .

The Lords granted Commission to five of their Number , who Examined Witnesses upon the place : three of the Pursuers Witnesses proved the half of the Damnage , to be eleven thousand Merks , and gave clear Reasons of their knowledge , two of them were used by the Defender also , and two or three of the Defenders , other Witnesses Deponed that the whole Damnage was about two thousand Merks , and a third ex auditu agreed in some points . At the Advising of the Cause , the question arose whether the Lords might modifie betwixt the two Extreams , or if they ought to Judge according to any two of the highest Testimonies , or according to the most pregnant Testimonies , giving the clearest ground of their Knowledge .

The Lords found the most pregnant Testimonies to be the Rule and Decerned , according to the least , that the Pursuers Witnesses did prove , as being that wherein all did agree , and not according to the most quantities that some proved .

Mr. Iohn Hay of Haystoun contra Mr. Iohn Drummond , and Patrick Hepburn , November 26. 1667.

MAster Iohn Hay having pursued a Reduction of the Rights of some Lands against Mr. Iohn Drummond , and called for the Rights made to him by Umquhil Patrick Hepburn , Mr. Iohn Drummond got three Terms to produce , reserving his Defenses , and at the last Term , alleadged no Certification against the Rights granted by Patrick Hepburn , because none to Represent Patrick Hepburn were called , a Diligence was granted Incidenter to the Pursuer to call the Representatives of Patrick Hepburn , whereupon he Cited Patrick Hepburn his eldest Son , and appearand Heir , who having gotten one very short Term , and that circumduced against him . It was now alleadged , that all the Terms ought to be granted to Patrick Hepburn , seing he was a Party necessar , to be called , and his Rights were to be Reduced . The Pursuer answered , that this being a single Reduction de jure , there was no more due but one Term. 2dly , Albeit more were due , yet Mr. Iohn Drummond having run three Terms already , he can crave no more but one , upon the account of Patrick Hepburn his Author .

The Lords in respect , the Term Assigned to Patrick Hepburn , was but on six dayes , allowed him a second Term , and ordained it to be Intimat by the Ordinar to the Advocats , that in single Reductions of Rights of Lands , they would grant two Terms for production , and in Reductions , and Improbations three only .

Captain Bood contra George Strachan , November 28. 1667.

CAptain Bood , Captain of one of His Majesties Friggats , pursues George Strachan , who had Commanded that Friggat for a time , and was sent a Voyage therewith , from Brassie-found to London , to restore a part of the Out-reick of the Ship , which he had not Delivered , but had excepted in his Discharge as being worn , stollen or lost ; and now it was offered to be proven , that he Sold and Disponed upon the same particulars he so reserved . The Defender alleadged Absolvitor from such particulars as he condescended upon , because he did waire out a considerable Sum of Money , for Repairing the Out-rige , and necessars to the Ship during the Voyage , for which , in case of necessity , he might have Sold a part of the Out-rige . 2dly , Albeit he might not have Sold the same , yet he may retain , or compence the price thereof , with what he waired out necessarly , and profitably for the Out-rige of the Ship . 3dly He offered him to prove , that such parts of the Out-rige in question● as he should condescend upon , were worne and stollen , which being his Defense , he ought to be preferred in the Probation , unto the Pursuer , who ought to have no other Probation against him , being a Person Intrusted but his own Oath , much less a contrair probation by Witnesses , that they were not Lost , but Disposed upon by the Defender .

The Lords Repelled the first and second Defenses , and found that albeit the Captain might have Hypothecat his Ship , or Out-rige for the necessar Expences waired upon her , yet that he could not Sell the same , and that de facto he did not Sell the same , because the Pursuer offered to prove he Sold them at Lieth after his Return , and found the same probable by Witnesses , and preferred the Pursuer in probation thereof , and in respect of so unwarrantable a way of Disposing , they would neither allow Retention , nor Compensation , but left the Defender to make his Application to the Exchequher for his payment .

Margaret Pringle and her Spouse , contra Robert Pringle of Stichel , November 29. 1667.

MArgaret Pringle pursues an Exhibition of all Writs granted by , or to her Umquhil Brother , ad deliberandum . It was alleadged no Process , for Writs granted by him to Strangers , except such as were in his Family conform to the late Decision , Schaw of Sornbeg contra Tailzifare , which they declared they would follow as a Rule . The Pursuer answered , that he Insisted for Exhibition of such Writs as were granted by the Defunct to any person which were in his possession , or Charter Chist the time of his Death .

Which the Lords Sustained .

Duke Hamiltoun contra the Laird of Allardine , December 6. 1667.

THe Duke of Hamiltoun having Charged the Laird of Allardine for the six Terms Taxation , Imposed anno 1633. He Suspends on this Reason , that four Terms were payed by the Earl of Marishal Sheriff , which must Exoner him , and all other persons of the Shire , and is instructed by the Books of the Clerk to the Taxations . It was answered , that the Reason is not relevant , because the Sheriffs did ordinarly Lift a part of all the six Terms , and albeit the Sheriff compleated the first four , yet he might have done it out of his own Money , or out of the other two ; and so when the King Charges for the other two , the Sheriffs Discharges will Exclude him , so that he shall not want the first four , but so much of the other two , and therefore unless the Suspender can produce a Discharge of the first four , the general Discharge granted to the Sheriff cannot Liberat him . It was answered , that when the King or his Collector Charges , the Collectors general Discharges cannot but meet himself , and whether the Suspender had payed or not , the general Collector cannot seek these Terms twice . It is true , ●f the Sheriff were Charged , the Suspender behoved to show to him his Discharge , but the Earl of Marishal Sheriff , could not Charge the Suspender for the Taxation of these Lands , because the Earl of Marishal was both Sheriff , and Heretor at that time , and Sold the Lands to the Suspender with Warrandice .

The Lords found the general Discharge sufficient to the Suspender , against the general Collector , or any authorised by him .

Earl of Lauderdale and Iohn Wachop contra Major Biggar , December 7. 1661.

THe Earl of Lauderdale , and Iohn Wachop Macer , pursue a Reduction and Improbation of the Rights of the Lands of Hill , against Major Biggar , and craved Certification , contra non producta . The Defender alleadged no Certification , because he had produced sufficient Rights to exclude the Pursuers Title , viz. Infeftments long prior to the Pursuers Right . It was answered , that this could not stop the Certification , unless the Defender would declare he would make use of no other Rights in this Instance , otherwise the Pursuers behoved to Dispute with him upon every single Writ he produced , and behoved to Dispute the Reasons of Reduction with him before the Production were closed . The Pursuer answered that his alleadgeance , as it is proponed , was alwise Sustained without declaring that he wo●ld make use of no more .

The Lords found the Defenses ( as proponed ) relevant , and ordained the ordinar to hear the Parties Debate upon the Rights produced , and if these should not prove sufficient , the Lords thought that the Defender might be forced at the next time to produce all he would make use of in this Cause , that so the Pursuers were not delayed upon Disputing upon every single Writ .

Earl of Cassils contra Sheriff of Galloway , December 10. 1667.

THe Earl of Cassils pursues , the Sheriff of Galloway , and the Tennents of Achnotor●ch for abstracted Multures , and Insists on this ground against the Sheriff , that he being Heretor of the Lands , and Vassal to the Pursuer , did command them to leave the Pursuers Miln , and come to his own Miln , and so was Liable . The Defender alleadged , that this Member of the Summons is not relevant , because any man may desire any persons he pleases , to come to his Miln , and there was never a pursute Sustained against any others then the Abstracters and not against these to whose Miln they came . 2dly , It is not Libelled that the Defender got a greater Duty upon the Tennents coming to his Miln , and although he had , it were not relevant . 3dly , By the Defenders Rights he is Liberat of all Multures , except Knavship and Bannock , which is only the Hire due to the Millers for their Service , and there is no obligement upon him to cause his Tennents come to the Miln . It was answered , the Pursuer offered to prove the Defender had gotten a greater Duty upon the Tennents coming to his miln ; and albeit the Astriction be only of Knavship and Bannock , that is not alone due for the Millers service , but there is a profit thence arising to the Master , that the Sheriff being Heretor and Vassal , albeit he be not personally obliged to cause the Tennents come to his Miln , yet the Lands being Astricted by his Infeftment , it was his fault to remove them .

The Lords Assoilzied from that Member of the Lybel , and found it not relevant against the Heretor , but only against the Tennents .

Mr. Rodger Hog contra the Countess of Home , Eodem die .

MAster Rodger Hog having Appryzed certain Lands from the Laird of Wauchtoun in Alcambus , which were Sold to Wauchtoun by the Earl of Home , with absolute Warrandice : Upon which Warrandice there was Inhibition used , whereupon Mr. Rodger pursues Reduction , of an Infeftment of Warrandice of these Lands , granted by the Earl of Home to my Lady , in Warrandice of the Lands of Hirsil , and that because the said Infeftment of Warrandice is posterior to the Inhibition . The Defender alleadged , that there could be no Reduction upon the Inhibition , because therewas yet no Distress , which with a Decreet of the Liquidation of the Distress , behoved to preceed any Reduction ; and albeit there might be a Declarator , that my Ladies Infeftment should not be prejudicial to the Clause of Warrandice , or any Distress following thereupon , yet there could be no Reduction till the Distress were Existent and Liquidat . The Pursuer answered , that a Reduction upon an Inhibition , was in effect a Declarator , that the posterior Rights should not prejudge the Ground of the Inhibition , for no Reduction is absolute , but only in so far as the Rights Reduced , may be prejudicial to the Rights , whereupon the Reduction proceeds .

The Lords Sustained the Reduction to take effect , so soon as any Distresse should occur .

Mr. Iames Straiton contra the Countess of Home , Eodem die .

MAster Iames Straiton Minister of Gordoun , having obtained Decreet conform , upon an old Locality , Charges my Lady Home for payment , who Suspends , and alleadges that she must be liberat of a Chalder of Victual contained in the Decreet of Locality , because after the said Decreet , a part of the Paroch of Gordoun was dismembred , and Erected in a new Paroch , and the Earl of Home burdened with a new Stipend , and the Minister of Gordoun Liberat of a great part of his Charge ; in consideration whereof , the Minister then incumbent quite a Chalder of his Decreet of Locality , and aquiesced in the rest without ever Demanding any more , and so did his Successors , now by the space of sixteen or twenty years . The Charger answered , that his Predecessors forbearance to Lift that Chalder , cannot instruct his Consent , and though he had expresly Consented , he could not prejudge his Successor , unless that Chalder had been applyed to the new Kirk by Sentence of a Judge .

The Lords found the foresaid Reason relevant against the Pursuer in possessorio● ay and while he declare his Right , here it was represented , that the Minister had a sufficient Stipend beside the Chalder in question .

Mr. Rodger Hog contra the Countess of Home , December ▪ 11. 1667.

MAster Rodger Hog Insisting in his Reduction mentioned yesterday , upon his Inhibition the Countess of Home alleadged , that she had Right from Appryzers , who would exclude the Pursuers Right and Inhibition , and would Defend her self thereupon , and not suffer her Right to be Reduced ex capite Inhibitionis , and might thereby exclude the Pursuer from any Interest . It was answered , that the Reduction being only upon an Inhibition , there are no Rights called for , but Rights posterior thereto , and it cannot prejudge any prior Right , which the Pursuer is content shall be reserved .

Yet the Lords Admitted the Defender to Defend upon any prior Right , that might exclude the Pursuers Right .

Hunter contra Wilsons , December 13. 1667.

HVnter having Charged Wi●sons for payment of 500 Merks , contained in their Bond , they Suspended on this Reason , the Bonds bears expresly , that the same should not be payed , till the Suspender be put in Possession of a Tenement of Land in Glasgow , for a part of the price whereof the Bond was granted , Ita est , they neither were , nor can be put in Possession , because the House was burnt in the Conflagration in Glasgow . It was answered non relevat , because after perfecting the vendition peculium est emptoris , and therefore this being an accidental Fire , wherein the Seller was no wayes in culpa , nor in mora , in respect , that at that time there was a Liferenter living , whose Liferent was reserved in the Disposition . It was answered , that albeit in some cases the peril be the Buyers , yet where there is an expresse obligement , that no payment shall be until Possession , by that expresse Paction , payment cannot be sought . It was answered , that the Buyers had taken Possession after the burning , and had built the House . It was answered , that the Possession of the Ground , cannot be said the Possession of the House , Terra non est Domus , and therefore this being but a small part of the price , in such a calamitous Case , the Suspenders ought to be Liberat thereof .

Notwithstanding of all these Alleadgeances , the Lords found the Letters orderly proceeded ; here the Buyer was Infeft before the burning , and did voluntarly take Possession after the burning .

Robert Hamiltoun Clerk , contra Lord Balhaven , December 14. 1667.

THe Lord Balhaven having Disponed the Barony of Beill to Iohn Hamiltoun , Son to Robert Hamiltoun Clerk , reserving Roberts Liferent , with power to dispose of fou●ty Chalders of Victual at his pleasure , and to set Tacks , for what time and Duty he pleases , and containing an express Provision , that it shall be leisum to Robert to do any Deed in Favour of my Lord Balhaven , and that the Fee shall be burdened therewith , and it is Provided , that all Rights Robert shall Acquire , shall accresce to his Son , who is to Marry Balhavens Oye , and failzying of the Sons Heirs , mentioned in the Disposition , Robert and his Heirs are in the last Termination . Thereafter , Robert enters in a Minut with my Lord Balhaven , by which he is obliged to Accept an hundreth twenty nine thousand Merks , and therefore obliges himself , and as taking burden for his Son , and as Tutor , and Administrator to him , validly , and sufficiently to Denude himself and his Son of their Rights , to any that he should Nominat : but here is a Clause irritant , that if Money , or sufficient Persons to grant Bond to Robert , be not delivered to Robert at Lambmass last , and Payment made of the Money at Martinmass last , that the Right by the Minute should expire ipso facto , without Declarator . The Minute was put in the Duke of Hamiltouns Hand , that if these Terms were not performed , he should Cancel it . Robert Hamiltoun Pursues now a Declarator against Balhaven , concluding that he hath an absolute and irredeemable Right to the Land , by his first Disposition , and Infeftment granted to him and his Son , and that the Clause irritant is Committed , and that thereby the Minute is null , and concludes against the Duke , that the Minut was put in his Hands upon the Terms foresaid , and that he ought to Cancel , or Deliver the same ; the Dukes Advocats suffered him to be holden as Confest , but did not produce the Minute . It was alleadged for Balhaven , no Process till the Minute were produced , for it could not be declared null till it were seen . It was answered , that the Copy of it was produced , and verbatim insert in the Lybel , and the Pursuer craved the Minute in the Terms Lybelled to be declared null , without prejudice to any other Minute , if they could pretend it .

The Lords ordained Processe , but ordained the Pursuer before Extract , to produce the principal Minute .

It was further alleadged for Balhaven Absolvitor , because the Minute being mutual , there could be no failzie in the Defender , because the Pursuer neither was , nor is able to perform his part of the Minute , in respect the Fee of the Estate is in the Person of the Son , who cannot be Denuded by any Deed of the Father , for as Legal Administrator , he hath no power , neither can any Father , or Tutor Denude a Pupil of their Fee , but there must be interposed the Authority of the Lords in a special Process , instructing a necessar Cause for the Minors Utility , which cannot be in this Case ; and though the Father could Denude the Son , as he cannot , yet he is Minor , and may Revock , and yet it was offered to fulfil the Minut , if the Pursuer would Secure the Defender against the Minors , by real Security , or good Caution . The Pursuer answered , that the Defense ought to be Repelled , because the Defender , the time of the Minut , knew his Right and his Sons , and cannot pretend an impossibility to have made any such Minut upon a ground then palpable and known , and yet contend to keep the Minut above the Pursuers head , but he must either take it as it stands , or suffer it to be declared void . 2dly , The Pursuer is in sufficient Capacity to Denude his Son , by the foresaids Reservations contained in the first Disposition , whereby he has full power to Dispose of fourty Chalders of Victual , and also power to do any Deed he pleased in favours of Balhaven , and there could be no Deed more rational , then to give a Reversion of his own Estate upon payment , of all that the Pursuer had payed to him , or for him . The Defender answered , that this general Clause cannot be understood to be prejudicial to the substance of the Disposition , and special Clauses in favours of his Son , and the Defenders Oye and their Successors .

The Lords Repelled the Defense , and declared , but of consent of the Pursuer , superceded to Extract for a time , and appointed two of their Number , by whose sight the ●ursuer and his Son should be Denuded , and the Defender Secured , so that it came to no Debate , whether such a Clause irritant , as this in a Reversion of that which was truely Bought and Sold irredeemably before , and no Wodset could be purged .

Iohn Campbel contra Constantine Dougal , Eodem die .

COnstantine Dougal having granted a Bond to Iohn Houstoun , bearing that Iohn for himself , and as Administrator for his Son , Constantine Campbel had Lent the sum , and that the same should be payable to the Father , he being on Life , and failzieing him by Decease , to be payable to Constantine his Son , as being his own proper Moneys , and to his Heirs or Assigneys . Constantine Assigns this Bond to Iohn Campbel , who having pursued Exhibition thereof , and it being produced , insists for Delivery . It was alleadged for the Producer , that it ought to be Delivered back to him , because he had right thereto by Assignation from Iohn Houstoun , who in effect was Feear of the Sum , it being Lent to him , and payable to him during his Life , and Constantine his Son was only Heir substitute , as is ordinarly interpret by the Lords , in such Bonds or Sums Lent by Fathers to be payable to themselves , and after their Decease to such Bairns . 2dly , The Father a● lawful Administrator to his Son , might have Lifted the Sum in his Sons Minority , and therefore he might Assign the same . The pursuer answered to the first , that albeit Bonds for Money Lent by Parents , payab●e to themselves , and such Children after their Death , be so interpret , that the Fathers are Feears , yet that is only where the Sums are the Parents own , but this Sum is acknowledged to be the Sons own Money b● the Bond it self . 2dly , Albeit the Father as lawful Administrator might have Lifted the Sum , yet cannot Assign , because that is no proper Act of Administration com●●tent to Tutors , or Administrators , and Executors may uplift Sums , and yet cannot Assign . The Defender answered to the first , that the Money is Lent by the Father , not only as Administrator , but bears expresly for himself , and that these words as being his own Money did not sufficiently prove that it came not from the Father , but that after the ●athers Decease , it would be the Sons Money . To the second , that the conception of the Bond being , expresly to pay to the Father , warranted him to Assign , and the Assign●y being his Procurator , might Lift as well as he , the same way as Assigneies can Lift during the Executors Life .

The Lords found the conception of the Bond to constitute the Son to be Feear , and that at le●st the words as being the Sons own Moneys , presumed the same to have been so ab initio , unless it were positively proven , that the Money when Lent was the Fathers , and found that the Fathers Assignation as lawful Administrator , could not exclude the Son , but that point whether the De●tors paying to the Fathers Assigney , during the Sons Pupillarity or Minority , was neither positively alleadged by the Parties , nor considered by the Lords .

Iames Paterson contra Homes , December 17. 1667.

JAmes Paterson having Charged the Earl of Home , in anno 1662. for payment of a Sum due by his Bond. The Earl suspended , and found one Brunt-field Cautioner , and at the foot of the Bond of Caution , Home of White-●ig Attested the Cautioner , in these Terms viz , I Attest the Cautioner to be sufficient , and subscribes the same , which is Registrat with the Bond it self , and the Extract produced bearing the same , The Suspension being Discust against the Earl of Home , and the Cautioner Charged with Horning ; Paterson pursues the Attester subsidiary for payment of the Debt . It was alleadged for the Defender Absolvitor , because he having but Attested the Sufficiency of the Cautioner ; can be holden no further then a Witnesse , and so can only be found lyable if his Testimony were found false , or that ex dolo , he had Attested a person to be sufficient , not according to his Judgement , but either contrair to his knowledge , or without knowledge of his Condition , at least his Attesting can only oblige him to prove that the Cautioner ( when he Attested him ) was holden , and repute a person sufficient for the Sum , and that he had a visible E●●a●e in Land , Bond , or Moveables . The Pursuer answered , that the Attester behoved to be lyable to him , because ejus facto by the Attestation , the Suspension was obtained , and the Principal being dead without any to represent him , and the Cautioner insolvendo , the At●ester is obliged , de jure , to make up the Damnage falling out by his Deed.

The Lords found the Alleadgeance for the Attester relevant , viz. that the Cautioner was holden , and repute sufficient for such a 〈◊〉 , at the time of the Attest to be proven , prout de jure .

Lord Abercromby contra Lord New-wark , Eodem die .

THe Lord Abercromby having Sold to the Lord New-wark , the Barony of St. Ninians ; there was a fitted Accompt subscribed by them both , in anno 1647. Containing the Sums payed by New-wark , and at the foot thereof , concluding thirty seven thousand Merks to be Due ; but there is no mention made of the Instructions in the Accompt ; the second Article whereof , bears payed to Abercrombies Creditor 30. thousand Merks , where● upon Abercromby alleadges , that seing the Accompt bears not the Delivery of the Instructions , that New-wark at least must produce the Instructions of this Article which is general , for the Bonds of these Creditors are yet above Abercrombies Head , and New-wark makes use of some of them to exhaust the thirty seven thousand Merks Bond at the foot of the Accomp●●● It was answered for New-wark , that after 18. years time , that he was not obliged to Compt again ; but the foot of the Accompt being subscribed by the Pursuer , bea●ing 37. thousand Merks to be only Resting , was sufficient to Exoner him , and the not mentioning of Instructions Delivered , cannot presume , or prove against him , that they are in his hand , else the Accompt signifies nothing , and he must not only Instruct this Article , but all the rest ; neither did he make use of any Bonds to exhaust the foot of the Accompt , but such only , for which Precepts were direct to him , after the Accompt .

The Lords found the Defender not lyable to Compt , or produce the Instructions of any of the Articles , unless it were proven by his Oath , or Writ , that the Instructions were retained in his hand .

Iohn Auchinleck contra Mary Williamson and Patrick Gillespy , December 18. 1667.

MAry Williamson , Lady Cumlidge , having taken Assignation to several Debts of her Husbands , Appryzed the Estate from her Son ; and in September , 1662. Dispones the Estate to her Eldest Son , reserving her own Liferent of the Maines , and Miln , and with the burden of five thousand Merks , for Iohn Auchinleck her second Son ; at the same time her eldest Son grants a Tack to Patrick Gillespy , bearing expresly , that because he was to Marry his Mother , and to possesse the Mains at the next Term , therefore he Sets the Land for an inconsiderable Duty , for a year after his Mothers Death : there was no Contract of Marriage betwixt the said Mary , and the said Patrick , but they were Married in December thereafter , and he possessed it till this time , and now Iohn Auchinleck pursues for Mails and Duties bygone , and in time coming , as having Assignation , to the Reservation granted by his Mother . It was alleadged for Patrick , that as for bygones Absolvitor , because he was bonae fidei Possessor , by vertue of the Reservation in favours of his Wife , belonging to him jure mariti . 2dly , The Assignation made to the Pursuer was most fraudulent , being granted at the time of the Agreement of Marriage , betwixt the said Patrick and his Wife , and there being a Provision granted to the Pursuer of five thousand Merks , the said Mary did most fraudfully at that same time Assigne the Reservation , and so left nothing to her Husband , but a woman past sixty years . It was answered , that where there is a solemn Contract of Marriage , and Proclamation , Deeds done thereafter cannot prejudge the Husband , but here there is neither Contract , nor Proclamation alleadged : and albeit there had been fraud in the Mother , the Son ( being a Boy , and absent ) was no way partaker thereof , and cannot be prejudged thereby . It was answered for the Defender , that he hath a Reduction depending of this ex capite fraudis , and if the Wife could do no fraudful Deed after the Agreement of Marriage , it will thereby be null , whether the Son was partaker or not , unless he had been an Acquirer for an Onerous Cause , and albeit there was no Contract of Marriage in Writ , yet the foresaid Tack evidences an Agreement of Marriage .

At Advising of the Cause , the Lords thought this conveyance a very Cheat , and it occurred to them that the Marriage , and jus Mariti is a legal Assignation , and there having been nothing done by the Son to intimat this Assignation , or to attain Possession thereby before the Marriage , the Husband by the Marriage had the first compleat Right , and was therefore preferable , and likewise they found the Husband free of bygones , as bonae fidei Possessor , any found that the Reason of Reduction upon fraud , after the Agreement of the Marriage evidenced by the Tack , bearing the Narrative of the intended Marriage of the same date , with the Pursuers Right , and the Disposition to the eldest Son relevant to Reduce the Pursuers Assignation , in so far as might be prejudicial to the Husband .

Sir Thomas Nicolson contra the Laird of Philorth , Eodem die .

UMquhil Sir Thomas Nicolson having pursued the Laird of Philorth before the late Judges , as representing his Grand-father , who was Cautioner in a Bond for the Earl Marishal , there being an Interlocutor in the Process , Sir Thomas dying , his Son transfers the Process and insists . The Defender alleadged , that the Bond was prescribed , as to his Grand-father , by the Act of Parliament King Iames the sixth , anent prescription of Obligations , bearing that if no pursute were moved , nor document taken within 40 years , that these Bonds should prescribe ; Ita est , there was no pursute , nor document against the Defenders Grand-father by the space of 40. years , and therefore as to him it was prescribed . The Pursuer answered , that he opponed the Act of Parliament , and Interloc●tor of the Judges in his favours , and offered him to prove that the Annualrent was payed by the Principal Debtor , within these 40. years , and his Discharge granted thereupon , which was sufficient document , and the Pursuer not having been negligent , nor at all bound to pursue , or seek the Cautioners , when he got Annualrent from the Principal , the Obligation of both stands entire . The Defender answered , that the Principal and Cautioners being bound conjunctly and severally , albeit in one Writ , yet the Obligations of each of them was a distinct Obligation , and as the Cautioner might be Discharged , and yet the principal Obligation stand , so the prescription is a legall Discharge , presuming the Creditor past from the Cautioner , seing he never owned him for 40. years , which is most favourable on the part of Cautioners , who otherwise may remain under unknown Obligations for an hundreth years . The Pursuer answered , that albeit there might have been some appearance of reason , if the Persons obliged had been all Co-principals , or bound by distinct Writs , yet whether Writ and Obligation is one , and the Cautioners Obligation thereby but accessory , and the Creditor no way negligent , there is no ground of such a presumption , that the Creditor past from any Party obliged , and the Obligations mentioned in the Act of Parliament , is not to be meaned according to the subtility of distinction of different notions of Obligations , but according to the common Style , and meaning of Obligations , whereby one Writ obliging Principal , and Cautioners , is always accompted an Obligation , which is sufficiently preserved , by payment obtained from the Principal .

The Lords adhered to the former Interlocutor , and repelled the Defense of prescription , in respect of the Reply , of payment made of the Annualrents , made by the Principal .

Robert D●by contra the Lady of Stonyhil , Eodem die .

THe Lady Stonyhil being Provided in Liferent , to an Annualrent of 2800. Merks , her Son pursues her for an Aliment , both upon the Act of Parliament , in respect that the Defuncts Debt was equivalent to all the rest of the Estate , beside her Liferent , and also super jure naturae , as being obliged to Aliment her Son , he having no Mea●● , and she having a plentiful Provision .

The Lords in consideration of the newnesse of the Case , and that the Debts that might exhaust the Estate , were most part personal , and no Infeftment thereon , before or after the Defuncts death , recommended to one of their Number to endeavour to agree the Parties .

Adam Gairns contra Elizabeth Arthur , December 19. 1667.

ADam Gairns as Assigney , Constitute by Patrick Hepburn , pursues Elizabeth Arthur for the Drogs furnished to her , and her Children at her desire ; It was alleadged Absolvitor , because she was , and is cled with a Husband , and the Furniture could only oblige him , but not her . It was Replyed , that she had a peculiar Estate left by her Father , wherefrom her Husband was secluded , and which was appointed for her Entertainment , that her Husband was at that time , and yet out of the Countrey , and hath no Means .

The Lords found the Reply R●levant

Arc●ibald Wils●n contra the Magistrats of Queens-ferry , Ianuary 2. 1668.

ARchibald Wilson being Elected on of the Baillies of the South Queens-ferry , and being Charged to Accept , and Exerce the Office , Suspends on this Reason , that by the 29. Act , Parliament 5. King Iames the 3. No Magistrate of Burgh is to be continued in Office longer then one year , and by a particular Act of that Burgh , no Magistrat is to continue above two years ; and true it is that the Suspender hath served as Baillie two years already . It was answered , that the Act of Parliament is long since in desuetude ; and as to the Act of the Burgh , the Election of the Suspender being done by them , who have power to make that Act , is in effect an alterationt hereof , and this Burgh being poor , and penury of persons to Serve , it will dissolve the same , and discourage all others to Serve , if the Suspender be Liberat.

The Lords found the Reasons of Suspension relevant●● and found that the Suspender could not be compelled to serve longer then one year at once in the same Office .

Dow of Arnho contra● Campbel of Calder , Ianuary 4. 1668.

DOw of Aricho having pursued Campbel of Calder , as Heir to his Father , for payment of a Bond , wherein his Father was Cautioner , for the Marquess of Argyl , the Bond bore but one Witnesse to Calders subscription ; and George Campbel one of the Witnesses being Examined if he saw him subscribe , Deponed negative , but that it was Calders hand Writ to the best of his knowledge ; there was also other writs produced , subscribed by Calder , to compare the subscriptions .

The Lords would not sustain the Bond , having but one Witnesse insert to Calders subscrsption , upon the foresaid Testimony , and Adminicles .

Mr. Iohn Forbes contra Innis , Ianuary 1. 1668 :

MAster John Forbes as Assigney to Margaret Allerdes , having obtained Decreet of Removing against Margaret Innis , for Removing from the Lands of Savet , wherein the said Margaret Allardes is Infeft in Liferent , which being suspended . It was alleadged , first , That this pursu●e is to the behove of Margaret Allerdes , who could not obtain a Removing against the Defender , because the Defenders Husband being Infeft , by the said Margaret Allardes Husband , and Author of the Lands of Savet principally , and of the Lands of Govan , and others in Warrandice . The said Margaret Allardes did consent to the Disposition of the Warrandice-lands , by which she obliged her self to do no Deed in the contrair of that Right , and is also bound in Warrandice with her Husband , ita est her pursuing this Action is a Deed in prejudice of the Right of Warrandice-lands , in so far as thereby the Person having Right to the principal Lands , upon Eviction recurrs upon the Warrandice-lands , and so the Consenters own Deed prejudges the same . It was answered , that by Deeds contrair to Warrandice , were only understood , some Right granted by the Disponer , or Consenter , in prejudice of the Right consented to , but no wayes a pursute upon any other Right of the Consenter , for it were against Reason and Justice , that a Purchaser , to make himself secure , requiring a Wifes consent to Lands to which she had no Right , either Principal , or in Warrandice of other Lands , that her Consent should prejudge her , as to her Liferent lands , of which there was no mention ; and as to her Personal Obligement to Warrand the Lands wherein she was never Infeft , it is null , and can never oblige her , being a Wife .

The Lords found that this Warrandice did not oblige the Wife , and that her Consent did not hinder her to pursue upon her own Liferent , albeit ex consequente , her pursute excluded one having a posterior Right to her Liferent-lands , who thereupon had recourse to the Warrandice-lands , to which she Consented , seing she had granted no Right prejudicial to the Right Consented to .

It was further alleadged , that the said Margaret Allardes agreed with the Person having Right to her Liferent-lands , principally that she should accept the Warrandice-lands , in stead of her Liferent-lands , which excambion putting the Right of the Warrandice-lands now in her Person , she who consented to the Right thereof , can never come in the contrair of her own Consent to prejudge the same . It was answered , that a Cons●nt cannot exclude any supervenient Right of the Consenter , but only such Rights as the Consenter had the time of the Consent , it is true , that a Disponer with absolute Warrandice , if he acquire a Right , it accresces to his Successor , but it is not so in a Consenter , whose warrandice is not found to be Obligator , further then as to the Rights in the Consenters Person at that time .

Which the Lords Sustained .

It was further alleadged , that the Pursute as to the behove of the Heir of the Disponer , of the Lands in question , whose Predecessor being bound in absolute Warrandice , he can make no use of no Right prejudicial to his Warrandice . 2dly , Albeit he be not Heir , yet he hath behaved himself as Heir , and thereby is lyable to fulfil the Defuncts Warrandice , and so cannot come against it . It was answered , that behaving as Heir , being a vitious passive Title , is not sustainable by way of exception in this case .

The Lords Sustained the same , and found both members of the alleadgeance relevant .

Margaret Forbes contra 〈…〉 Eodem die .

MArgaret Forbes having granted a Tack of her Liferent-lands to 〈…〉 bearing expresly for payment of such a Sum of Money , and bearing to endure for 19. years ; she did receive a Back-bond of that same Date , bearing , that so soon as the Sum was payed , the Tack should become void ; the Tack coming to a singular Successor , she pursues him for Compt and Reckoning , and Removing , and insists upon the Tenor of the Tack , and Back-bond . It was alleadged for the Defender , that the Back-bond did not militat against him , being a singular Successor , neither being Registrat , nor Intimat to him before his Right , in respect the Tack is a real Right , and no Obligement or Provision of the Tacks-man can prejudge a singular Successor .

The Lords Repelled the Defense , and Sustained Processe against the Defender , in respect of the Tack , and Back-bond .

The old Lady Clerkingtoun contra Clerkingtoun , and the young Lady , Ianuary 9. 1668.

THe old Lady Clerkingtoun being Infeft in an Annualrent of seven Chalders of Victual , out of the Mains of Clerkingtoun , for thirty six years bygone ; she pursues a Poinding of the ground . It was answered for the Laird and his Mother , that the Pursuer having been so long out of Possession , cannot make use of a Possessory Judgement , but must first declare her Right . 2dly , The young Lady is also Infeft in an Annualrent , and hath been ( by vertue thereof ) more then seven years in Possession , and so hath the benefit of a Possessory Judgement , till her Right be reduced , and cannot be Dispossest by the old Ladies posterior Infeftment .

The Lords Repelled both the Defenses , and found that an Annualrent is debitum fundi , and is not excluded by Possession of a posterior Right , and needs no Declarator , and that an Annualrent hath not the benefit of a possessory Judgement , against a prior Annualrent .

The Laird of Glencorsse younger , contra his Brethren and Sisters , Ianuary 10. 1668.

THe Laird of Glencorsse having Married his eldest Son , and having Disponed to him his whole Estate , with Warrandice after the Disposition , he did Deliver certain Bonds of Provision in favours of his other Children , unto these Children , whereupon they Appryze the Lands Disponed to his Son : in this Contract there was a Liferent reserved to the Father , and nine thousand Merks of Tocher payed to the Father . The Son pursues a Reduction of the Bairns Infeftment , and Bonds , in so far as might be prejudicial to the Disposition granted to him , upon this Reason , that the Bonds were no delivered Evidents before his Disposition . It was answered , that they were valide , though not Delivered , because the Fathers Custody was the Childrens Custody , especially they being in his Family , both at the time of the Subscribing of the Bonds , and of the making of this Disposition ; and it was ●ever contraverted , but that Bonds granted by a Father to his Children , though never Delivered during his Life , but found amongst his Writs after his Death , were valide both to affect his Heirs , and Executors . The Pursuer answered , that his Reason of Reduction stands yet relevant , notwithstanding the answer , because , albeit it be true , that Bonds , Dispositions , and Provisions in favours of Children are valide when they are Delivered by the Parents in their Life , or if they have remained uncancelled in their Hands till their Death , yet till Delivery , or Death , they are still pendent Ambulatory Rights , and may always be recalled at the pleasure of the Granter , and any Deed done by him , expresly recalling them , or clearly inferring his mind to recall them , doth annul them before Delivery , ita est , the Pursuers Disposition bearing expresse Warrandice against all Deeds done , or to be done by the Father , granter of these Bonds , doth evidently declare his mind , that his purpose was not , that these Bonds should affect these Lands , otherwise he would either reserve the Bonds , or a power to burden the Lands , and if this were Sustained , no Contract of Marriage , Disponing the Fee to a Son , could be secure , it being easie to grant such Bonds , and to keep them up above the Sons Head , and therewith to affect the Fee ; yea , it would be sufficient against any Stranger , unlesse it were for an Onerous Cause . 2kly , There is not only a Revocation , but these Provisions were no Debt of the Fathers , prior to the Sons Disposition , or Delivery , for albeit the date be prior , yet the time of their becoming a Debt , is only Death , or Delivery , and therefore , all Debt contracted , or Deeds done by the Father before his Death , or Delivery of the Bonds , are prior as to the Obligation thereof , to the Bonds , so that the Sons Disposition is truly prior as to its Obligations , to these Bonds . The Defender answered to the first , that albeit such Bonds be Revocable before Delivery , yet here there is no expresse Revocation , but only presumption inserred , from the Fathers giving a posterior Disposition , which is no sufficient ground , either ●rom the Disposition , or the Warrandice , for the Fathers mind might have been , that he would endeavour ( out of his Li●erent , or Moveables ) to Portion his Children , and so would not absolutely Burden the Fee ; but yet in case he should Die , or not be able to do it , he would not Revock the Bonds , even as to that Right , which is much rather to be presumed , as being much more rational , and probable , seing there is not any Provision , or power of Provision reserved in the Contract , neither is there any competent way alleadged for providing of three Children , but if this Sole presumption be sufficient , though a Father should Dispone his whole Estate , without any Reservation of Children , or to be so inconsiderat , as not to except his Aliment , all prior Provisions for his Life-rent ( undelivered ) should cease , and become ineffectual , contrair to that Natural obligation of Parents to provide their Children , against which , no presumption can be prevalent . As to the other ground , Provisions , though not Delivered , can be in no worse case then Bonds delivered with a Condition , that the Father might recall the same , which would be valid from their Date , if they were never actually recalled , and so must Bonds of Provision be , at least as to gratuitous Deeds after their Date , though before Delivery , as if a Father should grant Bonds of Provision to many Children at once , and should Deliver some of them before the rest , if he had not Means sufficient to pay all , the Bonds first Delivered , could not be thought to exhaust his whole Means , and exclude the other Bonds of Provision , but all would come in pari passu , according to their Dates , except their Diligence alter the Case .

The Lords ( notwithstanding of what was alleadged ) found the Reason of Reduction relevant , and that the undelivered Bonds of Provision , though prior in Date , yet posterior in Delivery , could not affect the Fee interveening .

Here there was much alleadged upon the Onerosity of the Pursuers Disposition , which came not to be considered in the Decision .

Grant contra Grant , Ianuary 11. 1668.

WIlliam Grant of Markinsh pursues a Tutor Compt , against Iohn Grant of Ballandallock his Tutor , in which these points being reported to the Lords , whether the Tutor were lyable for the value of Services of the Pupils Tennents , by Harrowing , Plowing , and Shearing , &c. And for which the Tutor received no Money , but the Services in kind .

The Lords found the Tutor not Comptable therefore , because he could not force the Tennents to pay any price for the same . And as to that point , the Tutor being super-expended , the Pupil might be Decerned upon the Pupils own Process , against the Tutor , without a distinct Process at the Tutor instance .

The Lords found he might .

Parkman contra Captain Allan , Ianuary 14. 1668.

CAptain Allan having obtained a Decreet against Parkman a Swede , Adjudging his Ship Pryze upon these Grounds , that she was Sailed with three persons of her Company being Hollanders , and Danes , being then the Kings Enemies , and because she had carried of the Enemies Goods from Bergen in Norway , to Amsterdam , from whence , having gone to France with Ballast , and being Loaden there with Salt , she did also carry in to France six Barrels of Tar , which was sold in France , as appears by an Accompt betwixt the ●kipper and his Factor in France , bearing so much to be payed of the Kings and Towns Custom of the Tar , which necessarly Imports that it was sold there ; likewise she carried in Stock-fish , being Commeatus , and Counterband Goods , so that having sold several Lasts of Tar in Holland , and these Barrals , and Stock-fish in France , which are clearly Counterband Goods , and being taken in her return from France , having in her the product of these Counterband Goods , whereupon she was j●●tly declared Prize , conform to the Lord Admirals Commission , ordaining Ships of Allies to be taken , having in Enemies Goods , or Counterband Goods , or the return of Counterband Goods . Parkman raised a Reduction of this Decreet , on these Reasons ; first , That the Crown of Sweden , not only being an Allie to the King , but having a Solemn Treaty with him ; in the second Article whereof it is specially agreed , that the Subjects of Sweden having Passes from the Governour of the City , or Province where they Louse , or from the Colledge of Trade , bearing that Faith had been made , that the Ship , men and Goods did belong to the Swede , and none other ; and that they had therein no prohibit Goods , that such a Passe being shown in any Ship , there should be no further search , or inquiry in the Men or Goods , the like whereof is granted to the Kings Subjects , either King trusting the Governours of the other in that matter ; by which Treaty also , Counterband Goods are determined , amongst which , Tar or Stock-fish are no particulars , ita est , Parkman had a Passe when he Loused from Sweden , conform to the Treaty , likeas there is a second Passe sent over-land to him , when he Loused from Amsterdam to France , which being shown to Captain Allan at the seasure , he ought not to have taken him , or enquired any further , nor can he now make it appear that Parkman hath transgrest the Treaty , and as to the three Men of his Company , one was hired in Denmark , and two in Holland upon necessity , so many being wanting of his necessary Company by Death , or Absence there , so that what he did of necessity , and not to advance the Interest of the Kings Enemies , can be no Delinquence . 3dly , Whatever might have been alleadged against him , if he had been taken with Enemies Goods Aboard , or with Counterband Goods , which are such by the Swedish Treaty , yet he was seased , having none of the Goods Aboard , nor the product thereof , but of his Fraught , and upon the accompt of his Owners in Sweden he could not be Pryze , because there is nothing in the Treaty , bearing that Ships should be Pryze , not having actually in them Enemies Goods , nor Counterband Goods , but the product , or return thereof ; neither doth it appear that he sold any Tar in France , for the Entering of the Tar , or paying Custom , will not necessarly Import it was sold , but his Factor might have unwarrantably put up that Article , which being wholly inconsiderable he did not contravert , and by the same papers taken Aboard , it did appear , that at his Lousing from France , he had the same quantity of Tar , which was inconsiderable , and necessar for the use of his Ship , being an old Ship , and two Barrels was found Aboard when she was taken , and some part behoved to be allowed for the use of the Ship , so that at most there could be but one or two small Barrals of Tar sold , which is inconsiderable , and could be no ground for declaring an Allie Pryze , nam de minimis non curat lex , and as to the Stock-fish , or any Commeatus , or Provision , quae habent promiscuum usum in bello & pace , they are only Counterband , when they are carried in to relieve a beseiged place , or to these that could not subsist without them , according to the Reason and Opinion of Grot●us de jure belli , lib. 2. cap. de his quae in bello licent .

It was answered for Captain Allan , that the Reasons of Reduction ought to be Repelled , because albeit Parkman got a Passe from Sweder , conform to the Treaty , and according thereto came from Sweden to Denmark , in which Passage he was not challenged , but having engadged in Denmark to serve the Danes , then the Kings Enemies , he did unquestionably carry merces hostium , from Denmark to Holland , and eight or nine Last of Tar , which is Counterband , beside the six Barrels of Tar carried from Holland to France , and Entered , and sold there , and the Stock-fish , and albeit Tar be not enumerat as Counterband in the Swedish Treaty , yet it is comprehended in the general Clause of alia instrumenta bellica , for there is no more eminent Instrument of War , not only for shipping , but for all Engines of War , and suppose that ( by the Swedish Treaty ) Tar were not Counterband , yet that Treaty can be only extended to the Subjects of Sweden ; Trading to and from Sweden , but not to Warrand them to carry these things ( which de jure communi , are Counterband ) from any other Countrey then their own , to the Kings Enemies , so to partake with the Kings Enemies to his Detriment . And as to the second Passe send to Holland , it is no ways conform to the Treaty , but is most grosse and inconsistent , bearing not only the Ship to belong to the Swedes , but also all the Goods input , or to be input in her to belong to them , and to be free Goods , without expressing any particular : as to the return of Enemies Goods , or Counterband Goods , that it is a ground of seasure , being the immediat return , and the Captains Commission granted by the Admiral , bearing so much expresly , and the Instructions given by the Council in a former War , anno 1624. which were sufficient Warrand for the Captain to sease , and are founded upon evident Reason , viz. That the Kings Allies are Neuters , having assist his Enemies with Counterband Goods , it is a Delinquence deserving that the Delinquent should be seased as an Enemie at any time , and yet the Kings Commission hath mitigat it , only to be in the return of that same Voyage , wherein the Counterband Goods were carried , for if an Allies Ship having Counterband Aboard , were taken in her Voyage to an Enemies Port , she might more reasonably pretend that intention was alterable , and no Crime until actually she had Disloaded in the Enemies Port , but could have no pretence if she were waited till immediatly after she came out of the Port , although then the Enemies Goods , or Counterband Goods were not Aboard .

The Lords upon a part of this Debate , having formerly written to my Lord Secretary , to know the Kings mind whether the Swedes , by their Treaty , might carry from other Countreys , that which was de jure communi Counterband , albeit not Counterband by their Treaty , his Majesties answer was negative , whereupon the Lords proceeded to consider whether Tar was Counterband , de jure communi , they found it was , but did not find the Stock-fish Counterband , except in the case of a siege , to which point Secretary Morish Letter was produced , in relation to the Custom of England , and having also considered the Proclmation of War , in which there is no mention of returns , but only a Warrand to sease Ships belonging to Enemies , having in them Enemies Goods , or Counterband Goods , and having also considered the Admirals Commission , which extends only to the return of Counterband Goods , and not to the return of Enemies Goods ; and it being offered to be proven positive , that by the Custom of England , no seasure is sustained upon returns , but only when Enemies Goods or Counterband are actually taken Aboard ; they were unclear whether seasure should be sustained in any other case upon returns , and therefore ordered an other Letter to be written to the Secretary , to know the Kings Mind , and the Custom of England in that point before answer , and ordained the opinion of some Merchants to be taken , whether Parkmans Ship Fraught in Norway to Holland , and Disloaden there , and thence going to France with Ballast , not upon the account of the former Fraught , but the Owners , if it should be accounted one Voyage , or two , so that the return from France , might be accounted the immediat return of the Voyage to Holland .

In this Processe the Lords , by a former Interlocutor , had found the taking on of the Men , as they were qualified and proven , to be no ground of seasure .

Dowgal Mcferson contra Alexander Wedderburn , Eodem die .

DOwgal Mcferson having Charged Alexander Wedderburn of Kingennie , Provost of Dundee , for payment of a Sum of Money , he Suspends on this Reason , that the Sum was payable to Dowgal and his Wise in Liferent , and contained a Clause of premonition , and Requisition , and the Sum to be Consigned in the Hands of the Dean of Gild of Dundee , which was Consigned accordingly . The Charger answered , that he offered to prove by the Suspenders Oath , that he took up the Money from the Dean of Gild , and therefore he must re-produce the same , with the Annualrents thereof since the Consignation . It was answered , that it being the Chargers fault , that the Suspender was put to Consigne , because he had not a Discharge granted by his Wife judicially , that therefore he could not be lyable for Annualrent , in that he uplifted the Soum , unlesse it were proven he had made Profit thereof , but he offered to Depone , that he had all the Money still lying by him , and got no Profit of the same , and that he ought to have uplifted , in regard he was lyable for the hazard of the Consignation .

The Lords found the Suspender lyable to produce the Money Consigned , with the Annualrent since , seing he uplifted the same without difference , whether he made Profit or not .

The Baillie of the Regality of Killimure contra Burgh of Killimure , Eodem die .

THe Heretable Baillie of the Regality of Killimure having Conveened , and Amerciat a Person in the Burgh , they Suspend on this Reason , that the Burgh being a Burgh of Regality , having its own Magistrats Inhabitants , are only lyable to the Jurisdiction . It was answered , that the Burghs Jurisdiction being granted by the Lord of Regality , is only cumulative , and not exclusive of the Lord of Regality , or his Baillie , in the same way , as the Jurisdiction of all Vassals is not exclusive of their Superiors Jurisdiction , for the Burgh are Vassals Holding of him , and therefore est locus preventioni , and the first Citation , without negligence , is preferable .

Which the Lords found Relevant .

Earl of Argyle contra George Campbel , Ianuary 15. 1668.

THe Earl of Argyle pursues George Campbel , to Remove from a Tenement of Land in Inerera , who alleadged no Processe , because the Pursuer produces no Infeftment of this Burgh , or Tenement therein . The Pursuer answered , that he produced his Infeftment of the Barony of Lochow , and offered him to prove , that this is part and pertinent of the Barony . The Defender answered , that this Burgh cannot be carried as part and pertinent , but requires a special Infeftment . first , Because by the late Marquess of Argyls Infeftment , in anno 1610. produced , this Burgh is exprest , and not in the Pursuers Infeftment . 2dly , Because in the Pursuers Infeftment , there is exprest particulars of far lesse moment . 3dly , Because a Burgh of Barony is of that nature , that cannot be convoyed without special Infeftment . The Pursuer opponed his Infeftment of the Barony of Lochow , which is nomen universitatis , and comprehends all parts of the Barony , although there were none exprest , and therefore the expressing of this particular in a former Charter , or lesse particulars in this Charter derogat nothing , it being in the Pursuers option to expresse none , or any he pleases ; and albeit in an Infeftment of an ordinary Holding , without Erection in a Barony , Milns , Fortalices , Salmond Fishings , and Burghs of Barony cannot be conveyed under the name of part and pertinent , yet they are all carried in baronia , without being exprest .

The Lords Repelled the Defence in respect of the Reply , and found that this being a Barony , might carry a Burgh of Barony , as part and pertinent , though not exprest , albeit it was exprest in a former Infeftment , and lesser Rights expressed in this Infeftment .

The Defender further alleadged no Processe , because the Pursuers Infeftment is qualified , and restricted to so much of the Estate , as was worth , and payed yearly fifteen thousand Pounds , and the superplus belongs to the Creditors , conform to the Kings Gift , likeas the King granted a Commission to clear the Rental , and Set out the Lands to the Pursuer , and to the Creditors , who accordingly did Establish a Rental , wherein there is no mention of the Lands of Innerera , and therefore they cannot belong to the Pursuer . It was answered for the Pursuer , that he oppones his Infeftment , which is of the whole Estate , and whatever Reservation be in Favours of the Creditors , it is jus tertij to the Defender . It was answered , that the Defenders Advocats concurred for a number of the Creditors , whom they named , and alleadged that they would not suffer the Defender to be Removed , seing they only can have Interest to these Lands in question . The Pursuer answered , that the Creditors Concourse or Interest was not Relevant , because they have no Real Right or Infeftment , but only a personal Provision , that this Pursuer shall dispone , and Resigne the superplus of the Estate in their Favours , or otherwise pay them eighteen years purchase therefore at his option , whensoever they shall insist Via actionis , the Earl shall declare his option , but they having no Infeftment cannot hinder the Donatar to Remove , Parties having no Right , which is the Creditors advantage , and cannot be stopped by a Few of them , likeas the whole Barony of Lochow is Set out by the said Commission , to the Pursuer himself , conform to their Sentence produced .

The Lords did also Repel this Defence , and found that the Provision in Favours of the Creditors , could not stop this Removing .

Earl of Kinghorn contra the Laird of Vdney , Eodem die .

THe Earl of Kinghorn pursues the Laird of Vdney , as representing his Father , to Denude himself of a Wodset Right , granted by the late Earl to the Defenders Father , conform to the Defuncts Missive Letter , acknowledging the Receipt of the Sums of the Wodset , and obliging himself all written with his own Hand , and craved that the Defender might Enter , and Infeft● himself in the Wodset , and Resigne in Favours of the Pursuer , that the Lands might be purged thereof , and insisted against the Defender ▪ first , As lawfully Charged to enter Heir , who offered to Renunce to be Heir . The Pursuer answered , he would not suffer him to Renunce , because he offered him● to prove that he was lucrative Successor by the Disposition of the Lands of Vdney , whereunto their is an expresse Reservation in Favours of his Father , to Dispone , Wodset , and grant Tacks , and therefore any Deed done by his Father , behoved to affect him , at least the Fee of the Estate ; so that albeit this Letter be posterior to the Disposition of the Estate , it must Burden the same , and the Defender quoad valorem . 2dly , The Letter produced , acknowledges a Wodset , and payment made , and it is offered to be proven , that the Letter was anterior to the Disposition of Vdney , so that by the Receipt of the Wodset Sums , the Defunct was ( by the Nature , and Tenor of the Rights of Wodset ) obliged to Resign in Favour of the Pursuer , and therefore the Defender Succeeding to him by this Disposition , after that obligement , to Denude himself ▪ upon payment is obliged as Successor , titulo lucrativo post contractum debitum , to Denude himself , and that the Wodset was prior to the Disposition of Vdney , was offered to be proven . The Defender answered , that the provisions in his Infeftment could never affect him , nor the Estate , because there was nothing in the provision , that the Estate should be lyable to the Debts contracted by the Defunct thereafter , but only that he might Dispone , or Wodset , or Redeem for an Angel , and it cannot be subsumed , that the Letter produced doth import any of these , but at most a personal obligement . 2dly , Albeit it were notour , that there had been such a Wodset before the Defenders Disposition of his proper Estate , yet it behoved to be also instructed , that it was payed before that Disposition , but his Fathers Missive after his Disposition , could never instruct that it was payed , or payed before , and yet the Defender offered to Renunce all Right he had to the Wodset Lands , or to suffer an Certification , and Improbation to passe against the same , seing they are not extant or produced , or to consent that the Lords would declare upon the Letter , that the Wodset thereby was Redeemed , and Extinct , which last the Pursuer would have accepted , providing the Defender would give a Bond of Warrandice for his Fathers Deed , and his own , which the Defender refused .

The Lords proceeded to determine the Point in jure ; and as to that Point anent the provision , in the Defenders Infeftment , some were of opinion , that any Debt contracted by the Father , would affect the Estate , others thought not , there being no provision to contract Debt , but to Wodset or Dispone , which was not done , and all agreed , that the Case being new , and now very frequent , required a more accurat Debate ; but the Lords found that the Defenders Father , having by his Letter acknowledged the Wodset , and the payment thereof , to which Wodset the Defender had no Right , that any grant of Redemption by the Father ( after his Disposition to his Son ) was probative against the Son , and that the Letter being proven Holograph , did instruct the Wodset to be payed , and therefore sound it relevant to the Pursuer , to prove that the Wodset was before the Defenders Disposition , and that it did import a conditional obligement , that the Father should Resign upon payment , and that the Sons Disposition being after the Wodset , he was lucrative Successor , after that obligation contracted by the Wodset .

Captain Strachan contra George Morison , Ianuary 17. 1668.

CAptain Strachan having obtained Decreet before the Admiral , against George Morison for wrongous Intromission of a Loadning of Wine , belonging to the Pursuer , in anno 1638. which was brought home by him , in the Ship called Stulla , whereof he had an eight part , and the Defenders the rest ; and the Pursuer being Skipper , did upon his own Credit buy the Wine , and having brought it home , the Ship was broken at Newburgh , and Loadning was medled with by the Defenders , whereupon they are Decerned to pay conjunctly and severally . George Morison raises Reduction on two grounds . first , That the Decreet was unjust , in so far as the Defenders were Decerned in solidum , each for the whole . 2dly , That there was no probation of any of their Intromissions , but upon the Testimony of one Witnesse , and Captain Strachans own Oath taken in Supplement . It was answered to the first Reason , that the whole Intrometters were justly Decerned in solidum . first , Because this was in it self a Spuilzie ; and albeit the Defender did not insist within three years , yet he ought not to be excluded , because he was in the Kings Service all the time of the trouble , and fled the Countr●y at the time of this Intromission . 2dly , Because the prescription of the priviledge of Spuilzie is only in relation to violent profits , and the Oath in litem , and these are only lost , if pursute be not within three years , but the Parties being all lyable in solidum is not lost , for the Intromission remaines still a wrongous Intromission , and is not in the same case as a Vindication , and Restitution of Goods in the Defenders hands , without Violence or Vice , and in many cases correi , are lyable in solidum , as Tutors , or where the Intromission is joynt , or promiscuous , for it were against reason , if there were many vitious Intrometters , that the particular Intromission of each of them behoved to be proven , which oft times is impossible , as in the same case , and likewise socij are lyable in solidum , and here was a co-partnery betwixt these Parties . It was answered for Morison , that there was three years elapsed since the Kings Restauration before any pursute , and though that had not been , there is nothing that can stop that short prescription , and therefore infancy or minority hinders not the course thereof , and in this case the Decreet in question restricts to wrongous Intromission . As to the second , all the priviledges of Spuilzie are lost by the prescription ; and it was never found at any time , that in wrongous Intromission , the Parties were all lyable in solidum , especially where the thing Intrometted with was divisible , as Wines ; and as to the alleadged co-partinery there was nothing Lybelled thereon .

The Lords did not consider the poynt of co-partinery , but found that in wrongous Intromission , each Intromettor was not lyable in solidum , but a joynt Intromission proven against many , did in●er against each of them , an equal share , unlesse the Pursuer proved that they Intrometted with a greater share , and found not a necessity to prove against each of them the particular quantity of their Intromission .

Walter Stuart contra Robert Acheson . eodem die .

WAlter Stuart as being infeft in the Baronie of North-Barwick , and being charged for the whole Taxation thereof , Charges Robert Acheson for his Proportion , according to the Stent Roll , who Suspends on this Reason ▪ that his Interest is only Teinds , which is only applyed to the Ki●k , whereof he produces the Bishops Testificat , and therefore by the exception of the Act of Convention he is free . The Charger answered non relevat , because the Suspender ought to have conveened at the Dyet appointed , by the Act of Convention , for making of the Stent Roll , and there have instructed that his Teinds were exhausted , wherein having failzied , and being taxed , no other could pay for him , neither could the King lose that proportion . It was answered , that he had no interest to conveen , the Minist●r having the only Right to his Teinds .

The Lords Repelled the Reason , and adhered to the Stent Roll , but prejudice to the Suspender , to seek his relief of any Partie he pleaseth , as accords .

Mr. Andrew Brown contra David Henderson , and Thomas George , Ianuary 18. 1668.

MAster Andrew Brown granted a Bond of 700. Merks , blank in the Creditors Name to George Short , wherein the Name of David Henderson is now filled up . Thereon George having Arrested all Sums due to Alexander Short in the hands of Mr. Andrew Brown , he raises a double Poynding , wherein the Competition arises betwixt the Arrester , and the the Person whose Name is filled up in the blank Bond. It was alleadged for the Arrester , that he ought to be preferred , because he Arrested Shorts Money , and at the time of the Arrestment , this Bond having been Delivered to Short blank in the Creditors Name , Short was Creditor ay and while , not only another Name were filled up , but also an Instrument of Intimation were taken thereupon , for Shorts filling up of the Name of Henderson , is no more then an Assignation , which requires Intimation , and is excluded by an Arrestment before the Intimation , albeit after the Assignation . It was answered for Henderson , that there needed no Intimation to the filling up of a Creditors Name in a blank Bond , which was never required by Law nor Custom , and his Bond being now in his own Name , nothing could prove that it was blank ab initio , or that it did belong to Short , but Hendersons own Oath , in which case it would be sufficient for him to Depone qualificat● , that the Bond indeed was blank ab initio ; and delivered by the Debtor to Short , and by Short to him , and his Name filled up therein before the Arrestment , or at least that before the Arrestment , he had showen the Bond filled up to the Debtor , which is equivalent , as if he had given back the first Bond , and gotten a new Bond from the Debtor , after which , no Arrestment ( upon account of the prior Creditor ) could be prejudicial to him , ita est , he hath done more , for he hath proven that before the Arrestment , the Bond was produced● and shown to Birny the Debtor . It was answered , that in a former case , in a Competition of the Creditors of Alexander Vetch , the Lords found that the Arrestment laid on , before Intimation of the filling up of a blank Bond , preferred the Arrester , and that otherwise Collusion could not be evited with these blank Bonds , to exclude and to save Creditors Arresting .

The Lords preferred Henderson , whose Name was filled up , and presented to the Debtor before the Arrestment ; for in Vetches Case there was nothing to instruct that the Bond was truely filled up , and presented to the Debtor before the Arrestment ; and they found the filling up , and presenting thereof sufficiently proven by the Witnesses , taken ex officio .

Pollock contra Pollock and Rutherfoord , Eodem die .

UMquhil Iohn Pollock in the Cannongate , having given a Bond to Iames Pollock his Son of 5000. Merks , he pursues Robert Pollock the Heir of Line , and Pollock , Heir of the second Marriage , for payment . The Heir of Line Compearing , Renunced : whereupon the Pursuer insisted against the Heir of Provision , who alleadged no Process , till the Heretage be falling to the Heir of Line were first discust , and condescended upon the Heirship Moveable . The Pursuer answered , there could be no Heirship in this Case , because the Heir of Line had Renunced all he might Succeed to by his Father , Heretable , or Moveable , in Favours of his Father , his Heirs and Executors bearing expresly , that his Wife , and his Bairns of the second Marriage should have the whole Right : Ita est , Rutherfoord ; the Wife had Confirmed the whole Moveables promis●ue , without exception of Heirship , and therefore the Heir of Line himself ( if he were Entered ) could claim none . It was answered , that the Renunciation of the Heir apparent of Line , being in Favours of his Father , after his Fathers death , it returned back to him from his Father as Heir of Line again , and could go to no other Person , neither thereby could the Heretable Moveables belong to the Executor .

The Lords found the Renunciation sufficient to exclude the Heir of Line from the Heirship Moveable , and that they did thereby belong to the Fathers Exe●utor , therefore found no further necessity to discusse the Heir of Line , and Decerned against the Heir of Provision .

Grissel Stuart contra the Laird of Rosyth her Brother , Ianuary 21. 1668.

UMquhil Rosyth gave a Bond of Provision to his Daughter Grissel Stuart of 10000. pounds , payable at her age of 17. years , with an Obligement to Entertain her in the mean time , but no Obligement of Annualrent ; she pursues her Brother ( as representing her Father ) for Implement , and having Lived with her Uncle a part of her Fathers time , and alleadging that she was hardly used by her Step-mother , she craves Aliment for that time of her Fathers Lifetime , and for six , or seven years since his Death , or craved Annualrent for her Sum. The Defender alleadged Absolvitor , as to the Annualrent before her Fathers Death , because she ought to have continued in her Fathers Family , and there neither is , nor can be alleadged any just Cause wherefore she should have deserted the same . 2dly . Absolvitor from Annualrent , or Entertainment since her age of 17. years , because the Bond bears Entertainment till that age , and no Entertainment , or Annualrent thereafter . 3dly , She does not , nor cannot alleadge that she payed out any thing for Entertainment , but was Entertained gratis by her Uncle .

The Lords found this no ground to exclude her from Aliment , and found Aliment due after the Term of her Bond , as well as before , but not Annualrent , and modified six hundreth Merkes per annum , without allowing any thing for the year her Father Lived , but modified the more largely , it being unfit to Dispute the necessities of her Removal .

Ianet Schaw contra Margaret Calderwood , Eodem die .

JAnet Schaw pursues a Reduction of a Liferent Infeftment , granted to Margaret Calderwood by the Pursuers Father , as being in lecto . The Defender alleadged no Processe , because the Pursuer was not Heir the time of the Disposition , but another Heir appearand , who never Entered .

The Lords Repelled the Defence .

The Defender alleadged that this being an Liferent Infeftment to her by her Husband , and but of a small value , it was valide , and the Husband might Discharge that natural Debt of providing his Wife on Death-bed , she having no Contract of provision before , The Pursuer answered , that the Defender might take the benefit of her Terce , which is her legal Provision , beyond which , a Deed on Death-bed ( in prejudice of the Heir ) is null , and this Liferent is of the Husbands whole Estate , and yet the Pursuer is willing it should stand , it being restricted to a third of the Rents of the Lands .

The Lords Sustained the Infeftment only for a third .

Mary Dowglasse Lady of Wamphray , contra the Laird of Wamphray , Ianuary 22. 1668.

UMquhil Wamphray having Infeft his Lady in two thousand Merks of Liferent yearly , by her Contract of Marriage , out of certain Lands therein mentioned ; and being obliged to pay her , as well Infeft , as not Infeft , and to warrand the Lands to be worth two thousand Merks of Free Rent . She pursues this Wamphray for payment , who alleadged Deductions of publick Burdens . It was answered , that an Annualrent was not lyable to publick Burdens ; for the Act of Parliament , 1647. made thereanent was Rescinded , and not Revived , and this Provision is payable , not only really , but personally , though there had been no Infeftment , and that the obligement to make the Land worth two thousand Merks of free Rent , could be to no other End but to make the Annualrent free , especially the Contract being in anno 1647. after Maintainance was imposed , which was the heaviest Burden . It was answered , that an obligement for payment of an Annualrent , relating to no particular Land , could not be burdened with the Land , or if it did relate to a stock of Money , the ordinar Annualrent of the Money behoved to be free , but this Annualrent relates to no stock , and its first Constitution is out of the Lands mentioned in the Contract ; so that albeit there had been no Infeftment , it must bear proportionably with the Land , and albeit the Act of Parliament be Rescinded , yet the common ground of Law and Equity , and the Custom thereupon remains , neither doth the provision ( to make the Land worth so much of free Rent ) infer , that therefore the Annualrent must be free , which would have been so exprest at the Constitution of the Annualrent , if it had been so meaned .

The Lords found this Annualrent lyable for the Assesment , notwithstanding the Act of Parliament was Rescinded , and all that was alleadged against the same , was repelled .

Iohn Iustice contra Mary Stirling his Mother , Ianuary 23. 1668.

THere was a Bond granted by Stirling of Coldoch , whereby he granted him to have received from Umquhil Iohn Iustice , and Mary Stirling his Spouse , the Sum of 1300. Merks , and obliged him to pay to the said Husband and his Spouse , and longest liver of them two , and the Heirs gotten between them , or their Assigneys , which failzying to the Heirs of the last liver : the said Mary having survived , did uplift the Sum , and now Iohn Iustice ( as Heir of the Marriage to his Father ) pursues his Mother to make forthcoming the Sum , and imploy the same to her in Liferent , and to him in Fee . It was alleadged for the Defender Absolvitor , because by the conception of the Bond she is Feear , and so may dispose of the Money at her pleasure . The Pursuer answered , that the conception of the Bond did no wayes make the Wife Feear , but the Husband , according to the ordinar Interpretation of Law in Conjunct-fees betwixt Husband and Wife ; and as to the Clause , in relation to the longest liver , their Heirs and Assigneys , the Fee could not be Constitute thereby , otherwise the Fee behoved to be pendent and uncertain , and in effect be in no Person so long as they live together , but after the Death of either , the Fee should then begin to be Constitute in the Surviver , which is inconsistent , and therefore the Fee behoved to be Constitute by the first words , obliging to pay the Sum to the Husband and Wife , the longest liver of them two , whereby the Husband was Feear and might have disposed thereupon during his Life , but without prejudice of his Wifes Liferent ; there is no doubt but this Sum might have been Arrested for his Debt , and it could not be then pretended that ex even●u , the Wife by surviving might become the Feear . It was answered for the Wife , that albeit Conjunct-fees between Man and Wife do ordinarly Constitute the Husband Feear , yet there are many Cases in which such Conjunct fees the Wife may be Feear , and here the termination being upon the Surviver , makes her the Surviver sole Feear , although both were Conjunct Feears before , and neither of them properly a Liferenter , till by the event it did appear who should Survive , neither can any such subtilty of the dependence , or uncertainty of the Fee , render the intention of the Parties ineffectual .

The Lords found , that by the foresaid Clause , the Husband was Feear , and the Heirs of the Marriage , were Heirs of Provision to him , and that failzying the Heirs of the Marriage , the Wifes Heirs were substitute as Heirs of Tailzie , and therefore ordained the Sum to be so imployed , and secured , that if the Pursuer being the only Heir of the Marriage should Die before he dispose thereupon , it should return to the Heirs and Assigneys of the Mother .

The Lady Wolmet and Dankeith her Spouse , contra Major Biggar , and Iames Todrig , Ianuary 24. 1668.

THe Lady Wolmet and Dankeith her Spouse , pursues Major Biggar , and the Tennents of Wolmet for Mails and Duties . Compearance is made for Iames Todrig , who being Assigned to an Annualrent , due out of the Lands of Wolmet , to the old Lady Wolmet by an Infeftment , long prior to this Ladies Infeftment ; upon which Right there was also raised an Inhibition , whereupon Todrig ( as Assigney ) pursues Reduction of the Pursuers Right , and several others , and obtained Decreet thereupon , and now alleadges that the Lady can have no Mails and Duties , because her Right stands Reduced at the Instance of the said Iames Todrig , who hath also Appryzed upon his anterior Annualrent . The Pursuer answered , that the alleadgeance ought to be repelled , because the Right of his Annualrent , Appryzing , and Reduction has been several years in the Person of Major Biggar , who has been all that time in Possession of the Lands , and therefore by his Intromission , Todrigs Appryzing is satisfied within the legal . It was answered for Major Biggar , albeit the Right was , and had been his , and he in Possession , yet the Appryzing cannot be satisfied thereby , unlesse he had Possest by vertue of the Appryzing , which cannot be alleadged , because he offers him to prove that he Entered , and continued in Possession many years before he got this Right , by vertue of other Infeftments . The Pursuer answered , that by the Reduction at Todrigs Instance , all Major Biggars Rights stands reduced , so that albeit by them he entered in Possession , yet he cannot ascribe his Possession to them after they were Reduced . It was answered , that albeit his Rights were Reduced , there was no Removing , or Action of Mails and Duties intented against him upon the prevailing Right , and therefore his Possession behoved to be ascribed to his prior Possession , though Reduced . 2dly , He having now divers Rights in his Person , may ascribe his Possession to any of them he pleases against this Pursuer , from whom he derived not his Possession , nor the Cause thereof . 3dly , It was answered , that the Pursuer might acquire this Right , ad hunc effectum to purge it , and the Inhibition , and Reduction thereon , in so far as it might be prejudicial to his prior Rights , and not to bruik by it . The Pursuer answered , that albeit Biggar might have acquired this Right , to evacuat and purge the same , if that had been declared in his acquisition thereof , or otherwise legally , yet not having done it , he must be understood to bruik only by that Right that was standing . 2dly , If he should declare that he did acquire it to purge it , then , as his own Right , revives which was Reduced , so must this Pursuers Right , which was also Reduced in that same Reduction revive , especially in casu tam favorabili , that the Pursuer may not be excluded from her Liferent , which is her Aliment , and seing the Decreet of Reduction was obtained by meer Collusion , and is offered to be disclaimed upon Oath , by the Advocats marked , Compearing therein .

The Lords found that Major Biggar behoved to ascribe his Possession to Todrigs Right , and to none of the Reduced Rights , all being joyntly in his Person , and not having declared quo titulo possidebat , and that he cannot now declare that he makes no use of Todrigs Right , in so far as may be prejudicial to his own prior Rights , and makes use of it as it is prejudicial to the Pursuers Rights , which were reduced together , seing the Pursuers Rights would have excluded the Majors other Rights , to which he would now ascribe his Pessession .

Magistrats of contra the Earl of Findlator , Eodem die .

THere was a Bond granted by one Iackson Principal , and a Cautioner which is also alleadged to have been Subscribed by Umquhil Inch-Martin as an other Cautioner ; which Bond being Registrat at the Creditors Instance , he did thereupon Incarcerat the principal Debtor , whom the Magistrats having suffered unwarrantably to escape ; the Creditor obtained Decreet against the Magistrats for payment of the Debt . The Magistrats payes the Debt , but takes Assignation from the Creditor , and now as Assigney pursues the Earl of Findlator , as Representing Inchmartin one of the Cautioners for payment , who alleadged Absolvitor . first , Because the Bond is null as to Inchmartin , wanting both Date and Witnesses ; for it bears to have been Subscribed by the Principal , and the other Cautioner , at such a place , such a day , before these Witnesses , who are subjoyned , and designed , and after the Names of these Witnesses sayes , and subscribed by Inchmartin , at after which there nothing follows in the Bond , but the Subscriptions of Parties , none of which subscribe as Witness to Inchmartin , yet his Subscription is amongst the Subscriptions of the other Parties , but as to him it hath neither place , day , nor Witnesses . The Pursuer offered to condescend , that the day and place of the Subscription of the Witnesses , were the same to Inchmartin , as to the Principal and other Cautioner , which they alleadged to be sufficient to make up this nullity , as is ordinar where the Writer and Witnesses are not Designed , for thereupon the Defender may improve the Bond by the Witnesses insert . The Defender answered , that albeit the Lords supply the want of Designation of Writer or Witnesses , by condescending on their Designation , that means of Improbation may be afforded , which is not the question here ; yet the Lords did never suffer Parties to fill up Witnesses , where no Witnesses were insert , nor no Date , either as to Year or Moneth .

The Lords would not Sustain the Bond upon this condescendence , but ex officio ordained the Witnesses ( if they were alive ) to be Examined , whether they were Witnesses to Inchmartins Subscription , that same day , and place with the rest , reserving to themselves what their Testimonies should ●perat .

The Defender further alleadged Absolvitor , because he offers him to prove , that the●e was a Decreet against the Magistrats now pursuing , at the Instance of the Creditor , for payment of the Debt , because they suffered the Principal Creditor Incarcerat to escape , so that the Debt being payed by the Magistrats , coming in the place of the Principal Debtor ex delicto , it is in the same case , as if the Principal Debtor himself had payed ; which necessarly liberats his Cautioners . It was answered , that the Magistrats are only lyable to the User of the Diligence , pro damno & interesse , and to no other , for the Creditor ( User of the Diligence ) might have consented to the escape of the Rebel , or might discharged the subsidiarie Obligation , or Action competent , against the Magistrats for suffering him to escape , whether the Cautioners would or not , and therefore the Magistrats might as well take an Assignation from the Creditor for payment of the Debt , which implies the Creditor his passing from them as bound ex delicto , in which case he would only have given them a Discharge , but here the Magistrats Contracts with the Creditor , and acquires the Assignation , ut quilibet upon an equivalent Cause . It was answered for the Defender , that this Assignation is evidently simulat in place of a Discharge , there having preceeded a Decreet against the Magistrats , ita est , that Assignations granted to persons obliged for a Debt , doth operat alwise as to the Matter only as a Discharge , though more summarly , as when Cautioners pay , and are Assigned , they must allow their own part , but much more these who are lyable ex delicto , having payed upon a Decreet , cannot seek relief , whether they have Assingation or Discharge , especially against Cautioners , and if this were Sustained , all Rebels who had Cautioners might be suffered to escape , where there is any Cautioners , for Messengers might be Deforced , taking Assignation to the Debt , and proceeding against the Cautioners , and albeit the user of the Diligence might consent to the Liberation , yet he could not pass from the Obligation , ex delicto , which accresceth to all Parties having Interest ; and if the Cautioners had been dist●est by the Creditor , they might pursue the Magistrats , suffering the Principal to escape , ex delicto & damno , for if he had not been suffered to escape , they would have been payed .

The Lords found this Defence relevant , that the Magistrats pursuers , having suffered the Rebel to escape , and Decreet against them , and having satisfied the Debt to the Creditor , that they could not have recourse against the Cautioners , either by vertue of a Discharge ; or Assignation . Here it was not Debated , whether or not they might have recourse against the principal Debtor escaping , who was principaliter in delicto , and the Magistrats but accessory .

Mr. William Mushate Minister of Hassenden , contra the Duke and Dutches of Buccleugh , Ianuary 28. 1668.

THe Minister of Hassenden having obtained Designation of a Gleib , out of the Duke of Buccleughs Lands , pursues Removing . The Duke Suspends on this Reason that the Designation is null , not bearing Citation , nor ●numation to the Parochiners , neither is the Duke Cited to the Designation upon 60. dayes , as being out of the Countrey . It was answered , that by the constant Custom in such Cases , there is only Intimation given at the Kirk Door , or out of the Pulpit of the day of Designation , which the Defender offers to prove , uses to be done in the like case .

Which the Lords found relevant , albeit the Intimation was not mentioned in the Designation .

Robert Dobby contra the Lady Stanyhil his mother , Eodem die .

RObert Dobby pursues the Lady Stanyhil his Mother , for an Aliment , upon this ground , that she being provided to an plentiful Liferent , being an Annualrent of 2800. Merks yearly , there remains nothing to Aliment him the Heir , of free Rent , being all exhausted by the Liferent , and Annualrent of the Debt . The Defender alleadged Absolvitor , because there is no ground in Law nor Custom for an Aliment to the Heir , except the Rents were exhausted by real burdens by Infeftment ; but here at the Defuncts Death , there was only this Liferent , which was not the half of the Rent , and there was no Infeftment more . 2dly , Aliments is only competent to Minors , the Pursuer is Major , and may do for himself . The Pursuer answered , that it was alike whether the Debts were personal , or real , for if Apprysings had been used , they would all have been real , but the Pursuer did prevent the same , by Selling a part of the Land at a great Rate , which was all applyed to the Creditors , and yet the Liferent , and Annualrent of the Debt is ▪ more then the Rent ; neither is there any distinction in the Law as to Majors and Minors , who were not bred with a Calling ; and therefore Carberry ( who was a man of age ) got an Aliment , and Anthonia Brown got an Aliment from her Mother , who had an Annualrent in Liferent , and the Debts were all personal at her Fathers Death , albeit some of them were Appryzed for , before she got her Aliment . The Defender answered , that there was a sufficient Superplus , because she offered to take the Lands , or find sufficient Tennents therefore , for 4300. Merks yearly , which was a 1000. Pounds above her Liferent , and would exceed the Annualrents of all the Debts .

The Lords found this last Defence relevant , but did not proceed to determin● , whether an Aliment would be due , where the burden was but by personal Debt .

Alexander Binny contra Margaret Binny , Eodem die .

MArgaret Binny granted a Bond , obliging her self to Enter Heir of Line to her Father , and to Resign the Lands in Favours of her Self , and the Heirs to be Procreat of her own Body ; which failzying , to the Heirs of Alexander Binny her Father , and obliged her self to do nothing contrair to that Succession ; and having Married William Brotherstanes , by her Contract of Marriage , nomine dotis , she Dispones the Lands to him . This Margaret was the only Child of Alexander Binnies first Marriage , and there was an Inhibition used upon the Bond , before her Contract of Marriage : Alexander Binny being Son of the second Marriage , and Heir of Line to his Father , pursues the said Margaret to fulfil the Bond , and to Enter , and Resign the Land conform thereto , and thereupon did obtain Decreet , which being now Suspended . It was alleadged , that this being but an obligement to Constitute a Tailzy , could have no effect to hinder her to Dispone to her Husband in name of Tocher , which is the most favourable Debt , or to Contract any other Debt , which the Pursuer ( who behoved to be her Heir ) could never quarrel . 2dly , It was alleadged for the Husband , that he could not be Decerned as Husband , to consent to this Resignation , contrair to his own Contract . It was answered , that this was not only a Bond of Tailzy , but an obligement to do nothing that might change the Succession , and so she could not voluntarly Dispone , but the Husbands Provision might be Competent enough , seing both she has the Liferent , and the Children of the Marriage will succeed in the Fee● and albeit the Pursuer must be Heir of Tailzy , yet obligements in favours of Heirs of Tailzy , are alwayes effectual against Heirs of Line , in relation to whom the Heir of Tailzy is but as an stranger .

The Lords repelled the Reason , and found the Letters orderly proceeded , till the Wife Entered , and Resigned with Consent of her Husband , conform to the Bond , seing there was Inhibition used before the Contract ; but they did not Decide , whether this Clause would have excluded the Debts , to be Contracted by the said Margaret , or her Heirs , upon a just ground without Collusion , but found that she could not make a voluntare Disposition , to exclude that Succession , in respect of the obligement to do nothing in the contrair .

E●phan Brown contra Thomas Happiland , Ianuary 29. 1668.

MArjory Brown being first Married to Happiland , and thereafter to Robert Brown ; she Acquired Right to a Tenement of Land to her self in Liferent , and Euphan Happiland her Daughter of the first Marriage in Fee ; which Infeftment is given by the said Thomas Brown her Husband , being then Bailly for the time . Agnes Happiland Dispones this Tenement to Thomas Brown , Heir of the Marriage , betwixt the said Umquhil Thomas Brown , and Marjory Bruce , and for the price thereof , gets a Bond relative thereto . Thomas Brown being Charged upon this Bond , raises Reduction upon Minority and Lesion . To the which it was answered , there was no Lesion , because the Disposition of the Land was an equivalent Onerous Cause . It was answered , that the Disposition was no Onerous Cause , because the Lands Disponed , belonged not to the Disponer , but to the Suspender himself , in so far as they were Conquest by Marjory Bruce , while she was Spouse to his Father , so that the Money ( wherewith she Acquired the same ) belonging to the Husband jure Mariti , the Land must also be his , unlesse it were condescended and instructed , that she had Heretable Sums , not falling within the jus Mariti , wherewith this Right was Acquired . It was duplyed , that this was but a ●aked Conjecture and Presumption , which is sufficiently taken off , by the Husbands giving Seising as Bailly . It was answered , that this was actus officij , which he could not refuse , but he knew that the Infeftment in favours of his Wife , would accresce to himself .

The Lords repelled the Reasons of Suspension and Reply , in respect of the Answer and Duply , and found that the Fee of the Land belonged to the Wife and her Daughter , and that there was no Lesion in giving Bond therefore .

Laird Aitoun contra Iames Fairy , Eodem die .

THe Laird of Aitoun having bought a Horse from Iames Fairy ; pursues for repetition of the price , and for entertainment of the Horse since , upon this ground , that he offered to prove by the Witnesses , at the buying of the Horse , that Iames Fairy promised to uphold him but six years old , and that he was truly twelve years old : The question was , whether this was only probable by Oath , or Witnesses .

But the Lords perceiving an anterior question , how soon the Horse was offered back by the Pursuer , they ordained him to condescend , that very shortly thereafter he offered the Horse back , otherwise they would not sustain the Processe .

John Papla contra the Magistrats of Edinburgh , Ianuary 31. 1668.

JOhn Papla pursues the present Magistrats of Edinburgh , for payment of a Debt due to him , by a Person Incarcerat in their Tolbooth , who escaped . The Defenders alleadged no Processe , till the Magistrats who then were , especially Bailly Boyd ( by whose Warrand the Rebel came out ) be called . 2dly , The present Magistrats cannot be lyable Personally , having done no Fault ; neither can they be lyable , as representing the Burgh , at least but subsidiarie after the Magistrats who then were in culpa , were Discussed now after six or seven years time . The Pursuer answered , that the Prison being the Prison of the Burgh , the Burgh was lyable principaliter , and if only the Magistrat doing the Fault were lyable , the Creditor might oftimes loose his Debt , these being oftimes of no Fortune , or sit to Govern , and the Town who Choiseth them , is answerable for them ; neither is the Pursuer obliged to know who were Baillies at that time , or who did the fault , and so is not bound to Cite them .

The Lords Repelled the Defences , and found the present Magistrats ( as representing the Town ) lyable , but prejudice to them , to Cite them who did the Fault .

Robert Ker contra Henry Ker , February 5. 1668.

RObert Ker of Graden having granted Bond to Robert Ker his Son , for 3000. Merks of borrowed Money , and 3000. Merks of Portion ; for which Sum he did Infeft him in an Annualrent of 240. Pound yearly , Suspending the Payment of the one half of the Annualrent till his Death ; whereupon Robert pursues a Poinding of the Ground . It was alleadged for Henry Ker ( the eldest Son , who stands now Infeft in the Lands ) Absolvitor , because he stands Infeft in the Lands before this Infeftment of Annualrent being but base , took effect by Possession . The Pursuer answered , first , That the Defenders Infeftment , being posterior , and granted to the appearand Heir , without a Cause Onerous , it is perceptio Haereditatis , and if the Father were Dead , it would make the Defender lyable as Heir , and therefore now he cannot make use thereof , in prejudice of the Pursuer . 2dly . The Pursuer offered to prove , that his Annualrent was cled with Possession before the Defenders Infeftment , in so far as he Received the half of the Annual●ent , which is sufficient to validat the Infeftment for the whole , seing there are not two Annualrents , but one for the whole Sum , and seing the 〈◊〉 could do no more , the one half of the Annualrent being Suspended till his Fathers Death .

The Lords found this second Reply relevant , and found the Possession of the half was sufficient to validat the Possession for the whole , but superceded to give answer to the former Reply , till the conclusion of the Cause , not being clear , that the Defense upon the Defenders Inseftment could be taken away summarly , though he was appearand Heir without Reduction , upon the Act of Parliament , 1621.

Mr. George Iohnstoun contra Sir Charles Erskin , February 6. 1668.

THe Lands of Knock●●● , being part of the Lands of Houdon , did belong to Umquhil Richard Irwing , Umquhile Mr. Iohn Alexander Minister , having Charged Robert Irwing to enter Heir in special to the said Richard his Grand-sir in these Lands , he did Appryze the same from Robert as specially Charged to enter Heir , but Robert died before he was Infeft , or Charged ; the Superior , Sir Charles Erskine , hath Appryzed from Mr. Iohn Alexander all Right competent to him in these Lands , and thereby having Right to Mr. Iohn Alexanders Appryzing , he is Infeft thereupon . After Robert Irwings Decease , his Sisters served themselves Heir to Richard their Grand-sir , and are Infeft , do Dispone to Mr. George Iohnstoun , who is also Inseft . Mr. George pursues for Mails and Duties , in the Name of Irwings his Authors ; Compearance is made for Sir Charles Erskine , who alleadged Absolvitor . First , Because he hath been seven years in Possession of the Lands in question , by vertue of Mr. Iohn Alexanders Appryzing , and his own , and so is tulus exceptione in judicio possess●rio , and cannot be quarrelled till his Right be Reduced . 2dly , He is potior jure , and his Right must exclude the Pursuers , because he having Right to Mr. Iohn Alexanders Appryzing , which was Deduced against Robert Irwing , as specially Charged to enter Heir ; so Richard , as to him , is in as good case , as Robert had been actually Entered , and Infeft by the Act of Parliament , declaring that when Parties are Charged to enter Heir , and lyes out , sicklike Processe , and Execution shall be against them , as they were actually Entered ; likeas the Tenor of the special Charge introduced by Custom , to perfect the foresaid Act of Parliament , bears expresly , that the Person Charged shall enter specially , and obtain himself Infeft , with Certification , that the user of the Charge shall have the like Execution against him , as if he were Entered , and Infeft ; and therefore Mr. Iohn Alexanders Appryzing against Robert I●wing , so Charged , was as effectual to him , as if Robert had been actually Infeft , in which case there is no question , but the Appryzer might obtain himself Infeft upon the Appryzing , after the Death of him against whom he Appryzed , and that summarly , without new Processe , and there is no difference whether the Superior were Charged during the Life of the Debtor , or not . The Pursuer answered to the first , that no Party can claim the benefit of a Possessory judgement , unlesse he have a real Right by Infeftment , at least by Tack ; but a naked Appryzing , thoug it may carry Mails and Duties , as a naked Assigation , and is valide against the Debtor or his Heir , ●et in it self it is an incompleat Right , and not become real . It was answered , that the Appryzing alone was sufficient , as was lately found in the Case of Mr. Rodger Hog , against the Tennent of Wauchtoun .

The Lords repelled the first Defense , and found there was no grond for a Possessory judgement ; here there was neither Infeftment , nor Charge upon the Appryzing .

The Pursuer answered to the second Defense , that it was not relevant to exclude him , because Richard Irving having Dyed last , vest and seised in the Lands , and Robert Irving never having been In●eft , the Pursuers , Roberts Sisters , who were Heirs appearand , buth to Richard their Grand-sir , and Robert their Brother , could not possibly obtain themselves Infeft as Heirs to their Brother , becuse the Inquest could not find that Robert Dyed last , vest and seised as of Fee , but Richard and any Appryzing against Robert ( who was never Infeft ) evanished , seing no Infeftment was obtained upon the Appryzing , nor no Charge used against the Supperior , during Roberts Life , so that the Appryzer ought to have Charged de novo these Pursuers to Enter Heir to Richard , and ought to have Appryzed from them , as lawfully Chaged , and to have obtained Infeftment upon the Appryzing in their Life , and as the Sisters would exclude the imperfect Diligence against the Brother , so much more may Mr. George Iohnstoun , who is their singular Successor . It was duplyed by the Defender , that Mr. George Iohnstoun , albeit he be singular Successor , yet he is Infeft after Sir Charles Erskin ; and therefore the question now is only betwixt the Appryzer , having Charged the Brother in special , to Enter to these Lands to his Grand-sir , and these Sisters being Infeft as Heirs to the same Grand-sir , and albeit they could only Infeft themselves as Heirs to the Grand-sir , the Brother never having been Infeft , to the effect , that they might either Reduce , or Redeem the Appryzing led against their Brother , because the Charge to Enter Heir , did state their Brother Charged , as if he had been actually Infeft , only in relation to , and in favours of the Appryzer , who Charged him , yet as to that Appryzer , he is in the same condition , as if Robert had been actually Infeft , and there is no Law requiring him to obtain Infeftment , or to Charge the Superior during the Life of Robert , who is specially Charged ; but as in other Appryzings , so in this , he may Charge the Superior , or obtain Infeftment when ever he pleases . It is true , that if a singular Successor had obtained Infeftment upon the Resignation of Richards Heirs , Entered and Infeft before the Appryzer had obtained Infeftment , the Appryzers delay might have prejudged him , and preferred the first compleat Right , but the Heirs themselves could never exclude him , though their Infeftment were prior .

The Lordi found the second Defence and Duply relevant , and found the Infeftment upon the Appryzing ( against the appearand Heir ) specially Cla●ged , and the Appriyzing it self to be as valide , as if the appearand Heir had been actually In●eft , and that the Compryzing became not void through want of Infeftment , or Charge against the Superior , during that appearand Heirs Life .

Alexander Chisholm contra Renies , Eodem die .

ALexander Chisholm as Executor to Iohn Graham of Orchel , pursues William and Archibald Renies for a Bond , granted by them to the Defunct , in anno 1635. who alleadged that the true cause of the Bond was by Transaction of a Blood-wit , made by the Laird of Gloret , and Mr. Iames Row , in whose Hands this Bond ( then being blank ) was put , and which unwarrantably came in the Hands of Orchel the Party , who in stead of 400. Merks , filled up 2000. Merks , which is offered to be proven by the Arbiters Oaths , yet on Life . The Pursuer answered , that his Bond could not be taken away by Witnesses , especially extrinsick Witnesses , there being no Writ relative to this Bond , or of the same Date , or Witnesses that might give any presumption of the Cause thereof . The Defender answered , that there were here far stronger presumptions , viz. That this Bond hath been Dormant 33. years , albeit it bore no Annualrent , and Orchel was known to be in great necessity , and by ocular inspection , it appears to be filled up with another Hand , and blotted , which presumptions , being so singular , give ground enough to the Lords to Examine Witnesses , ex nobili officio .

The Lords ordained the Witnesses and Arbiters to be Examined ex officio , reserving to themselves what these Testimonies should operat , in respect of the antiquity and singularity of the Case .

Captain Coningsby contra Captain Mastertoun , Feb. 7. 1668.

CAptain Coningsby , Captain of a Privateer , pursues Captain Mastertoun for his share of two Prizes , taken upon the 5th . of August 1666. upon two grounds , first , upon concourse , because both these Privateers being in view of the first Prize , did both make up to her ; Coningsby being nearest , and that when they came to near distance , within half a Mile , Coningsby fired the first Gun , Mastertoun the second , and Coningsby the third ; at the firing of which the Prize streekt Sail , which signified her surrender without more resistance ; and albeit Mastertoun being to the Windward , came first Aboard , yet it was without resistance , the Prize having rendered before , by streiking Sail ; Coningsby being within a small distance , came presently up , and Demanded his share , according to the proportion of the Men and Guns of both Friggats , being the ordinar Rule of division of Prizes , betwixt concurring Friggars . 2dly , Upon the ground of consortship , or society made up betwixt the two Captains , after taking of the first Prize , and by the same consortship , craved the share of a second Prize , taken that same day , it having been agreed , that both should be sharers in all Prizes that should be taken by either , till their Victuals were spent . The Defender , Mastertoun and his Owners , alleadged Absolvitor , from both these grounds , for as to the concourse , it is not relevant , unlesse the Pursuer had alleadged that he had a real influence upon the Capture , for as to any Guns he shot , they were without a Miles distance , and Mastertouns Friggat being much lighter and swifter , did Oversail Coningsby , and when the Prize streikt Sail , Coningsby was a Mile behind , and at the same distance when she was taken , and therefore was neither concurrent in the force , nor in the fear , and as to the consortship , it was answered , first , that albeit there was a communing of consortship , yet there was no concluded agreement , for Coningsby claimed a share according to Men and Guns , which Mastertoun denyed , having far fewer Men and Guns , whereby he that took the Prize would have had the smallest share , so that it evanished . 2dly , Albeit there had been a consortship made by the Captain , yet that could not be effectual , until it had been concluded in Writ . 3dly , It could not be effectual in prejudice of the Owners ; the Captain having no power to make any such consortship , either by his office , or special Commission . The Pursuer answered , that his alleadgeance upon concurrence was most relevant , he being nearer when the Chase began , and within a small distance when the Pryze streiked Sail , and was taken ; and it cannot be doubted but the Prize had terror of both , to the second , Masters of Ships by their Office , may in many cases impignorat , or Sell the Ship , or Outreik , and Captains of Privateers having Commission to make Prize , have eo ipso , the power to use the most conducible means , and so to make consortship for that end : and albeit the first Prize was taken before the consortship , yet the Pursuer having upon his concourse demanded a proportion , conform to his Men and Guns , and being far stronger nor Mastertoun , and able to master him , and his Prize both , he might in such a case transact , and make this Co-partinary , which was useful to his Owners , making them to have the half of the first Prize , whereof they would not have fallen above a third or fourth Part , so that it was utiliter gestum , et transactum in re dubia , and whereas it is alleadged to have been but a communing , the contrair is evident , by the putting in of Coningsbies Men both in Mastertouns Ship , and in the Prize ; neither is there any necessity of Writ in such Transactions made in procinctu belli , et in alto mari .

The Lords having before answer● Examined Mastertoun and Witnesses hinc inde , for clearing the matter of Fact , Mastertoun himself did acknowledge the consortship to have been agreed upon , but affirmed that when they came to Subscribe the Writ , Coningsby craved a proportion , by Men and Guns , which he refused without an equal division , and several of the Witnesses having Deponed , that that difference was referred to the Owners without dissolving the consortship ; Mastertoun himself having also Deponed , that in contemplation of the consortship , Coningsbies Men wa● put Aboard of him and the Prize , and the Witnesses having variously Deponed anent the distance , when the first Prize streiked Sail , and was taken .

The Lords found a consortship sufficiently proven , and that there was a concourse as to the first Prize , and therefore found Coningsby to have a Right to a share , which they found to be the equal share , seing Mastertoun was most instrumental , and did actually seize upon both Prizes .

The Minister of Cockburns-path contra his Parochiners . Eodem die .

THe Minister of Cockburns-path having obtained a Designation of a Horse , and two Kines Grasse , conform to the Act of Parliament 1661. pursues a Declarator of his Right thereby . It was alleadged Absolvitor , because the Designation was null , in respect it was by the Bishops Warrand direct to three Ministers Nominatim , and it was performed only by two , the third not having come , and a Commission to the three must be understood joyntly , and not to empower any two of them , unlesse it had been exprest , likeas the Act of Parliament anent the Grasse , requires the Designation of three Ministers . The Pursuer answered , that by the Act of Parliament , 1661. the Designation of Grasse is appointed to be according to the old standing Acts , anent Manses and Gleibs , which do not require three Ministers , that number being only required by the Act of Parliament 1649. which is Rescinded , and not revived as to that point , and seing three Ministers are not neces●ar , but that two are sufficient , the Designation done by two is sufficient .

The Lords Sustained the Designation , unlesse the Defender shew weighty Reasons of prejudice upon the matter .

Sir John Weyms contra the Laird of Touchon , February 8. 1668.

SIr Iohn Weyms having a Commission from the Parliament to lift the Maintainance , when he was General Commissar , Charges the Laird of Touchon for his Lands , who Suspended on this Reason , that by that Act and Commission , singular Successors are excepted . The Pursuer answered , that the Act excepteth singular Successors , who Bought the Lands , but the Suspender is appearand Heir , and Bought in Appryzings for small Sums ; and as Wodsetters are not freed as singular Successors , nor Appryzers within the legal , so neither can the Suspender ; for albeit the legal , as to the Appryzer be expired , yet the Act of Parliament between Debtor and Creditor , makes all Apprizings Bought in by appearand Heirs Redeemable from them , on payment of the Sums they Bought them in for , within ten years after they Bought them , and therefore as to Touchon , who is apperand Heir , he is in the same case with an Appryzer , within the legal .

Which the Lords found relevant , and Decerned against Touchon .

Andrew Greirson contra Patrick Mcilroy , Messenger , February 13. 1668.

ANdrew Greirson having employed Patrick Mcilroy Messenger , to use Inhibition , and Arrestment against Sir Iames Mcdougal of Garthland , and having failed to make use thereof in time before he Disponed , did pursue him , and Houstoun of Cutreoch his Cautioner , before the Lord Lyon , whereupon the said Patrick and his Cautioner were Decerned to make payment of 500 Merks of Penalty , and of the Damnage and Interest sustained by the Pursuer , to the value of the Sums , whereupon the Inhibition and Arrestment should have been used . The Messenger and his Cautioner raises Suspension and Reduction , and insists upon this Reason , that the Decreet is null , as a non suo judice , because albeit the Lyon be Authorized by Act of Parliament 1587. cap. 46. to take Caution for Messengers Discharge of their Office , and upon default , may Summond Messengers and their Cautioners , and may Deprive the Messengers , and Decern them , and their Cautioners , in the pains and penalty for which they became Cautioners , yet the Lyon is not warranted thereby to Determine the Damnage of Parties , through Default of Messengers , which may be of the greatest Moment and Intricacy ; and would be of dangerous consequence to give the Lyon such Jurisdiction over all the Kingdom . The Charger answered , that the Messenger was unquestionably lyable to the Lyons Juridiction , and that both he and the Cautioner had made themselves lyable thereto , by Enacting themselves in the Lyons Books , ●nd granting Bond Registerable therein and it would be great inconvenience to pursue Messengers before the Lyon only for Deprivation and Penalty , and have need of another Process for Damnage , and Interest , and that the Lyon has been accustomed to Decern Cautioners so before .

The Lords found the Reason of Reduction relevant , and turned the Decreet into a Lybel , but Sustained the Decreet as to the Penalty of 500. Merks , in which the Messenger was Enacted , but n●t for the Damnage and Interest , ne●●her against the Messenger nor Cautioner .

William Borthwick contra Lord Borthwick , February 14. 1668.

WIlliam Borthwick having Charged the Lord Borthwick for payment of a Sum of Money , he Suspends , and alleadges that William is Debtor to him in an equivalent Sum , for the price of the Lands of Hal●eriot , Sold by my Lord to the Charger , conform to a Minut produced . The Charger answered , that the Reason was not relevant , unl●sse the Suspender would extend and perfect the Minut , which my Lord refuses especially , and particularly , to Subscribe a Disposition of the Lands , with common Pasturage in Borthwick Moor. The Suspender answered , that he was most willing to extend the Minut , but would not insert that Clause , because the Minut could not carry , nor import the same , bearing only a Disposition of the Lands , with Parts , Pendicles , and Pertinents thereof , which he was content should be insert in the extended Disposition , and it was only proper after the Infeftment was perfected , that the Charger should make use of it , so far as it could reach , which he was content should be reserved as accords . 2dly , If he were obliged to Dispute the effect of it , it could not extend to Pasturage in the Moor of Borthwick● first , Because a special servitude of a Pasturage in such a Moor , requires an express Infeftment , and cannot be carried under the name of Pendicles , Parts , or Pertinents , albeit the Moor were contiguous , and the common Moor of a Barony : but , 2dly , This Moor lyes discontiguous from the Lands of Halheriot , and my Lords Lands lyes betwixt , and does not belong to the whole Barony , but to some of the Tennents of it only . The Charger answered , that this being a Minut , beh●ved to be extended in ample form , expressing all Rights , particularly that the Right de jure , could carry , and there was no Reason to make him accept of Lands with a Plea , and de jure Pendicles , and Pertinents , do well extend to common Pasturage , when the said Pasturage is so Possessed , and it cannot be contraverted , but the Heretors and Possessors of Halheriot , have been in undoubted Possession of common Pasturage in this Moor , and that the Rent payable therefore is upon consideration of the Pasturage , without which , it could neither give the Rent it payes , nor the Price , so that when my Lord Dispones the Lands , with the Pertinents , and at the time of the Disposition ; this Pasturage is unquestionably Possest as a Pertinent of the Land ; the extended Charter , and Disposition ought in all Reason to comprehend it expresly : neither is there any difference whether the Pasturage be of a Moor contiguous , or belonging to the whole Barony , seing it cannot be Contraverted , but it was Possest as Pertinent of this Room the time of the Bargain ; and to clear that it was so Possest , the Charger produced a Wodset , granted by the Lord Borthwick to himself of the same Room , bearing expresly Pasturage in the common Moor of Borthwick . The Suspender answered , that the Wodset made against the Charger , in respect this Clause being express in the Wodset , he had not put it in the Minut , which as jus nobilius absorbed the Wodset , and cannot be looked upon as a Discharge of the Reversion only , because my Lord was Superior by the Wodset , and by the Minut he is to Resign , likeas in the minut there is a Disposition of the Teinds , which is not in the Wodset .

The Lords found that the Minut ought to be extended , bearing expresly the common Pasturage in the Moor of Borthwick , in respect the same was a Pertinent of the Lands , Sold the time of the Bargain , and was not excepted .

Sir George Mckenzy contra Iohn Fairholm , Eodem die .

SIr George Mckenzie insisted in the Reduction of the Bond Subscribed by him , as Cautioner for his Father in his Minority . It was alleadged for Iohn Fairholm , that he could not Reduce upon Minority , because he had Homologat the Bonds after his Majority , in so far as he had accepted Discharges of the Annualrent , bearing Deduction of the Bond by his Father as Principal , and him as Cautioner , and Discharging them both , which Discharges Sir George himself did Receive from Iohn Fairholm , and payed the Money . Sir George answered , that the Discharges do not bear that he payed the Money , but bears that the same was payed by the Principal Debtor , and his Receiving of a Discharge , not having payed , cannot import his Homologation , or acknowledgement of the Bond , for to prevent question and trouble , one may take Discharge of what he denyes to be Due , and the Bond being then standing Unreduced , he may well accept a Discharge , not knowing the event of the relevancy , or probation of his Minority .

The Lords Repelled the Defense , and found that the Discharges imported no Homologation , unlesse it were instructed that Sir George , out of his own Money , payed the Annualrent .

The Laird of Haining contra the Town of Selkirk , February 15. 1668.

THere being mutual Pursuits betwixt the Town of Selkirk , and the Laird of Haining , the Town pursuing a Declarator of the Right of Property of the Commonty of Selkirk , and Haining pursuing a Declarator of his Right of Pasturage in the said Commonty , by vertue of his Infeftments of the Lands of Haining , which Lands are a part of the Kings Property of the Barony of Selkirk , and that this Common is the Commonty of the said Barony , Possest by all the adjacent Fewars of the Barony , and whereof they have been in immemorial Possession .

The Lords did , before answer , ordain both Parties to produce all Rights , Writs , or Evidents they would make use of in the Cause , and also to adduce Witnesses , hinc inde , of both their Possessions , and interrupting others .

Haining produced a Charter by the King , in anno 1505. of the Lands of Haining , being a part of the Kings Property , bearing cum partibus et pertinentibus , cum pascuis et pasturis , but not bearing in communi pastura , or cum communiis , generally or particularly in the Common of Selkirk ; he did also produce posterior Charters of the same Land , bearing cum communi pastura , and did adduce several Witnesses , proving 40. years continual Possession , but some of his Witnesses proved Interruptions , by the Town of Selkirk's , cutting of Divots , cast by him and his Predecessors upon the Moor. The Town of Selkirk produced their Charter of the Burgh , posterior to Hainings first Charter , bearing that their Ancient Evidents were burnt by the English , and therefore the King gives them the Priviledge of the Burgh of Selkirk , with the Burgage Lands thereof , cum communiis ad dictum Burgum spectantibus , which the King confirms by a posterior Charter , giving the Town warrand to Ryve out 1000. Aikers of Land of the Common ; they did also produce several Instruments of interruption , not only by cutting of the Fail and Divots , cast by Haining or his Tennents , but by turning their Cattel off the Moor , as proper to themselves , and turning off all the Heretors Cattel they found thereupon , and by yearly Riding about the whole Marches of the Moor. They did also produce a Decreet at the Towns Instance against the Tennents of Haining , Decerning them to Defist and Cease from the Moor ; in which Decreet , Hainings Predecessor was Provost of Selkirk , and is Pursuer of the Cause ; they also produced two Missives , Written by Umquhil Haining , acknowledging that the Town had cut his Divots , Casten upon the Head Room , and making apollogy for Casting of the same , denying it to be by his Warrand or Knowledge ; they did also produce two Acts of the Town Court , bearing Haining to have desired liberty to draw Stones off the Common to Build a Park Dike , and to Cast some Divots for his Tennents Houses ; they did also adduce several Witnesses , proving their continual , and uninterrupted Possession of the Moor this fourty years and more , which proved also frequent interruptions against Haining , especially by cutting of Divots , and also by turning off his Cattel , upon which probation it was alleadged for the Town that they had instructed sufficient Right to the Property of this Moor , and that they had debarred the Laird of Haining and his Tennents therefrom , whenever they heard they came upon the same . It was answered for Haining , that he did not deny the Town of Selkirks Right of Pasturage in the Moor , but did deny they had Right of Property therein , but that the property did yet remain in the King , as a part of the Barony of Selkirk , being of the Kings annexed Property , but that the said Property ( as to the Moor ) was now burdened with a Common Pasturage , belonging to the Town of Selkirk , and also belonging to the Laird of Haining , and the other Feuars of the Barony of Selkirk , and therefore alleadged that his Charter in the year of God 1507. being long before any Charter , granted by the King to the Town , did Feu to his Predecessors , the Lands of Haining , cum pertinentibus , cum pascuis & pasturis , and this Common being the Commonty of the Barony of Selkirk , the King Feuing a part of the Barony , cum pertinentibus , et pascuis , did certainly thereby grant all that belonged to these Lands , as Pertinent thereof ; as it was the time of the Feu , being then Possessed by the Kings Farmorers , but that they had Common Pasturage in the Moor of Selkirk , is not only presumed ( because it is the Common of the whole Barony , and Possest by all the adjacent Feuars thereof ) but also by their continual Possession since ; for Possession 40. years is sufficient to prove all bygone Possession , since the Right capable of that Possession , it being impossible to adduce Witnesses to prove Possession eight score years since otherways , and therefore as in the Case of the Lord Borthwick , and William Borthwick , Decided the 14th of this Instant . The Lord Borthwicks Minut , Disponing the Lands cum pertinentibus , without any word of Pasturage , was found to carry Common Pasturage in the Moor of Borthwick , as being a Pertinent of the Lands Disponed the time of the Minut , and not Reserved , much more the King Disponing the Lands of Haining , not only cum pertnen●tibus , but cum pascuis , et pasturis did carry to Haining the Right of Common Pasturage in the Common of Selkirk , being then the Commonty of the Barony , so that any Interruptions done since , cannot take away the Right of Common Pasturage once constitute by the King : and albeit the King had unquestionably granted the Right of Property to the Town thereafter , yet that could not prejudge the Common Pasturage of another Constitute before . For if Haining claimed this Common Pasturage only by Possession , and Prescription , Interruptions might be Sustained to exclude the famine , but he claimes it chiefly by vertue of his Infeftment , as having Right thereto the first day he was Infeft , so that his Possession since , albeit troubled by this Commonalty , yet preserves his Right , that the Town cannot alleadge a total and compleat Possession , excluding him , and thereby taking away his Right by Prescription in their Favour ; and as to the Towns Charter , cum communiis , it contains nothing per expressum of this Moor , or Pasturage therein , nor gives any thing de novo , but bears cum communiis ad●urgum spectantibus , which the King might have given , though there had not been a Commonty within 40. Miles , in the same manner , as the common Clauses in all Charters , bearing Coal , and Chalk , Cuningars , or Ducats , whether there be any or not , and the most the Town can pretend by their Charter , is , that they being a Burgh , Erected within the Barony of Selkirk , cum communiis , may therefore claim Pasturage with the rest of the Feuars of the Barony , but cannot exclude them as to the Liberty granted by the King , to Ryve out a 1000. Aikers , it clearly evinceth that they had not the Property before , neither did that take any effect , nor could it , because the common Pasturage ( constitute to the Feuars before ) would have hindered any posterior power of Tillage : As to the Decreet against the Tennents of Haining , it is in absence , the Heretor for the time not being call●d , and albeit it bears Hainings Predecessor , as Provost to be present , that will neither import his Consent , nor Knowledge , Countrey Gentlemen being then ordinarly Provosts of Towns , who lived not with them , their Affairs at Law were Managed by their Town Clerk and Baillies , though the Provosts Name behoved to be insert ; neither did this Decreet take effect , for Hainings Tennents never ceased to pasture : as to the Letters they do only acknowledge the towns Head Rooms , because in great Commonties , it is ordinar for several proprietars , to have peculiar Places , most convenient for them where they law their Cattel , and casts Fail and Divot , and which doth sufficiently consist with the Commonty ; as for the Acts of Court , they can prove nothing against Haining .

The Lords found that the Town of Selkirk had undoubted Right of P●sturage , Fewel , Fail and Divot in this Commonty , and that they had immemorial Possession thereof , without any interruption , and found that Haining had no Right by vertue of Possession , and Prescription , but found that by vertue of his Charter , anterior to the Towns Right , he had Right to common Pasturage in this Moor , it being the Common Moor of the Barony ; but seing he did not sufficiently prove Possession of Fail and Divot , but was therein continually interrupted , much more then in the Pasturage , and that nothing appeared , that in the time of his Original Right , the Feuars had priviledge of Fail and Divot . Therefore the Lords found that he had no Right thereto , albeit common Pasturage doth ordinarly carry therewith Fail and Divot , yet they found that it was a several Servitude , separable therefrom , either by Consent , or Custom , and found that the Town should enjoy their Head Rooms , excluding Haining therefrom .

Iames Colquhoun contra Watson , Eodem die .

JAmes Colquhoun Pipe-maker in Glasgow , having gotten a tollerance from George Blair ( Heretor of Lunloch ) to dig Clay for Pipes there for certain years , excluding all others ; there being an anterior Tack of the Lands , the Tennents grants licence to one Watson , for digging Clay there for Pipes : the Heretor also concurrs with Watson . Colquhoun pursues Watson for Intrusion , and to desist from medling with any Clay there , and for paying the value of what he had medled with . Watson alleadged Absolvitor ; First , Because the licence granted to the Pursuer , being exclusive of all others , was contra bonum publicum . 2dly , The licence was posterior to the Tennents Tack , who thereby had Right to the whole profits of the Ground , and accordingly gave tollerance to the Defender . 3dly , The Heretor having granted the Tack , could not in prejudice thereof , give power to the Pursuer to break the arable Ground , and there being much more Clay nor the Pursuer could make use of , ought to give power to the Defender to make use thereof for that effect . The Pursuer answered , that a total and negative licence was legal , as well as any other total and sole Right , and it was free to the Heretor to grant the same , but could do no posterior Deed contrair thereto , because he had bound up his own hands thereby ● and as to the Tack , whether posterior or anterior to the licence , it can only give Right to the Tennent , uli fruiut colonus , to Manure the Ground , and reap the profits thereof , but cannot give him Right to any Mineral under the superfice , whether Coal , Lime-stone , Clay , &c. which is reserved to the Heretor , and he may make use thereof , which necessarly imports that he may break up the Ground to come at it , or else the Right were not reserved to him , and he is most willing to satisfie the Tennents damnage by opening the Ground ; neither needs any reservation thereof be exprest , because it s implyed in the nature of the Tack , which gives only power of the Superfice , Tillage , Pasturage , and Profits thereof , but the Tennent has no power to take away part of the Ground , or to give licence to any other so to do .

The Lords Repelled the Defenses , and found the Pursuer had the only Right by the Heretors exclusive licence , and that the Tennent by his Tack had no Right to this Clay ; and that albeit his Tack was prior to the Pursuers licence , he could give licence to no other .

Mr. Iohn Forbes contra Innes , February 20. 1668.

MAster Iohn Forbes insisted in the Cause against Margaret Innes , mentioned in the 8th , of Ianuary last , for Mails and Duties , as Assigney by Margaret Allardice , who being Infeft in Liferent in principal Lands , and Warrandice Lands , and the principal Lands being evicted , she and the Pursuer ( her Assigney ) returns upon the Warrandice Lands , wherein Margaret Innes is Infeft in Liferent by her Husband , who stood publickly Infeft therein , upon the Resignation of Margaret Allerdices Husband , and who alleadged Absolvitor , because the Defender , and her Husband being Infeft , and in Possession these 20. years past , have the benefit of a Possessory judgement , and so cannot be put from her Possession , till her Right be Reduced . The Pursuer answered , that the benefit of a Possessory judgement can take no place against a pursuit , upon an Infeftment in Warrandice , unlesse the Possession had been seven , or more years after the Eviction ; for before the Eviction , there could be no Pursuit upon the Infeftment of Warrandice in the same case , as an Infeftment of Liferent is not excluded by a Possession during the Husbands Lifetime , when the Wife could not pursue . The Defender answered , that the Pursuer ought in a petitory judgement to have declared the Distresse , before he could put the Defender from her Possession . The Pursuer answered , there was no Declarator required , but only the Eviction , which gives immediat recourse upon the Warrandice Lands .

The Lords repelled the Defense , and found no need of a Declarator , or Reduction to attain recourse , and that a Possessory judgement was not compent upon any Possession , anterior to the Eviction .

The Defender further alleadged Absolvitor , because this pursuit is founded upon Margaret Allardice her Infeftment in Warrandice , which is base holden of her Husband ; and the Defender and her Husbands Infeftment are publick , holden of the Superior , and albeit posterior to the Infeftment of Warrandice , yet is preferable , the Infeftment of Warrandice being base , never cled with Possession . The Pursuer answered , that Infeftments in the Warrandice are sufficiently validat by Possession of the principal Lands , especially now when all Seisings must be Registrat , as was lately found in the Case of Iohn Scot : and the said Margaret Allardice has not only been in Possession of the principal Lands since her Husbands Death , but her Husband was in full Possession of both , which is more then sufficient . The Pursuer answered , that in Scots Case this was singular , that in Iohn Scots Case , both the Principal and Warrandice Lands were granted in an Infeftment , and so the Person Infeft being in Possession of the principal Lands , his Infeftment could not be partly publick , and partly privat , but this Infeftment in Warrandice is ex intervallo .

The Lords repelled also the Defence , and found the Infeftment in Warrandice ( though base ) sufficient , the Person Infeft being in Possession of the principal Lands , albeit the Infeftment in the Warrandice Lands was ex intervallo .

Farquhar of Tonley contra Gordoun , Eodem die .

FArquhar of Tonley pursues Reduction of a Bond granted by him upon Minority and Lesion . It was alleadged Absolvitor , because he had Homologat the Bond , in so far as he being Cautioner in the Bond , he had pursued releif , and obtained Decreet for releif , which did necessarly import , that he acknowledged himself bound , else he could not have craved releif . The Pursuer answered , that seing the Bond stood unreduced at that time he might lawfully pursue the principal Debitor to releive him , against which he could have no objection , for the benefit of Reduction upon Minority , is peculiar to the Minor himself , and no other can make use of it ; and in his pursuit of releif he might very well have declared that , in case he obtained not releif against the principal Debitor , he might free himself by Reduction against the Creditor , so that Homologation being a tacite consent , can never be presumed where the Deed done might have another intent , and his pursuit for relief was not to bind himself , but to louse himself ; he did also alleadge that the pursuit of releif was at his Fathers instance , and his own promiscuously , and after the Decreet was thereupon extracted , he gave it in again , and took a new Extract , which bears not a releif for him of this Debt .

The Lords found the Pursuit , and Decreet of releif , to be no Homologation to exclude this Reduction .

The Defender then offered him to prove that the Pursuer was Major when he Subscribed , so that the Lybel and Defence being contrary , and great advantage arising to him , who had the benefit of Probation by Highland Witnesses .

The Lords resolved to prefer neither to probation , but before answer , ordained to adduce such Evidents , and Adminicles , as they would use to prove the Pursuers age , that they might prefer the strongest and clearest Probation .

Sir Laurence Scot of Clerkingtoun contra the Lady Clerkingtoun , February 21. 1668.

SIr Laurence Scot of Clerkingtoun having obtained himself to be Executor surrogat ad omissa et male appreciata of his Fathers Testament , and having obtained licence to pursue , pursues the Lady Clerkingtoun as principal Executrix , who alleadged no Processe upon the licence , because licences are only competent to Executors principal , before there be any Confirmation , after which the Commissars neither use , nor may give licence ad omissa , as was found the 14. of December , 1621. Halliday contra observed by Dury . The Pursuer answered , that there was more reason to sustain licences after the principal Confirmation , when the best of the Inventar was given up , and what remained was uncertain , and for the practique the Lords had since allowed licences after Confirmation .

The Lords repelled the Defense , and Sustained the Processe upon the licence .

Bartholomew Parkman contra Captain Allan , Eodem die .

CAptain Allan a Privateer , having taken Bartholomew Parkman an Swede , he obtained him to be Declared Pryze by the Admiral , upon this ground mainly , that he had carried Tar , being Counterband Goods , from Norway to Holland , then in Enmity with the King , and from thence carried ballast to France , and returning with a Loadning of Salt , was taken , because by the Captains Commission from the Admiral , he was warranted to to take Ships carrying Counterband Goods , or to take the saids Ships in their immediat return , after they have carried Counterband Goods to the Kings Enemies , which hath always been the Custom of Scotland , as appears by Commissions granted by the Admiral , Anno 1627. of the same Tenor , and by a Decreet of the Admiral at that time , finding the Lybel relevant , bearing that a Ship was taken in her return , having taken in Counterband to the Enemy in that Voyage , which is founded upon evident reason , because that while Ships are going towards the Enemy , it is but an intention of Delinquence against the King , and assisting his Enemies , but when they have actually gone in , and sold the Counterband , it is delictum Commissum , and though it might infer a quarrel against the Delinquent , when ever he could be found , yet the Law of Nations , hath for the freedom of Trade , abridged it to the immediat return of the same Voyage , because quarrels would be multiplied , upon pretence of any former Voyage . Parkman having raised Reduction of the Admirals Decreet , insists on these grounds . First , That by the Kings proclamation Denuncing the War , it is evident that the King gives only Command to seise upon Ships having in them Enemies Goods , or Counterband Goods , without any mention of seising them in their return , which would destroy the freedom of all Trade , for upon that pretence , every Ship that were met with at Sea might be brought up , and therefore the Kings Proclamation did justly and humanly Warrand the seisure of Ships , only when the Enemies Goods , or Counterband Goods is found Aboard , in which case , for most part , the cause of seisure is sensible to the Eye , wherewith there was also produced a Testificat from Judge Ienkins , Judge of the Admirality Court of England , by the Kings Warrand upon the Petition of the Kings Resident of Sweden , wherein he having advised with the Kings Advocat general , who dayly attended that Court , declareth that none of them remembers that in this War any Neuter were made Pryze in their return , with the product of Enemies Goods , and that he knew no Law nor Custom for the same . 2dly , There was produced the Treaties betwixt the King and the Crown of Sweden , bearing that the Swedes should be made Pryze , carrying Enemies Goods , or Counterband Goods , si deprehendantur . It was also answered to the Reasons of Adjudication , that the Stile of a Commission , not granted by the King immediatly , but by the Admiral , could be no ground of Adjudication of Friends and Allies , who were not obliged to know the same , or what was the Tenor of the Admiral of Scotlands Commissions , but were only obliged to take notice of the Law and Custom of Nations , and of the Kings Proclamations of War : and as to the Admirals Commission , and Decreet thereupon , in Anno 1627. It could not evidence the Custom of Scotland , being but a Decreet in absence , and upon a Lybel , bearing not only the carrying of Counterband , before in that Voyage , but having actually Aboard Enemies Goods the time of the seisure , which Lybel is found relevant by the Admiral , but it appears not that he would have found it relevant alone , upon the product of Counterband , much lesse that that was proven , and in Decreets in absence , the Lords themselves suffers Decreets to pass with far less consideration , and ofttimes of course , so that it were strange to fortifie the Admirals Decreets that are now quarrelled after full hearing , upon an Decreet of the Admirals in absence . It was answered for Captain Allan , that the Pursuer could not enjoy the benefit of the Swedish Treaty , because he had transgrest the Treaty , and served the Kings Enemies : and as to the Testificat of Judge Ienkins , or Custom of England , this being a distinct Kingdom , is not Ruled by the Custom of England , and Judge Ienkins Testificat was impetrat by the Pursuer , and not upon any Commission , or proposal made by the Lords , and the case therein mentioned is only anent the seisures in the return , with the product of Enemies Goods , and says only that they do not remember that ever the Case was decided there , but says not that the Courts of Admirality had found , that upon any Plea or Dispute , that Ships could not be taken , unless they had Aboard Counterband , or Enemies Goods .

The Lords having formerly in this Cause desired to know the Kings Pleasure , whether by the Swedish Treaty , which maketh far fewer things Counterband , then what are such by the Law of Nations , and by which Tar is not Counterband , the Swedes might Loaden Tar in Norway , not being their own Growth , and carry it to the Kings Enemies . The King returned answer negative , in which the Lords acquiesced ; and as to the present Dispute ,

The Lords did not find the grounds alleadged for the Privat●er relevant , or sufficient to instruct the Custom of Scotland , or the Rule of the War , and had litle respect to Judge Ienkins Testimony , and therefore were not clear to approve the Adjudication , but before answer , did declare that the Lords by their own Commission , would inquire in the Custom of Nations , concerning the return of Counterband , or Enemies Goods , both by Commissions direct to England , and other places .

Captain Strachan contra Morison , February 22. 1668.

CAptain Srachan pursues the Heirs of Umquhile George Morison before the Admiral , for a Ship and Goods m●d●ed with wrongously , by George and others , in Anno 1638. They raise Reduction on this Reason , that there was no Probation but one Witness , and Captain Strachans Oath taken in supplement .

The Lords having considered the Probation , in relation to the Ship , found it sufficiently proven , that Captain Strachan was an Owner of an eight part of the S●●p , but found that the value thereof was not proven , and seing Morison , and the other partners sold the Ship , after they had long made use of her , without Strachans consent , they found that Strachans Oath in litem ought to be taken as to the value , and would not put him to prove the same after so long time , and for the profits thereof , ordained him Annualrent since he was dispossest . This question arose to the Lords , whether there being three Partners beside Captain Strachan , who all medled whether Morison should be lyable in solidum , or only for his third part , in which the Lords found the Ship being corpus indivisibile , and all the Partners in a Society , and that Captain Strachan being absent in the Kings Service , from the time of their medling to the Kings return , and the other Parties in the mean time becoming insolvent .

The Lords found George Morison lyable in solidum for the eight part of the Ship ; but as to the Wines and others that were in the Ship , whereanent there was no co-partinery proven , and but one Witness of George Morisons Intromission , and Captain Srachans own Oath in supplement . The Lords found the same not sufficient , and yet allowed Captain Strachan in fortification of the Decreet , to adduce further probation .

Gavin Cochran contra 〈…〉 Eodem die .

GAvin Cochran as Donator to the Recognition of certain Land , holden Waird of my Lord Cochran , pursues the Vassal , as having Alienat the Major part , and also the Subvassal to hear and see it found and declared , that the Lands had Recognosced by the Alienation , made by the Vassal so the Subvassal . It was alleadged for the Subvassal that he was Minor , and therefore During his Minority , non tenetur placitari super haereditate paterna . It was answered , that that holds only in Disputing the Minors Rights , but is not sufficient against the Obligation , or the Delinquence of the Defunct . 2dly , The Party principally called in this Process , is the Vassal who is Major , and whose Fee falls to the Superior by his Alieanation , and the Subvassals Right falls only in consequence , so that no priviledge of the Subvassal , can hinder the Superior to declare the Recognition of his immediat Vassal .

The Lords Repelled the Defence , and Sustained Processe .

Captain Mastertoun contro the strangers of Ostend , February 24. 1668.

CAptain Mastertoun having taken a Ship of Ostend Pryze , obtained her Adjudged before Ludquharn , Admiral Deput of Peterhead . The Strangers pursued Reduction before the High Admiral at Leith , and obtained Sentence , because the Decreet at Peterhead , and Warrands thereof were not produced , by which Sentence there was Decerned 16000. Dollars for the Ship and Loadning , which was Fish , taken in Island Mastertoun raises Reduction of the High Admirals Decreet on this ground , that it was meerly in absence , and proceeded without valuing the Ship or Goods , and offered to restore the Ship , or value , and what he got for the Fish , which was but a Dollar the Barrel , in regard they spoilled the time of the dependence of the Plea , and craved allowance of what he payed to the King , being the fifteenth part , and the tenth part to the Admiral , and alleadged he could be lyable for no more nor quantum lucratus est , seing he did bona fide bring up this Ship , finding Aboard a Pass from the Magistrats of Ostend , which was defective , not conform to the Articles of Treaty with the King of Spain , in so far as it bore no mention of the Sailers , that they were the King of Spains Subjects , and the Sailers did Depone that they did belong to Zurickzea , under the States of Holland ; and albeit now ex post facto , he is informed that they did reside sometime in Ostend , yet he being in bona fide , can be lyable in no more nor what he got . It was answered for the Strangers , that it being acknowledged , that the Goods or Persons were free , it cannot be denyed in Justice to restore them to their Ship , and true value of their Goods , that they might have made thereof in Ostend , and not the price thereof that the Captain made , for seing he acknowledges that they were corrupted for want of Salt , it was his own Fault , for he should have caused raise the Fish in the Barrels , and Salted them again ; and as for the King , and Admirals part , there is no reason to allow the samine , and put the Strangers to a Processe against the King , and Admiral ; but if it be just he have restitution of his Goods , he must have it of his whole Goods , at the same availls as he could have sold them , with his Damnage and Interest , and any pretence of bona fide's can operat no more , but to free him from a spuilzy , and the Pursuers Oath in litem , for the value and profits , and to restrict the Process to wrongous Intromission , to the true prices , and true Damnages . It was answered for the Captain , that seing he was in bona fide to seize upon the Ship , and seing he did obtain Decreet from the Judge Ordinar , he was also in bona fide to sell and roup the Goods , as they gave at Peterhead ; and it does not appear that there was Salt there for Salting them again , nor Men that had skill , nor could they medle with them till Decreet was pronunced , which was a long time ; they were also in bona fide to pay the King and Admiral , neither are the Kings Officer nor Admiral Cited , but only the Admiral Deput .

The Lords found , that seing the Pass did not bear the Sailers to be the King of Spains Subjects , conform to the Articles , that the Captain was in bona fide to bring her up , and found him free of any Damnages , and found him lyable for the price of the Ship , and Fish , as they might have been sold at Peterhead by rouping , as use is , if they had been preserved ; and found him obliged to have preserved them ; and repelled the alleadgeance as to the tenth and fifteenth , but prejudice to the Captain and Owners to seek repetition thereof , and found no necessity to Cite the Admiral , his Deput being Cited .

Merchants of Hamburgh contra Captain Dishingtoun , February 25. 1668.

CAptain Dishingtoun having taken a Merchant Ship of Hamburgh , and obtained her to be declared Pryze : the Hamburgers raises Reduction on this Reason , that the only ground of declaring her Pryze , was , because she carried Counterband Goods towards the King of Denmarks Domissions , being then in Enmity with the King , which was no relevant ground , because it is evident the Ship was seized a Moneth before the proclamation of War against the Danes . It was answered for the Captain , that it is not the proclamation of War that makes the War for the Kings Declaration , is only to give an account to the World , upon what account the King had made War with the Danes ; and it is notour that there were frequent Acts of Hostility , both by the Danes , and against the Danes before this Capture . It was answered for the Strangers , that publick denunciation makes only a publick and lawful War ; but whatever might have been done against the Danes , the Hamburgers ( being the Kings Allies and Friends ) were not obliged to know the same , until such time that the proclamation of War might come to their Ears , so that they have done no Fault , being in bona fide to continue their Trade , until the War was made publick to the World . It was answered for the Captain , that he was in optima fide to execute the Kings Commission , bearing expresly to make Pryze of all carrying Counterband Goods to the Danes , and therefore he could not be Decerned as praedo , but the most can be Decerned against him ( though the Pursuer should be found to have been in bona fide , to Trade with the Danes ) is to restore in quantum lucratus est ; but so it is that he made no profit , for after the Capture , he being pursued at Sea by the Enemy , was forced to leave the Ship in question , being Loadned by him , whereby she was driven a shore , and suffered Ship-wrack .

The Lords found that the Hamburgers were in bona fide to continue their Trade with Denmark , and to carry to them Counterband Goods at the time of the seisure , and therefore Reduced the Admirals Decreet , as to the Restitution of the Ship and Goods , or what profit the Defender made of them , but for no higher value nor damnages , in respect the Captain was in bona fide to execute the Kings Commission , unlesse it were alleadged , the Captain was in culpa in the losse of the Ship , or misprising the Goods .

Lord Almond contra Thomas Dalmahoy , Eodem die .

THe Lord Almond pursues a Declarator of the Escsheet of Thomas Dalmahoy , who alleadged Absolvitor , because he was Denunced upon a Bond granted by the Dutchess of Hamiltoun , wherein he being only Charged as Husband for his interest , and Denunced at the Mercat Crosse of Edinburgh , and Peir and Shoare of Lieth , being then Residenter in England ; and now the Marriage being dissolved by the Dutchess Death , his Interest ●e●seth as to all effects , and so as to this Horning . 2dly , The Denunciation being upon a Bond due to the Dutchess own Mother , done by Mr. Iohn El●is Commissioner for her , it was without Warrand , and so null .

The Lords repelled both Defenses , and found that the Contumacy incurred by not paying , or suspending Deb●to tempore , which is the cause of the Denunciation , was not taken away by the dissolution of the Marriage .

Patrick Dun contra Isobel and Elizabeth Dunes , his Sisters , Eodem die .

UMquhile Doctor Dun having provided 4000. Merks to one of his Daughters , and 10000. Merks to another , and Entertainment during their Minority , that their Portion might go to the Fore , bearing Annualrent ; did thereafter grant to Isobel another Bond of 2000. Merks , whereof Patrick his Heir raises Reduction , as being done on Death-bed , after the Defunct had broken his Leg , and the same was cut off , whereof he took a Fever and Died , and never went out to Kirk or Mercat . The Defenders answered , that they offered them to prove , that albeit the Defunct happened not to come out , yet he was in his leige Pousty , and perfect health , and did all his Affaires , which did much more evidence his health , then the stepping out to the Mercat , 2dly , The Bond in question being a Provision to a Daughter , it was a Natural Obligation , which the Father might do on Death-bed● The Pursuer answered , that the Law allowed no other evidence to give Capacity to Dispone in leige pousty , but going out to Kirk and Mercat , and if any equivalent were accepted , it would render the most Ancient Law Doubious , and Elusory . As to the second , the Defender having been Portioned before , any Adition on Death-bed had not so much as the favour of a Portion Natural .

The Lords rep●lled the Defences , and sustained the Summonds .

The Owners of the Ship called the Castle of Riga , contra Captain Seatoun , Eodem die .

THis Cause being Debated the 27th . of Iuly last , in which Debate Captain Seat un did chiefly insist to maintain the Decreets of Adjudication upon the presumptions , and evidences , that the Ship or Loadning did truly belong to the Hollande●s ; and that their Passes and Bills were but Contrivances , which the Lords found not sufficiently proven to make her Pryze . Now the Captain insists upon another ground , contained in the Decreets of Adjudication , viz. That she was Navigat by Hollanders , the Kings Enemies , and therefore by the Kings Declaration of the War , the Ship and Goods are lawful Pryze , because the last Article of the Declaration bears expresly to take all Ships Pryzes , that are Sailed by the Subjects of the United Provinces ; and by the Testimony of the Witnesses taken at Cromarty . It was evident that the whole Company was Hollanders , taken on at Amsterdame , and Residenters there . It was answered for the Strangers , that there was a solemn Treaty perfected betwixt their King , and the King of Sweden their Soveraign , that Treaty behoved to be the only Rule , as to the Subjects of Sweden ; by which there was nothing provided , that a Ship should be Pryze , being Sailed with Hollanders ; but on the contrair , the Passe agreed upon by the Treaty , and exprest v●rba●im therein bears , that Oath is to be made , that the Vessel and Loadning belongs to Swedes , but makes no mention of what Countrey the Sailers should be ; and bears that the Master of the Ship may be of any Nation , and therefore mul●o magis , the Sailers . It was answered for the Captain , that the Treaty with the Swedes cannot be the adequat Rule , in relation to all Swedish Pryzes , there being multitudes of Cases not touched therein ; and it cannot be thought the intent of the King , in so short a Treaty , to comprehend all the Laws of Nations at Sea , and all the Cases de jure belli betwixt their Subjects , but the Treaty doth only clear some most important Cases , and grants special Priviledges to either Party , as that such a Passe should be sufficient , and that there should be no search at Sea , where such a Passe is found , nisi gravis suspicio subsit , so that these Cases must still be Regulat by the Law and Custom of Nations , and especially by the Kings Declaration of the War ; so that these making the Rule , the Treaty can make but the exception , and therefore the King , by the Declaration of the War against the H●llanders , gave an expresse Command to make Pryze all Ships belonging to the Hollanders , or having in them Goods belonging to the Hollanders , or Counterband Goods going to the Hollanders , or Navigat by any number of the Hollanders , this must stand as the Rule , seing there is nothing in the Treaty to alter the same , neither doth the Tenor of the Passe ( not mentioning the Sailers ) infer any thing , because the Sailers can be known of what Nation they are , by their Language , and it were unnecessar to cause the Swedes Depone upon Oath that they are Swedes , but cannot be so well known to whom the Ship and Goods belong , and therefore Oath is to be made thereupon ; and albeit a Passe be found Aboard , conform to the Treaty , whereby it is provided , ne quid ulterius inquiratur in navigium , hon●● aut homines nulla t●nus inquiratur , it immediatly follows , Quod si gravis aliqua susp●cio subsit , that there may be seisure even where there is a Passe , or if the Passe were old or vitiat , or appear not to agree with the Hand , and Seal of the places whence it is directed , seisure might be made , and therefore in this Case , the whole Company being Hollanders , as is evident by their Language , although there had been no suspition of the truth of the Passe , they might justly have been seised and confiscat , conform to the Kings Declaration ; neither is it a good Argument , that because the Treaty gives leave to have the Master of any Nation , that therefore all the Sailers may be of any Nation , and therefore if the Company might have been of any Nation , there needed no such expression for the Master , exceptio firmat regulam in non exceptis , which is the more clear , that by the Treaty betwixt the King , and the King of Spain : there is a special priviledge to the ●l●ndrians , that they shall not be questioned , as being Navigat by Hollanders , in respect of the Identity of their Language , which would never have been Demanded , if by the Law of Nations , Hollanders the Kings Enemies , might have been made use of by any in Amity with him .

The Lords found that this Swedish Ship being Navigat by the Sailers , all or the most part being Hollanders , Residenters in , or about Amsterdam , when they entered this Voyage , that the same was a sufficient ground of Confiscation , in respect of the Kings Declaration of War , and that by the Swedish Treaty , there was no priviledge granted to the Swedes as to this matter , and therefore Assoilzied from the Reduction , having found it sufficiently proven by the Testimonies at Cromarty ; and whereas it was alleadged that these Testimonies were extorted , by holding Swords and Pistols to the Companies Breasts , both at Sea , and after Landing , to make them confess that they and Goods belonged to Hollanders .

The Lords found the alleadgeance relevant ▪ that at Land , and about the time of their Testimony , the Witnesses were so threatned , but would not sustain that they were so threatned at Sea , when they were taken , unlesse it were alleadged , that at Sea they were forced to Swear , or Depo●e upon Oath , whereupon it might have been presumed , that by Reason thereof they would adhere to it when they came to Land .

George Graham contra Grissel Tours , and the Laird of Kilhead her Husband , February 26. 1668.

GEorge Graham having obtained a Decreet before the Baillie , against Grissel Tours and her Husband , for Furnishing to her first Husbands Funerals ; her Husband Suspends , and raises Reduction on these Reasons , that albeit he stayed sometimes in a Chamber in Edinburgh , he was not in this Jurisdiction , and that his Wifes Oath could infer no burden upon him , and that the Baillies did unwarrantably hold him as Confest , for not giving his Oath of Calumny , whether he had reason to distrust his Wifes Oath .

The Lords found this unwarrantable , and therefore Reduced the Decreet as to the Husband , but Decerned against the Wife , ad hunc effectum , to affect her if she survive , or her Executors after her Death , or otherwise to affect any other Goods she had excepted from her Husbands jus mariti .

The Laird of Milntoun contra the Lady of Milntoun , Eodem die .

THe Lady Milntoun having obtained Decreet of Divorce against Iohn Maxwel her Husband , the Laird of Milntoun having Right from her Husband to her Liferent , which Right fell by the Divorce ; pursued a Reduction of the Decreet of Divorce , wherein the Witnesses being Examined , and Re-examined .

The Lords adheres to the Decreet of Divorce , and Assoilzies from the Reduction ; at which time the Lords having allowed him to insist as in Reprobators : he now pursues the same for Convelling the Testimonies of the Witnesses , because they were corrupted and suborned , both by promises , and getting of good Deed , and being prompted how to swear , as their Oath on Re-examination bears . And because their Oath is not only suspicious , but impossible ; because it is offered to be proven , that the Parties were alibi , at a great distance from the place , where the Witnesses Deponed that they committed Adultery , and that for several dayes and nights thereafter , and before . The Defender alleadged that the Lybel was no wayes relevant . First , In so far as it would Convel the Testimonies , as to the principal points referred to Probation , against which no contrair Testimonies ( either of the same , or other Witnesses ) can be admitted by the Law of all Nations , otherwise Plea's should be infinit : for if the second Witnesses might improve the Testimonies of the first , third Witnesses might improve their's , and so without end : and the alleadgeances that the Parties were alibi , are most irrelevant , and is ordinarly rejected , as being a contrair and incompatible Probation , for this being a Crime unlawful at all times , and places , albeit the Witnesses should have forgotten , or mistaken the time , if they be positive in the Act non obest , and so proving alibi at that time , which is not essential is of no moment . 3dly , The Reprobators in so far as they would improve , and convel the extrinsick points of the Testimonies , ad hunc effectum , to render the Witnesses infamous , and their Testimonie invalide as to the whole , which is the proper and only subject of Reprobators , the famine is not now competent , unless first at the time of the taking of the Testimonies , the Pursuer had protested for Reprobators , and had not referred his objections against the habilitie of the Witnesses , to their own Oaths , but had only interrogat them of their Age , Marriage , Residence , freedom of partial Counsel , or Corruption , &c. And upon the reason of their Knowledge , in that case Reprobators might have been competent to prove the contrair of these extrinsick points , and so infirm the Testimony , but here the Witnesses being Examined , especially as to the Interrogators of partial Counsel , and as to the reason of their Knowledge , and no protestation taken at that time for Reprobators , he cannot now make use thereof , and albeit that Reprobators were reserved by the Lords , yet that was not at the taking , but at the advising of the Testimonies , when all that is now alleadged ( as to their corruption , arising from the Re-examination ) did appear to the Lords , and yet the Lords adhered to the Decreet of Divorce , and first Testimonies .

The Pursuer answered , that he did not intend to Convel principally the intrinsick points of the Testmonies , but mainly to prove their partiality and corruption , and therewith also to prove their Testimonies were false , and impossible ; neither is it essential to protest at the taking of the Testimonies , nor is there any necessity that the Witnesses Oathes should not be taken on the extrinsick points , but on the contrair , the intent of Reprobators being , that their Oaths , as to these extrinsicks being false , they should be found perjured and infamous , and the whole Testimonies to fall .

There was no Interloqutor at this time , upon this Debate .

Reoch contra Cowan , Eodem die .

REoch pursues Cowan as representing a Defunct to pay a Debt , due by the Defunct to the Pursuer , who alleadged Absolvitor , because Reo●h was vitious Intrometter with the Defuncts Goods , in so far as he lifted 50. Pound , belonging to the Defunct , and gave his Discharge , produced and albeit thereafter he Confirmed himself Executor Dative , yet he wilfully omited that Sum out of the Confirmation , and so as vitious Intrometter , is both Debitor and Creditor , and cannot pursue the Heir . It was answered , that this was res modica , and could not infer the passive Title .

The Lords found that this Sum inferred not a general passive Title , but only that is made him comptab●e for the Sum.

Maitland contra Lesly , February 27. 1668.

IN a concluded Cause of abstracted Multers betwixt Maitland and Lesly , The Pursuer being ●nfeft in the Miln , with the Multers and Sequels , and having proven the astriction of Intown Multers , and Witnesses being adduced concerning the Services , for upholding the Miln and Dam , and bringing home Milnstones , who proved that some of the Lands were not in use of these Services , but by two or three several Acts , as once laying in the Dam , at which the Heretor was offended , and brake the Tennents Head , and twice going to help home the Milnstones , whether these Lands were lyable to the Services .

Whereupon the Lords considered whether the constitution of a Thirlage , with Multers and Sequels , did by the nature of the Right , give the ordinary Miln service without relation to Possession , so that immediatly after the constitution , thes might be demanded .

Which the Lords decided affirmative , and then found that these Lands were lyable to the service , unlesse they had either by Paction , or Prescriptio● , attained freedom from the service , and found that the Testimonies did not prove freedom for fourty years , and that these Acts were enough to interrupt , and so Decerned for the ordinary services .

David Henderson contra Mr. Andrew Birny , Eodem die .

MAster Andrew Birny having granted a Bond to Alexander Short , blank in the Creditors Name , he for an equivalent Cause , delivered the same to David Henderson , who filled up his Name therein , and Charges Mr. Andrew therefore ; he Suspends on a Reason of Compensation , upon a Debt owing to him by Short , to whom he delivered the blank Bond , for whom he became Cautioner before he granted the Bond , and payed the Debt , partly before , and partly after this Bond , so that Henderson by filling up his Name , being Assigney , and Short Cedent , payment or compensation against the Cedent , before the Assignation , is relevant against the Assigney . It was answered , that in this Case compensation is not relevant , because the very Delivery of a Bond , in a blank Creditors Name , imports that the Receiver thereof , may put in any Mans Name he will , and he may never make use of Compensation against him whose Name is filled up , otherwise why should the Creditors Name have been left blank , which if it had been filled up , it behoved to have had an Assignation , which is but a Procuratory in rem suaem , so that the Procurator can be in no better state nor the Constituent , but the blank makes the Person filled up Creditor principally .

The Lords found Compensation not relevant , against a Person whose Name was filled up in the blank , being a singular Successor to him , who first received the Bond.

Mr. William Chalmers contra Wood of Balbegno , Eodem die .

MAster William Chalmers , Parson of Feltercarn , pursues Reduction of a Tack of the Teinds of the Paroch , granted by his Predecessors , on this ground , that it is null by Act of Parliament , as wanting Consent of the Patron . The Defender alleadged Absolvitor , because the Pursuer had Homologat his Tack , in so far as he had received payment of the Duty , conform to the Tack , which was a clear acknowledgement thereof . It was answered , that this could only be an Homologation for the years received , and could not Homologat the Tack itself , because the Tack was a standing Right , valid till it were Reduced , and the Pursuer could get no more then the Tack-Duty , till he should Reduce the same .

The Lords found this no Homologation , to validat the Tack .

Lord Justice Clerk contra Home of Linthel , the Procurator-Fiscal and Officers , February 28. 1668.

THe Lord Iustice Clerk being Fined in 50. Pound for his absence from the Lord Homes Head Court of his Barony . The Officers Poinded an Ox , in October after the Plowing was begun . The Lord Iustice Clerk pursues a Spuilzy , as being Poinded in Labouring time , and insisted against Linthel as Depute , who gave the Decreet , and Precept to Poind , and as he who knew of the Poinding of the Ox by the Officer , before he was Delivered , and commanded to Deliver him , and against the Officer who Poinded , and the Procurator Fiscal , who by the Executions of the Poinding , produced ; Received the Ox from the Officer : at the advising of the Cause , Linthel having Deponed by his Oath , that the Officer had told him an Ox was Poinded , and he commanded the Officer to Deliver him , and that he knew not he was a Labouring Ox , so that that member not being proven , the question was , whether Linthel as Deput , giving a Precept to the Officer to Poind in common form , was lyable for the Spuilzy , if the Officer did illegally Poind , and so was answerable for the Fault of the Officer .

The Lords found him not lyable , and therefore Assoilzied Linthel , and found that the Execution of the Poinding was sufficient Probation of the Delivery of the Ox to the Procurator-Fiscal , especially seing the Defenders defended themselves with the Poinding , and themselves produced the Execution ; and for the violent profits , the Lords Decerned 5. Shilling for every day , from October to May inclusive , being Labouring time , and that yearly since the Spuilzy till the Sentence .

Duke Hamiltoun contra Maxwel of Moreith , February 29. 1668.

THe Duke of Hamiltoun , as Collector-General of the Taxations , having Charged Maxwel of Moreith , he Suspends upon this Reason , and alleadges that he had Imparked , and Inclosed a ten Merk Land , since the Act of Parliament , 1661. anent the Inclosing of Grounds , by which , all Lands to be Inclosed thereafter , are to be free of all publick Burdens . It was answered , that the Act of Convention was posterior , and had no such exception , but on the contrair , took away all former exceptions . It was answered , that an Act of Parliament cannot be Derogat , or Abrogat , by an Act of Convention .

The Lords found the Reason relevant , notwithstanding of the Act of Convention .

Ioanna M●alexander contra Charles Dalrymple , Iune 9. 1668.

IOanna M●alexander , a Sister Daughter , and one of the nearest of kin of Umquhile Elizabeth Dalrymple , pursues a Reduction of the said Elizabeth her Testament , whereby she nominat Charles Dalrymple her Brothers Son , her Executor , and universal Legator , upon this Reason , that in the time of the making that Testament she was not compos mentis , but fatuous and insensible .

The Lords having appointed the Witnesses of the Testament , and other Witnesses to be Examined thereanent , the Witnesses in the Testament , and Writer thereof being Examined , Deponed that she was in her right Mi●● , and gave order for drawing of the Testament , and gave order to Subscribe it ; the other Witnesses Deponed that about that time , for several weeks before , and some time after , the Defunct was fatuous , and not in a right Mind , and to every question proposed to her , she answered alwise yea , yea , and some words of Ravery , which she frequently spoke .

The Lords having also caused Re-examine the Testamentar Witnesses , that it might appear whether she did only answer to Interrogators , as when it was answered , whether she would have Charles Dalrymple her Executor , and universal Legator , and whether she said yea● yea ; and whether she gave Direction without a forgoing question by words that might signify her Sensibility . And having considered the whole Testimonies , they found that Probation most pregnant , that she was Fatuous , and insensible at the time of the making the Testament , and therefore Reduced , albeit the Witnesses were Extraneous that proved , and were not present at making the Testament , at which time a lucide interval of a Person Distempered by Disease , not constantly Fatuous , might have been sufficient .

This was stoped till it were further heard .

Sir Iohn Gibson contra Iames Oswald , Iune 13. 1668.

SIr Iohn Gibson and Iames Oswald having mutual Declarators of Property , of a peice of contraverted Ground , lying on the M●rch between two Gairs , or Bentish Strypes of Ground , through a Moor ; equal number of Witnesses being Examined for either Party , one Witnesse for either side proved 40. years constant Possession of the Party Adducer , and that they did interrupt the other Party and turned away their Cattel when they came over : some of the witnesses did prove either Party to have had Possession above 40. years since , but did not prove that they knew the same constantly so Bruiked , neither did they know any thing to the contrary , and many Witnesses on either side proved not only that the ●eithes Lybeled by the Party who Adduced them , were holden and repute the true Marches for a very long time , but did not express how long ; but some of them Deponed , that Stones in the meithes were commonly holden and repute to be March Stones , and so the Testimonies were contrary , and if there had not been mutual Probation , either Party would have proven sufficiently ; and neither Party having bounding Charters , the question arose whether the ●preg●antest Probation should be preferred , to give the property to that Party , and exclude the other , or if both Parties , proving so long Possession , and mutual interruptions , the Probation should infer a promiscuous Possession , and Right of the contraverted peice of Land , and so resolve into a Commonty , albeit neither Party Claimed nor Lybeled Commonty .

The Lords found the Testimonies of the Witnesses to infer a Commonty to either Party of the Ground in controversie , albeit they found that Sir Iohn Gibsons Witnesses were more pregnant , yet not so far as to exclude the others , but declared that if either Party desired that piece to de divided , they would grant Commission for dividing the same , and setting down of March-Stones

Burnet contra Nasmith , Iune 19. 1668.

ALexa● de● Burnet of Carl●ps , being Creditor to Sir Michael Nasmith of ●osso , pursues a Declarator against Iames Nasmith his eldest Son , to hear and see it found and declared , that an expired Appryzing of the Estate of P●sso , now standing in the Person of the said Iames , is Redeemable by the Pursuer as a Creditor , from the said Iames , as appearing Heir of the Party , against whom it was deduced within ten years after the appearand Heirs Right , upon payment of the Sums , that the appearand Heir truly gave out , conform to the Act of Parliament betwixt Debitor and Creditor . The Defender alleadged Absol●itor , because the Act of Parliament could not extend as to his Case , because the Act bears , [ where appearand Heirs takes Right to Appyzing of their Predecessors Lands ] but the Defenders Father being living , cannot be said to be his Predecessor , or that the Defender is his appearand Heir , and Statutes are stricti juris not to be extended to like Cases . It was answered , that Reason of the Law , given in that part of the Statute , being the same , and rather more in this Case , where there may be Collusion betwixt the Father and the Son , there is no ground to except the same from the Act of Parliament , the words whereof do bear this Case , for in the ordinar Stile it uses to be thus express , such a person to be eldest Son , and appearand Heir to his Father , and albeit his Father be not dead , he may well be said to be his Predecessor , not only in regard of his age , but as being his Predecessor in the Right of these Lands , whereunto the Son is a Successor , alb●it he be a singular Successor .

The Lords found the Clause of the Act of Parliament to comprehend Rights acquired by appearand Heirs , in their Predec●ssors Life , and therefore declared .

Agnes Hadden and Mary Lawder contra Shorswood . Eodem die .

THomas Shorswood having granted an Assignation to a Bond of 500. merks in favours of Agnes Hadden and Mary L●wder , they pursue Magdalen Shorswood , his nearest of kin , to d●liver the same : who alleadged Absolvitor● because the Assignation was never delivered , but being made a year before the Defunctsdeath , remained by him till his death , and was never delivered : and it is not the Subscribing of a Writ , but the Delivery thereof , that makes it that Parties , in whose favours it is conceived , unless the Party were in Family , as a Fathers C●stody is the Childs Custody , and equivalent to Delivery , and unless the Writ had contained a Clause to be valide without Delivery , which this doth not . The Pursuer answered , that this Assignation reserveth expresly the Defuncts Liferent , and a power to dispose thereof , during his Life , which sheweth his mind , not to deliver the Assignation , even when he made it ; otherwise the Reservation in his own favour , would not have been in his own hand , which sufficiently shews his mind , that the Writ should be valide , though not delivered in his life . 2. This being a moveable sum , this Assignation is in effect d●natio mortis causa , and so must be valide , without Delivery , for a Testament or Legacy is valide without Delivery . It was answered to the first Alleadgance , that the Defunct might have Delivered the Assignation , and keeped the Bond ; so that the keeping of the Assignation was not necessary , and so did not import his meaning to be , that the Assignation should be valide without Delivery . To the second , this Assignation is in the Terms and Nature of a proper Assignation , and is a Right inter vivos , and not donatio mor● is c●usa ; because donatio mortis causa , is but as a Legacy , affecting only the Deads part : but if this Assignation had been Delivered , it would have affected all , and so could be no donatio mortis causa , and albeit it was not Delivered , it remains the same kind of Right .

The Lords Rep●lled the Defenses , and decerned Delivery in regard of the Tenor of the Assignation , and that it was a moveable sum , it being also info●med that the Defunct had no Children , and the said Agnes Hadden , who was to have 400. merks of the sum , was Cousin-german to the Defunct .

Relict of Galrigs contra Wallace of Galrigs . Eodem die .

THe Relict of Galrigs pursues for Mails and Duties upon her Seasine , given propriis manibus . It was alleadged for Galrigs no Process , because the Seasine is but assertio notarij , without a Warrand , there being neither a Contract nor Obligation to give such a Seasine . It was answered , that Instruments of Seasine given to a Wife , p●opr●is manibus , have a sufficient Adminicle , and presumption by the Marriage , and the duty of the Husband to provide the Wife , especially where there is no Contract , nor other Provision ; but most of all where the Wife Renunced her Joynture she had with a former Husband in favours of the Granter of the Seasine , and his Creditors , which is a strong presumption , he would give her something in lieu thereof .

Which the Lords sustained .

Steuart of Torrence contra Feuars of Ernock . Iune 24. 1668.

JAmes Steuart , as Donator to the Ward of the Laird of Ernock , by the Lord Semple of whom Ernock held the Lands Ward : pursues the Possessors for Removing , who alleadged absolvitor , because they brooked their Lands by Feues , granted by the Laird of Ernock . The pursuer answered , non relevat , unless the Feues were consented to , or Confirmed by the Superiour ; for by the Feudal Law , no deed of the Vassal can prejudge the Superiour , when the Lands are Ward . The Defenders alleadged , their Feues needed no Confirmation , because they are warranted by Law , by the 72d . Act K. Iam. 2. which stood valide until the Act of Parliament 1606. Prohibiting Feues granted but by immediat Vassals of the King , Ita est , The first Act cannot extend to the Kings Sub-vassals , because it bears only Free-holders , and bears that the King shall accept of the Feu Duty , during the Ward : but the Ward of his Sub-vassals would never fall in the Kings hand : and this meaning of the Act of Parliament is evident by the Act of Parliament 1606. bearing expresly , that there was no warrand by the first Act for any Feues , but such as were granted by the Kings immediat Vassals . It was answered for the Defenders , that they oppone the first Act of Parliament , bearing expresly a general Reason of granting Feues , for the policy of the Kingdom , and that the King would give Example to the rest ; and that the Act no wayes restricteth to Free-holders of the King , but others who hold of Subjects Ward , are called Free-holders , in opposition to Feues ; which is also cleared by the 91. Act Parliament 1503. The Title whereof bears , ( a power to all persons Spiritual and Temporal , to set their Ward Lands Feu , ) which clears the meaning of the Parliament , and the common custom till the year 1606. which is acknowledged in the Narrative of the Act 1606. which doth only annul Feues set to Sub-vassals , in time thereafter : and as to the Narrative thereof , the Statutory part , and not the Narratives of the Acts of Parliament , which the Parliament doth not much notice , are our Rules ; and this Narrative is contradicted by the Narrative of the Act of Parliament 1633. bearing that there is no reason why the Kings immediat Vassals should grant Feues more then Sub-vassals .

The Lords sustained the Feues , being granted before the Act of Parliament 1606.

Andrew Gray contra Howison and Gray . Eodem die .

ANdrew Gray being Infe●t as Heir to his Grandsire , in certain Lands of the Barony of Foules , holden blensh of the House of Gray : pursues a Reduction of a late Infeftment in Anno 1655. granted to Walter Watson , as long Posterior to his Right . Compearance is made for William Gray of Haystoun , as being Infeft by the Lord Gray , and Sir George Kinnard , who was Donator to the Recognition of the Estate of Gray , by the alienation of this Lords Father ; which Recognition hath been declared by the Lords , and alleadged that he hath the only Right ; because by the Recognition , the old Rights of the House of Gray being void , the Pursuers Subaltern Right fell in consequence therewith . The Pursuer answered , that before the Defenders Right , he had obtained a Precept of clarè constat , acknowledging his old Right , whereupon he was Infeft . It was answered , that the Precept doth bear expreslly , to be in obedience of Precepts out of the Chancellary upon the Pursuers Retour , and so being a necessar Act , and not voluntar , it could be no acknowledgement , or Ratification of the Pursuers Right .

The Lords having considered the Precept , that albeit it mentioned the Retour in obedience to the Precept : yet it bore also , & quoniam mihi clare constat , &c. in the common strain of a Precept of clarè constat , acknowledging the Pursuers Predecessors Right and his Own .

They found that it did exclude the Donator , and all having Right from him thereafter , and after the Seasine past thereon .

George Heriot contra Town of Edinburgh . Iune 25. 1668.

GEorge Heriots Father being Infeft in an Annualrent , out of certain Tenements in the Canongate , obtained himself to be Served Heir in special therein , before the Baillies of the Canongate , and because the samine is within a Regality , having a proper Chappel , and was not to be Retoured to the Kings Chancellary ; So that Precepts were not to be had out of the Chancellary , against the Town of Edinburgh , Superiours , to Charge them to Infeft him ; therefore George upon Supplication , obtained Letters from the Lords to Charge them ; and they being now Charged , he pursues a Poinding of the Ground . It was alleadged for the Town , no Process for poinding of the Ground , till the Pursuer were Infeft in the Annualrent . It was answered , that he having done Diligence against the Town , it was equivalent , and did exclude them from proponing that alleadgance . It was answered , that no personal objection against the Town , could be a sufficient Title against this Action without a real Right .

The Lords found no Process till Infeftment , but declared that so soon as the Magistrates should be Denunced , they would grant Warrand to the Director of the Chancellary to issue a Precept for Infefting the Pursuer , for supplying the place of the Magistrates , and their Contumacy .

Black contra Scot. Eodem die .

ALexander Black having obtained a Decreet before the Commissar of St. Andrews , against Iames Scot , for 126. pounds ; pursues a Transferrence thereof , against the Representatives of Iames Scot , who alleadged absolvitor , because the Decreet is ipso jure , null , being given by a Commissar , in a matter not Consistorial far above the quantity allowed by the Injunctions , and there being nothing to instruct but the Defenders being holden as confest , the Decreet at least must be turned to a Libel , and yet proven . 2. If the Defunct had been obliged to have compeared , he would not only have denyed the Receipt of the Vinegar and Grapes Libelled , but he would have offered to prove , and the Defender offers yet to prove , that they were refused , and lay publickly upon the Shore where they were disloaded . 3. It was offered to be proven , the Defunct was lying on Death-bed , the time he was Cited to Depone , and was holden as confest . The Pursuer answered , that albeit these Reasons were relevant to Repone a Party holden as confest to their Oath , yet were not sufficient to annual the Decreet , seing the Pursuer lost his Probation , the Receipt of the Goods having been two years agoe ; and albeit this sum exceeded the Commissars Injunctions ; yet the violation thereof does not annual his Sentence , or take away his power , unlesse the samine had been objected upon Compearance .

The Lords found not the Defenses Relevant to annul the Decreet , or to hazard the loss of the Pursuers Probation : but seing the Defender burdened himself with a contrair Probation , The Lords inclined to admit the same , if it were sufficiently pregnant ; and therefore ordained the Pursuer before answer , to adduce Witnesses , that the Goods were never taken off the Shore , but Boated there .

Inglis contra Laird Balfour . Eodem die .

THere being an Un-printed Act of Parliament , for uplifting the Taxt and Loan of the Shire of Fife , for Relief of some Noblemen ingaged for the Shire in Anno 1661. The Council did thereafter give Commission to certain persons in the Shire , to conveen the persons resting , and accordingly Cited the Laird of Balfour , and he not compearing , ordered quartering against him : he Suspends on this Reason , that this being a privat and particular Act of Parliament , to which he was not called , is salvo jure , and could not burden his Lands of Creik , because he is singular Successor therein to the Laird of Creik . It was answered , that there is no exception of singular Successors in the Act of Parliament ▪ so that this Act being a Reviving of the old Rescinded Act , pro tan●o , it must be in the same case as Taxation and Maintenance , which is ever accounted debitum fundi . It was answered , that these burdens Imposed by the Rescinded Parliaments , are not in the same case with other publick Burdens , especially where it is but a particular Act , relating to particular persons and Shires , without Citation of them , for if they had known of this Act , they would have petitioned the Parliament , that singular Successors might have been excepted , as they were in other Acts of this nature .

The Lords Suspended the Decreet , and found that as they were singular Successors they were not lyable .

David Dick contra Ker. Iune 26. 1668.

DAvid Dick as Donator to the Escheat of Ker , insists in a special Declarator , for payment of a sum due to the Rebel . The Defender alleadged Absolvitor , because it being a Bond , bearing Annualrent , it fell not under the single Escheat . It was Replyed , that Bonds bearing Annualrent , are still holden moveable , until the first Term of payment of Annualrent , and is Disposeable by Testament , if the Defunct die before that Term : but here the Rebellion was before the date of the Bond , and so the sum fell to the Fisk , the day it was Subscribed . It was answered , that the 32. Act , Parliament 1661. declares Bonds bearing Annualrent , to exclude the Fisk , without any exception or limitation .

The Lords having considered the Act , found that it left Bonds bearing Annualrent , in the same case that they were formerly ; and found that before the Term of payment of Annualrent , they were moveable .

Peterson contra Captain Anderson . Iune 30. 1668.

CAptain Anderson having taken a Ship , whereof Peter Peterson was Master , and obtained the same declared Prize by the Admiral , upon two grounds ; one that the Ship was sailed , a great part of the company being Hollanders , then the Kings enemies : The other , that albeit it was pretended that the Ship belonged to Swedes , yet by several presumptions and evidences , it appeared , that is was but a conveyance , and that the Ship truely belonged to Hollanders : There is now a Reduction raised of the Decreet , and the first ground thereupon Debated and Decided . It was alleadged for the Strangers , that they being Swedes , their case was only to be ruled by the Treaty betwixt the King and the Crown of Sweden , by which it is expresly provided , that the Subjects of Sweden having such Passes , as are exprest in the Articles , shall not be Seased , or brought up , and particularly in bona & homines nullo modo inquir●tur , viz. Where such a Pass is found aboard , and the said Pass being here found aboard , the Ship was unwarrantably Seased , and unwarrantably declared Prize , upon pretence of being sailed with Hollanders ; because that Article takes away all question about the men , and so gives liberty to the Swedes , to make use of any Mariners they please . It was answered , that the Reason of Adjudication was most just ; and this Reason of Reduction ought to be repelled , because the Kings Proclamation , denuncing the War , gives express warrand to sease all such Ships as had any number of Hollanders therein , which must stand as the Rule , unless the Swedes had by their Treaty , a particular exception , derogating from that Rule , which they have not : but on the contrary , the Treaty contains an express provision , that they may make use of a Hollands Master , and not unless he became a Citizen of some City of Sweden , and be sworn Burgess thereof : but upon the former ground , there needed no such Article for Masters , and all might thereby be Hollanders . And as to the Article of the Treaty , concerning no further inquiry , there is subjoyned , quod si gravis aliqua suspitio subsit ; in which case , notwithstanding of the Pass , Seasure might be made ; but here there was gravis suspitio , that the Ship or Goods belonged to the Hollanders , the Master , and major part of the Company being Hollanders , and the Pass mentioning a Ship of an hundred Tuns , whereas this Ship was two hundreth Tuns . It was answered for the Strangers , that the Kings Proclamation could be no Rule to the Subjects of any other free Prince ; but the Law of Nations , or their own Treaties , behoved to be the Rule : and by the Law of Nations , the King could not hinder his Allies of any Commerce , or Trade with His Enemies , which they were accustomed , or free to do before the War , except such Acts only , wherein they partaked with his Enemies , by furnishing provisions of War , or Counterband Goods ; and so the King by no Proclamation , could hinder the Swedes to hire and make use of Hollanders , which rather weakned , then strengthned his Enemies : and in this case , the making use of Hollanders was necessar , because other Sailers could not be had , when the Ship was bought ; and that Article of the Proclamation ought to be benignly interpret , that when any Ship carries Hollenders as Passengers , the same should be Seased , but not when these were Servants and Mariners to other Nations . It was answered for the Captain , that the Kings Proclamation of the War , behoved to be a Rule to the Kings Judges , and that it was most consonant to the Law of Nations , and it was impossible without the same , to know what Ships did truly belong to Allies ; and that in the Spanish Treaty with the King , that priviledge was specially indulged to the Flandrians , not to be quarrelled upon the account of Hollanders , because of the Identity of their Language , which would have been unnecessar , if by the Law of Nations , all might have so done .

The Lords Repelled the Reason of the Reduction , and found that ground of the Adjudication , that the Ship was Sailed , with a great part of the Company being Hollanders , Relevant alone , and that the same was sufficiently proven by the Testimony of the Steirsman , and another Witness of the Company , and therefore Assoilzied from the Reduction .

The Minister of Elgin contra his Parochioners . Eodem die .

THE Minister of Elgin pursues his Parochioners for the Viccarage of some Yeards in Elgin , which belonged of old to the Canons of the Cathedral Kirk of Elgin , and were by them Feued to the Defenders , who alleadged Absolvitor ; because the Yeards being a part of the Canons Portions , and in effect their Gleibs had in no time past , ever payed Viccarage , which is consuetudinar , and local , both as to the payment , and the kinds ; for in some places , Teind Lint , and Hens are payed , and in others not : but the ordinar Viccarage being Stirks , Wool , Milk and Lamb , there is none of these to be had in these Yeards . It was answered , that no Prescription could take away Teinds , upon the forbearance of demanding it by Beneficed Persons , who are but Administrators , and cannot Delapidat ; otherwise all Benefices might be destroyed . 2ly , Lands that have been always Ploughed , and so payed Parsonage , and becoming Grass , are lyable to Viccarage , albeit it cannot be proven , that ever they payed any before .

The Lords found the Defense Relevant , unless the Pursuer could prove that Viccarage has been payed out of these , or out of any other the Canons Portions of this Kirk .

George Shein contra Iames Christie . Eodem die .

G Christison of Bassallie , gave an Infeftment to his eldest Son , of the Lands of Bassallie , and to his second Son , of an Annualrent of 86. merks forth thereof , both of one date , and both reserving the Fathers Liferent . Iames Christie hath Right by Appryzing , led against the eldest Son , in his Fathers life , to the Lands . George Shein hath Right by Adjudication , against the second Son , to the Annualrent , and pursues a poinding of the Ground . It was alleadged for Iames Christie , that Sheins Authors Right was base , never cled with Possession , and so null ; whereas his Right was publick by an Appryzing , and had attained to Possession . It was answered , that the Fathers Liferent being reserved , the Fathers Possession was both the Sons Possession , and did validat both their Rights . It was answered , that a Disposition by a Father to his own Children , reserving his own Liferent , though Infeftment follow , is alwayes accounted simulat , and never accounted cled with Possession , by the Fathers Possession , as hath been frequently decided . It was answered● that albeit in Competition betwixt base Infe●tments , granted to Children , and Infeftments granted to Strangers upon onerous Causes ; the Childrens Infeftment , though prior , and though reserving the Fathers Liferent , uses to be preferred ; yet here that holds not , for both Infeftments are granted to Children , both of one date , and neither of them to Strangers , or upon onerous Causes ; and therefore the Reservation here is without suspition of Simulation , and the Fathers Possession must both validat the second Sons Annualrent● and the eldest Sons property .

Which the Lords found Relevant , and that the Fathers Possession by this Reservation , did sufficiently validat both the Sons Infeftments ; and that the Possession of one after his Death , or of any succeeding in his Right , did not exclude the other , or his singular Successor .

Mr. Robert Burnet contra Swane . Eodem die .

MR. Robert Burnet Tutor of L●yes pursues for Mails and Duties of a Tenement in Aberdene . It was alleadged for Swane the Defender , Absolvitor , because he stands Infeft in the Lands ; and by vertue of his Infeftment , in Possession ; and albeit the Pursuers Infeftment be prior , it is null , neither being Registrat in the Register of Seasins , nor in the Town Clerks Books of Aberdene , according to the custom of all Burghs , but hath been latent many years , and no vestige of it in the Town Books ; so that the Defender was in bona fide , to Contract with the common Authour , and Apprize thereafter . It was answered , that the Act of Parliament excepted Seasins within Burgh ; and the Pursuer having the Town Clerks Subscription was not answerable for his keeping a Prothecal , or Record .

Which the Lords found Relevant , and sustained the Seasine .

Colquhoun and Mcquair contra Stuart of Barscub . Iuly 1. 1668.

THe Laird of Barscub having seued certain Lands to Colquhoun and Mcquair , to be holden of himself , in the Contract of Alienation , there is a special Clause , that because the Lands are holden Ward of the Duke of Lenox ; therefore Barscub is obliged to relieve these Feues of any Ward that shall fall in time coming : Thereafter Barscub Dispones the Superiority of these Lands , and by the Death of his singular Successor , his Heir falls in Ward , whereupon Sentence was obtained against the Feuars for the Ward Duties , and the avail of the Marriage , and they now pursue relief against Barscubs Heir , upon the Clause of Warrandice above-written . The Defender alleadged , that the Libel was no ways Relevant , to infer warrandice against him , upon the said Clause ; because the meaning thereof can only be , that he as Superiour , and so long as he remained Superiour , shall relieve the Feuars , which ceases , he being now Denuded of the Superiority ; otherwise it behoved to have imported , that he should never sell the Superiority , without the Vassals consent , which no Law doth require : or if the Lands had been Appryzed from him , he could not be lyable for the Ward of the Appryzers Heir , which is cleared by the ordinary Custom , there being nothing more frequent in Charters , than Clauses of absolute warrandice ; and yet none was ever overtaken thereby , after they ceased to be Superiours . The Pursuer answered , that his Libel was most Relevant ; because this being an Obligement , conceived in their favours by Barscub , not qualified as Superiour , no Deed of Barscubs , without their consent , can take it from them , unless Barscub , when he sold the Superiority , had taken the new Superiour obliged , to receive the Vassals with the same warrandice ; but now the new Superiour , not being obliged by this personal Clause , Barscub the old Superiour , must remain obliged , especially in a Clause of this nature , which is express for all Wards to come .

The Lords Repelled the Defense , and Sustained the Libel , and found the Superiour ( albeit Denuded ) lyable for Warrandice .

Thomas Rue-contra Andrew Houstoun . Iuly 3. 1668.

ANdrew Houstoun and Adam Mushet , being Tacksmen of the Excize , did Imploy Thomas Rue to be their Collector , and gave him a Sallary of 30. pound Sterling for a year , thereafter he pursued Andrew Houstoun upon his promise , to give him the like Sallary for the next year , and in absence obtained him to be holden as confest and Decerned : Which being Suspended , he obtained Protestation , and therefore raised Caption , and apprehended Andrew Houstoun at Wigtoun , who gave him a Bond of 500. Merks , and got a Discharge , and being Charged upon the Bond of 500. Merks , he Suspends on these Reasons , that Thomas Rue had granted a general Discharge to Adam Mush●t , who was his Conjunct , and co●reus de●endi , af●er the alleadged Service which Discharged Mush●t , and consequently Houstoun his Partner . 2dly , The Decreet was for Sallary , and it was offered to be proven , that Rue ( for his Malversation ) was by warrand from Ceneral Monk , excluded from Collection that year , and by the Discharge of the Decreet , and this Bond , both of the same Date and Witnesses , it did appear that this Bond was granted for the Decreet , and if the Decreet were Reduced , by the Reduction thereof depending , the Bond would fall in consequence , as granted for the same Cause . The Charger answered , that he was now not obliged to Dispute , in relation to the Decreet . First , Because the Suspender had Homologat the same , by taking a Discharge thereof , and giving a Bond therefore . 2dly , There was not only a Homologation , but a Transaction upon a Reference , made by the Parties to ●aldone , conform to his Attestation produced ; so that that Transaction cannot be recalled upon any pretence , but is the most firm , and Obligatory Contract of any . The Suspender answered , that his payment making and taking Discharge , was no Approbation , nor Homologation , but that he might reduce the Decreet , and repeat if he had payed , or been poynded , and so may retain ; especially seing it was done metu Carce●is , he being taken with Caption : and as to the Transaction , he denies the same ; neither can it be instructed by Baldones Attestation , but by the Suspenders O●th or Writ .

The Lords f●und that the granting of the Bond was no H●mologation of the Decreet , but that ●e might quarrel the same ; and that the giving of the Bond was no Transaction , if he payed or gave Bond for the whole Sums contained in the Decreet : but found that ●f in consideration of the Grounds upon which he might quarrel the same , he had g●●●en an abatement by Arbitration , or otherwise that he could not quarrel the same , and found it only probable by his Oath , or ●●rit .

Iames Donaldson contra Harrower . Eodem die .

JAmes Donaldson pursues Iohn Harrower as representing his Father , for whom the Pursuer became Cautioner to the Lord Rollo for 100. pound , for relief of the Defuncts Goods that were then a poinding ; for which the Defunct promised payment , and did pay the Lord Rollo , and produces a Testificat of the Lord Rollo's thereof , and craves payment , and offers to prove the Libel by Witnesses , the Libel not being above an hundred pound . It was alleadged for the Defender , that this being a Cautionry , and a Promise it was not probable by Witnesses , especially after so long a time , the Promiser being dead , who might either qualifie the Promise , or instruct payment , there being nothing more ordinar , then to Transact such Affairs without any Writ .

The Lords found the Libel not probable by Witnesses .

Frazer contra Frazer . Eodem die .

JOhn Frazer having obtained a Decreet against William Frazer his Brother , to deliver a Tack of the Lands of Boghead , granted to their Father and his Heirs , to whom the said Iohn is Heir . William Suspends on this Reason , that he is Heir to his Father of the second Marriage , and produces his Retour , and produces the Contract of Marriage , including a Clause , that all Tacks Conquest during the Marriage , should belong to the Heirs of the Marriage ; and this Tack being Acquired during the Marriage , the same belongs to him : and albeit it he conceived to the Heirs generally ; yet by the Contract , the Pursuer as Heir general , will be oblieged to Assign . It was answered , that this Tack was no new Conquest , but had been the old Possession of the Father , and the Tack bare the Lands to be presently possest by him .

The Lords found this Tack to fall under the Clause of Conquest , unless the Pursuer prove that there was an old Tack standing , which expyred not till the second Marriage was Dissolved , in lieu whereof , this new Tack was taken .

Hamiltoun contra Callender . Iuly 7. 1668.

JAmes Hamiltoun having taken his Debitor with Caption , offered him to Iames Callender Baillie of Falkirk , to be Incarcerat in the Tolbooth of Falkirk , and he refusing , he now pursues a subsidiary Action against the Baillie , for payment of the Debt ; who alleadged Absolvitor , because he is no Magistrate of a Burgh Royal , but of a Burgh of Regality , the Baillies whereof were never in custom to be Charged with Rebels . The Pursuer opponed the Act of Parliament 1597. cap. 279. bearing expresly ▪ Baillies of Stewartries and Regalities , according to which , the Tenor of all Captions , bears the Letters to be direct against all Baillies of Regalities . The Defender answered , that for the Letters , it is but stylus curiae ; and for the Act of Parliament , the Narrative and Reason thereof relates only to Burghs having Provest , Baillies and Common Good .

The Lords having considered the Act of Parliament , Repelled the Defense and Decerned here the Rebel was Residenter within the Burgh of Regality , where there was known to be a convenient Prison .

Relict of William Pattoun contra Relict of Archibald Pattoun . Eodem die .

THE Relict and Executors of William Pattoun , pursues the Relict and Executors of Archibald Pattoun , for Compt and Reckoning of Sums and Goods belonging to the said umquhil William Pattoun by Archibald , and craves the Defender to produce Archi●alds Compt Books , who alleadgen nemo tenetur edere instrumenta sua contra se ad fundandam ●item ; so that the desire was no wayes reasonable , unless the Pursuer had given in a particular Charge , and Litiscontestation had been made thereon ; in which case , the Defender might have been compelled , ad modum probationis , to have produced the Books . It was answered , the contrair was found in the Compt and Reckoning betwixt the Children of George Sui●ty against the Representatives of William Suitty their Tutor , and that there was as great reason here , the two Defuncts having been Brothers , and being in Copartnery together , and the one Factor for the other . It was answered , that the case of a Tutor and his Pupil was no way alike , because the Tutors Compt Book was in effect the Pupils , and the Copartinery , and Factory was denyed .

The Lords ordained the Book to be put in the hands of the Auditor , and if he found by inspection thereof , any Accompts appeared as betwixt Partners and Factors , he should produce the same to the other Party , even ad fundandam litem , otherwise that the same should be given back , and not showen to the Pursuer .

Margaret Alexander contra Laird of Clackmannan . Iuly 9. 1668.

MArgaret Alexander being Infeft in an annualrent out of the Lands of Sauchie , by a posterior Infeftment , in Corroboration of the former Right , she was Infeft in that same Annualrent , out of other Lands , whereof she was in Possession ; but this posterior Infeftment being Reduced upon an Inhibition prior thereto ; she pursues poinding of the Ground , of the Lands of Sauchie , upon the first Infeftment . It was alleadged for Clackmannan Absolvitor , because the Pursuers Right of Annualrent is base , never cled with Possession , and now he is Infeft in the Lands , either publickly , or by another Infeftment cled with Possession . The Pursuer answered , that the Infeftment in the Lands of Sauchie was sufficiently cled with Possession , in so far as the posterior Infeftment of Annualrent in Corroboration thereof was cled with Possession , and as payment made by the Heretor , by himself for his Tennents , or by Assignation to Mails and Duties of other Lands in satisfaction of the Annualrent infers Possession ; so payment made by his Tennents , by the posterior Infeftment in Corroboration , can be no worse then an Assignation to the Mails and Duties of these Lands ; which as it payes some Terms Annualrent of the first Infeftment , so it must cloath it sufficiently with Possession . It was answered , that here being two distinct Infeftments at several times , albeit for the Annualrent of the same sum , yet the Possession of the last cannot relate to the first .

The Lord Repelled the Defense in respect of the Reply , and found that Possession by the last Infeftment , did from that time sufficiently validat the first .

Heugh Boog contra Robert Davidson . Eodem die .

HEugh Boog having arrested Robert Davidsons Fee , as Keeper of Herlots Hospital , Pursues the Town of Edinburgh to make it forthcoming . It was alleadged for Robert Davidson Absolvitor , because Robert Davidson had made cessionem bonorum , in favours of this Pursuer and his other Creditors , and thereupon was Assoilzied . The Pursuer answered , that a Honorum did no wayes secure contra acquirenda , unless the Assignation or Disposition had been equivalent to the Debt , and satisfied it . The Defender answered , that that which was here Acquired , was only a Fee for Service , which is Alimentar , and the Fee will not be due , unless the Defender Serve in suitable condition , effeirand to his place ; and therefore it cannot be made forth coming to any other use .

The Lords found that a Fee in so far as was necessar for the Servants Aliment conform to his condition of Service , could not be reached by his Creditors to whom he had made cessionem bonorum , except as to the superplus , more then what was necessar , and they found no superplus in this case .

Captain Allan contra Parkman . Eodem die .

CAptain Allan having taken Bartholomew Parkman , and obtained him to be declared Prize . Parkman raises Reduction , and for fortification of the Admirals Decreet of Adjudication , these Grounds were alleadged : First , That by the Testimonies of the Steirsman and Company , it was proven that three of the Company were the Kings Enemies ; and so conform to the Kings Declaration of War , Ordaining all Ships to be seazed wherein there were any number of men belonging to the Kings Enemies : this Ship was Prize , as was lately found in the case of the Ship called , The Castle of Riga . And albeit by a former Interloquitor , the Lords had not found three men to be a number sufficient for Confiscation : Yet it was not then considered ; that the whole Company consisted but of eight ; so that near the third of the Sailers were the Kings Enemies , and one of them the Steirsman , which is a considerable proportion . 2dly , This Ship though pretended to belong to the Swedes , yet she had served the Kings Enemies , the Danes and Hollanders , two years ▪ and by the Swedish Treaty it is provided , quod naves nullo modo accommodentur utriusque foederati inimicis . 3dly . It is also proven , that this Ship carried Counterband-goods , viz. Tar , which was not the product of Sweden , but carried from Denmark to Holland , and that she was taken in her return , having in a loadning of Salt from France ; so that albeit the Ship had been empty , she might have been taken Prize in that same Voyage , in which she did partake with the Kings Enemies : or being taken in the same Voyage , in which she had carried bona hostium . And lastly , it was also instructed , that the Cargo with which she was taken , was the product of the Counterband-goods , and so in the same case as if the Counterband-goods had been actually in her , the product being surrogatum quod sapit naturam surrogati . It was answered for Parkman , to the first Ground , that he opponed the Lords Interlocutor , finding three Sailers no sufficient number for Confiscation . And in the case of The Castle of Riga , the major part , at least the half were the Kings Enemies . To the second Ground it was answered , that the Kings Allies making use of their Ships for Fraught , was no way a lending of them to the Kings Enemies ; and as for the remnant Goods , by the Kings Declaration of War , there is only given Warrand to sease Ships , having in them Counterband-goods , or Enemies Goods ; and the Swedish ●rety bears expresly si deprehenduntur ; so that this Ship having in her when she was taken , no Counterband nor Enemies Goods , is free . It was answered , that the Kings Declaration , although it mention some cases of Seasure , is not full or exclusive , but the Law of Nations must take place , or the Custom of Scotland , in cases not exprest in the Kings Declaration . And as for the Swedish Treaty , it cannot be pleaded , unless Parkman had a Pass from Sweden , in all points conform to the Treaty : but their Passes were in several things disconform , as being granted when the Ship was in Holland , and sent over Land . And as for the Custom of Scotland , to take Ships in the return of that Voyage , in which they carried Counterband , or prohibited Goods ; it appeareth by the Captains Commission , and former Commissions in Anno 1628. and by a Decreet declaring a Prize , wherein the same ground was Libelled , that she was taken in the return of that same Voyage , in which she had carried Counterband . And the Lords having Written to my Lord Secretary , his Letter in return , bears , That the Lords should decide according to the Law of Scotland . It was answered for the Stranger , that the particular Custom of Scotland can be no Rule for the Swedes ; but only the Law and Custom of Nations ● and that England , nor no other Nation hath that Custom , to make Seasure , but in delicto , otherwise all Trade and Commerce would be destroyed , unless Seasure were only upon what were visibly Aboard , and not upon the pretence of what had been Aboard : and albeit a Delinquence once committed by partaking with the Kings Enemies , might endure for a longer time : Yet the Custom of Nations , for the utility of Trade , hath Abridged it to actual Seasure , in delicto , and accordingly Judge Ienkins , Judge of the Admirality in England , hath Attested , that during this War , after search of the Records , and Conference with other Judges , he knows not of any Prize declared , but when the Counterband goods , or Enemies Goods were taken actually in them . And for the Decreet alleadged on , albeit that Ground be in the Libel ; yet other Grounds are also therein , and there is no Debate as to that particular Point ; neither doth the Probation mentioned in the Decreet clear , that that Point was proven . And as to the Tenor of the Commissions , albeit they might excuse the Captain from Fine , or Damnages ; yet Strangers did not , nor were not obliged to know the same : but the Law and Custom of Nations , and the Kings publick Declaration of the War , and their Treaties .

The Lords having considered the Debate , and that the several Points were of Importance and Preparatives , they resolved to take the Grounds joyntly , and so found the Ship Prize , as having so considerable a proportion of her Company the Kings Enemies . Some also were of the opinion , that she having been taken in the return was sufficient , especially not having a sufficient Swedish Pass● but the plurality wa●ed these Points , whether the returns of Enemies Goods , or Counterband , or whether the Product , or not Product thereof were sufficient Grounds of Seasure , seing it did not so appear by the Custom of Nations , or the Kings Declaration of War : but by the former Debate it appeared , that she had Aboard when taken , a small parcel of Tar.

Mr. David Falconer contra Sir Iames Keith . Iuly 14. 1668.

MR. David Falconer gave in a Complaint against Sir Iames Keith of Caddam , that he being in the exercise of his Office , informing the President to stop a Bill of Suspension , given in by Sir Iames Keith : Sir Iames did revile and threaten him , calling him a Liar and a Knave , and saying if he found him in another place , he would make him repent what he said .

The Lords having received Witnesses in their own presence , and finding it proven , sent Sir James to the Tolbooth , there to remain during their pleasure , and Fined him in 500. Merks .

Earl of Wintoun contra Gordoun of Letterfary . Iuly 15. 1668.

THe Earl of Wintoun having Appryzed certain Lands in the North pursues for Mails and Duties . It was alleadged for Gordoun of Letterfary , that he stands Infeft in these Lands ; and by vertue of that Infeftment , is seven years in Possession , and thereby has the benefit of a possessory Judgement , and must enjoy the Mails and Duties till his Right be Reduced . The Pursuer answered , that he had Intented Process upon his Right for Mails and Duties , Anno 1658. whereby the matter became litigious , and which stops the course of any possessory Judgement , till that Citation expyre , by the course of 40. years , in the same way as it is in Removings or Ejections : where Summons once Intented , does not Prescribe by three years thereafter , but lasts for 40. years . The Defender answered , that the case is not alike ; for the benefit of a poss●ssory Judgement is introduced for the Security of Persons Infeft , that they be not summarly put to Dispute their Authors Rights which are oftimes not in their hands , but in the hands of their Authors , or Superiours ; and there was never any Reply Sustained against the same , unless it were Vitious or Violent , or Interrupted : but here the last seven years Possession , after that Citation , is neither Interrupted , nor Vitious ; and these being no stop to take away the Effect of that Citation : it were of bad consequence , if Persons Infeft 39. years after a Citation , behoved Summarly to Dispute their Rights .

The Lords Sustained the Defense of the Possessory Judgement , upon seven years peaceable Possession , before the Citation , and Repelled the Reply .

The Pursuer further Replyed , that in the seven years after the Citation , there were some years wherein there was a surcease of Justice , and no Courts in Scotland . 2dly , The Citation was by his Tutors and Curators , and he was minor during the seven years . It was answered , that a possessory Judgement was competent against minors , and there was no respect of minority therein , which is only excepted in the great Prescription , extinguishing the Right ; but in the possessory Judgement in Relation to the way of Process , and the Fruits in the mean time , as in all Prescriptions , tempus contin●um , and not tempus utile , is respected .

The Lords also Repelled both these Replyes , and notwithstanding thereof Sustained the Exception on the possessory Iudgement .

Sir William Steuart contra Murrays . Iuly 17. 1668.

SIr Iames Murray , his Estate being Appryzed by many of his Creditors ; Sir William Steuart , one of the Appryzers , pursues the rest for Compt and Reckoning of a proportionable part of the Rents , in respect that his Appryzing is within a year of the first effectual Appryzing , and comes in therewith pari passu , by the late Act of Parliament , betwixt D●bitor and Creditor . It was alleadged Absolvitor : First , Because the Pursuers Appryzing is incompleat , nothing having followed thereupon now these 16. or 18. years ; and by the Act of the late Parliament , anent the Registration of the allowance of Appryzings , that is declared to be a necessar Solemnity for all Appryzings led since Iune 1652. and this Appryzing is not yet allowed . It was answered , that by the late Act of Parliament , the Certification of the want of allowance is not , that the Appryzing shall be null ; but that posterior Appryzings first allowed , shall be preferred : but the Act betwixt Debitor and Creditor , brings in Appryzings together , deduced within a year , according to their Dates , without mention of allowance , and is posterior to the said other Act , and cannot be Derogat from thereby ; nor does the Act require Infeftment , or any thing else , but takes away the preference of Appryzings by the former Act , as to such as are led within a year .

The Lords Repelled this Defense , and Ordained the Pursuer now to allow his Appryzing , which they found sufficient .

The Defenders further alleadged Absolvitor , because the Pursuer had accepted a Disposition from Sir Iames Murray , the common Debitor of a Tenement in Edinburgh , bearing expresly , in satisfaction of his Debt , which is now produced by himself . The Pursuer answered ; First , That he was excluded from the benefit of that Disposition by Eviction , by the Earl of Panmure , who Appryzed before he was Infeft . 2dly . That whatever it bear , it was but truely granted for Security ; for there is produced an Assignation by Sir Iames , of certain sums to the Pursuer , for the same Debt , which could never have been , if the first had been made in satisfaction . The Defenders opponed the Disposition , bearing expresly in Satisfaction , the benefite whereof accrescing to them , upon the Pursuers Receiving the Disposition , cannot be taken from them by any posterior Writ of the Common Debitor ; nor are they obliged to Dispute , whether it was valid or effectual , seing it was accepted , and the Eviction doth not annul the Acceptance , but giveth place to the Clause of Warrandice , contained in the Disposition , which is Personal , and reacheth only the Common Debitor , and not the Defenders : 2dly , It was the Pursuers own fault that he was excluded , in not Infefting himself upon his Disposition , which he received before Panmuire's Appryzing . It was answered , that he could not compel the Superiour to receive him , and that the Baillies of Edinburgh required bygone Sess , and Feu-duties to be payed before he were Infeft , which he was not obliged to pay , seing by the Disposition he was to be free of all Incumberances . It was answered , that the Baillies of Edinburgh refuse no body , as is known , and these Incumberances were but to be purged by a personal obligement of the common Debitors , neither did the Pursuer ever give back the Disposition .

The Lords Sustained this Defense , and found the receiving , and retaining the Disposition in Satisfaction , sufficient to exclude the Pursuer .

It was further alleadged for Patrick Murray of Deuchar , that he has Right to the Lands of Deuchar not only by Appryzing , but by a voluntar Disposition , whereupon he was Infeft before the Pursuers Appryzing , and hath been by vertue thereof in peaceable Possession these 16. years , and so hath the benefit of a possessory Judgement , and a prior more valide Right . It was answered that this voluntar Disposition was granted after the Denunciation of the Pursuers Appryzing ; after which , the common Debitor could not prefer any other Creditor by his voluntar Deed ; and so the Denunciation making the matter litigious , any posterior Possession is Vitious , and cannot give the benefit of a possessory Judgement ; neither is the Disposition being after the Denunciation a valide Right ; but especially it being considered , that the Act of Parliament brings in this Pursuer with the other prior Appryzers , as if they had been in one Appryzing , and several of the other Appryzings are led , and Infeftment thereon before the Disposition .

The Lords Sustained this Defense , and found that the Denunciation did not take away the benefite of a posterior possessory Iudgement .

Lord Dumfreis contra Smart . Iuly . 18. 1668.

THe Laird of Wamphray , being due a yearly Annuity to his Good-mother , the Lady Wamphray , which now belongs to the Laird of Castlemaines her Husband , jure mariti , there is a competition thereanent , betwixt .

Factor to the Earl of Dumfress , whose Name was used in the Gift to Dumfreis behove , as Donator to the Escheat of Castlemaines , and Smart as having appryzed from Castlemaines the Right to this Liferent , jure mariti , who alleadged that he ought to be preferred to the Donator ; because albeit his Appryzing was after the Rebellion , yet it was upon a Debt anterior to the Rebellion , and was long before the Donators Gift ; and therefore according to the known Custom , Diligences of Creditors being before the Gift , or Declarator , are alwayes preferred to the Donators of single Escheat . It was answered for the Donator , that that Custom was never further extended then to Moveables , or Moveable Sums poynded , or made forthcoming upon Arrestments , but never to Rights having tractum futuri temporis , which cannot be carried by poynding or Arrestment , but by Appryzing or Adjudication , as Tacks or Liferents , when Assigned , so that the jus mariti being a Legal Assignation , and thereby falling under the Husbands single Escheat , falls to the King and Donator by the Rebellion , and cannot be taken away by an Appryzing , pesterior to the Rebellion .

Which the Lords found Relevant , and preferred the Donator .

Mr. George Iohnstoun contra Parichloners of Hodony . Eodom die .

MR. George Iohnstoun having Right to a Tack set by the Parson of Hodony ▪ for his Lifetime and three years thereafter , and having used Inhibition , pursues the Possessors of the Lands , who alleadged Absolvitor , because the Tack is null , being set for more nor three years , without consent of the Patron , by the Act of Parliament 1621. It was answered that the Pursuer restricts his Tack to three years . The Defender opponed the Act of Parliament , declaring such Tacks simply null , as were set for more then three year .

The Lords Sustained the Tack for three years , as allowed by the Act of Parliament .

R●bert Thomson contra Earl of Glencairn . Iuly 21. 1668.

RObert Thomson having pursued the Earl of Glencairn for a Compt of Wright Work , wherein he was Imployed by the late Earl for his Lodging and Yeards , when he dwelt in my Lord Oxfoords House . It was alleadged for the Earl , that the Imployment being a Direction , was only probable scripto vel juramento .

The Lords before answer , having ordained Witnesses to be Examined , and their Testimonies being clear and pregnant , that the late Earl did imploy the Pursuer in this Work , and called for him frequently , and ordered the Work from time to time ; they Sustained the Witnesses in the Probation , and found it prove● . It did not appear that this Pursuer was within three years of the Work , but the Defender did not insist in any Defense thereupon .

Patoun contra Patoun . Eodem die .

PAtoun in his Son● Contract of Marriage , Dispones to him his Estate , and the Tocher was payable to the Father ; after the Contract , and before the Marriage the Father takes a Bond of 2800. Merks from his Son , the Wife and her Brother pursues a Reduction of this Bond as fraudulent , & contra bonos mores & contra pacta dotalia . It was alleadged for the Father , that he might very lawfully take a Bond from his Son , for provision of his Children after the Contract , and before the Marriage , having Infeft his Son in his whole Estate , which was worth 1000. Merks yearly , and getting but 2500. Merks of Tocher , and having some Debt and many Children . It was answered , that the Estate was not worth 600. Merks of Rent , and the Fathers Liferent of 400. Merks reserved , so that the Annualrent of this Bond would exhaust the remainder , and they would have nothing to live upon .

The Lords having considered the Contract and Alleadgances , thought that it was not sufficient to annul the Bond , that it was after the Contract , and before the Marriage , if there was any reasonable cause . Therefore , and before answer ordained the Commuuers at the Marriage to be Examined , whether it was communed and agreed , that the Tocher should be accepted for f●tisfaction of the Debt and Bairns Portions , and they having Deponed Affirmative .

The Lords Reduced the Bond as contrair to the Communing at the Contract of Marriage , the Estate being very mean .

Sir Iohn Weems contra Campbel of Ednample . Eodem die .

SIr Iohn Weems having Charged Ednample for Maintainance due in Anno 1648. He Suspends on this Reason , that upon consideration of the burning of his House in the time of the Troubles , he got an Exemption and Discharge from the King and Parliament , Anno 1651. It was answered that that Parliament was Rescinded , and the Charger had a Commission to uplift all Maintainance in Anno 1648. from the Heretors , notwithstanding of any exemptions granted by these pretended Parliaments , and their Committees . The Suspender answered , that the Act Rescissory has an express Reservation of all privat Rights , acquired by Authority of these Parliaments for the time ; and so this Exoneration of his becoming his privat Right , falls not by the Act Rescissory : and as to the Act of Parliament , and Commission to the Charger , it must be understood salvo jure , and cannot take away the Suspenders anterior Right acquired .

Which the Lords found Relevant , and Suspended the Letters , and found that the Suspenders Exoneration was not taken away , either by the Act Rescissory , or by the Act and Commission in favours of Bogie .

Lord Rentoun contra Laird Lamertoun . Eodem die .

THe Lord Rentoun , Justice Clerk , having pursued Lamertoun , as Representing his Father , for the Pursuers Rents and Goods intrometted with by the Defenders Father in Anno 1641. The Defender excepted upon the Act of Pacification in Anno 1641. and upon the Act of Indemnity in Anno 1661. and produced his Fathers Commission , by which he medled ; so that having done by publick Authority for the time , in relation to the War , and differences of the time , he was secured by both these Acts. The Pursuer answered , that the Act of Pacification , and that whole Parliament was Rescinded , and the Act of Indemnity had an express exception of all that medled with publick Monies of Fines , Forefaultors , or Sequestrat Estates , and had applyed the same to their own use , and had not duly counted therefore : and the Pursuer insisted for what the Defenders Father had applyed to his own use , or had not duly counted for . The Defender Duplyed , that his Father had duly counted for his whole Intromission , and had made Faith to the Committee of Estates particularly , that he had truly given up his Charge without omission , and thereupon was Discharged . The Pursuer answered , that he had instructed much more Intromission , and was content to allow the particulars in the Compt produced , and craved the superplus , which he had now proven by Witnesses adduced before answer : and as for the Oath , it could only be understood as an Oath of Credulity , like that of Executors Confirming Testaments , which doth not exclude probation of Super-intromission : and there being two Compts produced , the Charge of the last Compt is the rest of the former Compt , and the Oath relates only to the last Compt.

The Lords Repelled the Defense upon the Act of Pacification , which they found was only unrescinded , in so far as it is contained in the late Act of Indemnity ; and Repelled the Defense upon the Act of Indemnity , in respect of the Exception ; and found that the Father had not Counted duly for his whole Intromission ; and that his Oath extended only to the last Compt : and having considered the Testimonies of the Witnesses , they made a difference betwixt what umquhil Lamertoun applyed to his own use , and what Corns and Cattel were carried away by Souldiers , by his direction to the Army , that he might be free of the latter , and lyable for the former .

Iohnstoun of Sheins contra Isobel Arnold , Iuly 22. 1668.

IAmes Arnold having granted a Bond of Provision to his Daughter Isobel , became afterwards Debitor to Iohnstoun of Sheins , who Appryzed Arnold's Estate , in Anno 1638. upon a Debt of his own , and as Assigney to another Debt . Thereafter Isobel Arnold on her Bond of Provision Appryzes the same Lands ; Sheins conies in Possession of the most part , and Isobel in a small part , till they both acquire the benefit of a Possessory Judgement , whereupon there are mutual Reductions ; Sheins Reason was , that his Fathers Appryzing was long prior to the Defenders , and that the ground of the Defenders Appryzing , was only a Bond of Provision by a Father to his Daughter , which could never exclude the Fathers Creditors , especially if that Debt was contracted before the Bond of Provision was granted , and while it remained in the Fathers Custody , and so in his power to be Reduced at his pleasure . Isobels Reason of Reduction was , that albeit Shein's Appryzing was prior , yet there was no Infeftment thereon in Shein's person , bearing to be on an Assignation to the Appryzing by Shein's to Collingtoun , but any Infeftment produced is in Collingtouns Person , bearing to be on an Assignation to the Appryzing by Sheins to Collingtoun , which Assignation is not produced , and so Shein's Infeftment , flowing from Collingtoun is null , because Collingtouns Right , from Umquhile Shein's is wanting , which is the mid-cuppling . 2dly , Shein's Appryzing being on two Sums , the one whereof was to the behove of a Cautioner , who had payed the Debt , and taken the Assignation in Shein's Name to his own behove ; which Cautioner being conjunct Cautioner with Iames Arnold , the common Author , and having a Clause of relief , neither he , nor Shein's intrusted by him , could justly or validly Appryze Arnold the Cautioners Lands for the whole Sum , but behoved to deduce the other Cautioners part , and so the Appryzing is upon invalide grounds , and thereby is null , and albeit prior to Isobel Arnold's Appryzing , yet she has the only valide Appryzing . It was answered for Shein's that the first Reason was not competent to the Pursuer , for it was jus tertij to her what progresse Collingtoun had from Umquhile Shein's , seing she Derives no Right from him . 2dly , This Collingtoun by his Right granted to this Shein's , acknowledges that aborigine the Infeftment , in Collingtoun his Fathers person , was to Shein's behove , which is a sufficient Adminicle in place of the Assignation ; and to the second Reason , albeit it were instructed it could not annul the Appryzing in totum , but restrict it to the Sum truly Due , especially seing that Shein's was content to declare his Appryzing Redeemable by payment of the Sums truly Resting , within such times as the Lords would appoint ; and albeit the Lords are strict in the Formalities of Appryzings when they are expired , and carry the whole Estate , though improportional , yet during the legal , they allow them in so far as they are due .

The Lords found Isobel Arnolds first Reason Competent , and Relevant to her , unlesse Collingtouns Assignation were produced , or the Tenor of it proven ; and found the second Reason Relevant , to restrict the Appryzing to the Sum truly due , in respect that Shein's did of Consent declare it , yet Redeemable for the true Sums . But they found Shein's alleadgeance , that the ground of Isobel Arnolds Appryzing was a Bond of Provision , posterior in Date or Delivery to Shein's Debt , Relevant to prefer him as a Conjunct Creditor for his true Debt , though the Assignation should not be produced , a new one from Collingtoun being sufficient .

Iohn Boswel contra the Town of Kirkaldy , Eodem die .

IOhn Boswel having some Aikers in the Towns Lands of Kirkaldy , and some Houses in the Town , but not dwelling within the Town , or Paroch , nor using any Trade therein : pursues the Town as having unwarrantably Stented him for his Stock and Trade , he not dwelling in their Burgh . 2dly , For unequal Stenting him as to his Lands . 3dly , For Stenting him for the Towns Debts , as for the Sums payed for their Erecting Harbours , and some Teinds they Bought . 4thly , For Stenting him for the second Ministers Stipend , whereas he payed the whole Teind to the first Minister , nor dwelt he in the Paroch , nor consented to a second Minister , or to his Stipend , and for unwarrantable Quartering on him , and his Tennents , and this since the year 1644. It was answered for the Defenders , that they denyed Stenting of the Pursuer , for any Stock or Trade , seing he was no Inhabitant ; or that they Quartered on him unwarrantably , but alleadged there was now no ground after so long a time , to quarrel the inequality of their Stent Rolls , which were made by fifteen sworn Men , especially after so long a time , for this preparative would be the foundation of a Debate , at the instance of every Burgess , against every Town in Scotland : neither could there be a clear Rule , as in Valuations , but behoved to proceed by the Stenters Conjecture , according to the common esteem of the Means , and Trade of every Burgess ; so that unless the Complaint were against the inhability of the Stenters , in due time made , there could be no Debate thereafter : And further alleadged , that for the Towns Debts , that such as were contracted for the common benefit of the Town , for getting their Erection , and Harbour ; and for the second Ministers Stipend , the half of which had been payed by the whole Heretors , since the year 1613. and the other half since the year 1649. that their new Kirk was Erected , should burden the Pursuer proportionally , according to his Land Rent . The Pursuer answered , that he not being an Inhabitant , was not concerned in the Erection or Harbour , nor in the second Ministers Stipend , seing he payed his whole Teind to the first Minister .

The Lords found the Pursuer lyable for the half of the Stipend , in regard of the immemorial use of payment , but found him free for what he had not payed of the other , unless it had been imposed by Authority , or his own Consent ; and also found him free of the Personal Debt , and would not Sustain Process against the inequality of the Stent Roll , after so long a time .

Duncan Campbel contra the Laird of Glenorchy , Iuly 25. 1668.

DVncan Campbel pursues the Laird of Glenorchy , for Ejecting him from certain Lands , and especially , that his Brother , by his Direction , did violently cast out the Pursuers Children , and Servants out of a part of the Land , Laboured by himself ; and perswaded , and enticed his Tennents , to receive Tacks from , and pay the Mails and Duties to him , and therefore craves Re-possession , and Double Mail , as the violent Profits of the whole Lands , during the Defenders Possession . The Defender alleadged Absolvitor , because he had obtained Improbation against the Pursuer , of all his Rights of these Lands , and others ; and likewise Decreet of Removing . The Pursuer answered , that the Defense ought to be Repelled , because the Improbation was only by a Certification , when he was Prisoner in Irland , and the Defender by Articles of Agreement produced , had acknowledged the Pursuers Right , and obliged himself to Infest him in the Lands in question . 2dly , Though the Pursuer had but Possession without any Right , he might not be Ejected , but by a Precept of Ejection from a Judge , which is not alleadged . The Defender answered , that these Articles of Agreement were never perfected , nor extended , and could only import a Personal Action against the Defender , for extention , or implement , wherein , when the Pursuer insists he will get this answer , that he can have no benefit of the Articles , being mutual until he perform his part thereof , which is not done .

The Lords Repelled the Defence , and Duply , and Sustained the Ejection .

The Defender alleadged , further , that that Member of the Libel , craving violent profits for that part of the Land Possest by Tennents , because by the Defenders perswasion , they became his Tennents , is not Relevant , because Ejection is only competent to the natural Possess or upon violence , and perswasion is no violence . The Pursuer answered , that the prevailing with the Tennents , was consequent to the casting out of the Defender , out of his own House , and natural Possession , and was as great a fault as Intrusion , and equivalent thereto . The Defender answered , that the Law has allowed violent ▪ profits only in Ejection or Intrusion , which can be drawn to no other Case , though it were as great , or an greater fault .

The Lords sustained the Defence , and found violent profits only competent for that part , that the Pursuer Possest naturally ; but if the whole Lands had been an united Tenement , or Labouring , that the Pursuer had been Ejected out of the principal messuage of the Barony , and the Ejecter had thereby gotten Possession of the whole , it is like the Lords would have sustained Ejection for the whole , but this was not Pleaded .

Lord Rentoun contra Lambertoun , Iuly 28. 1668.

THis day the Lord Rentouns Processe against Lambertoun , mentioned the 21. Instant , was Advised ; by the Probation it appeared that the Corns in the Girnels of Haymouth , and the Cattel in the Mains of Rentoun , and Horses were taken away by Lambertoun , with a Troop , or Troopers ; and that the Corns were carried to Dunss , the Army being thereabout at that time : whereupon the question arose , whether or not Lambertoun were lyable for these , which by the Probation did not appear to be applyed to his use , but to the use of the Army .

The Lords Assoilzied him therefrom , as they had done in several cases formerly , upon the Act of Indemnity , whereby whatsoever was acted in the Troubles , by Warrand of any Authority in Being , was totally discharged ; and the Lords did thereupon find , that the Actors were not obliged to produce , or show a Warrand , but that it was enough the Deeds were done , man● militari , unlesse the contrair were proven by the Actors own Oath , that what was medled with , was not employed to entertainment of Souldiers , or any other publick use , but to their own private use .

Laird of Milntoun contra Lady Milntoun , Iuly 30. 1668.

THe Laird of Milntoun infifted in his Action of Reprobator , wherein this point of the Dispute was only Discust , whether Reprobators were competent , unlesse they were protested for at the taking of the Witnesses Testimonies , or whether it were sufficient to Protest at any time before Sentence , or if there were no necessity at all , and especially as to this Case . It was alleadged there was no necessity of a Protestation , and if it were , there was a Protestation at the Re-examination of the Witnesses , and also before Sentence . It was answered , that a Protestation was most necessar , because the want of it was an acquiescence in the hability , and honesty of the Witnesses ; and if it should not be necessar , all Process this five years might come in question upon Reprobation , which were of dangerous consequence ; and therefore , as Incidents are not competent , but when Protested for no more Reprobations ; as to the alleadged Protestation , at the Examining of the Witnesses , it is but subjoined to the Interrogators , only Subscribed by one of the four Examinators , who Subscribed the Testimonies , and who does not remember of his Subscription , so that it has been surreptitiously obtained from him ; as to the other Protestation , the same was not when the Witnesses were taken , but at the conclusion of the Cause . It was answered , that it was in competent time , even at the conclusion , and that Reprobators were not only not rejected , but expresly allowed by the Pursuer , by way of Action .

The Lords found this Reprobator competent in this Case , but did not resolve the point generally , whether they were competent , when not at all Protested for ; as to which the Lords were of different Judgements , but most seemed to require a Protestation , ante rem Iudicatam , yet so that if it were omitted , the Lords might repone the Party to Reprobators , if any emergent made the Testimonies suspect through inhability , or corruption in the same manner , as the Lords will repone Parties against Certifications , Circumductions of the Term , and being holden as Confest .

Sir George Mckenzie contra the Laird of Newhal , Eodem die .

SIr George Mckenzie Advocat , having Married a Daughter of Iohn Dickson of Hartrie , they pursue a Proving of the Tenor of an Inventar of Har●ries Lands , wherein he altered the former Substitution of his Children in several Bonds , and paricularly of a Bond of 5000. Merks , granted by Whitehead of Park , payable to himself , and after his Decease to Helen Dickson his youngest Daughter , who was Married to Ballenden of Newhal ; and by the Inventar the Substitution was altered , and the one half of the Bond appointed to pertain to Elizabeth ( now Spouse to Sir George Mckenzie ) and the other to Helen and Michael : to prove that the samine was Holograph , because it wanted Witnesses ; there was produced for Adminicles , the Copy of it , written by Iohn Kelloes Hand , Hartries Nephew , and an judicial Instrument , containing the Tenor of it by way of Transumpt ; but there was some words of difference between the Instrument and the Copy , which was Subscribed by Iohn Ramsay , Hartries Good-brother , and Mr. Iohn Pringle , Hariries Good-son ; who , and several others , being adduced as Witnesses , Deponed that the principal Inventar was produced by Hartrie on his Death-bed , and shown to his Friends , and by them Read , and that the Subscribed Copy was Collationed with the principal by them that Subscribed the same , and held in all points ; and that the principal Inventar was all written with Hartries own Hand , except an alteration , made upon a Bond of Tarbets , which was written by Iohn Ramsay's Hand , by direction of Hartrie , some hours before he Died , and was not able to Subscribe it , with some other alterations in relation to Bonds , wherein the Children Substitute , were Dead ; but that this Article in relation to Whiteheads Bond , was all written with Hartries own Hand .

The Lords found the Tenor proven , conform to the Subscribed Copy , and found the said Inventar Holograph , except in relation to Tarbets Bond , and these other particulars written by Iohn Ramsay's Hand , so that Holograph was proven , without production of the principal Writ , joyntly with the Tenor , albeit some part of the Writ was not Hartries Hand , but written by Iohn Ramsay's Hand ; but these not being Subscribed by Hartrie , were in the same case as if they had been omitted forth of the Inventar , and the remainder of the Inventar , which only was Probative was all Holograph .

Patrick Park contra Nicol Sommervel , November 12 : 1668.

PAtrick Park pursues a Reduction of a Bond of 1200. Merks Scots , upon these Reasons , First , Because albeit the Bond bears borrowed Money , and be in the Name of Nicol Sommervel ; yet he offers to prove by Nicols Oath , that when he received the Bond , it was blank in the Creditors Name , and offers to prove by Witnesses , that the true Cause thereof was , that

Sommervel , Nicols Brother , having win all the Pursuers Money he had at the Cards , he being then distempered with Drink , caused him Subscribe a blank Bond , for filling up what Sum he should win from him , and that this Sum was filled up in this Bond , which he offers to prove by the Oath of Nicols Brother that wan the Money , and the other Witnesses insert , so that the Clause of the Bond being played Money , by the Act of Parliament 1621. the Winner can have no more but 100. Merks thereof . 2dly , Before Nicols Name was filled up , or any Diligence or Intimation thereof : there was a Decreet Arbitral betwixt the Winner and the Pursuer , wherein all Sums were Discharged● which Discharge being by the C●dent , to whom the Bond was Delivered , before the filling up of Nicols Name , or Intimation thereof , which is in effect an Assignation , excludes the Assigney . It was answered for the Defender , that he opponed the Bond , bearing borrowed Money , grantled in his own Name ; and though he should acknowledge that the Bond was blank in the Name , and that thereby his Name being filed up , he is in effect and Assigney : yet the Bond being his Writ the Bond cannot be taken away , but by Writ or Oath of Party , and not by his Cedents Oath , or Witnesses insert , unless it were to the Cedents behove , or without a Cause Onerous , as the Lords have found by their Interlocutor already . 3dly , Albeit it were acknowledged to be played Money , the Act of Parliament is in Desuetude , and it is now frequent by Persons of all quality to play , and to pay a greater Sum then 100. Merks . 4thly . The Pursuer who loseth the Money , hath no Interest by the Act of Parliament , because thereby he is appointed to pay the Money , but the superplus Money , more then 100. Merks , is appointed to belong to the poor , and the Defender shall answer the poor , whenever they shall pursue , but it is jus tertij to the loser , who cannot detain the Money thereupon ; but whatever was the cause , the Defender having received the Bond for a Cause Onerous , and being ignorant that it was for any other Cause but true borrowed Money , he must be in t●to ; otherwise upon this pretence , any Bond may be suspected , and the Cedent after he is Denuded by Witnesses , may take the same away .

The Lord Advocat did also appear for the Poor , and claimed the superplus of the Money , more then 100. Merks , and alleadged that the Act of Parliament did induce a vitium reale . which follows the Sum to all singular Successors ; and that though ordinarly the Cedents Oath , or Witnesses be not taken against Writ , yet where there is Fraud , Force , or Fault , Witnesses are alwayes Receiveable , ex officio at least , and ought to be in this Case , where there is such Evidence of Fraud , that it is acknowledged the Bond was blank in the Creditors Name , when Nicol Received it , and the filling up was betwixt two Brethren , and the Debitor dwelling in Town , did not ask him what was the Cause of the Bond , and that an Act of Parliament cannot fall in desuetude , by a contrait voluntar Custom never allowed by the Lords , but being vitious against so good and so publick a Law .

The Lords found the Act of Parliament to stand in vigour , and that the Loser was lyable upon the same grounds , and therefore ordained the Sum to be Consigned in the Clerks Hands , and before answer , to whom the Sum should be given up , ordained Nicols Oath to be taken when his Name was filled up , and for what Cause .

Margaret Calderwood contra Ianet Schaw , November , 14. 1668.

MArgaret Calderwood pursues Ianet Schaw to pay a Bond ▪ as Heir to Iohn Schaw , granted by him , who alleadged Absolvitor , because the Bond is null , wanting Witnesses ; the Pursuer offered him to prove Holograph . The Defender answered , that Holograph could not prove its own Date , so that it is presumed the Bond was granted on Death-bed , unlesse 〈◊〉 be proven that the Date is true as it stands , or at least that it was Subscribed before the Defuncts Sickness . The Pursuer answered , that Holograph proves its Date , except contra tertium , but it is good against the granter or his Heir , who cannot be heard to say that his Predecessors● Deed is false in the Date . The Defender answered , that an Heir might very well deny the Date of a Holograph Writ , otherwise the whole benefit of the Law ( in favours of Heirs not to be prejudged by Deeds on Death-bed ) may be evacuat by Antedated Holograph Writson Death-bed . The Pursuer answered , that he was willing to sustain the Reason founded on Death-bed , which was only competent by Reduction , and not by exception or reply . The Defender answered , that where Death-b●d is instantly verified by presumption of Law , and that the Pursuer must make up a Write , in rigore juris null for want of Witnesses , he ought without multiplication of Processes , both to prove the Bond Holograph , and of a Date anterior to the Defuncts Sickness .

Which the Lords found Relevant .

William Duncan contra the Town of Arbroth , November 17. 1668.

WIlliam Duncan Skipper in Dundee having lent the Town of Arbroth three Cannon , in Iune 1651. to be made use of for the Defence of their Town against the English , got from the Magistrats of Arbroth a Bond of this Tenor ( that they did acknowledge them to have Received in borrowing three Guns , and obliged them to Restore the same within 24 ▪ hours after they were Required , without hurt , skaith , or damnage ; and in case of hurt , skaith , or damnage to be done to them , obliged them to make payment of the Sum of 500. pounds , as the price agreed upon for them ) upon this Bond William Duncan pursues for the price . It was alleadged for the Town of Arbroth Absolvitor , because the Cannon were lost , casu fortuito & vi majo●i in so far as the English , after they had overcome the whole Countrey , and taken Dundee , did seize upon their Cannon after the Defenders had carried them the length of Bar●i-sands , before they were taken , and chaste back again by the English Ships , and thereupon buried the Cannons in the Sand within the Sea Mark , and hid the Carriages in a laigh Cellar , wherein they were covered , and it being clear by the Tenor and Nature of the Bond , that the Guns were Received in borrowing , and that it was contractus commoda●● , or Loan ; which by the consent of all Lawyers , does not put the peril of vis major , or casus fortuitus upon the Borrower , but upon the Lender , who is dominus & res peri●●●● Domino . The Pursuer answered , First , That albeit by the nature of commodatum , the Borrower hath not the peril , yet the Law makes this exception , si commodatum sit estimatum , in which case the peril is the Borrowers , and it is no proper Loan , but rather Sale , which is clear , l. 5 〈◊〉 . commodati ; but by this Bond it is evident that it is commodatum estimatum , and here not only a value agreed upon , but a Sum expresly declared to be the price . 2dly , There is no question but Loan may consist with that , that the Borrower will undertake all peril : Ita est by this Bond the Defenders are obliged to Restore , without hurt , skaith , or damnage , which must import all perils , especially such perils as was then imminent , viz. The taking of the Cannons by the Enemy , otherwise this Clause should operat nothing , seing without it the naked naming of a Contract would oblige to Restitution . 3dly , Albeit the Borrower were free of casus fortuitus , yet that is defined , and understood to be qui a nemine potest praevideri , but no body could have been ignorant of this Chance , to have been taken by that Enemy who were then imminent , and against whom particularly the Cannons were borrowed . 4thly , By all consents , commodatarius ten●●ur ●ro levissima culpa & summa diligentia , whereinto the Defender failed ; for they alleadged only an attempt , for carrying back the Cannons to the Pursuer , but they should have used other attempts , other dayes , and otherwayes ; and likewise they were negligent , that they buried the Cannon to the knowledge of their whole Town , whereas they should have entrusted some few to have done it in the night ; likeas they failed in this , that they made no application as others did who got back their Cannon by a publick Proclamation by the Usurper , that all Cannons taken off Ships should be Restored , to enable the Shipping against the Spainard and Dutch. The Defender answered to the first alleadgeance , that he did not deny but in commod●●● estimato , the whole peril was upon the Borrower , but denyed that this was commodatum estimatum , for all Lawyers do define commodatum estimatum , in the same way as dos estimata , to be where the obligation is alternative , either to Restore the thing borrowed , or the price , at the option of the Borrower , so that the Lender is no more dominus , nor can demand the thing borrowed , which becomes the ●●●rowers , unlesse he please to give it back , & res perit s●o d●mino , but where the value is only liquidat in case of deterioration , or in case of failzie , the Borrower cannot free himself by offering the price , but the Lender may call for the thing , although it were deteriorat , but here the liquidation of the price is only in case of deterioration , and the dominion is unquestionably in the Lender . To the second , it was denyed that the Borrower had here undertaken the peril , for the words of the Contract being ( hurt , skaith , and damnage ) in the proper and vulgar use , do not signifie peril or hazard , but only deterioration , and have this equipollent positive to Restore the Guns in as good case as they Receive them , which would never import force or accident , and for the expressing of that Clause , nothing is more ordinar then to express Clauses , quae natura contractus insunt , and the adjection of this Clause may have these uses , First , It liquidats the value , in case the Borrower ●ailzie , without putting the Lender to prove the same . 2dly , Whereas a simple Loan might only have obliged the Borrower to diligence , so that if without his fault in making the use , for which the thing was borrowed , it had been deteriorat and lost , the Borrower would not have been lyable , as he that Lends Cloaths to be worn , must not demand the deterioration by that ordinar wearing without fault , or ●he who Lends a Horse to a Battel must not require Reparation if he be wounded or killed in the Battel , unlesse he have a special obligement , to have him Restored without hurt , so in this case , the Parties having foreseen the ordinary case of the Cannons , being hurt in defending the Town , by much shooting , or by the shot of the Enemies , hath provided that even the damnage in that use should be repaired , which can never be extended to an accidental loss of the Cannon , not in defence of the Town , but after the Enemy had over-run the Nation , and taken Dundee , and Arbr●th was Dismantled , the Cannons were taken out of the Sand. To the third , casus fortuitus is not that which cannot be foreseen to be possible , but that which cannot be foreseen to have a sufficient , at least a very probable Cause , otherwise there should be no casus fortuitus , but this case which happened had been most ominous , for any Scots-man to have supposed , as most probable , that before breaking of the Army , or the English coming over Forth , the Kingdom should have been lost . To the fourth , the Defenders were no wayes in culpa , or mora , but did more then they were obliged , for they were obliged to Restore but upon demand , and before demand they endeavoured to have Restored , and then they buried the Cannon within the Sea Mark in the night , and though there was a Proclamation to give up all Armes under the pain of Death , they did not discover their Cannon , albeit upon their discovery otherwise , one of their Magistrats run the hazard of his Life ▪ and as for the Proclamation alleadged , it meets not this case , their Cannon not having been taken off Ships , and if it was publick the Pursuer behoved equally to know it , and should have made his address for his own Cannon , neither would the Defenders have refused their concourse , if it had been useful , or desired . The Pursuer opponed his former Answers , and added , that the Law cited spoke expresly of commoda●um estimatum , to Transfer the peril on the borrower ; and there is no Law adduced to restrict it , not to take place in that which is estimat , only in the case of Deterioration , & ubi lex non distinguit nec nos : and as to the meaning of the Clause , in dutiis interpretatio facienda est contra proferentem qui potuit legem sibi opertius dixisse . So this Bond being the Defenders words , blame himself if he made not that clear . The Defender answered , that albeit that be one Rule of Interpretation , yet there are others stronger making for him , viz. In dubiis respondendum pro reo , in dubiis pars mitior & aequior sequenda : Now it cannot be thought , that Parties would have been so unreasonable , as to have demanded Restitution , if the Kingdom were lost , and the Cannon taken after all Diligence done to keep them : but this is the most special Rule , In dubiis respondendum secundum naturam actus ant contractus .

The Lords found that by the Nature and Tenor of this Contract ; the Defenders were not lyable for this Accident that happened , and that they were not in mora , nor culpa ; but had done all Diligence , and therefore found the Cannon lost to the Pursuer and Lender , and Suspended the Letters simpliciter .

Thereafter upon pronuncing of the Interlocutor . The Pursuer offered to prove by the Writter and Witnesses insert in the Bond , that it was expresly Treated and Agreed , and that the meaning of the Clause was , that the Defender should be lyable to all hazard , and desired the Witnesses at least to be Examined ex officio . The Defender alleadged that the Pursuer having gotten a Term already to Examine Witnesses , ex officio ; and the Parties being Examined , he could not now demand a new Term , neither could a clear Clause in a Bond be altered by Witnesses . The Pursuer answered , that the Clause was at best but dubious ; and so the meaning was not to prove against the Writ , but to clear the same , which is ordinar.

The Lords would not give any further Term for leading Witnesses , but found that alleadgance only probable by the Oath of the Party .

Patrick Andrew contra Robert Carse . November 25. 1668.

PAtrick Andrew having sold twelve piece of Wine to Margaret Henderson , who keeped a Tavern after she was Proclaimed to be Married to Robert Carse Flesher , a part of which Wines was vented before the Marriage , and a part thereof vented after the Marriage , but the Marriage Dissolving within three or four Moneths by the Wifes Death ; the most part of the Wine remained unsold at her Death ; the Merchand pursued the Wife for the Price , and the Husband for his Interest , some dayes before she dyed ; after her Death , her Husband vented no more of the Wine , but caused the Magistrates Inventar the same , and delivered the Keys to them . Patrick Andrew who sold the Wine , doth now pursue Robert Carse the Husband for the price of the Wines , who alleadged Absolvitor , because there was no ground in Law to make him lyable for his umquhil Wife her Contract and Obligement ex Emp●o , he being only lyable jure mariti ; which being Dissolved by her Death , he is free , for he is neither Heir nor Executor to her . The Pursuer answered , that the Husband having allowed the Wife to continue the Venting of the Wine , she was thereby preposita negoliis mariti , and thereby her medling must be the Husbands medling , who must be lyable for the whole price , especially seing he never made offer of the remaining Wine to the Pursuer , though he knew his Interest , and had pursued him for the price ; so that the Wines having perished , it must be attribute to his fault ; and the Merchant who knew not the condition thereof , cannot lose the same . 2dly , The Pursuer offered to prove that the Defender put in his own Nephew to be Taverner , after he Married the Woman . 3dly , The ground in Law that the Pursuer insists on against the Husband is , in quantum lucratus est , by his Intromission with the Wine , and price thereof , and any thing that has been lost through his fault , is alike as he had been Profiter in the whole . The Defender answered , that he declyned not to be lyable , in so far as he was Profited , viz. for the price of the Wine Vented during the Marriage , which he was content to refer to the Pursuers Probation , how much was Vented then , but he could not be lyable for what was Vented before the Marriage , though after the Proclamation , much less for what remained unsold after the Wifes Death ; neither was he in any fault by not offering the Wine to the Pursuer , nor might he lawfully do the same , because the Marriage Dissolving within year and day , the propertie of the whole Wines returned to the Wifes Executors , and nearest of Kin ; and the Husband had no interest therein , as he would have had if the Marriage had continued year and day ; neither had the Merchant any right to the Wines , ( the property whereof was in the Wife and her Executors ) but had only a personal Obligation for the price ; and therefore he could not deliver the Wine , nor medle therewith , without vitious Intromission , so that he did the most exact Diligence by Inventaring , and Delivering the Keys to the Magistrates ; so that there being ten piece of Wine then in the Celler , the Defender could only be lyable for so much of two Piece as the Pursuer should prove sold during the Marriage . The Pursuer answered , that the Defender having once intrometted and medled with this parcel of Wine , he is in so far lucratus , and he can no more sever some Punsheons unspent from the rest , nor one part of a Punsheon Vented from the remainder : so that he can offer nothing back of the parcel , re non int●gra , nor can he alleadge that the whole ten Piece was of the Pursuers Wine , because the Pursuer offered to prove , that this Deceast Wife bought other Wine from other persons at that time ; and it were against Law and Reason , to put the Merchand ( who is a stranger ) to prove what was Vented during the Marriage , and how much of the Pursuers Wine remained after the Marriage , for that was the Defenders part to enquire , and not the Pursuers part who is a stranger .

The Lords found the Defender not lyable for that part of the Wine Vented before the Marriage , nor yet for what remained unspent after the Wifes death , seing he Inventared , and abstained : but they found the Husband obliged to prove both wat was spent before the Marriage , and what of this Wine remained after the Marriage : If the Pursuer proved there was other Wines in the Celler , and so found the Defender lyable fo● the whole , except in so far as he proved was sold before the Marriage , and remained after the Wifes Death .

The Daughters of Mr. James Mortoun Supplicant . November 26. 1668.

THe Daughters and Heirs of Mr. Iames Mortoun , gave in a Supplication to the Lords , making mention that the Father being Infeft in an Annualrent , effeirand to the principal sum , due to him by the Lord Balcombie , they did thereafter obtain Decreet for the principal sum , and thereupon Appryzed the Property , wherein they stand Infeft , holden of the King : in which Appryzing there is a Reservation exprest , but prejudice of the Infeftment of Annualrent , and now being desirous to be Infeft in the Annualrent , as Heirs to their Father , and that themselves were Superiours by the Infeftment on the Appryzing , and conceived it not proper for them to Infeft themselves , did therefore desire the Lords to grant Warrand to direct Precepts forth of the Chancellary , for the King to Infeft them .

The Lords having considered the case , and argued the matter amongst themselves , whether it were more secure and legal , that they should be Infeft by the King upon their Supplication ; or that they as having Right to the Property by their Infeftment on the Appryzing , should grant Precepts for Infefting themselves in the Annualrent , as Heirs to the Annualrenter : or whether their Infeftment in the Superiority would consolidat the Annualrent without Infeftment : The difficulty against the Kings Infefting of them was , that the King Infefts none but these that holds immediatly of Him , or upon the disobedience of the immediat Superiour , supplendo vices .

To which it was answered , that the King may supply the place of the immediat Superiour , either when he will not , or cannot Infeft his Vassal , and the Petitioners conceive that in this case they cannot : and both being extraordinary Remeeds , the Lords may do the same , and have done it in former Cases . The difficulty as to Infefting themselves was , that the Right of Property , and jus nobilius , did extinguish the Right of Annualrent ; and yet the Right of Property may be Reduced , and then they would be necessitat to Defend themselves by the Annualrent ; and therefore it is not an absolute Extinction , but in tali casu ; and therefore they have reserved the same in the Appryzing . The difficulty as to the third way was , that if the Right of Superiority should be Reduced , they should be without Infeftment at all .

The Lords found that they might either Infeft themselves by their own Precept , or might get Precepts from the King , as was desired , periculo petentium , or they might make use of both together .

Mr. Alexander Seaton contra George Seaton of Menzies . December 2. 1668.

MR. Alexander Seaton , Heir and Executor to Iames Seaton his Brother , pursues George Seaton as Heir to his Father Iames Seaton , for making his Fathers Tutor Accompts , as being Tutor to the Pursuers Brother , and for instructing that he was Tutor , produced several Writs Subscribed by him , as Tutor Testamentar . The Defender alleadged : First , That the condescendence was not relevant to Instruct the Defenders Father Tutor , unless the Testament whereby he was nominat were produced ; otherwayes his acknowledgement can only make him but Pro-tutor , and so not lyable for all omissions , and no sooner lyable , then after the date of these Writs . 2dly , Albeit the Defenders Father had been Tutor , yet by the Writs produced , it is evident that he was but one of more Tutors ; and therefore no Process against him , till they be all called . The Pursuer answered , that the acknowledgement to have been Tutor was sufficient against him , who Subscribed the same : and that there was no necessity to call all the rest , seing the whole Tutors were lyable in solidum , and as ordinarly parties bound conjunctly and severally , may be conveened conjunctly or severally , so may Tutors , who as others may except upon the performance of other Tutors as well as their own ; neither is the case of Tutors alike with Cautioners , who are not lyable in solidum ; for Tutors as they are lyable conjunctly and severally for the whole Office , so are they conveenable conjunctly and severally for the same .

The Lords Repelled the first alleadgance , and found the Writs produced instructed the Defenders Father Tutor , and not only Pro-tutor ; for if the Testament had been produced , shewing other Tutors , so that the Acknowledger could not have been tutor testamentar , it would have made him but Pro-Tutor , but that not being , it instructed him Tutor . As to the other point , in respect the Tutor was dead , and his Heir only but conveened , who could not know the Administration , the Lords would not sustain Process , till they were also called .

Agnes Goodlat contra George Nairn . December 8. 1668.

AGnes Goodlat as representing the umquhil Wife of George Nairn , pursues for the third of the Moveables belonging to him the time of his Wifes Decease . It was alleadged for the Husband , that before Division , the Heirship moveable behoved to be drawn . It was answered , that there could be no Heirship of a man that was living , It was answered , that albeit there was no actual Heirship , yet the best of every kind was Heirship Moveable , wherein the Wife had no Interest .

Which the Lords sustained ; and Ordained the Heirship to be first drawn .

Earl of Argile contra George Stirling . December 9. 1668.

THe Earl of Argile having pursued George Stirling to Remove , he alleadged Absolvitor , because he stood Infeft on an Appryzing . It was Replyed , that the Appryzing and Infeftment could not defend him , because the Person from whom he Appryzed , being a Vassal of the Earl of Argiles , and his Right not being Confirmed by the King , the same could not exclude the Pursuer , the Kings Donator , and the Appryzer could be in no better case then his Author . The Defender Duplyed , that he was in better case , because he being Infeft by the King before the Pursuers Gift , when the King had both Superiority and Property , it is equivalent to him , as if the King had Confirmed his Authors Right . It was answered , that Infeftments upon Appryzings that pass in Course , and are not noticed in Exchequer , cannot prejudge the King , and take away the benefit of the Gift , which must pass by a several Signature .

Which the Lords found Relevant , and Repelled the Defense and Duply , and Decerned .

Scot contra Aitoun . December 11. 1668.

MR. Iames Aitoun having Disponed the Lands of Grainge , with the burden of 12000. Merks , to be payed to his Daughters . Iohn Scot having Married one of the Daughters , in their Contract of Marriage , the Daughter Anna Aitoun Assigns her part of the 12000. Merks to her future Spouse , and in the same Contract he acknowledgeth the Receipt of the Money from Mr. Robert Aitoun the Debitor ; and therefore , with consent of the said Anna , Discharges the said Mr. Robert by a Contract of the same Date , betwixt Iohn Scot and Mr. Robert , relating the Contract of Marriage , but acknowledges there was no Sums payed for the Discharge contained in the said Contract , but that the Security contained in this Contract was granted therefore ; and therefore he gives a new Heretable Security to Iohn Scot , the Marriage Dissolves within year and day , by the Death of the said Anna , without Children ; she in her Testament names the said Iohn Scot her Husband , her Executor and universal Legator . George Scot as Representing his Father , pursues Aitoun of Inchderne , as Representing his Father , for the Sum contained in the Contract , who alleadged Absolvitor , because the Pursuers , and his Fathers Right flowing from the Marriage , and it Dissolving within year and day , his Right ceaseth , and farther alleadged that all things were now in the same condition as before the Marriage , so that the Contract of Marriage was void , and the Discharge granted in the first Security was void ; and the first Security being Heretable , belongs to Anna's Executors , from whom the Defender has Right by Assignation . The Pursuer answered , that the Defense is no wayes Relevant ; because though the Marriage Dissolved within year and day , and that thereby the Tocher and Jointure became void ; yet what was Acted in Relation to Mr. Robert Aitoun , who was a third Party , viz. the Discharge and Renunciation of the first Security stands valid as to him : for if the Lands burdened had been sold to any other , that burden being once Discharged and Renunced , could never affect them , so that whatever is in a Contract Matrimonial , Extrinsick and relating to third Parties is valid , and the acknowledgment of the Money contained in the Contract , is at least acceptilatio , which extinguisheth the first Security in the same way , as if real payment had been made : in place of which payment standeth the new Security granted to the Husband , so that now there is neither Debitum nor Creditum betwixt Anna Aitoun and umquhil Mr. Robert Aitoun , or their Representatives : but by the Dissolution of the Marriage , the Husband and his Heirs becomes lyable to pay the Tocher , but not to the Wifes Heirs , but to her Executors , for the Tocher being payed or satisfied , and the old Security taken away , the Husbands obligement to pay , is clearly moveable , and so belongs to the Pursuer as Executor , and universal Legator to his Wife , and not to the Wifes Heirs , or the Defender who has Right from them . The Defender answered , that the Tocher never having been uplifted , but remaining in the same Debitors hands as before the Marriage , omnia redeunt in pristinum statum , and the Discharge granted to the Debitor in Contemplation of the Marriage , is also void ; so that if the Husband had Died and the Wife Survived , if she had pursued Mr. Robert Aitoun upon the first Security , and if he had Defended upon the Discharge contained in the Contract of Marriage , he would have been Excluded by this Reply , that that Discharge being granted in Contemplation of the Marriage , is now void by the Dissolution thereof within year and day ; especially seing the Debt yet remains in the Debitors hand . 2dly . The Defender alleadged that the Discharge , though it were valide , was not habilis modus , to extinguish the first Security , being a real Right . 3dly , That the new Security granted to the Husband being Heretable , and the Husbands therein ceasing , it accresceth to the Wife , as if it had been granted to her , and so can only belong to the Defender , as having Right from her Heirs , and not to the Pursuer , as being her Executor . The Pursuer answered that the first Security was totally extinct by Acceptilation , and by the Discharge thereof granted to the Debitor in the Contract of Marriage ; and though the Wife had Survived and pursued the Debitor , and he had excepted upon the Discharge , her Reply upon the Dissolution of the Marriage would not have been Sustained to annul the Discharge ; because whatever might have been done , if the Debitor could pretend no Damnage or Interest ▪ Yet where the Debitor had granted a new Security to the Husband , which could never be taken away without the Discharge , and Renunciation of the Husbands Heirs , the Debitor could never be Decerned to pay the Wife , so long as the Security to the Husband stood : which Security could never accresce to the Wife , at least could never so accresce , as to make it an Heretable Security to the Wife , but she could only have Right of Repetition against the Husband : And the question being here concerning the changing of the condition of a Sum from Heretable to Moveable , as a Requisition or Charge during the Marriage would have made the Sum Moveable , multo magis , an Innovation and Acceptilation by a Discharge and new Security : And whereas it was alleadged that the Discharge was not habilis modus . It was answered that this Sum not being secured by an Infeftment of Annualrent or Wodset , but only by a Provision , burdening another Infeftment of Property with the Sum , there needed no Resignation but the Discharge and Renunciation is sufficient .

The Lords found the first Security to be wholly taken away by the Discharge contained in the Contract of Marriage , which they found valid as being granted to a third Party , notwithstanding of the Dissolution of the Marriage ; and therefore found it to belong to the Husband , as having Right to the new Security , and as Executor to his Wife , and not to the Defender as having Right from the Heirs .

Mary Winrham contra Mr. Iames Eleis . December 15. 1668.

JAmes Murray of Deuchar having Married his Daughter to Iames Eleis of Stenopmil● , leaves to the seven Sons of the Marriage beside the Heir , 7000. Merks , and the Portion of the Deceasing to accresce to the Surviving ; which Sum was uplifted by Iames Eleis who in his Testament nominats his eldest Son and Heir , his Executor and universal Legator , and ordains him to pay all his Debts out of the first end of his Moveables , and then leaves 9000. Merks to Patrick his second Son , in satisfaction of all that he might succeed to by the Decease of the Testator his Father : Margaret Winrham , Relict and Executrix Creditrix to her Husband , obtained a Decreet before the Commissars , against Mr. Iames Eleis , who Suspends on this Reason , that Patricks Legacy of 9000. Merks , being in full satisfaction of all he could demand by his Fathers Death , must be understood in Satisfaction of the said Legacy , left by Iames Murray , which being lifted by Iames Eleis the Testator , and so becomes his Debt , debitor non praesumitur donare . 2dly , The Commissars Decreet is most unjust , in Decerning Annualrent where there was none due by Paction , the Sum being but a Legacy which never bears Annualrent . The Charger answered to the first , that the Brokard debitor non praesumitur donare , holds not in many cases , especially in Provisions of Children by their Fathers , who are obliged jure naturae & ex pletate pate●na , to provide them . And in this Testament , the Executor is appointed to pay all the Debts without any exception of this or any other , and the Testator had a plentiful Estate , it can no ways be thought that both the Legacy and this Sum in question , was too great a Portion to his second Son ; as for the Annualrent , the Father being Tutor , and lawful Administrator to his Son , ought to have imployed it profitably , and no doubt did , being a most provident man . It was answered , that the Son never having insisted for this Sum , nor having ever demanded Annualrent during his Fathers Life . It is an evidence he acquiesced to his Fathers Provision , and cannot seek Annualrent against his Fathers Executors , his Father having Alimented him , neither is he lyable for that rigor that other Tutors are .

The Lords Repelled the Reasons as to the principal Sum , and found that the Fathers Legacy was not in satisfaction of the Grand-Fathers Legacy ; but found no Annualrent due , but Suspended the Letters simpliciter as to Annualrent .

Sir Alexander Frazer contra Alexander Keith . December 16. 1668.

SIr Alexander Frazer Doctor of medecine having purchased the Lands of M●ekelty from Andrew Frazer , who had Appryzed the same from Alexander Keith , pursues a Declarator of the expiring of the Appryzing , and of his Right of the Lands thereby . It was alleadged for Alexander Keith , that he had Depending Actions of Reduction against the Grounds of the Appryzing , and thereupon alleadged , that the saids Sums were satisfied before the Appryzing , at least by the Pursuer or his Authors Intromissions with the Rents of the Appryzed Lands within ten years after the Deducing thereof : During which time the Legal was unexpired by the late Act betwixt Debitor and Creditor , whereby the Legal of Appryzings , led since 1652. are prorogat for three years . And as to the first point , he alleadged that the ground of the Appryzing being a minut of Alienation betwixt the said Alexander Keith and Andrew Frazer , whereby Andrew Dispones the Lands of Miekeltie and Stranduff to the Defender , the Tenor of which minute is , that the said Andrew obliges himself to Infeft and Secure the said Alexander in the said Lands , and to purge all Incumberances thereupon ; and that the price shall not be payable till the said Alexander be put in Possession . There is also a Commission therein granted to the Defender , to purchase two expired Appryzings , and to satisfie any other Incumberances , and to Serve the said Andrew Heir to Thomas Frazer his Father , and to obtain the said Andrew Infeft as Heir to his Father , and likewise the Defender himself in the Lands ; so that the Right the Disponer had , being only a back Bond granted by Frazer to Staniwood , thereafter Lord Frazer , by which he obliged himself , to Denude himself of the Lands of Mickeltie , in favours of the said Andrew Disponer : Which back Bond was Appryzed by the two expired Appryzings , but could not reach the Lands of Stranduff , because Staniwood was not Infeft therein , nor did the back Bond bear the same , and therefore the Defender was necessitat to purchase the Right of a third Appryzing , led at the Instance of Craigivar against Andrew Frazer the Disponer , as lawfully Charged to Enter Heir to Thomas Frazer his Father , who died last Infeft in the Lands of Stranduff , and which would have excluded any Right that the Defender had from Andrew Frazer , especially seing the Sum on which Craigivars Appryzing proceeded , was a Debt due by the said Thomas Frazer to William Frazer , which William Frazer raised a Pursuit thereupon , against the said Andrew Frazer , as Representing Thomas his Father , and raised Inhibition upon a Dependence ; which Inhibition is Execute and Registrate against Andrew Frazer , before he Disponed the Lands : after which Dependence , the matter being referred to Arbiters , they Decerned Andrew Frazer to pay to the said William Frazer two thousand merks out of the first and readiest of the price of Miekeltie , due by the Defender Alexander Keith , or out of any other Goods or Sums belonging to the said Andrew : so that the Decreet Arbitral upon the Submission being in the same Terms , was equivalent to an Assignation or a Precept ; and the Defender Alexander Keith satisfying that Sum , it is in effect payment of so much of the price , and Craigivars Appryzing proceeding on that same Sum , it was most necessar for the Defender to Acquire that Appryzing , as proceeding upon a Right , whereupon Inhibition was used before the Minute , and upon a Decreet Arbitral , in effect Assigning William Frazer to so much of the Sum , due by Alexander Keith . The Pursuer answered , that the Defenders alleadgence ought to be Repelled ; because the Acquiring of Craigivars Appryzing was altogether needless , and no way warranted by the Minute , and so cannot exhaust the price , because that Appryzing was led 10. years after the Minute , and the Defender having accepted a Commission to do all things necessar for Establishing of his own Right , he ought to have Served the Disponer Heir to his Father , and to have Infeft him in Stranduff ▪ and to have Infeft himself upon the Disponers Resignation : Or if he had found that the Lands were Disponed to Frazer of Staniwood upon Trust , he ought to have procured the same , to have been Established in his Person , as coming in the place of Andrew Frazer , to whose behove the Trust was , which would for ever have Excluded Craigivars Appryzing , being long posterior to the Defenders Commission contained in the Minute ; so that it was his own fault , that he suffered another to Appryze : neither could the Inhibition have prejudged him , though prior to the Minut , in respect it was upon a Dependence , upon which , no Decreet in favours of the Inhibiter , could ever follow , the Cause being Extinct by Transaction and Decreet Arbitral ; neither is there any Process Extant , neither is the Decreet Arbitral equivalent to an Assignation and Precept , because it doth not Decern Andrew Frazer to Assign the Sum due by the Defender , nor doth it declare that that Sum shall belong to him , but only Decerns Andrew Frazer to pay out of Keiths Sum , or any other ; so that thereupon no Action could have been effectual against Keith , to pay the Sum , but only against Frazer himself . The Defender answered , that albeit no Sentence of a Judge proceeded upon the Dependence , the Sentence of the Arbiters being in eadem causa , was equivalent : and whereas it is alleadged , that the Defender had a Commission to perfect his own Security by the price left in his hand . It was answered , that the Commission being for his own behove , and for his own Security , he might make use of it , or not make use of it as he pleased : especially seing the Disponer was obliged to perfect the Defenders Security . 2dly , In the Minute there was no Procuratory of Resignation , neither were the old Evidents Delivered to the Defender ; so that he could neither obtain Frazer to be Infeft , much less himself upon Frazers Resignation , wanting a Procuratory . The Pursuer answered , that the Commission being a Mandat accepted by the Defender , did ex natura mandati , bind the Accepter to do Diligence ; neither is it to his own behove , but was also to the Disponers behove , that his obligements might be fulfilled , and his price not stopped : and although the Minute want a Procuratory of Resignation , that is no way Relevant : for if the Defender had required a Procuratory of Resignation from the Disponer , or had required the Writs to instruct the Service , being in the Disponers hand , and had been refused of either , he had been in no fault : but without any Diligence , to suffer another Appryzing to be led ten years after his Commission , and now having taken Right to the Appryzing himself , he cannot therewith Exhaust the price , especially against this singular Successor , having acquired bona fide , after a Decreet of Suspension in foro contradictorio , when the Defender had Right to the said third Appryzing , and alleadged nothing thereupon . The Defender answered , that he cannot be Excluded from his Defense by the Decreet of Suspension , as being competent and omitted the time of that Decreet , because ( Competent ) is only Relevant against Decreets in ordinary Actions : but neither in Reason nor Custom is the same Relevant against Decreets of Suspension , there being this evident difference , that in Decreets of Suspension the Reasons must be instantly verified : but in ordinary Actions , there are Terms assigned for proving Defenses , and so it hath ever been practised by the Lords . The Pursuer answered , albeit it was anciently the Custom to admit Competent , and omitted only against Decreets upon ordinary Actions : Yet by an Act of Sederunt in Anno 1648. or 1649. the same was extended to Decreets of Suspension ; and albeit through neglect of the Clerks , the Act hath not been Booked : The Session being interrupted by the War shortly thereafter ensuing , yet it is notorly known , and was in practice Anno 1653. when the Decreet was obtained against this Defender , whereupon the Appryzing proceeds , and that practice was both just and necessar ; for if Decreets might be Suspended as oft as the Suspender can produce another Writ , the most solemn Sentences should be made Insignificant ; for the ground of Excluding things Competent , and omitted , is not only that publick Sentences upon compearance , are as valid as Transactions , which upon no pretence can be Rescinded , that Pleas be not perpetual : but also because they are omitted , dolo & animo protrahendi litem , which is ever presumed , unless another Cause be assigned , wherefore they were omitted as , noviter veniens ad notitiam , which is Sustained , even as to Decreets in ordinar Actions : and if in no case competent and omitted be allowed in Suspensions , we shall have no more Decreets in ordinar Actions ; but the Defenders will still be absent , and will Suspend as oft as they can find different Grounds , as if of one Sum , one have twenty or thirty several Receipts , he will raise as many subsequent Suspensions , which will at least serve for as many Sessions ; and though it should be alleadged quod dolo omisit , it would not be Relevant : so that if the Suspender can purge his Fraud ▪ either as not knowing of the Writ , whereon he hath again Suspended , or as not then having it presently in his power to instruct it , would be sufficient , which clears the difference betwixt Decreets of Suspension , and other Decreets , to operat no further than that in Suspensions , the Fraud is purged , by showing that the Writ was not ad manum , which is not so in ordinar Actions , where Terms would have been assigned to get the Writ : and albeit the Lords might by modifying great Expences bar the multitudes of Suspensions , they could hardly do it justly , if of the Law it were no fault ; and it is known , the Lords are neither in use of , nor have time for such modifications .

The Lords superceeded to give answer as to this Point , till the Compt proceeded as to the Particulars , but the Lords had no respect to the alleadgance upon the Inhibition , seing no Decreet followed , nor upon the Decreet Arbitral , which they found not Equivalent to an Assignation or Precept : but the Lords found the Commission contained in the minute , not to oblige the Defender , as to any Diligence ; and therefore found , that as to that Point , he might acquire the third Appryzing , which would have excluded him , albeit he might have prevented it by Diligence .

Mr. Robert Swintoun contra Iohn Brown . December 18. 1668.

MArgaret Adinstoun being Infeft in Liferent , in certain Roods of Land near Hadingtoun , she and her second Husband grants a Tack to Iohn Brown thereof , for certain years , and thereafter till he were payed of 400. merks , owing to him by the Husband , after that Husbands Death , she being Married to a third Husband , there is a Decreet of Removing purchast at her and that Husbands Instance , against Iohn Brown , but the Husband did not proceed to obtain Possession by vertue thereof , but brevi manu Ejected Brown ; whereupon Brown obtained a Decreet of Re-possession : now the said Margaret Adinstoun having assigned the Decreet of Removing to Mr. Robert Swintown , he Charges Iohn Brown to Remove , who Suspends on this Reason , that he having obtained Decreet of Re-possession , after the Decreet of Removing , upon the Husbands violence , cannot now be Removed , without a new Warning . The Charger answered , that the Decreet of Re-possession , bearing to be ay and while this Suspender was legally Removed , and that in respect he had been put out Summarly ▪ and not by the preceeding Decreet of Removing ; which having now taken effect , he being in Possession , the Charger may very well Insist , that he may now legally Remove , by vertue of the Decreet of Removing .

The Lords Repelled this Reason , in respect of the answer , and found no need of a new Warning .

The Suspender further alleadged that he cannot Remove , because he bruiks by vertue of a Tack granted by Margaret Adinstoun and her second Husband . The Charger answered : First , That the Tack being only for four years specially , and an obligement not to Remove the Tennent while the four hundred Merks were payed , which is not a Tack , but a personal obligement , which cannot defend the Suspender against Mr. Robert Swintoun , the singular Successor . 2dly , The Tack is null , being Subscribed but by one Nottar . The Suspender answered , that a Right of Liferent not being Transmissible by Infeftment , but only by Assignation , the Assigney is in no better case nor the Cedent , except as to the Probation by the Cedents Oath . 3dly , The Tack is Ratified judicially by the Wife , in the Court of Northberwick , which is more nor the concourse of any Nottar . 4ly , If need beis , it 's offered to be proven by the Wifes Oath , that the Subscription was truly done by the Nottar , at her command . The Charger answered , that the judicial Ratification cannot supply the other Nottar ; because the same Nottar , who is Nottar in the Tack , as also Nottar in the judicial Ratification , which is but done in a Baron Court : So it is but assertio ejusdem notarij , no stronger nor it was , neither can it be supplyed by Margaret Ad●●stouns Oath , de veritate facti ; because her Oath cannot be received in prejudice of her Assigney : and though her self were Charger , the Law requiring two Not●ars , till both Subscribe , the Writ is an unsubscribed Writ ; and in all matters of this nature , parties may resile before Subscription .

The Lords found the Tack valid against the Wife , Subscriber thereof , and her assigney , ay and while the sum thereof were payed : but found the Tack was null , as being but by one Nottar , notwithstanding of the judicial Ratification being by the same Nottar ; and found that the Cedents Oath could not be taken in prejudice of the Assigney , to astruct the verity of the Subscription , unless the Assignation had been gratuitous , or the matter had been litigious before the same : In which case they found that there was no place to Resile after the Subscription of the first Nottar , the verity and warrand of the Subscription being proven by the said Margarets Oath .

The Suspender further alleadged , that he could not Remove , because the Liferenter being year and day at the Horn , he had a Gift of her Liferent Escheat , and thereby had right to possess her Liferent-Land . The Charger answered non relevat , because the Gift was not declared : 2dly , It could not be declared , because it proceeded upon a Horning , against a Wife cled with a Husband , who being sub potestate viri , cannot be Contumacious , or Denunced Rebel thereupon . The Suspender answered , that he needed no Declarator himself , being in possession of the only Right , to which the Declarator could reach . 3dly , The Horning , albeit against a Wife , was valid unless it had been upon a Debt contracted during the Marriage ; but this Horning proceeding upon a Decreet against a Wife as Executrix and vitious Intromissatrix with her Husbands Goods , a Horning upon her own Fact or Fault was alwayes effectual .

The Lords would not sustain the Gift without a Declarator , and superceeded any Extract at the Chargers Instance , till a day , betwixt and which he might insist in his Declarator , and superceeded till that time to give answer , in relation to the Horning , because the Kings Officers behoved to be called .

Mr. Alexander Seaton contra Menzies . December 19. 1668.

MR. Alexander Seaton as Executor to his Brother . Pitmedden pursues Seaton of Menzies as Representing his Father , who was one of the Pursuers Brothers Tutors , for his Fathers Intromission with the Pupils Means , who alleadged Absolvitor , because the Pupil after his Pupillarity , had granted a Discharge to one of the Co-tutors , which did extinguish the whole Debt of that Co-tutor , and consequently of all the rest , they being all correi delendi ▪ ●yable by one individual Obligation , which cannot be Discharged as to one , and stand as to all the rest ; for albeit pactum de non petendo , may be granted to one , and not be profitable to the rest , a simple Discharge , which dissolveth the Obligation of the Bond , must be profitable to all .

The Lords Repelled this Defense , unless the Discharge had born payment , or satisfaction given , and in tantum , they found it would be Relevant , but not a simple Discharge , which could only be Relevant in so far as they by this Tutor would be excluded from the Co-tutors bearing a share with this Tutor , in omissis & male administratis ; there being nothing here but this Tutors own proper Intromission , now insisted for .

The Lords Repelled the Defense simply .

Margaret Mckenzie contra Robertsons . December 23. 1668.

MArgaret Mckenzie pursues the Executors of her Husband , to pay her share of the Moveables , who alleaged Absolvitor , because there was as much Debt as would exhaust the whole Moveables . It was answered , non relevat , unless it were alleadged that the Executors had payed the Debt ; for the Debts being yet due , it is j●s tertij , for them to alleadge thereupon : neither can this Pursuer propone alleadgances of payment , Compensation , or any other , or the Defenders Reply upon the Debts belonging to third Parties , unless they were pursuing themselves ; but the Pursuer is content to find Caution to repeat her share , in case they were Distrest .

The Lords Repelled the Defense , but prejudice to the Executor , to Suspend upon double Poinding , calling the Creditors .

It was further alleadged for the Defenders , that they must have allowance of Sums , bearing Annualrent since 1641. It was answered , that no such Sums can burden the Relict , her part , because by the Act of Parliament , the Relict has no share of such Sums , if they were due to the Defunct ; and therefore a pari , she cannot be burdened with such Sums , being due by the Defunct . The Defenders answered , that the Act of Parliament excludes Relicts from such Sums as bear Annualrent , being due to their Husbands , but doth not bear , that they shall be free of such Sums due by their Husbands : and Statutes being stricti juris , the Lords cannot extend them beyond their Sense to like cases . The Pursuer answered , that the Lords always did , and might Explain , and Extend Acts of Parliament to Cases implyed , and consequent , albeit not verbatim exprest : and as to this Act of Parliament , it bears expresly , that all such Bonds shall remain in their condition as they were before the Act of Parliament 1641. quoad fiscum & relictam ; before which , the Bonds bearing Annualrent , could not have burdened the Relict : for the word such Bonds , may not only be extended to Bonds due to Defuncts , but to Bonds due by Defuncts .

The Lords Repelled also this Defense , and found the Relicts part not to be burdened with any Bonds due by her Husband , bearing Annualrent , unless they had become Moveable by a Charge , or that the Term of payment of the Annualrent was not come at the Defuncts death .

Smith contra Muire . Eodem die .

JEan Smith having pursued Margaret Muire as vitious Intromissatrix with the Goods of George Smith her Husband , to pay the sum of 110. pounds due by Bond , by the said George to this Pursuer ; his Sister obtained Decreet thereupon , and Appryzed the Liferent of the said Margaret Muire , who Suspended , and raised Reduction on this Ground , that she could not be lyable as vitious Intromissatrix , because she possest her Husbands Moveables by a Title , in so far as by her Contract of Marriage she was provided to all the Goods and Gear acquired during the Marriage , for her Liferent use , and so she could only be lyable for making forthcoming the true value after her Death . The Charger answered : First , That there could be no Liferent of Moveables , quae usu consumuntur , and all Liferents of usus fructus must be salvâ rei substantiâ . 2dly , Though a Liferent could consist in Moveables ; yet the meaning of such a Clause , of all Moveables acquired during the Marriage , must be understood the free Moveables , deducing Moveable Debt ; and cannot be understood to exclude lawful Creditors .

The Lords found the Clause to be understood only of free Gear , and not to exclude the Pursuers Debt ; but found it a sufficient ground to free the Suspender from vitious Intromission , and to Retrench the Decreet to the true value .

Sir Iohn Weems contra Forbes of Toch●n . Ianuary 2. 1669.

SIr Iohn Weems having Charged Tochon for Maintainance , due in Anno 1648. or 1650. conform to Act of Parliament , and Commission granted to him , and Decreet of the Lords . Tochon Suspends on this Reason , that singular Successors are free by the Act , and he is a singular Successor by Appryzing . It was answered , that the exception of the Act was only in favours of singular Successors , who had bought the Lands , which cannot be extended to Appryzers , who oftimes have the Lands for far less then the true price ▪

The Lords found the Act not to extend to Appryzers , unless the sums were a competent price for the Land Appryzed ; and therefore found the Letters orderly proceeded .

Isobel and Margaret Simes contra Marrion Brown . Ianuary 5. 1669.

BY Contract of Marriage betwixt umquhil Thomas Sim and Marion Brown , Iohn Flowan Marions Master , is obliged to pay 300. Merks of Tocher , and Thomas Sim is obliged to imploy the said 300. Merks , and 200. Merks further for the said Marion , her Liferent use : the said Thomas having two Daughters , Isobel and Margaret Sims , he lends a sum of 400. Merks to Thomas Brown , and takes the Bond on these Terms , to be payed to him and the said Marion Brown , the longest liver of them two in Liferent , and after their Decease , to Margaret and Isobel Sims : The said Isobel and Margaret having pursued the said Marion before the Commissars , for Delivery of this Bond , as belonging to them after their Fathers Death . The Commissars Assoilzied the said Marion from Delivery of the Bond , and found it did belong to the said Marion her self , not only as to the Annualrent , but as to the Stock , because her Husband having no other Means but this Bond , and not having fulfilled her Contract , she had Confirmed her self Executrix Creditrix in this sum , and behoved to Exclude her Husbands two Daughters of a former Marriage , who were provided , and Forisfamiliat before . Of this absolvitor the Daughters raised Reduction on this Reason , that this Sum could not be Confirmed , not being in bonis defuncti , the Father being but Liferenter , and the Daughters Feears , and though they were but as heirs substitute , they exclude Executors , and need no Confirmation . 2dly , The Husband being but obliged to Employ this Tocher , and 200. merks more , the Pursuer must instruct that the Tocher was payed . 3dly , The Wife intrometted with as much of her Husbands Goods as would satisfie her Provision . It was answered , that the Wife not being obliged for her Tocher ▪ but another Party who was solvendo , and neither being obliged , nor in capacity to pursue , therefore could not now after so long a time , be put to prove that the Tocher was payed ; and for her Intromission she had Confirmed and made Faith , and the Pursuers might take a dative ad omissa , if they pleased , but could not , hoc ordine , Reduce or stop her Decreet upon compearance .

The Lords found that albeit in Form the Bond should have been Reduced , as being done in fraudem of the Wife , as being a Creditor , and thereafter ▪ Confirmed ; yet now the matter being before the Lords , and the Parties poor , they found the Husbands Substitution of two provided Daughters by a former Marriage null , as to the Wifes provision by the Act of Parliament 1621. without necessity of Reduction , the matter being but a personal Right , and found the Wife not obliged to instruct the Tocher payed , and therefore assoilzied from the Reduction , but prejudice to the Pursuers to Confirm , a dative ad omissa .

William Zeoman contra Mr. Patrick Oliphant and Dam Giels Moncrief . Eodem die .

IN a Compt and Reckoning betwixt these Parties , anent the satisfaction of an Appryzing , the Auditor , in respect that Mr. Patrick Oliphant and Dam Giels , Moncrief , were Contumacious and compeared not , did Decern conform to William Zeomans Summonds , finding the Sum satisfied , and ordained them to Remove ; whereupon William Zeoman obtained Possession , and having been several years in Possession , Mr. Patrick Oliphant obtained himself and the said Dam Giels to be Reponed against the said Decreet for his Contumacy , and a Writer to the Signet past Letters of Possession in his favours , against William Zeoman , but without a Warrant from the Lords , which were found null , and this Writer Deposed , but Mr. Patrick having attained Possession by these Letters , William Zeoman insists against him as an Intruder to quite the Possession . It was alleadged for Mr. Patrick , that William having obtained Possession unwarrantably by Decreet , upon his pretended Contumacy , and he being now restored there against , he is in statu quo prius , before that Decreet , at which time he was in lawful peaceable Possession , which only should stand , and neither of the unwarrantable Possessions be regarded . It was answered that William Zeomans Possession was by vertue of a Decreet then standing , autore pretore , and so was not vitious , but Mr Patricks was without Warrant of the Lords , and so was most vitious . It was answered that Mr. Patrick was instantly content to Debate his Right , & frustra petitur quod mox est restituendum . It was answered that spoliatus ante omnia est restit●endus , and is not obliged to Dispute any Right , till first he be Restored .

Which the Lords Sustained , and ordained William Zeoman instantly to be Restored to the Possession .

My Lord Balmerino Supplicant . Ianuary 7. 1669.

MY Lord gave in a Bill to the Lords , Representing that his Uncle was Dead , and that he is nearest Heir-male to him , in whose favours his Estate is provided ; and therefore desired that Commission might be granted to certain Persons in the Countrey , to Inventar , Seal , and Secure his Charter Chist , and to make patent Doors in his Houses , Coffers , and Cabins , for that effect , and to take my Lady , his Relicts Oath , where the Evidents were , to the effect foresaid : Compearance being made for my Lady , desiring a sight of the Bill till the next day , and alleadging that it was notour to the Lords , that my Lady had a Disposition to the whole Estate ▪ whereupon Resignation had past in Exchequer , and that the Evidents ought to be left open , to the effect my Lady may instruct her Charter , conform to the Disposition .

The Lords refused to give up the Bill , it being their ordinar Course to grant such Commissions , without calling or hearing Parties , and that a short delay might prevent the effect of the Commission : and therefore granted Commission to certain Noblemen and Gentlemen , or any one of them to Inventar , Seal , and Secure the Evidents , and to open Doors , Coffers , and Cabinets for that effect ; but refused to give Warrant to take my Ladies Oath .

Captain Newman contra Tennents of Whitehil , and Mr. Iohn Prestoun . Ianuary 8. 1669.

CAptain Newman having Appryzed the Lands of Whitehil from Prestoun of Craigmiller his Debitor , and being thereupon Infeft , pursues the Tennents for Mails and Duties . Compearance is made for Mr. Iohn Prestoun , who produces a Disposition from Craigmiller his Brother , of the Baronies of Craigmiller , Prestoun and Whitehil : Which Disposition , relates this Debt of Captain Newmans , and many other Debts , and for satisfaction thereof Dispones these Lands to Mr. Iohn , Reserving the Disponers and his Ladies Liferent , containing a Reversion upon ten merks , and containing a provision , that it should be leisom to Craigmiller , during his Life , and after his Decease to Mr. Iohn to pay any of the Creditors contained in the Disposition they pleased , without contributing the price proportionally to the rest of the Creditors : and also produces a Renunciation by Craigmiller , whereby he Renunces the Reversion and the Liferents in favours of Mr. Iohn , and also his own power of preference of the Creditors , and Mr. Iohn his Infeftment upon the Disposition , whereupon he alleadged that he ought to be preferred to the Mails and Duties , because he stands publickly Infeft , by vertue of the said Disposition , before any Infeftment in the Person of the Pursuer . It was answered for the Pursuer , that the Infeftment produced cannot Exclude him , because it is expresly granted for satisfying of the Sum , whereupon his Infeftment proceeds . It was answered for Mr. Iohn Prestoun that he having a power to prefer any Creditor he pleased , he payed other Creditors to the value of the Estate , whereby Newman is excluded . It was answered for Newman , that this Disposition was fraudulent and fimulat , in prejudice of lawful Creditors , whereof he has Reduction upon the Act of Parliament 1621. as being granted by a Brother to another , with a power of preference of Creditors at the Purchasers option : which Clause is altogether null ; especially as to the preferences done , since lawful Diligence was used by this Pursuer , by Horning , Inhibition , Arrestment , and Appryzing : and as no Debitor can so prefer himself , so neither can he give such a power to any other : and therefore the Pursuer ought to be preferred to all the Creditors , conform to his Diligence . It was answered for Mr. Iohn Prestoun , that there being no Diligences done before the Disposition by any Creditor , Craigmiller might Dispone , being for an onerous Cause , as he pleased , and might prefer one Creditor to another . 2dly , Albeit this power of preference were not simply to be allowed after Diligence done by Creditors to prefer others to them : Yet it ought to be Sustained , in so far as Craigmiller might lawfully have done , viz. to prefer Mr. Iohn for the Sums due to himself , and for his relief of such Sums as he was Cautioner in . The Pursuer answered , that such a Disposition was not made , nor doth this Disposition any way relate to Mr. Iohns Sum , and his Relief , but generally and equally to all , and there is no difference but the unwarrantable power of preference , which can have no effect after Diligence done .

The Lords found the power of preference not to be Sustained as to any other Debts , then to such as were due to Mr. Iohn himself , and for which he was Cautioner before the Disposition ; and found as to these , that the power of preference was lawful and valide , and was equivalent to this Clause , with power to Mr. Iohn to satisfie himself , and those to whom he was Cautioner , primo loco .

Wallace of Galrigs contra Mckernel . Ianuary 9. 1669.

UMquhil Wallac● of Galrigs being alleadged to have given a Seasine propriis manibus , to his second Wife of two Chalders of Victual .

The Lords Sustained the Seasine without any other Adminicle . But that the Wife had quite her former Liferent by a former Husband , in favours of Galrigs , whereupon Galrigs offered to improve the Seasine by the Witnesses insert , which being four , two Deponed positively that they were never Witnesses to a Seasine given by Galrigs to his Wife : and the third Deponed , that he remembred not that he was Witness : the fourth Deponed , that he was Witness , but said that this Seasine was in Summer , whereas it bore to be in Winter : the Nottar abode by the Seasine , but was not Examined .

The Lords found the Seasine improven , but would not Examine the Nottar , nor any other Person , mainly in consideration that the Seasine was pr●priis manibus , without any other Adminicle ; otherways the Nottar and one Witness affirming , the Lords would have Examined the Nottar or any other persons or Evidences for astructing the verity of the Seasine .

George Hume contra Seaton of Menzies . Ianuary 13. 1669.

GEorge Hume as Assigney by the Earl of Wintoun to a Bond granted to the Earls Factor , for his behove , having Charged thereupon . The Creditor Suspends , in Discussing whereof , it was alleadged for George Hu●● , that he ought to have Annualrent , because the Suspender by a missive Letter produced written to the Umquhil Earl of Wintoun , obliged him to pay Annualrent for the time by gone : and therefore ought to continue the same till payment . The Suspender answered , it contained nothing as to the Annualrents in time coming .

The Lords found Annualrents due from the beginning , both before and after the Letter , though they exceeded the Principal Sum , seing once Annualrent was promised for some Terms .

Alexander Mckenzie of Pitglasse contra Ross of Auchinleck , Ianuary 14. 1669.

ALexander Mckenzie having Right to two Compryzings of the Lands of Auchinleck , one in Anno 1644. and another in Anno 1647. which being alleadged to have been satisfied within the Legals , and the matter referred to an Auditor who reported these Points to the Lords . First , Whether the Appryzer should Compt for the Mails and Duties , so as to impute the same to both Appryzings , as to years after the second Appryzing , or to impute them wholly to the first Appryzing during its Legal , and then to the second Appryzing during its Legal . It was alleadged for the Appryzer , that he having two Titles in his Person , it was free for him to impute his Possession to either of them , and yet he was so favourable , as not to crave his option , but to impute proportionally to both , albeit in Law , when Receipts are not specially as to one Cause , electio est Debitoris . 2dly , When any payment is made by a Debitor to his Creditor indefinitly , it is still imputed to the Annualrents in the first place , before it can satisfy any Stock , so that any satisfaction gotten by him , must first be imputed to the Annualrent of both the Sums , and then to the Stock of the first . It was alleadged for Auchinleck , that the Intromission could only be attribute to the first Appryzing . First , Because by that Right the Appryzer entered in Possession , and cannot invert his Possession to a third Parties prejudice . 2dly , The first Appryzing est potior jure ; for if the two Appryzings were in different Persons , he that had the second , could never attain Possession against the first . 3dly , In dubio solutio est imputanda in duriorem sortem , and therefore to the first Appryzing , for if imputation be made to both , the first Appryzing will not be satisfied within the Legal , and the Debitors Right will be taken away , which is most infavourable . 4thly , The Appryzer as he did not Possess by the second Appryzing , so he could not , because the first Appryzing carries the Right of Property , and the second carries only the Right of Reversion .

The Lords found the Possession was only to be attribute to the first Appryzing , and not to the second , while the first were satisfied .

The next point was , that it was alleadged the Appryzer had sold a part of the Lands within the Legal , and therefore the worth of these Lands ought to be allowed in satisfaction of the Sums . It was answered , that the Appryzer could not Dispone the Lands simply , but only his Right of Appryzing , which would still be Redeemable from his Assigney , as well as from himself .

The Lords found that he was not Comptable for the whole value of the Lands Disponed , but for what Sums he actually Received for the Lands Disponed , to be proven scripto vel juramento .

The next point was , as to the prices of the Victual , whether the Feers , or greatest prices were due .

The Lords allowed the Debitor to prove the greatest Prices , and also to produce the Feers , reserving to themselves the modification ; Next as to the Rental , the Appryzer desired a joynt Probation , especially it being in the Highlands , where the Witnesses are suspect .

The Lords would not grant a joynt Probation , but ordained the Probation to be by Witnesses above exception .

Hamiltoun contra Bain , Ianuary 15. 1669.

UMquhile Agnes Anderson having Disponed all her Goods and Moveables , to Bains Bairns of the first Marriage , and made Delivery thereof , conform to an Instrument produced ; and having thereafter Married Iohn Hamiltoun , he Ratified the former Deed done by his Wife in favours of her Bairns : she being now Dead , both Parties give in Supplications , desiring Possession of these Goods Disponed to the Bairns , they alleadged upon the Mothers Disposition , Ratified by her second Husband . And the Husband alleadging that it being but a fictitious Possession by an Instrument , he as Husband being Dominus bon●rum , is in the natural Possession , seing his Wifes Liferent use was reserved , and cannot summarly be put therefrom , hoc ordine , upon a Supplication without Process . 2dly , If he were in a Process , he would exclude the Bairns , because the Disposition being made after his Contract of Marriage and Proclamation , no Deed of his Wifes could then prejudge him ; and as for his Ratification , he did it to satisfie his Wifes importunity , but being granted to a Wife during the Marriage , he may and does recal it . It was answered , that it was not a Donation to his Wife , but to his Wifes Children , which no Law makes Revockable .

Which the Lords Sustained , and found the Husband could not recal his Ratification , not being in Favours of his Wife , but in Favours of her Children , at her desire .

Earl of Athol contra Robertson of strowan , Ianuary 19. 1669.

MAster Walter Stuart as Parson of the Kirk of Blair in At●ol , whereof Tillibairn was Patron , gave a Tack to Tillibairn's Brother of the whole Teinds of the Paroch ; which Tack he ( within a few days ) Assigned to Tillibairn , the Patron himself . Tillibairn's Escheet and Liferent having fallen , the Viscount of Stormont obtained the Gift thereof , and as Donator , Assigned the Right of this Tack to the Earl of At●ol , who now pursues Robertson of Strowan for the Teinds of his Lands , for many more nor 40. years , from the Date of the Tack . The Defender alleadged , First , that the Tack is null , being Set for more nor three years , without consent of the Patron , contrair to the Act of Parliament , 1594. The Pursuer answered , that the alleadgeance was justertij to the Defender , and was only competent to the Pursuer , or some deriving Right from him , for the Defender being lyable for his whole Teind , had no Interest to quarrel the Pursuers Tack . 2dly , Albeit the consent of the Patron be necessar , yet it is not necessar to be in the very Tack it self , but a subsequent consent is sufficient , and here the Patron has given a subsequent consent , in so far as within a few dayes after the granting of the Tack , he accepted an Assignation thereof himself , and did obtain a Decreet of prorogation of the same . The Defender answered , that the Patrons consent being a solemnity requisit in Law , behoved to be in the Tack it self , and not being then adhibit , the Tack of it self was null ab initi● , and a subsequent consent , not by subscription , but by acceptance , or homologation , was not sufficient , and the Defender had good interest to propone the nullity , not being founded super jure tertij , but simply exclusive juris agentis , as wanting the essential solemnities , and also because the Defender has payed the Minister the accustomed Teind-duty for all years bygone , and having his Discharge of the whole Teind-duty due by him eatenus he is in the Ministers place .

The Lords found the Defender to have sufficient interest to alleadge the nullity upon the Discharges , but found the Patrons acceptance of a Right to the ●ack , a sufficient consent to validat the same , and that it required no consent expresly by subscription of the Tack .

The Defender further alleadged Absolvitor , because this Tack never having attained Possession , nor no action following thereupon , for more then 40. years it is prescribed and void , and so likewise is the Decreet of prorogation , being more then 40. years since . The Pursuer answered , that the Defender having no Right to his Teinds , had no interest to quarrel his Right . 2dly , That a Tack being but a Right to an annual Prestation , it is all one , as if a Right had been granted to every year a part , in which case 39. years would be entire , and the Pursuer insists for no further . The Defender answered , that prescription being a total extinction of the Right , and not a transmission thereof , by vertue of an other Right ; It is not jus tertij to the Defender to alleadge the same , and to exclude any from troubling him , upon a null and prescribed Right , and he is lyable only to the Minister , to whom he has made payment , and obtained his Discharge for bygones , and for time coming ; likeas it is better to be in the hand of an Ecclesiastical Person , th●n in the hand of a powerful secular Person . To the second , that there is not here granted distinct Tacks , of several years , but one individual Tack for many years , all which years are expired ; but it subsists only by the prorogation : and albeit it be true , that if the Tack had been once cled with Possession , and so become a real Right , the Defender would only have been fred of the Duties before fourty years , but the very Tack it self being never cled with Possession , is singly expired and void .

The Lords found the Defense Relevant , and competent to the Defender , to Liberat him of all bygones payed to the Minister , but not to exclude the Pursuer for time coming , in respect , that by the Decreet of Provision , and prorogation of the Tack , the benefice is no more a Parsonage , but the Minister is a Stipendiary , and is in Possession by vertue of a Modified Stipend , the Right of the Teinds remaining by the Tack , and prorogation forsaid in the Tacksman , and in his Successors .

But because the Pursuer alleadged Minority and Lesion , the Defender proponed a third Defense , viz. That he had made payment bona fide to the Minister , and had received a Discharge for his whole Teind duty , and could be lyable for no further , for bygones , till his use of payment was interrupted by Citation , or Inhibition . The Pursuer answered , that any payment the Defender made , was but an inconsiderable Duty allocat out of his Teinds , by vertue of the samine Decreet of modification , and locality ; and albeit the Minister had Discharged his whole Teind , yet as to the superplus , which is the Tacksmans part , the Discharge was meerly gratuitous , and was not upon payment made , and the Pursuer was willing to allow what he truely payed ; the Defender answered , that in all Benefices and Tacks , use of payment importing a verbal Tack , is sufficient per tacitam relocationem , till it be interrupted , so that if the Minister had granted a Tack in Writ but for one year , and the Defender had continued in Possession per tacitam relocationem , he was bona fide Possessor , & f●cit fructus consumptos suos , even albeit the Minister had no Right , so his use of payment for so long a time must work the same effect , neither can it be made appear , that the Defender or his Predecessors payed more , then what they now pay .

The Lords Sustained the Defense , and found the Defender only lyable for use of payment , until Citation or Inhibition .

Mr. George Johnstoun contra Sir Charles Erskin Lord Lyon , Eodem die .

UMquhile Richard Irwing having Died Infeft in the ten Merk Land of Knok-hill , his Son , had a Son , and four Daughters , his Son being his appearand Heir , and being Addebted a Sum to Mr. Iames Alexander , he Charged him to enter Heir in special to Richard his Grand-father , and Apprized the Lands from him , whereunto Sir Charles Erskin has now Right ; the said Son being now Dead , and never Infeft , Mr. George Iohnstoun takes Right from the four Female Grand-children , and Serves them Heirs to their Grand-father , but before they were Infeft , there was an Infeftment , or Charge upon the Apprizing , at the instance of Mr. Iames Alexander , and in a former competition , Sir Charles was preferred upon Mr. Iames Alexanders Right , as denuding the Male Grand-child , appearand Heir for the time , in the same manner as if he had been Infeft ; now Mr. George Iohnstoun upon the Femals Right , raises a Declarator , to hear and see it found and declared , that Mr. Iames Alexanders Apprizing was satisfied , and extinct by Intromission , before the legal was expired . It was alleadged that the Pursuers , as Heirs Served , and entered to Richard their Grand-father , had no interest to Redeem the Apprizing , led against Robert their Brother , unless they were also entered Heirs to their Brother , which Robert , if he were alive , might Redeem the Apprizing against himself , so that the legal Reversion being in his Person , cannot belong to his Grand-fathers Heirs , but to his own Heirs , and as he , or his Heirs could only Redeem , so can they only declare the Apprizing to be satisfied by Intromission , neither can the Reversion belong to two , both to the Heirs of Robert , who was Charged to enter Heir , and to the Heirs of the Grand-father , who Died last Infeft . It was answered , that Robert never having in his Person any real Right , as never being Infeft , albeit fictione juris , the Act of Parliament gives the Creditors like Right upon his disobedience to enter , being Charged , as if he had entered , yet that is a meer passive Title , and could give no active Title to Robert , or any representing him , either to Redeem , or to call the Apprizer to an accompt , till they were entered Heirs to the person last Infeft ; for albeit the Creditor Apprizer has a real Right , yet the disobedient appearand Heir has none ; and albeit the Lords might suffer the disobedient appearand Heir , or his Heirs to Redeem the Apprizing , because the Apprizer had no interest to oppose the same , being satisfied , much less can the Apprizer now oppose the Pursuers , who being Infeft as Heirs to Richard , have the real Right of Fee in their Person , and consequently the Right of the Reversion of the Apprizing led against Richards appearand Heir , which being a minor Right , is implyed , and included in the Property .

Which the Lords Sustained , and found that the Heirs of the person last Infeft , being Infeft , might Redeem , or declare against an Apprizer , who Apprized from an appearand Heir , lawfully Charged , albeit they were not of that appearand Heir .

The Creditors of James Masson contra Lord Tarphichan , Eodem die .

SEveral English-men Creditors to Iames Masson , who lately broke , being Infeft in several Annualrents , out of Lands of his , pursue Poinding of the Ground ; compearance is made for the Lord Tarphichan Superior , and his Donator , to the Liferent Escheet of James Masson , who alleadged that James Masson being Ribel year and day before these Infeftments of Annualrent , the Ground could not be Adjudged , but the profits behoved to belong to the Superior , and his Donator . It was answered , that the Superior , or Donator had no Interest by the Rebellion of James Masson , because before the Rebellion , James Masson was Denuded in favours of his Son , and he Received as Vassal , so that the Vassal for the time , not having fallen in Rebellion , the Superior can have no Liferent Escheat . The Superior answered , that the Creditors of Masson having been once Vassal , and as Vassal constituting their Annualrents , they could not object upon the Right of his Son , unless they had derived Right from his Son . 2dly , The Superior is also Creditor , and hath Reduced the Sons Right as fraudulent , in prejudice of him , a lawful Creditor . It was answered , that the Superiors Right , as a Creditor upon the Reduction , doth not simply annul the Sons Fee , neither doth it at all restore the Father again , because it being but a Reduction to a special effect , viz. that the Creditor may affect the Lands , by Apprizing upon his Debt , anterior to the Sons Infeftment , notwithstanding of his Infeftment , the Sons Fee stands , but burdened with that Apprizing , so that upon neither ground , the Superior can have the Right of a Liferent Escheat , of him who once was his Vassal , but was Denuded before Rebellion ▪ and which is most competent to the Pursuers , as well as if the Superior had been Denuded , and another Superior Infeft , if he or his Donator had been pursuing for a Liferent , any person Infeft in the Land might well alleadge , that he had no Interest as Superior , being Denuded .

The Lords found , that in neither case the Superior , or Donator , could have interest in the Liferent Escheat .

Mr. John Hay contra the Town of Peebles , January 20. 1669.

MAster John Hay the Clerk having pursued a Reduction , and Improbation , against the Town of Peebles , of all Right of Ascheils belonging to him in Property , containing also a Declarator of Property of the saids Lands of Ascheils , and that certain Hills lying towards the Town-lands of Peebles , are proper Part , and Pertinent of Ascheils : He insists in his Reduction and Improbation , for Certification , or at least , that the Defenders would take Terms to produce . The Defenders alleadged no Certification , because they stand Infeft in these Hills in question , per expressum , and the Pursuer is not Infeft therein . The Pursuer answered , that he offered to prove , that they were proper Part , and Pertinent of the Lands of Ascheils , whereof he produces his Infeftment . The Defenders answered , that till the samine were proven , they were not obliged to take Terms to produce , or otherwise , upon this pretence of Part , and Pertinent , before the samine were instructed , any party might necessitate all his Neighbours , to make patent to him their Charter Chists . The Pursuer answered , that the Defenders ought to take a Term to produce , and that before Certification , at that Term he would prove Part , and Pertinent , and alleadged the Practique in the Case of the Town of Sterling , observed by Dury , the 24. of Iune 1625.

The Lords Sustained the Defense , and would not put the Defenders to take Terms , till the Lands in question were first proven to be Part , and Pertinent , and allowed the Pursuer to insist primo loco in this Declarator for that effect ; and as to the Practique alleadged , they found in that Case , the Defenders alleadged upon no Right , whereas the Defenders propone here upon an expresse Infeftment .

Laird Kilburny contra the Heirs of Tailzie of Kilburny , and Schaw of Greinock , Eodem die .

UMquhile Sir Iohn Crawford of Kilburny , having only two Daughters , the eldest Married to Blackhal , Dispones his Estate to Margaret the younger , and to the Heirs-male of her Body ; which failing , to the eldest Heir Female , without division , throughout all the Succession ; and failling the Issue of this Daughter , his eldest Daughter , and her Issue ; and failling of these , Iordanhil and Kilburny , their Issue , all which failling his own Heirs , and Assigneys whatsomever . In which Disposition there is a Clause , that the said Margaret , and the Heirs of Tailzie , should not alter the Tailzie , nor Dispone , or burden the Lands ' or contract Debts , whereby they might be Apprized , and carried from the Heirs of Tailzie ; otherwise the Contraveeners should lose their Right ipso facto , and there should be place to the next Heir of Tailzie : but there is a Clause subjoined , that the said Margaret , and the Heirs of Tailzie might Sell , Dispone , and Wodset the Lands of Easter Greinock , and Carsburn , and might burden the same with Sums of Money , for paying , and satisfying of the Defuncts Debts . The said Margaret Crawford having Married the Earl of Crawfords Son Patrick ; they did Sell the Lands of Easter Crawford , and Carsburn , to Sir Iohn Schaw of Greinock , at a Rate far above the ordinar Price , having expected a Bargain with the Town of Glasgow , for a Harbour there ; but the Town having made another Bargain with New-wark : Greinock pursued Kilburny , either to annul the Minut , or fulfil the same , and to secure him , in relation to the Clause de non alienando ; and to that effect , Kilburny raises a Declarator against the Heirs of Tailzie , to hear and see it found and Declared , that by the Right granted to the Lady by her Father , she might lawfully Sell the Lands of Easter Greinock , and Carsburn . The Heirs of Tailzie compeared not , but Greinock compeared , and was admitted for his Interest , which was , that the Processe being for his security , he might propone all the Defenses , which he thought competent to the Heirs of Tailzie , and alleadged that the Libel was no ways Relevant , bearing a power to Sell simply , but that it ought to have been conform to the Clause in the Disposition , viz. to Sell , Wodset , or Burden , for payment of the Defuncts Debts , which did necessarly import , that no further could be Sold , then what was sufficient to pay the Debt , and therefore no Processe , till the Libel were so ordered , and the Debts produced . The Pursuer answered , that he opponed the Clause , having two Members , one bearing with full power to Dispone the Lands of Easter Grienock , and Carsburn , and the other bearing to affect the same with Sums , for paying of the Defuncts Debts ; which payment of the Defuncts Debts , was but the end , motive , and consideration for which the power was granted , but was no restriction , quality , or limitation of the power . 2dly , It did only relate to the second Member of the Clause , and not to the first Member , which bore with full power to Sell , and Wodset , &c. which full power , is directly opposit to a limited power . 3dly , Albeit the Pursuer were obliged to instruct the Debt , and apply the price for satisfying thereof , yet the Clause doth not limit him to Sell only so much as will be equivalent to the Debt , but he satisfying the Debt , more or lesse , hath acted conform to the Clause , which uses to be so exprest in Clauses of this nature , as that the Heirs of Tailzie may Dispone so much as will be sufficient for payment of the Debt , which not being exprest , these restrictive Clauses being against common Law , are strictissimi juris , and not to be extended beyond what the words expresly bears . 4thly , Albeit the Pursuer were obliged to instruct that there were Debt , which might be a price , yet he were not obliged to instruct that they would be equivalent to this price , but to such a price as were not a third part within the ordinar Rate , in which latitude , every Seller hath power , and the alienation cannot be quarrelled ; and albeit that price would be more then the Debt , yet these Lands being two intire Tenements , which none would Buy by Parcels , the Pursuer could only be comptable to the Heirs of Tailzie for the superplus . The Defender answered , that he opponed the Clause , being one and copulative ; and that these Lands being put per expressum in the Clause , de non alienando , It could not be thought that the immediat following Clause , would give the Lady as much power , as to these Lands , as if they had not been in the former Clause , but the intent to satisfie the Defuncts Debt , being the last words in the Clause , is relative to the whole Clause , and natively resolves into an Restriction , or Quality , not bearing that they night be the more able to pay the Debts , but for payment and satisfaction of the Debts .

The Lords considering that Heirs of Tailzie were absent , and that as to them , the Interlocutor would be in absence , found it most just , and safe for both Parties to declare conform to the Clause , that the Alienation was valide for satisfying the Defuncts Debts , and found not that the Debts behoved to be equivalent to this price .

The Creditors of John Pollock contra James Pollock his Son , January 21. 1669.

THe Creditors of John Pollock having Adjudged his Tenement for their Debt , and James Pollock having gotten a Bond of 5000. Merks from his Father , payable after his Fathers death , which was granted after he was Married , he did also Apprize thereupon within year and day of the Adjudication . The Adjudgers raise a Reduction of this Bond , and the Apprizing following thereupon , upon these Reasons ; First , Because the Bond was granted for Love and Favour , and albeit it bear borrowed Money , yet the said Iames has acknowledged by his Oath , that it was for Love and Favour , and so being granted betwixt most conjunct Persons , after the contracting of their Debts , it is null by the Act of Parliament , 1621. The Defender alleadged that the Reason was not Relevant as to such Debts as were not constitute by Writ , anterior to the Defenders Bond ; and as to any constitute by Probation of Witnesses , for proving Bargains , Merchant Compts , and Furnishing , wherein the Probation , and Decreet are both after the Bond , they cannot be said to be anterior Debts , because they are not constitute till Sentence ; and albeit the Sentence bear the Debt to have been contracted before this Bond , yet that cannot make them anterior Debts , because Writ cannot be taken away by Witnesses , proving an anterior Debt , which would be as effectual against the Writ , as if the payment thereof had been proven by Witnesses , and the time of Bargaining , or Furnishing , being a point in the Memory , and not falling under the Sense , no body would be secure who had Writ , but that Bargains , and Furniture might be proven anterior thereto . The Pursuer answered , that his Reason was most Relevant , and the constitution of the Debt is not by the Decreet , or Probation , but by the Bargain , and Receipt of the Goods , or Furniture , after which no posterior Deed of the Debitor , can prejudge the Creditors Furnishers ; and albeit in many cases Witnesses prove not , and Witnesses are not admitted to prove , where Writ may , and uses to be interposed , yet where the Probation is competent , the Debt is as well proven thereby , for the time of contracting as it is by Writ , neither doth that ground , that Writ cannot be taken away by Witnesses , any way hinder , for the meaning hereof , is only that the Payment , or Discharge of that Writ , must be proven by Writ , and it were a far greater inconvenience , if after Bargain , and Furniture , any Writ granted by the Debitor , though without an Onerous Cause , should prejudge these Creditors .

The Lords Sustained the Reason , and Repelled the Defense , and found Debts constitute by Witnesses to be effectual , from the time of contracting , and not from the time of Probation , or Sentence , to take away any posterior Deed of the Debitor , done without a Cause Onerous .

The Pursuer insisted in a second Reason of Reduction , that albeit these Debts were posterior to this Bond , yet the samine ought to be Reduced , as being a fraudulent conveyance betwixt the Father and the Son , kept up , and latent in some of their Hands , without any thing following thereupon , to make it known and publick , so that the Creditors having bona fide contracted with the Father , having a visible Estate , were deceived and defrauded by this latent Bond , if it were preferred to them . 2dly , This Bond bears only to be payable after the Fathers Death , and so is but donatio mortis causa , and but a Legacy ; or if it be inter vivos , it is much more fraudulent and latent . 3dly , Bonds of Provision , for Love and Favour granted to children , are accompted but as their legitime , still Revockable by the Father , and all Debts contracted by him are preferable to them . The Defender answered , that there was neither Law , Reason , nor Custom to evacuat , or exclude Bonds of Provision , granted by Parents ex pietate paterna , to their Children , upon accompt of their Fathers posterior Debt , especially if the Bonds were Delivered , for there is no ground for any such thing by the Act of Parliament , 1621. which relates only to Deeds done after the Debt contracted , neither is there any sufficient ground of fraud , that the Bonds were not made publick or known , there being no obligement upon Parties to publish the same , and Creditors have less means to know the Debts of other anterior Creditors , then of Children , having a just ground to suspect that they may be provided , and to enquire after the same , neither doth the delay of the Term of payment import , either fraud , or that the Bonds were donationes mortis causa .

The Lords would not Sustatin the Reasons of Reduction upon the Act of Parliament , 1621. or upon the general ground , that posterior Debts were preferable to all Bonds of Provision , but ordained the Pursuer to condescend upon the particular ground of fraud in the Case in question .

The Collector-general of the Taxation contra the Director of the Chancellery , Ianuary 22. 1669.

THe Director of the Chancellery being Charged for the present Taxation , imposed in Anno 1665. by the Convention of Estates , Suspend on this Reason , that he is a Member of the Colledge of Justice , which by the Act of Convention are exempted . It was answered , that the Members of the Colledge of Justice were never further extended then to the Lords , Advocates , Clerks of Session , and the Writters to the Signet . It was answered , that as the Signet depends immediatly , and chiefly upon the Lords of Session , and Writters thereto , are of the Colledge of Justice , so the Chancellery depends in the same way upon the Lords , who issue Orders thereto from time to time , to give out Precepts direct to Superiours , or to Bailliffs , Sheriffs for Infefting of Supplicants ; and therefore the Director of the Chancellary , being Writer in that Office , must enjoy that Priviledge , as well as the Writers to the Signet ; for albeit the Director gives out Precepts and Brieves of Course , without the Lords Warrand , so do the Writers to the Signet , give out many Summons of course without Warrand .

The Lords found the Director of the Chancellary to be a Member of the Colledge of Justice , and therefore Suspended the Letters .

The Collector general of the Taxations contra The Master and Servants of the Mint-house . Eodem die .

THe Master of the Mint did also Suspend for him and his Servants on this Reason , that it was their ancient Priviledge to be free of Taxations , for which they produced certain Gifts , by former Kings of Scotland , and Decreets of the Lords . It was answered , that the Act of Convention gives only Exemption to the Members of the Colledge of Justice , and Discharges all former Priviledges and Exemptions . It was answered that Acts of the Convention must be understood salvo jure , which takes place even in Acts of Parliament . 2dly , They produced a late Gift , granted by the King in Anno 1668. Exeeming the Master and Servants of the Mint from all Taxation , Imposed or to be Imposed , which is past the Exchequer and Privy Seal , so that the King who hath Right to the Taxation , might Discharge the same to whomsoever he pleased .

The Lords in respect of the new Gift , did Exeem the Officers of the Mint , and Suspended the Letters .

The Daughters of umquhil Chrichtoun of Crawfoordstoun contra Brown of Inglistoun . Eodem die .

THe Daughters of umquhil Crichtoun of Crawfoordstoun , as Heirs appearand to him immediatly after his Death , gave in a Supplication to the Lords , desiring his Charter-Chist to be Inventared and Sequestrat .

Which the Lords granted .

But before the Commission came to the House , William Lowry the Ladies Nevoy , upon notice of the Order , Rode Night and Day , and prevented the same : so that all the Writs were carried from Crawfoordstoun to Inglisstoun .

Thereafter the appearand Heirs raised Exhibition , ad deliberandum , against the Lady and others , who produced three Dispositions by Crawfordstoun , in favours of Brown of Inglistoun , who had Married one of his Daughters , and the Heirs of that Marriage , whereby he Disponed his Estate of Crawfoordstoun to them , with a Bond of 20000. pounds , the intent whereof seems to have been , that they might have Appryzed , to make the Disposition effectual , and she and William Lowrie having Deponed , acknowledged that the Writs and Charter-Chist were carried out of Crawfoordstoun to Englistoun , but Deponed that they knew not whether thir Writs were amongst them or not , or whether they were formerly delivered to Inglistoun himself , who is now dead : There was in the Exhibition Libelled a Declarator , that the Writs were null , as not delivered , and that being unwarrantably taken out of the Defuncts Charter-Chist , after the Lords Order to the contrair , they ought to be put back and Sequestrat , till the Rights of Parties were Discust . The Pursuers did now insist in this last member , to the which it was answered , that the Writs being Exhibit to the appearand Heirs ad deliberandum , and they having seen them , they could have no further interest , but the Lady Crawfoordstoun Tutor to her Oy Inglistoun , ought to have them up again , who produced them ; neither is it , nor can it be instructed , that these Writs were unwarrantably taken out of the Charter-Chist , after the Lords Warrand , seing their Oaths bore , that they knew not whether these were in the Charter-chist or not ; and therefore , being a Pupils Writs , in his favours produced by his Tutrix , they cannot be taken from him or Sequestrat , unless the unwarrantable medling therewith were proven . 2dly . By a Disposition of the Moveables to the Lady produced , granted by the Defunct , it bears a Delivery of the Keys of the Charter-Chist to her , to be Delivered to Inglistoun with the Charter-Chist , which is equivalent as if they had been Delivered to Inglistoun himself , and she was content to be Enacted to produce them when ever the Lords found cause . It was answered , that the Lords Warrand being anticipat , and the bulk of the Writs in the Charter-Chist carried away , it must be presumed , that these Dispositions , and that Bond was amongst the rest , and so must be returned in statu quo .

The Lords found this alleadgance Relevant , unless the Defenders would instruct that these Writs were not in the Charter-chist the time of the Order , but out thereof in Inglistouns hands : and yet they allowed the Parties presently to Dispute whether , albeit these Writs were in the Charter-Chist , Inglistoun or his Tutrix should have them up , or if they should remain Sequestrat .

Mr. Iames Drummond contra Stirling of Ardoch . Ianuary 23. 1669.

MR. Iames Drummond being Donator to the Escheat of the Laird of Glenegies , pursues Exhibition and Delivery of a Bond granted by George Mushet to Iames Henderson , containing 2000. merks principal , and by him Assigned to umquhil Glenegies , and thereby falling under his Escheat , and the Bond being produced by Ardoch , the Donator craves the same to be Delivered to Ardoch . It was answered by Ardoch , that the Bond ought not to be Delivered to the Donator , because it cannot belong to him , in respect that Mushet , who by the Assignation became Debitor to Glenegies , had two Bonds granted by him to Glenegies , containing 3000. merks , wherein Ardoch is Cautioner , whereby this Bond of 2000. merks , due to Glenegies , was compensed long before Glenegies Rebellion . It was answered for the Pursuer . that Compensation is not Relevant , unless it had been actuallie proponed in Judgement , or Extrajudiciallie stated , by the Parties offering and accepting the Compensation . 2dly , That the alleadgance is no wayes Relevant against the Donator , who has Right to the Debts due by the Rebel . 3dly , Ardoch had no Interest to alleadge the Compensation , which could only be proponed by Mushet the Creditor , and not by Ardoch who is Cautioner to him . The Defender answered , that Compensation is Competent ipso jure , from the time that the sums be mutuallie due by the Debitor and Creditor , in the same way as if they had granted mutual Discharges each to other ; and therefore when an Assigney Pursueth or Chargeth , Compensation is always Sustained against him upon Debts due by the Cedent before the Assignation , albeit the Compensation was not actually stated before the same ; neither is the Donator here in better case then an Assigney , so that when he pursues Mushet Debitor to the Rebel , Mushet may alleadge Compensation upon the like Debt due to him by the Rebel before the Rebellion , and the Defender hath good Interest to propone the Compensation , because he is Cautioner to Glenegies for Mushet , and if Mushet be forced to pay the Donator , without allowing Compensation , Ardoch will be necessitat to pay Mushet , to whom he is Cautioner , and therefore hath good Interest to propone that by the concourse of the two Debts , they are both extinct , and he is not obliged to Deliver up to the Donator the Bond Constituting Mushets Debt .

The Lords found the Alleadgance proponed for Ardoch Relevant and Competent , and that Compensation was Relevant against the Donator upon Debts due by the Rebel before Rebellion .

Sir Iohn Weims contra Farquhar of Towley . Eodem die .

SIr Iohn Weims having Charged Farquhar of Towley for the maintainance of his Lands deu in Anno 1648. He Suspends on this Reason , that by the Act of Parliament 1661. appointing this maintainance to be uplifted by Sir Iohn Weims , singular Successors are exeemed ita est , in one part of the Lands he is singular Successor to Sir Robert Farquhar , of another part , he has a Disposition from his Father , for Sums of Money particularly exprest in the Disposition . It was answered to the first , That the Exemption is onlie in favours of singular Successors , who had bought Lands the time of the Act , ita est , Sir Robert Farquhars Disposition is after the Act : neither doth it appear that a competent price was payed therefore , and as for his Fathers Disposition , though prior to the Act , yet the Narrative thereof , betwixt Father and Son , will not instruct the Debts , unless it be otherways instructed , nor can it be made appear to be a just price .

The Lords found that the Exemption could not extend to singular Successessors , acquiring after the Act , for if at that time the Lands were in the hands of him who was Heretor in Anno 1640 , or his Heirs , nothing ex post facto done by them , can prejudge the Right Constitute by the Act , which doth not bear an exemption to singular Successors who should acquire , but only to these who had acquired .

They did also Ordain the Defender to instruct the Cause onerous of his Fathers Disposition , but would not put the Suspender to Disput the Equivalence of the price , unless it were instructed that the Dispositions were Simulat , there being a great latitude in prices , according to the pleasure of Parties .

Alexander Chisholme contra Lady Brae . Ianuary 26. 1669.

ALexander Chisholme having apprized certain Lands from the Heirs of Sir Alexander Frazer of Brae , and thereupon insisting for Mails and Duties . Compearance is made for the Lady Brae , Sir Iames his Relict , who being provided by her Contract of Marriage to certain Lands , with an Obligement that they should be worth 2400. merks yearly , here Husband did thereafter , during the Marriage , grant her a Tack of the whole remanent Lands he had then , with a general Assignation and Disposition omnium bonorum , the Tack bears to be for Love and Favour , and that the Lady may be in the better capacity to aliment his Children , and bears 20. pound of Tack Duty , in case there be Children , and a Duty equivalent to the Rent of the Land if there be none , the entry to the Tack is at the next Term after the granting thereof , and not at the Husbands Death . Upon this it was alleadged for the Lady , that she ought to be preferred to the Mails and Duties of the Lands in question , by her Tack cled with Possession by her Husbands Possession before contracting of thir Creditors Debt , which must be understood her Possession stante matrimonio , and by her own Possession , after her Husbands Death , before Chisholms Apprizing or Infeftment . It was alleadged for Chisholme , that the alleadgance founded upon the Tack , ought to be Repelled . First , Because it is a Donation betwixt Man and Wife , null of it self , nisi morte confirmetur , and so is still ambulatory , and in the Husbands power , during his Life , and is in the same case as Bonds of Provision granted to Children , and keeped by their Father , which being still in his power , any Debt Contracted after would be preferable thereto : So here this Tack being in the Husbands power , the Contracting of a Debt thereafter is preferable thereto , and is an Implicit Revocation thereof . 2dly . This Tack being a most fraudulent , latent and clandestine Deed betwixt Man and Wife , whereupon nothing followed in her Husbands Life , the Creditors having no way to know any such thing , and having Contracted bona fide , are Insnared and Defrauded thereby ; and the Lords having Declared , that in regard they had Reponed the Lady against a former Decreet : She should now Dispute her Right of the Tack , as in a Reduction , against which , this would be an unquestionable Reason , that it is a latent , fraudulent Contrivance , containing a Disposition omnium bonorum . It was answered for the Lady to the first , That Donations betwixt Man and Wife , are not by Our Law and Custom null , but are valid , a principio , unless they be actually Revocked : and albeit Implicit Revocations has been Sustained by Dispositions , or Infeftments of the same Lands to others , yet never by a Personal Bond or Contracting of a Debt , posterior . To the second , The Ladies Right can never be Interpret in fraudem creditorum , there being no Creditors the time of the granting thereof , and the Husband being free , and Incapacitat by no Law , an Infeftment of the remainder of his Estate to her , so Cautioned as this is , is both legal and favourable : and albeit in the same , there be a Disposition omnium bonorum , which cannot reach to Goods acquired after the Debts , yet the Tack is valid & utile per inutile non vitiatur . 3dly , Albeit this Tack bear to be a Donation , and for Love and Favour ; yet it is neither Fraudulent nor Revockable , because it is donatio remuneratoria , granted by the Husband , who was obliged to make up the Joynture Lands , contained in the Contract of Marriage , to 2400. merks , of which they came short of four at the beginning , and other four have been Evicted . It was answered for Chisholme the Creditor , that this alleadgance was no ways Competent against him , who is a Creditor , contracting bona fide ; but the Lady ought to pursue her Son , as Representing his Father , for fulfilling her Contract , or at least till that be declared against the Heir , who is the only competent Party , the Creditor must Possess conform to his Right . 2dly , Whatever was the Husbands Obligement , the Husband hath not granted this Tack in Remuneration or Satisfaction thereof , but expresly for Love and Favour , without mention of any other Cause . It was answered , that the expressing of Love and Favour , which may relate to the general Disposition , cannot exclude other Causes ; and albeit it make the Tack a Donation , yet it is well consistent to be a Remuneratory Donation , which is not Revockable .

The Lords found the Alleadgance Relevant , that this was a Remuneratory Donation , and that there was also much wanting of the Contract of Marriage , and found it competent against this Apprizer , and superceeded to give answer to the other Points , that if it were not proven Remuneratory , whether it could be Reduced as latent and fraudulent , at the Instance of posterior Creditors , or as being in the Husbands power , was indirectly Revocked , by Contracting of the posterior Debt , having no more Estate to burden with his Debt .

Boil of Kelburn contra Mr. Iohn Wilkie . Eodem die .

BOil of Kelburn having gotten a Commission from the Presbyterie of Irving , to uplift some vaccand Stipends , he gave Bond to pay to them 850. pounds therefore , and being thereafter Charged by Mr. Iohn Wilkie , Collector of the vaccand Stipends , Kelburn payed him 600. merks , whereupon Mr. Iohn gave Kelburn his Discharge of these vaccand Stipends , and of his Bond to t●e Presbyterie , with absolute Warrandice of the Discharge , especially bearing to relieve and free him of the Bond to the Presbyterie , thereafter Kelburn was Decerned to make payment of that Bond , after a long Debate Mr. Iohn Wilkie compeared , whereupon Kelburn Charged Mr. Iohn to pay him the 850. pounds , with Annualrent and Expences● upon the Clause of Warrandice , Mr. Iohn Suspends on these Reasons . First , That he was Circumveened , never having read the Discharge . 2dly , That Clauses of Warrandice ( however conceived ) are never extended further by the Lords , then to the Skaith and Damnage of the Party Warranted , which if it be Componed for never so little , the Warrandice reacheth no further then the Composition , and it can never be extended ad captandum lucrum ex alterius damno , so Kelburn having gotten Stipend worth 850. pounds , he cannot seek the same back again , but only the 400. pound he payed out . It was answered , that albeit general Clauses of Warrandice be so Interpret , yet this is an express and special ●action , to relieve Kelburn of this Bond , which , if it had been per se , would have been valide , although without an onerous Cause , and cannot be lesse valide , having so much of an onerous Cause .

The Lords did take no notice of the Reason of Circumvention , Mr. Iohn being known to be a provident Person , but Restricted the Warrandice to the 400. pounds received by the Suspender , and Annualrents thereof , and the Expences of Plea against the Presbyterie , and found it no ways alike , as if it had been a Paction apart , but being a speciality in a Clause of Warrandice , it was to be Interpret accordingly , pro damno & interesse only .

Lady Braid contra Earl of Kinghorne . Eodem die .

THere is a Bond 10000. pounds granted to the Earl of Buchan Principal , and the Earl of Kinghorne Cautioner to umquhil Mo●ison of Darsie , and Dam Nicolas Bruce , now Lady Braid , then his Spouse , bearing Annualrent , and a Clause stating the Principal Sum after ilk Term , as a Stock to bear Annualrent , and Termly Penalties in case of failzie . This being called in praesentia , It was alleadged for Kinghorne , that Annual of Annual was a most Usurary Paction , rejected by all Law , and our Custom , and cannot subsist in whatever Terms it be conceived , otherwise by the like Paction , the Annual of that Annual might bear Annual , and so perpetually multiply ; and if this were Sustained , there would never be a Bond hereafter in other Terms . It was answered , that Bonds of Corroboration , stating Annualrents into Principals by Accumulation , have ever been allowed , and though that be done after the Annualrent is become due , making it then to bear Annualrent , there is no material difference to make it bear Annualrent by a paction ab ante , but not to take Effect till the Annualrent be effectually due . It was answered , that Custom had allowed the stating of Annualrents after they were due , into a Principal , because then being presently due , they might instantly be Exacted ; but Law and Custom hath rejected the other Case . The Pursuer further alleadged , that she being a Widow , and this her Liveliehood , Annualrent at least should be due for the Annualrents , seing she is ready to Depone , that she borrowed money to live upon , and payed Annualrent therefore , or otherwise the Termly Failzies ought to be Sustained .

The Lords Sustained the Defense , and found no Annualrent due of the Annual , nor Termly Failzies , seing there was no Charge at the Pursuers Instance against this Defender , and that he was a Cautioner , but modified for all 100. pound of Expences .

Bell of Belfoord contra L. Rutherfoord . Ianuary 27. 1669.

BEll of Belfoord being Infeft in an Annualrent by the Deceast Lord Rutherfoord , out of certain Lands , pursues a poinding of the ground . Compearance is made for my Lady Rutherfoord , who alleadged she ought to be preferred , as being Infeft in an Annualrent of 2000. merks yearly , upon her Contract of Marriage , before this Pursuer . 2dly , That she ought to be preferred , for an Annualrent of 2000. merks yearly of additional Joynture , wherein she stands also Infeft publickly ; and albeit her Infeftment be posterior to the Pursuers , yet his Infeftment being base , not cled with Possession , before her publick Infeftment , she is preferable . The Pursuer answered , that before the Ladies Infeftment on her additional Jointure , he had used a Citation for poinding of the Ground , and is now Insisting for a Decreet thereupon , which must be drawn back to the Citation , and is sufficient to validat the base Infeftment , that it be no more from that time forth repute Clandestine .

Which alleadgance the Lords found Relevant , and preferred the Pursuer to the Ladies additional Jointure .

It was further alleadged for the Lady , that she was Served , and kenned to a Terce of the Lands in question , and must be preferred , as to a third part of the profits of the Lands , conform to her Infeftment upon her Terce . The Pursuer answered , that her Service , Kenning and Infeftment of Terce , are posteriour to his Infeftment of Annualrent , and posterior to his Citation foresaid thereupon . It was answered for the Lady , that her Terce being a Right Constitute by Law , by the Death of her Husband , albeit it be Served and Kenned after , these Acts are but Declaratory of her Right , by her Husbands Death , and do Constitute her Right ▪ not from the date of the Service , but from her Husbands Death , which is before the Pursuers Citation , so that his Infeftment , granted by her Husband , before his Death , not having been cled with Possession in the Husbands Life , it remained at his Death as an incompleat Right , which cannot exclude her from her Terce . It was answered , that a base Infeftment is of it self a valid Right , although by a special Act of Parliament posterior , publick Infeftments are preferred thereto , unless the base Infeftment hath been cled with Possession , which cannot be extended beyond the Terms of the Act of Parliament , and so cannot be extended to a Terce , but as the base Infeftment would have been a sufficient Right , against the Husband and his Heirs , so it must be esteemed as debitum reale , affecting the Ground , and his Lady can have no more by her Terce then the third of what was free unaffected before his Death .

The Lords found the base Infeftment sufficient to exclude the Terce pro tanto , and that as to the Husbands Heir or Relict , it was a sufficient Right .

Stirling contra Heriot . Eodem die .

Stirling Son to Commissar Stirling , pursues for a modification of an Aliment out of the Liferent of Helen Heriot , his Fathers Wife , as having the Liferent of the whole Estate .

The Lords Sustained not the Aliment , in respect the Defenders Liferent was very mean , and the Pursuer was major , and keeped a Brewary , and she kept one of his Children , and that he was not frugi aut bonae famae .

Robert Brown contra Iohnstoun of Clacherie . February 1. 1669.

RObert Brown pursues Iohnstoun of Clacherie , for payment of 1200. pounds contained in a Bill of Exchange , subscribed before two subscribing Witnesses , and marked with Clacheries hand , there was several other Bills for greater Sums produced , marked with the like mark , and none compearing for Clacherie .

The Lords caused Examine the Witnesses insert , who Deponed that Clacherie was accustomed so to Subscribe , and one of them Deponed , that he saw him put to this mark to the Bill in question ▪ several others Deponed , that they had accepted such Bills in regard of his Custom , and had obtained payment from him , without any Debate thereupon .

The question arose to the Lords , whether a Sum above an hundred pound could be proven by such a Writ , that had only a mark , and having demured upon it before , till they should try if any such case had been Sustained formerly , and none having been found Sustaining any Writ not being Subscribed with the whole Name , or at least the Initial Letters of the Debitors whole Name . It was offered by some , that Clacheries Oath might be taken ex officio , or de calumni● , not simply to refer the Debt to his Oath , but whether that truly he set to this mark , before these Witnesses , but Robert Brown being a dying , the Lords would not defer , but decided the Case , and found that this Writ being a Bill of Exchange among Merchants , and Clacheries custom so to grant Bills of greater importance then this , being clearly proven , and none appearing for him , they decerned against him upon the Bill and Testimonies , many of the Lords being of different Judgement , and that it was of dangerous preparative to encourage Forgerie , but it was Sustained only in all the particular Circumstances aforesaid , and not to be a general Rule .

Iohn Boswel contra Town of Kirkaldie . Eodem die .

THe Town of Kirkaldie having given a in Bill to stop the Interlocutor of the 22. of Iuly 1668. of the Process against them , and having objected against that Article of the Libel , whereby Iohn Bosewel craved Repetition of what he was stented for , for Charges of Commissions to the Convention of Burrows , upon this Ground , that the Convention of Burrows was authorized by Acts of Parliament , and Commissioners is ordained to meet yearly thereat , which being a burden arising from the Authority of Parliament , these who have Tenements in the Town , or Lands in the Burghs Lands are lyable pro rata , and did again resume the Debate anent the second Ministers Stipend , and being heard thereupon in presentia .

The Lords adhered to their former Interlocutor anent the Teinds , and found nothing could make Iohn Bosewel lyable for any part of the second Ministers Stipend , except what was due by Law out of his Teinds , or what was due by his own consent , or by custom of 40. years , and found him not lyable for Charges of Commissioners of Burrows , which though authorized by Parliament , yet the intent thereof was Trading ; and though the Convention might equalise the proportion of Taxations amongst Burghs , which did concern all having Land therein : Yet that being a case meerly contingent , they would not upon consideration thereof , put any part of the burden upon these who had no Trade .

Iohn Boswel contra Lindsay of Wormistoun . February 3. 1669.

John Bosewel being appointed Commissar of St. Andrews by the King , and before the Restitution of Bishops , after their Restitution , the Arch-bishop named Lindsay of Wormistoun Commissar , and agreed him and Iohn Bosewel , on these Terms , that Iohn should have the half of the profit of the place , whereupon Wormistoun grants a Bond to Iohn Bosewel , to Compt and Reckon for the Profits of the half , and to pay the same to Iohn Bosewel termly , and quarterly , and if any question should arise betwixt them in the Accompt , that he should submit himself to the Arch-bishops determination , and acquiesce therein . Iohn Bosewel Charges upon his Bond. Wormistoun Suspends . It was alleadged for Wormistoun , that his Bond did contain a Submission to the Arch-bishop , who is thereby the only Judge Constitute in these Accompts . It was answered , that this Bond was only Subscribed by Wormistoun himself , and a Submission must be Subscribed by both Parties , and that it behoved to be understood to last but for a year , and not to import a Liferent Submission , neither could it be exclusive of the Lords to decline their Authority . The Suspender answered , that this Submission being a provision in the Bond Charged on : Which Bond being accepted by the Charger , his acceptance makes his consent to the Submission , in the same way as if he had Subscribed the same : And there is no Law to exclude a Submission for two years , or a Lifetime , more then for one ; and it is not a declining of the Lords Jurisdiction , it being most ordinarly sustained , no Process , because there is a Submission standing .

The Lords found that there is here a Submission , not ending by a year , and accepted by the Charger , and that thereby the Arch-bishop in the first place , ought to give his Sentence , which if he refused , or if it was iniquous , the Lords would cognosce thereupon , as in the case of other Arbiters , and Assigned therefore to the Arch-bishop , the first of Iune to determine thereupon .

Kilburnie contra Heirs of Tailzie of Kilburnie . Eodem die .

THe Laird and Lady Kiburny did insist in the Declarator against the Heirs of Tailzie , Dispute the 20. of Ianuary , and according to the Interlocutor then given , gave in a condescendence of Kilburnies Debt , amounting to fifty one thousand pound , and that the Rent of the Land did not exceed thirty six hundred merks . It was alleadged , that the Annualrents were here accumulate for five years after Kilburnies Death , which ought not to be , the Lady having Possession of the Lands , and ought to have payed the Annualrent , and the Clause impowering her to Sell , is only for satisfying Kilburnies Debt , due the time of his Death , which cannot extend to Annualrents , due after his Death , and that these Annualrents were truly payed by the Lady , and so could not come in as a Debt upon the Estate . 2dly . The Moveable Debts ought to be satisfied by the Executory , which must first be Exhausted , the Lady her self being Executrix , and so cannot burden the Heirs of Tailzie , or the Estate ; for if they , had been Distrest , they could have craved payment from her , quoad vires inventarij , so that the principal Sums not extending to 40000. Pounds , and the Lands being Bought by Greinock , at the Rental of 4000. Merks , and 20000. Merks being gotten more for the Lands then the Debt , the power of Selling granted to the Lady in the Disposition , can never extend to so vast a difference , albeit a small difference of the price would not be noticed : and lastly it was offered to find a Party , who would take a Wodset of the Lands , in satisfaction of all the Defuncts Debts , so that the Lady cannot , in prejudice of the Heirs of Tailzie Sell , where Wodsetting may do the turn , and the Wodset should contain a Reversion , and no Requisition ; and whereas it might be pretended that the matter was not intire , because the Lands were actually Sold to Greinock , he offered to Consent , and Renunce his Bargain . It was answered , that this Clause de non alienando , being against the nature of Property , was odious , and not to be extended , and the faculty of Selling , or affecting , being suitable to the nature of Property was favourable , and not to be restricted further then the Defuncts own Words , and Termes , who having given full power to his Daughter to Sell , or affect the Lands named , for payment of his Debts , and not having said ( to Sell , or burden so much of the Land as were equivalent to the Debt ; neither having said so much of the Debt , as exceeded his Moveables , or his Moveables being first exhausted ) it is most rational , and to be presumed to be his meaning , that as to his Moveables he did not burden her at all ; and that this part of his Lands he set apart for his Debt , for he understood his Debt to be about the value of it , otherwise he could have set apart less Land , or could have more limited the Faculty 〈◊〉 Disposing ; but the principal Sums of this Debt being 40000. Pounds , and the Rental not being pretended to have been above 4000. Merks , the principal would amount to the value of the Land at 15. years Purchase , and there being unquestionably a latitude to the Feear to Sell at such a Price , as in discretion he thought fit , though he had sold at twelve years purchase , or not under the lowest Rate of Land ; neither could the Buyer be quarrelled , nor the Seller , as incurring the Clause irritant , and therefore the Lady having Sold at a far greater Rate then the ordinar , Greinock and the Town of Glasgow being both dealling for the Land , they to make a Harbour there , and he not to suffer them , in prejudice of his Town , and Harbour in Greinock , there is no reason to exclude the Lady from the benefit of her Bargain , or to necessitat her to quite the same , and give only a Wodset , seing the Clause gives her power both to Sell , and Affect , and does not limit her to either of them .

The Lords Repelled the Defenses , a●d declared that the Lady had warrantably Sold these Lands , and that the principal Sums being so considerable , although the Rental had been more , they were sufficient ▪ and found that the Clause laid no necessity upon her to exhaust the Moveables , and that she might thereby Wodset , or Sell at her pleasure ,

Iames Deanes contra Alexander Bothwel , February 5. 1669.

ALexander Bothwel of Glencorsse being conveened before the Commissars of Edinburgh , for Slandering Iames Deanes Procurator before the Commissars , in calling him a false knave , publickly in the Parliament House , and at the Crosse ; the samine being proven by Witnesses , he was Decerned to stand at the Kirk Door of Glencorsse where both Parties dwelt , and acknowledge his Fault , and to pay 100. pound to the Poor , and 100. pound to the Party . Bothwel Suspends on these Reasons , first , That the Commissars could not ordain him to stand at an Congregation , which is an Ecclesiastical Censure . 2dly , That they could not also Fyne him to the Poor , nor Decern any thing to the Party , but the Expences of Plae , seing there was no other Damnage Lybelled nor proven . 3dly , That the Witnesses were not habile , being the Pursuers own Servants . The Charger opponed the Decreet wherein the Suspender was compearing , and objected nothing against the hability of the Witnesses then , and therefore cannot now quarrel their Testimonies , and that it was most proper for the Commissars to cognosce upon Slander or Defamation , neither was his standing in order to Repentance but in order to restoring the party to his Fame .

The Lords Repelled the Reasons , and Sustained the Decreet in all Points .

Cleiland contra Stevinson . Eodem die .

William Cleiland Charges Iohn Stevinson upon a Bond of 400. Merks , bearing Annualrent , he Suspends on this Reason , that the Charger was owing him more for Victual , being his Tennent , which was now liquidat before this time , but after the Date of this Bond , and craved compensation thereupon , not only from the Date of the liquidation , but from the time the Victualrent was due .

Which the Lords Sustained .

Rule contra Rule , February 6. 1669.

MArgaret Rule having made a Consignation of certain Bonds , and in general of all other Rights , with a Disposition of all her Goods to Umquhile Robert Rule her Brother , who having named Mr. David Rule his Executor , and universal Legator , did upon his Death-bed acknowledge , that his Sisters Disposition was in trust to her own behove , granted upon that consideration , that she being a Bastard , unless she Disponed in her leige poustie , her Means would be Confiscat by her Bastardy , she thereupon pursues the said Mr. David Rule to deliver back her Assignation , with her own Writs . The Defender alleadged the Lybel was no way Relevant ▪ there being nothing Libelled but the Defuncts acknowledgement of a Trust upon Death-bed , and that offered to be proven by Witnesses only , but First , The Trust behoved to be declared by a Declarator , and not thus by an Exhibition . 2dly , Trust is only probabable scripto vel juramento , being a matter of so great importance . 3dly , Some of the Rights Assigned , and Disponed , are Heretable , and nothing done upon Death-bed can prejudge the Defuncts Heir thereof . 4thly , An extrajudicial Confession without Writ , albeit it were acknowledged , hath no effect , for it cannot be known quo animo , such words might have been exprest . The Pursuer answered , that the Trust might be very well Lybelled , with the Exhibition , and albeit the Defuncts Confession would not alone be sufficient to prejudge his Heir , yet it may very well stand as an evidence of Trust , which cannot be astricted to probation by Witnesses , but hath ever been found probable by other evidences , especially where the Person trusted is Dead , and the Pursuer condescends upon these evidences and adminicles of Trust. First , Communis fama . 2dly , The Assignation and Disposition bears no Reservation of the Disponers Liferent , and yet she continued still in Possession , and her Brother ( whom she Entrusted ) never medled , which he would not have done , if the Disposition had been for a Cause Onerous , or to his own behove . 3dly , He did solemnly , in presence of Witnesses above exception , acknowledge the Trust on his Death-bed .

The Lords Sustained the Summons , and would not astrict the Pursuer to prove by Write , or Oath of Party , but ordained Witnesses to be Examined ex officio , anent the evidences and adminicles condescended on by the Pursuer .

Black contra Dawid French ▪ February 9. 1669.

THe Lands of Miln-burn being holden Waird of the Dutchess of Hamiltoun , after Miln burns Death the Duke and Dutchess grants a Gift of the Waird to Mr. ●o●ert Black , who pursued for Mails and Duties ; and likewise David French having Appryzed from Miln burn , and having Charged the Dutchess before Miln-burns Death to Receive him , he pursues the Tennents for Mails and Duties , who Suspend upon double Poynding . In the Competition it was alleadged for the Appryzer , First , That his Appryzing being a Judicial Sentence , did Denude Miln-burn the Vassal , in the same way as if Miln-burn had Resigned in the Dukes Hands , in favours of David French , after which Miln burn was totally Divested , and no Casualty could befall to the Superior by his Death , Ita est that Law hath stated a Decreet of Appryzing in the same Case as an Resignation accepted , for though the Vassal , against whom the Appryzing was led should Die , the Appryzer will summarly upon a Charge obtain himself Infeft , so that the former Vassal was totally Denuded . 2dly , Here not only there is Appryzing , but a Charge against the Superior , which fictione juris is in all points , as if the Appryzer were actually Infeft , and therefore the Appryzer , who first Charges , albeit he in●i●t not to use any further Diligence , is ever preferred to all other Appryzers Infeft after . It was answered for Black the Donator , that he ought to be preferred , because the Superior , who gave his Gi●t , could not want a Vassal , nor loss the Casualty of his Superiority without his own fault , but the Appryzer did not become Vassal , neither by the Appryzing , nor by the Charge , nor was it ever found that the Liferent , or Waird of an Appryzer fell , unless he had been actually Infeft , and it would be of very great disadvantage to Creditors , if the naked Charge should make their Waird to fall , which they may pass from at their pleasure , therefore seing the Appryzer could not be Vassal , the former Vassal behoved to remain Vassal ; and seing the Superior could not have a Waird by the Appryzers Death , he behoved to have it by the former Vassels Death ; and albeit the Charge be ●qulparat to an Infeftment , as to the Competition of Appryzers , whom the Superior may not prefer , but according to their Diligences , yet it is not holden as an Infeftment to any other Case , for thereupon the Appryzer cannot remove the Tennents , neither is the Appryzing equivalent to an Resignation accepted , albeit it being an incompleat legal Diligence , it may be compleated against the Superior after the Vassals Death , yet not so as if the Superior had Received a Resignation from the Appryzer , which is the Superiors voluntar Deed , but there is nothing upon the Appryzing to force him to give Infeftment to the Appryzer , until conform to the Act of Parliament , a years Rent of the Appryzed Lands be offered to him , and therewith a Charter offered to Subscrive , which being done , upon his Delay , Fault , or Contumacy , he may be excluded from the subsequent Casualties , and cannot thereby be gainer , in prejudice of the Appryzer , but otherwi●e without his Fault , he cannot loss the Casualties . It was answered for the Appryzer , that the Appryzing , and Charge did state the Appryzer as Vassal , and there was no inconvenience thereupon to Creditors , more then if they had been actually Infeft . 2dly , Our Statute hath provided contrair to the Common Feudal Customs , that Superiors must Receive Strangers , being Creditors Appryzing , for payment of a years Rent , so that the Superior can have no more but the years Rent , and not the subsequent Waird also , and there being mutual Obligations between the Superior and the Appryzer , introduced by the Statute , viz. that the Superior should Receive the Appryzer , and that the Appryzer should pay to the Superior a years Rent , as in all mutual Obligations , so in these , the Delay of the one Party in performance of his Obligation , doth stop the Execution , and Effect of the other Obligation to him , ay and while he perform , but quando mora purgatur , by performance of the one Party , both Obligations are effectual as a principio , and therefore , albeit the Appryzer had been obliged to pay a years Rent when he were In●eft and did it not the time of the Charge , yet now he offers to do it at the Bar , unde purgatur mora , and the Superior must Receive him in obedience to the Charge , which must be drawen back to the Charge , and the Lords cannot but find the Le●●ers , that is to say the Charge orderly proceeded , neither can there be any fault in the Appryzer , that he did not then offer a years Duty when he Charged ▪ because it was not liquid nor constant what the years Duty was , and therefore he was only obliged to do it after the liquidation , and modification of the Lords ; and lastly he having proceeded as all other Appyzers have done by perpetual Custom , he was in bona fide to acquiesce . It was answered for the Donator , that this former ground holds still good , that the Casualties of his Superiority cannot be lost to him , without his Delay or Fault ; and the Case is no way here as in mutual Obligations , but as in a Conditional Obligation , for the Statute obliges the Superior to Receive the Appryzer , he paying a years Rent , which being per ablativum absolute positum , is ever interpret as Condition , as if it had said , the Superior shall Receive him if he pay a years Rent ; but by the Statue there is no obligation put upon the Appryzer to pay the years Rent , for the payment is in Condition and not in Obligation , and the Appryzer may ever forbear to seek the Infeftment , and yet will obtain Malls and Duties , and so will Possess , and exclude the Superior , both from the Casualities of his Superiority , and his years Rent , therefore by the Statute there is only a Conditional Obligation upon the Superior , to Receive the Appryzer upon payment of a years Rent ; now the nature of all Conditional Obligations is , that pendente conditione & ante purificationem nulla obligatio , so that till that time whatever occurs is freely the Superiors : And albeit the Lords will now , upon offer of a Charter , and the years Duty , give a Sentence , the ordinar Stile whereof , is finding the Letters orderly proceeded , without putting the Appryzer to a new Charge , yet they do not thereby find , that at the beginning the Charge was orderly without the offer , but that now it becomes orderly by the offer , and therefore hath only effect from the offer ▪ and not from the Charge , and prejudges not the Superior of the Waird falling before the offer . 2dly ▪ The Superior at the time of the Charge offered obedience , upon production of a Charter , and a years Duty to the Messenger who Charged him , conform to an Instrument produced , the Appryzer himself not having Appeared . The Appryzer answered , that the Superior ought to have drawen up a Charter , and Suspended , Consigning the Charter in the Clerks Hands in obedience , to b● given up to the Appryzer after payment of the years Rent , conform to the Lords modification ; and it was not enough to offer obedience to a Messenger , or to require a years Rent , which is not liquid but by the Lords Sentence ; and further alleadged that it was lately found , that a Liferent Escheat falling after a Charge , did not exclude the Appryzer , and there can be no Reason , but the same should be in a Waird . It was answered , that no such Practique was produced , nor acknowledged , and that in a Liferent Escheat , the Vassal ( against whom the Appryzing was led ) might collude , and might let himself go year and day at the Horn , of purpose to prejudge the Appryzer , but the Waird falling by his De●th , there is no suspition of collusion , and the Waird is due by the reddendo of the Charter , but the Liferent is only due by an extrinsick Law , and Custom .

The Lords found that the Charge did no● st●●e the Appryzer as Vassal , so that the Waird would have fallen by his Death ; neither did they consider the inconveniency of the Superior , as wanting the Superiorities by both Parties , if he were Contumacious , aut in culpa : But they found that the Superior was not in culpa , or in mora , until the Appryzer presented to him a Charter upon obedience , and offered some Money for his Entry , and Caution for what further the Lords should Decern , and did not find the Superior obliged to require the Vassal so to do , and therefore found the Superior here , not in mora aut : culpa , and found the Waird to belong to him , and preferred the Donator , and declared they would follow it as a Rule in all time coming .

Thomas Cowan contra Young and Reid , Eodem die .

ADam Young having Married his Daughter by the first Marriage , to Thomas Cowan ▪ and given him two thousand Merks of Tocher , in satisfaction of all she could claim ; did by a second Contract of Marriage , provide a thousand Merks to the Heirs of that Marriage , and all his Conquest during the Marriage , after which Contract , he gave a Bond of 400. Pound to his Daughter of the first Marriage , bearing to be payed in parcels as he was able , and after the Bond , he Disponed his Goods and Gear to his Daughter of the second Marriage : Now the Daughter of the first Marriage , pursues the Daughter of the second Marriage to pay the Bond , as she who Intrometted with the Defuncts Goods . The Defender alleadged Absolvitor , because this Bond being granted without an Onerous Cause , after the Provision of the second Contract of Marriage , Providing all the Goods Conquest to the Heirs of the second Marriage , who were thereby their Fathers Creditors , for fulfilling of that Provision , no voluntar D●ed done without a Cause Onerous by their Father , in Favours of his Daughter , of a former Marriage could prejudge them , or burden the Moveables acquired in that Marriage . It was answered , First , That the Provision being to the Heirs of the second Marriage , they being Heirs , could not quarrel , but were obliged to fulfil their Fathers Obligation , whether for a Cause Onerous or not . 2dly , Such Clauses of Conquest are ever understood , as the Conquest is at the Acquirers Death , but does not hinder him any time of his Life to Dispose , or Gift at his pleasure , which if he might do to any Stranger , there is neither Law or Reason to exclude him to do it to his Daughter : And albeit it might be interpret Fraud , if nothing were left to the Daughters of the second Marriage , yet where they have a special Provision , and something also of the Conquest , with this burden , their Father could not be found thereby to Defraud them , or to hinder him to use his Liberty .

Which the Lords found Relevant , and Sustained the Bond.

Buohan contra Taits . February . 11. 1669.

IN Anno 1623. George Tait of Pirn gave a seisine propriis m●nibus to George Tait his eldest Son , and a Bond of that same Date , bearing that he had given Seisine , and obliging him to Warrand the same , Reserving his own Liferent : Thereafter in Anno 1640. he Contracts in Marriage with Ianet Buchan , and for two thousand and five hundreth Merks of Tocher , obliges him to Infeft her in the same Lands of Pi●n , wh●rein his Son was Infeft , whereupon she now pursues Reduction of George Tait youngers Infeftment against his Daughters , upon these Reasons . First , That the Seisine propriis m●nibus , was only the assertion of a Nottar without a Warrand . 2dly , That the Seisine had not four Witnesses . 3dly , That this was a clandestine latent Right , most fraudulent betwixt a Father and his appearand Heir , never having been published , or taken effect by any Possession , and cannot prejudge this Pursuer , who is a most priviledged Creditor , and brought a competent Tocher with her . 4thly , That this being an Infeftment by a Father to his appearand Heir , then in his Family , it was but as the legittime of Children , which is still ambulatory at their Parents Disposal , and so must be affected with this posterior burden of the Fathers Marriage . It was answered to the first , that the Bond of the same Date with the Seisine , acknowledging the same is a sufficient adminicle , and is equivalent , as if the Father had Subscribed the Seisine . To the second , there is no Law requiring ●our Witnesses to a Seisine , for that Act of Parliament is only where a Party Subscribes by a Nottar , but relates not to Nottars Instruments Subscribed by themselves , upon warrands , or adminicles , without which they are not valid with 40. Witnesses , and without which two Witnesses are sufficient . To the third , this Infeftment is no ways Fraudulent , or Latent , seing it is Registrat in the Register of Seisines , and Reserves the Fathers Liferent , whose Possession is the Sons Possession , and cannot be pejudged by a Deed so long posterior thereto . To the last , Infeftments taken to Children by Parents being Registrat by Parents , can never be Recalled .

The Lords Assoilzi●d from all the Reasons of Reduction , and Sustained the Defenders Seisine .

Pot contra Pollock , February 12. 1669.

UMquhile Iohn Pollock having granted a Bond of 5000. Merks to Iames Pollock his second Son of the first Marriage , and he having Adjudged thereupon ; Pot as Assigney by his Wife to her Provision , and the Creditors Debts , having also Appryzed , raises Reduction of Iames. Pollocks Bond , and Adjudication on this Reason , that the said Bond was without a Cause Onerous , given by a Father to a Son , as is clear by the Sons Oath , taken thereupon , and therefore a posterior Debt Lent by Creditors , bona fide to the Father , is in Law preferable thereto . 2dly , This Bond to a Son can be but de natura legittimae having no Cause Onerous , as if it had born for his Portion Natural , and Bairns part : In which Case it is Revockable by the Father , and the Fathers Creditors ( though posterior ) are preferable thereto . 3dly , This Bond is Reduceable , super capite doli , as being a contrivance betwixt a Father and a Son , to insnare Creditors to Lend to the Father , who then drove a great Trade , which must be inferred from these circumstances . First , The Son was fori● familiat and sufficiently provided before . 2dly , The Bond bears no Annualrent , and the Term of payment is after the Fathers Death , and remained ever latent betwixt the Parties , without any thing following thereupon , and these Debts were all Contracted within a very little after this Bond , which was only a year before the Defuncts Death . The Defender answered , that the Reasons are no ways Relevant , for there is neither Law nor Reason to hinder any person to give Bonds or Gifts freely , there being no Impediment the time of the granting , neither hath the Law any regard to posterior Creditors , but in personal Debts , whether for Causes Onerous or not , the first Diligence was ever preferable ; nor was it ever heard that a posterior Onerous Obligation did Reduce , or was preferred to a prior gratuitous obligation , upon that ground that the prior was gratuitous . And to the second , Albeit this Bond were in satisfaction of a Portion Natural , as it is not yet , being Delivered to the Son , who i● forisfamili●t , he can be in no other case then any other person to whom a bond were granted , without an Onerous Cause . As to the third , Dolus non presum●tur , and all machinations being only animi , are only probable scripto vel juramento , and can be inferred by no circumstances . The Pursuer answered , that albeit in dubio dolus aut c●lpa non pre●umitur , yet it is doubtless probable otherwise then by the Oaths of the Parties , whereunto Tru●● is never to be given , in relation to their own shame , contrivance , or fraud , and therefore mat●ers of fact do neces●arly infer , and presume fraud in many cases , and in none more then this , where the Deed was clandestine , and latent betwixt Father and Son , and where the Fathers Estate was thereby rendred insuffi●ient to pay both his D●bt , and the others contracted shortly therea●ter ▪ and if it were sustained that such latent Rights betwixt conjunct persons were valide in prejudice of posterior Creditors , contracting bona fide , and not knowing the same , all Commerce behoved to cease , for every man might give such Bonds to his Children , and continue to Trade , and to borrow Money , and upon the Childrens anterior Bonds be totally excluded . The Defender answered , that our Law by a special Statute , in Anno 1621. having determined the cases of presumptive fraud , and extended the same only to anterior Creditors , without mention of posterior Creditors , the same might be thought to be of purpose omitted , and cannot be extended by the Lords .

The Lords found the matter of fact , and circumstances , alleadged Relevant to infer a presumptive fraud , and contrivance betwixt the Father and the Son , which did insnare the Creditors who continued to Trade , and therefore Reduced the same as to the Creditors , and preferred them , and the Relict in so far as she was a Creditor , but not for any posterior or gratuitous Provision to her , or to her Children , but they did not find the two first grounds Relevant to prefer a posterior onerous obligation to a prior gratuitous , or that this Bond was as a ●egit●ime Revockable ; and the Lords were chiefly moved because of the inconvenience to Creditors , acting bona fide with a person Trading , and repute in a good Condition : And where in eventu his Estate is not sufficient , both to pay his Creditors , and this Bond , for if it had been sufficient for both , they would have come in pa●● passu , having both done Diligence within the year .

Iohn Brown contra Robert Sibbald , Eodem die .

IOhn Brown having taken a Feu of some Aikers of Land , at a great Rent in Victual and Money , pursue Robert Sibbald ( now his Superior ) to hear and see it found and declared , that he might Renunce , and be free of the Feu Duty . The Defender alleadged Absolvitor , because this Feu was by a mutual Con●ract , by which the Vassal had bound him and his Heirs to pay the Feu Duty yearly , and which obligation he could not louse at his pleasure ; for albeit Feues which are proper and gratuirously given without any obligement on the Vassals part , but given by a Charter , or Disposition , as being presumed to be in favorem of the Vassal , he might Renunce the same , nam cuivis licet favori pro se introducto renunciare , but here the Vassal being expresly obliged for the Feu Duty , cannot take off his own obligation , this case being like unto that of a Tack , which being by mutual Contract , cannot be Renunced , though by a Tack only granted and Subscribed by the Setter it may . The Pursuer answered , that he opponed the common opinion of all Feudists , de feudo refutando , wherein there is no exception , whether the Feudal Contract be Subscrived by both Parties , for every Contract must necessarly import the Consent of both Parties , and the acceptance of a Vassal to a Feu by way of Dispo●ition is all one with his express obligation in a mutual Contract . 2dly , Though such a Contract could not be Renunced , yet this Pursuer may Renunce , because by a Back-bond by the Superior , who granted the Feu under his Hand , he has liberty to Renunce when he plea●es . The Defender answered , that this Back-bond not being in corpore juris , nor any part of the Investiture , it was only personal against that Superior who granted the same , but not against the Defender , who is a singular Successor . It was answered , that the mutual Contract not being de natura feudi , but at most importing an obligement not to Renunce the Feu , any personal Deed before this Superiors Right , under the Hand of his Author , is Relevant against him , as well as his Author .

The Lords found the alleadgeances upon the Back-bond Relevant against the Supe●●or , though singular Successor , it being granted of the same Date with the Feudal Contract , and relating to a matter extrinsick to the nature of the Feu , and so suffered the Pursuer to Renunce the same .

Gilbert Mcclellan contra Lady Kirkcudbright , February 13. 1669.

GIlbert Mcclellan being Infeft by the Lord Kirkcudbright in an Annualrent , effeirand to four thousand Merks , out of the Lands of Auchin●lour , thereafter my Lady was Infeft in Property , or an Annualrent out of the Lands , at her pleasure , for her Liferent use ; and after my Ladies Infeftment , my Lord gave a Corroborative Security of the Property of Auchinflour , and stated the four thousand Merks of principal , and the two thousand and five hundreth Merks of Annualrent in one principal , and Infeft him thereupon in Property wherein Gilbert was many years in Possession before my Lords Death : In the Competition betwixt my Lady and him , he craved preference , because he was seven years in Possession . 2dlie , Because his first Right of Annualrent still stands , and was Corroborat ; and therefore , as he would undoubtedly have been preferred to my Lady , for all his Annualrents , for the sum of four thousand merks by his first Infeftment , which is prior to my Ladies , and as an appryzing by poinding of the Ground for these annualrents , though posterior to my Ladies Infeftment , would be drawen back ad suam causam to his Infeftment of annualrent , and be preferred , so my Lord having voluntarly granted-this Corroborative Security to prevent an appryzing , it should work the same effect , as if an appryzing had been then led , and an Infeftment thereupon , which would have accumulat the annualrents then past , and made them bear annualrent in the same manner as this Corroborative security does .

The Lords preferred Gilbert for the whole annualrents of his four thousand Merks , conform to his first Infeftment : but would not Sustain the Corroborative Security , being posterior to my Ladies Infeftment , as if it had been upon an appryzing , to give him annualrent for 2500. merks , then accumulate : but found no moment in his alleadgance of the Possessory Judgement , unless it had been seven years after my Lords death , when my Lady might have preferred her Right , and not contra non valentem agere .

The Creditors of Balmerino and Couper contra my Lady Couper . Februarie 16. 1669.

THe Deceased Lord Cowper having Disponed his Estate to his Lady , some of his Creditors , and some of Balmerino's Creditors , who was his Heir appearand , did raise Reduction of the said Disposition , as done on Death-bed , and before the day of Compearance they give in a Supplication , desiring Witnesses to be Examined , and to remain in retentis , that Cowper had Contracted his Disease , whereof he died before the Subscribing of this Disposition , and that he never went out thereafter , but once to the Kirk and Mercat of Cowper , which times he was supported and fell down Dead , a Swoon , before he was gotten home . It was answered for the Lady Cowper : First . That Witnesses ought not to be Examined until the Relevancy of the Libel were Discust , unless they were old or Valetudinary , or penury of Witnesses , whereas there are here fourty Witnesses ctaved to be Examined , and the coming to Kirk and Mercat being publick Deeds , there would be no hazard of wanting Witnesses . 2dly , The Creditors , or appearand Heir have no interest , unless the Heir were Entered , or they had appryzed , or had a real Right ; neither can the Creditors be prejudged by the Disposition , as being on Death-bed , because they may Reduce the same , as being posterior to their Debts , upon the Act of Parliament 1621. and the reason of Death-bed is only competent to Heirs , and to these having real Rights from the Heir , and not to their personal Creditors .

The Lords ordained the Witnesses to be Examined , to remain in retentis , concerning my Lord Cowpers condition , the time of Subscribing the Disposition , and of his coming abroad ; and allowed my Lady also Witnesses if she pleased , for proving what his condition was at these times , reserving all the Defenses and Alleadgances of either Party in the Cause , for they found that the Creditors of Balmerino , as appearand Heir had interest to Declare that their Debts might by legal Diligences affect the Estate of Cowper , unprejudged by this Disposition , as being made by Cowper on Death-bed , and that the Reduction in so far as might contain such a Declarator , would be Sustained , for no Party can be hindered to Declare any point of Right competent to them , and it was also thought , that though there were many Witnesses called to find out who truely knew the Defuncts condition , yet there might be few , who truly knew the same , and these might be removed out of the way , either by Death , or by Collusion .

Alexander Hamiltoun contra Harper . Eodem die .

UMquhil Iohn Hamiltoun Apothecarie , having purchased a Tenement in Edinburgh , to himself in Liferent , and his Son Alexander in Fee , thereafter he borrowed 1000. merks from Thomas Harper , and gave him a Tack of a Shop in the Tenement , for the Annualrent of the Money . After his Death Alexander his Son used a Warning by Chalking of the Doors by an Officer in the ordinary Form , and he being Removed , Alexander pursues now for the Mails and Duties of the Shop from his Fathers Death , till the Defenders Removal , who alleadged Absolviture , because he bruiked the Tenement by vertue of his Tack , & bona fide possessor facit fructus perceptos suos . It was answered , that the Tack being but granted by a Liferenter , could not Defend after the Liferenters Death , and could not be so much as a colourable Title of his Possession . 2dly , That he could not pretend bona fides● because he was Interrupted by the Warning . It was answered by the Defender , that the Tack was not set to him by Iohn Hamiltoun as Liferenter , nor did he know but he was Feear , being commonly so repute , neither could the Warning put him in mala fide● because there was no Intimation made thereof to him , either Personally , or at his Dwelling-house , but only a Chalking of the Shop-door .

The Lords Sustained the Defense and Duply , and found him free of any Mails or Duties , till Intimation or Citation upon the Pursuers Right : here the Pursuer did not alleadge that the Warning by Chalking of the Shop-door came to the Defenders knowledge , as done by the Pursue .

Sarah Cockburn and Mr. Patrick Gillespie contra Iohn Stewart and the Tennents of Lintone . February 18. 1669.

SArah Cockb●rn being Infeft in Liferent in an Annualrent of 1200. merks yearly , out of the Barony of Lintone , She and Mr. Patrick Gillespie her Husband , insisting for her Annualrent , in Anno 1657. obtained payment from Iohn Stewart , and gave him a power to uplift the same from the Tennents , and delivered to him the Letters of Poinding , to be put in Execution . Thereafter Mr. Patrick obtained a second Decreet against some Wodsetters , whose Rights were posterior to the Annualrent , for the years 1658 , 1659 , and 1660. and upon payment of these three years , did acknowledge payment made of the saids three years Annualrent , and all bygones whereunto he had Right . Mr. Patrick having granted Iohn Stewart a Bond to warrand him anent the year 1657. and that he had given no Discharges that might exclude him . The Tennents of Lintoun Suspends the Charge for the year 1657. upon that Reason , that Mr. Patrick had Discharged the Annualrent for the years 1658 , 1659 , 1660. and all preceeding whereunto he had right : Whereupon Iohn Stewart Charged M. Patrick upon his Bond of Warrandice , who Suspended upon this Reason , that the Discharge could not exclude John Stewart , albeit it bare all preceedings to which he had Right , because when he granted the Discharge , he had no right to the year 1657. which he had received from John Stewart , and given him Warrand , and his Letters to Poind for Mr. Johns Stewarts own use . It was answered , that unless that Order had been intimat , the Right remained with Mr. Patrick , and so his general Discharge extended thereto . It was answered , that albeit Intimation was necessar , as to establish the Right in the Assigneys Person : yet Mr. Patricks Warrand was sufficient to exclude him , at least , the matter of his Right being thereby dubious , the general Discharge cannot be effectual against him , if by the Oaths of the Wodsetters that got the Discharge , it appeared that they paid him not the year 1657. and some of their Oaths being taken , he who paid the Mony for himself , and the rest D●poned , that the year 1657. was not paid , and that there was no Decreet against the Wodsetters for 1657. but only against the Moveable Tennents , to whom the Discharge , containing the said general Clause , was not granted .

The Lords found that in respect of the Oath , the general Discharge extended not to the year 1657. and therefore Suspended the Letters against the said Mr. Patrick upon his Bond of Warrandice , and found the Letters orderly proceeded at Iohn Stewarts Instance , against the moveable Tennents of Lintoun , for the year 1657. The Tennents further alleadged , that since the year 1660. they did produce three Consecutive Discharges from Mr. Patrick , which imports a Liberation of all years preceeding , specially seing Mr. Patrick was never denuded of the year 1657. nor no Intimation made . It was answered , that such a Liberation is but presumptive , presumptione juris , and admits contrary Probation , and is sufficiently taken away by the Oath of the Party , acknowledging that year unpaid● and the Warrand given to Iohn Stewart , to lift it for his own use , before these Discharges .

The Lords Repelled also this Defense upon the three Discharges , in respect of the Reply .

Trinch contra Watson . Eodem die .

John Watson being Curator to Margaret Trinch , and having Contracted her in Marriage with his own Sister Son , there is a Disposition granted by her to the said Iohn Watson , of all her Means , and in the Contract , he Contracts with her 1000. pounds , whereunto the Heirs of the Marriage are to succeed , and failing these , to return to the said Iohn himself , she died before the Marriage , and David Trinch Stationer being Served Heir to her , raises Reduction of the Disposition , and Substitution in the Contract of Marriage , upon two Reasons . First , That albeit the Disposition contain Sums of Money , yet being of the same date with the Contract of Marriage , in which Iohn Watson Contracts 1000. pound with the said Margaret Trinch , which unquestionably has been all that has been gotten for the Disposition , the said Disposition is a part of the Agreement , in relation to the Marriage , and must be understood , as granted in Contemplation of the Marriage , as if it had been Contracted in the Contract of Marriage ; so that the Marriage not having followed , the Disposition is void , as being causa data causanon secuta . 2dly , Both the Disposition and Provision in the Contract , that failing Heirs of the Marriage , the 1000. pound should return to Iohn Watson , were obtained by Fraud and Circumvention , being granted to a Curator , ante reddi●as rationes , by a Person who lately was his Minor , and who was of a weak capacity , Stupide and halfe Deaf , and upon such unequal Terms , her Means being worth 3000. pounds , as appears by a Decreet obtained at her Instance , and all she got being but 1000. pounds , to return to Watson , in case there were no Children , and nothing secured on the Husbands part . The Defender answered to the first , that albeit the Disposition was of the same date with the Contract of Marriage , it did not conclude , that it was in Contemplation of the Marriage , and might be , and truly was an absolute Bargain . As to the Reason of Circumvention , it is not Relevant , although the Terms had been as unequal as they are alleadged , for the said Margaret Trench , might freely Dispose of her own , at her pleasure , and leave it to Iohn Watson , who was her Mothers Brother , if she had no Children , especially seing David Trinch , the nearest on the Fathers side , is but her Goodsires Brothers Oy , and never took notice of her , whereas Iohn Watson Alimented her from her Infancy , and obtained Decreets for her Means , and never received a Groat thereof ; neither was there any inequality betwixt the 1000. pound , and her means , for which , albeit there be a Decreet in absence of a greater sum ; yet there are unquestionable Defalcations , which being Deduced with her Aliment , there will not be 1000. pounds free .

The Lords conceiving the Matter to be very unwarrantable on the Curators part , in taking this Disposition and Substitution , before his Accompts with his Minor were given up , did reduce both the Disposition and Substitution , not only as done in Contemplation of Marriage , but as being presumed fraudulent and unwarrantable .

Mr. Iohn Hay contra the Town of Peebles . February 19. 1669.

MR. Iohn Hay Insisting in his Declarator , that certain Hills Libeled were proper Part and Pertinent of his Lands Libelled , wherein he stands Infeft in Property . It was alleadged for the Town of Peebles , that they do not acknowledge his Right of Property , but they alleadge that they are Infeft by King Iames the second , in their Burgage Lands with the Commonty of Priest-shiels , and likewise by King Iames the fourth , and that Queen Mary having directed a Commission for Perambulation to the Sheriff of Edinburgh , he Perambulate their Commonty , and hath set down Meithes and Marches thereof , which are exprest in their Decreet of Perambulation , within which their Meithes lie , and that in Anno 1621. they have a Charter from King Iames the sixth , of their Burgage and Commonty of Priest-shiels , comprehending expresly thir Hills ; by vertue whereof , they have been in peaceable Possession thereof , as their proper Commonty by Pasturage , Feuel , Fail and Divot , and by debarting all others therefrom . The Pursuer answered , that their Charters was but periculo petentis , the King having formerly granted the Right of thir Lands to his Authors , and the Decreet of Perambulation by the Sheriff of Edinburgh , was a non suo judice , the Lands not being within the Shire , and for any Possession they had , it was not constantly over all the year , but only a while about Lambas of late , and was still interrupted by him and his Authors , and offered him to prove that they have been in immemorial Possession , by Teiling , Sowing and all other Deeds of Property , and that thir Hills cannot be part of their Commonty , there being other Heretors Lands interjected between the same and the Commonty of Priest-shiels , so that the Pursuer ought to be preferred , being in libello , and far more Pregnant and specially alleadging Acts of Property by Tillage , and the Defenders having Declarator depending of their Commonty , and alleadged a Practique at the Instance of Sir George Kinnaird , where he alleadging upon Property more pregnantly , was preferred to an other in Probation , alleadging Pasturage .

The Lords preferred neither Party to Probation , but before answer Ordained a Perambulation to be , and Witnesses adduced , hinc inde , anent the Situation of the Bounds , and either Parties Possession and Interruption .

Lord Elphingstoun contra Lady Quarrel . Eodem die .

THe Lord Elphingstoun pursuing Quarrel in a Tutor Compt anent the Profits of the Coal of Elphingstoun , this Q●ere came in from the Auditors , how the small Articles of uncost should be proven . It was alleadged for Quarrel , that such Articles could be proven no other way but by his Oath , seing it was impossible either to use Witnesses , or for them to remember such small particulars , occurring every day , especially seing it was known to all Coal-masters , that such particulars were ordinarly incident . It was answered for the Lord Elphingstoun , though these Particulars were small , yet they amounted in whole to 2000. merks , and that the Tutors ought to have keeped the Coal-Grieves weekly Books , wherein every particular was set down dayly as they were expeded ▪ which if they were produced , and both the Tutors and Coal-Grieves Oathes were taken thereupon , that they were truly so payed , as they were recently set down , they might be allowed : but no such Book being produced , the Tutor could not give a Compt thereof at random , nor could his Oath in Astruction thereof be received ; because it were impossible for him to remember these small particulars without the Books . It was answered for the Tutor , that during the Dependence of this Process , the Books were lost● which were made up by the Coal Grieves weekly : but that he produced a Book made up of these Books , and was willing to give his Oath that the first Books were lost , and that thir Books , albeit they be not direct Copies of the former Books , yet that they were made up of the former , and did agree in the matter with them , and contained no more then they did .

The Lords refused to Sustain this manner of Probation , but ordained Quarrel to condescend de casu ommissionis , of the first Books , and adduce such Proofs and Evidence thereof as he could , and also to condescend who was the Writer of the latter Books , that he might be Examined how he made up the one from of the other .

Kings Advocat contra Craw. Eodem die .

THe Kings Advocat pursues a Declarator of the Bastardy of one Craw. It was Alleadged for the Defenders , that the Libel was not Relevant , unless it had been condescended who was the Bastards Mother , and offered to be proven , that she was never married to his Father . It was answered , that not being married was a Negative , and proved it self , unless the Defenders condescended upon the Father , and offered to prove married . The Defender answered , if that was Relevant● the most of all Scotland might be declared Bastards , it being impossible after a considerable time to instruct the Solemnizing of a Marriage , but Law and Custom doth require , that at least it must be condescended on and instructed , that the Defunct was holden and reputed Bastard at the time of his Death .

Which the Lords found Relevant .

And it being further alleadged , that there was produced a Legittimation taken by the Bastard from the King , which did import his acknowledgement of being Bastard , and was stronger then being holden and repute Bastard . It was answered , non constat , that the Defunct took this Legittimation , but some other might have done it in his Name , without his warrand .

The Lords found the Legitimation sufficient to Instruct the Bastardy .

It was then alleadged , that the Legitimation Denuded and Excluded , the King not only giving power to the Bastard to make Testament , but to Dispone of his Heretable Rights , even on Death-bed . It was answered , that whatever the Stile of such Gifts be , they are never extended to Heretable Rights , but only to a Faculty , to make Testament , which Bastards want by the Law : but if the Bastard made no Testament , and did Exhaust his Moveables by universal or particular Legacies , the Executor nominat could only have the third , which follows the Office , and the King would have the rest of the Inventar , not Exhausted . 2dlie , All general Declarators being summar , these Debates are only competent in the special Declarator .

The Lords Repelled the Defense hoc loco , and reserved the same to the special Declarator .

Relict of Skink contra Earl of Roxburgh . Eodem die .

UMquhil Cornelius Skink pursues the Earl of Roxburgh upon a Bond , and the Earl having alleadged that the Bond was partly paid by Skinks Intromission with the Earls Pay in Holland , and partly made up of exorbitant Usurary , of 16. per cent Monethly , as appears by a Compt of the same date , with the Bond subscribed by Skink , and whereunto the Bond relates , there was an Act of Litiscontestation in Anno 1659. sustaining the alleadgance as to the Intromission and Usury after the Bond , but repelling the same , as to what preceeded the Bond , and appointed a Compt and Reckoning . Skink being dead , his Relict as Executrix having Transferred the Act , craves now the Compt to proceed conform thereto . The Defender answered , that he ought to be Reponed against the Act , in so far as it Repelled the Alleadgance , upon the Usury preceeding the Bond , as being unjust . The Pursuer answered , that the opponed the Act of Parliament , Confirming the Judicial preceedings in the time of the Usurpation , and specially Ratifying Acts and Interlocutors of the Judges . The Defender answered , that this Act was unwarrantably Extracted , there being a posterior Interlocutor , which is now produced under the hand of the President , at that time , ordaining the Compt to be not only upon the exorbitant Usurary after the Bond , but-also before the same .

The Lords ordained a new Act of Compt and Reckoning to be Extracted , allowing the Defender to be heard upon the exorbitant Usury before the Bond , also before the Auditor , in respect of the said posterior Interlocutor .

Andrew Bruce contra Laird and Ladie Stenhope . February 20. 1669.

ANdrew Bruce Merchant in Edinburgh , pursues the Laird of Stenhope for payment of a continued Tract of Merchant Compts , insert at several times in his Compt Book , as being taken off by Margaret Sinclar , in the name and for the behove of the Laird of Stenhope , upon these Grounds . First , That the Ware was worn and made use of by the Laird of Stenhope and his Lady , and so was converted to their use . 2dlie , That Margaret Sinclar was entrusted by the Laird of Stenhope and his Lady , to take off Ware for them from time to time , as appears by several Missive Letters of theirs to the said Margaret : so that Margaret having taken off the Ware , and being entrusted so to do , they must pay the same . 3dlie , Not only was Margaret Sinclar trusted to take off Merchant Ware in general , but particularly to take off the same from Andrew Bruce , upon these Grounds : First , Because there is produced an Compt in the Pursuers Books , before the Accompts in question , which is not contraverted ; so that Andrew Bruce was Stenhops Merchant , when Margaret Sinclar began to be Imployed . 2dlie , By one of the Ladie Stenhops Letters , it appears that a Satine Petticot and Lace was taken off from Andrew Bruce , by Margaret upon Trust of Stenhope , and the Lady desires that Margaret may endeavour to get the Lace taken back , and their Names put out of the Compt Book . 3dlie , The Laird and Ladies Oathes being taken , ex offi●●o , the Lady acknowledges that she was several times in Andrew Bruces Shop with Margaret Sinclar , and that she was present with Margaret Sinclar , when the last part of the Accompt of 114. pounds was taken off , all which are sufficient Evidences of a Warrand or Commission to Margaret , to take off the Ware in question from the Pursuer . The Defender answered , that none of these Grounds were Relevant to oblige him ; for albeit he acknowledge the Goods to be Converted to his use , there is nothing to make it appear that he had any medling with the Pursuer , but by the Letters written by him and his Lady to Margaret Sinclar , made use of by the Pursuer , it is evident that he only imployed Margaret Sinclar to furnish him upon her Credite , and did prohibite to put him in any Merchants Accompt , saying that he would be only her Debitor and no others , so that it were of most dangerous consequence , if the making use of Good sh●uld infer an obligement to pay the Merchant , whose they were at first , though payment were made to the Person intrusted , as in this case the Letters to Margaret Sinclar bears , that she was paid of what was taken off formerlie by her , and there are severals also subscribed by her Hand for a part of the Particulars contained in these Accompts ; neither can any Trust put upon Margaret Sinclar , to take off Ware in general , Oblige the Defender , unless it had born To take off the same upon his Faith and Credite , and not to take off the same upon Margaret Sinclars own Credite : Neither doth the Circumstances adduced , infer a special Commission , to take off from Andrew Bruce , or prove that he was ordinary Merchant , or so much as that Stenhope knew that the Particulars in the Accompt were taken off upon his Credite , and were put in his Name in the Book , except that which concerns the Petticoat and th● last articles of the 114. pounds , especially seing his Letters prohibits her to put his Name in a Merchants Accompt : and seing Andrew Bruce for several years ▪ never so much as intimate the Accompt to Stenhope , till Margaret Sinclar was dead . The Pursuer answered , that in rem versam , is an unquestionable Obligation in Law , albeit nothing of a Commission were instructed , unless the Defender can alleadge that he made payment to Margaret Sinclar , and proved by her Hand Writ , and not by his own Letters . 2dlie , There is nothing more ordinar , then to take off Ware from Merchants by Taylors and Servants , who cannot be thought to have the Ware of their own , but that they must take them off from some Merchant , and therefore payment should not be made to such Persons , till they produce the Merchants Accompt , and his Discharge , or if it be , and if these Persons interposed pay not the Merchant , as in this case , the loss must not be to the Merchant , but to these who payed to the interposed Persons , upon their hazard , and if this were not , all Merchants would be ruined , for no Persons of quality do immediatly take off from the Merchants themselves .

The Lords found that these Articles in the Accompt , in relation to the Petticoat and the 114. pounds , which were known by the Defender or his Lady , to be taken off in their Name , and put in Andrew Bruce , his Book , were due by them , and that though the same had been paid to Margaret Sinclar , it was upon the Defenders peril , if she paid not the Merchant : They did also find that the Goods being acknowledged to be converted to the Defenders use , they were lyable to the Pursuer , in so far as they proved not they paid Margaret Sinclar , and found the same probable by Margarets Writ , or by Witnesses : but found not that Ground Relevant , that Margaret Sinclar was intrusted generally to take off Ware ; or that the Grounds alleadged did instruct a particular Warrand to take off from the Pursuer ; and therefore did not find the payment made to Margaret Sinclar , which she failed to pay the Merchant , to be upon the Defenders peril , except as to the two parcels of Accompt aforesaid , which the Defenders knew to be in their Name in the Pursuers Book .

Countess of Dundee contra Strait●un . February 24. 1669.

THe Countess of Dundee as Donatrix to her Husbands Escheat , pursues Straitoun for a Sum due to her Husband . The Defender alleadged absolvitor , because that same day this Bond was granted by him to the Earl , a Creditor of the Earls arrested , to whom the Defender had made payment , and obtained his Assignation ; and therefore as Assigney craves compensation and preference as Arrester . It was answered that this Debt being contracted by the late Earl , after he was Rebel , it cannot burden his Escheat , in prejudice of the King and his Donator ; for though Creditors , whose Debts were due before Rebellion , arresting after Rebellion , may be preferred : yet no Debt contracted by the Rebel after Rebellion , can burden his Escheat , neither by arrestment nor compensation .

Which the Lords found Relevant , and preferred the Donatrix , except as to what was due to the Defender by herself , or for Drogs to her Husband , which she was content to allow .

The Earl of Kincardin contra The Laird of Rosyth . Eodem die .

THe Earl of Kincardin pursues the Laird of Rosyth for the Teinds of his Lands , to which the Pursuer has Right . The Defender alleadged , that he had obtained a Decreet of the high Commission for Plantations against the Earl , whereby they Decerned the Earl to Sell and Dispone these Teinds for a price mentioned in the Decreet , being about nine years Purchase thereof , and therefore the Pursuer cannot have Right to the Teinds themselves , but only to the Annualrent of that Sum , which was the price . The Pursuer answered that he opponed the Decreet produced , which did not , de presenti , adjudge the Teinds to the Defender , but Decerned the Pursuer to sell them to him , upon payment of the said price , which can give no Right to the Teinds till the price be payed , or at least offered , which was never done .

The Lords Repelled the Defense in respect of the Reply .

The Earl of Annandail contra Young and other Creditors of Hume● Eodem die .

THe Earl of Annandail having obtained Assignation from Iohn Ioussie to a Sum of Money due by the Earl of Hume , whereupon Inhibition was used Anno. 1634. and shortly thereafter an Appryzing upon which Aunandail was lately infeft . whereupon he now pursues Reduction of the Infeftment granted by the Earl of Hume to Young , as being after his Inhibition , which Inhibition being auterior to the most part of the Debs , Wodsets , and Apprizings of the Estate of Hume , and being supposed to be the leading Case , that the Decision thereon might rule all the rest , many of the Creditors did concur with Young , and produced their Interests , and craved to see the Process . It was answered , that they had no Interest in Youngs Right , and so could not crave a sight of the Process . It was replyed that albeit the Sentence against Young could not directly operate against them , yet indirectly it would , as being a Dicision , and Practique in the like case .

The Lords found this no Interest to stop Process , but allowed any Creditors that pleased to concur in the Dispute . It was then alleadged Absolvitor , because this Assignation , Inhibition , and Apprizing , albeit standing in the Person of the Earl of Annandail , yet it was truely on Trust to the behove of the Earl of Hume , and if to his behove , it did accresce to the Defenders , as having Right from him , and for evidence of the Trust they condescended upon these grounds . First , That the Debt was contracted 35. years since , and no Diligence ever used thereupon till now , except an Apprizing , whereupon no Infeftment was taken till of late , albeit Infeftments were taken of the Estate of Hume , upon many posterior Apprizings , which are now expired , and will exclude this Apprizing . 2dly , The Assignation granted by Iousie to Annandails Father , was immediatly after the Lands of Dunglasse was Sold by the Earl of Hume , to the Laird of Dunglass , by whom Ioussie was payed , as a part of the price , by Sir William Gray , who was then Debitor to Dunglasse , likeas Ioussies Oath being taken ex officio upon his Death-bed , Depones that Sir William Gray payed him the Money , albeit he knew not by whose Means , or to whose use , yet he knew nothing of any payment made by the Earl of Annandails Father● 3dly , This Inhibition and Apprizing was never in Annandails , or his Fathers Possession , but still in the Possession of the Earl of Hume , and his Agents , and still in his Charter Chist . 4dly , The Earl of Annandail took a Security from the Earl of Hume for all Sums due to him , or for which he was Cautioner , wherein there is neither mention nor reservation of this Sum , or Apprizing . 5thly , The Earl of Annandail has consented to many of the Creditors Rights , which he would never have done , if this Apprizing had been to his own behove , thereby preferring others to himself , the Creditors therefore craved Witnesses to be Examined ex officio , upon all these points for clearing of the Trust , which being an obscure contrivance , can be no otherwise probable , all the Actors being now Dead , and is most favourable in the behalf of Creditors , who if this pursute take effect , will be utterly excluded , for if the Inhibition Reduce their Rights , the Pursuers Apprizing supervenient upon that same Sum , is now expired , and irredeemable . The Pursuer answered ; he did declare he would make only use of this Right , for satisfaction of the Debts due to him , and for which he was Cautioner for the Earl of Hume , and was content that Witnesses should be Examined anent the Inhibition , and Apprizings being still in the Possession of the Earl of Hume in his Charter Chist , but not upon any other ground to take away his Assignation and solemne Right , which cannot be taken away by Witnesses , but scripto vel juramento , and most of these presumptions are but weak conjectures , no wayes inferring that Ioussie was payed by the Earl of Humes Means , and the great friendship that was betwixt Annandail and Hume alleviats the same , it being the cause for which Annandail forbore to take Infeftment , or do Diligence , thereby to allarum Humes Creditors , that his Inhibition would always work his preference , and on that same ground did consent to several Creditors Rights , there being enough remaining for him , and which was an evidence that this Right was generally known , and that without it Hume could not give Security .

The Lords ordained Witnesse sex● officio to be Examined upon all the points alleadged for ●learing of the Trust.

The Kings Advocat contra the Earl of Mortoun and Viscount of Grandison , February 29. 1669.

THe Kings Advocat pursues a Reduction of the Rights of the Earldom of Orkney and Zetland , granted by the Deceast King Charles the first , or by this King himself to the Earl of Mortoun , or Viscount of Grandison , and produces a Contract betwixt the King ▪ and the Earl of Mortoun , in Anno 1643. and a Charter following thereupon , whereby the Lands are granted , and Disponed blench , with several extraordina● Priviledg●s , as having right to the Bullion , and other Customs of Goods Imported there ▪ and also a Charter , in Anno 1646. by the King to the said Earl , relating to a Dissolution in the Parliament 1644. containing nova da●tus , and bearing also blench ; there is also produced an Infeftment , granted to the Viscount of Grandison , and after the said Infeftment , a Ratification by the Parliament 1661. In the which Ratification , there is contained a Dissolution of the Earldom of Orkney and Zetland , in favours of Grandison , wherein also the Dissolution , formerly made in favours of Mortoun , in Anno 1644. is particularly Rescinded upon this consideration , that neither the King , nor his Commissioner were present in the Parliament 1644. and that his annexed Property could not be Disponed , nor Dilapidat , without an express a●t of his own Ratified by Parliament . After this Dissolution in favour● of Grandison , the King granted no new Infeftment to Grandison ; The Advocat having holden the production satisfied with the Writs produced ▪ M●●toun and Grandison compeared not at all , and some others having publick Rights from them being called , did also pass from their compearance , and submitted to the Kings favour , and compearance being made for some of the Vassals holding of Mortoun , they were not admitted , because they produced no W●its to instruct there Interest , so the Lords proceeded to Advise the Reasons of Reduction , which were upon these points . First , That by the Law , and several particular Acts of Parl●ament , the Patrimony of the Crown being the Lands , and Customs annexed to the Crown , might not be Disponed by the King , unless the samine ( upon weighty Motives , and Considerations ) had been Dissolved by his Majesty , and the Parliament , and Dissolutions● made after Infeftments are not valide , Parliament 1597. cap. 236. and by the 234. Act of that same Parliament , the annexed Property can not be Se● otherwise , but in Feu Ferm , so that the Earldom of Orkney , being annexed to the Crown , by the annexation produced in Process , and the Contract and Charter , 1643. being before any Dissolution , is absolutely null ; and the Infeftment in Anno 1646. albeit relating to a Dissolution in Anno 1644. yet no such Dissolution is found in the Records ; and though it were , it is Rescinded in the Ratification in favours of Grandison , in the Parliament 1661. upon so weighty a Reason , as the King , or his Commissioner not being present : And because the Parliament 1644. is Rescinded by the Parliament 1661. wherein albeit there be a salvo of privat Rights , yet that cannot reach to the Patrimony of the Crown , especially seing in that same Parliament● 1661. His Majesty having Revocked all Deeds done by Him or his Father since 1637. which by the Laws of the Nation , he might not do to the Derogation of his Honour , or Crown , the Parliament has Ratified the same Revocation , as to all Rights granted since . 1637. Contrair to the Laws , and Acts of Parliament preceeding 1637. and likewise by an express Act of Parliament , it is provided , that no Ratification in Parliament shall prejudge the Crown● or supply a Dissolution , and that none of the Kings Customs ( which are also annexed ) can be effectually Gifted .

The Lords found these Reasons Relevant , and proven , and Reduced all the Rights produced before the Dissolution in Anno 1661. since which there is no Infeftment granted .

Pargilleis contra Pargilleis , February 26. 1669.

UMquhile Abraham Pargilleis having no Children but one Bastard Daughter , Dispones some Lands acquired by him to Abraham Pargilleis , eldest lawful Son of that Daughter . Iohn Pargilleis his Brother Son , and nearest Heir , pursues a Reduction of that Disposition , as being done in lecto , and the Defender alleadged that the Defunct went abroad to Kirk and Mercat thereafter unsupported , and the Pursuer replying that he was supported , and either Party contending for Preference , the one that he walked free of himself , and the other that he was supported .

The Lords considering the advantage to the Party that had the sole Probation , would prefer neither , but before answer ordained Witnesses to be adduced for either Party , concerning the Condition the Defunct was in , as to Sicknesse or Health when he Subscribed the Disposition , and the manner of his going abroad , whether free , or supported : and now the Lords having Advised the Testimonies , by which it was proven that the Defunct was Sick the time of the Subscribing of the Disposition , and that he continued Sick till his Death . It was also proven that he went unsupported a quarter of a Mile when the Seisine was taken , six days after the Disposition , and that after the same he went three times to Calder , and about three quarters of a Mile off , and that he was helped to his Horse , and from his Horse , and that he was helped up Stairs , and down Stairs , but that he walked a foot unsupported in the Mercat of Calder , and up and down from my Lords House ; being three pair of Buts of rising Ground . It occurred to the Lords to consider whether the Sickness proven would have been sufficient , not being ●●orbus sonticus , or in extremis , or whether the presumption of Health sufficient to leige poustie was enough that he came out to Kirk and Mercat , albeit the Sickness remained , and whether the probation of the Sickness remaining could take away that presumption ; and whether his being helped to his Horse , and from his Horse , or up and down Stairs , and his Man holding his Bridle as he Rode to , and returned from Calder , did infer that supportation , which eleids the presumption of Health by going abroad , or whether the going freely on foot ( having only a Staff in his hand the rest of the way ) was sufficient to prove that he went abroad in leige poustie .

The Lords found that the Defuncts going abroad after the Disposition , as is before exprest , was Relevant to eleid the Reasons of Reduction on Death-bed , notwithstanding of the Defuncts being helped up and down Stairs , and to , and from his Horse , and by leading his Bridle , and that notwithstanding that he continued Sickly to his Death .

William Street contra Hume and Bruntfield , Iune 9. 1669.

William Street Merchant at London , having sent down a parcel of Skins to Arthure Lyel his Factor at Edinburgh , Lyel Sells the Skins to Hume and Bruntfield , and takes the Bond for the price thereof , in his own Name , payable to himself , without mention of Street , Lyel being Dead Bankrupt , and Street finding that if he should Confirm the value of the Skins as Executor Creditor to Lyel , the rest of Lyels Creditors would come in with him , and share in this Sum which was the price of his Skins , therefore he raised a Declarator against the nearest of kin of Lyel , that the sum due by Bruntfield and Hume , albeit the Bond was taken in the Name of Lyel , yet the same was for streets Goods , and to Streets behove , and none compearing , he obtains Decreet of Declarator to that effect ; and now he pursues Bruntfield and Hume for payment of the Sum , who alleadged they cannot be in tuto to pay to any but these who represent Lyel , to whom they were Debitors , and therefore the Pursuer must first Confirm as Executor to Lyel ; and as for the Declarator obtained , it was in absence , and they not called , and whenever the Executors Confirms , they cannot exclude them . The Pursuer answered , that he needed not Confirm as Executor to Lyel , because this Debt , albeit in the name of Lyel , yet was not in bonis of Lyel in so far , as it was the price of the Pursuers Skins , which were in the Custody● and Management of Lyel , but never in his Property , but specially , by Lyels Missive produced , he acknowledges the Receipt of the Skins , and that he had Sold them to these Defenders , that he was to take Bond for them ; which is the same Bond , and in his Compt-book produced , he states himself only Debitor to Street for ten pound Sterling , that he had reserved of his Bond , and not for the whole Sum , which therefore must import that the remainder remainded Streets ; and yet for the further assurance of the Defenders , he offered Caution to warrand them . The Defenders answered , that the Pursuer having intrusted Lyel with the Skins , he had followed Lyels faith , and could not quarrel what Lyel had done with any third Party , so that Lyel taking the Bond in his own Name did alter the Condition of the Affair , and stated himself Debitor to Street , and the Merchants Debitors to him , and as he might have Received payment from the Merchants , and applyed the Sum to his own use , so he might Discharge them , and this sum might have been Arrested , and affected for Lyels Debt , and therefore was in bonis of Lyel , and behoved to be Confirmed , and seing the Defenders cannot be secure , they were not obliged to accept of Caution to put themselves to two Actions . The Pursuer answered , that albeit payment made to Lyel would have been sufficient , as being made bona fide , yet if Lyel had Discharged without payment , his Discharge would not have excluded Street the Pursuer , neither would Arrestments for Lyels Debt have excluded him , especially the same having been posterior to the Missive produced .

The Lords Repelled the Defenses , and found the same not to be in bonis of Lyel , nor to be Confirmable as his Goods , but to belong to the Pursuer street ; and seing Street offered Caution to warrand the Defenders , they ordained him to grant the same accordingly .

Countess of Dundee contra Mr. Iames Birsbin , Eodem die .

THe Countess of Dundee being possest in an Annualrent out of the Maines of Dudhop , Anno 1650. and having consented to the Infeftments of other Creditors in the said Mains , in Anno 1659. she is provided to ten Chalder of Victual out of the said Mains , and to certain other Lands , and the provision bears expresly in satisfaction of the Contract of Marriage , and any prior Infeftments , whereupon she pursues a poinding of the Ground . Compearance is made for Mr. Iames Birsbin , who produces an Infeftment of an Annualrent , in Anno 1648. and offers to prove Possession conform , prior to the Ladies Infeftment in Anno 1659 , whereupon she how pursues , and which Infeftment she has accepted in satisfaction of all that can befall to her by her Husbands Death . The Pursuer answered , that she was infest in an Annualrent out of the Mains in Anno 1650. which doth exclude Birsbin , unless he had attained Possession before that time ; and albeit this Infeftment in Anno 1659. being in satisfaction &c. yet that Right whereby she accepts the same , is not in favours of Birsbin , but of other Rights to whom the Lady consented , and not to Birsbins to which she never consented , and therefore it must be limited to be only in so far as concerns these Rights related therein . Birsbin answered , that be the Motive or Narrative what it would , my Lady having simply and absolutely accepted this Infeftment in satisfaction of her former Infeftments , the former Infeftments were thereby extinct in the same way , as if she had Renunced them simply to my Lord , whence there is jus acquisitum to Birsbin , deriving Right from my Lord .

The Lords having considered the last provision , found that albe●t the Narrative related to Rights consented to by my Lady , yet the Dispositive words were absolute , and so did extend to Birsbin . It was also alleadged , that this last security in so far as it bears to be in satisfaction of all others , the acceptance thereof was a Donation betwixt Man and Wife Revockable , and my Lady did now recal it . It was answered , my Lady had Homologat the same after my Lords Death , by pursuing now thereupon , in which it occurred to the Lords , whether my Lady might recal any part of this last provision , and make use of it in so far as it quadrat with the former Infeftments , or whether she might recal it after she had made use of it after her Husbands Death , which not being Debated fully , the Lords did not decide therein .

Evart Loyson contra Laird of Ludquharn and Captain Wilson , Iune 15. 1669.

CAptain Wilson a Privateer , whereof Ludquharn was Owner , having taken Evart Loyson and his ship , obtained the same to be adjudged Prize by the Admiral , as carrying Flax and Hards , which were Counterband ; which Decreet the Strangers Suspend , and raised Reduction upon these Reasons , that this Ship and Goods belonged to one Clepan in Bruges , the King of Spains Subject , and was declared Prize upon no other ground , but because she carried Tow and Hards , which are not Counterband , but are necessary in some quantity in every Ship for Calsing ; and by the Treaty betwixt the King , and the King of Spain , there is an express Article , that though Counterband be deprehended in Spainish Ships , only the Counterband shall be Prize , and not the Ship and Goods . It was answered , that this alleadgeance was competent , and Omitted before the Admiral . It was answered , that these cases with Strangers are to be Ruled by the Law of Nations , and not by peculiar Statutes and Customs .

The Lords reponed the Strangers to their Defenses , as in the first instance , and also allowed the Privateer to insist on any grounds for making of the Ship Prize , which he did not formerly insist on , whereupon the Privateer insisted upon two grounds . First , Because by the Law of Nations , and the Kings Proclamation of War , Allies and Neuters must not make use of the Kings Enemies to sail their Ships , and therefore the Proclamation of War bears expresly , that all Ships shall be seised , bearing any number of Men of the Kings Enemies , and this Ship had the major part of her Company of Hollanders , then the Kings Enemies , as is evident by their own Depositions taken before the Admiral . 2dly , This Ship was not only sailed by Hollanders , but the Ship , or major part thereof , and the Loadning belonged to Hollanders , and any pretext that the same belonged to the King of Spains Subjects is a meer Contrivance , it being most ordinar the time of the War for the Hollanders to Trade under the name and covert of the Flemish , the King of Spains Subjects , which appears in this Case by many evidences . First , Both the Merchant and major part of the sailers , by their own confession are Hollanders , and they have adduced nothing to be a sufficient probation that the whole ship and Goods belonged to Clepan in Bruges ; but on the contrair the Skippers first Testimonie at Linlithgow bears , that this Ship and Goods belongs to Clepan and Revier , which Revier being taken Aboard , acknowledges that he was born in Holland , but says that two or three years before the seisure he dwelt in Gent , and Brussels , under the King of Spain ; and having a Diligence granted to prove his Domicil the time of the War , and Capture , all that he proves , is that in March 1667. he hired a House in Brussels , and began to set up there , and that sometime before he had lived with his Mother in Gent , but proves not how long , or that it was his constant Domicil , for that was an ordinar contrivance for Hollanders to hire Houses in the Spainish Netherlands , and to pretend to be Subjects there , but they being Hollanders at the beginning of the War , concurring , and contributing to the War , albeit they had truely removed tempore belli , they continued to be the Kings Enemies ; much less can their taking a House else where , sufficiently prove that they totally deserted the Hollanders , and concurred not with them in the War , it being easie to have Domicils in diverse places . 2dly , The contrivance is yet more evident , in that the Goods were Shipped by Rivier at Fleck in Holland , and sailing from thence to Copperwil in Norway , and was taken , having no Pass from the King of Spain for this Voyage , but had a pretended Pass from the Duke of York , which albeit it bears relation to the same Ship called Charles the second , yet by the Testimonies of the Witnesses , it is evident to have been granted two years before this Ship was Built , which is an evident cheat ; and for the Pass from the Governour of the Netherlands , it bears but to last for a year , and was expired before this Voyage ; and as for the Pass from the Chamber of Commerce , it was granted for a former Voyage , from Ostend to France , which is clear by the Testimonies , which bear also that there could be no Pass gotten for this Voyage , because this Ship was lying in Fleck , and not in the King of Spains Ports , and so the Loading could not be their lying , and wanted Oath taken thereupon that it belonged not to the Kings Enemies , as is requisite in such Cases . It was answered for the Strangers , to the first ground of Adjudication ▪ that it was no way sufficient . First , Because the King of Spain being an Allie by a perpetual League , his Subjects were not to be regulat by the Kings Proclamations , but by the solemn Treaties betwixt both Kings , which setting down the causes of Seisure , must necessarly import that seisure should be for no other cause then is therein exprest . 2dly , The Articles bear expresly , that any of the Spainish Subjects having a Pass conform to the formula set down in the Articles , should be no further troubled , which formula requires nothing as to what Countrey the Sailers are of , and therefore there can be no seisure upon the account of the Sailers ; for albeit by the Swedish Treaty , the Swedes are allowed to have a Dutch skipper ● 〈◊〉 becoming a sworn Burgess of some Town in Sweden , and he residing there , from whence the Lords have inferred that the Swedes may not sail with Hollanders , and have declared some of them Prize upon that account , yet this cannot be exended to the Spanish Subjects , in whose Treaty there is 〈◊〉 such thing . 3dly , By an Act of the Council of England produced , it appears that his Majesty gave Order that all Flandrian Ships that were taken should be dismist , if there were no other ground of seisure , but that they were sailed by Hollanders , until his Majesty review the Flandrian Concessions , and give further Order , and there is a particular Concession to the Flandrians beside this Treaty , in regard their Language and the Hollanders is one● they should not be seised upon the account of being sailed with Hollanders ; and 〈◊〉 to the other ground , the Passes and Testimonies prove sufficiently that the Goods belong to Clepan in Bruges , and there is but one Testimony of the Skipper , that Revier is Owner , which Testimony was taken at Linlithgow , the Clerk or Interpreter having Interest in the Caper , and the Skippers Testimony being again taken by the Admiral at Leith , says nothing of Revier , and albeit it did he is but one Witness , and any Hollander deserting Holland the time of the War , ceases to be an Enemie , because the King invited such as would desert his Enemies , to come live in England● so that it is both his Majesties Interest and Intention in any way to weake● his Enemies , by causing their Subjects desert them . It was answered for the Privateer , that the Strangers could not pretend Right to the Spainish Treaty , seing they wanted a Pass conform thereto , and that it could not be inferred negative from the Spainish Treaty , that seisures should only be for the Causes therein exprest , there being no such Article in the Treaty , and the Law of Nations , and the Kings Proclamation being the Rule of War the Treaties with Allies do only explain or restrain the same , and gives exceptions from the Rules ▪ for instance the Spainish Treaty makes Counterband not to in●er seasure of the Ship and Goods , which is valide , though a Priviledge derogator to the Law of Nations , but speakes nothing whether the carrying of Enemies Goods shall make the Ship Prize , so that that Priviledge , not being granted by the Articles , the Law of Nations takes place , and the Ship may be declared Prize ; likeas in the case of Overvails Ship Decided in the last Session , all that is there alieadged , being here alleadged , Overvail not instructing any Flandrian Concession to sail with Hollanders , his Ship was Declared Prize upon that same very ground , and the Testimony of the Skipper at Linlithgow is most unsuspect , it being taken before the Skipper was otherwise prompted to Depone , neither had the Clerk any interest , but the most that can be pretended is that he had relation to some of the Owners , which signifies nothing , and the Skipper by his Office , being the person Commissionat by the Owners , who by his Office , may Sell or Burden the Ship , without a special Commission , his Oath makes a full probation against the Owners who Intrusted him , especially here where the Merchant , and most part of the Company by their own confession are Hollanders , which proves sufficiently for the Privateer , unless they instruct that the Ship and Goods belonged to free men , and them only , which they have not done evidently and surely , by all that they have produced , but the Skipper ( who is the main Man to be trusted ) is contrary , therefore it may be , and is presumed to be a Contrivance , to carry on the Trade of de Rivier a Hollander , under the name of Clepa● in Bruges his Brother in Law .

The Lords upon the whole matter declared the Ship and Goods Prize , but● found not that the want of a Passe alone was sufficient , neither did they put it to the Vote by it self , whether the sailing by Hollanders alone would have been sufficient , notwithstanding of the Treaty , and the Kings Order , Extracted out of the Council of England , which though it related not to Scotland , some of the Lords thought it was sufficient , unless it did appear that the King had given contrair Order , others thought not , unlesse that Concession could be otherwise showen . Thereafter the Srangers offered to prove positively that there was a Concession , which the Lords would not Sustain , in regard that the last Session , the first of Iune , was given ( before answer ) to prove the Concession , and the Term was now circumduced for not proving thereof .

Scot contra Langtoun , Iune 19. 1669.

IOhn Graham of Gillesby having Wodset certain Lands to Iames Langtoun , he did thereafter ( with consent of Earl of Annandail Superior ) Eike twelve hundreth Merks to the Reversion , and the Earl Ratified the former Wodset , and Graham with his Consent of new Disponed again the Lands for the Sums in the first Wodset and Eike , and Added some other Clauses , the first Wodset was before the Act between Debitor and Creditor , and by vertue thereof the Wodsetter was in Possession ; the second Wodset was after the said Act , the Superior Consented only to the second wodset , and of the same Date gave a Gift of Grahams Liferent to Robert Scot , whereupon Robert having obtained general Declarator , pursues now special Declarator for the Mails and Duties of the Wodset Lands , as falling under the Liferent of Graham , the Granter of the Wodset . It was alleadged for Langtoun the Wodsetter , that he ought to be preferred to the Donator , not only for the first Wodset , which was constitute before the Rebellion , but for the second Wodset , comprehending the Bike , because the Superior by his Consent to the second Wodset , without any Reservation , had Communicat all Right in his Person ; and consequently the Liferent Escheat of Graham ; the granter of the Wodset , in the same manner as if he had given the Wodsetter a Gift thereof , and so no Gift , no being anterior to the other could prejudge the Wodsetter . It was answered for Scot the Donator , that the alleadgeance is no way Relevant to exclude his Gift , unlesse the Wodsetter could alleadge a Deed Denuding the Superior , anterior to the Pursuers Gift ; but here the Superiors Consent is not anterior , but of the same days Date , and may be posterior , and therefore the Gift which is the habilis modus , must be preferred unto the Superiors Consent to the Wodset , which is but indirect , and consequential to infer the Right , as Liferent , at least both must be conjoined , and have equal Right , as done simul & semel . It was answered for the Wodsetter , that the Superiors Gift must not be preferred to the Consent , though of the same Date , because he was then in Possession of the Wodset Lands , and needed no Declarator , and the Gift is but imperfect , until a general Declarator , which is the Intimation thereof , no Declarator being requisite to the consent of the Superiour to the Wodsetter , and so is preferable .

The Lords preferred the Wodsetter .

It was further alleadged for the Donator , that the Wodsetter must restrict himself to his Annualrent , and be countable to him for the superplus , seing now he makes an offer to find the Wodsetter Caution , and so he must either quite his Possession , or restrict conform to the Act betwixt Debitor and Creditor . The Wodsetter answered , that his second Wodset bearing , not only a Ratification of the first Wodset in all points , but a Disposition of the same Lands , falls not within that Clause of the said Act of Parliament , which Regulates only Wodsets prior to that Act ; and the new Disposition makes the old Wodset as extinct and innovat . The Donator answered , that there being a jus quaesitum , conform to the Act , as to the former Wodset , the posterior Ratification cannot derogat therefrom , or take it away , unless it had been exprest , and in meritis causa , it was alleadged that the Wodsetter had near the double of his Annualrent .

The Lords preferred the Donator as to the Superplus , more nor the Annualrent of the first Wodset , and ordained the Wodsetter to Restrict .

The Wodsetter further alleadged , that the Gift was Antidated and Simulate to the Rebels behove , and so accresced to the Wodsetter . Which the Lords Sustained , and found the Simulation probable by the Oath of the Superiour , and the Witnesses insert in the Gift .

Hamiltoun of Corse contra Hamiltoun and Viscount of Frendraught . Iune 22. 1669.

WIshart of Cowbardie having Wodset his Lands of Bogheads and others , to George Hamiltoun , from whom the Viscount of Frendraught has now Right , he did thereafter sell the same Lands to Iohn Hamiltoun of Corse , who took the Gift of Wisharts Fischeat , and having thereupon obtained general Declarator , pursues now in a special Declarator for the Mails and Duties of the Wodset Lands . Compears George Hamiltoun and the Viscount of Frendraught , and produced the Wodset Right , and alleadged that the Liferent Right cannot reach the Wodset Lands , because the Gift is Simulate to the behove of Wishart the Rebel and common Author , and so is jus supervenient author● , accrescens successori , to defend this Wodset Right , and condescends that it is Simulate , in so far as it is offered to be proven , that Wishart the common Author did allow to the Donator in the price of the Lands , not only the sum whereupon the Horning procceded , but also the Expences of the Gift ; so that it is purchased by the Rebels Means , whence the Law presumes it to be to his behove . It was answered , that this Condescendence cannot infer Simulation to the Rebels behove , because it was lawful to Hamiltoun of Corse , finding that his Right was not secure to fortifie the same by this Gift , and in his account of the price of the Land upon the Warrandice , he might require Retention , not only of the sum in the Horning ; but of his Expenses in necessarly purchasing the Gift , and might apply the same for the Security of the Lands bought from the Rebel only , which is to his own behove : but if he were extending the Gift to other Lands of the Rebels , that might be presumed to the Rebels behove , because the Donator had no anterior interest of his own to these Lands . It was answered , that if the Rebel had given the Mony to purchase the Right , before it was purchased , it would infer unquestionable Simulation ; and it is wholly equivalent , that having then the Rebels Mony in his Hand , the Rebel ex post facte , allowed the Expences of the Gift . 2dly , Albeit such an allowance ex post facto , would not be sufficient , where the Donator acquired the Right to the Lands bona fide , and then ex necessitate , behoved to purchase the Gift to maintain his Right : but here the Donator was in pessima fide , and most unfavourable , because if need beis , it is offered to be proven by his Oath or Writ , that he knew of George Hamiltouns Right , and that the same was compleat before he bought from the common Author , and so is particeps frandi● with his Author , in granting double Rights contrary to Law : and therefore the presumption of Simulation and Fraud , ought to proceed against him upon the more light Evidence .

The Lords found the Ground of Simulation not Relevant , upon taking allowance from the Rebel of the price , if it was done for the maintaining of a Right bona fide acquired : but found that it was sufficient to infer Simulation , if the Right was mala fide acquired ; and that the Donator , at , or before he bought the Land , knew of the other Parties Right .

Pearson of Balmadies contra The Town of Montross . Iune 23. 1669.

PEarson of Balmadies being Collector of two of ten , and the sixteen penny imposed by Parliament anno 1633. and the Magistrates of the Town of Montross , having Written a Letter to him , promising Compt and Payment in anno 1637. Some few dayes after the Letter , he made Compt with Orbistoun , general Collector , and Charged himself with the whole Taxation of Montross , as received . And in anno 1654. obtains a Decreet against the then Magistrates , holding them as confest upon the quantities of Taxation of their Burgh . They now Suspend on this Reason , that the Decreet was in absence , and the Magistrates only holden as confest , and they are now content to Depone , that they never had any Stent Roll of the said Taxation ; and by the Chargers Compt produced , he acknowledges the proportion of Montross received . And further alleadges , that there being neither Warrand from King nor Parliament , there should be no Charge or Pursuit Sustained for these old Taxations , especially of Mony , where the most part of the Monyed Persons lyable then , are now insolvent ; and the Town cannot get their Relief . But as for the Land Taxation , the King has given Warrand to lift it , and it is still secure , being debitum fundi . The Charger answered , that he being neighbour to the Town , did upon their desire , delay to distress them , and held Compt for them , as appears by their Letters produced : and therefore it will not infer that Charges may be used upon the Act of Parliament only , unless Parties had given Writ therefore , and the Magistrates were obliged by the Act of Parliament , to have uplifted the Taxation debito tempore , and payed it to the Collectors ; and it must be presumed they did so , or if they did not , it was their fault , in the Discussing of this Cause . It occurred to the Lords , that this Taxation not being imposed upon the Towns Common-good , but upon the Inhabitants severally , for their Mony , and that the Magistrates were not countable to the Town for the Taxation of Mony , nor were they lyable for their Magistrates , who had not this power of Collection by their Office , but by the Commission of Parliament therefore .

The Lords found the Town and present Magistrates not lyable , but prejudice to the Pursuer to insist aganist the then Magistrates , their Heirs and Executors .

Robert Fairie contra Iames Inglis . Eodem die .

RObert Fairie having Charged Iames Inglis younger of Mordistoun for 1000. merks due by Bond , he did Suspend and raised Reduction upon Minority , Lesion and Circumvention , Litiscontestation was made upon the Reason of Minority , and the Term was Circumduced ; and he Decerned . He Suspends again , and insists upon the second Reason of Reduction , upon Circumvention , and qualified it thus , That albeit the Bond bear , borrowed Money , yet he offers to prove by Fairies Oath , that the true Cause was the Boot between a Horse and a Mare interchanged betwixt the Parties : and albeit the Suspender gave as good as he got , yet he was induced to give this Bond of 1000. merks to Boot , so that he is lesed ultra dimidium justi pretij , which in Law is a sufficient Ground alone to dissolve the Bargain , and restore either Party , actione redibitoria & quanti minoris : and next in so gross inequality , ex re praesumitur dolus . The Charger answered , that the Reason is no way Relevant , because our Law and Custom acknowledges not that Ground of the Civil Law , of annulling Bargains , made without Cheat or Fraud upon the inequality of the Price ; neither can there be any Fraud inferred , upon the account of the Price of an Horse , which is not quantitas but corpus , and has not a common Rate , but is regulat secundum praetium affectionis , and now the Horse and the Mare not being to be shown in the condition they were in ; the Suspender cannot recal the Bargain . 2dly , The Reason ought to be Repelled , because by a Ticket apart with the same Date of the Bond , the Suspender declares upon his Soul and Conscience , that he should never Impugn the Bond ; and thereafter by his second Bond produced , he Ratifies the same , and passes from any Revocation thereof , or quarrel against the same . The Suspender answered , that he was content to refer to the Chargers own Oath , whether in the Chargers own esteem of the Rate , the Suspender was not lesed above the half : and as for the two Tickets , the first was obtained when he was Minor , and both laborant eodem vitio , the inequality still remaining without satisfaction .

The Lords in respect of the Tickets , and Ratification after Majority , and that there was no Fraud or Deceit qualified , they repelled the Reasons and Decerned .

Fairie contra Inglis . Iune 24. 1669.

AT the Reporting of the former Interlocutor yesterday , Fairie against Inglis . It was further alleadged for Inglis , that he offered him to prove by Fairies Oath , that he was Circumveened , in granting of the Ratification , because Fairie upon that same Design drank him drunk .

Which Alleadgance the Lords Repelled in respect of the Bond and first Ticket , wherein he Declared upon his Soul and Conscience never to come in the contrary .

Steuart of Gairntilly contra Sir William Steuart Eodem die .

SIr William Steuart having granted a Bond upon thir Terms , that whereas he had obtained Disposition of the Lands of Innernytie , partly by his Fathers Means , and partly by his own , and partly for granting the Bond underwritten ; and therefore he obliges himself to Infeft Iean Steuart his Sister and the Heirs of her Body , which failzying , ocertain Persons Substitute , his Brethren and Nephews , and a part of it t● return to himself , and obliges himself to pay the Annualrent yearly to the said Iean , and the Heirs of her Body , and other Heirs of Tailzie foresaid , during the not Redemption of the said Annualrent , then there is insert a Reversion of the Annualrent , from the said Jean and her foresaids , by the said Sir William upon the payment of 20000. Merks , and then a Clause of Requisition , that if Jean after her Marriage desire the Money , she or her foresaids might require the same to be paid after her Fathers Death , and then a Clause that the said sum of 20000. should not be payable till five years after her Fathers Death , and after her own Marriage . The said Jean Assigns this Bond to her Brother Sir Thomas , and he Charges Sir William , who , and some of the other Substitutes Suspends on these Reasons : First , That by the Conception of the Bond , it was clear the principal Sum was not payable till Jeans Marriage , and she being Dead unmarried , is not now payable at all , whereupon the Charger insisted for the bygone Annualrents , and for granting an Infeftment of annualrent to him as Assigney , conform to the Bond : The Suspenders Reasons against the annualrent , were first , That this being an annualrent accessory to a principal Sum , ablato principali tollitur accessorium , so that the principal Sum being now not due to any by Ieans Death , Dying unmarried , the annualrent also must cease from her Death . 2dly , The annualrent is conceived payable to Iean and her Heirs ▪ but no mention of Assigneys . 3dly , Albeit ordinarly in such Obligations or Infeftments following thereon , the first Person is Feear , and the Substitutes are but Heirs , who cannot come against the Feears Deed by Assignation , or otherwayes ; yet where the Obligation is gratuitous , and proceeds not upon sums of Mony belonging to the Creditor : but upon the free Gift of a Parent bestowing the Sum , there the Substitution implys a Substitution and Obligation upon the first Person , and the Heirs of their Body , to do no voluntar Deed to evacuat the Substitution ; so that albeit a Creditor or Successor , for a Cause onerous , might exclude the Substitutes ; yet another Heir appointed by the first person or a Donator , or gratuitous Assigney cannot evacuat the Tailzie , and exclude the Substitutes , because in such Contracts , uberrima fidei , the mind of the Party who Gifted , and freely granted the sum , is chiefly to be considered : so that it cannot be thought to be old Gairntillies mind , that his Daughter might Change the Substitution , and elude the Conditions of the Bond , for the Suspending of the Requisition of the principal Sum , till Iean were married , must import that his meaning was , to give her the Annualrent only till that time , and the principal Sum to be a Tocher if she married , which was to no purpose , if the Annualrent remained perpetual ; for then the Heretor would certainly Redeem to purge his Land , as he had done , and the Sums Consigned would belong to the Assigney , and the Clause Suspending the payment thereof , if Iean married not , signified nothing , sed verba sumenda sunt cum effectu ; and the meaning of the Parties , and conception of the Condition Suspensive must be preserved . The Charger answered , that he opponed the Bond , wherein , without all question Jean was Feear , and the Substitutes being the Heirs of Tailzie , cannot quarrel her Deed , but are bound as Representing her to fulfil the same ; and albeit Ieans Assigneys be not exprest , yet they are ever included , where they are not expresly excluded ; neither is this Annualrent stated as a meer accessory , because the Requisition of the principal Sum may be Discharged , or may become by the Suspensive Clause ineffectual , as now it does ; and yet the Obligement or Infeftment of Annualrent remains a perpetual Right , though Redeemable at the Debitors option ; neither is there by Law or Custom any difference or exception , whether the Annualrent be gratuitous , or for a Cause onerous : and for the meaning of the Father , procurer of the Bond , it must be understood as it is exprest , only to exclude the lifting of the principal Sum by Iean , upon the Clause of Requisition , if she were not married : and if his mind had been otherways , it had been easie to have adjected a restrictive Clause , or in stead of the Substitution , to have set down a Provision , that if Iean died unmarried , the annualrent should belong to her Brothers and Sisters nominat : but this being an ordinar single Substitution , hath neither expresly nor implicitely any Condition or Obligation upon the Feear , not to Dispone .

The Lords Repelled the Reasons of Suspension , and found Iean to be Feear of the Annualrent , and that she might assign the same , and that the Substitutes could not quarrel the same .

Kennedy and Muir contra Iaffray . Eodem die .

MR. Iohn Iaffray being presented to the Parsonage and Viccarage , Teinds of Maybol , and having obtained Decreet conform , there is a double Poinding raised by the Heretors and Possessors of Fishartoun : Mr. Iohn Iaffray craves preference as Parson , and so having Right to the whole Benefice : the other party called is Grange Kennedy , and Muire of Mank-wood , who craved preference on this Ground , that the Teinds of Maybol was of old , a part of the Patrimony of the Nunry of North-Berwick , and the Prioress for the time , with the consent of one Nune , who was then only alive , set a Tack thereof , to Thomas Kennedy of Bargany , and Gilbert Kennedy his Son , and to Gilberts first Heir , and after all their Deaths for three nineteen years : The Prioress having thereafter , at the Kings Desire , Resigned the Teinds of Maybol to be a Parsonage , did in her Resignation , except the Tack set to Barganie , which was alwayes cled with Possession , and was assigned to David Kennedy of Ballimore , and Transferred to Mr. Iohn Hutcheson , and by him to Kennedy and Muir , as to the Teinds of Fishartoun , whereupon they crave preference . It was answered for Iaffray , that by their Right produced , there is related another Tack granted by Mr. James Bonar , Parson of Maybol for the time , to the Lord Ochiltrie , which came by progress in the Person of Ballimore , having then in his Person , Barganies Tack , so that Ballimores taking that Right , acknowledges the Parsons Right , and passes from his former Tack , unless in his Right he had expresly reserved his former Tack ; so that neither Ballimore nor these Assigneys can now make use of Barganies Tack , it being a certain Ground , that the taking of a posterior Tack , having a greater Tack Duty , or a shorter Term evacuats a prior Tack in that same Person . It was answered , that the alleadgance is no wayes Relevant , Ballimore not having immediatly taken a second Tack , but only finding another Tack by progress in the Person of the Lord Binnie , to remove that impediment , and shun his trouble , he purchased Right thereto , but never brooked thereby .

The Lords found that the taking Right to another Tack , did not infer a passing from the former Tack , unless it were proven , that the posterior Tack had a greater Duty , or shorter durance , and that Ballimore had paid the said greater Duty to Bonar , or bruiked expresly by the later Tack .

June 29. 1669.

CAptain having taken at Sea , obtained him to be declared Pryze , upon this ground , that he carried Clapboard , which is expresly mentioned as Counterband in the Commission of the Admiral of Scotland , given to the Caper , and was the same Stile with the Commission Recorded in the Books of Admirality , given in the time of War , in the year 1628. The Strangers raised Reduction of the Admirals Decreet , on this Reason , that Clapboard being a general Name , comprehending many kinds of Boards , that Clapboard could be only understood Counterband , which had not a promiscuous use in Peace and War , but was instrumentum bellicum , carried by the Kings Allies to his Enemies , to be Sold to them for assisting of the War , which this Loading could not be , because it consisted all of Knappel , cutted all at three Foot and an half length , the proper use whereof is for Barrelis , and is no wayes instrumentum bellicum .

The Lords having given Commission to some of their number to visite the Knappel , and to Examine Sea-wrights , whereupon they did Examine a number , whether this Timber in question was useful for War or Shipping , and most Deponed , that it was not , and some Deponed , that it might be made use of to be Pins or Tubs ; but that it was not ordinarly made use of for Shipping , but common Oak , which was far cheaper .

The Lords did also before answer , ordain either Party to adduce such Testificats and Evidences , as they could from the Admiralties of Neighbouring Nations , what was the Custom of Nations , whether upon such Timber as this , the Ships of Neuters or Allies were made Prize .

The strangers produced several Testificats ▪ one from the Custom-House of Amsterdame , bearing , that such Timber was not accounted Counterband in Holland , and one from the Spanish Admiralty at Ostend , bearing , that they knew not that by their Custom , and the Custom of other Admiralties such Timber was Counterband , one from a Deputy , who served in the French Admiralty at Dunkirk , declaring that in that Admiralty , such Timber was not accounted Counterband ; one from the Kings Auctorney , and another Lawer , who served in the Court of Admiralty of England , bearing , that during the War , none had been declared Prize upon that account . The Privateer produced no Testificats , but alleadged that there ought no respect to be had to the Testificats produced , it being easie to impetrat such , and there should a Commission been direct by the Lords , to the several Chief Admiralties of the Neighbouring Nations , to express what was their Custom in this Point .

Notwithstanding the Lords found the Ship Prize , as carrying this Clapboard , being contained in the Admirals Commission , a great part of the most able of the Lords being of the contrary Judgement .

Earl of Argile contra His Vassals . Iune 30. 1669.

THe Earl of Argile being Donator to the Forefaulture of the late Marquess of Argile , his Father , Pursues an Improbation of the Vassals Rights , and craved Certification . The Vassals alleadged no Certification against their Rights , because any Right the Earl had was qualified by the Kings Gift , that he should only have Lands paying 15000. pounds , and that the rest should be conveyed to the Creditors , and the Creditors thereupon claiming the Property of the Vassals , as falling within the Forefaulture , His Majesty Wrot a Letter , Declaring that it was not His meaning by the Gift , that the Creditors should have any more Lands conveyed to them then the remainder of the Property belonging to the late Marquess , over and above this Earls part , and that the Superiority should entirely belong to the Earl and his Successors , by which His Majesties Mind and Pleasure is evident , that the Earl should only have the Superiority , and not the Property of the Vassals . 2dly , The Vassals offered to produce what Rights they had flowing from the House of Argile , but there could be no Certification , as to what they had not , in respect of the Troubles , especially no Certification , for want of Confirmation of the Vassals Rights by the King , because several of the Vassals continued Loyal to His Majesty , during all the Troubles , and some of them losed their lives in His Service , opposing the said late Marquess himself : So that it can never be thought to be His Majesties purpose or pleasure , so to restore this Earl the Marquess Heir appearand , as thereby to Forefault the Vassals , who adhered to His Majesty , and who durst not in time of these Troubles have fought Confirmations , His Majesties Exchequer being then in the manadgement of these who were in opposition to Him . It was answered for the Pursuer to the first , that neither by the Pursuers Gift from His Majesty , nor by the foresaid Letter , there is nothing granted to the Vassals in opposition to the Earls Right , but in opposition to the Creditors , that they should have no hand in the Vassals Estates . Likeas , His Majesty by His last Ratification and Charter under the Great Seal produced , hath most distinctly and clearly exprest His meaning and pleasure , that by the foresaid Gift or Letter , His Majesty did only Exclude the Creditors from the Estates of the Vassals , but thereby Declares , that not only the Superiority and Casualities thereof should belong to the Earl , but the Property of all these who had not sufficient Rights from the House of Argile , and Confirmations from the King , and that the Earl might Intent all Actions competent of Law , for that effect . It was answered for the Vassals , that if their true condition and adherence to His Majesty , had been understood His Majesty would not so have Declared , and that post jus quaesitum to them by the Kings Gift and Letter , no posterior ▪ Declaration impetrat from His Majesty , should prejudge them , at the least , they humbly craved that the Lords according to their former Interlocutor , would Represent the Case to His Majesty , that His Pleasure might be known , and that His Majesty might interpose with my Lord Argile , not to insist against the Vassals , who had been Loyal . It was answered for the Earl , that he had given no just grounds to his Vassals to expect , that though they were in his power , that he would destroy them , and annul their Rights : and seing His Majesty had fully and absolutely entrusted them to him , they ought to have rested upon His Kindness and Generosity , and not to have made all this Clamour , where they have no Legal Defense , it being no strange nor new thing , for the King to give Gifts of Forefaulture without any Reservation of Vassals , who had no Confirmation from the King , yea many times without any Reservation of the Forefault Persons Debt , and His Majesty has lately so done to the Marquess of Huntly , to whom he gave the Estate of Huntly , without Reservation , either to Vassals or Creditors , and that upon the Forfaulture of the Marquess of Argile , who had Right to , and was in Possession of the Estate of Huntly for vast sums of Mony , and the Earl of Argile has the Gift of the remainder of his Fathers Estate , with the burden of more Debt , then the proper Debt of the House of Argile would have been , over and above the Debts undertaken for the House of Huntly . 2dly , Whatever the Vassals might plead in Point of Favour : yet they do not pretend to a Defense in Law . And the Lords being Judges of the Law , ought not to stop the Course thereof , upon the Insinuations of any Party ; otherwayes they may deny the Course of Law to any of the Leidges , when they please , upon the account that they think the Law hard , or rigorous , or the Kings grants made conform thereto ; and whatsoever the Lords might do in the dubious Interpretation of a Treaty of Peace , to know the Kings meaning ; yet in claris ●on est locus conjecturis , nothing can be clearer then the Kings meaning , under His Great Seal , and all the Defenders can pretend , is Favour , which is no Point of Right , nor legal Defense .

The Lords granted Certification e●n●ra non producta , conditionally , that what the Vassals should produce betwixt and the tenth of November , should be received ; and left it to the Vassals in the mean time , if they thought fit to make Address to the King , that he might interpose with the Earl in their Favours , or to Debate any thing they thought fit , when the Earl insisted for Reduction of their Rights , for want of Confirmations , or for Mails and Duties .

Agnew contra Tennents of Dronlaw . Eodem die .

AGnem having Appryzed the Lands of Dronlaw from Mr. Robert Hay Advocat , as Cautioner for the Earl of Buchan , to the behove of the Earl of Kinghorn , pursues the Tennents for Removing , who alleadged Absolviture , because the Tennents were Tennents by payment of Mail and Duty to the Liferenter , Mr. Robert Hayes Mother , and she is not warned nor called . The Pursuer answered , that the Liferenter dyed before the Term , and that he was content , that the Tennents should be Decerned to Remove but at the next Term of Whitsonday .

Yet the Lords Sustained the Defense , seing the Liferenter was living the time of the Warning .

Farquhar contra Magistr●tes of Elgin . Iuly 2. 1669.

FArquhar having caused a Messenger Charge the Magistrates of Elgin to take my Lord Lovat , and the Baillies being together upon the Street , about eight or nine a Clock in the Morning , the Messenger , with several other Persons present , Charged them to go into an House near by , which they designed to them , and to take Lovat , being then in Bed , and the Messenger offered to go with them , and enter first , yet the Bailies did not obey , but said they would go at their conveniency , when they had conveened their Neighbours to assist ; there is an Execution , and Instrument upon the back of the Caption , to the effect foresaid produced ; whereupon Farquhar pursues the Magistrates for Payment of the Debt contained in the Caption . The Defenders alleadged Absolviture : First , Because they were no further obliged but to conveen the Neighbours of the Town , and send them with the Messenger to assist , which they offered to do . 2dly , Albeit themselves were obliged to take the Rebel if he were showen to them within their Jurisdiction , yet they were not obliged to search every House of the Town for him , or to enter within closle Doors . 3dly , The Lord Lovat being known to be a fierce young Man , who ordinarly had a Minzie attending him , they were not obliged to adventure upon him , without calling the assistance of their Neighbours , which they did within an hour or two thereafter , and he was gone .

The Lords Repelled all these Defenses , in respect of the Execution and instrument produced , and found the Magistrats , being Charged , obliged to take the Rebel , and without delay to search any House within the Town that was particularly shown to them , unless they had been Repulsed by Force , or the Doors by Violence keeped closse against them by the Master of the House , and ordained the Pursuers to adduce the Witnesses in the Instrument , and others to prove the particulars foresaid , to have been so done as is therein exprest .

Bow contra Campbel , Eodem die .

BOw Stabler in Edinburgh as Assigney to a Sum of Money due by Glenurchy , and also as Donotar to the Escheat of his Cedent , being called in a double Poinding , and competing ; the Donator alleadged he ought to be preferred to the Arrefter , because the Debt in question falling in his Cedents Escheat , he had taken the Gift of the Escheat , bearing expresly all Goods the Rebel had , or should acquire , and this Debt . being acquired , after the Gift did accresce to him , the Rebel not being yet Relaxed . It was answered , that though the stile of the Gift bear all Goods to be acquired , yet that is always interpret such as happen to be acquired within year and day after the Horning . It was answered for the Donatar , that he oppones the Tenor of his Gift , and if any limitation could be thereof , it could only be of Sums to be acquired within a year after the Gift , and not within a year after the Horning , because sometimes Gifts are not taken within a year of the Horning .

The Lords found the Gift to extend to the Sum in question , being acquired by the Rebel within a year after the Gift , and that the general Clause of Goods to be acquired , did extend no further then to Goods acquired within a year after the Gift .

Laird of Grubbet contra More , Eodem die .

THe Barony of Lintoun belonging to Sir Iohn Ker of Litledean , the Lands of Morbatle and Otterburn are parts thereof ; there is a piece of Land called Greenlaw , lying in the borders of Morbatle and Otterburn , and there is an Heretable Right of the Lands of Otterburn granted by Sir Iohn Ker to one Young , and by that Young a subaltern Right to another Young , bearing the Lands of Greenlaw per expressum , both these Young's joyntly Dispone to Grubbet the Lands of Otterburn , with the Pertinents , comprehending the Lands of Raschbogs ; in the end of which Disposition there is a Clause , bearing that because the Young's were kindly Tennents in the Lands of Greenlaw , therefore they Dispone their Right thereof , and kindlynesse thereto , to Grubbet , More having acquired the Rights of the Lands of Morbatle from Sir Iohn Ker ; and the Earl of Louthian having Apprized Sir Iohn's Right of the Barony of Lintoun , in Anno 1636. gives a particular Right of Greenlaw alone , which is now also in the Person of More , whereupon arises a Competition of Right between Grubbet and More , Grubbet alleadged that he has Right to Greenlaw , as a Part and Pertinent of Otterburn , which he and the Young's his Authors have Possest far beyond 40. years , as Part and Pertinent of Otterburn , and offers to prove that there is standing Marches between Morbatle and Otterburn , within which Marches , Greenlaw lyes on Otterburn side , and that his Infeftment produced granted by Young to Young , bears expresly Greenlaw . It was alleadged for More , First , that Grubbet cannot pretend Greenlaw to be Part and Pertinent of Otterburn , because by his own Infeftments produced , granted by the Young's , and accepted by him , Greenlaw is not exprest as Part and Pertinent of Otterburn , albeit Raschbog tho lesse considerable then it , be exprest , and on the contrair , it is declared that the Young's were kindly Tennents of Greenlaw , and Disponed their kindness thereof ; aud offers to prove that the Young's were in constant custom of Service to Sir Iohn Ker in Armes and otherways whenever they were required , and that most of the Lands on the border were Set only for Service , which Service could not be attribute to Otterburn , because it was holden blench of Sir Iohn , and if need be 's , offered to prove by Witnesses , that when the said Young's came not to the said Service they were poinded therefore . 2dly , More offered to prove that Greenlaw is a distinct Tenement , both from Otterburn and Morbatle , and hath past as a distinct Tenement since the year 1636. and hath a known March between it and Otterburn , viz. a Know. 3dly , For Grubbets pretence of bruiking Greenlaw as Part and Pertinent of Otterburn for 40. years , so that he might claim it by Prescription , the alleadgeance ought to be Repelled , first because Prescription cannot proceed without an Infeftmen , and it cannot be ascribed to the Young's Infeftment , wherein they acknowledge that they were kindly Tennents of Greenlaw , after which no course of time can ever prescribe a Right to Greenlaw , as part and Pertinent of Otterburn by that Charter , and therefore any Possession that is thereof is without Infeftment . 2dly , There is not fourty years Possession , abating Mores Minority . 3dly , There are interruptions , and therefore if Greenlaw be either a distinct Tenement , or part of Morbatle , it belongs to More . It was answered for Grubbet , that he and his Authors Possessing Greenlaw these 40 years past , as part of Otterburn gives him sufficient Right thereunto , notwithstanding of any acknowledgement in the Charter , or without the Charter before that time , for Prescription may change Part and Pertinents , so that which was once not acknowledged to be a part by Possession , 40 years thereafter may become a part , and that acknowledgement never being made use of Prescribes and the Charter in which it is , is a sufficient Title , both for what was parts the time of the Charter , and what becomes thereafter parts by Prescription . 2dly , The acknowledgement of a Party having Right is of no effect , when by demonstration of the Right it self the contrair appears , as here , therebeing an anterior Right of Property of the Young's produced before that acknowledgement . 3dly , The ackowledgement is not , that they were only kindly Tennents , otherwise it is very well consistent with the Property , that they being first kindly Tennents , and that kindliness being thought more favourable to maintain Possession in these places , then any Heretable Right , they might very well Dispone Otterburn , whereof Greenlaw is a part , and might also Dispone their kindness of Greenlaw they had before the Right of Property ; neither doth it infer , because Raschbog is exprest as Pertinent of Otterburn , which hath been upon account that Raschbog was then unclear , that therefore Greenlaw is no Part thereof , or else it could have no more parts but Raschhog , there being no more exprest ; and as for the alleadged Services done by the Young's to Sir Iohn Ker , they cannot infer that the Young's were then Tennents of Greenlaw , because such Services being only general , and no particular Services accustomed by Tennents , they might have been performed to Sir Iohn as Superior , or as out of kindness to a great Man in the Countrey , and it s offered to be proven ( if need be 's ) that hundreds granted such Services , who were not Tennents , so that unless there were a Tack , Inrolments of Court , or Executions of Poinding produced to instruct Services as a Tack-duty on Greenlaw , it is Irrelevant .

The Lords by a former Interlocutor had found that by the acknowlegement in Young's Charter , or any thing therein was not sufficient to exclude Greenlaw from being Part and Pertinent of Otterburn , but they found that is More would alleadge a Tack , or Inrolment of Court , to the Young's of Services for Greenlaw , it were sufficient , or otherwise if he would alleadge constant Service of the Young's , by Riding &c. with Sir Iohn , and there being Poinded by him , when they were absent , they found the same with the acknowledgement in Grubbets Right to exclude Grubbet from Greenlaw , and if these were not alleadged , they ordained Witnesses to be Examined upon the ground hinc inde before answer , upon these points , whether Greenlaw was known to be a distinct Tennement , both from Otterburn and Marbotle , or whether it was known to be Part and Pertinent of either , and what were the Marches and Meithes thereof , and what Services were done by the Young's to Sir Iohn Ker , and if such Services were done by others , not being moveable Tennents .

Barclay contra Barclay , Iuly 6. 1669.

BArclay of Towy having but one Daughter , and his Estate Tailzied to Heirs-male , his nearest Heir-male being the old Tutor of Towy , above 80. years of Age , and having also but one Daughter , and neither Father nor Daughter being Persons of much discretion , Captain Barclay his next Heir-male having also but Daughters , he Dispones his Estate in favours of his own Daughter ; and it being rumored that Captain Barclay pretended a Bond of an hundreth and three thousand Pounds , granted by Towy to him , that thereby he might prefer him to the Tutor , and that the Tutor as Heir-male , had also granted several Dispositions to Captain Barclay of that Estate : Towies Daughter being an Infant , her friends did also procure a Disposition from the Tutor to her , and she pursues a Reduction and Improbation against Captain Barclay of the foresaid Bond , and Dispositions made to him , he Compears , and produces a late Disposition made by the Tutor , and alleadges that he had the Bond foresaid , and two Dispositions from the Tutor , anterior to this produced , but that a Person to whom he had entrusted them , had carried them away , but there being produced in the Process attested doubles of the former Dispositions , under the hands of Nottars . The Pursuer craved , that seing the Witnesses alleadged insert might die , and the Captain of purpose keeped up the Principals , that the Witnesses might be Examined upon what they know of the Truth , or Forgery of the saids Dispositions .

Which the Lords granted , the Fame , and suspition of the Forgery being so great , though ordinarly they do not Examine Witnesses upon the Forgery of a Writ , till the principal be produced , that the Witnesses may see their Subscriptions , whereupon Steel one of the Witnesses compeared , and Deponed , acknowledging the Forgery , and the way of contrivance of it , in which the Captain made use of him , whereupon the Lords proceeded to Examine the Tutor , who stifly stood to the verity of the Dispositions , as being truly Subscribed by him , but differed in the Date , and in the persons who were Witnesses to the Subscription : The Captains Son in law being also Examined , whether or not the Captain had employed him to corrupt the Witnesses , and if he had written any Letter to him , to that purpose produced a Letter , mentioning some things by word which he should diligently go about , and being asked who the Bearer was , Deponed that he was Robert Ogilvy the Tutors Servant , who being in the House , and presently called to the Bar , upon Oath being interrogat , whether he had brought North any Letter from the Captain to his Good-son , Deponed that he had brought no Letter from him to his Good-son , or any other , and thereafter the Letter being showen him , and confronted with the Captains Good-son , he Deponed that he did bring that Paper , and delivered it to the Captains Wife , but he thought it was an order , not being Sealed , and being interrogat whether he had any Message in word from the Captain to his Good-son , Deponed he had none , and upon reading of the Letter , bearing the contrair , and confronting with the Captains Good-son , he acknowledged that he had order to cause his Good-son bring over the Witnesses to Edinburgh ; and the Captains Good-son further acknowledged that Ogilvy had desired him to deall with the Witnesses , to stand to the Truth of the Writs , he stifly denyed that point .

The Lords having considered his grosse Prevarication , and contradictory Oath , ordained him to be put in the Irons , and the next day to stand in the Pillary betwixt ten and twelve , and a Paper on his Brow to declare the Cause , and did declare him infamous , and appointed him to continue in Prison till further Order .

Mr. William Kintor contra the Heirs and Successors of Logan of Coat-field . Iuly 9. 1669.

LOgan of Coat-field having become Cautioner for the Tutor of Burncastle , an Inhibition used upon the act of Caution , Mr. William Kintor having Right by Progress from Burncastle , obtained Decreet against the Representatives of the Tutor , and of Coat-field the Cautioner , for payment of the Annualrent of 10000 , pounds , due to the Pupil by the Marquess of Hamiltoun , and the like Sum due by the Earl of Bucclengh , in respect that the Tutor was obliged to have uplifted these Annualrents , and to have employed them for Annualrent , and thereupon pursues a Reduction of the Rights granted by the Tutors Cautioner , as being granted after the Cautioner was Inhibited , these Acquirers raise a Reduction of Mr. Williams Decreet , and repeat the Reasons by way of Defense , alleadging that the Tutor nor his Cautioner were not obliged for the Annualrents due by the Marquess of Hamiltoun and Earl of Buccleugh , because they were in responsal Hands , and the Pupil had no Damnage , for it was free for the Tutor to uplift the Annualrents of Pupils Money , when secure , at any time during the Pupillarity , but here they offer to prove the Tutor Died durante tutela , and so was not lyable when he Died , to uplift these secure Annualrents , or to have employed them . The Pursuer answered ▪ that the Lords had already found at the same Pursuers Instance against Iohn Boyd , that the Tutor was lyable for Annualrent , not only pro intromissis , but pro omissis , and for the Annualrent of the Pupils Annuals a finita tutela , which is finished , either by ending the Pupillarity , or the Death or Removal of the Tutor . It was answered , that the Lords Interlocutor was only in the case that the Tutory had been finished in the ordinar way by the Age of the Pupil , for that way of ending thereof , could only been foreknowen by the Tutor , that within the same he might lift the Pupils Annuals , and give them out on Annualrent , but he could not foresee his own Death , but might justly think he had time before the expiring of his Tutory , to lift and employ , and so the Tutor not having failed in his Duty , his Cautioner is free . It was answered , First , That by the Lords dayly Practique Tutors are lyable for the Annualrents of Rents , of and within a year after the Rents are due , and there being so much parity of Reason in Annualrents , it cannot be thought just that the Tutor was not obliged to lift them till the end of his Tutory , for albeit he might have keeped them in his Hands unemployed , and only to leave them employed at the ish of his Tutory , yet he was obliged to uplift them , and if by any accident , as being preveened by Death , he did not employ them , that accident should be on his peril , not the innocent Pupils . 2dly , If need beis , the Pursuer offers to prove the Annualrents were uplifted by the Tutor , and so these that Represent him , and his Cautioners , are lyable for Annualrent therefore , at least from the Death of the Tutor .

The Lords found that the Tutor was neither obliged to lift , nor give out on Annual the Annualrents of his Pupil , if the Debitors were Responsal , but only once betwixt and the end of the Pupillarity ; and if he Died betwixt and the end of the Tutory , he was free both of the Annual and Annualrents thereof , but if he did actually uplift the Annalrents , they found that it was sufficient to employ them any time before the Tutory ended , and found that his Heir was lyable for Annualrent , not from the Tutors Death , but from the end of the Pupillarity , and that he could be no further lyable then the Tutor , if he had lived , in respect that subsequent Tutors were obliged to lift these Annualrents from the former Tutors Heirs , and employ them .

This was stoped to be further heard .

Garner contra Colvin , Iuly 10. 1669.

JAmes Colvin having Apprized the Lands of Lady-kirk , and some Tenements in Air , and being Infeft therein ; Garners Wife and Bairns raise a Reduction , and alleadge that the Apprizers Right is null , as to the Tenements in Air , because Iohn Garner had never Right thereto , but the Right was Originally granted to young Iohn Garner the Pursuer , by his Mother Brother . The Defender answered . that the said Right must be affected with his Apprizing , as if it had been in the Fathers Person , because young Garner was then an Infant in his Fathers Family ; and albeit the Right be granted by his Uncle , yet it is necessarly inferred to be Acquired by the Fathers Means , because it bears not for Love and Favour , but for Sums of Money , and the Uncle had Bairns of his own . It was answered , that albeit the Right had been Acquired by the Fathers Means , yet its anterior to the Apprizing , and Sums on which it proceeds , whereupon nothing can be taken away but what is posterior thereto , albeit there were a Declarator and Reduction intented for that purpose , as there is none .

The Lords Sustained the alleadgeance , and Reduced the Apprizing as to these Tenements .

2dly , The Pursuer alleadges the Apprizing ( as to Lady-kirk ) must be Reduced , because the Pursuers produce a prior Infeftment granted by Iohn Garner to his Wife in Liferent , and his Bairns in Fee . it was answered , that the said Infeftment was base , never cled with Possession . The Pursuers Replyed , that the Fathers Liferent not being Reserved , the continuation of Possession was as lawful Administrator to the Pursuers Bairns , and if need be 's its offered to be proven he had a Factory from them . The Defender answered , that a Fathers Possession being continued , was never found to validate a base Infeftment granted to his Children , albeit his Liferent were expresly Reserved , but it s ever accounted a latent fraudulent Deed , and a Factory can be of no more force then a Reservation , otherwise it were impossible to obviat fraudulent conveyances betwixt Fathers and Children . The Pursuer answered , that albeit such Reservations are not valide in Rights freely granted by Fathers , yet it meets not this case , especially where there was an anterior Onerous Cause , Iohn Garner being obliged by his Contract of Marriage , that what Lands he should Acquire , should be to his Wife in Liferent , and to the Bairns of the Marriage .

The Lords found that the Bairns Infeftment granted by their Father , albeit he had Possest by a Factory from them , was not cled with Possession , or sufficient to exclude a posterior publick Infeftment , and that the Clause in the Contract was but to substitute the Children Heirs to their Father in the Conquest .

Here it was not alleadged that the Factory was made publick by Process founded at the Fathers Instance , or otherwise in this Process . The Defender to satisfie the Production of an Assignation , upon which the Apprizing proceeded , which the Pursuers offered to improve as false in the Date , and the Defender now produced another Assignation of the same Date , and declared he abade by the same as of that Date , and that it being a missing , he had caused the Cedent to Subscribe another of the same Date with the first , which did expresly bear Reservation of another Assignation formerly Subscribed , which he did also bide be as truly Subscribed , but not of the Date it bears , but of the Date of the true Assignation insert therein .

The Lords Sustained the Assignation now last produced , and did not quarrel the other Assignation , though another Date was insert , then when it was Subscribed , for the Cause foresaid .

Alexander Glasse contra Iohn Haddin ; Eodem die .

ALexander Glasse and William Reid having a proper Wodset of the Lands of Alairtnenie , and Iohn Haddin being also Infeft in an Annualrent forth thereof some days prior , compet for the Maills and Duties ; Haddin alleadged that both infeftments being base from the same Author , his Infeftment of Annualrent is preferable , because prior and first cled with Possession . It was answered , any Possession he had was by a Factory from Glass . It was replyed , that he offered to prove Possession before that Factory . It was duplyed that by Haddins back Bond produced , bearing expresly that Glasse had had a valide Right to the Maills and Duties of the Lands , and that he was in Possession thereof , and that Haddin had accepted a Factory from him , and was obliged to compt to him for the Maills and Duties without any Reservation of his own Right , this was an unquestionable Homologation , and acknowledgement of the Right , and equivalent to a Ratification thereof .

The Lords found by the back Bond produced of the Tenor foresaid , that Haddin had so far acknowledged Reid and Glasses Right , that he could not quarrel it upon his own Right , but he proponing that there was a Reservation of his own Right related to in the back Bond , the Lords found the same Relevant he proving Possession before the other Party , and before the Factory .

The Old Colledge of Aberdeen contra the Town of Aberdeen , Iuly 13. 1669.

THe Principal and the remanent Members of the old Colledge of Aberdeen , having Set a Tack to Doctor Dun of his Teinds during the Principals Life , and five years thereafter , and bearing an Obligement to renew the like Tack from time to time for ever . The Doctor Mortified the same to the Town for plous uses , after the Death of that Principal many years . The Colledge now pursues the Possessors of the Lands upon an Inhibition for the full value of the Teinds ; and the Town Defends upon the foresaid Tack . It was answered for the Colledge , that the Tack is only for the Principals Life , and five years after , which is expired ; and as for the new Obligement to renew such Tacks for ever . It was answered First , Albeita Tack were conceived in these Terms it would be null , as wanting an ish . 2dly , Obligements of the present Incumbents in Universities are not obligator , but where there is an equivalent Cause Onerous Received for the good of the University . It was replyed for the Town , that an Obligement to grant a Tack by them who can grant it , is equiparat to the Tack it self , which requires no other solemnity , as an obligement to grant an Assignation , is equivalent to an Assignation , and that there is here a Cause Onerous of the Universities Obligement , because the Tack bears expresly 300. Merks of grassum , and that the former Tack-duty was only ten Merks , which by this Tack is made 50. Merks , and albeit it want a desinit ish , yet it must be valide for a Renovation during this Principals Life , and five years after , and it is Homologat by the Colledge , who have received the same Duties several years since the first Tack expired . It was duplyed for the Colledge , that this Tack is not valide for any time after the first ish , because by the Act of Parliament 1617. Tacks by beneficed Persons under Prelats , are prohibit for longer time nor their own Life , and five years after , and these Teinds are a part of the benefice Mortified to the Colledge , and they must be accounted as beneficed Persons , and albeit the Teinds were augmented to 50. Merks , yet they are worth 200. Merks ; and for the Receipt of the Duties after the first Tack , it is per tacitamrelocati●nem , and no Homologation of the Obligement to renew the Tack .

The Lords found that the Colledge was not comprehended under beneficed Persons , but found that there was no sufficient . Cause Onerous alleadged for this Obligement of Renewing a perpetual Tack , and would not Sustain the samine in part , and found it totally null , and that the Receiving of the former Duties was no Homologation thereof .

Captain Wood contra Boyneilson , Eodem die .

CAptain Wood having taken a Ship of Norway , whereof Boyneilson was Master , called the Raphael Prize , she was Adjudged by the Admiral , and there is now Reduction intented of the Decreet of Adjudication , in fortification whereof the Privateer Insists upon two grounds . First , That this Ship belongs to the Kings Enemies , with a considerable part of the Loadning , viz. 1500. Dails as is acknowledged by the Skippers Deposition . 2dly , Whereas she pretends to have been bound for London upon the Kings Proclamation , giving liberty to all his Subjects to import Timber from Sweden and Denmark , by the Ships and Mariners in these Countreys , though then in Enimity , yet the said Proclamation requires that all such Ships shall find Caution at the Custom-house to return straight to England , without going aside into an Enemies Countrey , and requires the Lord Admirals Pass ; but this Ship at the time of the Adjudication did not pretend to the Duke of York's Pass , but only to the Duke of Richmond's Pass as Admiral of Scotland , whereas the Proclamation warrands only the Duke of York to give such Passes , neither doth he produce now any Pass from the Duke , or any extract of a Pass from him . It was answered for the Strangers , and for Iohn Dyson Citizen of London , that they having Contracted conform to the Kings Proclamation for importing Timber , and having found Caution and obtained a Pass conform to the Proclamation the Ship and Loadning cannot be made Prize , upon the Skippers Oath , that they had Aboard 1500. Dails belonging to him and the Company . First , Because the Skipper is testis singularis . 2dly , By the constant Custom Sailers have Portage Dails allowed . 3dly , The number of the Dails is insert but with Figures , and might easily have been altered after the Testimony , from 500. by adding one , and from 150. by adding a Cipher , neither of which would have been sufficient to infer Confiscation . 4thly , Iohn Dyson Citizen of London , having bona fide Contracted with the Stranger for importing 6000. Dails , albeit the Skipper had foisted in some more , it cannot infer a Confiscation of a Loadning belonging to him the Kings Subject , Contracting bona fide , whatever it may infer as to the Strangers Ship and his own Dails . As to the second point anent the wanting the Duke of Yorks Pass , there is produced a Testificat of the Dukes Secretaries , and the Ship having been Bought from the Privateer by Captain Lye , who carried her to London , the Duke gives her a Pass to return from London to Norway , bearing that he had given her a former Pass to come into England ; there is also produced His Majesties Letter , that he is sufficiently informed that this Ship is Authorized by a sufficient Pass , and therefore ordering her to be Restored with Testificats from the Customers , that Caution was found there , and the Testimony of the Skipper and a Sea-man taken at London , bearing that Captain Lye having Bought the Ship from a Privateer , desired the Skipper ( then in Prison ) to show him the Duke of Yorks Pass , which when he shew'd him , he pulled it out of his Hand to secure the Ship ; against all which it was objected , that all these were impetrat after the Ship was declared Prize , and that it is the more suspitious , that at the time of the Adjudication there was not so much as mention made of the Duke of York's Pass , though the Duk of Richmonds Pass was rejected , as not sufficient without the Duke of Yorks , and that as yet there is no Extract , of the Pass out of any Record ; and as for his Majesties Letter it hath been impetrat suppressa veritate , and cannot take away a Parties privat Right , but is salvo jure , as are all Acts of Parliament done by His Majesty , and three Estates incitata parte , much more such a Letter , as the Lords found in the case of the Castle of Riga , and though there had been a Pass from the Duke of York , it is likely not to have been of this Date but for a former Voyage .

The Lords found the alleadgeance for the Privateer , that there was 1500. Dails Aboard belonging to the Kings Enemies Relevant to Confiscat the Ship and Dails , but not to Confiscat Iohn Dysons Dails , His Majesties Subject , who acted bona fide if he can make out a Pass , and before answer to that point , grants Commission to Sir Robert Murray to try if there were a Record keeped of the Dukes Passes , and if therein there was a Pass for this Voyage , and to send down the duplicat thereof compared with the Principal , and Signed by Sir Robert , and to try at the Records of the Custom-house , if Caution was found there , and if there was no Records of Passes , to take the Oath of Captain Lye concerning the Pass alleadged taken by him , and ordained the Members of the Court of Admirality to be Examined upon Oath , whether the Testimonies in Figures for 1500 Dails was given in Figures as it bears , and found the Skippers Testimony alone to prove not only against himself , but the Owners , because he was entrusted by them in this Affair .

Duke Hamiltoun contra the Feuars of the Kings Property , Iuly 14. 1669.

THe Duke of Hamiltoun as Collector-general of the Taxations , having Charged the Feuars of the Kings Property for payment of this current Taxation , several of them Suspended upon this Reason , that by the Act of Convention there is abatement given of a third part to such Shires as in the West and South , in regard their Retours are higher then the rest of the Countrey , and yet these of the Kings Property are Charged for the whole . It was answered , that that abatement cannot extend to the Feuars of the Property , because in all former Taxations they were distinct both from the Temporality and Spirituality , and therefore though by the Act of Convention , the Temporality of these Shires be eased , it will not extend to the Property , especially seing the Reason of the Act cannot extend to them , for the Feuars of the Property did bear no Taxation till the year 1592. and then there was a Commission granted for Retouring them , and that Complaint of the high Retours of the Shires being then known , these of the Property would doubtless endeavour to have easie Retours . It was answered , that the Act of Convention expresly Regulating the Taxation , both as to the Spirituality and Temporality , it cannot be thought but that these Members did comprehend the whole , and seing the Property cannot be of the Spirituality , it must be of the Temporality , which hath the abatement as to these Shires without exception , and albeit the Property was lately Retoured , yet there being no Rule to estimate a Merk-land , or Pound-lands Retour by , or how many Pounds of real Rent makes a Pound of Retour , there could be no other Rule , but to make the Retour of the Property proportional to the remainant Lands lying in that Shire , so that where the other Lands are generally highly Retoured , it is evidently presumed that the Property was so Retoured , and seing the Property did of old pay no Taxation , it were strange now to make it bear more then the other Temporal Lands about it .

The Lords found that the Property of the Shires had the same abatement with the rest of the temporality in these Shires .

Earl of Marishal contra Leith of Whitehaugh , Eodem die .

IEan Keith having a Right to a Wodset of the Mains and Miln of Troup , and being Married to Iohn Forbes , she Disponed the Heretable Right to his Brother , which Right is now by progress in the Person of Leith of Whitehaugh , Isobebs Brother raised a Reduction in Anno 1628. of the Right granted by her to her Husbands Brother , and now his Right and an Assignation to the said Process coming to the Earl of Marishal , and by him to Lesmore , they insist in their Reduction upon the Reason of Minority and Lesion . It was alleadged for the Defender ; First , No Process , because prescription is past since the Right was granted by Isobel Keith , which cannot be interrupted by the Reduction in Anno 1628. because it is evident by inspection of the Reduction that it is but filled up of late and that the Executions there of are new , so that it signifies no more nor blank Paper , or a blank Summonds till the Reasons be filled up and insisted in before which prescription was compleat . 2dly . Absolvitor , because the Right granted by Isobel Keith to her Husbands Brother , was to the Husbands behove : Likeas there was a blank Bond granted by the Brother to the Husband so declaring , and there being no other Contract of Marriage , this Disposition must be understood as granted to the Husband in contemplation of the Marriage , and being but the Right of 10000. Merks , which was but a competent Tocher , it was no Lesion to Dispone the same to the Husband , or any to his behove , and offered to prove by the Brothers Oath that there was such a back Bond , and that yet there is a back Bond by him to whom the Brother Disponed . The Pursuer answered to the first , that interruption is sufficient by any Act whereby the Party having Right , may follow the same , so that Summonds ( albeit not legally Execute ) would yet make an interruption , though no Sentence could follow thereupon , and a Summonds being blank , must be presumed as comprehending all the Grounds and Reasons that might have been filled up therein , but here the Lybelling of the Interest , which is not with new Ink , bears expresly that the Pursuer as Heir to his Sister has good interest to Revock and Reduce Deeds done by her to her prejudice , which doth imply the Reason of Minority and Lesion . To the second , albeit the Disposition by the Wife had been to the Husband , yet it is simply Reduceable upon Minority , there being no remuneratory Obligation upon the part of the Husband providing her to a Jointure , in which case if the Provision had been suitable , there would have been no Lesion , and if not suitable , the Lords might Reduce it in part , or Rectifie it if done in the Wifes Life , but here she having nothing from the Husband , and being Dead she cannot now receive a Jointure , and so the Right is Reduceable in totum , especially seing the said Iohn Forbes did violently carry away the said Isobel Keith , and Married her without her Friends Consents , and must be presumed by the same means to have purchased the same Disposition from her without any remuneratory Provision to her . 2dly , There is not , nor cannot be known any such back Bond , and it were absurd that the Husbands Brothers Oath alone should prove the same in favours of his Brother . The Defender answered , that albeit there was no Jointure provided , yet the Law provides a Terce , which ofttimes is better nor the Jointure . The Pursuer likewise answered , that the Law did provide the jus mariti , and the courtesie , so that either Party ought either to acquiesce in the provision of Law , or the Provision of Parties must be mutual .

The Lords Repelled the first Defense , especially in respect of the manner of Libelling the Title , and found not the Executions of the first Summonds to appear new , and therefore Sustained them , unless the Defender would improve the same ; they found also that alleadgeance , that the Disposition was to the Husbands behove , was not to be Sustained , especially seing no back Bonds were produced , or offered to be proven , and that the manner of Probation offered was no way sufficient , that there was no Provision for the Wife .

Duke Hamiltoun contra the Laird of Blackwood , Eodem die .

THe Duke of Hamiltoun pursues the Laird of Blackwood , that it may be declared that he is his Vassal in his Lands of Blackwood , on this ground , that the late Marquess of Hamiltoun having Disponed to the King the Abbacie of Arbroth , did in consideration thereof , in Anno 1636. get a Charter from the King of the Barony of Leshmahago ; a part of the Abbacie of Kelso , of which the Lands of Blackwood were holden Waird ; which Lands having been Apprized , and the Apprizers Infeft holden of the King , the Laird of Blackwood having thereafter Disponed them to Major Ballantine , by his Contract of Marriage with Blackwoods Daughter , and the Major having purchased a Right from the Apprizers , both upon Blackwoods procuratory of Resignation , and the Apprizers , he Resigned the Lands in the Marquess Hand , and did take his Infeftment holding Waird of him ; likeas this Blackwood who is Heir of Provision to the Major as procreat by Marion Weir Blackwoods Daughter with William Lowry , hath no other Right but as Heir of Provision to the Major , and yet he hath taken Infeftment holding of the King ; likeas the said William Lowry his Father as lawful Administrator , and taking burden for him , has obliged himself by his Bond , that so soon as the Marquess should obtain a Right to the Superiority , he should take his Infeftment from him Waird , and by the Act of Parliament 1661. Ratifying the Act of Annexation 1633. It is expresly provided , that any Right to the Superiority of Kirk Lands granted by the King , yet notwithstanding the annexation shall be valide , as to such Vassals who have , or shall consent to the Rights of the Persons obtainers of the saids Superiorities , so that Major Ballantine having consented , by taking Infeftment in manner foresaid , he and his Successors must continue the Dukes Vassals . The Defender alleadged Absolvitor , because any Right the Duke has , or the Marquesse had to the Superiority is absolutely null by the saids Acts of Parliaments , annexing the Superiority of Kirk Lands to the Crown , so that unless there had been a Dissolution in Parliament , no Right of these Superiorities is valide , but null , and the exception of the said Act 1661. is only in the case of the Vassals consenting to a Right of Superiority , Ita est there can be no Right but legitimo modo by Dissolution . The Pursuer answered ; First , That albeit the King , or his Officers might quarrel his Right as not proceeding upon Dissolution , or any other having their Right upon Dissolution , yet the Defender cannot , especially seing he hath Homologat the Pursuers Right , his Predecessors to whom he is Heir , having taken Infeftment thereupon ; likeas the Pursuer has satisfyed the Kings Interest , by giving Bond to the Kings Advocat to hold the Lands Waird of the King in the same way as the Defender would , therefore the Advocat hath declared he will not concern himself . 2dly , the Pursuer having obtained a new Right of the King since the Act of Parliament 1661. the same must be valide to him as to these Vassals who have , or shall consent , because the exception of the Act expresly bears , that such a consent is equivalent , as if the Vassal had Resigned in the Kings Hands in favour , and for new Infeftment to the interposed Superior , and had then taken a subaltern Right of him , against which there can be no pretence , so that ( by a Right in the exception ) it cannot be meaned a perfect Right proceeding upon Dissolution , because that would be valide without the Vassals consent , but that the Vassals consent being equivalent to a Resignation , makes the Right valide without Dissolution .

Which the Lords found Relevant , the Duke proving a sufficient consent , but it was not Decided whether Major Ballantines taking Infeftment would import a sufficient consent conform to the exception of the Act , so that he might not thereafter return to the King .

Iack contra Iack , Iuly 15. 1669.

PAtrick Iack having only three Daughters , Margaret his eldest Daughter Married Iohn Dowglas , and there is a Contract betwixt Iohn Dowglas and the Tutors of the other two Daughters , dividing there Fathers Inheritance in three parts , and mutally Disponing the same with Procuratory and Precept , and there being a Salmond Fishing holding Waird of the King , which fell to Margarets share , Iohn Dowglas takes Infeftment upon the Tutors Precept , Disponing for the other two that Fishing after his Death , the said Margaret takes a Gift of Recognition of the said Salmond Fishing , as falling by the Infeftment taken by Iohn Dowglas without consent of the Superior , and thereupon pursues Declarator , Katharin Iack and Robertson her Spouse , and the other Sister , pursue a Reduction of the Contract of Division , as done by their Tutors in their Minority to their Lesion , and in answer to the Recognition alleadged . First , That this Recognition occurred in the time of the English when Recognitions were excluded , and such Infeftments by the Law then in use were allowed . 2dly , The Infeftment here granted proceeded only upon the Disposition of their Tutors , whose acts except in what is proper to the Administration of their Office is void . It was answered as to the first , that they opponed the Decision in the case of Sir George Kinaired against the Vassals of the Master of Gray , by which it was found that Infeftments taken of Waird-lands without the Superiors consent , even during the Usurpation , inferred Recognition , and to the second , that the Division among the Daughters was an act of Administration , that the Daughters might have been compelled to do . It was answered , that there is no such Decision produced , and that in the case of the Vassals of Gray , they did continue in Possession several years after the Kings Restitution , and did not take Confirmations ; but here the said Margaret one of the Sisters who should have taken Confirmation before she had continued Possession , cannot have benefit by her own fault , and make use of a Gift of Recognition in her own Person , proceeding upon her own and her Husbands fault , neither can the Division be a lawful act of Administration of the Tutors , in so far as they granted them Precepts of Seising to be holden of their Pupil , which no Law could have compelled them to do , but only Procuratories of Resignation , likeas it was Iohn Dowglas fault not to make use of the Procuratory , but of the Prccept .

The Lords found no Recognition incurred , but because the Parties might have been troubled if any other had taken the Gift , they ordained the other two Sisters to pay their part of the expences of the Gift .

Mr. Archibald Dennistoun contra Semple of Fulwood , Iuly 16 1669.

THe Lairds of Fulwood elder and younger , and Dennistoun being appointed Overseers by Culgrain to his Daughters , the eldest Daughter being Married to Mr. Archibald Dennistouns Son , there is a Contract betwixt Mr. Archibald and the three Overseers , taking burden for the Daughters , by which the Estate of Culgrain , and Mr. Archibalds Estate are both settled in the Person of his Son , and the Overseers are obliged to cause the Minors , and their Curators become obliged to relieve Mr. Archibald of 17000. Merks . Mr. Archibald Charges Fulwood upon the Contract , who Suspends , alleadging that the Clause can only import that he is lyable for his own part , but not in solidum , seing the Clause bears not the Overseers to be bound conjunctly and severally . It was answered , that the obligement is not for payment of a Sum , which is divisible , but for doing a Fact which is indivisible , viz. the Minors being become bound to relieve , which is all one as if the Overseers had been obliged to cause the Minors Subscribe a Bond of releif , which could not divide , but would have obliged every one of them in solidum , It was answered , that the result of the obligation being releif of Sums which are divisible , the obligation at least the Damnadge and Interest succeeding in place thereof ought to be devisible , for the obligation being factum alienum imprestable to the Overseer , and the third Overseers that refuses to concur being the Chargers own Brother ; there is no reason that the Overseers who had no Office or obligement , but were only Overseers which is not nomen juris , should be lyable for the Chargers own Brother , his third part thereof .

The Lords found them only lyable pro rata .

Barclay contra Barclay , Iuly 20. 1669.

THe Laird of Towy having only one Daughter Elizabeth Barclay , and his Lands being provided to Heirs Male , Dispones his Estate to his Daughter , In which Disposition there being not only a Procuratory of Resignation , but a Prcept of Seising , the said Elizabeth was Infeft upon the Precept , and being an Infant , her Friends thinking it might infer Recognition , took a Gift of the Recognition , and now pursues Declarator thereon , against the Tutor of Towy Heir Male , and Captain Barclay as pretending Right by Disposition to the Estate . It was alleadged for the Defenders Absolvitor , because the Disposition granted by umquhile Towy to the Pursuer his Daughter was granted on Death-bed , at the least it was retained by the Defunct , and never delivered till he was on Death-bed , and thereby it is null , and cannot infer Recognition , because the Law upon just consideration that Parties are presumed to be weak in their Minds , and easily wrought upon , after contracting of the Disease of which they Died , has incapacitat them then to Dispone their Heretage , or to take it any way from their nearest Heirs . 2dlie , Albeit the Disposition had been Subscribed , and Delivered in leige poustie , yet the Seising not being taken till the Defunct was on Death-bed , Recognition cannot be incurred , because it is not the Disposition , but the Seising that alienats the Fee , and infers Recognition . The Pursuer answered ; First , That Death bed is only introduced in favours of Heirs against other Persons getting Right but hath no effect against the Superi or , who is not to consider whether the Vassal was sick or whole , but whether he hath indeavoured to withdraw himself , and his Heirs in the investiture from their Superior . 2dlie , Death-bed is never competent by way of exception , but by way of Reduction . 3dlie , The Disposition being in favours of the Disponers only Daughter , reserving his Liferent , albeit it wants a Clause dispensing with the Delivery , it being Subscribed in leige poustie , it is as valide as if it had been then Delivered , and if need be 's offers to prove that it was Delivered in leige poustie to the Lord Frazer for the Pursuers use , so that albeit Seising had been taken when the Disponer was on Death bed , Recognition must be incurred , because the Vassal should not have granted a Precept of Seising , and Delivered the same without Reservation , and the having of the Precept of Seising being always accounted a sufficient ▪ Warrand for taking of Seising , and that the Warrand was given at the Delivery of the Precept , albeit the Seising was taken when the Disponer was on Death-bed , yet the Warrand was granted when he was in leige poustie , by the Precept , which bears in it self to be an irrevockable Power and Warrand to take Seising , so that the Vassal had in his leige poustie done quantum in se fuit , to alienat this Waird Fee .

The Lords found that if the Disposition containing the Precept , was Delivered to the Vassal without Reservation in the Disponers leige poustie , it would infer Recognition , though the Seising were taken after his Sickness , and found that if the Disposition and Seising were on Death-bed , it would exclude Recognition by way of exception , Recognition not being a Possessory , but a Petitory , or Declaratory Judgement ; but seing it was alleadged that the Disposition was Delivered to the Lord Frazer , the Lords before answer ordained the Lord Frazer to Depone from whom , and when he Received the said Disposition , and whether he had any Direction to take Seising thereupon , or any Direction to the contrair , and also that the Bailly , Atturney , Notar , and Witnesses in the Seising should Depone by what Warrand they did proceed therein .

Earl of Crawfoord contra Rig , Iulie 21. 1669.

THe Earl of Crawfoord pursues Rig for payment of the half of the Expence of the Building a Park Dike , belonging to the Earl in so far as it is Built , or to be Built upon the March betwixt him and Rig , and that upon the Act of Parliament 1661. anent the Parking and Inclosing of Ground , whereby for the Encouragement of them that Inclose it , it is provided that whatever part of the Park or inclosure falls upon the March , that part shall be Built upon the equal Charges of both the Heretors . The Defender alleadged Absolvitor , because the March betwixt the Earl of Crawfoord and him is not a dry March , but a Burn , and the Act cannot be understood but of dry Marches , otherwise though there were a Water intersected , the Heretor Building a Park Dike upon his own side of the Water , might require his Neighbour on the other side of the Water to pay the half of his Charges . 2dlie , Some parts of the Marches betwixt the Pursuer and Defender are Mossy and Bogy Ground , upon which no Dike can stand . The Pursuer answered , that he opponed the Act of Parliament , and that any Meith betwixt his Land and the Defenders is an inconsiderable Stripe of Water , which oftimes is dry , and cannot hinder a Stone Dike to be Built in the very Channel of it , and for the other if the Pursuer Build not the Dike , the Defender will not be lyable .

The Lords found the Reply Relevant , and ordained the Stripe of Water either to be wholly without the Dike , or if the Defender pleased that it run a space within the Dike , and a space without the Dike that either Party might have the benefit of Watering thereat .

Town of Perth contra the Weavers of the Bridg-end of Perth . Eodem die .

THe Town of Perth pursues the Weavers at the Bridg-end of Perth either to desist from Weaving in their Suburbs , or otherwise to pay a Duty accustomed to be payed by the Weavers there to the Town for that Liberty , conform to the several Tickets produced , and that conform to the 159. Act Parliament 1592. Entituled the Exercise of Crafts within Suburbs adjacent to Burghs forbidden . It was alleadged for the Defenders , and Sir George Hay thier Master Absolvitor , because the said Act of Parliament has been in continual desuetude , and was never in use . 2dly Though it were yet effectual , yet it can only be understood of such Suburbs as have no Priviledge , but where the Suburbs are contained in any Burgh of Regality or Barony , or within any Barony though having no Burgh , the Priviledges of these Erections warrants the exercise of all Crafts-men , so that these Websters Living within the Barony of Pitcullen ; cannot be upon that pretence hindered from Exercising their Trade . The Pursuer answered , that he opponed the Act of Parliament being general , and that it was a standing Law unrepelled , and that the obligations of the Weavers Living there to pay a Duty for their Liberty of Weaving , did preserve the Act in vigour , at least as to this Burgh . The Defenders answered , that these Weavers being in no Incorporation , the Tickets granted by any of them , could prejudge none but themselves , and being without the consent of the Heretor , cannot infer a Servitude upon his Barony without his consent , more then his Tennents could infer a Thirlage without his consent .

The Lords found that the said Act of Parliament did not reach to the Inhabitants of any Barony , and that the Tickets of the Weavers could not infer a Servitude upon the Barony , and therefore Decerned only against the granters of the Tickets personally , for the Duties contained therein .

Iames Gray contra Margaret Ker , Iuly 23. 1669.

IAmes Gray having Apprized certain Lands , and having Charged the Superior , pursues for Mails and Duties , Compearance is made for Margaret Ker , who produces her Infeftment granted by her Husband the common Author , prior to the Apprizing , and craves to be preferred . The Pursuer answered , that her Infeftment being granted by her Husband to be holden of the Superior not Confirmed is null . To the which it was answered , that an Infeftment of a Liferent granted to a Wife in implement of her Contract of Marriage is valide though not Confirmed .

The Lords Repelled the alleadgeance , and found the Relicts Infeftment null , and not sufficient to defend her Possession .

Mr. Iohn Eleis contra Inglishtoun , Eodem die .

CRichtoun of Crawfordstoun having only one Daughter , Disponed his Estate to Iohn Brown of Inglishstoun , in contemplation of the Marriage betwixt him and Crawfordstouns Daughter , and to the Heirs-male of the Marriage , which failzying , to certain other Heirs Substitute , bearing a power to Burden the Estate with 5000. Merks to whom he pleased , and containing a Clause that the Disposition should be valide , though not Delivered in his Lifetime ; and after Inglistouns Marriage , Crafordstoun grants a Bond relating to his former promise of 20000. Pounds to Inglistoun , and the Heirs of the Marriage , ( which failzying : ) After which words there follows a blank of a Line and a half , and the Sum is payable at the first Term after Crawfordstouns Death ; the intent of which Bonds seems to have been , that thereupon Apprizing might proceed to Denude the Heirs of Line , and to compel the Superior 〈◊〉 Receive Inglistoun . Thereafter Crawfordstoun made a second Tailzy , wherein Inglistouns Son , with his Daughter being then Born , is Feear , and several Members of the Tailzy altered ; and after that he made a third , wherein his Daughter ( Inglistouns Wife ) is Feear , and the Substitutions much like the former . After his Death these Papers being Exhibit , at the Instance of two of his Daughters , Heirs of Line , Married to Mr. Iohn Eleis , and Alexander Tran upon a Process ad deliberandum , and being craved up again from the Clerks , by the Tutor of Inglistouns Son . It was alleadged for the Heirs of Line , that the saids Writs could not be Delivered up , because they not having been Delivered by the Defunct in his leige po●stie , could not prejudge his Heirs of Line ; and albeit his first Disposition contained a dispensation for not Delivery , which ordinarly is accounted sufficient , yet where it appears the Defunct altered his purpose , both by the posterior Dispositions of a different Tenor , and several Missive Letters showing a resolution after all to alter the same the said Clause cannot be effectual , and there is no pretence for Delivering the Bond , and the two other Dispositions , seing they want that Clause . It was answerd , that the Dispensation with Delivery is in all cases equiparat with the Delivery it self , and that the remanent Writs ought also to be Delivered , though they bear not that Clause , because the Heirs of Line being absolutely excluded by the first Disposition , they have no interest to quarrel the other Dispositions , and albeit it the posterior Dispositions were to different effects , the want of Dispensation therein might make them ineffectual ▪ yet where they are but qualifications of the first Tailzy they are accessory thereto , and must be Delivered therewith , seing the Defunct so long as he keeped the Writ in his own Hand , might still alter the same at his pleasure . It was answered , that the posterior Dispositions wanted the Clause , reserving power to the Defunct to leave to whom he pleased the 5000. Merks , and it is like he hath left it to his other Daughters , and the Bond may be made use of to overturn his whole intent , and alter the Tailzy .

The Lords found , that seing the first Disposition contained a Dispensation with Delivery , and the rest being accessory thereto , and only altering in somethings the Tailzy , but still to the first Heir of Tailzy , being the Son of Inglistouns Marriage ; they ordained them all to be Delivered up , and the Bond also , but with this Declaration , that the Provision anent the 5000. Merks in the first Disposition , should be holden as repeared in the rest , that the Heirs of Line might be in no worse Case then by the first , and that the Bond should only be made use of according to the Substitutions , and Clauses of the Tailzies .

Crawford contra Anderson , Iuly 24. 1669.

IOhn Fleeming having made a Disposition of his Lands to William Anderson Provost of Glasgow , sometime thereafter William grants Back-bond , Declaring the Disposition was upon Trust , to the behove of Fleemings Creditors ; Young being one of the Creditors , uses Inhibition and Apprizing against Fleeming , and is thereupon publickly Infeft ; after which William Anderson makes payment to the other of the Creditors , the said Alexander Young and Crawford his Spouse Insists for Mails and Duties of the Apprised Lands , Anderson excepts upon his prior Infeftment from Fleeming , the common Author , upon the said Disposition , Crawford replys upon the Back-bond , that the said Infeftment is on Trust to the behove of Fleeming : Anderson duplys that it is a qualified Trust to the behove of Anderson himself in so far as any Debt was Due to him , and next to the behove of Fleemings Creditors , and condescends and instructs that he has made payment to several of these Creditors , so that payment made by him bona fide must give him Right to the Trust pro tanto , and any Inhibition or Infeftment at Youngs Instance , was only against Fleeming , and not against Anderson , against whom there was never any Action . It was answered , that the Trust being for payment of Fleemings Creditors , cannot be interpret at the option of Anderson , which would be a most fraudulent conveyance to exclude the more timeous Diligence of Fleemings other Creditors , but it must be understood to pay the Creditors legitimo modo , and not to make voluntar payment to these who had done no Diligence ▪ and prefer them to these who had done Diligence ; and albeit the Inhibition and publick Infeftment upon the Apprizing be only against Fleeming , yet Anderson who was Intrusted for Fleeming , might and ought to have known the same by searching of the Registers , appointed for publication of Rights , and if he had neglected the same Sibi imputet , for he being Trusty for Fleeming , could no more prefer Fleemings Creditors , then Fleeming himself could do .

The Lords Repelled the Defense and Duply , and found that voluntary payment made by Anderson to Fleemings Creditors , after the Inhibition or publick Infeftment of other Creditors , did not give him any Right by his Infeftment in Trust , to exclude the more timeous Diligence of the other Creditors .

Street contra Masson and Lord Tarphichen , Iuly 27. 1669.

IAmes Masson being Debitor to the Lord Tarphichen does Infeft his Son an Infant in his Lands , publickly holden of the Superior , and being a Merchant , there was a correspondence betwixt him and Mr. Street , and other London Merchants , whereupon he gave them Bond , mentioning to be for former Accompts , and Provisions betwixt them , and thereupon followed an Infeftment of Annualrent . The Lord Tarphichen obtains Decreet of Reduction of the Infeftment granted to the Son , as being posterior to his Debt , and granted by a Father in defraud thereof : The London Merchants raise also a Declarator , that the Infeftment granted by Masson to his Son ( then an Infant ) ought to be affected with their Debt , in the same condition as it were yet standing in the Fathers Person , or otherwise ought to be declared void as a fraudulent Deed by the Father in favours of his Son , the Father being then in tract of Correspondence and Traffick with these Merchants , who bona fide continued the same , seing the Father continued in Possession of the Lands , and built thereupon , and gave an Infeftment of Annualrent to the Merchants , after the Infeftment granted to his Son , and likewise raised a Poinding of the Ground upon his Infeftment of Annualrent , whereupon he now insists . It was alleadged for the Son and the Lord Tarphichen ▪ that the Sons Right being publick , and Registrat in the publick Registers , prior to the Pursuers Annualrent for the Bonds whereupon the same proceeds , it doth fully exclude them from Poinding of that Ground . The Merchants repeat their Declarator by way of reply : To which it was answered , that whatsoever may be said of Latent and Clandestine Rights betwixt Fathers and Children , and other confident Persons , yet there is no Law hindering a Father to give an publick Infeftment to his Son , unlesse it be in prejudice of the Creditors , to whom he was due Sums at that time , which being a valide pubick Right , no Deed or pretence of fraud of the Father thereafter can prejudge the Son in his Right , who being an Infant was not capable to be partaker of fraud , neither can fraud be presumed as to Creditors , who are but to Contract thereafter , nor can a publick Right Registrat , and a publick Seising , which all the World may , and all Concerned ought to know , be esteemed a contrivance or fradulent Right , and as to any Commerce betwixt these Merchants and the Father , which began before the Sons Right , no respect can be had thereto , because the Pursuers Bonds are lately for a Sum of Money , and must import that the former Debts by Traffick were past from or Discharged , and if need beis offered to prove that they were actually Discharged . 2dly , The making up a Debt to be prior to take away the Sons Infeftment , can only be probably by Writ or Oath of Party , and not by Witnesses , who cannot prove above 100. Pounds . 3dly , Though the cause of the Bond were proven to be a Correspondence and Traffick begun before the Sons Infeftment , it is no ways relevant against any Provisions gotten after the Infeftment , for such can have effect but from their own Date , and the effect is cut off as to what is posterior to this publick Infeftment , seing the Merchants did either follow Massons Faith upon their hazards , or else they should have had a Procurator here , and taken advice how they might have been secured of Massons Estate by the Law of Scotland , who would have taken notice by the Registers , that Masson was denuded by a publick Infeftment , which nothing he could do thereafter could prejudge , and would have certified the Merchants thereof , and their failing therein is on their own peril , and albeit their payment and acting bona fide is sometimes good , though made to these who had not a valide , but a colourable Right by these who knew not a better Right , and might have been compelled to pay upon the colourable Right , yet other Deeds , though bona fide done , are upon the peril of the Actor . To which it was answered , that by the common Law and Custom of this Nation all fraudulent Deeds are Reduceable , and there can be no Deed more fraudulent then this of a Father to his own Infant Son , for whom he is legal Administrator , and must accept the Right he gives himself , and so colludes with himself to make a snare to intrap Merchants and Strangers in the midst of a course of Trade with them , which is a common ground of Law , whether the Debt be prior or posterior to the Sons Infeftment , and albeit the Merchants Bond be posterior , yet seing it bears to be for Ware , Witnesses according to the ordinar custom , are Receiveable for astructing the Writ , to prove what the Ware was , and when Received , which will not be prejudged , though there had been a Discharge of the Ware granted the time of the Bond , unlesse there had been a real and true payment of the Money , for there being nothing then payed , this Bond ceases not to have a true anterior Cause , as if it had been granted on Death-bed upon a Discharge then given , it would be valide , as being upon an anterior Cause before the Sicknesse , neither is there any difference to be made of the Parts of the Traffick after the Sons Infeftment , but seing the Correspondence began before , and is once continued as a constant Correspondence and Traffick , it must all be drawn back to its beginning , as if the Merchants on both sides had Contracted when they began their Correspondence , that they should faithfully pay what either of them Received from other , till the Correspondence was given up .

The Lords found that this Bond , although posterior to the Sons Infeftment , not bearing borrowed Money , but Merchant Ware , that the quantity , and times of furnishing thereof might be proven by Witnesses , and albeit there had been a Discharge of the Ware , yet so much thereof as was furnished before the Sons Infeftment would affect the same , but found that the Sons Infeftment being publick and Registrat , no posterior Deed of the Fathers , by continuing Traffick or Correspondence , nor no pretence of fraud of his , could annul or burden the said Infeftment , for any Debt contracted posterior thereto .

Executors of Mr. Thomas Ridpeth contra Iohn Hume , Eodem die .

IN a Competition betwixt the Executors Creditors of Mr. Thomas Ridpeth , about a Sum due to Mr. Thomas by Bond , and by him Assigned to Iohn Hume , who not having Intimat it in Mr. Thomas his Lifetime , did thereafter get payment of a part of the same , and a Bond of Corroboration for the rest thereafter , Toredlie for a Debt due to him by Mr. Thomas Ridpeth , Confirms himself Executor Creditor to Mr. Thomas , and alleadges that he ought to be preferred , because the Assignation made to Iohn Hume was an uncompleat Right , wanting Intimation , so that the Sum remained in bonis of Mr. Thomas Ridpeth , and that he had followed the only legal way to affect it , by Confirming himself Executor Creditor to Mr. Thomas , and albeit the Assigney may force any other Executor to pay to him , yet not an Executor Creditor , who is Executor to his own behove for satisfying his Debt . It was answered , that the Assignation , though not Intimat , being a special Assignation , albeit it cannot have Execution by Horning , yet it is the undoubted ground of an Action , even after the Defuncts Death , against the Debitor , and no Executor Creditor can have Right thereto .

Which the Lords found Relevant , and preferred the Assigney .

Duke Hamiltoun contra Weir of Balckwood , Iuly 28. 1669.

THe Duke of Hamiltoun insisted in his Declarator against the Laird of Blackwood , for declaring that he had Right to his Superiority by the Act of Parliament 1661. bearing , That whosoever should get Right from the King to the Superiority of the annexed Kirk Lands , the same should be valide as to these Vassals who had Confirmed , or should Consent . And alleadged that Major Ballantine , to whom Blackwood is Heir , had taken an Infeftment of the Estate of Blackwood , from the Marquess of Hamiltoun , upon Blackwoods Resignation , and upon the Resignation of two Apprizers , in Anno 164● . The Marquesse then having a Right to the Superiority , granted by the King in Anno 1636. Which albeit it was not then valide , because the Lands were then annexed to the Crown , by the Act of Parliament 1633. and were not Dissolved ; yet the Major having taken Infeftment as to his part , his Heirs could not quarrel the Superiority , though the King might ; and now the King and Parliament by the Act 1661. having declared such Rights of Superiority valide as to these Vassals who had , or should Consent , and the Duke having gotten a new Right of the Superiority since the Act , the former Consent is valide ; Likeas William Lowry Blackwoods Father and Tutor gave a Bond , that so soon as the Duke should obtain the Superiority , the Son should become Vassal . The Defender alleadged that his Fathers Bond was only effectual against his Father , but not against himself , and his Father never being Feear of the Estate , his Bond could never be a Consent of the Vassal , neither can the Consent of any Tutor , or lawful Administrator be sufficient to give such a Consent , which is not an Act of Office or Administration ; and as to the Infeftment taken by Major Ballantine , First , The simple taking of Infeftmen from a Lord of Erection by the Vassals of Kirk-lands , cannot import their passing from the King , and the benefit of the Act of Annexation , so that they may not return to the King thereafter , neither can it be such a Consent as it is meant in this Act of Parliament , otherwise the King and the Leidges should both losse the benefit of the Annexation , seing most part of the Vassals have continued to take Infeftment of the Lords of Erection , through ignorance or inadvertance , finding their Infeftments flowing from the Lords of Erection , and in respect that the Lords of Erection have still Right to the Feu-duties till they be Redeemed , which being a common Error that they may safely so do till the Redemption , and yet may still take Infeftment from the King when they please , it were a very evil consequence , if thereupon they should not only lose the benefit to be Vassals to the King , but by disclamation lose the Property . 2dly , As to this case it cannot be presumed , but Major Ballantine is in the same case with other Vassals of Kirk-lands , and also in this much better case , that he is in a manifest and palpable Error , in so far as the Disposition that he takes from the Apprizers , bears expresly that the Apprizers are informed that the Marquess of Hamiltoun was Superior , and their Procuratory bears warrand , either to Resign in the Kings hands , or the Marquess hands , or in the hands of any other lawful Superior , and Blackwoods Procuratory in the Contract of Marriage , bears warrand to Resign in the hands of the King , the Marquess of Hamiltoun , or the Earl of Roxburgh , who had Right of Erection before the Marquess or any other lawful Superior , so that by Resigning in the Marquess hand , it is evident that the Resigner and the Major believed that the Marquess was Superior , whereas he was not , any Right he then had being absolutely null by the Act of Annexation , 1633. and the King was the only Superior ; yea , by the taking of that Infeftment he incurred disclamation , unless it were excused by his error , but the Consent requisit here must be such , as the Party knowing the King was his Superior , did choose to interject another Superior , and become his perpetual Vassal . It was answered for the Pursuer , that the acceptance of the Infeftment as it is now stated can be no Error , because it is evidenced by the Apprizers Rights now produced , that they hold of the King , and were Infeft by him , and yet the Major took the Infeftment upon their Resignation in the Dukes hands ; likeas the Rights produced relate to the Right of Annexation , which being a most publick Law , and recent at that time , cannot be thought but to be known to any at that time , & ignorantia juris neminem excusat . It was answered , that the Error was the greater that the Apprizers Infeftment was holden of the King , seing in their Disposition and Procuratory they mention they were informed the Marquess was Superior , and therefore the Procuratory is to Resign in the hands of the King , the Marquess or any other lawful Superior , and the other Procuratory is in the like Terms , so that the Accepter of the Writs did not intend , nor do any new or free Deed in favours of the Marquess , but did only that Deed that they supposed was necessar , and so did not by this Infeftment make the Marquess Superior , as that his Right should be valide by their Consent , but did take the Right from the Marquess , as being Superior before they took it , which was an palpable Error , so prejudicial to them that it might infer disclamation , if it were not excusable upon Error , and if it had been intended that the Major minded to make the Marquess his Superior , where he was not , there is no doubt but it would have been exprest in the Right it self , being so great a deference to the Marquess , and would not have been past over in common Form ; neither can it be thought that this was procured by the Marquess upon accompt and favouring the Major , the Infeftment being granted by the Lady Marquess , as her sons Commissioner , he being then in England , and having no great influence then being the time of the Troubles of the Countrey . It was answered , that the other Vassals of that Barony did voluntarly Accept the Marquess as their Superior , and gave Bonds for that purpose , which are produced , and it is most like that Blackwood hath given Bond , which hath been lost or given up to him upon taking this Infeftment , which is an implement thereof .

The Lords did not see that the single taking of the Infeftment from a Lord of the Erection , did import his Consent to become Vassal thereby for ever , or that he might not thereafter return to the King , neither did they find such a Consent as is meant in the Act of Parliament , but considering the whole Circumstances of this Case , and especially the Fathers clear Bond , who procured and settled the Controverted Right of this Estate for his Son , then an Infant , they found there was no Error , but a choise of the Marquess to be Superior in place of the King , and therefore declared .

Lesly contra Cunningham , Eodem die .

LEsly having Arrested certain Sums for payment of a Tack-duty due to him . It was alleadged for the Party , in whose hands Arrestment was made , that the Arrestment could not reach any further , then for the Tack-duty Arrested , which was due the time of the Arrestment , but not for any Term following the Arrestment , because Arrestment being a Legal Execution , can no more proceed upon a Debt , before the Term that the Debt be due then Apprizing ; and further alleadged , that they had made payment of the subsequent Terms to the Debitor , which they were in bona fide to do , knowing no Law nor Custom to the contrare .

The Lords Repelled the Defense , and found the Arrestment to be valide for that Terms Duty that was then running , and found that the Arrestment was rather like to an Inhibition then an Apprizing , which gave present payment .

Scot of Hartwood-mires contra November 6. 1669.

SCot of Hartwood-mires gave in a Bill of Suspension of a Decreet in foro● which the Ordinar reported to the Lords ; the Reason of Suspension was , that he being Conveened as Representing his Father , to pay the Debt in question , for which his Father was Cautioner , he offered to prove payment , denying alwise the passive Titles , and having proven the most part payed , by Discharges granted to the Principal Debitor , he was Decerned for the rest , and now offers to Renunce to be Heir to his Father , conform to his Protestation in the first Act. It was answered , that the Defense of payment does never suffer the proponer to deny the passive Titles , or put the Pursuer to a necessity to prove them , by the constant custom , founded upon good Reason , because the proponing upon any positive Right of the Defuncts is a behaviour as Heir , and in the Act of ●i●is contestation , a Term is only assigned to the Defender to prove payment ▪ and the Protestation in effect is rejected , because there is no Term therein assigned to the Pursuer to prove the passive Titles , in case the Defender failed to prove payment , neither could there be any by our Custom .

The Lords refused the Suspension , and found that the offer to prove payment , Liberated the Pursuer from proving the passive Titles .

Lady Towy contra Captain Barclay , November 9. 1669.

THe Lady Towy having pursued Improbation of a Bond of an bundreth thousand Pounds , alleadged granted by the Umquhile Laird of Towy to Captain Barclay , and of a Disposition of the Estate of Towy , alleadged made by the Tutor of Towy , the day after the Laird of Towy died , at the Barns of Towy , which Tutor fell Heir-male to the Laird , who had only one Daughter ; the foresaid Bond and Disposition being produced Judicially before by Captain Barclay , though not in this Process , he refused now to produce the same , but suffered Certification to be granted against it . The question having arisen whether any further Process could be in the Improbation , in respect that the principal Writs were not produced , but Copies bearing the Tenor , Date , and Witnes●es insert .

The Lords the last Session did Examine Captain Barclay , and Steel one of the Witnesses insert , and certain others , and Steel confessing the Forgery , and Captain Barclay denying the same after he was Confronted with Steel , and denying the having of the principal Writs , the Lords sent Captain Barclay and Steel to the Tolbooth of Edinburgh , to be keeped there till the Event of the Plea , or further Order , and did thereafter permit Steel to come out upon sufficient Caution for a great Sum , and the other Witnesses inserted being Sumonned , and not Compearing .

The Lords granted Caption against them , and gave Commission to certain Persons to search for them , and now Iohn Rosse the other Witness in the Disposition , and Alexander Ferguson who filled up the Date , and Witnesses , both in the Disposition and Bond , and Subscribed Witness to the Bond , and insert himself as Witness in the Disposition , but Subscribed not as Witness in the Disposition , being brought to the Bar.

It was alleadged for Captain Barclay , that the saids Witnesses could not be Examined , First , Because there was now no Process depending , in respect that the Improbation which was only civilly intented , was determined by the Decreet of Certification , which now is Extracted , and albeit the Lords did before Examine Captain Barclay and Steel , yet the Process was then depending , and the Certification not Extracted . 2dly , It was alleadged that Rosse and Fergusson were not habile Witnesses , having appeared most partial upon the Pursuers part , having stayed a long time with her in her House , Et prodiderunt Testimonia , in so far as not only they had declared what they would depone , but that they had set the samine under their hands , and that by their said Subscription they acknowledged themselves accessory to the Forgery , and so by their confession they are socij criminis , and being culpable of so great a Crime are infamous , and their Testimonies can make no Faith against any but themselves . It was answered for the Pursuer , that Improbations ( even civilly intented ) are not totally determined by the Certification , which is of its own nature but an Interlocutor Sentence , and if the Pursuer should notwithstanding thereof find out , and produce the Principal Writ , he might proceed to the Improving thereof , it being very well consistent , that it might be holden , and repute false by the Certification , and might also be proven to be false ; and though the Pursuer could not produce the Writ , yet the Process is not wholly determined by the Certification , but it may be justly desired that all evidences of the Forgery that were possible , without production of the Writ , might be taken to remain in retentis , in case the Principal should after be found , for there might be clandestine Assignations of the Writs made by Barclay , and Intimat at the Pursuers Dwelling-house , or Forged and Antedated Intimations made up , so that the Certification would not be effectual against the Assigney's , and though Parties should not insist , the Kings Advocat who is also Pursuer of the Process might insist , that the Witnesses might be Examined , for detecting of the Forgery ; and there could be no case more favourable then this , wherein Captain Barclay had Judicially produced the Writs , and now wilfully refuses to produce the same , and if Forgers shall escape , and be in no more hazard , but suffer Certification , though they have burnt , or wilfully keep up the Writs , it will be an open Door to encourage all Forgerers , neither have the Witnesses betrayed their Testimonies , albeit being Examined by the Lord Fivy , a Nobleman in the Countrey , one of them did Subscribe , who had just ground to think that it was no voluntar Deed , but that the Lord Fivy might have sufficient Authority for that effect ; but whatever objections were against Witnesses , they are ever Received in Improbations , and the Lords at Advising of the Cause do consider what their Testimonies may work , at which time only it will be proper to object .

The Lords notwithstanding these alleadgeances , Examined the Witnesses .

Rosse acknowledged that he being Servant to Captain Barclay , he called him up to Subscribe Witness to a Writ , but told him not about what it was , nor did not let him hear nor see what was written therein , but rolled it up , and presented only to him the white paper , near about the end of the Writ , and desired him to Subscribe Witness , and he saying that he could not be Witness , because he saw no body Subscribe , the Captain answered , that that was nothing to him , and that he should stand betwixt him and all danger , and that he would be loath to bid him do any thing would do him harm , whereupon he did Subscribe as Witness , and saw not the Tutor Subscribe at all , nor saw not his Name put to the Writ at that time , and that this was not at the Barns of Towy , the time of the Lairds Death , as the Date of the Paper bears , but at Achready five weeks thereafter . Ferguson Deponed that Captain Barclay having been his Tutor , he induced him to Write over the Bond of 100000. Pounds , whereof he had formerly gotten a Draught from Iames Midletoun Notar , wherein Debitor , Creditor , Sums and Date were blank ▪ and that he filled up Umquh●●● Towy Debitor , and the Captain Creditor , and the Sum 100000. Pound , and put in a Date as if it had been before the Lairds Sickness , albeit it was truly after his Death , and that the Captain shew him Towies Subscription in a Letter , and caused him feinz●e it to the Bond as near as he could ; and likewise Depones that the Captains Brother was the other Witness , but that he saw not what the Deponent had done , nor knew not thereof ; He also Deponed that he filled up the Date , and insert the Witnesses in the Disposition of the Estate of Towy , at the Captains desire , and made the Date to be at the Barns of Towy , at the Lairds Death , albeit it was done at Achready , about a Month or twenty days thereafter , and that there was no Subscription put thereto at that time , but that the Captain told him that he would get the Tutor to put his Hand to it thereafter , and that the Deponent refused to Subscribe Witness , because the Tutors Name was not thereat .

Upon these Testimonies both these Witnesses and Steel , who was formerly out upon Bail , were put in Prison .

Henderson contra Anderson , November 18. 1669.

HEwat having made a general Disposition of his whole Goods and Geir to Anderson , and thereafter having Disponed to Henderson , his Creditor Henderson pursues Anderson for Reduction of his Disposition , as being fraudulent in prejudice of Creditors , without any equivalent Cause Onerous , contrare to the Act of Parliament , 1621. against fraudulent Dispositions . The Defender , a●leadged that the Reason was not Relevant upon the said Act , because Hewat and Anderson were not conjunct persons , and because his Disposition buir an Onerous Cause , viz. for Sums due to himself , and for 2000. Merks , and other Sums , for which he was Cautioner for Hewat , and gave in a condescendence of the particular Sums , and offered not only to Depone thereupon himself , but to astruct the same by the Oath of Hewats Creditors to whom he payed . The Pursuer answered , that albeit ordinarly Dispositions amongst persons not conjunct , bearing Causes Onerous were sufficient , yet this Disposition being manifestly fraudulent , in that it is omnium bonorum , which the Receiver thereof could not but know to be in prejudice of the Disponers other Creditors , to whom there was nothing left , and so is particeps fraudis ; and likewise the Sum of 2000. Merks , which is the only Cause specially exprest , being instructed to be false by Discharges of the most part of that Sum by the Creditor to Hewat himself , the remainder of the Cause being general , ought to be instructed not by Andersons Oath , but by sufficient Probation , at least the verity of the Debt by Hewats Oath , and the payment thereof by the Oaths of Hewats Creditors , to whom it was payed , and that it was . payed by Anderson before the Disposition , at least that he was bound for payment thereof before the Disposition . The Defender answered , that Dispositions of Moveables are valide without any Writ , especially before any Diligegence done by the Pursuer , and if these who acquire Moveables were obliged to instruct the Cause otherwise then by their own Oaths , all Commerce would cease , and the Defender having taken a Disposition in Writ , can be in no worse case then if he had none .

The Lords having considered the Defenders condescendence , found that what wa● due to the Defender himself by Hewat before the Disposition , should be sufficiently instructed by Anderson's own Oath ; but as to what was due to him , or payed by him for H●wat , after the Disposition , and before any Right or Diligence of Hendersons , that the same should also be allowed , being instructed by Howats Oath , and these who received the Sums , and that accordingly Anderson should accompt for the whole Goods he meddled with , and pay the superplus thereof to Henderson the Pursuer , over and above the saids Articles .

The Creditors of Cowper and Balmerino contra My Lady Cowper . November 25. 1669.

THe Deceast Lord Cowper having made a Disposition of his whole Estate in Fee to his Lady , and thereby having excluded the Lord Balmerino , his appearand Heir therein , Balmerino being unwillingly to Enter Heir to Cowper , before he knew whether the Disposition would stand or not , moves some of Cowpers Creditors , and some of his own Creditors having Charged him to Enter Heir to Cowper , to insist in the Reduction of the Disposition , made to the Lady , as being done by Cowper , in lecto agritudinis . It was alleadged for the Lady no Process , at the Creditors of Cowpers Instance : First , Because they insist only upon Personal Bonds , granted by the Lord Cowper , and have no real Right to the Land , and so cannot Reduce a real Right , but upon a real Right : So till they have Apprized the Lands they have no Interest . 2dly , Albeit Cowpers Creditors might Reduce the Disposition , as betwixt conjunct Persons , without an onerous Cause , yet not upon the Reason , ex lecto , because that is a priviledge particularly competent to Heirs , but not to Creditors , as they are Creditors , unless by real Diligences , they state themselves in place of the Heir , and so make use of his Right and Priviledge . It was answered for the Pursuers , that in that they were Creditors , they had sufficient interest to crave it to be declared , that the Estate of Cowper should be Affected with Apprizings upon Cowpers Debts due to them , notwithstanding this Disposition , which is all the Effect of this Reduction ; and as they may , without any real Right , Reduce , or Declare as aforesaid upon the Act of Parliament 1621. against fraudulent Dispositions , so they may declare that any Disposition done on Death-bed , as it could not prejudge the Heir , so it cannot prejudge the Creditors of the Defunct , or his appearand Heir , but that they may affect the said Estate , with their Legal Diligences . It was answered for the Defender , that she repeats the former Defense . And further alleadges , that she is content to take off the interest of Cowpers own Creditors , and to Declare that the Disposition shall be burdened with their Debts : but adhered to her Defense against Balmerino's Creditors , who , though they produce an Apprizing , yet it is posterior to the Summons , and their Personal Debts can be no sufficient Title , nor is there any produced . It was answered for Cowpers Creditors , that the Declarator in their favours was no way sufficient , nor would not give them a real Right , nor prevent the Diligence of other Creditors . 2dly , If they had a good interest to Reduce , and thereupon to Apprize , no offer could take away that interest but payment .

The Lords found the Creditors had sufficient Interest upon their Personal Bonds to insist upon the Reduction , ex capite lecti ; but they found that a real Security given to Cowpers Creditors , equivalent to an Apprizing , and Infeftment was sufficient to exclude their Interest .

Monteith of Car●ubber contra Margaret Boyd . December 2. 1669

UMquhil Mr. Robert Boyd of Kips , dying Infeft in the Lands of Kips , and Gourmyre , and in a Miln , and having left two Daughters Heirs portioners , the younger having Married Monteith of Carrubber being dead , her Son and Heir raised a Brief of Division against the eldest Sister , whereupon Division was made in this manner , viz. The Rent of the Miln being Rated at a 100. pound the Chalder , being more than the Rent of the Land , the whole Land was set on the one part , and the Miln on the other , and because the Mansion-House belonged to the eldest Sister , the Land was Adjudged to her , and the Miln Adjudged to the other , and the superplus of the Rent of the Miln allowed , in satisfaction of the youngest Sisters Interest in the House . Carrubber raises Reduction of this Division , upon these Reasons : First , That the Lands ought to have been divided in two shares , and the House likewise , having convenient Rooms and Lodgings for both Families , in which they have Dwelt these 20. years , and not to have Adjudged the Miln only to him , stating the Victual , being only Meal , at a 100. pound the Chalder , far above the just value ; and stating the Miln-Rent equivalent to the Land-Rent , which is subject to many more Contingencies ▪ and Expenses in upholding the Miln , and difficulties in recovering the Rent ; and in the common estimation , is not accounted equivalent to Land Rent ; so that he is enormly les'd , and offered a 1000 merks to Margaret the eldest Daughter , to exchange shares , albeit the Rent of either share be but about three Chalders of Victual . The Defender answered , that the Reasons of Reduction were no way Relevant , because all Divisions ought to proceed , as is most convenient for either Party , and where least is left undivided● ▪ and the Division it self cannot have a precise Rule , but is in arbitrio of the Inquest , who were knowing Gentlemen of the Neighbourhead , and upon Oath ; so that unless the Lesion were ultra dimidium justi valoris , it cannot be recalled , seing an Inquest has the irrecoverable determination of Life and Death , which is of far greater moment than this , and this Division proceeded upon Carrubbers own Process , and the Inquest was called by himself . And albeit it be true , that if the Division could have been made , by giving both a share of the Lands , and a share of the Milns , if there had been more Milns , it might have been more equal ; but here , if the Land had been Divided , the Miln behoved to have remained for ever Common , and so the Division not be compleat . Likeas , the Miln lies at a distance from the Land , and near to Carrubbers own Land , and is not a casual Rent , arising from free Multures , but has the whole Barrony of Torphichen astricted by Infeftment ; and the Defender is willing to give 2500. merks for each Chalder of the Miln Rent , which is the ordinary rate of Land Rent ; and the reason why there was no Cavel , or Lot , was because the eldest Sister falling the Mansion House by Law , she behoved to have the Land therewith .

The Lords Sustained the Reasons , and Ordained a new Commission for a new Division ; here the Lords would not consider the Points severally , whether the Mansion House ought to have been Adjudged to the eldest Sister , and a Recompence to the second : Or whether such a House , being no Tower nor Fortalice , but which would be comprehended as a Pertinent of the Land , gave no preference ; so that Lots ought to have been cast upon the Division : Or whether the House could be divided , per contignaliones : Or whether the Miln , though it had been truly Rated , could have been put to answer the whole Land : Or that the Land behoved to be divided , and the Miln remain common ; but only generally , the Lords gave a new Commission for a new Division .

Weavers of Pearth contra Weavers at the Bridge-end of Pearth December 4. 1669.

THE Weavers of Pearth having pursued the Weavers at the Bridge-end , upon the 154. Act , Par. 1592. prohibiting Trads-men in the Suburbs of Burghs , to exercise their Trades , whereof mention is made , Iuly 21. 1669. The Defenders were then assoilzied . Now the Pursuers further alleadge , whereas it was then represented , that that Act had never taken effect , but was in desuetude . They now produce a Decreet of the Lords , at the instance of the Weavers of Edinburgh , against the Weavers of the Suburbs compearing , Decerning them to desist , and cease from bringing any of their Work within the Liberties of Edinburgh , and from coming within the same to receive Work ; and that upon the same Act of Parliament which cleares , that the same is not in desuetude , and it is founded upon a most just , and necessar Ground , viz. That Trads-men within Burgh pay Stent for their Trade , which were impossible for them to do , if the same Trads-men were permitted in the Suburbs , who might work cheaper then they , not being lyable to Stent .

The Lords Explained their former Interlocutor , and declared , conform to the foresaid Decreet of the Town of Edinburgh , viz. That Weavers in Suburbs might serve any in the Landward , but might not come within the Liberties of the Burgh , for taking up the Work of the Burgesses , in prejudice of the Free-men , who were Free-men of the Burgh .

Iohn Iaffray contra Alexander Iaffray and Doctor Iaffray his Son . Eodem die .

JOhn Iaffray , late Provost of Aberdeen , pursues a Declarator of the Escheat and Liferent of Alexander Iaffray his Brother . Compearance is made for Doctor Iaffray , Son to the Rebel , who produced a prior Gift , with general and special Declarator , and alleadges no Declarator at the Pursuers instance , upon this posterior Gift , because the Right is fully Established in his Person , by the prior Gift and Declarators . The Pursuer answered , First , That the Doctors Gift is simulat to the Rebels behove , and so accresced to the Pursuer , which appears from these Evidences ; First , That the Doctor is the Rebels own Son . 2dly , That it is retenta possessione , the Doctor having suffered his Father to possess for many years . 3dly , It was offered to be proven , per membra curiae of the Exchequer , that the Gift was purchased by the Rebels Means and Moyen , and severally it was offered to be proven by the Doctors , and his Fathers Oath conjunctim , that he had given a Back-bond , declaring the Gift to be to his Fathers behove . It was answered for the Doctor , to the first , that the Grounds of Simulation were no way Relevant ; for albeit he was the Rebels Son , yet he had means of his own , and was not in his Family ; and albeit he were not eager , to put his Father out of Possession of his House and Lands : yet his continuance of Possession is not Relevant , unless it had been to his death , or for a longer time : but any delay that was , is because it is but of late , that the Doctor hath obtained special Declarator , till which , he was not in capacity to discontinue his Fathers Possession : Neither can Members of Court be admitted to prove , that the Father wared out the Expence , and procured the Gift , because the Doctor , at the passing of the Gift , gave a Back-bond , that he being satisfied of the Debts due to him , and the Expences thereof , there should be place for the Rebels Creditors , and did make Faith at the passing of the Gift , that it was to his own behove , after which , no Winesses can be admitted against him , nor any other presumptive Probation , of the simulation of the Gift .

Which the Lords found Relevant , and found also the Pursuers Reply upon the Back-bond alleadged granted by the Doctor to his Father , Relevant to be proven by the Doctors Oath only .

Sir Iohn Vrquhart Supplicant . December 7. 1669.

SIr Iohn Vrquhart gave in a Supplication to the Lords , bearing , that he being Cited before the Council , upon several alleadged Riots , and fearing that he might be excluded from appearing in his own defense , by hornings against him ; therefore desired that the Lords would grant Suspension of all Hornings against him , ad hunc effectum only to give him personam standi in judicio , but prejudice to the Creditors of all other execution .

Which desire the Lords granted as to all Hornings he should condescend upon .

Pittrichie contra Laird of Geight . December 15. 1669.

MAitland of Pittrichie having obtained the Gift of Recognition from the King , of certain Waird-lands , held by the Laird of Geight , of His Majesty , pursues Declarator of Recognition upon Geights Alienation of the Lands , wherein compearance was made for the Purchasers thereof , who alleadged Absolvitor , because the time of their Alienation by the Law , and custom in force for the time , Such Alienations without consent of the Superiour were valide . The Pursuer answered , that any Law or Custom that then was , is now Annulled and Rescinded , as from the beginning ▪ The Defender answered , that no Laws of whatsoever Tenor , can be drawn back by invalidat Deeds , done by the Law and Custom for the time , especially as to Matters Penal , such as Recognitions , so that Parties having acted bona fide , according to any thing they could know for a Rule , cannot fall in the Penalty and certification of Recognition , which imports a contempt of the Superiour , and cannot be inferred by any Deed legal for the time . The Pursuer answered , that the contempt is the same , when the Vassal alie● nat● his Fee , without the Superiours consent ; and when such Alienations being by Law become void , and the Superiours Right of Recognition revived , the Vassal did not after that time crave the Superiours Confirmation as Heir : so he Laird of Geight having never sought Confirmation from the King since His Restauration ; it is no less contempt , than if since the Kings Restauration he had Alienat , especially seing the King refuses Confirmation to none who demand it . It was answered for the Purchasers , that the Vassal being Denuded in their favour , according to the Law standing for the time , his fault cannot lose their Right ; for though he should collude against them , yet that ought not to prejudge them , and there being no obliegment upon the Vassal to seek a Confirmation , to the behove of the Purchasers , they cannot be prejudged , for not obtaining the same . The Pursuer answered , that the Purchasers might have craved the Kings Confirmation of their Right , both for themselves , and in name of Geight the immediat Vassal , which Geight neither would , nor could oppose .

The Lords Repelled the Defenses in respect of the Reply , that no Confirmation was craved , neither by the Vassal nor Purchasers , his Sub-vassals , which they might have done if they had pleased , and therefore declared the Lands to be Recognosced .

Innes contra Innes . Ianuary 5. 1670.

Innes having granted an Assignation of an Heretable Bond of 6000. merks , 4000. merks thereof to Robert Innes his eldest Son , and 2000. merks thereof to William and Ianet Inness his younger Children , and in case of Roberts Decease , providing his part amongst the rest equally ; Ianes having died before Robert , her Heirs and Roberts Heirs compet for the sum , for Robert died without Children , and William as Heir to Robert , claimed the whole sum upon this Ground , that Ianet being substitute by the Father to Robert , without any mention of Ianets heirs , Ianet having died before Robert , she had never right , and her Substitution became absolutely void , and her Heirs not being exprest , this Substitution cannot extend to them , because , though ordinarly Heirs are comprehended , though not exprest , qui acquirit sibi acquirit suis , yet here is no Acquisition , but a voluntary Substitution , whereby it may be rationally conjectured , the mind of the Defunct was , that he would prefer Ianet to Roberts Heirs of line , not being Heirs of his Body ; but not that he would prefer Ianets Heirs , which were a degree further from his own other Bairns . And the case of Substitutions in the Roman Law was urged , that if the Substitute died before the Institute , the Substitutes Heirs have never place . It was answered , that Institutions and Substitutions with us , do far differ from the Roman Substitutions , whereby if the Institute succeed , the Substitute has never place as Heir to the Institute , but the Institutes Heirs whatsomever , which failing , the Institute is there interpret so , that if the Institute never be Heir , then the Substitute has place , as Heir of Tailzie , and provision to the Substitute ; so that here Ianets Heirs are Heirs to Robert , who had no Heirs of his Body , and do exclude William his Brother : and though Ianets Heirs be not mentioned , yet they are understood and comprehended , because in Tailzies and Provisions , there uses never to be an Institution or Substitution of a single person , without the Heirs of their Body . And though there be some singular Cases , in which Heirs not being exprest , are not comprehended , this is none of them . It was further alleadged for William , that William and Ianet being Substitute joyntly , Ianet deceasing before Robert , her share accresces to him , jure accrescendi ex conjuncta substitutione . It was answered , that there is here only substitutio conjuncta verbis , but disjuncta rebus , for the sum is declared to belong to William and Ianet equally , so that each of them has but Right to a half .

The Lords preferred the Heirs of Ianet , and found that they had Right as Heirs of Provision to Robert , and that they ought to be served to him , and not to Ianet , who had never Right her self , having died before she was , or could be Heir to Robert .

Elizabeth and Anna Boids . contra Iames Boid of Temple . Ianuary 6. 1670.

JAmes Boid of Temple in his Contract of Marriage , and in a Bond of Provision relative thereto , became oblieged to pay to the Bairns of the Marriage beside the Heir the sum of 20000. merks at their age of 17. years , reserving his own Liferent . Elizabeth and Anna Boids , the only Bairnes of the Marriage , now after their Mothers Death , and age of seventeen , do with concourse of their Husbands , pursue their Father to imploy the said sum of 20000. merks to himself in Liferent , and them in Fee . The Defender alleadged Absolvitor , because the Pursuers can have no Interest in this Provision , being expresly conceived in favours of the Bairns of the Marriage , beside the Heir : Itaest , The Pursuers are the Heirs appearand of the Marriage , there being no Sons , and will succeed to the Estate by the Contract , and so cannot demand the Provision made to the other Bairns , for if there had been a Son of the Marriage only , he could not have claimed this Clause ; and the Pursuers can be in no better Case than he . It was answered , that in Contracts of Marriage , the meaning of the Parties is chiefly to be respected , which has been , that in case there were an Heir-male , or Son of the Marriage , this Sum should belong to the remanent Bairns , and therefore it is conceived under the name of Heir in the singular number , and being introduced in favours of the Daughters , it ought not to be interpret against them , but that they may renunce to be Heirs , and be satisfied with this Provision only ; otherwise they may be absolutely excluded , the Fathers Estate being apprized by Iohn Boid , whose Legal is near to expire , and who makes use of the Fathers Name without his Warrand . It was answered , that Law allows not in any Contract to make up new Clauses , and seing the Provision is express in favours of the Bairns beside the Heir , it can never quadrat to thir Pursuers , who are the only Heirs .

The Lords found the Provision not to be extended to the Pursuers , but because it was suggested , that the Father did not propone it . They desired the Ordinar to enquire , whether the pursuit was for the Father , and by his Warrand , that then they might consider , whether Iohn Boid the Appryzer could have interest to propone that alleadgeance .

Ker of Cavers , and Scot of Golden-berrie Supplicants . Eodem die .

KEr of Cavers , and Scot of Golden-berrie being Arbit●ators nominat by a Submission , did by Bill crave Warrand from the Lords to authorize them , to summond Witnesses to compear , and Depone before them in the Cause in which they were Arbiters .

Which the Lords granted .

Iean Ker contra Downie . Ianuary 7. 1670.

JEan Ker having set a House in Edinburgh to Downie for nine Pound ten Shillings Sterling ; She obtains Decreet against him therefore : He Suspends on this Reason , that within 48. hours after he took the House , he did by Instrument give it over , which is the ordinar custom of Burghs , where there is no Writ , to quite the Bargain within a short space , unless some offer interveen , medio tempore , by which the Party is damnified . The Charger answered , that this House having been taken but fourteen days before the Term , there is neither Law nor Custom allowing either Party to give over or resile , there being then no competent time to set again : For albeit Houses sometimes are given over when they are taken , and quite before Warning time , when the ordinar occasion of setting to others may occur ; yet that cannot be drawn to this case , and the Instrument of over-giving , was only by Downies Wife , who shew no Warrand . The Suspender answered , that there was no difference , whether the House was taken before warning time , or after , seing the Law gives locum penitentiae , or some small time , which must take place in either case . 2dly , Albeit the Charger had not been obliged to accept the over-giving , yet de facto , she has accepted it , because it is offered to be proven , that she set the House to another , and took Earnest thereupon , which did import that she quite the first Bargain , seing at once she could not set it to two . 3dly , Albeit offer was made of the Keys at the Term , yet it is offered to be proven , that the House was not void , but that the former Tennents Goods remained therein .

The Lords Repelled the first Reason of Suspension , upon the over-giving but found that Member Relevant , that the House being given over , the same was set to another , and earnest taken therupon ; but found that Point , that the Tennents Goods , who possessed formerly , were not removed , not Relevant , in respect of the Custom in Edinburgh , not to remove peremptorly at the Term.

Mr. Laurence Charters contra Parochioners of Curry . Ianuary 8. 1670.

MR. Laurence Charters , as Executor Confirmed to Mr. Iohn Charters Minister of Currie his Father pursues the Parochioners for 1000. Pound for the Melioration of the Manse of Currie , conform to the Act of Parliament , 1661. which is drawn back to the Rescinded Act of Parliament , 1649. It was alleadged by the Parochioners , Absolvitor . First , Because the Meliorations of the Manse were long before any of these Acts , which do only relate to Meliorations to be made thereafter ; and for any thing done before adificium solo cedit , and it must be presumed to be done by the Minister animo donandi , there being no Law when he did it , by which he could expect satisfaction . 2dly , Several of the Defenders are singular Successors , and so are not lyable for Reparations done before they were Heretors . The Pursuer answered , that albeit these Reparations were done before the year 1649. yet there being subsequent Acts of Parliament , obliging the Heretors to make the Manses worth 1000. pounds , if these former Reparations had not been made , the Heretors of this Paroch would have been necessitate to make up the same , and so in quantum sunt lucrati tenentur . 2dly , The saids Acts of Parliament contained two Points , one is , that whereas the intrant Minister payed to his Predecessor 500. merks for the Manse , and his Executors were to receive the same from his Successor ; the saids Acts ordained the Heretors to free the Successor , as to which the present Heretors can have no pretence , and as to the alleadgeance , that they are singular Successors , the Acts oblige Heretors , without distinction , whether they are singular Successors , or not .

The Lords found the Parochioners only lyable for the 500. merks payed by the Minister at his Entry ▪ and found , that at the time of the Reparation , the Parochioners not being lyable , were not then lucrati , and are not lyable by the subsequent Acts , which extend not ad praeterita , neither did they find the singular Successors lyable , but that the Heretors for the time were only obliged .

Scot contra Murray . Eodem die .

IN a Process betwixt Scot and Murray ; a Husband having granted a Tack of his Wifes Liferent Lands , and the Wife having promised after his death , never to quarrel that Tack ; yet thereafter insisting against the Tennents , who alleadged upon the said promise , it was answered , that it being but a verbal Promise , not in Writ , it can be no more effectual , than if it had been a verbal Tack , which is only effectual for a year , and thereafter , the Setter may resile . It was answered , that here there is a Tack by the Husband for several years , and the Wifes promise never to quarrel it , needs no Solemnity in Writ , but is valid , as pactum de non petendo , or de non repugnando .

The Lords found the Wifes Promise effectual , and that she might not resile during the years of the Tack .

Lady Lucia Hamiltoun contra The Lands of Dunlap and Pitcon , and the Creditors of Hay of Montcastle . Ianuary 15. 1670.

LAdy Lucia Hamiltoun being assigned to a Bond of 4400. merks , grantted by George Hay of Montcastle , to the Earl of Abercorn , she Inhibits the said George , and Denunces , and Apprizes his Lands of Birklands and others , and thereupon pursues Reduction against Dunlap , and Pitcon , and certain other Creditors , in favours of whom , there is a Disposition granted of the saids Lands by George Hay , and ins●sts on this Reason , that albeit the Disposition bear , to be for sums of Money , and Causes onerous ; yet by a Clause therein , it is expresly declared , that it is granted to Dunlap and Pitcon , for satisfying of the Debts due to them : and to the effect they may sell the Lands for payment , and satisfaction of the said Iohn Hay , his other Creditors under-written , for the sums after-specified : after which words , there was left a large blank , which by ocular inspection , is now filled up with another hand , than he who Wrote the Body of the Disposition : and which Article so filled up , is in the same case , as if it had been set upon the Margent and subscribed , or as if it had been in a several Writ , wanting Witnesses , and cannot be holden to be of the same date of the Disposition , but must be presumed to have been filled up after the Pursuers Inhibition , and after she had Denunced and Apprized the Lands ; and therefore as to these Creditors so filled up , their Rights which are granted by Dunlap and Pit●on , the intrusted Persons , long after the Pursuers Inhibition and Appryzing , the same ought to be Reduced . It was alleadged for the Creditors Defenders , that the reason , as it is qualified , is no ways Relevant against them . First , Because the Disposition granted to Dunlap and Pitcon , being of the whole Lands , and they Infest accordingly , being long before the Pursuers Inhibition and Appryzing ; and the said Disposition and Infeftment , being to the Creditors behove , albeit their Subaltern Rights from Dunlap and Pitcon , be posterior , nihil referi : And whereas it is alleadged , that their Names and Sums are filled up in the blank , after the Inhibition and Appryzing with another hand , and so must be presumed of another date . It is answered , that the Subscription at the Foot and Body of a Writ , did necessarly infer , that the whole blanks were then filled up , unless the contrary be proven , neither uses the Names of fillers up of blanks to be exprest , and it cannot be presumed , that any man in prudence would subscribe a blank Writ , till the blanks were first filled up . 2dly , Though it could be proven that the blank was filled up after the Inhibition , yet the general Terms of the Clause being insert , a principio , with the same hand , viz. for satisfaction of the said George his Creditors , it is sufficient , although the particulars were insert after .

3dly , It is offered to be proven , if need beis by the Oaths of Dunlap . Pitcon , and the Witnesses insert , that before the subscribing of this Disposition , thir Creditors filled up , were particularly comm●ned on to be filled up , and no other . The Pursuer answered , that there being here pregnant Evidences of Fraud , by interposing intrusted persons , and preferring of some Creditors to others by the Debitor , who was Insolvent , and had no more Estate , in that case the filling up of the blanks must be presumed fraudulent and posterior , unless the Creditors prove it was truly● filled up before the Inhibition , otherwise it opens a Door to all Insolvent Persons in this manner , to exclude any of their Creditors from payment , and to have such Clauses ambulatory at their pleasure : Neither doth the general part of the Clause suffice , unless it had been in favours of the Disponers Creditors generally , or indefinitly , which would have comprehended the Pursuer ; but it being only of the Creditors under-written , if these were not under-written till after the Inhibition they , have no place : And as for any verbal Communing or Agreement , it cannot be effectual , until it be redacted into Write , which was not till after the Inhibition .

The Lords found that the blank being filled up with another hand , and so substantial a Clause , and the Writer not being exprest at the foot , that it was to be presumed , to be posterior to the Inhibition , unless the Creditors prove by the Witnesses insert , or others above exception , that it was truly insert before the Inhibition and Apprizing , wherein they would not admit the Oaths of the Persons intrusted , and they had no respect to the alleadgeance , that it was Communed and Agreed upon before the Subscription .

Doctor Balfour and his Spouse contra Mr. William Wood. Ianuary 18. 1670.

UMquhil Mr. Iames Wood having been Tutor to his Wifes Daughter , she being now Married to Doctor Balfour , they pursue Mr. William Wood , as Representing his Father for a Tutor accompt ; in which Accompt , the Auditors reported these Points . 1. The Pursuer insisted for the whole sums , bearing Annualrent , whereof no part belongs to the Wife , as Relict , she being excluded by the Act of Parliament . The Defender answered , that he opponed the Testament , and Confirmation unreduced , whereby there is a Tripartite Division of the whole Sums , and the Relict has one Third , which belonged to the Defunct Tutor , her Husband , jure mariti .

The Lords Repelled this alleadgeance , and found that the Errour of the Confirmation was Corrigible without Reduction .

2. The Defender alleadged that he was not comptable for the Annualrent of one of the Sums acclaimed , because by the Bond , it was provided in Liferent to the Relict , whereto his Father had right , jure mariti . It was answered , that the Tutor had given several Discharges of that Annualrent as Tutor , and not as Husband , and so had Homologat and acknowledged the Pupils right to the Annualrent . It was answered , that the Discharge was so granted by errour and mistake , & falsa designatio non obest ubi constat dere and offered to prove by the Bond , that the Wife was Liferenter .

Which the Lords found Relevant .

Andrew Hadden contra Nicol Campbel . Ianuary 25. 1670.

ANdrew Hadden having Charged Nicol Campbel upon a Bond Subscribed by him as Cautioner for Samuel Meikle Gold-smith . Nicol Campbel Suspends , and raises Reduction on this Ground , that he being an illiterate man , and could not subscribe , he was induced to be Cautioner for Samuel Meikle , but on these express Terms , that he should only be Cautioner for 1200. merks , and accordingly he gave order to the two Nottars , to subscribe for him as Cautioner for 1200. merks . The said Andrew Hadden the Creditor , being then present at the Warrand and Subscription , and yet a far greater Sum is filled up in the Bond , which he offers to prove by the two Nottars , the Witnesses insert , and the Communers . The Charger answered , that he oppones his Bond , being a clear liquid Bond in Writ , which cannot be taken away by Witnesses . The Suspender answered , that albeit regularly , Writ cannot be taken away by Witnesses , yet Fraud or Circumvention , or the Terms of Agreement , and Communing in Contracts , are always probable by the Oaths of the Communers , Writer , and the Witnesses insert .

The Lords would not receive the Reason to be proven in the ordinar way by Witnesses , but ex officio , ordained the Communers , Nottars , and Witnesses to be Examined , that they might consider the clearness , and pregnancy of their Testimonies , whether this Writ was Read to the Suspender , when he gave Warrand to Subscribe , and what was Read for the Sum , and on what Terms he gave Warrand to Subscribe .

Mr. Iohn Mcqueen contra Marquess of Douglass , and Mr. Peter Pearson . January 26. 1670.

MR. Iohn Mcqueen having been Minister at Carmichael , and Trainsported to Edinburgh , he continued to serve the Cure at Carmichael , till March 1669 and pursues the Marquess for the half years Stipend 1669. Compearance is made for Mr. Peter Pearson his Successor , who alleadged that he is presented in Ianuary to the whole Stipend 1669. and thereby has Right ; and Mcqueen was Transported before Ianuary 1669. and though he continued to Preach till February or March , yet being Transported , he was no more Minister , and did not Preach till the compleat Sowing , or Whitsonday , which is the legal Term for half a years Stipend of Transported Ministers . It was answered for Mr. Mcqueen , that Pearson not being Admitted Minister till August 1669. can have no right to a Term anterior , and the Patrons Presentation can give him no right , because the Patron has now no power of the vaccand Stipend .

The Lords preferred Mcqueen , seing nothing was alleadged for the Collector of the Vaccand Stipends , who , it is like , might have excluded both , for at Whitsonday , neither of them was in officio , or beneficio ,

Relict of Mr. Patrick She●ls contra Parochioners of West-Calder . Eodem die .

MR. Patrick Sh●ils having been Minister of West-Calder , he was Suspended by the Synod and Bishop , for not coming to the Presbyteries and Synods , and the Act Suspended him ; ab officio , and bear , that if he did not come to the next Synod , they would proceed to Depose him , yet he was not Deposed , but continued three years in the Possession of the Manse , Gleib , and Stipend , his Wife now pursues for an Ann , the next Intrant being admitted within three Moneths after Mr. Patricks Death , alleadges she could have no Ann , because Mr. Patrick was Suspended ab officio & benefici● , and produces an Act of the Synod bearing so much , and the Relict produces that same Act Extracted , and Subscribed by umquhil Mr. George Hay , who was Clerk at the time , and bears only Suspension , ab officio , and the Intrants Act is Extracted by the present subsequent Clerk , and bears ab officio & beneficio . The Relict alleadged , that the Act produced by her , was the only Act intimate to Mr. Patrick , and which is Subscribed by the Clerk , who was Clerk to the principal Act it self , and accordingly Mr. Patrick was in bona fide , and did possesse three years after .

The Lords adhered to that Act , and found the Ann due , and ordained the other Act to be keeped in retentis , that it might be compared with the Register , that he might be Cen●ured if he Extracted it wrong .

Lady Towie contra Captain Barclay . Eodem die .

THe Lady Towie insisted in the improbation of a Disposition , alleadged granted by the Tutor of Towie , whose Estate was provided to Heirs-male , but he had Disponed his Estate to the Pursuer his Daughter , upon which , no Infeftment had followed in his Life : And also for improving of a Bond of a hundreth and three thousand pound , alleadged granted by the Deceast Laird of Towie , both granted in favours of Captain William Barclay . In which Improbation , because the Writs were not produced , a Decreet of Certification , holding them as false and feinzied , and declaring them to make no Faith , was Pronounced and Extracted : and thereafter the Pursuer having desired , that Alexander Steil , and Iohn Ross , Witnesses insert in the Disposition , and Alexander Ferguson Writer , and Witnesses in the Disposition , and Witnesse in the Bond , should be Examined , lest by their Death , the means of Improbation should fail , in case the Writs were hereafter produced .

Whereupon the Lords Examined the Witnesses , Steil and R●ss by their Depositions , acknowledged , that they being Servants to Captain Barclay , he had induced them to Subscribe as Witnesses to a Writ , which he had folded up , and did not Read to them ; but they saw that there was no Name , as a Subscription thereto , at that time , but the Captain told them , that he would get the Tutor of Towies Subscription thereto , and that he had thereafter dealt with them to bide by the Writ , as a true Writ ; and that albeit it bear date at the Barns of Towie , the day after the Laird died , yet that it was truly Subscribed at the Captains House of Achridie , about a Month thereafter , Ferguson did Depone , that he had Written over the said Disposition , and that it was Subscribed at Achridie about a Moneth after Towie died , and that he had insert himself Witness therein , but had not Subscribed as Witness ; and that he was insert , and Subscribing Witnesse in the said Bond , to which he Forged , and set to the hand of the Deceast Laird of Tow●e , at the desire of the Captain , whose Pupil he had been . The other Witness in the Bond was Richard Barclay , who appeared not : upon the foresaid Disposition Captain Barclay had made Resignation before the Lords of Exchequer , and the same had been produced by him , and made use of in Processes before the Lords , as appeared by the Subscribed Minute , by Mr. Alexander Birnie his Advocat , acknowledging the getting up of that Disposition from the Clerk , which he had produced for Captain Barclays interest , and which he had delivered to the Captain immediatly , as he had received the same from the Clerk . Captain Barclay's Goodson Arnage , was also Examined , who Depo●ed that he had received a Message from the Captain , to deal with the Witnesses to come over to Edinburgh , and bide by the Writs . Captain Barclay himself was also Examined upon Oath , and Confronted with the Witnesses , but he denyed all the foresaid Points in their Testimonies , and Deponed that the said William Steil being his Servant , had run away from him , and carryed away the said Disposition and Bond , and had gone over to the Lady Towie , and conspired with her for his destruction . The Tutor also being Examined upon Oath , acknowledged he had subscribed several Dispositions of the Estate of Towie , in favours of Captain Barclay , and that some of them were Subscribed , no Witnesses being present , but that he had bidden the Captain put in what Witnesses he pleased ; and that whereas before he had declared , that he had Subscribed no Disposition , yet he had done it , being in the power of the Lady Towies Friends , who told him that Captain Barclay being next Heir-male of Towie , had a mind to take his Life , which he found afterward not to be true , and was willing to do any Deed for conveying of the Estate to the Captain , seing he had no Heirs-male of his own . The Clerks of Exchequer , Advocats , and several Writers and their Servants , were also Examined upon Oath , anent the having of the said Disposition and Bond ; The Clerks of Exchequer Deponed that the Disposition was produced in Exchequer , and Resignation made thereon ; and the r●st Deponed , that they had seen the Disposition and Bond , and were Consulted thereupon by the Captain , but had given them back to him .

Upon the whole Matter , the Pursuer craved , that now , seing there was sufficient Probation of the Forgery of the Writs , and that the Lords had produced before them a just double of the Disposition , presented to the Exchequer , that therefore the Lords would proceed to improve the same , and to declare that the same were false , and Forged by the Captain , and that they would remit him to the Justice General , according to the ordinary Custom in Improbations . It was answered for the Defender , that the Lords could not proceed to improve the Writs , because the Writs were not produced , and never any Writ in Scotland was improven , but when the principal Writ it self was produced ; neither can it otherwise be , for Improbation before the Lords , being ad effectum civilem , to take away the Writ , and Right therein , the same behoved alwayes to proceed upon a particular and individual Writ , which therefore behoved to be produced before the Lords and Witnesses ; for suppose it could be prove that a Write of such a date , and such a Tenor , was Fabricat , and Forged at such a time and place , which might in●er a Crime against the Forgers ; yet it could not take away all right by such a Writ , because there might be several Writs of the same Date ; and the making up and improving of a false Writ of such a Date , could not take away the true Writ of the same Date , unless the principal Writ it self had been produced , that the Judges and Witnesses might know that that was the very Writ in question . And therefore our Custom hath settled and fixed upon this Remeid , by allowing a Certification , that if the Writs called for to be Improven , were not produced , they should be holden and repute as false and feinzied , and should make no Faith : but did not find them proven to be Forged and Feinzied : but only to make no Faith , as if they had been fenzied , which in this Process has been done , and the Lords have neither Law nor Custom to do any further . 2dly , Albeit the Witnesses have by their own Testimonies declared themselves to be Forgers of false Writs , their Testimonies cannot prove that Captain Barclay was either Authour , or accessory to their Forgery ▪ because they are socij criminis , and have by their Testimony made themselves infamous , as Falsers ; and so there is no Faith to be given to their Testimonies , against any other but themselves : Besides , they have given partial Counsel to the Pursuer , and have betrayed their Testimonies , by voluntarly coming to them , and declaring what they would Depone ; and therefore the Lords can neither Improve the Writs , nor Remit Captain Barclay to the Justice , as a Falser . The Pursuer answered , that albeit the ordinar Course in Improbations , be only Certification , when the Writs are not produced : yet there is nothing to hinder the Lords to use extraordinary Remeids , in extraordinary Cases ; and there can be no Case more extraordinar than this , where there is an evident Tract of Forgery , for taking away a considerable Estate of sixscore Chalders of Victual Improven by the very Witnesses insert , and that the Writs have not been produced . It is the Defenders own fault , who knowing them to be false , wilfully Abstracts the same , and it will be a very great incouragement to Forgery , if the Forger knew that all his hazard will be , to suffer Certification , if his Forgery take not ; Neither were ever Witnesses in Improbation of Writs , exclude in the Civil Process , as being socij criminis : But if they acknowledge the Forgery thereof , they were Improved , though they themselves were accessory to the Forgery , otherwise if Witnesses can be induced to Subscribe as Witnesses to a forged Subscription , there were no possibility of Remeid , seing it cannot be thought , they would suffer any other to be present , or that the Forger himself would consess .

The Lords refused to proceed to Improve the Writs , not being produced , or to Remit the Parties to the Justice : But they did Declare , that by the Processes , they found Steil , Ross , and Ferguson , the Witnesses to be guilty of Forgery , by their own Confession ; and that they found Captain Barclay had made use of the Writs , acknowledged to have been Forged , and therefore ordained these of their number , that were upon the Privy Council , to Represent the Case to the Council , that they might cognos●e what furder Censure they saw just to be Inflicted : and it was the privat opinion of most of the Lords , that at least the Witnesses , and Barclay himself should be banished : But they found it not proper for them to express their opinion ; or prelimit the Council . But withal , the Lords found the Probation adduced , sufficient to Declare Captain Barclay and the Witnesses infamous , and did Declare them such accordingly .

Iames Watson contra Agnes Simpson . February 1. 1670.

AGnes Simpson being Infeft by umquhil Alexander Stewart her Husband in Liferent , in an Annualrent of 40. pound yearly out of the Lands of La●ellethem , she in Anno 1657. obtained a Decreet of Poinding of the Ground , and the Tennents having Suspended on multiply Poinding calling her , and James Watson and others , wherein she is preferred in Anno 1666. to her Annualrent , for all years bygone , and in time coming . In which 〈◊〉 of multiple Poinding , Watson was absent . Watson making use of the names of the Tennents , does raise a second Suspension , Anno 1668. wherein he is called on the one part , and the said Agnes Simpson on the other part , which now coming to be Discust ; it was alleadged for the said Iames Watson , that the Decreet of multiple Poinding against him , being in absence , he ought now to be heard upon his Right , which is a publick Infeftment , long before the Liferenters base Infeftment , or before it was cled with Possession . It was answered , that by the express Act of Parliament , anent double Poindings , It is Declared , that where parties are called , and compear not , but intent Reduction of the Decreet , that they shall never be heard against the Decreet , or what the obtainer thereof has uplifted , unles● they shew a sufficient Cause of their absence ; and that the obtainer of the Decreet shall only be obliged to answer the other Party in the second instance , according to the Right , which is then competent in his Pe●son , and the obtainer of the Decreet shall have undoubted Right to the Mails and Duties , ay and while he be warned at the instance of the other Party , and better Right shown , as is clear by the Act of Parliament , 1584. cap. 3. So that Watson having yet raised no Reduction of the Decreet of multiple Poinding , preferring Simpson , but only a second Suspension in name of the Tennents , who Suspended before , the said Agnes Simpson her Decreet standing , and her Right standing thereby , cannot be taken away , till in a Reduction Watson produce a better Right . It was answered , that Watson does not contend for the years lifted by Simpson , or for any years prior to his second Suspension , albeit he does produce an unquestionable Right , that would exclude her from all ; yet in regard of the Act of Parliament , he is sati●fied she be preferred , for all years , till he in his second Suspension , produce his Rights ; but alleadges that he needs not raise Reduction , because the Act of Parliament does not require the same , but any Complaint or Process is thereby sufficient ; Neither does the ordinar course of Law require a Reduction of a Decreet in absence , but a Suspension alone is sufficient ; and if he be put to a Reduction , his unquestionable Right will be excluded for all years bygone , and ay and while he raise his Reduction , and produce his Right . It was answered , that albeit the ordinar course requires not Reduction of Decreets in absence , yet the Act of Parliament requires the same , because in the Narrative , it expresly mentions , that the party absent in the double Poinding , uses to raise Reduction : And in the Statutory part , it mentions , that the other Parties Complaint shall be heard in the second instance , which is always understood to be Reduction or Declarator , and in a second Suspension .

The Lords found that Reduction was necessary to take away a Decreet of multiple Poinding in absence , and that a second Suspension was not sufficient , and therefore preferred Simpson , and found the Letters orderly proceeded , but prejudice to Watson to raise his Reduction for the Duties in time coming .

Alexander Jack contra Collonel Borthwick . February 2. 1670.

ALexander Jack alleadging that he Subscribed a blank to have been filled up in a Bond of Cautionry , in a Suspension , which was found among the Writs of umquhil George Jack , as a blank Paper , who lived several years thereafter ; and after his Decease , his Relict finding the same , caused fill up in the blank , a Bond of ten thousand pound , as being borrowed from Thomas Boid of Pinkill , and is now in the Person of Collonel B●r●hwick , who having Charged thereupon , the said Alexander Jack Suspended , and raised Reduction on this Reason , that he had never any medling , or borrowing with the said Thomas Boyd ; but that the said Bond was a blank Paper , found among the Writs of the said Deceast George Jack , and neither he nor the said Alexander were ever worth so great a sum : and now seing Collonel Borthwich did not insist in his Charge ; Jack was necessitate to proceed to take away the Bond , and craved that the Lords would Examine Witnesses , ex officio , upon the truth of this Reason .

The Lords ordained the Writer , and the Witnesses to be first Examined , ex officio , and thereafter other Witnesses , as the Lords should see Cause .

Earl of Kinghorn contra The Laird of Pittarro . February 3. 1670.

THe Earl of Kinghorn pursues a Declarator of the nullity of a Bond of 1000. merks granted by his Father ▪ and now standing in the name of Pi●tarro , as Creditor on this Ground , that he never borrowed the sum from Pittarro , nor delivered this Bond to him ; but having Trusted umquhil Alexander Keith , as his ordinar Agent and Writer , with this Bond , blank in the Sum and Date , to have borrowed Money upon the same , took never effect , but remained so blank in the hands of Alexander Keith , for many years , till his Death , and thereafter in his Relicts hands , till her Death , and after her Death the blank was filled up , by John Bane her Brother , and the Date made in Anno 1647. whereas the Bond mentions Alber as Cautioner , who Died before the year 1640. whereupon Pittarro's Oath , and the Oath of Alexander Keith , Friend to the said umquhil , Alexander being taken , Pittarro acknowledged that the Bond was blank , and filled up by the said John Bane , as the Reason bears , and that he received the same by advice of this Alexander Keith , in satisfaction of 1000. merks , and 40. pound due to Pittarro , by Mr. Roger Mowat , and lifted from him by umquhil Alexander Keith , by Pittarro's Warrand , for which he obtained Decreet against Alexander Keith his Executrix before the Commissars , now produced in Process , and proceeding upon a missive Letter of umquhil Alexander Keiths , acknowledging the Debt . It was answered for Pittarro , that by the Bond produced , it was clear that his Name was in the Bond , ab initio , as Creditor , and was not filled up , ex post facto , neither was there any wrong in filling up this Sum , because he having already proven , that Alexander Keith had uplifted the like Sum of his from Mr. Roger Mowat , and that my Lord Kinghorn being Debitor to Keith in considerable Sums of Money , payed to his Creditors , conform to Discharges produced in Process , Alexander Keith might lawfully have filled up the Sum in the Bond , for Repayment of Pittarro , whose Money he had uplifted , and any Friend of his had done my Lord Kinghorn no wrong , seing thereby he would be exonered of the like Sum to Keith , and was content yet to Compt and Reckon with Kinghorn , for Alexander Keith , and to Restrict his Sum , to what shall be found due by the umquhil Earl of Kinghorn to Keith . Likeas , this Alexander Keith by his Oath in Process Depones that he heard that umquhil Alexander Keith , on his Death-bed Declared , that Kinghorn was Debitor to him in nine thousand merks : and therefore he thought it no fault to fill up the blank in this Bond. It was answered for Kinghorn , that albeit umquhil Alexander Keith was trusted by the umquhil Earl of Kinghorn with this blank Bond , that Trust being meerly personal to him . It was a most unwarrantable trinkating for any other after his Death , to fill up the Bond , especially seing neither by Testament , nor any other Writ umquhil Alexander Keith , who only was intrusted , and who lived many years after , and was no ways surprised with Death , did signifie that the Money was borrowed from Pittarro , or taken from any of his Creditors and applyed to Kinghorn's use , and the hear-say of this Alexander Keith is of no moment : and if any thing be due by Kinghorn to Keith , the Pursuer Represents his Father as Heir , and shall answer Pittarro , or any Executor or Creditor of Keiths , whenever he shall be pursued : but cannot be insisted against , upon this Bond , so unwarrantably filled up .

The Lords found the Declarator Relevant and Proven , and therefore Decerned the said Bond null , reserving Action against Kinghorn , upon any Debt due by Kinghorn to Keith as accords .

Tutor of Colzean contra The nearest of Kin of the Pupil . February 5. 1670.

THe Tutor of Colzean having cited the nearest of Kin of his Pupil , to hear and see it found and declared , that the Pupils Lands were set too high , and could not be keeped at these Rates , and that the Tennents were in Arreir before his Tutory in great Sums , which if he should exact , would cast the Land waste ; and that it was for the good of the Pupil , to set the Land at lower Rates , which it might be able to pay , and to quite so much of the Arreirs , as the Tennents might pay the rest , and be able to continue and Possess .

There being no compearance , the Lords gave Commission to certain Gentlemen in the Countrey to Examine the Rate of the Land , and the conditions of the Tennents , who have reported several of the Rooms to be too high set , and what ought to be given down , and what behoved to be quite to each Tennent , that was deep in Arreir , to inable him to pay the rest , and L●bour the Ground .

The Lords approved the Report , with these Qualifications , First , That the Tutor should Discharge nothing simply , but only till the Pupillarity were past , that himself and Curators might then proceed as they saw Cause , and that the Tutor , before any Abatement of the Rooms , should cause make Intimation at the Mercat Cross of the Jurisdiction , and at the Paroch Church that such Lands were to be set , at such a place , such a day , and whoever bade most for them , being sufficient Tennents , should have them , and that at the said day , if a better Rate were not gotten , the Tutor might then , or thereafter , set at the Rates contained in the Commission .

Daniel Cathcart contra Mccorquodail and Mr. Iames Mirk . February 8. 1670.

Mccorquodail having Married the Daughter of Mr. James Mirk , he , and the Barron of Mccorquodail his Brother , are obliged to pay yearly 600. merks to the Wife , after the Husbands Death : and Mr. James Mirk is obliged to pay to Mccorquodail 7000. merks of Tocher : Mccorquodail being Debitor to Daniel Cathcart Writer in Edinburgh in 600. merks . He arrests the Tocher in Mirks hands , and pursues to make forthcoming , and for instructing , produces the foresaid Contract of Marriage . It was alleadged for Mirk that he is not obliged to pay , or make furthcoming the Tocher , unless his Daughter were secured in her Jointer , for the Tocher and Jointer being the mutual causes of the Contract ; neither Mccorquodail nor any deriving Right from him by Assignation , or Arrestment , can demand the Tocher till they secure the Jointer , and that exception is Relevant , both against Mccorquodail and his Assignies . It was answered for the Pursuer , that if it had been provided by the Contract , that the Tocher should have been employed for the Wifes security , the Defense had been Relevant , or there might be some pretence , if there were an obligement upon the Husband to secure the Wife in Land or Annualrent for 600. Merks . But the Contracters having agreed for no security for the future , but having agreed upon a Personal security , viz. of the Husband and his Brother , the Husbands part of the Contract is performed , and the Husband is no ways Creditor till his Death .

Which the Lords found Relevant , and in respect of the conception of the Contract as aforesaid , Repelled the Defense , and Decerned .

Iohn Scot contra Alexander Cheisly and David Thomson , February 9. 1670.

IOhn Scot pursues a Declarator of Circumvention against Alexander Cheisly , and David Thomson , bearing that Alexander Cheisly having a Processe against the Magistrats of Glasgow , for alleadged hindering the Executing of a Decreet , and imprisoning him , and being in an evil Condition in his Means , he proposed to the said Iohn Scot his Good-brother , that he must make use of his Name as Assigney to that Process , lest his Creditors might affect any thing that might be obtained thereby , and that Iohn Scot should give a Back-bond , declaring that his Name was put in the Assignation upon Trust. In stead of which Back-bond , he caused draw up a Bond , bearing that forsomuch as Alexander Cheisly had Assigned Iohn Scot to a Process against the Town of Glasgow therefore , and for other good Causes and Considerations . Iohn Scot obliges him to pay to a blank Person 3850. Merks , in which Bond Alex●nder Cheisly , filled up David Thomsons Name , and which Bond was obtained by Alexander Cheisly , by gross Circumvention upon the absolute Trust the said Iohn Scot reposed upon the said Alexander , for clearing whereof he condescends on these Points , viz. that the said Iohn Scot was Goodbrother to the said Alexander Cheisly , had been his Prentice , and the said Alexander was his Curator , and the said Iohn Scot is known to be a simple Person , and the said Alexander Cheisly to be a subtile Person , ready to take advantage : Likeas it is evident that he did take advantage of the said Iohn Scot , about that same time , pretending that he was more able to act Iohn Scots Affairs then himself , he procured Assignation from Iohn Scot to Bonds of twenty eight thousand Merks , and put in the Assignation● Clause of absolute Warrandice , albeit by a Back-bond of the same Date , it be clear that the Assignation was only granted for Love and Favour , and for Agenting the Matter , and that the one half should belong to Cheisly for his pains , and the other to Scot , but prejudice to Scots obligements in the Assignation , which could be no other but the Warrandice , whereby albeit Cheisly knew that a part of the Debts were payed to Scots Father , and a part was insolvent , and that Scot who was Assigney by his Mother as Executrix , had no more himself but Warrandice from her Deed , yet by the absolute Warrandice he intended to be sure of the one half of the Sums , although it s known that hardly the half will be recovered , whereby Cheisly should have all , and Scot who freely granted the Assignation should have nothing , but less than nothing , by being obliged to make up the half , though so much were not recovered of the whole . 2dly , All the pretence of the Plea against Glasgow could never amount to 3850. Merks , yet the Bond is conceived for absolute payment of that Sum , albeit it was a meer Plea , depending many years , and Debated without success . 3dly , Cheisly himself did ever keep the Process and Assignation , and did transact the Plea , or a great part thereof with the Magistrats of Glasgow , and got payment . In this pursuit there was no Compearance for Cheisly , but it was alleadged for David Thomson , that whatever had past betwixt Cheisly and Scot , no ground of Circumvention betwixt them could be Relevant to take away his Right , who seeing the blank Bond filled up with his Name by Cheisly , before it was brought to him , and given to him for Debt due to him by Cheisly , and he being nowayes particeps fraudis , Cheislies Fraud or Circumvention cannot prejudge him , for albeit Extortion vi majori be vitium reale , that follows the Right to all singular Successors , yet fraud is not , and reaches none but participes fraudis , both by the Act of Parliament 1621. and by the civil Law . L.

It was answered for Scot , that albeit it be true that an Assigney for an O●erous Cause cannot be prejudged by the Oath of his Cedent , and consequently by no Circumvention probable by his Oath ; yet in Personal Rights an Assigney is in no better case then the Cedent , nisi quoad modum probandi , but what is relevant against the Cedent , and competent to be proven , either by Writ or Witnesses is competent against the Assigney , so that the Circumvention against Cheisly being inferred by pregnant Evidences and Witnesses , and not by his Oath , it must be effectual against Thomson , whose Name being filled up by Cheisly , is in effect Cheislies Assigney , for so all blank Bonds are commonly found by the Lords to have the same effect with an Assignation . 2dly , Assignies without an Onerous Cause , even as to the Oath of the Cedent , or any other consideration are in no better case nor the Cedent ; but here there is no Onerous Cause appears , for which Cheisly transmits this Right to Thomson , for the Bond ●ears not that for Sums of Money due by Cheisly to Thomson , or any other Cause Onerous on Thomsons part , that Scot should be obliged at Cheislies desire to pay Thomson , but only that because Cheisly had Assigned a Process to Scot , therefore Scot becomes obliged to pay to Thomson . 3dly , As there is no Cause Onerous instructed on Thomsons part , so his own Oath de calumnia being taken , renders the matter most suspitious , by which he acknowledges he got the Bond from Cheisly , and that Cheisly was not then his Debitor for so great a Sum as in the Bond , but that by payments made to him , and for him , thereafter he became his Debitor in an equivalent Sum , but Depones that he hath nothing to instruct the Debt , nor no Note thereof in his Compt Book , though he be an exact Merchant and Factor , so that there is no Evidence or Adminicle of an Onerous Cause instructed . And lastly , Albeit Parties getting blank Bonds bearing borrowed Money from the blank Person , whosoevers Name is filled up , the Bond then bears the Sums borrowed from him whose Name is filled up , and cannot be taken away but by his Writ or his Oath , but this Bond bears only a Process Assigned by Cheisly , and no borrowed Money , or other Cause by Thomson , and Thomson living in the same Town with Scot whom he knew , and is commonly known to be a simple Person , and Cheisly a subdolous , he ought before accepting of the Bond to have acquainted Scot of the filling up of his Name , and if he had any thing to say , and cannot now pretend that he acted bona fide , but either must be in dolo or in lata culpa , quae dolo aequiparatur .

The Lords found that having considered the Tenor of the Bond , and Thomsons Oath , Thomson was in the same condition as to the relevancy and probation of the Reasons of Circumvention against Cheisly , and therefore found the Libel Relevant against them both to annul the Bond , the Apprizings , and Infeftment , and all that had followed thereupon .

Naper contra Gordon of Grange , Feb. 12. 1670.

IOhn Naper , as Representing his Father , did Pursue William Gordon of Grange , as Representing Hugh his Father , for payment of 2000. Merks , due by the said Umquhile Hugh his Bond , and upon the said Williams Renuncing to be Heir , obtaind Adjudication of the Lands of Grange and others , in so far as might belong to the said Umquhile Hugh his Debitor , his Heirs ; and thereupon did Pursue the Tennents for Mails and Duties . In which Action , it was alleadged for William Gordon , now of Grange , that he stands Infeft by Disposition from the said Umquhile Hugh Gordon of Grange , his Father , for Onerous Causes , and Sums of Money undertaken , and payed for his Father , which was found Relevant ; and to evite the same the said Iohn Naper raised Reduction of Grange's Right granted by his Father , ex capite Inhibitionis , raised against his Father upon the said Bond , before the Disposition made to this Grange ; which Inhibition being produced this day fourtnight , it was alleadged for Grange that the samine was null , because the Executions buir not a Copy to have been lest at the Mercat Cross , at the publication of the Inhibition , which the Lords found Relevant , and now the Pursuer insisted on this Reason , that the Disposition though it buir Onerous Causes , yet being after the Contracting of his Debt , by a Father to a Son , the Narrative bearing the Cause thereof , is not Probative against a third Party , but the same must yet be instructed .

Which the Lords Sustained , and ordained Grange to produce the Instructions thereof .

William Lowry contra Sir Iohn Drummond , Feb. 18. 1670.

UMquhile Sir Robert Drummond of Meidup , having Disponed the Lands of Scotstoun to Sir Iohn Drummond of Burnbank ; Mr. Iohn Drummond Writer in Edinburgh , his Grand Nevoy , intending to Reduce that Disposition as on Death-bed , grants a Bond to William Lowry of 12000. Merks , who thereupon having Charged the said Mr. Iohn to enter Heir in special to the Lands of Scotstoun , to the said Sir Robert his Grand Uncle , Apprizes from him all the Right of the Lands , that might be competent to him , if he were entered Heir , and thereupon raises Reduction of Sir Iohn his Right , as being granted by Sir Robert on Death-bed , in prejudice of his nearest Heirs , in whose place the Pursuer now is by the Apprizing . It was alleadged for the Defender , no Process upon any Charge to enter Heir against Mr. Iohn Drummond , because he is not the nearest appearand Heir , but has an elder Brother living . The Pursuer answered , that the said elder Brother had gone out of the Countrey 18. years agoe , and was commonly holden and repute Dead ; likeas he produced a Missive of one Crei●htoun his Commerad in the War abroad , bearing the Circumstances of his Sickness , Death and Burial , Dated Iuly 6. 1667. It was answered , that semel vivus semper presumitur vivus nis● contrarium probetur , and what was alleadged could be no probation , but some probabilities of Death . The Pursuer answered , that the brokard is but presumptio juris , and not presumptio juris & de jure , and therefore only trans●ert onus probandi , which Probation may be valid without Witnesses , by such adminicles as the Lords shall find sufficient , which are here sufficiently alleadged , viz. long Absence , common Fame , and a Missive Letter .

The Lords found that eighteen years Absence , and being holden and repute Dead , was sufficient Probation to take off the presumption of Life , unless a stronger Probation for the Parties being on Life were showen , then the naked presumption thereof .

Lauchlen Lesly contra Guthry . Feb. 19. 1670.

LAuchlen Lesly having Fraughted a Ship belonging to Bailly Guthry in Dundee , to carry a Loadning of Wheat and Oats from Athol to Leith , the Skipper did put in by the way at Dundee , and there the Ship received a Crush by another Ship , whereby the Salt-water entered amongst the Victual , and thereupon the Owners and Skipper caused Disloaden the Victual , and put it up in Lofts , and Bailly Guthry the next day after the Crush , gave notice to Robert Lesly in Dundee , Lauchlens Correspondent , and who made the Bargain for him , to make it known to Lauchlen what had befallen the Ship and Loadning , who within two dayes after came to Dundee and was required to Receive the Victual , which he refused , and by the Probation adduced in this Cause it was found that it was the Skippers Fault , that he had put in to Dundee , and so he and the Owners were found lyable for the damnage and interest of the Merchants , and that the Merchants should be only obliged to take back that Part of the Victual that was unspoiled , and the Owners should be lyable for the Price of the whole as it would have given at Leith , if the Skipper had keeped his Course , deducing the Price of the sufficient Victual as it now gives , and a Commission being granted to certain Persons in Dundee to visit the Victual , and to see what condition it was in , they reported that 36. Bolls of it was sufficient Mercatable Wheat ▪ and that the Oats was damnisied in 20 Shilling the Boll , and as to the rest , two reported that it would yet be Brisket for Ships , or Houshold Servants , and two reported that it was spoiled , but spake nothing further . The question arose to the Lords upon the Commission at the Advising thereof , whether the Owners and Skipper should be lyable for the damnage that was done before the Advertisement given to the Merchant , or for the damnage that ensued thereafter , because the Victual being laid together , without separating the wet from the dry , had het and spoiled thereafter , and if it had been separat at first , the damnage would have been very litle , and so the question was , whether the Owners and Skipper were obliged to have separat the wet from the dry , and so to have offered it to the Merchant , or if the offer in general to the Merchant to receive the Victual was sufficient , though he did not desire them to separat the wet from the dry , or that they did not offer satisfaction , or security for the damnage of what was wet .

The Lords found that seing the damnage had fallen after , and through the occasion of the Skippers delay , he and the Owners were obliged to separat the wet from the dry , and to have used diligence to prevent future damnage , wherein having failzied , they found them lyable for the whole damnage , both before and after the offer ; the next question arose was , whether the Skipper and Owners were obliged to take the spoiled Victual , and pay the Price thereof , as if it had been sufficient , or if the Merchant was obliged to take it , and the Owners to make up the damnage .

The Lords found that seing the Victual remained yet in specie , and was not wholly Corrupted , but by the report appeared to be useful for Ship Brisket , and seing the property thereof still remained in the Merchant , , and the Owners were only lyable for damnage ; They ordained the Merchants to Receive the wet Victual , and gave Commission to the same Persons to report what it was worse then the Price it would have given at Leith , if the Voyage had held .

The Countesse of Cassills contra The Earl of Cassills , February . 22. 1670.

BY Contract of Marriage betwixt the Deceast Earl of Cassills and his Lady , he is obliged to Infeft her in certain Lands , with absolute Warrandice , and obliges him that the Lands did pay then , and several years before 6000. Merks of yearly Rent , beside Kanes and Customs , and over and above Teinds and Feu-duties , and if it shall please the Lady within six Moneths after the Earls Death , rather to choise six thousand Merks of free Rent , then to retain the Possession of the Land , and to give a Tack to his Heirs and Successors of the Liferent-lands : Then and in that case he obliges his Heirs and Successors to pay her 6000. Merks yearly . Therefore the Countesse has made it in her option , and offers to take , and Pursues the Earl her Son to pay yearly the said Sum of six thousand Merks of free Rent ; who alleadged , that albeit that Clause be mentioned to be free Rent , yet he must have allowance of Cess , Maintainance , and other publick Burdens , because by free Rent can only be understood , free of Teinds and Feu-duties , in respect that this being a Tack-duty for the Liferent-lands , the Lady thereby can be no further free , then if she enjoyed the whole Lands , which the Earl is only obliged to make worth 6000. Merks of yearly Rent , over and above Teind and Feu-duty ; but neither does it bear generally of free Rent , much less of publick Burdens , and therefore the subsequent Clause for the Tack-duty , albeit it bear free Rent , yet it can only be understood to be free of Teind and Feu-duty , and not to be free of publick Burden , which is further cleared by the Act of Parliament 1646. Ordaining all Liferenters to hear proportional Burden for any Annualrent , or Tack-duty belonging to them in Liferent , unlesse they were expresly freed of Maintainance . It was answered for the Countess , that she oppones the Clause of her Contract , bearing free Rent , without ●●nitation , and Contracts of Marriage are to be extended in favours of Women , and as to the Act 1646. the same is Repealed , and not Revived again .

The Lords found that by the Contract of Marriage , the Countesse was no● free of Cesse and Maintainance , which were the only Points at In●●●●cutor ; But if any Debate arose concerning the ordinar● Taxation , or the Outrikes , or allowance to Militia Horse , the Lords would hear the Parties thereanent , and accordingly the next day found the Clause did free my Lady of the ordinar Taxation , Militia , and so much of the Cesse as the Tennents of the Lands payed to my Lord .

Murray of Achtertire contra Sir Iohn Drummond , Eodem die .

THe Deceast Earl of Tulli●airn having Wodset the Lands of Logy-Almond , to William Murray of ●chtertire , by a Contract of Wodset in February 1656. by which the Earl Assigns . Achtertire to the Mails and Duties of the Lands , due for the Cropt 1656. at Whitsunday or Martimess , or any other Term , and obliges him to Deliver to him the Keyes of the House , and to enter him in the Possession at Whitsunday 1656. The Earl having Sold the Lands to Sir Iohn Drummond , whose entry was to be at Whitsunday 1668. and having used an order of Redemption in the Earls Name , because the Reversion did not extend to the Earls Assignies , and having obtained Declarator , Decerning Achtertire to denude himself of the Lands , who in obedience of the Decreet grants a Renunciation , Reserving to himself the Mails and Duties for the Cropt and year 1667. Achtertire insists for the Duties of the Cropt 1667. which are payable at Martimess 1667. The way of payment of the Rent of those Lands , and many others being , that the Tennent enters at Whitsunday , and payes his Rent at Martimess thereafter for the whole year ; and if he remove at the next Whitsunday , he payes no Rent at that Term , but leaves his Corns Sowen by him upon the Ground , which he Shears after his removal . Whereupon it was alleadged by Sir Iohn Drummond , that this way of payment being aforehand Duty , whereby the Tennent payes at Martimess before he Sowes the Cropt , for the Cropt of the year of God subsequent to the Martimess , that therefore Sir Iohn entering at Whitsunday 1668. and having Right to the Duties due for the Cropt and year 1668. he has Right to the Duties due at Martimess 1667. because that Duty albeit not payable in the year 1668. yet is payable for the Cropt 1668. seing the Tennent if he were removing at Whitsunday 1668. would for the payment made at Martimess 1667. carry free with him without any payment , the whole Corns of the Cropt 1668. so that if Sir Iohn should enter to the void Possession of the Land at Whitsunday 1668. he should have no benefit of the Cropt 1668. but only of the Cropt 1669. It was answered for Achtertire , that he has the only Right to the Rent payable at Martimess 1667. and Sir Iohn can have no Right thereto , because his entry being but at Whitsunday 1668. he can have no Interest in the Cropt then Sown , and standing on the Ground , unto which no Buyer did ever pretend , but the Seller if he be in natural Possession , takes always with him his own growing Cropt , even after the Buyers enters into Possession , and so do all outgoing Tennents , and so did Achtertire at his entry , which being at Whitsunday 1656. he lifted the Duties due at Martimess thereafter , but lifted not the Martimess Duty of the Cropt 1655. payable before his Wodset , and therefore now he must lift the Rent due at Martimess 1657. or otherwise he wants a years Annualrent ; and if Sir Iohn Drummond should lift a years Rent due at Martimess 1667. and an other years Rent due at Martimess 1668. he should have two full years Rent of the Land within half a year of his entry , which was at Whitsunday 1668. and which can never be understood , except it had been clearly so expressed by the Parties , neither is there here any further forehand Duty , then what ordinarly Tennents paying Silver Rent , and not Inlayed or Rentalled Victual entering at Whitsunday do , for they pay the one half of there Rent at Martimess thereafter , and the next half at the Whitsunday following that Martimess , and for his years Rent they must have a years Cropt both of Grass and Corn , and all the difference here , is that the Rent due for the Possession from Whitsunday 1667. to Whitsunday 1668. is payable together at Martimess 1667. in the middle of the year , whereas if it had been according to the ordinar course of Silver Rent , being payable half at Martimess 1667. and half at Whitsunday 1668. Sir Iohn Drummond who entered but at the Whitsunday 1668. could have no Right to the Rent even payable at Whitsunday 1668. so neither can he claim it , when it is payable jointly at Martimess 1667.

The Lords found that Achtertire had Right to the Rent payable at Martimess 1667. and that Sir Iohn Drummond had Right to no part thereof .

Ierdan of Apilgirth contra Iohnstoun of Lockerby , Feb. 24. 1670.

APilgirth having Apprized Lockerbies Estate , and pursuing on the Apprizing . Lockerby alleadged that the Apprizing was satisfied , at least he offered presently what was defective in this Accompt ; Lockerby alleadged upon a Wodset Right , whereof an order was used , whereupon the question arose , and was reported by the Auditor , whether after order used for Redemption of a proper Wodset , the Sums Consigned , being immediatly taken up by the Redeemer , and the Wodsetter remaining four , or five years in Possession thereafter , and Declarator of Redemption being obtained upon production of the Sums consigned , with the Annualrent from the Consignation , whether the Wodsetter had Right to the Mails and Duties , and might refuse his Annualrent , or if he behoved to accept of his Annualrent , and compt for the Mails and Duties . It was alleadged for the Wodsetter , that the Consignation was but simulat , and the Money remained not in the Consignators hand , so that he did justly retain the Possession , and so was not comptable for the Duties .

The Lords found the Wodsetter comptable for the Duties , seing he had no objection against the legality or verity of the order , so that it was his fault that he keeped not the day of Consignation , and Received his Money conform to the premonition ; and that the user of the order did no wrong to take up the Money out of the Consignators hand , seing Consignations are upon peril of he Con●igner , he making the same forthcoming at the time of Declarator , with Annualrent since the Consignation .

George Graham contra The Laird of Stainbires ▪ Feb. 26 , 1670.

GEorge Graham Merchant in Edinburgh , Pursues the Laird of Stinbires for a Merchant Compt , taken off partly by his Umquhile Father before his Decease , and partly by his Factors and Servants thereafter . It was alleadged as to the Defuncts Part of the Accompt , the samine was not pursued within 3. years of the off-taking , and therefore it is only probable by Writ , or Oath of Party . The Pursuer answered , that he was ordinar Merchant to the Defunct for many years , and that this was a current Accompt to the Defunct and his Heir , the Defuncts Funerals having been taken off at his Death , and the other subsequent Furniture to the Heir always since , so that there is not three years betwixt that part of the Accompt that is for the Funerals , and the last of the current Accompt given off to the Defunct , and therefore it remains a current Accompt as to both . 2dly . There is not three● year betwixt that part of the Accompt furnished to the Defunct , and the Summons raised against his Heir , deducing the year and day in which the ●eir could not be Pursued which is intra annum deliberandi . The Defender answered , that the currency of an Accompt was never extended to a Defunct and his Heir , but only to one Person to exclude the prescription of probation by Witnesses , neither in this short prescription , is Minority , or any other incapacity to be deduced , and the Pursuer ought to have raised his Summonds intra annum deliberandi , though he could not have obtained Decreet ,

The Lords Sustained the Compt , both against the Defunct and Heir , as an current Accompt to be proven by Witnesses for the whole .

Doctor Hay contra Marjory Iameson , Iune 8. 16670.

DOctor Hay as Heir to his Father , who was distressed as Cautioner for Con of Artrachy , pursues a Reduction and Improbation of all Rights of the Lands of Artrachy , and others proceeding from Con , in favours of Iohn Stuart Advocat , William Neilson , Mr. Iohn Alexander , and Marjory Iameson his Relick , or Andrew Alexander Brother to Mr. Iohn , wherein there was produced an Apprizing against Con , at the instance of George Stuart● : Likewise a Liferent-seising of Helen Kinaird , Relick of Con , with a Liferent-tack to her of the Lands contained in the Seising , and also of other Lands , and another Tack of two nineteen years of the same Lands . There is also ▪ produced a Disposition of the Apprized Lands , by George Stuart to William Neilson , and because William Neilson failzied in payment of four thousand Merks of the price , George Apprized the Lands again from William Neilson , and upon all these Rights there is publick Infeftments ; there is also a second Apprizing , at the instance of Andrew Alexander , long after George Stuarts Apprizing from Neilson , but no Infeftment thereon ; and there is produced a Disposition by George Stuart as returning to the Right by the second Apprizing , made to Mr. Iohn Alexander Advocat , and by him to Marjory Iameson his Spouse , and publick Infeftments on these ▪ and there is a Decreet of Cerification Extracted contra non producta . And now the Doctor insists on this Reason of Reduction , that George Stuarts first Apprizing against Con the common Debitor was satis●ied , by Intromission within the Legal , and so is extinct , and all the subsequent Rights depending thereon fall therewith in consequence . It was alleadged for the Defenders , that George Stuart having in his Person the Apprizing , and finding Helen Kinaird ( Cons Relick ) in Possession of a great part of the Lands by Liferent infeftment , and a Liferent and two ninteen years Tacks , which would have excluded him ; he purchased Right and Assignation thereto from the Relick , and continued her Possession thereby , and did ascrive his Possession to the Liferenters Right , and not to the Apprizing , so that his intromission being by another , and more valide Title , could not be ascrived to the Apprizing to extinguish it . The Pursuer answered , that the Defense ought to be Repelled , because he had obtained Certification against the Defenders of all Rights not produced , and albeit the Liferenters Seising be produced yet the Warrand thereof ( the Charter or Precept ) was not produced , so that it is now declared as false and feinzied , and the Seising being only the Assertion of a Nottar without a Warrand , is no Title to which the Intromission can be ascrived , and therefore it must be ascrived wholly to the Apprizing . The Defenders answered , First , That albeit the Charter be now improven for not production , yet it being a true Evident , and now produced , the effect of the Certification cannot be drawen back , to make George Stuart countable , who Possessed bona fide cum titul● , which though now improven , yet the effect of the improbation can only be a sententia , lite contestata aut ●●ta ▪ before all which the Liferenter was Dead , and the intromission ended unless the Charter being produced , had been by Witnesses , or otherwayes proven to be false . 2dly , Albeit Certification be obtained against George Stuart and Marjory Iameson ; yet the Certification is not against Andrew Alexander , from whom Marjory hath purchased Right after the Certification , and produced the Appryzing at Andrews instance against Neilson , and alleadges , that albeit the Certification could take away George Stuarts Right , in so far as concerns Marjory Iameson , or her Authors , yet that being no annulling of their Right , by being Transmitted in favours of the Pursuer , but only as being void , through want of the necessary Evidents , it cannot impede Andrew Alexander , against whom no Certification is obtained , to Defend George Stuart his Authors Right , and to ascribe George his Possession to the Liferent , Infeftment , whereof he now produces the Charter . The Pursuer answered , that he was not obliged to take notice of Andrew Alexander● Right , because it was incompleat , no Infeftment following thereon : and because it was null , being deduced against Neilson , after Neilson was Denuded by the Appryzing led against him by George Stuart , and Infeftment thereon , so that the Pursuer having prevailed against George Stuarts Right , which is the only valide Right , and did exclude Andrew Alexander by the Rule vinco vincentem , &c. and if this were otherwise Sustained , no Improbation could be effectual , unless all the invalid and imperfect Rights were particularly improven , which cannot be known , and was never done . 3dly , Certification being Extracted against George Stuart himself , all Subaltern Rights flowing from him , fall in consequence , and so Andrew Alexanders Right , which is but incompleat and latent . The Defender answered , that albeit Andrew Alexander was not called , or Certification taken against him , as a party necessar , yet before Conclusion of the Cause , he has a good interest to produce his Appryzing , and to alleadge that the Certification against George Stuart his Author , who neglected to produce the Liferenters Charter , could not prejudge him , as deriving Right from George Stuart , as a singular Successor ; much less could the neglect or Collusion of Marjorie Iameson prejudge any other but her self : and therefore craved , that if the Lords would Sustain the Certification of the Liferent Charter against Marjorie Iameson , that it should be without prejudice to Andrew Alexander , as to his Right of the said Liferent , or to George Stuarts Right of the Liferent in so far as the same is Derived to Andrew Alexander .

The Lords adhered to the Certification in so far as concerned Marjory Iameson , reserving Andrew Alexanders Right and his Authors , in so far as concerned Andrew Alexander as accords .

This Cause being again Called the 9. of Iune , the Defenders ascribed their Possession to the Liferent , and two nineteen years Tacks , against which there was no Certification . The Pursuer answered , First , That the Liferenter having bruiked by a Liferent Infeftment , and having ascribed her Possession to it , it being improven , she could not ascribe her Possession to the Tacks , quia ex pluribus titulis ejusdem rei nemo fit Dominus . 2dly , George Stuart the Appryzer having both the Appryzing and these Liferent Rights in his Person , and not having declared his mind , by what Title he possessed , his Possession must be attribute titulo nobilioti , to the Apprizing , and his intromission imputed thereto , & duriori ●orti , as the Lords use ordinarly to do in ●dium of Appryzings , if the Appryzer adhere to the expyring of the Legal : but if the Defender will grant the Lands Redeemable , the Pursuer is content , that the Intromission be ascribed to the Liferent Right primo loco . The Defender answered , that though George Stuart Declared not by what Title he Possessed , yet his intromission must be ascribed potior● juri , to that Right which was preferable , and so to the Liferent , which would undoubtedly exclude his Appryzing : and therefore he acquired Right from the Liferenter , being then in Possession , and it is unquestionable , that any party who hath many Titles , though they first make use of one , if that be Reduced , they may make use of the rest , and so the Defender , in respect the Liferent Infeftment is improven , makes use of the Tacks . The Pursuer further alleadged , that the Tacks comprehended Lands not contained in the Contract of Marriage ; and as to there , it was a voluntar Deed granted by a Husband to his Wife , stante matrimonio , and Revocked by George Stuarts Appryzing , which is a legal Disposition in the same way , as if the Husband had Disponed to George : Likeas the Doctors Debt was anterior to these Tacks , so that George Stuart in so far cannot cloath himself with these defective Rights , against which his Appryzing would have prevailed . As to the superplus The Defender answered , that albeit the superplus were donatio , and that the Husband might recal it indirectly by a subsequent Disposition , it was never found that an Appryzing was such a Revocation . and albeit the Doctor might Reduce the Tacks , as to the superplus , being without an onerous Cause , after his Debt , yet that Reduction cannot take effect ante litem mot●m , to make the Liferenter , or George Stuart Comptable for the bygone Fruits , or which is equivalent to impute them in the Appryzing .

The Lords found that the Defenders Intromission might be imputed to the Liferent Tacks , and not to the Appryzing , but as to the Superplus they were not clear , even to impute that in the Appryzing , upon the Considerations alleadged by the Defenders , but as to that , the hour prevented the Vote .

Margaret Hunter contra The Creditors of John Peter . June ●1 . 1670.

THere being a Competition betwixt Margaret Hunter , the Relict of umquhile John Peter and his Creditors , Appryzers or Adjudgers of his Lands in Anno 1658. The said Margaret produced an Infeftment by her Husband , of a yearly Annualrent of 700. merks , bearing to be for Implement of her Contract of Marriage ; which being also produced , by her Registra●● ▪ bear only to four thousand merks of Tocher , and an obligement , that upon payment of the Tocher , the Husband should Imploy the same , and four thousand merks more for her in Liferent ; whereupon the Creditors alleadged that her Infeftment behoved to be restricted to the Annualrent of eight thousand merks : And she having alleadged that her Contract was Vitiat after the Marriage , and did bear seven thousand merks of Tocher , and an Annualrent thereof , and of other seven for Joynture , the seven was made four , but that not being then instructed , the said Margaret was only preferred as to the Annualrent of eight thousand merks , but prejudice to her to prove any further , to have been in her Contract , and that the same was Vitiat . She now pursues a Declarator against the Creditors , that her Contract was altered , and Vitiat after the Marriage , and that she ought to have a Poinding of the Ground , for two hundreth and ten merks yearly , the times bygone , wherein her Infeftment of seven hundreth merks , exceeded the Annualrent of eight thousand merks , and which she yet wanted , and for the whole seven hundreth merks in time coming , whereupon Witnesses were adduced , for proving of the Vitiation , which they did prove . And it was now alleadged by the Creditors , that although the Contract was altered , yet she could have no more in their prejudice , but the annualrent of eight thousand merks , because the Contract was altered before it was Registrat ; and her Infeftment bears expresly for Implement of her Contract Registrat , which must import , that it was an Implement of the Contract as it was altered after the Registration , and not as it was before the Registration , seing it does not mention the particular Sum , either of eight , or fourteen thousand merks ; and the seven hundreth merks , is but fifty merks more than the Annualrent of eight thousand merks , at the time of the Infeftment . 2dly , The Contract was altered by consent of the Father and the Husband , Contracters , and if need beis , it is offered to be proven , that it was with the Relicts own consent , so that it was no Vitiation , but a warrantable alteration , 3dly , Albeit it had been unwarrantably altered , yet two Creditors having lent their Money to John Peter , bona fide ; and seing an Infeftment granted by her Husband in Implement of the Contract of Marriage Registrat ; and finding only in the Register eight thousand merks , and she having produced it , and made use thereof , and so Homologat the Contract altered , they could be prejudged , but she might pursue the Heirs of John Peter . 4thly , They having bruiked by their Infeftment and a Decreet , they cannot be lyable for the Repetition of bygones , nor cannot suffer their Ground to be Poynded therefore ▪ But this Declarator can only take effect a sententia aut lite mota . 5thly , Though the Vitiation were fully Sustained , John Peter was only obliged to Infeft her in an Annualrent , e●●e●ring to the Tocher , upon payment thereof , Ita est , the Tocher was never payed , and so she can only claim the Annualrent of seven thousand merks , which the Husband should have added to the Tocher . And albeit ordinarly such Clauses prejudge not the Wife , where the Tocher is not payed through the Husbands neglect , who is obliged to do Diligence for his Wife . Yet here it is offered to be proven , that the Relicts Father was insolvent the time of the Contract , and still thereafter ; so that no Diligence could have recovered it . It was answered for the Relict to the first , that albeit her Infeftment relate to the Contract which was Registrat , yet not to the Contract as it was Registrat , and the Husband having so great Trust , the Wife was not obliged to look to the Register or Extract , which was in her Fathers and Husbands Custody ; and by the Testimonies of the Witnesses it appears , that they have Colluded to abate both the Tocher and Joyntour , without her Consent . To the second , The Father and Husband not being sole Contracters , but the Wife , they could not after the Contract and Marriage , without her consent , alter her Right . To the third , The Creditors lending their Money , bona fide , , cannot prejudge the Relicts Right ; for bona fides operats only in payment made , and other necessary Deeds , but not in voluntary Acts , as lending of Mony , wherein the Lender must follow the Faith and Condition of the Borrower , whose Rights , though never so clear in any Record , yet if thereafter they be improven or Reduced , the Creditors bona fides , avails nothing , and though the Relict made use of the Contract Vitiat , yet it was with Reclamation against the Vitiation ; and therefore in the Decreet , the same is reserved , which is the Ground of this Declarator . To the fourth , The Relict craves not the Repetition of the Fruits uplifted by the Creditors , but only that the Ground may be Poynded for what she wants of bygones . To the last , By no Practice was ever a Wife prejudged , by not payment of the Tocher ; and albeit the Fathers being Insolvent , might have been a Ground to the Husband to refuse to Infeft his Wife , in any more than the Annualrent of 7000. merks , till the Tocher were payed : Yet where he has actually Infeft her in more , and even before Contracting of the Creditors Debt , her Infeftment must stand valid , seing it was less than what was her Right .

The Lords found the Vitiation of the Contract to have been after the Marriage , and Sustained the Declarator , and ordained the Ground to be Poynded for what she wanted of her Infeftment of 700. merks for bygones , and for the whole in time coming , unless it were proven by the Wifes Oath , that she consented to the alteration of her Contract .

Margaret Livingstoun contra Burn● . Iune 15. 1670.

MArgaret Livingstoun as Donatrix to the Bastardy of a Mason in Falkirk , pursues a Declarator of the Bastardy , and Restitution of the Goods against Burns , who alleadged no Process , because the Libel , condescending upon the Bastards Father and Mothers Names , and that the Defunct was Bastard , the same must be proven by Witnesses , and so the Summons must be continued , it being a known Maxime , that all Summons , not instantly verified , either by Presumption , or Probation by Writ ; but which must be proven by Witnesses , or Oath must be continued . The Pursuer answered , that albeit ex alundante , she had condescended on the Bastards Father and Mother , yet whoever were Father and Mother , ( that they were not Married together ) is a Negative , and proves it self , and needs no further Probation , but is presumed , and puts the burden of Probation upon the Defender , that they were really Married , at least so holden and repute . 2dly , Albeit Probation were necessar , that the Defunct was either Bastard , or so commonly repute , the Probation may proceed upon the first Summons , in favorem Fisci , and is so accustomed in Declarators of Bastardy , and in Declarators of Non-entry , wherein though the Death of the Vassal be Libelled , yet the Summons is not continued .

The Lords found that the Summons behoved to be proven , that the Defunct was at least holden and repute Bastard , and that Bastardy was not presumed , but they Sustained the Declarator without continuation , and that the Declarator might proceed upon the first Summons .

Scot of Thirlestoun contra The Laird Drumlanrig . Eodem die .

SCot of Thirlestoun having Adjudged cerrain Lands , Charges Drumlanrig Superiour , to receive him , who Suspends , and alleadges he ought to have a years Rent , conform to the late Act of Parliament 1669. It was answered that this and all other Acts have Effect ad futura : But not only this Adjudication was led before the Act , but Drumlanrig was Charged before the Act , and having no just reason to Disobey the Charge when he was Charged , he cannot claim the benefite of a subsequent Law . It was answered , The Tenor of the Act was Declaratory , and bear a general Clause , that Adjudications should be in all things as Apprizings .

The Lords found , that seing the Act did not expresly relate to bygones . It could not extend to any Adjudication , whereupon a Charge was given before the Act.

Lord Iustice Clerk and his Son Sir Alexander . contra Earl of Hume . Eodem die .

THere being a Contract betwixt the Earl of Hume and Iohn Stuart of Coldinghame , and Francis Stuart , sometime Earl of Bothwel , whereby the Lordship of Coldinghame was agreed to be possest by the Earl of Hume , until he were payed of nineteen thousand Pounds ; and also that the Earl should uplift two hundreth pound Sterling of Annualrent ●orth ●hereof to him , and the Heirs-mail of his Body ; and it was Declared that the Possession for the nineteen thousand pound , should only be for the Annualrent thereof , fructibus non computandis in sortent , Sir Alexander Hume as having Right to this Contract by progress , did pursue a Declarator against the late Earl of Hume , that in regard his Predecessor , the Earl of Hume Contracter , Died without Heirs-male of his Body , and he continued to Possess , who had no right to the Annuity of two hundreth pound Sterling , that his Possession did satisfie the nineteen thousand pound , and purged the Right , the said umquhil Earl dying , there is now Summons of Transferrence at Sir Alexanders instance , against this Earl of Hume , as Representing his Father , and also therein a Declarator against this Earl as appearand Heir , that the Contract was satisfied and extinct by Intromission , and the Lands Liberate . Compearance is made for an Appryzer , who produced his Infeftment , and who had apprized the Lordship of Coldinghame , and all Right thereof , competent to the late Earl of Hume , who alleadged no Process for the conclusion of Declarator against this Earl of Hume , because all Parties having Interest , were not called , viz himself who had Denuded the Earl of Hume , and who is not cited . The Pursuer answered , that this being a Personal Contract with the Earl of Hume , whereupon no Infeftment had followed , seing the original Right was in no Register , he was not obliged to search the Register for the Infeftments of Appryzers , but it was sufficient for him to call the appearand Heir of the Contracter : But seing this Alleadgeance could not be proponed for the Earl of Hume , being jus ter●tij , neither by the Appryzer , unless he had produced his Right to verifie the same instantly , seing he now compears for his Interest , he may be admitted and heard to Defend thereupon in causa , but not to delay , or exclude the Process till a new Citation , but according to the Lords ordinar custom , he may see the Process in the Clerks hands , and propone his Defense as the Lords have done in the same Process against one Park another Appryzer .

The Lords Repelled the Defense , but allowed this Appryzer , as they had done the other to see in the Clerks hands , and to be heard upon his Right ; and Ordained all the Advocats compearing for the Defenders , to produce any other Interest in their hands , and not be delay the Process , by dropping them in severally .

Langlands contra Spence of Blair . Iune 17. 1670.

LAnglands pursues Spence of Blair for Reduction of his Rights , of certain Lands granted by Hamiltoun of Blair his Author , because Hamiltoun was Inhibit at the Pursuers Instance , before he granted these Rights to the Defender . It was alleadged for the Defender , Absolvitor , because the Inhibition was null , the question being of Lands lying within the Regality of Culross , and the Inhibition was not Execute at Culross the head Burgh of the Regality , but at Pearth the head Burgh of the Shire ; and for instructing that Culross was a Regality , the Lord Colvils Infeftment was produced , which though it bear not expresly a Regality , yet is bears a Bailirie , with power to Repledge , which importeth a Regality , and accordingly the Bailzie and not the Sheriff , makes count in Exchequer , and Briefs are direct to the Bailzie ; and there is produced an Inhibition Anno 1657. and another in Anno 1666. Execute at Culross . The Pursuer answered that Culross was never denominat , holden , or repute a Regality , but a Bailliry , and though the power of Repledging , be a special priviledge of Regality , yet there are many other priviledges thereof , not consequent upon the Repledging . 2dly , The Pursuer having followed the ordinar course , used the time of his Inhibition , viz. by Executing at the Mercat Cross of the head Burgh of the Shire , he hath produced three Inhibitions about that same time Execute as his is ; so that what was then holden repute to be the head Burgh , is sufficient for him to make his Legal Diligence subsist ▪ And for the Inhibition Execute at Culross in Anno 1657. It cannot be respected , because it is known that at that time Regalities were supprest by the English ; and for the Inhibition in Anno 1666. It might have been done of purpose , pendente processu , and cannot regulate the custom the time of the Pursuers Inhibition which was in Anno 1633.

The Lords Sustained the Pursuers Inhibition and Reduced , for they neither found it clear that Culross was repute a Regality , not that the custom was to Execute Inhibitions there at that time , but at Pearth the head Burgh of the Shire .

Mr. Iames Cheap contra Magistrates of Falkland . Iune 18. 1670.

MR. Iames Cheap pursues the Bailzies of Falkland to pay their Debt due to him by Provest Mains , who being taken by Caption , and delivered to the Bailzies by the Messengers , they keeped him in a private House for the space of ten dayes , for which they are alse well lyable for the Debt , as if they had brought him out of the Tolbooth , and keeped him in the Town during so much time ; and also they were lyable in so far as having put him thereafter in the Tolbooth , they suffered him to escape forth thereof . It was alleadged for the Defenders , they were not obliged to keep Prisoners , not being a Burgh Royal , but only a Burgh within a Ste●●rtry , which no Law obliges to receive Prisoners , and the Caption is only Direct to Sheriffs , Baillies of Regalitie , or Royalty , Steuarts , and Magistrates of Burghs Royal , but not to Burghs within Steuartries , or within Regalities , albeit they were the head Burghs of the Steuartry or Regality , not being Burghs Royal. 2dly , The Defenders cannot be lyable for keeping the Prisoner some dayes out of the Tolbooth , seing he did not then escape : And albeit it be a fault for which they may be censured , to keep a Prisoner in a private House , yet the doing thereof , if the Rebel escape not , makes them not lyable to the Debt , but especially where the Rebel was never in the Tolbooth , and when there was Treaty betwixt him and the Pursuer and his Servant , for an agreement and satisfaction and security for the Sum. 3dly , They offered to prove , that the Tolbooth was sufficient , and that the Prisoner escaped vi majori , by breaking the Roof of the Prison without their fault . The pursuer answered to the first , that he opponed the Act of Parliament , ordaining sufficient Prison-houses in all Burg●s , Parl. 1597. cap. 273. 2dly , Whateven this Burgh might have pretended for refusing to accept the Prisoner , yet having accepted him , and suffered him to escape , they are lyable as having acknowledged themselves to be lyable ; and if they had refused the Prisoner , the Pursuer would have Imprisoned him in another uncontroverted Burgh . To the second Defense it was answered , that Magistrates are lyable for the Debt of Rebels offered to them , if they do not put them in Prison , or if they suffer them to come out of Prison without Warrand , and the Pursuer needs not Dispute that the Prisoner went out by the Magistrates fault , and their Contumacy is sufficient in not obeying the Letters , by putting him in their publick Prison , but keeping him so long in a private House . To the third Defense the Pursuer offered him to prove , that the Prison was insufficient , and that thereby the Rebel did escape .

The Lords found , that seing the Defenders did receive the Rebel upon the Caption , they could not now Dispute , whether they were lyable to receive or not , as being the head Burgh of the Steuartrie , and therefore the Lords did not Determine that Point . Likewise , the Lords found that the keeping of the Rebel ten days before he was Imprisoned , there being Treaty in the time , and they not urged to put him in the Prison , did not oblige them . As to the last Point concerning the sufficiency , or insufficiency of the Prison , the alleadgeances being contrary , the Lords would prefer neither Party in the Probation , but before answer ordained either Party to adduce Witnesses , concerning the condition of the Prison , and manner of the Rebels escape .

Collin Hay contra Magistrates of Elgin ▪ Eodem die .

COllin Hay having pursued the Magistrates of Elgin for a Debt of a Rebel , arrested by him in their Tolbooth , upon Caption , and suffered to escape , and the Town having failed in all their Defenses , did at last offer to prove , that the Execution of the Messenger bearing , that he arrested the Prisoner , and made intimation of the arrestment to the Magistrates , was false , whereupon there being three Witnesses insert , and one Dead , the Messenger , and one of the living Witnesses Deponed and acknowledged the arrestment , but differed in the manner of it , the Execution and the Messengers Oath bear , that he came to the Rebel being in Prison , and commanded him to remain therein , by vertue of the Caption , till the Debt were payed ; the affirming Witnesses Deponed , that the Messenger came with the Caption to the Tolbooth Door , but that he went not in , and does not remember that he knocked at the Door , out that he Chalked the Door , and commanded the Prisoner to remain , but the Witnesses denyed , that they remembred any thing of the Intimation to the Magistrates , and the other of the ●ing Witnesses denyed that he was Witness to the arrestment or intimation , whence the question arose , whether the intimation was necessar , or though it were improven , if the arrestment did stand , and were sufficient to oblige the Magistrates , who were obliged to have a Jaylor , and to keep a Book of arrestments : and next , whether this arrestment was sufficient , not being made to , or in presence of the Jaylour . It was alleadged for the Defenders ▪ that few Towns in Scotland keeped a Record of Incarcerations , and here the Magistrates and Clerk had sworn , that there was none in that Town at that time , neither did the Execution bear that the Jaylour was Comanded to 〈◊〉 the Prisoner ; and albeit one of the Witnesses Depones that he was Jaylour at that time and the Messenger and other Witnesses depones that he was present at the arrestment , yet the Execution bears not any command to him to detain the Prisoner , but only to the Prisoner to remain in Prison , and the Jaylor is a Witness in the Execution , and not a Party , and denys the same even that he was so much as Witness , by his Oath ▪ neither does the Messenger and the affirming Witnesses agree in the Substantials of the arrestment ; and for the Messenger he is a Party , whose Execution is quarrelled , and is infamous , and Excommunicate for great Crimes . It was answered for the Pursuer , that the arrestment stood valid , and was not improven but approven as to the Substantials requisite thereto , for the Messenger and one of the two living Witnesses do agree , that the arrestment was made by the Caption at the Tolbooth Door , in presence of the Jaylour , and though it was not so formally done , by Commanding the Jaylour , yet it was sufficient that the Prisoner was Commanded in the Jaylours presence , which is sufficient , albeit not so formal , in making the Jaylour Witness , neither can respect be had to the Jaylours Oath , denying that he was Witness , because confessing he was Jaylour , he is a Party lyable for suffering the Rebel to escape , neither doth it import , that after so long a time , the affirming Witnesses do not remember all the Circumstances , seing he affirms the arrestment to be made , and that by his own advice , he being also a Messenger ; nor is the Pursuer obliged to Dispute the Fame of the Messenger , who lived at so great a distance from him , and was continued in that publick Trust undeposed ; so that there being three Witnesses insert in the Execution of the Arrestment , one of them who is an inhabile Witness , as a Party denying , another affirming , the third being Dead , doth unquestionably stand as a proving Witness : for where are many Witnesses in a Writ or Execution , if there be one living that affirms , all that are Dead affirm with him , though other living Witnesses deny : Much more here , where of three , two being alive , the one affirms , the other denys , but i● a Party concerned , and the Messenger also affirms .

The Lords found that there being here no formal arrestment made to the Jaylour , astructed by the Testimo●ies of the Witnesses , and that the intimation thereof was clearly improven , they Assoylzied the Magistrates , but if the arrestment had been good , they would not have ●ound the Intimation necessar , whether the Town keeped a Book or not , but that the arrestment , made to the Keeper of the Tolbooth , whom they intrusted , were sufficient .

Dowglas of Lumsdean contra Dowglas . Iune 22. 1670.

UMquhil Dowglas of Lumsdean Dispones his Estate to Archibald Dowglas his Son , reserving power to himself at any time during his Life , to burden the Estate with four thousand merks , and did thereafter grant a Bond of four thousand merks , in favours of Elizabeth Lyel his Wife , in Liferent , and of Iohn Dowglas their Son in Fee , who thereupon pursues the said Archibald for payment . The Defender alleadged Absolvitor , because the Reservation in the Disposition , being in favours of the Defunct , can only be understood of a Legal power , to burden according to Law . Ita est , This Bond of Provision was granted by the Defunct , when he was not in legiti●ua potestate , but on Death-bed , especially seing the Reservation does not bear a power to Dispone at any time time in his Life , etiam in articulo mortis , which is the Clause ordinarly adjected , when the meaning of Parties is , that the power should extend to Deeds on Death-bed ; and thereupon the Pursuer hath intented Reduction , which he repeats by way of Defense . The Pursuer answered , that the Defense is no ways Relevant , because the priviledge excluding Deeds on Death-bed is introduced by Law in favours of Heirs only , that the Defunct may not prejudge his Heir on Death-bed , but if a Party Dispone , he may qualify his Disposition as he pleases , and he who hath so accepted the Disposition cannot quarrel the same ; and albeit these words etiam in articulo mortis are sometimes adjected propter majorem ca●telam , yet the words ( at any time during his Life ) are sufficient to import either in his Health or in his Sickness . The Defender answered , that whatsoever might be alleadged , if the Disposition had been to a Stranger , of that interpretation of the words , yet this Disposition being granted to the Disponers own eldest Son and appearand Heir , it must be understood only of such Deeds as might be done against an Heir , and here the Creditors do also concur , who in place of the Heir might pursue the Reduction , and against whom the Personal objection of acceptance cannot be alleadged . The Pursuer answered , that the Defender was not appearand Heir , because it is notourly known that his Father begot him in Adultery , upon the Wife of Sir Alexander Hume , for which Adultery she was Divorced from her Husband , and albeit he did co-habit with her thereafter as his Wife , that cannot infer ( as in other cases ) that she was his Wife , because Marriage cannot consist betwixt the Adulterer and the Adulteress , and all their Issue are disabled to Succeed , so that the Pursuer of the Reduction is the eldest Son , and appearand Heir , in whose favour the Provision is made . 2dly , Albeit the Defender were , or could be appearand Heir , yet here having accepted a Disposition of the whole Estate , Burdened with this Provision , his acceptance excludes him , who is thereby bound , and cannot pretend to any priviledge of an Heir ; for albeit re integra he might Renunce the Disposition ; and return to bruik as Heir , now he cannot , having bruiked by the Disposition ; and for the Creditors concourse they are not Pursuers , and they may insist in any Action competent to them by Law , but cannot oppose this Personal obligement , whereby the Defender by the acceptance of the Disposition in these terms , is become obliged to pay the Pursuer the Sum in the Reservation .

The Lords Repelled the Defense , and found that the Reservation in the terms as it stood , did extend to burdening of the Estate at any time the Disponer pleased , and was in capacity of Sense and Reason ▪ though on Death-bed , and found no necessity to dive in the questions concerning the Defenders Procreation , and capacity of Succession , seing he had accepted , and bruiked by the Disposition so qualified , and did not admit the Creditors to oppose this Conclusion , but reserved their Rights as Accords .

Elizabeth Finlaw contra The Earl of Northesk , Iune 25. 1670.

ELizabeth Finlaw and her Children as Executors to Robert Beat●●e , did Assign to the Umquhile Earl of ●athie a Bond granted by the Laird of Du● to the said Robert 〈◊〉 of 2200. Pound , and the Laird of Morphie standing infeft under Trust in Duns Estate , grants a Bond of Corroboration to Eathie , obliging him to pay all Sums due by Dun to Eathie himself , or to which he was Assigned by Duns Creditors ; thereafter Morphie grants a second Bond of Corroboration to Eathie , but derogation of the 〈◊〉 Bond of Corroboration , obliging him to pay what Sums were due by Dun to Eathie for himself , or as Assigney , and that out of 〈◊〉 superplus of Duns Estate , more then payed Morphie himself . The Earl of Eathie transfers the Bond of 2200. Pounds , and both these Bonds of Corroboration in favours of the said Elizabeth and her Children , and the Translation bears for Sums of Money payed by them to Eathie , and bears that the second Bond of Corroboration was Delivered , but bears not that the first was Delivered , neither bears it the obligement to Deliver the same ; the Translation also bears Warrandice from Eathies own Deed. The said Elizabeth and her Children having pursued Morphie upon the said second Bond of Corroboration , he was Assoilzied , because he had no superplus in his hand . She now pursues the Earl of Northesk as Heir to his Father , to Deliver the first Bond of Corroboration transferred by his Father , whereby Morphie was bound to pay the Debt simply , without preference of his own Debt , or otherways that Northesk should pay the Damnage and Interest , which is the Debt it self . The Defender alleadged Absolvitor , because by the Transaction his Father was not obliged to Deliver the first Bond of Corroboration : Likeas the Translation bears the second Bond of Corroboration Delivered , so that the Pursuer has aequiesced therein ; and albeit the Stile of the Translation bears for Sums of Money , yet it is clear thereby that it is but a retrocession of the Pursuers to their own Right , which they themselves had Assigned , which doth presume that Eathie was but intrusted , and seing he has reponed them in better condition than they were by the second Bond of Corroboration , he cannot be obliged to Deliver the first Bond which Morphie freely granted as a favour to Eathie , unless it did appear such a Bond was , and that Eathie had fraudfully put it away , whereanent he is content to Depone , so that the transferring the first Bond must only import , if any such Bond was the time of the Translation , which would not oblige Eathie to Deliver it , unless he had it , much less to pay the Sum pro damno & interesse . 2dly , Eathie having accepted the second Bond of Corroboration , with a limitation of preferring himself , it qualifies the first Bond of Corroboration , so that though the Pursuer had it , it could operate nothing more nor the second , and so he has no Damnage . The Pursuer answered , that Eathie having transferred the first Bond of Corroboration granted to himself , hoc ipso , he is obliged to Deliver the same , though the Translation expresly bear not an obligement to Deliver quod inest , neither can Eathie pretend that there was not such a Bond of Corroboration , seing the Translation acknowledges that it was granted to himself , neither doth it appear that the Translation was in Trust , seing it bears expresly that it is granted for Sums of Money ; and although it had been in Trust , Eathie having acknowledged that Morphie granted a Bond of Corroboration to pay the Sum simply ; it was contrare to his Trust either to give back that Bond , or to qualifie it . 2dly , The second Bond of Corroboration cannot restrict the first , because it bears expresly in Corroboration thereof , and but derogation thereto .

The Lords Sustained the Summons , and Repelled the Desenses , and found that the Translation in terms as aforesaid did import an obligement to Deliver the first Bond of Corroboration , or otherwise to pay the Debt , as Damnage and Interest , seing Morphie was Assoilzied from the second Bond of Corroboration .

Eleis of South-side contra Carsse , Iune 28. 1670.

MAster Richard Carsse of Fordel having granted a Bond of 4000. Merks to his Sister in Liferent , and after her Decease to her Daughter , she Assigns the same to Iames Eleis her Brother , who now pursues Charles Carsse as Heir to Doctor Carsse , who behaved himself as Heir to Mr. Richard Carsse the Debitor , in so far as he Intrometted with the Charter Chist , and gave a Receipt thereof to Arnistoun , bearing , that he as Heir to Mr. Richard Carsse had Received his Charter Chist , and all the Writs and Evidences belonging to the House of Fordel , which Charter Chist he keeped two years , and Died , it being in his Possession ; likeas he raised Breevs to Serve himself Heir , and Subscribed a Revocation of all Deeds done by Mr. Richard in his Minority , which is Registrat : The Defender alleadged the condescendencies are no ways Relevant , for as to the Charter Chist , as he might have pursued Arnistoun to produce it for inspection ad deliberandum , so he might Receive it from Arnistoun voluntarly for that same effect , which cannot import behaviour , unlesse he had made use of some of the Writs belonging to him as Heir , and this being an odious universal passive Title , any probable excuse ought to liberat , especially this Doctor , who was a Doctor of Divinity , Reciding in England , and ignorant of the Law of Scotland , and who never enjoyed the least benefite of Mr. Richards Estate , and the Defender was content to restore the Charter Chist re integra , and to instruct by the Oaths of the Friends Consenters in his Discharge , that there was nothing wanting , but it was in the same case he Received it ; as for the taking out of Breevs , albeit it signified the Doctors purpose to have been Heir , yet behaviour must include an Act of immixtion , or medling with the Heretage , and animus adeundi , as having no other Title or intent but as Heir ; and as for the Revocation it is a null Act , operative of nothing , but for Reduction which was not Intented , and is no medling with the Heretage . The Pursuer answered , that there could be no more palpable and unquestionable immixtion , then by the Receipt of the Defuncts whole Writs and Evidences , and that without so much as making an Inventar thereof , to have been Subscribed by the Haver of the Charter Chist and him , neither has he qualified his Receipt so as that he might Deliberat , but bears him as appearand Heir , to have Received the same simply ; likeas he detained the same two years ; and as to his Ignorance , Ignorantia juris n●minem excusat , and the Pursuer is in this also favourable , that this Bond is a Provision granted to Mr. Richards Sister , and Heir of Line , and the Doctor , and this Defender were but Heirs of Tailzy of a further Degree .

The Lords found the condescendence Relevant conform to the Receipt of the Tenor foresaid , and the retention of the Charter Chist without Inventar so long ; and whereas it was moved amongst the Lords , that they had oftimes refused vitious Intromission against any Representing the Intrometter , unless Sentence or Pursuit had been against the Intrometters in their own Life , whether that should be extended to behaviour as Heir , where there was no Pursuit against the Behaver in his own Life , but the Behaviour being so considerable and universal , with all the Evidents without Inventar , it did not take with the Lords , neither did the Party plead it , but the Lords did not find that the taking out of Breevs , or the Revocation Imported Behaviour .

Greigs contra Iames Weems , Iune 30. 1670.

BY Contract of Marriage betwixt Iames Weems and umquhile Iudith Nairn : It was agreed that the Means and the Estate of either Party , contained in an Inventar of the date of the Contract , should return to either Party , failzying Bairns of the Marriage , and should not be under communion . Thereafter the Wife provides a Daughter of a former Marriage , to a part of her Means in the Inventar , with her Husbands consent . By which Contract it is provided , that in case the Marriage dissolve within year and day , or in case at any time thereafter , there being no Children , the Tocher should return to the said Iudith Nairn : And the said Iudith leaves in Legacy 1200. Dollars due by the Estates of Bremen , which was a part of her Inventar , to her Husband and her three Children of the first Marriage , there being no Children of the second Marriage ; whereupon Iohn , Charles and Iudith Greigs pursues the Husband for the Legacy , as having uplifted this Sum from the Estates of Bremen . The Defender alleadged , First , That the Clause in the Contract of Marriage , taking away the communion of Goods , and making even the moveable Estate of either Party to return , is against the Law of Scotland , inconsistent and ineffectual ; for any Reservation or Provision in favours of the Wife , doth ipso facto return to the Husband jure mariti , which jus mariti neither is nor can be Discharged ▪ 2dly , Albeit the first Contract of Marriage were consistent , yet the Sum in question being provided to one of the Daughters of the first Marriage by her Contract , upon condition to return to the Wife if the Marriage dissolved , the Marriage dissolving ▪ it comes back to the Wife tanquam novum jus ex pacto acquisitum , and so it falls under the Husbands jus mariti , as well as any Sum acquired would . 3dly , The Husband uplifted this Sum by Commission from his Wife , and so it must be presumed to have been spent in oneribus matrimonij , at least the Husband must have Retention of his Expences in recovery thereof . The Pursuers answered , that albeit Provisions in Contracts of Marriage , stating Rights in the Wifes Person , to be enjoyed by her during the Marriage , have not been Sustained in some cases , yet this being a Provision of a return after the dissolution of the Marriage , it is most consistent , especially in this case , where the Estate Contracted was abroad , and the Contract it self made abroad , where by the civil Law current there , the Means of either Party doth return hinc inde , and the profit thereof is only common● stante matrimonio , neither is the case altered by the Daughters Contract , for both by the Law and that Paction , the Tocher returning to the Mother who gave it , in the same case it was , it is hers by her first Right , the second Right by the Marriage becoming void , both by Law and Provision ; neither doth it import that the Husband lifted the Sum , for by the Contract he is obliged to repay it , and could only employ the Profit of it , in oneribus matrimonij .

The Lords Repelled all these Defenses , but allowed Expences to the Husband laid out by him in Recovery of the Sum.

Lindsay and Swintoun her Spouse contra Inglish Supplicants , Iuly . 5. 1670.

〈…〉 Pursues his Debitor , and craved him to be holden as Confest , who not Compearing , the Clerk was not clear to give out an Decreet , because the Messengers Execution did not bear , that the Defender was Personally Apprehended , but that the Messeger came to his House and knew he was within , and was forcibly keeped out by his Wife , and thereupon Protested that the Defender might be holden as Personally Apprehended ▪ upon the Clerks stop , the Pursuer gives in a Supplication , desiring that he might either have out his Decreet , holding the Defender as Confest upon this Execution , or that he might have a Warrand to Cite the Defender at the Mercat Crosse of the Shire or Burgh where he dwells , as being difficilis conventionis , some were of opinion that he should be holden as Confest , the Messenger proving that he was within , or if the Execution had born that he and the Witnesses also had given a particular evidence of their Knowledge of his being within ; others thought that he should be holden as Confest , unlesse the Defender could instruct he was alibi in regard of the Contumacy , but the most resolved that holding as Confest , being a solemn and important Certification , peculiar to Scotland , that this Assertion of the Messengers , and his Execution should not be sufficient , nor should put the Defender to alleadge alibi , but that he should have a Warrand to Cite at the Mercat Crosse , with Certification to be holden as Confest .

Arch-bishop and Presbitry of St. Andrews contra George Pittillo , Iuly 6. 1670.

GEorge Pittillo being called before the Prisbitry of St. Andrews , for Scandalous Conversation with Agnes Mitchel , two Ministers of the Presbitry were appointed to speak with him , to whom he proponed he was Married to the said Agnes Mitchel , and produced a Testificat of some Persons , bearing that they were Witnesses to the Marriage , but neither Designing themselves nor the Minister , which being reported to the Presbitry they rejected the Testimonial , unless the Minister and Witnesses were Designed , and if they were Designed , ordained the Party to make satisfaction for privat Marrying without Warrand , and the said George not Compearing before the Presbitry so to do , they for his Contumacy appoints the Process to be seen by the Arch-bishop , who ordained the Party to be Excommunicat , and accordingly he was Excommu●icat , and now the Arch-bishop and Presbitry caused present a common Bill for Horning against the Excommunicat Person , for Charging him to answer , submit and obey the Censure of the Kirk , this being brought by the Ordinar to the Lords , to know whether they would pass the Horning in course , or if they would consider whether the Sentence of Excomunication was orderly proceeded . The Lords ordained two of their number to consider the Process of Excommunication , and to hear any that did compear for the Party Excommunicat , to Debate whether Horning should be direct thereon . Before whom Compearance was made for the said George Pittillo , who alleadged that Horning ought not to be direct , because the Sentence was disorderly and unjust , and because there was an Appeal to the Council yet undiscust , and founded upon the late Act of Supremacy , alleadging that the King and his Council were Supream in all Causes Ecclesiastick , so that Appeals might be lawfully made ( from any Church-man , or Church Judicature ) to the King and his Council : And further alleadged , that he being unclear to acknowledge the Bishop or his Presbitry ; and the King having now granted an Indulgence to many that did not acknowledge Episcopal Authority , it could not be Contumacy in him not to Appear ; but he was content that it should be now cognosced whether he was in the Fault , and if he were found Guilty , he should Submit and make satisfaction ; which being Reported to the Lords and there being several other nullities in the Process of Excommunication , which behoved to be cleared by the Warrands of the Process , and having heard these of their number that are upon the Council declare that upon the Appeal , the Council Remitted the Matter to the Arch-bishop .

The Lords ordained Letters of Horning , unless Pittillo would presently offer satisfaction , in which case they would give him a time , and superceed the out-giving of the Letters .

Lady Lucie Hamiltoun contra Boid of Pitcon and others , Iuly 8. 1670.

THe Earl of Abercorn having Sold the Lands of Mountcastle to George Hay ; he gave the Earl a Bond of 4000. Merks , bearing borrowed Money , but being a part of the Price , and bearing this provision , that it sholud not be payable till the Earl obtained George Infeft by his Superior . The Earl Assigns the Bond to Lady Lucy his Sister , who having raised Inhibition upon the Bond against George Hay , and having thereafter Charged him , he Suspended , alleadging that the Condition was not fulfilled he not being Infeft , and the Lady offering a part of the Sum to purge that Condition , pro damno & interesse , and to procure his Infeftment , George accepted of the offer , and thereupon the Letters were found orderly proceeded for 3000. Merks of the Sum , and Suspended for the rest in place of the Condition , upon this Decreet the Lady Apprizes the Lands of Mountcastle , and now Insists in a Reduction of a Disposition of the same Lands , granted to Dunlap and Pitcon for themselves , and to the use and behove of the Disponers other Creditors underwritten , viz. Where there was a blank of several Lines , which is now filled up by another Hand ; and though this Disposition was anterior to the Inhibition , and did prefer Dunlap and Titcon for any Sums due to themselves , or for which they were Cautioners the time of the Disposition ; Yet the Lords found by a former Interlocutor , that as to the other Creditors filled up in the blank , it should be repute as posterior to the Inhibition , and filled up after the same , unless the Creditors prove by the Witnesses insert , or other Witnesses above exception , that they were filled up before the Executing of the Inhibition . The Cause being called this day , the Creditors repeated their former alleadgeance , and offered to prove that their Debts were anterior to the Inhibition , and also that at the Subscribing thereof , it was communed and agreed that Dunlap and Pitcon should undertake the remainder Creditors Debts , at least they promised to give Dispositions of parts of the Estate effeirand to their Debts , and accordingly they had done the same after the Inhibition , but being upon a promise before the Inhibition they were valide , having causam anteriorem , and they offered to prove the Communing and Promise by the Writter and Witnesses insert . 2dly , They offered to purge and satisfie the Pursuers Interest . 3dly , They alleadged that their Disposition from the common Author of the Property of the Lands in question did comprehend all Right the Disponer had , and consequently the Condition and Provision in the Bond , that before payment George Hay should be Infeft , for the Disposition would no doubt carry any obligement for Infefting the common Author . The Pursuer opponed the former Interlocutor , and alleadged that she was not obliged to Assign her Right , seing she had now Apprized , and that her Apprizing was now expired , and yet of consent she was content to Renunce her Right , but would not Assign it to exclude other Creditors , or to distresse the Cautioners ; and as for the Condition of the Bond , the Defenders Disposition gave them no Right thereto , because there was no obligement in the Bond to obtain the common Author Infeft , but only a suspensive Condition , that payment should not be made till he were procured to be Infeft , for hat the provision to obtain the Infeftment , being only an Condition , and not an Disposition , after the Disposition to the Defenders , the Pursuer might have payed the Bond , or transacted thereanent with George Hay , and was not obliged to know the Defenders .

The Lords adhered to their former Interlocutor , and found the offer not sufficient , and that the Pursuer was not obliged to Assign her Right , though she had offered of her own accord to Renunce it , and found the Persons Intrusted their undertaking the Creditors Debts before the Inhibition Relevant , only to be proven by Writ , or by the Ladies Oath of Knowledge , and would not make up such a material Clause by the Oaths of the Witnesses insert , nor of the Persons Intrusted , and if they had made any such promise it was their own fault , that they caused not put it in Writ , knowing that their Oaths , albeit they might prove against them , yet that they would not prove for them , for the Lords thought that if such blanks and clandestine Promises were allowed , they might disappoint the Diligences of all Creditors .

Thomas Kennedy contra Archibald Kennedy of Culzean , Eodem die .

THe Laird of Culzean having three Sons , Iohn Archibald and Alexander , for a Provision to Archibald the second , Dispones his Lands of Corrowa and others , with this provision , that if Iohn should die , and Archibald Succeed to be Heir , Archibald should denude himself of the Lands in favours of Alexander , and if Archibald wanted Heirs of his Body , Alexander should be his Heir , notwithstanding of any Law or Custom to the contrare ; thereafter a few Moneths before the Fathers Death , this fourth Son called Thomas was Born , Iohn the eldest , and Alexander the third are both dead Infants , Archibald falls to be Heir , and so the Condition exists , in which he was obliged to Dispone to Alexander . Thomas enters Heir of Line to Alexander , and pursues Archibald to Dispone the Lands to him . It was answered for Archibald , that Thomas as Heir of Line to Alexander can have no Right to this Provision . First , Because the Provision is only in favours of Alexander , without mention of his Heirs . 2dly , Though it could be extended to Alexanders Heirs , yet it being no Heretage to which Alexander could Succeed ; it is Conquest , and would not descend to Thomas , Alexanders Heir of Line , but would ascend to Archibald as Heir of Conquest to Alexander . It was answered for the Pursuer , that in this case the●meaning and intention of the Father must be considered by his Provision inter liberos , which is clear to have been that Archibald should not both have his Estate , and these Lands of Corrowa , but that the same should descend to Alexander , and if Thomas had been then Born , he would no doubt have provided that failzying of Alexander , Archibalds Portion should fall to Thomas ▪ and if he had declared that the Lands of Corrowa should only belong to the Heirs of Line , it would undoubtedly have excluded the Heirs of Conquest : He has done the equivalent , for having provided the Lands to Archibald and his Heirs whatsomever ; he does by a posterior explicatory Clause , declare that if Archibald died without Heirs of his Body , Alexander should be Archibalds Heir therein , notwithstanding of any Law or Custom to the contrare , which can have no other meaning then that , notwithstanding by the Law , Iohn as Heir of Conquest would Succeed to Archibald , wanting Heirs of his own , yet Alexander the younger , who would be Heir of Line should Suceeed , which is as much as to say that this Provision should belong to Archibalds Heirs of Line , and not to his Heirs of Conquest , and consequently having made no mention of Alexanders Heirs , he did also mean Alexanders Heirs of Line , who is the Pursuer Thomas , and the case is so much the more favourable , that if this failed , Thomas hath neither Provision nor Aliment .

The Lords considering that both Parties were Infants , and that if Archibald should die , Thomas would get all , superceeded to give answer anent the Heretable Right of Succession until both Parties were Major , and in the mean time allowed Thomas to Possesse the Profits of the Lands , who had no Aliment nor Provision .

Kennedy contra Cunningham and Wallace , Iuly 12. 1670.

THere being an Apprizing of the Lands of Garleith , belonging to Iohn Kennedy , at the Instance of Edward Wallace ; the said Edward by his Back-bond declared that the Apprizing was to the behove of William Wallace of Burnbank his Brother , and obliges him to denude himself thereof in his favours : Thereafter the said Edward Assigns the Comprizing , and Dispones the Lands to Adam Cunningham , who stands Infeft , and in a Debate for the Interest of this Apprizing , It was alleadged that Edward Wallace the Apprizer , having by his Back-bond declared , that the Apprizing was to William his Brothers behove , conform to his Back-bond produced , the said William was satisfied by Payment or Intromission , so that the Apprizing is extinct . It was answered for Cunningham , that the alleadgeance is not Relevant against him , who stands Infeft as a singular Successor , so that his real Right cannot be taken away by any Personal Back-bond granted by his Author , whereby he was not denuded , for though his Author had granted Assignation to the Apprizing , if it had not been Intimat , a posterior Assignation Intimat much more a Disposition and Infeftment would be preferred thereto , for albeit satisfaction of an Apprizing , by Intromission with the Mails and Duties be sufficient to extinguish , even against a singular Successor , though there was no Resignation made , which the Lords had extended to any payment made by the Debitor , yet this was never extended to any Personal Declaration of Trust , or obligement to denude , which cannot be valide against a singular Successor . It was answered for Kennedy , that Apprizings and Infeftments thereon , do differ from other Infeftments , in this , that they require no Resignation or Re-seising to extinguish them , but whatever may take away a Personal Right , either by Intromission , Payment , or compensation will take them away even by exception ; and what is Relevant against the Author , is Relevant against the singular Successor , except as to the manner of Probation , that it cannot be Proven by the Authors Oath , but by Writ or Witnesses ; neither is there any odds as to this , whether there be Infeftment on the Apprizing or not , so then if Cunningham were but Assigney to the Decreet of Apprizing , it would be Relevant against him , that before his Assignation his Cedent had declared that the Apprizing was to the behove of another , to whom the Debitor had made payment ; which Declaration being instructed by Writ anterior to the Assignation , is valide against Cunningham the Assigney , and whether he be Infeft on his Assignation and Disposition of the Apprizing or not , as to this Point , Law and Custom makes no difference , neither doth the case quadrat with an Assignation unintimat , compeating with a posterior Assignation intimat , which might be preferred ; but if the Debitor made payment to the Assigney , though he had not intimat it , it would extinguish the Apprizing , and no posterior Assignation , though intimat , would make the Debitor pay again , and in this case there is a real Declaration of Trust , which is most ordinar , when Parties having small sums ▪ assign them all to one who Compryzeth for all , and by several Back-bonds , Declares that the Appryzing is to the behove of the several Creditors according to their sums , who have alwayes rested therein , and have sought no further , and if this Back-bond were not sufficient against singular Successors , the Appryzer might at any time thereafter Dispone , and clearly exclude them .

The Lords found that the Back-bond was Relevant against singular Successors , and that payment made to him , to whose behove the appryzing was Deduced , was sufficient against a singular Successor , having right to the appryzing , or Lands from the Appryzer , after he granted his Back-bond .

The Daughters of Soutray contra The Eldest Daughter . Iuly 13. 1670.

THe Laird of Soutray having granted a Writ in favours of his Eldest Daughter , beginning in the Stile of a Testament , and after a blank , Disponing his Lands of Soutray , and his whole Moveables to the said Eldest Daughter , with the burden of ten thousand merks to be payed to the remanent Daughters : The saids remanent Daughters pursue a Declarator of the nullity of the Writ . First , In so far as being a Testament , it contains a Disposition of the Lands . 2dly , In so far as the Eldest Daughter is nominate Executrix , and universal Legatrix , because by ocular inspection , that part of the Writ was blank , and is filled up with another hand , which is offered to be proven to have been done since the Defuncts Death , so that the Executor and Legator not being filled up by the Defunct in his own time , and these being the Essentials of the Testament wanting , the whole Falls , even as to the Disposition of the Moveables . The Defender answered , that the Testament was valide , albeit the Name of the Legator and universal Executor , were filled up after the Defuncts Death ; yet it is offered to be proven , that the Defunct when he subscribed the Testament , did nominat his Eldest Daughter , as Executrix and Legatrix , and gave warrand to the Nottar to fill up the Name , which though he neglected then , and has done it since , it ought not to prejudge her . It was answered , that our Law allows of no Nuncupative Testaments , or nominations of Executors of Legators , unless the Testament be perfected in Writ , and therefore if the Executor or Legator be not filled up by the Defunct , the Testament is not perfeited in Writ , albeit the Defunct has Subscribed the same , as he might have done in a blank Paper , and given warrand to the Nottar to fill up his Testament upon such Terms , which could not subsist , though the Nottar and Witnesses should astruct the same , as not being done , habili modo .

The Lords found the Testament null as to the nomination of the Executor and Legator ; and also as to the Lands , but they found it valide as to the Disposition of the Moveables , with the burden of the ten thousand merks ; and found that the want of the nomination of the Executor or universal Legator , did not hinder , but that the Defunct might in any way Dispone his Moveables in Testament , or on Death-bed , which would stand valide as a Legacy , which by our Law might consist without nomination of Executors but would extend to that part of the Moveables only , the Defunct might Legat.

Anna Raith and Iohn Wauchop of Edmistoun contra Wolmet and Major Bigger . Eodem die .

IN Anno 1641. there was a Minute of Contract betwixt umquhil Wolmet , Iames and Mr. Iames Raiths of Edmistoun , and their Spouses , whereby a Marriage was Contracted betwixt Iames Edmistoun Wolmets Son , and Mr. Iames Raiths Eldest Daughter , and in case of the Decease of either of these two , the next Son and next Daughter to make a perpetual Friendship : In Contemplation of which Marriage , the said Iames Raith and Mr. Iames Raith his Son , were obliged to pay 10000. pounds of portion to Wolmet himself , and to lend another Sum , for Redeeming of a Wodset upon the Estate , which being done , Wolmet was obliged to Infeft his Son , and to provide eight hundreth merks of Joynture to his Good-daughter , Raiths Eldest Daughter Dies , and the said Iames Edmistoun , Wolmets Eldest Son Marries Raiths second Daughter , but there was no Contract or consent of her Parents , and they having lived seven years together , James Died without Children , and Raiths third Daughter is Married to John Wauchop , Niddries Son , and Raiths Estate provided to her , whereupon they to liberate Raiths Heirs and Estate of the 10000. pounds contained in the Contract , raised Declarator , that the minute was null and void , in two Grounds : First , Because there was no Marriage following by consent of the Parents , conform to the Minute . 2dly , Because Raiths obligement to pay the Tocher , was to Wolmet himself , and for his mutual obligement , of Infefting his Son , and providing a Joynture , which neither was , nor can be done , Major Bigger now standing in the full Right of Wolmets Estate , and no Person to Represent Wolmet . The Defenders alleadged absolvitor from the first Ground , because there was a Marriage conform to the Minute ; and albeit Raith did not consent , yet being obliged , he had no just Ground to disassent . And to the second Ground , seing there was no Clause irritant in the Minute , albeit the obligements therein were mutual Causes each of other , it might be Declared , that neither Party should be obliged to fulfil , till the other fulfilled their part , but could not annul the Minute .

The Lords found that seing Wolmet was in no capacity to perform his part , that the Heirs and Estate of Raith were free of their part , providing that the Pursuer who is Assigney to the Liferent Right of the said Iames Edmonstoun , his Wife should Discharge the said Liferent , and declare that it should never burden Wolmets Heirs or Estate .

Beation of Bandoch contra Ogilbie of Martoun . Eodem die .

BEaiton of Bandoch having a Miln upon a Burn , running by the Lands of Greendykes and Martoun , the Tennents of these Lands did by Sheuchs and Casts , divert the Water , and therewith watered their Ground , which thereafter returned to the Burn , before it came to Bandochs Dam. Bandoch pursues a Declarator , that he and his Predecessors and Authors , having been in immemorial Possession of the Miln , and having had the free use of the Burn , until of late the Tennents of Greendyke and Martoun have diverted the same to water their Ground , whereby so much thereof is drunk up by the Ground , that there remains not Water sufficient for his Miln .

In this Process the Lords having before answer allowed Witnesses to be adduced on either part . It was proven that Bandoch was in Possession of the Miln , with the free use of the Burn these threescore years , and that it was commonly known , that he and his Predecessors had been in immemorial Possession thereof till the diversion . It was also proven , that the Tennents of Greendykes had been fourty years in use to water their Ground , as now they do . It was also proven that the Tennents of Martoun have been in use to water their Ground this 34 , or 35. years , whereupon it occurred to the Lords to consider , whether the watering of the Ground being the most natural and ordinar effect of Burns and Waters , the building of a Miln beneath , could hinder that liberty , or at least , if 34. years Possession were not sufficient to continue the watering .

The Lords did not consider what effect the building of a Miln , with a short possession of the Water free of diversion would hinder the Heretors from diverting the Water from watering their Ground ; but finding that the ancient and immemorial Possession of this Miln , and full injoyment of the Water was as much proven , as could be known to preceed the 34. years , during which , the diversions upon the Lands of Martoun was proven , they found that the Miln and her priviledge being once so Constitute , no less then 40. years peaceable Possession of diverting the Water for watering , was sufficient , that being the only legal Term , and therefore allowed the Lands of Greendykes to continue the watering , but discharged the Lands of Martoun to continue the same .

Sir Alexander Hume . contra The Earl of Hume . July 14. 1670.

THe Right of the Erected Barony of Coldinghame being derived from John Stuart of Coldinghame , and Sir Alexander Hume younger of Rentoun , he pursues a Declarator against this Earl of Hume ; and the Creditors and Appryzers of the Estate of Hume , to this effect , that there being a Contract betwixt umquhil James Earl of Hume and Stuart and others , whereby it was Declared , that the Earl being Infeft in an Annualrent of 200. pounds Sterling out of the said Barony , there was nineteen thousand pounds of bygons , of the said Annualrent , at the Date of the Contract , in Anno 1631. Therefore it was agreed , that the Earl of Hume should be put in Possession of the said Barony , for payment of the said Annualrent , for Terms subsequent , and for the nineteen thousand Pounds made up of the bygone Annualrents , fructibus non compurandis in sortem , and that the Earl of Hume , who last Deceased , having Assignation to the said Contract from the Heirs of Line , of the said umquhil James Earl of Hume , recovered a Decreet of Possession upon the said Contract , in Anno 1643. and entered in Possession accordingly , and that the said Annualrent of 200. pounds Sterling , after the Decease of the said James Earl of Hume did cease , being only provided to the Heirs-male of his Body , which failzing , &c. that therefore the 200. pounds Sterling affecting the Barony in the first place , and being free , did satisfie the nineteen thousand pounds , and freed the Barony thereof . Compearance being made for the Earl of Hume , and the Creditors who had Appryzed the Barony of Coldinghame . It was alleadged that the Earls intromission was not to be ascribed to his Decreet of Possession in Anno 1648. because he had another anterior Title in his Person , viz. A former Contract betwixt the Deceast James Earl of Hume , and the Heretors of Coldinghame , by which he was allowed to Possess , till he were payed of 4000. pounds Sterling , payable at four Terms , for which , or any of the Terms , he was to enjoy without an accompt fructibus non imputandis in sortem , of which Contract there was a thousand pound Sterling unpayed ▪ and upon which Contract Iames Earl of Hume had obtained Possession , in Anno 1630. So that the late Earl having right to both these Contracts and Decreets from the Heirs of Line , and having entred to the Possession , without any Porcess of Removing , or Mails and Duties against the Tennents , but the former Possessors leaving the Possession , the Earl entered without opposition , and might ascribe his Possession to either of these Rights he pleased , and does most rationally ascribe the same to the first , especially seing he had both the Rights from the same Party , and was not introduced to the Possession by them , more upon the one Right than upon the other . It was answered for the Pursuer , that albeit Parties may make use of any Right they have to Defend their Possession , without interverting the same , yet that must always be where the posterior Right doth not derogat from the former , either as to Right or Possession . But here the second Contract and Decreet is inconsistent with , and derogatory to the former ; for the Earl having power to enter by the first , till he were payed of one thousand pound Sterling , resting of four , fructibus non computandis in sortem , taking a posterior Right , whereby he was to enter for payment of nineteen thousand pounds , fructibus non computandis in sort●● , he derogat so far from the first , that he must Possess primo loco by the last , seing the first is not reserved . 2dly , The late Earl could only be understood to enter in Possession by that Right , or the former Heretors , to relinquish the Possession to him upon that Right , which then had paratam executionem , and could then instantly have forced them to quite the Possession ; but that was only the last Contract , and last Decreet , whereupon the late Earl had obtained Sentence in his own Person , in Anno 1643. when he entered in Possession : But as for the first Contract and Decreet of Possession , it had not then paratam executionem , never being Established in the Persons of the Heirs of Line , much less in the Person of the late Earl , who had Right from the Heirs of Line by Assignation himself , being only Heir-male .

The Lords found that the Possession was only to be ascribed to the last Decreet , which only had paratam executionem primo loco , without prejudice to the Earl . if that Right were Exhausted , to defend himself with the first Right in the next place .

Major Bigger contra David Cuninghame of Dankeith . Iuly 15. 1670.

MAjor Bigger having Right to the Teinds of Wolmet from the Earl of Lauderdail , pursues David Cunninghame of Dankeith and Iean Dowglas , Relict of Wolmet , his Spouse , for Spuilzie of the Teinds , restricted to wrongous Intromission , and insists for the fifth of the Rent . The Defenders alleadge absolvitor , because they produce a Valuation of the Teinds of Wolmet , obtained at the instance of umquhil Patrick Edmonstonn of Wolmet , before the Commission for Valuation in Anno 1636. The Pursuer answered that the Defense ought to be Repelled : First , Because Swintoun standing then in the Right of these Teinds , had raised Reduction and Improbation of this Decreet of Valuation , against Iames Edmonstoun , as Heir to Wolmet , and thereupon had obtained a Decreet of Certification , which is now produced . 2ly , By Articles betwixt Dankeith and Major Bigger produced Dankeith Compts for a greater Duty than this Valuation , and so passes therefrom , and Homologats the Majors Right . 3dly , The Decreet of Valuation took never effect , there having never been payment made conform thereto , but Tacks accepted by the same Defenders , and Duties payed by them of a greater quantity . The Defender answered , that the Certification could have no effect against the Defenders , because it was only obtained against Wolmets appearand Heir , who had only the Right of Reversion , the Wodsetter who was Proprietar publickly Infeft , and the said Iames Dowglas Liferenter , by a publick Infeftment , never being Called , who do now produce the Decreet of Valuation quarrelled : And as to the Articles . they can import no Homologation , because the Article anent the Teind bears only such a sum , without relating to the fifth of the Rent , or to the price of the valued Bolls . The Pursuer answered , that the Valuation having been obtained at the Instance of Wolmet , and not of his Wife , he might Reduce the same by Calling only Wolmets Heir , who had not only the Reversion , but a Back-tack , and he was obliged to Call no other , especially seing they had no Right to the Teinds the Defender answered , that the Heretor has undoubtedly Interest in the Valuation , though they had no Right to the Teind , because it Liquidats the Teind , and Liberats the Stock of any further , and so hath the Liferenter for the Liferent Right , especially she being publickly Infeft : so that though the Decreet was obtained at umquhil Wolmets Instance , yet he being Denuded of the Property by a publick Infeftment of Wodset with his Wifes Liferent , reserved therein , they could not be miskenned , and their Right taken away by a Process against Wolmets appearand Heir , who was Denuded of the Property , and who did now produce the Decreet of Valuation , and abode by it as a true Deed.

The Lords Sustained the Defense upon the Decreet of Valuation , and found the Certification could not take away the Liferenters Interest in the Valuation , she not being Called ; and found the Articles to infer no Homologation , but found the third member of the reply Relevant , that Tacks were taken by the Defenders , and Duty payed of a greater quantity since the Valuation .

Lady Lucie Hamiltoun . contra Bold of Pitcon . Eodem die .

LAdy Lucie Hamiltoun insists in her Reduction , before Debated on the eight of Iuly instant , against Pitcon on this Ground , that abbeit the Disposition granted to him by George Hay , the Common Debitor be anterior to the Pursuers Inhibition ; yet it must be Reduced on this Ground , that it is without any equivalent onerous Cause , and that albeit in bear an onerous Cause , yet that will not instruct the same , but it must be instucted otherwise than by Pitcons own Oath , because it is betwixt conjunct Persons , two Good-brothers ; and because it bears not only to be in favours of Pitcon himself , but for the use and behave of the Creditors , whose Names were then blank , and thereupon are now excluded , as being filled up after the Pursuers Inhibition , so that the Disposition being in so far fraudulent , and not totally granted to Pitcon for himself , the proportion of his Interest cannot be known , but by instructing the Debts due to him , and for which he was ingaged the time of the Disposition . It was answered for Pitcon , that he was ready to instruct the Debts scripto , and for some few to whom he had undertaken payment , at the time of the Disposition he offered to produce their Bonds , and to Depone that he undertook payment of them , as said is , which is all that is required by the Act of Parliament anent fraudulent Dispositions , whereby the defect of an onerous Cause , is to be proven by the Parties Oath , who gets the Disposition .

The Lords Repelled the Alleageance , and found that Pitcon behoved to instruct the Cause of the Disposition , otherwise than by the saids Bonds , and his own Oath .

It was alleadged for Kelburn , another of the Creditors , that he had Right by an Appryzing , proceeding upon sums anterior to the Inhibition . It was Replyed , that the Appryzing was null . First , Because the Denunciation whereon it proceeded , was not at the Mercat Cross of the Shire , but at the Mercat Cross of the Regality ; in the English time , when Regalities were supprest . 2dly , That the Appryzing was led at Glasgow ; and neither within the Shire of Air , where the Lands ly , nor by Dispensation at Edinburgh : And albeit the Letters bear a Dispensation to Appryz● at Glasgow , and that the Denunciation was made accordingly , for the Parties to appear at Glasgow , yet there was neither Law nor Custom for such a Dispensation , and Parties are not obliged to attend but at the head Burgh of the Shire , or in communia patria , at Edinburgh . 3dly , The Pursuer has also an Appryzing , though posterior , yet preferable , because solemn and orderly according to the Custom then being . It was answered , that albeit the Custom under the Usurper might excuse the want of Denunciations at the head Burghs of Regalities , which were then supprest , where they were used at the head Burgh of the Shire according to the Custom then , and so validats such Appryzings ; yet this Defender having according to the standing Law of the Land , Denunced at the head Burgh of the Regality , the contrair unwarrantable Custom cannot annul his Appryzing , proceeding according to Law . And as to the Dispensation at Glasgow , which was nearer the Lands then Edinburgh , whatsoever might have been said to the inconveniency of granting such a Dispensation , yet being granted , it is valide , and was then frequent to grant such Dispensations .

The Lords found that the Pursuers Apprizing being according to the ordinar Custom for the time , at the head Burgh of the Shire upon Denunciation , that it was more solemn and preferable , as to the manner of Denunciation , than that which was upon Denunciation at the head Burgh of the Regality , at that time . But the Lords did not determine , whether such an Appryzing would have been valide , if there had not been a more formall one ; Nor whether the Dispensation being granted at Glasgow , was valide .

Margaret Scrimzeor contra Alexander Wedderburn of Kingennie . Iuly 19. 1670.

UMquhil Major William Scrimzeor having nominat Alexander Wedderburn of Kingennie , and two others to be Tutors to his Daughter . She now pursues a Tutor Accompt , wherein this Question arose , and was reported to the Lords by the Auditors , viz. The Defunct having Died in September 1650. The Tutor did not accept the Nomination , or begin to Act till the end of the year 1653. In which time the Tutor alleadged that a part of the Pupils Means perished , and became Insolvent , and craved to be liberate thereof , on that Ground in his Discharge . It was alleadged for the Pupil , that the Tutor must be lyable from the time that he knew that he was Nominat Tutor , for albeit he might have abstained absolutely , yet once accepting the Tutory by Nomination of a Testament , wherein a Legacy was left to himself , he must compt as if he had accepted it at the first , for which there was adduced many Citations of Law . It was answered for the Tutor , that in the Roman Law , Tutors were obliged to accept so soon as they knew their Nomination , unless they could free themselves by the excuses allowed in that Law : But with us it is absolutely free to accept or refuse , without any excuse ; and it is only the acceptance that obliges , and so can have no effect ad preterita as to that which perished before acceptance , especially in this case , the Defender being but one of three Tutors Nominate , he ought to have had a time to endeavour with the rest to accept , and his lying out was in such a time , in which Judicatures did cease by War and Troubles , the English after the Battel of Dumbar in September 1650. being possest of Edinburgh , and the publick Records , there was no Session keeped till the year 1652 , or 1653.

The Lords found the Tutor was not lyable for any thing that perished before his acceptance .

The Executors of Walter Hamiltoun contra The Executors of Andrew Reid . Iuly 20. 1670.

THe Executors of Walter Hamiltoun pursue the Executors of Andrew Reid , for payment of a Bond of 122. pounds Sterling , and of a Bond of eighteen pounds Sterling , due by the said umquhil Andrew Reid , to the said umquhil Walter Hamiltoun . The Defenders alleadged , that they ought to have allowance of fifty pounds Sterling , payed to Walter by Iohn Fleeming , by Andrew Reids Order , and of Sterling , payed to Mckneich , upon a Bill drawn by Walter Hamiltoun upon Andrew Reid , to be payed to Mckneich , and for proving thereof , produced missive Letters , Written by Walter Hamiltoun to Andrew Reid , the one bearing , that Fleeming had payed a part of the 50. pound , and he doubted not but that he would pay the rest : And the other bearing , that Mckneich had got payment . It was answered for the Pursuers , that the Missive Letters could not instruct a Discharge , or abate those clear Bonds , because they did relate to Bills and Orders , upon which payment was made , and except those Bills and Orders can be produced , the Letters relating thereto , can have no effect , for it must be presumed , that the Bills and Orders have been retired by Walter Hamiltoun , as having been allowed in other Bonds , which then have been delivered by Walter to Andrew Reid , it being the ordinar course amongst Merchants , to interchange Bills and Bonds , without any other Discharge , neither do they take notice of their Missives , relating to such Bills or Orders , nor can it be supposed they can remember the same . The Auditors in this Accompt , having taken the opinion of several knowing Merchan's anent their Customs in this point , they did all report in Writ , and did all agree in this , that missive Letters relating to Bills , Orders , or Discharges , had no effect , unless the Bills , Orders , or Discharges were produced , and that Merchants neither did , nor could have notice of such Missives to retire , or interchange the same ; they did also visit Walter Hamiltouns Compt Book , by which there appeared several other Bonds and Accompts betwixt the Parties , beside these : And in which also , the sums contained in these Letters , were set down as payment , in part of the other Bonds and Compts , whereby it appeared , that the Bill and Order mentioned in the Letter , were interchanged with the former Bonds .

The Lords found that the missive Letters relating to the Bill and Order , had no Effect , unless the Bill and Order were produced .

Hugh Moncrief of Tippermalloch contra Magistrates of Pearth . Iuly 26. 1670.

HVgh Moncrief of Tippermalloch having Incarcerate Ogilbie of Channaly in the Tolbooth of Pearth , from whence he having escaped ; he pursues the Magistrates of Pearth for payment of the Debt , who alleadged absolvitor : First , Because their Tolbooth was sufficient , and the Rebel had escaped vi majori , having broken the Stone , in which the Bolt of the Tolbooth Door entered , and forced the Lock in the time of Sermon , and that immediately after the Rebel escaped out of the Town , and was met with Friends that were trysted there at the time of his escape . 2dly , They had laid out all wayes thereafter to search for him , and had at last found him in the Tolbooth of Edinburgh for the same Debt , where he yet was in as good condition , as when he first escaped . The Pursuer answered , that the Rebel had escaped by the fault or neglect of the Jaylour , for whom the Town was answerable , in so far as they had given him the liberty of all the Rooms in the Tolbooth , and that when he escaped , he was left in the outmost Room , and his Brother Son was permitted to abide within with him , and the Catband on the outside of the Tolbooth Door was not put on and Locked , which would have so secured the Door , that nothing the Prisoner could have done within , could have opened the same ; and that the Tolbooth Lock had a double and single Cast , and when it was Locked only with the single Cast , the Bolt might be thrust back , but when with the double Cast , it had a strong Backsprent , and could not be thrust back : and that at the time of the escape , the Lock had but the single Cast , so that the edge of the Stone being broken off , there was access to press back the Bolt . To the second it was answered , that the Rebel having escaped through the Town or their Servants neglect , jus erat acquisitum to the Pursuer , making them lyable , which could not be taken off by any Incarceration thereafter , unless the Magistrates had followed him in the very Act of escape , and recovered him ; but now they have six Moneths after his escape put him , not in the Tolbooth of Pearth , but in the Tolbooth of Edinburgh .

The Lords being unwilling to give either Party the choose of Witnesses for Probation , had before answer , appointed either Party to adduce Witnesses anent the condition of the Tolbooth , and the manner of the Rebels escape , which being now advised .

The Lords found that by the most pregnent Probation , it was proven that the Catband used sometimes to be on in the day time , and sometimes not , and that Prisoners for Debt had the liberty in the Day time of all the Rooms of the Tolbooth , the Probation was very contrair , as to the breaking of the Stone wherein the Bolt entered , but it seemed access could not be had to the Bolt without some breach of the Stone . It was also proven the Catband was not then on , and that the Bolt when it got the double Cast , could not be prest back , and could when it got the single Cast ; and therefore the Lords found that the Magistrates proved not their first Exception , that the Rebel had escaped vi majori , without their fault or negligence , and found the second Exception of puting him again in Prison , not Relevant .

The Lady Halliburtoun contra The Creditors of Halliburtoun , Iuly 27. 1670.

THe Lady Halliburtoun being provided by her Contract of Marriage to the M●ins of Halliburtoun , with the Miln and Pertinents , and her Precept of Seizing bearing warrand to Infeft her in the Mains and Miln , by Earth and Stone of the Land , and by the Clap of the Miln , her Seising having the said Precept ingros●ed , bears her by vertue thereof to be Infeft by the Earth and Stone of the Land , but mentions nothing of any Symbol for the Miln , or of any Reason that Seising was not taken of the Miln● because it was Demolished , the Miln being thereafter Built or Re-edified , the Creditors having Apprized , did take Infeftment of the Mains by Earth and Stone , and of the Miln by Clap and Happer , and now in a competition betwixt the Lady and them anent the Rents of the Miln . It was alleadged for the Creditors , that they ought to be preferred , because they were Infeft in the Miln , and the Lady was never Infeft therein , albeit her Precept of Seising buir an express Warrand to Infeft her therein by Clap and Happer . It was answered for the Lady , that her infeftment of the Land , with the Miln and other Pertinents , is anterior to the Creditors , and must extend to the Miln , albeit she took no special Seising thereof , because there was no standing Miln at the time of her Seising , so that the Miln being Builded by her Husband thereafter , solo cedit , and belongs to her as a Pertinent , for though , where a Miln is before Infeftment , it cannot passe as a Pertinent without a special Seising , yet where it is only Built thereafter , it accresces to any Party Infeft in the Land , especially being Infeft in the Land , with the Miln thereof .

The Lords preferred the Lady , she proving the Miln● the time of her Contract and Infeftment , was not at all Built , or having been Built was Demolished .

Charles Charters contra Cornelius Neilson , Iuly 29. 1670.

CHarles Charters and Cornelius Neilson , both having Arrested their Debitors Money in the same hand , Cornelius Arrestment was upon the 24. of Iune , and Charles Arrestment upon the 28 , But Cornelius Arrestment was upon a Bond , whereof the Term of payment was not come , and the Term of payment of Charles his Bond was come , both Parties having their Citation before the Bailzies of Edinburhg in one day , where Cornelius alleadged preference , because his Arrestment was prior , Charles Charters answered , that albeit his Arrestment was four days posterior , yet it ought to be preferred , because the Term of payment of Cornelius Debt was not come whereas Charles his Term being past , he has paratam executionem , this being ready to be Advised by the Bailzies . Cornelius raises Advocation , and the Cause being Advocat , the same Debate was repeated before the Lords , and Cornelius added that now the Term of payment of his Sum was past , and alleadged that albeit his Term were not come , his first Arrestment is preferable , though the Decreet thereupon could only be to pay after the Term were past , and now his Term being also past before Sentence there needs no such limitation . It was answered , that it is not the Arrestment that constitutes the Right , but the Sentence making forthcoming , and though ordinarly the first Arrestment is preferred , yet oftimes posterior Arrestments are preferred upon more timous or more orderly Diligence , and the Diligence done , by Charters is done more orderly , because it was after the Term , for if it were Sustained , that Arrestments made before the Term of payment , should be preferred to these made after the Term , Creditors who has ready Execution should be postponed to others , whose Debts were payable after a Liferent of 20. years time , but as the second Arrester may Poind his Debitors Goods , though Arrested formerly by another , so may he crave Sentence to make forthcoming to take present effect by Poinding , and cannot be excluded by an other Creditor , upon pretence of a prior Arrestment , which cannot receive present Execution ; and albeit the prior Arresters Term be now come , yet he ought not to be preferred , because he procured Advocation of the Cause , without any just Reason , either of Incompetency or Iniquity , only to procure delay till his Term were past , and therefore the Cause being now Advocat of consent , the Sentence must now be of the same manner , as it would have been before the Bailzies when the Cause was Advocat , at which time Cornelius Term of payment was not come .

The Lords found that the unwarrantable delay by the Advocation should not prejudge Charters , and that the case should be considered as it was the time that the Advocation was raised , and preferred Charles Charters upon his posterior Arrestment , in respect the Term of payment of his Debt was come , to the prior Arrestment laid on upon a Debt the Term of payment whereof was not come , whereupon Citation was used before the Term came .

The Advocats having withdrawn from the House upon the Oath prescribed by the Regulation , nothing was Called until the midle of December .

Murray of Achtertire contra Gray , December 16. 1670.

MVrray of Achtertire having pursued a Contravention against Gray upon several Deeds , whereof one was , that Achtertire having procured liberty from a Neighbour Heretor to make a Cast upon that Heretors Ground , wherein some little Burns were gathered to a Head , and thence were conveyed through Achtertires own Ground to his Miln Lade , and that Gray had broken down that Cast , whereby the Burns were diverted● Gray having compeared and proponed nothing , the Libel was found Relevant , and admitted to Achtertires Probation , who by several Witnesses proved that the Defender had broken down that Cast , of whom some Deponed simply , but two of them Deponed thus , that Gray had broken down the new Cast , but that the Burns gathered therein in the time of Floods did water Gray●s own Lands ; and that by the new Cast they were keeped in , and could not water the same , whence it arose to the Lords consideration , whether that Deed of Contravention was sufficiently proven , or whether the Testimonies of the Witnesses , being qualified that the Defender had done the Deed , but in continuation of his former Possession of the watering of the Burns , whether respect ought to be had to that qualification , some thought not , because the Fact , as it was Libelled , was found Relevant , and proven , and the qualification ought to have been proponed by way of Defense , but it was found that the Testimonies being so qualified , did not sufficiently prove to infer a Contravention , for if the Contravention had been proven by Writ or Oath , such a quality either in the Writ or Oath would hinder the same to prove sufficiently the Contravention .

But because the Testimonies were not to be considered by the Parties , the Lords ordained the Sentence to expresse the foresaid Reason of it , that the Pursuer before Extract , might alleadge any thing thereanent he thought fit .

Nicol Langtoun contra Robert Scot , Decem. 17. 1670.

JOhn Graham of Gillesby , having Set a Track of his Lands of Graystoneflat to Nicol Langtoun , and being at that time at the Horn , Robert Scot obtains a Gift of his Escheat and Liferent from Annandale his Superior , and thereupon obtains general and special Declarator , Decerning Langtoun to pay the Duties to him as Donator . Langtoun Suspends , and raises Reduction on this Reason , that the Gift was simulat to the behove of Graham the Rebel procured by his own Means and Moyen ; and it being answered by Scot , that he being a lawful Creditor of the Rebels , might lawfully accept and make use of this Gift for his own security , albeit the Rebel had procured the same , and Scot the Donator having Deponed anent the simulation of the Gift , did acknowledge that the Rebel had procured the Gift , and that he had it blank in the Donators Name , and that he did fill up Scots Name , and delivered it to him .

The Lords found the Oath to prove the simulation of the Gift , and that it having been in the Rebels own hands blank in the Donators Name , it was equivalent to an Assignation from the Rebel , and that Scot accepting of it so from him , could not justly or bona fide make use of it , even for security of a just Debt in prejudice of the Tacks-man , who had before gotten his Tack from the Rebel .

Alison Kello contra Kinneir , Ianuary 5. 1671.

ALison Kello as Heir to her Mother Margaret Nisbet , having pursued a Reduction of an Apprizing of the Lands of Paxtoun , Led at the Instance of Mr. Samuel Hume , against the said Margaret in Anno 1622. and Assigned to Mr. Alexander Kinneir in Anno 1623. upon this Reason , that the said Mr. Alexander was satisfied by his Intromission within the Legal ; this pursuit , being against Mr. Alexander Kinneirs Son , who is Minor , and being stopped upon his Minority , quid Minor non tenetur placitare de hereditate paterna . The Lords did upon the Pursuers Petition , grant Commission to Examine Witnesses upon the Intromssion , to remain in retentis till the Cause might be Determined , in respect the Witnesses might die in the mean time , which being reported , the Lords remitted to an Auditor to state the Compt of the Intromission according to the Probation , that the stated Accompt might remain in retentis . The Defender being heard again before the Lords , did alleadge that the Accompt could not be stated upon this Probation , but that there being yet no Litiscontestation in the Cause , neither can be , through the Defenders Minority , and this Probation being but before answer to remain in retentis , and taken by Commission , the Defender not being present at the Examination , and the matter being very ancient , fifty years agoe , the Lords ought to give the Defender the sole or conjunct probation of this alleadgeance , viz. That he offered him to prove , that during the years of the Legal , the Lands were Possest by several Persons , by Dispositions or Tacks , both under Reversion , for certain Sums of Money , due by the said Margaret Nisbet , which Rights were granted by her , and were now produced by the Defender , which with the saids Rights produced , is much more pregnant nor the Pursuers Probation , by some inconsiderable Countrey People , without any Adminicle in Writ . It was answered for the Pursuer , that the alleadgeance was no way Relevant , being contrare to her Libel , and founded super jure tertij , for this Defender hath no interest in the Wodset Rights , nor doth any Person appear for them , or own them , and if this were sustained , it would afford a current evasion in all kind of Pursuits upon Intromission , by offering still to prove that the Defender did not , but that a third Party did Intromet , and therefore the Lords have never Sustained such a Defense upon the Defenders sole Probation , and in no case have allowed a conjunct probation . It was answered , that in a matter so old , and where the sole probation of a thing of so great Moment was to be by Witnesses the Lords ex officio might Examine Witnesses for either Party , and have oft so done , especially the same ought to be done here , where the probation is by inconsiderable Persons , and so suspect and exorbitant , proving ●●nneirs Intromssion to be before he had any Right , and the quantities to be much higher then the written Tack of the Lands produced .

The Lords found that they could not admit a Probation for the Defender , upon the Possession of any third Party , from whom he derived no Right , but that upon the consideration alleadged , they would Sustain no Probation for the Pursuer , but that which were clear and pregnant , and allowed the Defender to give in any Objections against the hability of the Witnesses , yet having considered their Testimonies , they found that they did not prove Kinneirs Intromission to be before his Right , but that after his Assignation he had Removed and Dispossessed Margaret Nisbet , and entered in the natural Possession , and Labouring himself , which is a Fact more palpable then the lifting of Duties from Tennents .

Ianuary 17. 1671. Stair was Admitted President of the Session . Drummond of Rickartoun contra The Feuars of Bothkennel , Eodem die .

THomas Drummond of Rickartoun pursues a Poinding of the Ground against the Tennents of the Lands of Bothkennel wherein the Feuars alleadged no Process , because the Pursuer being Pupil , he is not sufficiently Authorized , the Tutory produced being to his Mother and Uncle jointly , and his Mother being dead , his Uncle is no more Tutor , the Tutory being granted to them , and bearing expresly to them jointly . It was answered , that in Tutories , Curatories , Executories , the death of one Person doth not evacuate the Office , but it accresces to the rest .

The Lords found that in respect of the Tenor of the Tutory , bearing to two conjunctim , the death of one evacuats the Office ; Nevertheless they declared that they would give a Curator ad hanc litem , to Authorize the Pupil , but that none could uplift or discharge , till there were a new Gift of Tutory .

Mr. Robert Dickson contra Iames Graham , Ianuary 19. 1671

MAster Robert Dickson Advocat having granted Bond to James Graham , for a Sum of Money furnished to his Brother upon an Accompt , he raises Reduction of the Bond , as to a part thereof , upon fraud and circumvention , alleadging that the true cause of the Bond was the causing answer his Brother Money , and that he had made an agreement before the hand , for so much the French Floren ; but his Brother having some Moneys answered in Vinnice , without any agreement before the hand ; when the Parties came to Accompt , Iames Graham being wholly Trusted by the Pursuer did give an Accompt , and did Affirm to the Pursuer that the Rate of answering Money in Vinnice was at that time so much dearer then the same truly was , if it had been only answered in France , wherein he now understands he was deceived , because it was equal or less value to furnish it in Vinnice then France , and offered to prove the value of the Money by Witnesses , and the rest by Oath . The Defender answered , that it was lawful for him , being a Merchant , to take what value for the Floren he could agree , and that it would be of evil consequence , if Bonds upon Merchants Accounts were Reduceable , and they held as Circumveeners , if they had taken a greater Rate then the ordinar Rate at that time , especially here the agreement of the Rate being with a prudent Party , and a Lawyer . 2dly , The Pursuer had Homologat the Bond by paying a part of it , and could not quarrel the rest .

The Lords found the Reason of Circumvention Relevant , in these terms , that there being no agreement before the hand , wherein the Merchant might take any Rate he could get , but after the Money was furnished , the Defender had fraudulently affirmed to the Pursuer , that the furnishing of the Floren to Vinnice , was more then the furnishing of it to France , although he knew the contrare at that time , but would not find the main error in that Article of the Rate to be Relevant , and they Repelled the Homologation , because the Pursuer might be deceived in one Article , and not in the rest .

Captain Ramsay contra William Henderson , Ianuary 20. 1671.

CAptain Ramsay as Assigney Constitute by Eupham Scot , to a Sum of two thousand Merks , Addebted by umquhile Mr. Charles Henderson pursues his Heir for payment , who alleadged Absolvitor , because this Debt being due originally by Mr. Charles Henderson , and by the said Eupham Scot , who being vitious Intromissatrix with his Goods and Geir , and having been Assigned to this Sum her self , she became Creditrix , as Assigney and Debitrix as vitious Intrometter , & confusione tollitur obligatio , and this Pursuer having Right from her , can be in no better case then she . It was answered , that vitious Intromission was not competent by way of Defense .

The Lords found that whatever might be said , if the vitious Intrometter had been pursuing whether the Defense might have been competent , yet found it not competent against the Assigney , seing the Cedent was not in campo , and Probation behoved to be used against her .

Sandilands contra Sandilands , Ianuary 25. 1671.

THe Children of Alexander Sandilands pursue Agnes Sandilands their Mother , for Compt and payment of their Fathers Means , the Tutory being now finished by her Marriage ; In which Accompt the Mother gave up in defalcation the third of all moveable Sums , as Ships , Merchant Goods , Houshold Plinishing , &c. It was answered for the Children , that she can have no part of the moveable Sums , or moveable Goods , because by the contract of Marriage produced , she is provided to the Annualrent of 5000. Merks which was her own Tocher , and ten thousand Pounds more of her Husbands , which is her Husbands , and was the whole Fortune he then had ; and as to the Conquest , it is provided that all Sums of Money , Lands , Annualrents , Tacks and others whatsomever Conquest during the Marriage , shall be taken to the Husband in Liferent , and to the Bairns in Fee ; and because the Wife is provided to be a Bairn in her Fathers House , what shall come that way is provided to be taken to the Husband and Wife , the longest Liver of them two , and the Bairns of the Marriage , so that all the Sums , and Moveables in question , being Conquest during the Marriage , they are by the Contract destinate to the Husband in Liferent , and the Bairns in Fee , and which Provision is a Debt upon the Husband , his Heirs and Executors , so that the Wife can have no third thereof . The Defender answered , First , That her Right of the third of the Moveables being Constitute by the Law , cannot be taken away , but by an expresse clear Deed Renuncing the same , or accepting such Provisions in satisfaction thereof , which being a Clause now ordinarly adjected in Contracts , and not put in this Contract , albeit in the same the Wifes Tocher bears in full satisfaction , the Clause can never be so interpret as to exclude her third , especially a Contract of Marriage being so favourable , that words are always understood● therein according to the meaning of Parties , and here the meaning of the Parties may be cleared , by this , that the Defunct who was a very intelligent Man , did declare that he would leave to his Wife so much of his Moveables in full satisfaction of her third , so that he thought she was not excluded , and if need beis the Parties alive , Writters and Witnesses in the Contract may be yet Examined to clear the meaning of the Clause . 2dly , Albeit the Clause could not exclude her from a third of Money , which is expresse therein , yet not from a third of Moveable Goods and Geir , which is not exprest , and albeit the Clause bears , ( and others ) it can only be understood of Rights due by a stated Security , and the intent of the Clause has only been to substitute the Bairns of this Marriage , Heirs of the Conquest , and to exclude the Bairns of any other Marriage , but did neither exclude the Father , but that he might dispone on his Moveables , albeit the Clause expresseth him but Liferenter thereof ; neither does it exclude the Mother from the third thereof : And there was adduced a Decision in the Case of the Lady Oxenfoord , wherein , albeit by her Contract of Marriage she accepted certain Lands in full satisfaction of her Terce , and third of all Lands , Annualrents and others , yet that was not found to exclude her from a third of Moveables , but only from a Terce , or third of Heretable Rights . It was answered for the Children , that their Mother having consented by the Contract of Marriage , that all Conquest during the Marriage should be provided to their Father in Liferent , and to them in Fee , she had excluded her self as clearly , and effectually , as if she had Renunced her third thereof , or accepted of her Jointer in full satisfaction ; neither is there a necessity that these words must always be used , nor is this alleadged as a consequential Renunciation , but as an expresse Obligation , or Destination of the Husband consented to by the Wife , which must have its native effect , and so the Children must be Feears of the whole Conquest , and therefore the Wife cannot be Feear of a third of it , and albeit moveable Geir be not exprest , the generality ( others ) must necessarily comprehend them , being of the same nature with Sums which are exprest , and may be Moveable , and of less importance then they , and the case wholly differs from that of the Lady Oxenfoord , wherein nothing but Heretable Rights are exprest , and it is an unaccustomed Clause amongst Persons of that quality to exclude Ladies from a third of Moveables ; but here Sums are exprest , and it is most ordinar for Merchants to exclude their Wives from their Merchant Goods , which is the greatest part of their Estate , as to the meaning of the Parties , clear Clauses cannot be enervat upon that ground , and as for any thing exprest by the Husband , It was on Death-bed in a great Fever whereof he Died , and no Testament followed .

The Lords found that the foresaid Clause in the Contract did exclude the Relict from a Terce of Moveable Sums , or Moveable Goods during the Marriage , which could be understood , to be meaned to be put upon Security at any time , but that it did not exclude her from a third of the Houshold Plenishing .

Charles Casse contra Sir Robert Cunningham , Ianuary 26. 1671.

CHarles Casse having Sold to Sir Robert Cunningham his Right to the Lands of Achinhervy in his Minority , pursues a Reduction of the same Disposition upon Lesion , and condescends upon his Lesion , thus , that being Infeft for security of fourty thousand Merks , and in an Annualrent effeirrand thereto , whereof there were many bygone years Annualrent resting , and yet he got only fourty thousand Merks for all . The Defender alleadged Absolvitor , because the Pursuer was satisfied of all his bygone Annualrents , in so far as he having Apprized for five years Annualrents preceeding the Apprizing , which was in Anno 1655. he had entered in Possession by vertue of the said Apprizing of the whole Lands of Achinhervie , and so is Comptable therefore according to the Rental , untill he cease to Possesse the same , which will fully satisfie all his bygones , so that he will have no Lesion 2dly , He had not only in his Person the said Apprizing , but the Infeftment of Annualrent , upon which he being preferred in a double Poinding , and excluding other Parties having also real Rights , he is thereby obliged to do Diligence , and be Comptable not only for what he intrometted with , but for what he ought to have intrometted with . The Pursuer answered , that he was content to Compt for what he had Intrometted with , but upon neither ground was he obliged to Compt for any further , especially as to his Apprizing , albeit Law and Custom had oblidged him to Compt for the whole Rental , till the Apprizing were satisfied , yet he could not be Comptable but for his Intromission after he was satisfied● for then he had no title in his Person , and it is clear that any Intrometter without a title is only lyable for his Intromission , and all Parties having Interest might have hindred him to have Intrometted after he was satisfied ; and albeit a Tennent or Factor , after the expiring of the Tack , or Factory may be Comptable for a full Rental , yet that is because they have a title per tacitam relocationem , or tacitam commissionem ; but after the extinction of the Apprizing then no title remains , and neither is he lyable as an Annualrenter , even though he did exclude others to do any Diligence , because all the effect of an Annualrent can only be to distresse the Ground , or Poind the Tennents for as much of their Rent as is equivalent to the current Annualrents , after which any other Party having Right may li●t the superplus , and in this case the Annualrenter hath not been preferred as to any bygone Rents , but only in timecoming , and for his current Annualrents , and the bygones are appointed to be brought in Accompt , which was never determined . The Defender answered , that it were against all Reason that an Apprizer after he is satisfied , should be in better condition then before he is satisfied , and so as long as he meddles , he must Compt by the Rental , and it is his proper part , who knows when he is satisfied , to relinquish the Possession , which other Parties cannot know , till by a long Process of Compt and Reckoning it be determined , and it were most absurd that in the mean time he should continue in Possession , and though the Rents did in a great part perish , he should not be Comptable therefore , but only for what he actually lifted .

The Lords found the Pursuer as Apprizer Comptable according to the Rental , not only for Intromission , but Omission , both till the Apprizing be satisfied , and thereafter for all years of which he lifted any part , but found not the Annualrenter lyable for Diligence , albeit he did exclude others , but the Case came not to be Determined if the Annualrenter had by a Personal Action insisted for more years Annualrent past , to be preferred to the whole Rents , till these bygones were satisfied , that not being the case here in question .

In this Cause it had been formerly alleadged that the Pursuer after his Majority , had Received a part of the price of the Lands , in so far as having in his Minority granted a Commission to Mr. Iohn Smith , one of his Curators , to uplift all Sums due to him , and he having uplifted a part of the price of the Land from the Defender , and bonds for the rest ; the Pursuer after his Majority , had by his Discharge produced , Received from his Curator and Factor the said Money and Bonds , and Discharged him thereof , and acknowledged that he and the remainent Curators had acted faithfully in all their Intromissions , whereby the Pursuer hath approven , and Homologat the Disposition of the Land , made by him and his Curators , which he now quarrels . The Pursuer answered , First , That the Defense is not Relevant , for Homologation being a presumed or conjectured Consent , not by Word or Writ , but by Deeds done , which import the adhering to the Disposition quarrelled , it cannot be inferred by any Deeds , but such as can have no other intent or purpose consistent with the Rejecting , or disapproving the Disposition , but here the Receiving of the Money and Bonds from the Factor hath a consistency and congruity with this Reduction , for the Pursuer knowing that he could not be restored against his Disposition , unless he did restore what was Received by his Warrand , might justly take up the same from his Factor , that he might be in capacity to Consign the same at the Bar , as if a Minor having Bought Lands to his Lesion , and having Wodset a part of the same , he might after his Majority Redeem the Lands Wodset by himself , which although it behoved to proceed upon the Disposition as his Title , yet it being a Deed necessar to purge the Wodset , and repone the Disponer to his own Land free thereof , it would never importan Homologation , or if he had in his Minority excambed Lands , and Wodset a part of the Lands he acquired thereby , the Redeeming or purging of the Wodset after his Majority would import no Homologation , so neither can any Deed import Homologation , which upon any account can be consistent with the annulling of the Right quarrelled upon Minority . 2dly , This Dicharge does bear expresly relation to Mr. Iohn Smiths Accompt of Intromission Subscribed at the same time , and bears that the Discharge should be alse sufficient as if the Accompt were insert , Ita est in the Charge of the Accompt , wherein only mention is made of the Sums payed by the Defender , there is an express Reservation , that the Accompt shall be but prejudice to the Pursuer to insist in his Reduction of the Disposition , And as to that Clause in the Discharge , that the Curators and Factor had done faithfully ▪ It relates only to their Intromission , and not to their Omission , and albeit it had born simply , that they had acted faithfully , that can only import that they had not acted Fraudulently , and that they had done for the Minor what they conceived best : but does not import that they had acted providently and skilfully , so that the Minor may still Reduce their Deed. The Defender answered , that his Defence was most Relevant , being founded upon the Pursuers consent , after his Majority : for consent may be Adhibite , not only by Word or Writ , but by any Deed importing the consent , as if a Minor giving a Bond in his Minority , should pay a Terms Annualrent thereof after his Majority : Or if a Minor intrometting with his Fathers moveable Heirship , or Rents of his Lands in his Minority , should continue to intromet for one Term , or one Point further after his Majority , in neither case would he be restored ▪ and yet such Deeds might be consistent , and might be done to other intents , as if his payment of the Annualrent did bear , le●t before his Reduction he might be Distressed , or that he continued his Possession , lest the Rents or Goods might perish to the dammage of his party : Yea , though these were expresly mentioned in his Discharge ; and his Reduction were reserved , it would be protestatio contraria facto , and would not free him : so neither can the Reservation in this accompt , though it were repeated in the Discharge , be sufficient ; especially seing he might have caused the Factor Consign the Money in the Clerks hands , that it might be restored at the Discussing of the Reduction : So that inconsistent Reservations or Protestations , operate nothing . 3dly , The charge of this Accompt , wherein only the Reservation is mentioned , is a louse sheet of Paper , subscribed with another Hand than the Discharge , and has neither Date nor Witnesses , and so cannot instruct that this is the very Accompt mentioned in the Discharge .

The Lords did not determine the Point of Homologation , but before answer ordained the Curators and Witnesses in the Accompt to be Examined upon Oath , whether the Charge produced be the same that was subscribed , abinitio , bearing the said Reservation , But they inclined that the Reservation would take off the Homologation , and would not be void , as contraria facto .

Keir contra Nicolson . Ianuary 28. 1671.

JOhn Keir as Assigney by the Earl of Mar to some Feu-duties , pursues a Poinding of the Ground against Nicolson of Tillicutrie , who alleadged no Process , because the Earl of Mar his Cedent , had no right to thir Feu-duties , which were due in his Fathers Lifetime , whose Liferent was reserved ●whereupon compearance was made for Scotscraig's Heir , who was Donator to the old Earl of Mar's Escheat and Liferent , and concurred . The Defender answered , that the concourse could not be effectual , because their bygone Feu-duties being moveable , belonged to Scotscraigs Executor , and not to his Heir : and though the Concurrer was both Heir and Executor , yet thir bygones belonging to Scotscraig as Donator , being for years wherein Scotscraig lived , they are moveable , and ought to have been contained in the Inventar of his Testament , as they are not . It was answered , that a Liferent-Escheat having tractum futuri temporis , belongs not to the Executor , even as to the bygones , before the Donators Death , unless they had been liquide and established in his Life ; but the Gift and all following thereon belongs to his Heir .

The Lords found that the bygones of the Liferent preceeding the Donators Death , did belong to his Executor , albeit in his Life he had obtained no sentence therefore .

Dowglas of Kelhead contra The Vassals of the Barony of Kelhead and others . Ianuary 30. 1671.

THe Earl of Queensberry being Superiour to certain Vassals of the Barony of Kelhead , who did Dispone the Feu Duties and whole Casualities of the Superiority to Kelhead his Brother , to the effect that Kelhead might be his immediat Vassal , and that the Feuars might hold of Kelhead , whereupon Kelhead was Infeft , holding of Queensberry , and thereupon pursues a Declarator of Non-entry , both generally and specially in the said Summons . It was alleadged for the Defenders absolvitor , because they were not the Pursuers Vassals , for albeit he was Infeft holding of Queensberry , to the effect he might become their Superiour , yet that Infeftment was null , because no Superiour could interpose any Person betwixt him and his immediate Vassals : Likeas the Non-entry could only infer the Feu Duty till Decreet or Declarator were pronunced , which used to be per se , but here both special and general Declarator being joynt , could only conclude the Feu Duties for bygones till Litiscontestation .

The Lords found that albeit the Pursuers Title upon his Infeftment , by which he was interposed , was invalide ; yet seing it contained a Disposition and Assignation to the Feu Duties , and Casualities of the Superiority , that the Pursuer had sufficient Title thereby , as Donator by Queensberry the Superiour , and found that the Non-entry carryed only the Feu Duty before the Citation , but after the Citation , the whole Profites , seing the Vassals did not upon the Citation , obtain themselves Infeft by Queensberry .

Laird of Milntoun contra Lady Milntoun . Ianuary 31. 1671.

JOhn Maxwel younger of Calderwood having Married the Lady Miltoun Sir Iohn Whitefoord of Milntoun her Stepson Acquired from him his Right to her Joynture of Milntoun , as her H●sband jure mariti , thereafter Iohn Maxwel having gone out of the Countrey , the Lady pursues a Divorce against him , upon Adultery committed with Margaret Davidson , in which Process ▪ Milntoun as having interest in the Joynture , which would return to the Lady from him upon the Divorce , craves to be admitted in the Process , but was not admitted , so the Process proceeded , and the Decreet of Divorce pronunced : whereupon Milntoun raises Reduction of the Commissars Decreet upon iniquity , because he was unjustly excluded from Defending , and if he had been admitted , he would have proponed pertinent Interrogators to the Witnesses which were omitted , and would have proponed Objections against their Hability , which would have excluded them from being Witnesses .

In this Process the Lords Ordained the Witnesses to be Re-examined upon all such pertinent Interrogators as Miltoun should propose , and they being Re-examined , did acknowledge that the Lady prompted them how to Depone , as to their knowledge of Margaret Davidson , and gave them Tokens of her by her Cloaths and Stature , and that she promised them a good Deed to Depone .

In which Process the Lords found that the Witnesses upon Re-examination , after Sentence , could not by their posterior Deposition , Derogat from the first Deposition , and therefore Assoilzied from the Reduction , reserving and allowing to Milntoun his Action of Reprobator , wherein he now insists on these Grounds , First , That the Witnesses , Paterson and Clerk who only proved , were viles personae , having no means worth the Kings Unlaw . 2dly , That they were Persons infamous , and of very evil Repute , and in their Examination before , they had prevaricat and contradicted themselves . 3dly , That the Lady had Suborned and Corrupted the Witnesses , by Prompting and Instructing them how to Depone . 4thly , That she had Corrupted the Witnesses before their Testimonies before the Commissars , by giving some of them twenty Dollers to bear Witness , which is far above their ordinar allowance of Witnesses for their Charges . It was answered for the Defender , First , no Objection was now competent against the Hability or Sufficiency of the Witnesses , because Objections were given in against them by the Pursuer , and they have Deponed thereanent , so that albeit Reprobators be competent , where the Pursuer cannot instantly verifie his Objections against the Witnesses , and protests for Reprobator ; yet if either he forbear to protest , or refer his Objections to the Witnesses Oaths , he can never be heard by way of Reprobator against them : And here this Pursuer neither Protested for Reprobators at the first , nor at the Re-examination , but upon his own desire , they were purged , and did Depone anent these Objections . 2dly , Having made use of the Witnesses upon the said Interrogators , he has approven them , and cannot quarrel their Testimonies . And as to the particular Objection of their poverty , they have already Deponed that they are worth the Kings Unlaw , and it being a Negative , which is not presumed that persons are so poor , it cannot be proven by Witnesses , and though it could , and were a sufficient Objection ordinarly , yet in a Crime of this Nature , which is so Clandestine , Objections of Poverty would not be sufficient , and as to that Member of the Reprobator , that they are persons of evil Fame , it is not Relevant , unless they were infamous , infamia juris , either by such Deeds , as the Law Declares to infer Infamy , or by a Sentence of a Judge , declaring them infamous . As to that Member of the Reprobator upon Subornation , it is not Relevant , unless it were Libelled , that the Witnesses undertook so to Depone , or that they had Deponed accordingly , for the Witnesses might be far above exception , as no offer of Subornation could Canvel the Faith of their Testimony , and so infer a blemish upon them . And it was answered to all the Members of the Reprobator that they are not proven by Witnesses , but by Oath of Party , otherwayes such Processes could never end , for if Witnesses were Receiveable to prove the Inhability or Corruption of the first Witnesses in the principal Cause , then the Testimonies of the Witnesses in the Reprobator might be Canvelled by Witnesses in a second Reprobator , against the Witnesses in the first Reprobator , and so Reprobator upon Reprobator without end . It was answered for the Pursuer to the first , that he cannot be excluded from Reprobators against the Commissars Decreet , though he protested not therefore , in respect it is evident by the Decreet , that he was not admitted to compear , but he did Protest in the Reduction before the Lords , who have expresly allowed him his Reprobators , neither doth the taking of the Oaths of the Witnesses de initialibus testimoniorum , exclude Reprobators , albeit the Party desire them to be Re-examined upon Oath thereupon , for that Oath is not an Oath upon the Parties Reference , as stating the sole Probation thereupon , but it is a judicial Oath , & partis judicis , for the Judge may , and ought so to Examine the Witnesses , whether the Party require or not , so that the Party refers not these Points to the Witnesses , but requires it of the Judges as a part of his Office . And as to these Points , every Witness is testis singularis , for he Depones only his own Hability , and so there is no Probation thereby , except in so far as may militate against the Witnesse himself , so that contrary Probation may well be admitted against such an Oath , as well as against Executors upon Super-intromission , Tutors or Curators upon negligence or Malversation : and if it were otherwise , Reprobators could be Sustained in no case against Decreets of the Lords , because of Course , they take the Parties Oath to purge themselves of partial Counsel , and of Corruption by promise , or receiving of good Deed , &c. Neither doth the Pursuers making use of the Testimonies of thir Witnesses in their Re-examination , import his Approbation of their Hability and Integrity , for Parties may give Interrogators to Witnesses not adduced by themselves . To the second , this Process being of so great importance , all lawful Objections against the Witnesses are competent , and there is none more ordinar than that they are pauperes , not worth the Kings Unlaw , and so lyable to great Temptation of Corruption . And as to the attempt of Suborning , or Brybing the Witnesses , it is most Relevant and express in Law l. 33. ff. de re judicata , bearing testibus pecunia corruptis conspiratione adversariorum , &c. which being pessimi exempli in odium corrumpentis , not only are the Witnesses punishable , but the Sentence annullable , which is confirmed toto titulo Codicis si ex falsis instrumentis , and that without regard whether they undertake or Depone falsly or not , as is observed by Bartol l. in princ . ff. de falsis & adict l. divans 33. de re judicata Num. 7. and Covaruvias in repet . C. quamvis fol. 57. Col. 3. which he attests to be the common opinion ; and which is likewise attested by Boss. in tit . de falsis num. 1608. and by Will . 66. com . opin . fol. 2991. and especially by Hartman tit. 15. de testibus observ. 16. where he doth expresly maintain , that it is not so much a lawful to instruct a Witness , excitandae memoriae causa non si subito deprehendatur haesitet & titubet , in respect any such instruction is subornationis velamentum : and which Opinion hath been likewise Confirmed by the Decisions of the most eminent and famous Courts of Justice , as may appear per Capell . tholos . deces . 2804. and others . And which is likewise the Opinion of Clarus , viz. That the foresaid Acts of Corruption are disjunctive and separatim Relevant , as may appear by Fassum . Num. 12 , & 13. & qu●st. 53. de exceptionibus quae contra testes opponi possunt . And to the last alleadgeance against the Probation by Witnesses , that it would infer an endless course of Reprobators : It was answered , that by the same Reason , Reductions might be taken away ; because the Decreet Reductive might be Reduced , and that Decreet by another Reduction without end : But Reprobators have every where been Sustained , and no such inconvenience ever found ; neither can it be imagined , that every Pursuer of a Reprobator will prevail , which this infinite progress must suppose , only it may infer , that Witnesses in Reprobators ought to be more unquestionable , than the Witnesses called in question thereby .

The Lords found that Reprobators were competent , albeit the Witnesses upon Oath Deponed upon their own Hability , at the desire of the Party : and albeit the Party Protested not for Reprobators , seing he was not admitted to compear , and found that Member of the Reprobators upon the poverty not Relevant in this Clandestine Crime : neither that Member upon their alleadged Infamy , unless it were alleadged that they were infamous , infamia juris , by any Deed which the Law expresly declares to infer Infamy , or were declared infamous sententia judicis : and found that Member of the Reprobators upon instructing or prompting the Witnesses Relevant , without necessity to alleadge the Witnesses undertaking or Deponing conform , and that in odium corrumpenti● , without inferring any blemish upon the Witnesses so prompted , who consented not , or swore falsly : and found that Member Relevant of Corrupting the Witnesses , by giving or promising of good Deed , more than might be suitable to the Witnesses for their Charges : but as to the manner of Probation by Oath or Witnesses , The Lords superceeded to give answer , till a Practique alleadged upon were produced .

Pringle contra Pringle . February 1 ▪ 1971.

PRingle of Soutray having only three Daughters , does in his Testament done upon Death-bed , Dispone his whole Lands to his eldest Daughter , and Constitute her universal Legator ▪ with this provision , that she pay 10000. merks to the other two Daughters , the Disposition as to the Lands being Reduced , as being in Testament , and on Death-bed , the universal Legacy was Sustained , to give the eldest Daughter the Right of the Deads part , whereupon it was alleadged for the other two Daughters , that if the eldest insisted for the universal Legacy , she behoved to have it with the burden of the ten thousand merks , which was a burden both upon the Land and Moveables , and doth no more relate to the one than the other , so that albeit the Right of the Land be Evicted , the Moveables remains burdened , as if a Father should Dispone certain Lands to a Son , with the burden of Portions to the other Children , albeit a part of the Lands were Evicted , the Portions would be wholly due without abatement . It was answered for the eldest Daughter , that in latter Wills , the mind of the Defunct is chiefly regarded , not only as to what is exprest , but to what is implyed or presumed , and here it is evident , that the mind of the Defunct was , that his two younger Daughters should only have ten thousand merks in satisfaction to all Rights of Lands or Moveables : Now seing they have gotten two third parts of the Land , which is much better than ten thousand merks . It cannot be thought to be his meaning to give them any share of his Moveables also , but that the half thereof , which was at his disposal , should belong to the eldest Daughter without burden .

Which the Lords found Relevant , and declared the same to belong to the eldest Daughter , without burden of the Provisions .

Alexander Ferguson contra Parochioners of Kingarth . Eodem die .

ALexander Ferguson being one of the Prebands of the Chapel-Royal , by His Majesties Presentation and Collation , pursues the Heretors of the Paroch of Kingarth for the Teinds , as being annexed to the Chappel-Royal , as appears by the Books of Assumption , and three Presentations from the King produced . Compearance is made for the Minister of Rothsay , who alleadged that he had Presentation to the Kirk of Kingarth from the King , and Collation thereupon , and so had best right to the Teinds of his Paroch , because de jure communi decima debentur p●rocho , and as for the Pursuer , he shews no Right by any Mortification of these Teinds to the Chappel-Royal ; Neither can he make it appear , that ever he , or any other Prebander were in Possession civil or natural thereof . 2dly , Albeit the Prebanders had had a Right , the same is now taken off by Prescription , because it is offered to be proven , that the Minister hath been 40. years in peaceable Possession , before the Pursuers Citation , which not only takes away the bygones , but the whole Right , and establishes the same in the Ministers person .

The Lords found the Books of Assumption , and the three Presentations from the King , sufficient to instruct the Pursuers Title , and found the Defense of Prescription Relevant , as to the bygones before the Citation , but not to Establish the Right in the Minister , or to take it from the Chappel-Royal , as to years after the Citation , and in time coming , in respect of the Act of Parliament , providing that the Kings Interest shall not be prejudged by the neglect of His Officers .

Blair of Bagillo contra Blair of Denhead . February 3. 1671.

BLair of Bagillo having granted Bond to Blair of Denhead , he did Assign the same to Guthrie of Collistoun . Bagilio raised Suspension against Collistoun as Assigney , in Anno 1632. and now Collistoun insists in a Transferring of the old Suspension and Decreet Suspended against Bagillo's Heirs , to the effect the Cautioner in the Suspension may be reached . It was alleadged no Transferrence , because Bagillo ●s Father obtained a general Discharge from Denhead , before any Intimation upon Collistouns Assignation ; and albeit the Discharge be posterior to the Assignation produced , it must liberat the Debitor , who was not obliged to know the Assigney before Intimation . It was answered , that the Debitor might pay to the Cedent bona fide , before Intimation : yet a Discharge obtained from the Cedent after Assignation , would not liberate against the Assigney , though it were before Intimation : and this general Discharge bears no onerous Cause . 2dly , This general Discharge being only of all Processes and Debts betwixt Bagillo and Denhead , at that time , it cannot extend to this sum assigned by Denhead long before , and who could not know whether the Assigney had intimate or not , and cannot be thought contrair the Warrandice of his own Assignation , to have Discharged the sum Assigned , especially seing there was an Assignation long before , which was lost , and the Intimation thereof yet remains ▪ and this second Assignation bears to have been made in respect of the losse of the former , and yet it is also before this general Discharge .

The Lords found the general Discharge of the Cedent could not take away this sum , formerly assigned to him , though not Intimat , unlesse it were proven that payment or satisfaction was truely made for this Sum.

Alexander Wishart contra Elizabeth Arthure . February 4. 1671.

UMquhil Mr. William Arthure being Infeft in an Annualrent out of some Tenements in Edinburgh , and having entered in Possession , by lifting of Mails and Duties , some of his Discharges being produced . Alexander Wishart as now having right to the Tenements , pursues a Declarator against Elizabeth Arthure , only Daughter to Mr. William , for declaring that the sum whereupon the Annualrent was Constitute , was satisfied by Intromission with the Mails and Duties of the Tenements . The Defender alleadged that this was only probable scripto vel juramento , and not by Witnesses , for an Annualrenter having no Title to Possess , out-put and in-put Tennents , cannot be presumed to uplift more than his annualrent , especially seing his Discharges produced for many years , are far within his annualrent , and it were of dangerous consequence , if Witnesses , who cannot prove an hundreth pounds , were admitted , not only to prove Intromission with the Rents , so far as might extend to the Annualrent , but so much more as might satisfie the Principal , and thereby take away an Infeftment : for albeit that Probation has been Sustained to extinguish Appryzings , which are rigorous Rights , yet not to take away Infeftments of Annualrent . It was answered , that albeit Witnesses are not admitted where Writ may , and uses to be adhibite , in odium negligentis , who neglected to take Writ : Yet this is no such case ; and therefore in all such , Witnesses are admitted : for if the Pursuer had insisted against the Defender , for intrometting with his Mails and Duties , of whatever quantity and time within Prescription , Witnesses would have been admitted : The Defender could only have excepted upon his Annualrent , which would have been Sustained , pro tanto ; but the Pursuer would have been admitted to prove further intromission , which being by vertue of his Security for a Sum , and in his hand would Compense and Extinguish that Sum , which is all that is here craved , and whereupon the Witnesses are already Adduced .

The Lords Sustained the Probation by Witnesses , for the whole intromission , to be imputed in satisfaction of the Principal Sum and Annualrents .

Lowrie contra Gibson . Eodem die .

LOwrie being Superiour to Gibson in a Feu , pursued him before the Sheriff , for annulling his Feu , for not payment of the Feu-duty , and obtained Decreet against him , and thereafter Pursued him before the Lords for Mails and Duties , wherein Compearance being made , Gibson made an offer , that if Lowrie would free him of bygones , and pay him 1600. merks , he and his Authour would Dispone their whole Right , which being accepted by the Superiour , Decreet was pronunced against Gibson , to denude himself upon payment : Shortly thereafter , Gibson drew up a Disposition , and Subscribed it in the Terms of the Decreet , and offered it to Lowrie , who refused it , because his Author had not Subscribed . Thereafter Gibson Suspended upon Obedience , and Consigned the Disposition which was never Discussed ; but Gibson continued in Possession still from the Decreet , which was in Anno 1650. Now Gibson raises a Reduction of the Sheriffs Decreet of Declarator , annulling his Feu , because the Sheriff was not a competent Judge to such Processes , and because Gibson had offered the Feu-duty , which was refused , so that the not payment was not through his fault : and also insisted for Reduction of the Lords Decreet , as built upon the Sheriffs Decreet , and falling in consequence therewith . And as for any offer or consent , the assertion of a Clerk could not instruct the same , unless it had been warranted by the Parties Subscription . It was answered , that Gibson having Homologate the Decreet , by an offer of the Disposition , conform thereto , which was only refused , because it wanted the Authors Subscription ; and having Suspended upon Obedience , he cannot now object , either against the Decreets or Consent . It was answered , that so long as the Decreets of the Sheriff and the Lords were standing , Gibson might be compelled thereby to Consign the said Disposition ; but that is only on these Terms , to be given up if the Lords saw Cause ; and hinders not Gibson to alleadge , why it should not be given up . And as to the offer to deliver the Disposition , the Instrument of the Nottar could not instruct the same , but only Gibson's own Oath .

The Lords found that albeit the Consignation for the Suspension would not have prejudged Gibson , yet the simple offer to deliver the Disposition , did so Homologate the Decreets and Consent , that he could not quarrel the same ; but they found it not proven by the Instrument , without the Oaths of the Witnesses insert in the Instrument : And in regard that Lowrie had letten the matterly over for more than twenty years , they Declared that the Agreement should only take effect from this time , and that Gibson should not be comptable for the bygone Duties .

Ninian Home contra Francis Scot. February 7. 1671.

NInian Hume having Charged Francis Scot upon a Bond of 550. merks ; He Suspends on this Reason , that both Parties having referred the matter verbally to an Arbiter , he had determined 200. merks to be payed for all , whereupon Hume had pursued . It was answered , that verbal Submissions and Decreets Arbitral are not binding , but either Party may resile before Writ be adhibite .

The Lords found the Reason was Relevant to be proven thus , by the Chargers Oath that he did submit ; and by the Arbiters Oaths , that they did accordingly determine .

Lowrie of Blackwood contra Sir John Drummond . Eodem die .

SIr Robert Drummond of Meidhope having Disponed his Lands of Scotstoun to Sir Iohn Drummond , for love and favour , and for better incouraging Sir Iohn to pay his Debt , as the Disposition bears , and under Reversion of a Rosenoble to Sir Robert in his own Life . Mr. John Drummond Sir Roberts appearand Heir , grants a Bond to Lowrie of Blackwood , whereupon he Adjudges the Land from the appearand Heir , and pursues a Reduction of the Disposition , as done on Death-bed . In which Pursuit Witnesses were appointed to be Examined , hinc inde , concerning Sir Roberts condition , when he made the Disposition , and thereafter till his Death ; the sum of the Probation was , that before the Disposition Sir Robert had contracted an Apoplexie , whereby he remained senseless for a time , but by Cure there remained a Palsie in his Tongue , and a Vertigo in his Head , which continued till his Death , and about a year after that the sickness affected his Brain , so that he lost the remembrance of Names of things , and most of the Witnesses Depones , that he was not found thereafter in his Judgement , but that he keeped on his Cloathes , and was not affixed to his Bed , and went frequently and walked in his Garden , and to the Court-hill , half a pair of Butts off ; and one of the Witnesses Deponed , that he came to his House alone , a quarter of a mile off : but that he went never to the Kirk nor Mercat , nor any publick place : Whereupon it was alleadged for the Defender , that the Defunct continued in health at and after the Disposition , and that his going so frequently abroad , was equivalent to his going to Kirk and Mercat , which was sufficient to eleid the Reason of Death-bed , and that the Palsie being but in his Tongue , albeit he misnamed things , it did not import his being on Death-bed , especially seing he Disponed for payment of his Debt , equivalent to the worth of the Land , his Disposition being to a Friend of his Name , who Relieved him of his Debt , his Heir not being his Son , nor Descendent , and uncapable to Relieve him of his Debt . It was answered , that the contracting of his sickness being sufficiently proven to be before this Disposition , and the continuance thereof to affect his Brain , in that case nothing could purge the same , but his going to Kirk and Mercat , which were the acts required in Law , and could not be supplied by his going privatly abroad , and not to any popular publick meeting ; and as to his Debts they could not validat the Disposition by exception , though the Defender might by way of action affect therewith the Estate , or Burden the Heir , on whose Bond it was adjudged , especially seing the Disposition buir for Love and Favour , and Redeemable for a Rose-noble .

The Lords found the Reason of Death-bed sufficiently proven , and that his private going abroad ( though unsupported ) was not equivalent to going abroad to Kirk and Mercat , or publick meeting , where the Disease continued to affect the Brain ; But they found the paying of Debts equivalent to the worth of the Land Relevant by way of exception , in regard the Disposition buir to be for payment of his Debt .

Mr. Iohn Wat contra Campbel of Kilpont , Feb. 8. 1671.

SIr Archibald Campbel being Debitor to Adam Wat in a Sum of Money , he did thereafter Contract his Son Mr. Archibald in Marriage with Thomas Moodies Daughter , and by the Contract Thomas Moodie acknowledges the Receipt of fourty thousand Pound from Sir Archibald , and is obliged for twenty thousand Merks of Tocher , all to be imployed for Mr. Archibald in Fee ; but Thomas Moodies Daughter Dying , and leaving no Children behind her , Thomas Moodie did restore the Sums , and there is a Discharge granted by Sir Archibald and his Spouse , and Mr. Archibald bearing them to have Received the Sums , and to have Discharged the same ; Whereupon Mr. Iohn Wat as Heir to Adam , pursues Mr. Archibald to pay him the Sum due to his Father , upon this ground , that he having Received fourty thousand Pounds of his Fathers Means , after Contracting of the Debt , ought to make so much of it forthcoming as will pay the Pursuer ; which Action was founded upon the Act of Parliament , 1621. whereby all Deeds done by Debitors in prejudice of their Creditors , without a Cause Onerous are declared null , and all Parties that by vertue thereof Intromets , are declared lyable to restore to the Creditors . It was answered for the Defender ; First , That the Libel was not Relevant , there being no part of the Act of Parliament 1621. that Incapacitats Debitors to Gift or Dispone Sums of Money , or Moveables , especially if the Disponer at that time be not insolvent , but have a sufficient Estate for satisfying his Debt ; and it is offered to be proven , that Sir Archibald had at the time of this Contract a sufficient Estate for all his Debt , in the hands of the Earl of Argile and Glenorchie ; and albeit by the superveening Forefaulture , Argiles Debt be insufficient , it was a good Debt the time of the Contract , so that there can be no ground to make a Child lyable to Restore a Portion given by a Father who was solvent . 2dly , Albeit the Defender could be lyable , if it were clear that he had the Sum foresaid by his Father yet remaining to the fore , yet if it had been lost or spent before the Intenting of this Cause , he or any subsequent Estate acquired aliunde is not lyable , ita est anything he has is a Wodset of fourty thousand Merks on Kilpont , and the two Tochers he had viz. twenty thousand Merks from Thomas Moodie , and ten thousand Merks of Legacy , and twelve thousand Merk of Tocher with Sir William Gray's Daughter , was sufficient to acquire the Right of Kilpont , without any thing from his Father . 3dly , The Discharge produced cannot instruct that Mr. Archibald Received the Money , because it bears indefinitly that payment was made to Sir Archibald and his Spouse , and to Mr. Archibald , and all of them do Discharge . The Pursuer answered , that the Libel was very Relevant , for whatsoever might be alleadged of Bairns Portions by a solvent Father , yet this being so considerable a Fortune provided to the only Son , and appearand Heir , if it did not make him lyable to satisfie the Fathers Debt pro tanto , it were a patent way to defraud all Creditors and elude the Act of Parliament , for the Father might Sell his Estate , and provide the Moneys in this manner ; and as to the Discharge , albeit it be indefinite , yet it must be presumed that Mr. Archibald Received the Sums , because they belong to him in Fee by the Contract of Marriage .

The Lords found the Libel Relevant , and that the Discharge produced did presume that Mr. Archibald the Feear did Receive the Money , but seing the Probation was not expresse , but presumptive , they allowed Mr. Archibald to condescend upon what Evidences he could give , that the Money or Surety thereof was Delivered to his Father .

Iohn Will contra The Town of Kirkaldy , Feb. 11. 1671.

JOhn Will pursues the Magistrats of Kirkaldy for paying the Debt of a Person Incarcerat in their Tolbooth , who was letten escape by them . It was alleadged for the Town , that the Person Incarcerat had escaped vi majore , and that they had not failed in their duty , having had a sufficient Tolbooth , having four Doors , and the inmost an Iron Door , and that all being Locked ; the Person Incarcerat having gotten secretly conveyed in some Mason or Wrights Tools , had in the night broken all the Locks , and escaped . It was answered , that the Defense was not Relevant , neither had the Magistrats done their duty and diligence , for they ought to have had Chains , and Cat-bands upon the utter-sides of the Doors , with Locks thereon , unto which the Incarcerat Person could not reach ; and it was alike how many Doors they had upon the Tolbooth , with their Locks inward , for the same means that would break up one , would break up twenty , and if such a pretence should liberat the Magistrats , it were an easie way to elide all Captions , and let all Persons for Debt free . It was answered for the Town , that the having of Cat-bands without , Closed and Locked , was not the custom of their Tolbooth , who past all memory did never Lock the outward Chains but upon Malefactors , and such is the custom of Edinburgh , and other Burghs of Scotland .

The Lords having before answer , ordained Witnesses to be Examined on both parts , anent the condition of the Tolbooth , and finding thereby that there was no Cat-bands or outward Chains Locked when this Prisoner escaped , they found the Magistrats had not done their duty , and so Decerned against them .

Alexander Naper contra The Earl of Eglintoun , Feb. 14. 1671.

THere was a Bond granted by the Laird of Minto as principal , Lugtoun Iames Creichtoun , and the Earl of Eglintoun Cautioners , in Anno 1641. to Adam Naper and his Spouse in Conjunct Fee ; Alexander Naper as Heir to his Father , pursues this Earl of Eglintoun as Heir to his Father for payment , who alleadged Absolvitor , because Minto having Disponed his Estate to his Son , under express Provision to pay the Debt , the same was satisfied by Minto younger , and was retired lying by him a long time , or by Robert Vrie , who had the Trust of Minto's Affairs and Writs , and Minto younger being lapsus bonis , and Robert Vrie being dead , the Pursuer had either practised with Minto upon his necessity , or upon Robert Vries Friends to give him back the Bond , and for evidence that the Bond has been satisfied and retired . First , It had lyen dormant above this thirty years , without either payment of Annualrent , or any Diligence . 2dly , The late Earl of Eglintoun being Forefault by the Usurpers , his Creditors were appointed to give in their Claims , or else to be excluded , and yet no Claim was given in for this Debt , and therefore craved that Witnesses might be Examined ex ●fficio for proving of the points foresaid . The Pursuer answered , that it was an uncontroverted principle in our Law , that Witnesses could not prove payment of any Debt due by writ , nor take the same away ; and as to the pretences adduced by the Defender , they import nothing , for the delay of seeking payment or Claiming the Sum , was because the said Adam Naper was with Montrose in the War , and his Heir remained a Minor , and his Wife was Married to another Husband . The Defender answered , that the Wife was Liferenter of the Sum , and she and her second Husband would certainly have sought her Annualrent , or Claimed the Sum , which takes off the excuse of the Pursuers Minority ; and albeit Writ be not taken away by Witnesses ordinarly , yet where the matter is so ancient , and the Evidences so pregnant , the Lords uses not to refuse to Examine Witnesses ex officio .

The Lords ex officio ordained Witnesses to be Examined anent the being of the Bond in the Custody of Minto , or his Doers , being a matter of Fact , but would not Examine them anent the payment made thereof .

George Bain contra The Bailzies of Culrosse , Eodem die .

GEorge Bain pursues the Bailzies of Culrosse for payment of the Debt of a Rebel , whom they had suffered to go free up and down their Streets , whereupon he had taken Instruments against them , and protested that they should be lyable for the Debt ; seing squalor carceris is justly introduced against Debitors that will not pay their Debt , and the Magistrats of Burghs may not take it off in whole or in part , and produced a Practique observed by Durie upon the 27. of March 1623. Smith against the Bailzies of Elgine , where the Prisoner being suffered to walk freely upon the Streets , till he obtained a Charge to set to Liberty , the Magistrates were found lyable . The Defender alleadged Absolvitor , because he offers to prove that this Prisoner's going out was necessary , viz. He being a Person altogether Indigent , was permitted sometimes to go and mendicat his Bread , and once to go to the Burial of a Child of his own , and immediatly thereafter ; the Pursuers having taken Instruments , the Rebel was put in Waird , and continued there till he Died.

Which the Lords found Relevant to Liberat the Burgh .

Apilgirth contra Locarbie . Eodem die .

IN a Compt and Reckoning at the instance of Apilgirth , for declaring two Apprizings Led by Lockerbie satisfied , this Query was moved by the Auditor , whether a Sum Consigned by umquhile Apilgirth , for Redeeming a part of the Lands Wodset to Lockerbie , conform to the Reversion in the Wodset , might be proven to be uplifted by Apilgirth from the Consignator , by the Oath of the Consignator , and of the Clerk of the Process who Received the Money , or only by Writ , Apilgirth the Consignator being Dead .

The Lords considering that it was ordinar to take up Sums Consigned for Redemption of Wodsets , being upon the peril of the Consigner , did appoint the Oath of the Consignator and Clerk to be taken , for proving that the Money was taken up by Apilgirth from the Consignator , and that Apilgirth and not the Consignator put it in the Clerks hands , and that the Clerk gave it up again to Apilgirth .

The Earl of Argile contra The Laird of Mcnaughtan . Feb. 15. 1671.

THe Earl of Argile pursues the Laird of Mcnaughtan to Remove from the Lands of Benbowie , as being a part of the Earls Barony of Lo●how . The Defender alleadged Absolvitor , because he pr●duces a Seising , dated in Anno 1527. proceeding upon a Precept of clare constat from the Earl of Argile , in favours of Alexander Mcnaughtan as Heir to Giller Mcnaughtan , of the four Merk Land of Benbowie , by vertue whereof , the said Alexander and his Successors to this day have Possessed , and so have a sufficient Defense upon prescription by the Act of Parliament 1617. anent prescription . The Pursuer answered , that the Defense is not Relevant , as it is founded upon the naked Seising only , because by the said Act of Parliament there is required to all prescriptions of Land a Title in Writ , preceeding the 40. years Possession , which Title is d●stinguished in two cases ; First , In relation to Rights acquired titulo singlari , whereunto is required not only a Seising , but a Charter , which although they may be excluded by an anterior or better Right , yet if Possession hath been had thereafter , for the space of fourty years uninterrupted , it becomes an unquestionable Right , and all other Rights are excluded . But , Secondly , A greater favour is showen as to the Title of prescription of Lands belonging to any Party titulo universali as Heirs to their Predecessors , in which their is no Charter required , but Seisings one or moe continued , and standing together for the space of fourty years , either proceeding upon Retours , or upon Precepts of clare constat , so that the Seising in question proceeding upon a Precept of clare constat cannot be a sufficient Title for prescription , unless the Precept of clare constat ●which is the Warrand thereof were produced . 2dly , The said provision of the Act requires that the Seising one or moe must stand , and be continued for the space of fourty years , which cannot be alleadged in this case , because by the Defenders production it is clear that the said Alexander Mcnaughtan , to whom the Seising was granted , Lived not for fourty years after the Seising , so that unless his Heir had been entered , and had Possest by vertue of the Heirs Seising to perfyt the fourty years , the Defense of prescription is not Relevantly alleadged . The Defender answered , that his Defense of prescription stands Relevant upon this one Seising only ; and he oppones the foresaid Clause in the Act of Parliament where an Heirs Title of prescription , is a Seising proceeding upon a Retour or Precept of clare constat , and does not mention that the Seising and Precept shall be a sufficient Title , as it does in the case of Lands acquired , where it expresly requireth both a Charter and Seising , and it had been as easie in this Clause to have required a Seising , and Retour or Precept , whereas it doth only require a Seising on a Retour or Precept , so that the Seising relating the Retour or Precept is sufficient , and by long course of time sufficiently instructs the being of the Retour or Precept . As to the second answer , the meaning of the Act of Parliament by a Seising one or moe standing together , is that the said Seising be not Reduced , for our Law doth ordinarly oppose standing and falling by Reduction , so that albeit the Party Seised Died within fourty years after the Seising , his appearand Heir continued his Possession , and being one Person in Law with him , did Possess by his Seising , and if it were otherewise understood , many absurdities would follow ; for if a Person were Infeft as Heir , and did Possess thirty nine years , thereafter Dying , then if his Heir were not Infeft within the year , he should have no Title of prescription , though within the fourty year six Heirs consequently were Infeft , all their six Seisings with thirty nine years Possession , though their appearand Heir should continue an hundreth years thereafter in Possession , would not induce pre●cription , yea , taking the Act Literally , it can never have effect , unless the Heir Infeft Live and Possess after his Infeftment fourty years , which is very rare , for if there be more Heirs that Succeed , there must be still an intervale betwixt the Death of the one , and the Seising of the other , and so the Seisings could not be said to be continued , but discontinued or interrupted , for Possession is not continued , if the Possessor cease to Possess one year , so that prescription being of common Interest and Advantage to the Leiges , the same ought to be ampliate in the interpretation thereof , and not straitned . The Pursuer answered , that he opponed the clear words of the Act of Parliament , which does not only require fourty years continual Possession , but also that it be by Seisings sta●ding , continuing together fourty years , and that upon very solide Reason , for if both Charter and Seising be required for a Title to prescription in Rights acquired : It cannot be imagined that an single Seising should be sufficient in Rights devolved by Succession , without requiring any thing in place of the Charter , so that if neither the Precept nor Retour be required , nor yet the continuance of the Seising , either standing in the Person of the first Heir , or renewed in the Persons of the subsequent Heirs , which certainly is of purpose put to astruct the Right in place of a Charter , or other Adminicle of the Seising , and therefore the standing of the Seisings is not here opposed to their being Reduced , but their falling by the Death of the Person Infeft , whereby according to the ordinar Terms of Law , the Fee falleth in Waird or Nonentry in the hands of the Superior ; neither can a subsequent Heir Possess by the Seising of a prior Heir , because Seisings are not given to Heirs , but to the individual Person Seised ; but Charters and other Rights given to Parties and their Heirs may be a Title to their Heirs to Possess , but not a naked Seising ; and as to the inconvenience , it would be far greater if one single Seising were sufficient , and would open the Door to all Forgery , after Parties and Witnesses are Dead , but if more Seisings be required , if the first Person Die , it is much more difficult to Forge diverse Seisings , by diverse Nottars , and diverse Witnesses , which may be redargued by the Hand-writ of some of the Nottars , or survivance of some of the Witnesses ; and what is alleadged upon a Seising continuing thirty nine years , or of six subsequent Seisings within that time is easily retorted by consideration of one Seising , whereby the Party Infeft Lived and Bruiked but a year , whethet that would be a sufficient Title for prescription , or if six consequent Seisings proceeding upon Charters and thirty nine years Possession , yea , or a hundred years Possession , all which would make no Title of prescription , unless a Charter were also produced , as is clear by the Act , so we are not to consider equivalencies , but in a Statute must take it as it is made , and not make it ; and as for the inconvenience alleadged that there must necessarly be intervales , it imports not , for the continuance of Seisings is not required to be so exact as the continuance of Possession , but subsequent Heirs being Infeft , albeit there be an intervale , their Seising as in many other cases will be drawn back to the Death of their Predecessor , if there be no medium impedimentum by any Process intented in the interim ; so that at least there must be a Seising standing when the Possession begane , and a Seising standing when the first fourty years is compleat , but here there was no Seising renewed , though there be a hundred years after the first fourty years , and a full progress as to all other Lands .

The Lords found that there was no necessity to produce , or instruct that there was a Precept or Retour , otherewise then by the relation of the Seising , but found that a Seising not having fourty years Possession , by the Life and Bruiking of the Person Seised , and never being renewed in his Successors , is not a suffient Title of prescription , and therefore Repelled the Defense : in this Process the Defender was permitted to alleadge the Lands in question to be Part and Pertinent of his other Lands , whereof he shew a full Progress , and alleadged a continual Possession , by doing all Deeds of Property that the Subject was capable of , and the Pursuer alleadging that these Lands were severally kend and known from all the Defenders Lands contained in the said Progress , and that he and his Predecessors had exercised all acts of Property that could be done in the case of a Forrestry , such as the Lands in question were , and that after the Defenders alleadging on a several Infeftment , by the foresaid Seising , and so acknowledging these Lands to be separ●●●m ten●mentum , he could not return to alleadge Part and Pertinent so considerable a tract of Ground , six or seven Miles long , yet the Lords would prefer neither Party to the probation , but before answer ordained either Party to adduce Witnesses anent their Possession , and the several specialities by them alleadged , that by the probation the Lords might see the just Interest of either Party , which might resolve into a promiscuous Commonty , or into a Property to the one , and a Pasturage or other Servitude to the other .

Marion Dods contra Lawrence Scot. Feb. 16. 1671.

BY Contract of Marriage betwixt Iames Scot and Marion Dods , Marion is obliged to pay in Tocher a thousand pound to the said Iames at the next Candlemass , and the said Iames is obliged to imploy the same to him and her in Conjunct Fee , and to the Heirs of the Marriage , which failzing to her Heirs , and Iames having Died without Children ; the said Marion pursues Lawrence Scot as his Heir , to imploy the Sum conform to the said obligement , who alleadged Absolvitor , because the Pursuer has yet the Tocher in her own hand , unless she can show a Discharge . It was answered , First , That the Parties having lived together 22. years , it must be presumed that the Husband was payed , and had the Custody of the Discharge . 2dly . The Husband by his Testament acknowledges that the Sum was payed . It was answered , that this written Obligation cannot be taken away by such a presumption , and the Assertion of the Defunct in the Testament , has been procured by the Wifes importunity in her Husbands weakness , and however cannot prejudge the Heir , and can import no more then as legatum liberationis , which can only affect the Deads-part of the free Geir .

The Lords found the presumption with the acknowledgement in the Testament a sufficient payment of the Tocher , against all Parties having interest .

William Gordon contra Sir Alexander Mcculloch of Ardual . February , 17. 1671.

WIlliam Gordon as Donator to the Recognition of the Barony of Cardines , by allienation of the Major part thereof , pursues a Declarator of the Recognition against Sir Alexander Mcculloch , who stands now Infeft therein , who alleadged no Process , because the Pursuer produces no Charter to show the Lands to hold Waird , neither doth he produce the Infeftments Libelled , by which the Recognition is alleadged to be procured , and if he shall get a Term to prove , and so Litiscontestation be made , the Defender will either be excluded from his Defenses , which he cannot propone or know before he see the Infeftments , or otherwise two Litiscontestations may be in the same Cause , by admitting of exceptions after the Term , and albeit these Infeftments be not the Pursuers own Writs , yet he ought to have used an incident upon his Summons , to have compelled the Havers to produce the same , and so before Litiscontestation , the Defender might have proponed his Defense . It was answered , that the Pursuer is obliged to produce no more in initio litis then his Gift of Recognition from the King , for the Law presumeth that the King is Superior , and that the Lands are Waird , unless the Defender offer to prove the contrare . As for the Infeftments , whereby Recognition is incurred , they are not the Pursuers Title , but media concludendi ▪ which he may produce ad modum probationis .

The Lords Sustained the Process , and assigned a Term to prove the Infeftments Libelled for inferring the Recognition , and reserved all the Defenders Defenses after the production thereof , in the same manner as if they were now produced .

Mrs. Katharin Mcgil contra The Viscount of Oxenfoord . Eodem die .

THe Deceased Viscount of Oxenfoord having named his Son Executor and universal Legator , he gives a Bond of Provision to umquhile Mistrisse Mary , one of his Daughters , in satisfaction of her Portion natural and Bairns part , there are yet three Children beside the Heir , and the said Mrs. Mary did survive her Father , and in the Compt and Reckoning of his Executory , the three surviving Children claimed half of the Moveables as the Bairns part . It was alleadged for the Viscount the universal Legator , that a fourth part of the Bairns part behoved to belong to him , which would have belonged to Mrs. Mary , because the Bond granted by the Defunct being in satisfaction of M●ries Bairns part , her Bairns part must come in place of it , and not accresce to the rest of the Bairns , but must belong to him as Executor and universal Legator , especially this Bond being granted on Death-bed , is only effectual as a Legacy , whereby the Defunct did burden his own Deeds part , which can be no otherways understood then thus , that he would make up Maries Portion to ten thousand Pounds , her Bairns part being in the first end thereof , and it cannot be thought his meaning to exhaust his Deads part further or to gift any thing to the rest of the Bairns by the accrescence of Maries part . It was answered , that such Bonds of Provision are most ordinar , bearing it to be in satisfaction of their Bairns part , which has ever been so interpret , that the Portion of the Bairn so satisfied accresceth to the rest of the Bairns , and it was never heard that the Heir or Executor burdened with such Bonds of Provision , did thereupon recur to seek that share of the Bairns part , which was satisfied by the Bond of Provision , neither is there any odds whether the Provision were by Legacy or Bond , for the Reason of recourse being , because the Heir or Executor is burdened to satisfie that Bairn , and so in either case doth claim the share of that Bairn , neither was it ever so understood , that Fathers granting such Bonds of Provision , did not thereby leave intire the Bairns part to the remanent Bairns .

The Lords found that Mrs. Maries share of her Bairns part did accresce to the rest of the Bairns , and did not belong to the Executor either as a part , or in place of any part of the ten thousand pound , but the samine did solely burden the Deads part .

Agnes Dundasse contra The Laird of Ardrosse , and the Laird of Touch. February 18. 1671.

THe Laird of Ardrosse having granted Bond to umquhile Mr. Henry Mauld and his Spouse , and their Heirs , of 8000. Merks , and after his Decease he granted a Bond to the Relict , bearing to have borrowed two thousand Merks from her , and obliging him to pay the same to her in Liferent , for her Liferent use only , and after her Decease to William Mauld her Son , and his Heirs ; and another Bond , bearing him to have Received from the Relict a thousand Merks in name of Henry Mauld her Son , and obliging him to pay to the said Henry and his Heirs ; and after all he granted a Bond of ten thousand Merks to the Relict , her Heirs and Assigneys , which was made up of what remained due of all the three , this Bond the Relict Assigned to the Laird of Touch , who having Charged Ardrosse , and he having Suspended , there arose a Competition betwixt Touch as Assigney , and Agnes Dundasse as Heir and Executrix to Mr. Henry , William , and Henry Maulds , and thereupon a division of the Sums betwixt the Parties ; thereafter Agnes Dundasse pursues Ardrosse to make payment to her as Heir and Executrix to William and Henry Maulds , of two thousand Merks , which he was Addebted to the said William , and of one thousand he was Addebted to the said Henry ; Whereupon he hath Deponed that he was Debitor by all the saids Bonds before related , and no otherways , and that in the former Decreet by mistake it was exprest , that the ten thousand Merks Bond was made up of the eight thousand Merks Bond , and of two thousand Merks of Annualrent thereof , whereas the truth was , it was made up by what was resting of the two Bonds due to William and Henry , which he produced cancelled of the Tenor foresaid . It was alleadged for Agnes Dundasse , that the Sums of these Bonds behoved only to belong to her as Heir and Executrix to William and Henry Maulds , and not to Touch as Assigney by the Relict . It was answered , First . That the said Agnes had Homologat the prior Decreet , and division therein made , by giving Discharges accordingly , could not claim any more . 2dly , Another having taken a Bond in the Name of her two Sons , being Bairns in her Family , might lawfully alter the same at her pleasure , there being nothing more ordinar then that Fathers gives Bonds of Provision to their Children , or takes Bonds from their Creditors in their Names , yet these being never Delivered , the Parents may Dispose of them at their pleasure . It was answered for the Executrix , that the alleadgeance of Homologation is not Relevant , because it is Emergent by Ardrosse his Oath , that the ten thousand merks Bond , was not made up by the Annualrent , but by the said two Bonds , so that there could be no Homologation of that , whereof the Executrix was excusably ignorant . To the second , That albeit Fathers granting Bonds of Provision in Name of their Children , may alter the same at any time before Delivery : Yet where they lend out the Sum to a Creditor , and take him obliged to a Child in Fee that cannot be ●ltered , especially where the Parent is naked Liferenter , and hath not reserved a power to lift and Dispone ; but whatsoever be in the case of a Father providing his Children , who can by no presumption be thought to have any Means ; yet after the Fathers Death , a Mother taking a Bond in the Name of a Bairn , it must be presumed to be the Bairn● Money , coming by the Father or otherwise , and the Mother having stated her self naked Liferentrix in the one Bond , and having no interest in the other Bond , she could not recal or alter the same in prejudice of the Children , especially seing they were Infants , and had not Tutors to care for them . It was answered , that the Mother had held count for the whole Means of the Father , and so had cleared any presumption that thir Bo●●s could be of his Means , but she Liferented the whole Estate , and made up thir Bonds out of the Rents and Annualrents , and denyed to be Tutrix , or Pro-tutrix , so that the Money being freely her own , and her Children having died before her , , she might warrantably alter the Bond.

The Lords found that the Mother could not alter the Bonds taken in favours of her Children from a Debitor , being of the Tenors above-written , wherein she was naked Liferenter of the one , and had not so much as a Liferent of the other , and that the Sums were rather presumed to be of the Bairns Means then her own , seing they had no Tutor , and any medling with their Means was by her self , and that their Executrix could not now be put to instruct what Means they had , or be countable thereupon .

Iohn Armour contra Iames Lands . February 21. 1671.

IOhn Armour pursues his Tennents of some Tenements in Edinburgh , for Meals and Duties . Compearance is made for Iames Lands , who produces a Bond granted by umquhil George Armour , bearing that George Armour as Tutor Testamentar to Iohn Armour , had borrowed 500. merks from Iames Lands , and obliges him , his Heirs , Executors and Assigneys , to repay the same , and thereby sets some of the saids Tenements to Iames Lands , ay and while he be satisfied of the 500. merks , and thereupon alleadges he must be preferred to the Mails and Duties till he be payed . It was answered , this Bond and Tack were not sufficient , in respect he does not bind himself as Tutor , nor the Pupil , but his own Executor and Assigneys , and so it must be the Tutors own Debt . 2dly , This Debt cannot burden the Pupil simply upon the Assertion of the Tutor ; but the Creditor ought to have seen the Sum applyed to the Pupils use : and therefore must yet alleadge in rem versam . Otherways , if the naked Assertion of Tutors may burden the Pupils , when they borrow their Name , it is a patent way to destroy all Pupils , Tutors being oftimes insolvent . 3dly , The Tutor could not set a Tack of the Pupils Lands , Longer than he had Interest as Tutor , Ita est , the Tutory is ceassed by the Tutors Death .

The Lords found that this Creditor behoved to instruct the Sum applyed to the Pupils behove , which being proven , they Sustained the Tack .

Alexander Pit●●irn contra February 22. 1671.

ALexander Pitcairn having Right by progress to a Wodset granted by Iames Kininmouth to Mr. Iames Gordoun , and by him Disponed to Sir Archibald Sydserf , and by him to the Pursuer , pursues the Tennents for Mails and Duties , who alleadged that Gordoun or Sydserf were satisfied by intromission with the Rents , for which they were comptable . It was Replyed , that Sir Archibald Sydserf had obtained Declarator of the expyring of the Reversion , and was neither Countable nor Redeemable , and for proving thereof , produced the Decreet of Declarator , in Anno 1637. against which it was objected , that it was null , because albeit the Libel was upon a Clause irritant , whereby it is provided , if the Money were required , and not payed within such a time , the Reversion should expire ; yet at the Compearance and Production , there is no mention thereof , albeit at the Conclusion , the Decreet bears , because the Libel was sufficiently proven by Production of the Writs aforesaid , which can be only understood of the Writs in the Production , and it is not enough only that they were libelled upon ; for in all Decreets , the whole production is specially insert . It was answered , that the Requisition was truly produced , and that the omission of the Clerk to repeat it in the Production cannot annul the Decreet after so long a time without a Reduction thereof . It was answered , that albeit in favorabilibus , the Lords may supply Defects upon Production , ex post facto : yet in odiosis , such as Clauses irritant of Reversions , the Lords ought not to admit the same .

The Lords found the Decreet of Declarator null.

Sir David Dumbar of Baldoun contra David Dick and others . February 22. 1671.

BAldoun pursues ●he Tennents of Bombie for Mails and Duties . Compearance is made for David Dick , who produced an Apprizing of the saids Lands , against the Lord Kirkcudbright , within year and day of the Pursuers Appryzing , and craves to come in pari passu with the Pursuer , conform to the Act 1661. anent Creditor and Debitor . It was answered that by the same Act it is provided , that where Comprizings are acquired by the appearand Heir , or to his behove , that the same should be satisfiable for such Sums as the appearand Heir payed , and offers to satisfie the same . It was answered , that albeit the Act doth so provide , as to the Estate that might belong to the appearand Heir , it can extend no further . But this Appryzing is not only of the Estate of Orchartoun , but of the Estate of Kirkcudbright , wherein Sir Robert Maxwel , appearand Heir of Orchartoun hath no interest , the Appryzing must be valide as to that . It was answered , that Kirkcudbright was but Cautioner for Orchartoun , and that the Act bears , that such Appryzings shall be satisfied by what the appearand Heir payed : and such Appryzings being satisfied , it is simply extinct and can have no effect .

Which the Lords found Relevant , and seing David Dicks Appryzing is Assigned to Sir Roberts own Brother , the Lords allowed Witnesses , ex officio ; to be adduced , for proving that it was for Sir Roberts behove .

William Gordoun contra Sir Alexander Mcculloch . Eodem die .

WIlliam Gordoun pursues Sir Alexander Mcculloch for Spuilzying of certain Corns : Who alleadged Absolvitor , because the Defender having right by Appryzing to the Lands whereon the Corns grew , did warn the Pursuer , and obtained Decreet of Removing against him ; and thereupon dispossessed him , and finding the Cropt upon the Ground , he might lawfully intromet therewith , nam sata cedunt solo , especially where the Sower is in mala fide ; but here he was in Violence after a Warning , and did continue to Sow after Decreet of Removing : yea a part was Sown after he was Dispossessed by Letters of Ejection . The Pursuer answered , that by the Law and Custom of Scotland , the Cropt of Corns , or industrial Fruits are never accounted as pars soli , or any accessory , but are still moveable , even when they are growing , so that they belong not to the Heir , but to the Executor ; and in case of a Disposition , without mention of the Cropt , albeit the Acquirer were Infeft after they were Sown , and upon the Ground , he would not have Right thereto , neither doth mala fides , or violent Possession alter the case , for which the Law hath provided a special Remeid , viz. the violent Profits : but it can be no ground to meddle with the Parties Cropt , brevi manu , as accessory to the Ground , for then the Parties should both lose the Cropt , as pars soli , and be lyable to the violent profits , neither is there any Ground from the Warning , nor yet from the Decreet of Removing , which was Suspended before it attained full effect , and the Defender continued in Possession of a House upon the Ground , albeit he was put out of the principal House . It was answered that the Decreet had attained full effect before the Suspension , all the Pursuers Goods being off the Ground , and he out of the Mansion-house , wherein the Defender entered ; and brought all his Goods upon the Ground : and though the Pursuers Mother being a valitudinary impotent Woman , was suffered to remain in a Coat-house , and the Pursuer with her , upon that account , that imports no continuance of Possession of the Land .

The Lords Repelled the Defense as to that part of the Cropt that was Sowen before the Appryzer entered by the Letters of Possession , reserving to him the violent Profits for that time : But found the Defense Relevant , as to what the Pursuer did after the Defenders Dispossession ; and found the Defender only lyable for the Expences of the Labouring and the Seed , as being eatenus Locupletior factus .

Lord Iustice Clerk contra Mr. Iohn Fairholm . February 23. 1671.

THe Earl of Levin being Debitor to Lambertoun in fourty thousand merks , and having Infeft him in an Annualrent out of his Lands in security thereof , Mr. Iohn Fairholm did upon a Debt due by Lambertoun Appryze the foresaid Heretable Bond and Annualrent , which was holden of the Earl of Levin himself , who was Charged upon the Appryzing ▪ but unwarrantably to Infeft Fairholm in the Lands , whereas the Annual rent only was Appryzed , and the Charge should have been to Infeft Fairholm in the Annualrent : thereafter Fairholm did Arrest the bygone Annualrents in the Earl of Levins hands , and after all , did upon a Decreet against Lambertoun , arrest the bygone Rents in Levins hand , and Lambertouns Liferent of the Annualrent having fallen by his being year and day at the Horn , the Justice Clerk as Donator to the Liferent , and as Arrester competing with Fairholm , did alleadge that Fairholms Appryzing being an incompleat Diligence , and no Infeftment nor valide Charge thereon , and having lyen over so many years , the Arrester must be preferred , for which he adduced a Practique observed by Dury the 14. of February 1623. Salicots contra Brown , where it was so found : and albeit Fairholm be the prior Arrester , yet he hath done no Diligence upon his Arrestment ; whereas the Justice Clerk hath obtained Decreet , and as Donator to the Liferent Escheat , he is preferable for years after the Rebellion , because the Liferent Escheat falling before any Infeftment , or Charge on the Appryzing , which was not used within year and day , the Liferent excludes the Appryzer .

The Lords found the Appryzing preferable to the posterior Arrestment , though no legal Diligence was done thereon for the space of nine years thereafter , in respect the Appryzing being a Judicial Assignation , required no Intimation , and being prior , it is preferable : and they did not respect that single Practique , the constant Custom since being contrary : But found the Liferent Escheat preferable to the anterior Appryzing , being without Infeftment or Charge , as to the years after the Rebellion , and preferred the Appryzer as to years preceeding .

Arnold of Barncaple contra Gordoun of Holm . Eodem die .

THere being four Cautioners in a Bond , and the principal Debitor having Suspended , and found a Cautioner in the Suspension , who having been Distressed and payed the Debt , and having gotten Assignation from the Creditor , Charges one of the Cautioners in the first Bond , Gordoun of Holm , who Suspends on this Reason , that payment being made by the Cautioner in the Suspension , he can only have recourse against him for whom he was Cautioner , but not against his Cautioners in the principal Bond , for us to them it is all one as if the principal Debitor had payed . 2dly , Though the Cautioner in the Suspension could have access against the Cautioners in the principal Bond ; yet all of them being Cautioners for the same Principal , they must bear equal burden , and so he must allow his own fifth part in the same manner , as Cautioners in a Bond of Corroboration , bear equal burden with the Cautioners in the principal Bond.

The Lords found that the Cautioner in the Suspension had access against the Cautioners in the principal Bond , he alwayes deducing his own fifth part .

Earl of Northesk contra Viscount of Stormond . February 28. 1671.

THe Earl of Northesk pursues the Viscount of Stormond on this Ground , that he having sent 100. pound Sterling to London , to the umquhil Viscount of Stormond , to be imployed for Houshold Furniture , the most part thereof was not imployed , and for instructing his Libel , produces several missive Letters of the Viscounts , one Holograph , another having an Holograph Postscript , and a third Written with another hand , which did state the Accompt , and acknowledged the Debt . It was alleadged for the Defender , that the only Letter which had any special Probation in it , was the last , which is not Holograph . It was answered , that the Subject Matter being a Sum sent for Furniture , which uses not to be redacted in Writ , the Viscounts Letter Subscribed by him , though not Holograph , is sufficient to prove , for Bills of Exchange so Subscribed , or Letters among M●●chants are sufficient : and this Letter being amongst Noble Persons in such a small particular , which requires not ordinarly Writ , must be of the same force , especially seing there is also produced two other missives not controverted , which comparatione literarum , are clearly the same with this Letter in question .

The Lords found that this Letter , though not Holograph , was a sufficient Instruction , having compared the same with the other not controverted Subscriptions ; The Pursuer making Faith , that this is the same Letter which he received from the Deceast Viscount , his Servant , or Messenger .

Steil contra Hay of Rattray . Iune 6. 1671.

UMquhil Steil having a Feu of some Aikers of the Barony of Rattray , Chancellour Hay as Superiour , and Baron of the Barony , pursued Reduction and Improbation against Steil and other Vassals , and in Iuly 1624. obtained Certification , the Chancellours Right being Transmitted to Doctor Patrick Hay , he accepts of the Feu-duty and gives a Discharge of the year 1624. and thereafter in Anno 1628. having obtained Decreet of Removing against Steils Relict ; he by a Transaction with her passes from it , and gives her other Lands in lieu thereof , but without any mention of the Improbation . Steils Heir attains Possession of the saids Aikers of Land ; and Hay of Rattray , as now having Right to the Barony , pursues a Removing against Steils Tennent , and obtains Decreet of Removing , without Calling Steil ; whereupon Steil pursues Ejection and Intrusion against Hay of Rattray , wherein in respect that Rattrays interest was by a Sentence , though unwarrantably given , without Calling the Tenuents Master .

The Lords restricted the Letters to Re-possession and ordinar profits wherein it was alleadged for Rattry Absolvitor , because the Defenders Author having obtained Certification in the Improbation , at Chancellour Hays Instance , produces the same , which did evacuate the Pursuers Fathers and Predecessours Right .

The Pursuer Replyed , First , That the Decreet of Certification produced , was not Relevant , because it was not a Certification in an Improbation , which was not concluded by the Summons , as they are exprest in the Decreet , which bear , That the Writs called for , should be cancelled , and declared null , but bears not that the same should make no Faith , or should be declared as False , Forged or Feinzied . 2dly , Doctor Hay the Defenders Author , by accepting of the Feu-duty for a Term after the Decreet , did pass therefrom , and did acknowledge and Homologate the Pursuers Right , and did acknowledge the Liferenters Right , by Excambion therewith . The Defender answered , that he opponed his Decreet of Certification , the Decernator whereof , is expresly in the Terms of an Improbation : And likewise the beginning of the Libel ▪ being both at the Chancellour and Kings Advocats Instance ; and at the Compearance , the Pursuer insisted for improving the Writs called for , so that the Repetition of the Conclusion of the Libel , hath been only through Inadvertence , not fully set down . And as to the Discharge of the Feu-duty , First , It is Vitiat in the Date . 2dly , It wants Writer and Witnesses , and albeit it were Holograph , it cannot instruct the true Date , and it can never import a passing from the Improbation further , then for the Term Discharged , especially seing it was granted by Doctor Hay , who was singular Successor to the Chancellour , and perhaps knew not of the Improbation . The Pursuer answered , that the Certification being granted in absence , the Obtainer thereof might frame it as he pleased ; but it cannot be supposed to be truly better then as it stands : and though Improbations being in absence , are very much adhered to , yet they are odious Rights and very Reduceable upon any Defect or Informality , seing it is formality that gives them all their strength . And as to the Discharge , the Date of it hath been altered at the Subscription by the Subscribers hand , as appears by comparing the Date and Subscription . 2dly , In the very Body of the Discharge , no ways altered , it bears to Discharge the year 1624. after the Certification , and the Discharge as it stands , is in the ordinar way as Discharges uses to be given to Tennents and Vassals , for small Feu-duties , and therefore must be sufficient in a case so favourable for the Pursuer who has a clear Right , and should not be eleided by this dubious Certification , which must be restricted to a Certification in a Reduction , which is only Reducing the Rights till they be produced , and so falls , they being now produced .

The Lords Repelled the Defense upon the Certification , in respect of the Reply , and Discharge produced , and Decerned the Defender to Re-possesse the Pursuer ; but Assoylzied him from the bygone Profits , seing he Possest by a Title , and had just Reason to Defend in a matter so dubious .

Sir William Stuart of Kirkhil contra Sir George Mckenzie and Kettlestoun . Iune 8. 1671.

SIr William Stuart as Heir by progress to Sir Lewis Stuart , his Goodsire pursues Improbation of a Bond , bearing to be granted to Mr. Iohn Stuart of Kettlestoun , his Son granting an Annuity of 3000. merks yearly during his life , and some other Provisions : Which Bond is Assigned by Keitlestoun to Sir George Mckenzie , and being produced , Kettlestoun has abidden by the same , and has declared upon Oath , that he was not present when it was Subscribed , but that he received it from his Father , as now it is , one of the Witnesses insert being then Kettlestouns Servant depon'd , that the Subscription to this Bond as Witness is his Subscription , but that he did not see Sir Lewis Subscribe , nor any of the other Witnesses ; and remembers nothing of the matter , and that he knows not Iohn Carnagie , Serviture to the Earl of Southesk , another Witness insert . The Pursuer thereupon craved that the Defender would more particularly design the other Witness John Carnagie ▪ Serviture to the Earl of Southesk , because there were several persons Servants , or Attendents upon the Earl at that time of the same name , and condescends upon two of them having several Designations , beside this common one . The Defender alleadged that he was obliged to condescend no further , seing the Act of Parliament required no more than the Name , Sirname and Designation . It was answered , that the intent of Designations being to find out the Person of the Witness , that he might be adduced in the Improbation , a general Designation would not suffice , but behoved to be made special , or otherways if the Pursuer should Cite any Person of that Designation , and that Person should deny the Subscription , his Testimony would improve , or at the best , the Defender behoved then to Design specially another of the same common Designation , otherwise it were a compendious way to all Forgery , as if Witnesses should be insert of such a Name , Indwellers in Edinburgh , or any other Town : In that case , if the Testimonie of none of them should Improve , there were no remeed for the Falshood .

The Lords found that all the persons that were the Earl of Southesks Servants or Attendantsat that time , and were called Iohn Carnagie that were alive should be Cited , and the Hand-writs of any that wereso Designed , that were dead , should be produced by either Party to be compared with this Subscription , that thereby it might appear if the Subscription could be astructed by the Testimony or hand writ of any other .

Sir , Francis Scot of Thirlstoun contra Lord Drumlanrig . Iune 10. 1671.

SIr Francis Scot having obtained Decreet of Adjudication of the Lands of Brankinside and others , and having Charged the Lord Drumlanrig to receive and Infeft him . He Suspends on this Reason , that he was willing to satisfie the Sums contained in the Adjudication , upon Assignation made to him thereto , and so was not obliged to receive the Charger . It was answered , that albeit King Iames the third , his Act of Parliament anent Appryzings , doth provide , that for a years Rent , Superiours shall receive Appryzers , or otherways shall take the Land to themselves and pay the Sums ; yet that gives not the Superiour an option , but bears failzying of paying a years Rent , the Superiour may satisfie the Sums , and take the Land in his own hands , but where that was offered , it was never by Custom or Practique allowed , that the Superiour should exclude an Appryzer , but whatever were in the case of Appryzings , that power was never granted to Superiours in Adjudications , whereupon they were still obliged to receive Adjudgers without a years Rent , until the late Act of Parliament , and the said old Statute giving an option to the Superiour , is not to be extended to Adjudications ; nor was it ever by any subsequent Law , or Consuetude extended thereto . It was answered that by the ancient Feudal Law , a Superiour could not have been compelled to receive a stranger Vassal , albeit a Creditor , yet the Statute of King Iames the 3d. did remeid this in favours of Creditors , and obliged Superiours either to receive Appryzers for payment of a years Rent , or else to pay the Sum Apprysed for ; but long after that time , there was no mention of Adjudications , which were a Supplement of the Lords , that where the appearand Heir being Charged , did renunce , the Creditor should not be frustrate , but might obtain Adjudication of the Lands , contra haereditatem jacentem , which except as to that point of Form , is the same with an Appryzing , under another Title : and albeit as to the years Entry , the Lords would not extend the same to an Adjudication : It was upon this special Reason , that in the Act of Parliament 1621. anent Appryzings , the same is declared Redeemable upon the Sums Appryzed for , and a years Rent for the Entry ; yet in the very next Act in the same Parliament anent Adjudications , the years Entry is left out , which was thought by the Lords to be done by the Parliament of purpose , and so not to be extended by the Lords : But otherways the same Reason was for the Entry in Adjudications as in Appryzings , which the Parliament has now found by their late Act ; and therefore the matter of the Entry is not to be drawn in consequence to the Superiours option .

The Lords found that the Superiour had his option , and might refuse to receive the Adjudger , offering to satisfie the Sums in his Adjudication , upon Assignation made to him thereof , and declared that the same should be Redeemable from the Superiour upon the like Sums without any thing for a years Entry ; and that in all things else , the Superiour and Vassal should be in the same case as if the Adjudger had been Entred to that Effect .

Town of Breichen contra Town of Dundee . Iune 14. 1671.

LAurence Dundass having been Debitor to the Earl of Seaforth in 200. pound Sterling , was incarcerat in the Tolbooth of Breichen , and being suffered to go out of Prison , Mr. Rory Mckenzie as Assigney to the Earl , obtained Decreet against the Town for payment of the Sum , and took Assignation to the Caption , and therewith Incarcerat Laurence in the Tolbooth of Dundee , and now pursues the Town of Dundee for suffering Laurence to go out of Prison . and condescends that they suffered him to go ordinarly to the Kirk on the Sabbath , and that once they suffered him to go to the River by Boat , and over to Fife another Shire ; and ordinarly to go to the Street , and to Taverns without necessar Affairs . The Defenders answered , that the Prisoner returned still to the Prison every night , and went always abroad with a Guard , and his going to the Water was because of his Indisposition , and for his Health , that if he touched upon the other side in Fife , he did return that same night to Prison : and that his going to the Kirk with a Keeper , can be no Relevant Ground ; and even the going out upon other occasions with a Keeper , though not absolutely necessar , cannot make the Magistrates lyable , it being the constant Custom of all Burghs so to do , and that a Prisoner being under a Guard , is in Prison , albeit not in the Tolbooth . The Pursuers answered , that Magistrates of Burghs were but publick Servants in Keeping of Prisoners , and were obliged to give punctual Obedience to the Letters of Caption , bearing to keep the Rebel in sure Firmance within their Tolbooth , which is founded on very good Reason , that the Prisoner may be necessitate , squalore carceris , to do all Deeds in his power to satisfie his Debt , which would be eluded , if the Magistrates at their pleasure might let them go out with a Guard , and would but turn to a Confynement , or intertainment and gratification to an Officer for a Guard : and even though there were necessar Causes of the Prisoners coming out , the Magistrate is not Judge thereof , nor has any power of it , but the Party ought to apply themselves to the Council or Session , and obtain their Warrand , which will not be granted even by them , but upon instruction of a necessar Cause , upon Oath of Physicians or others . The Defenders answered , that Incarceration was a civil effect of Law , and no punishment , and that it were against all humanity , to put Prisoners for civil Debt in that condition , that the Magistrates could not let them out for a little , even for the safety of their Life , in extremity of sickness , which oftimes would not admit of delay , till application were made to the Council or Session . 2dly , Whatsoever may be found just by the Lords in time coming , yet the constant and universal Custom of this and all other Burghs , to let Prisoners go out with a Guard when they saw convenient cause , did introduce a priviledge to Burghs , or put the Defenders in bona fide , to Act as all their Predecessors had been accustomed to do , without any question or Decision in the contrair , and alleadged a late Practique in the case of the Town of Culross , who suffering a Prisoner that was a poor man , to go out to an Hospital , where he got Bread , and thence he immediatly returned to Prison , and to go and see his nearest Relation that was a dying in the Town , or to their Burial , was not found lyable for the Debt .

The Lords considering the ordinary Custom of Burghs , found that as to the time past they would not find them lyable for suffering Prisoners to go out with a Guard for any necessar cause , and found the Defense Relevant , that this Prisoner was let go out with a Guard for his health , or to the Kirk on the Sabbath , but found that Member of the Condescendence Relevant , that he went out to the Street and Taverns without a necessar Cause , though with a Guard , Relevant to infer the Debt : But found that in time coming they would have no regard to that unwarrantable Custome ; but that Magistrates of Burghs should only have power to let Prisoners come out of the Tolbooth under a Guard in the extream hazard of their Life by sickness , and not without Testificats by Physicians or skilled persons upon Oath , bearing the Parties condition to require the same , and that without great hazard , they could not suffer delay to make Supplication to the Council or Session .

The Lady Wolmet and Dankeith her Spouse contra Major Bigger . Eodem die .

JEan Dowglas Lady Wolmet being by her Contract of Marriage Infeft in the half of the Lands of Wolmet , did with her Husband consent to a Wodset of the whole Lands for 28000. merks , wherein there is a Back-tack setting the Lands and Coal to her Husband and her , the longest liver of them two for payment of the Annualrent of the Money : which Wodset the said Iean in her Viduity as Tutrix , renewed to the first Wodsetters Assigney , and became personally obliged , both for the principal sum , and Back-tack-duty , and took the Back-tack , half to her self and half to her Son the Heir ; but after the first Wodset , her Husband set a Tack of the whole Coal to his seven Children , for twelve years , they paying twelve hundreth merks yearly to the Wodsetter , and two merks yearly to his Heir : which Tack expired in Anno 1663. after which the said Iean Dowglas and David Cunninghame of Dankeith her Husband , pursues Major Bigger as intrometter with the Coal for the half of the profite thereof , conform to the Back-tack , who alleadged Absolvitor , because the Back-tack , in so far as it exceeded the Ladies Joynture , was a Donation between Man and Wife , and was Revocked by the Childrens Tack , and being once Revocked , remained for ever Revocked , because the ground of Law prohibiting Donations between Man and Wife , and annulling the same , nisi morte confirmentur is introduced ne mutuo amore se spolient ; and therefore nothing can make them effectual but the Husbands continuing in the same mind to his Death , but any signification of alteration of his mind , directly or indirectly , though it were in his Testament or Codicil , or by any Deed whereby he owns the thing Disponed , as still at his Disposal , is sufficient to annul the Wifes Right , as if he should grant a Wodset of the same Lands , though without mention of his Wifes prior Liferent , given gratis stante matrimonio , It would Revock the same : so that though the Husband Redeemed the Wodset , the Wifes Right would not Revive . So here the Bairns Tack being of the whole Coal for twelve years , doth wholly Revock the Back-tack , as to the Wife , not only during these years , but for ever . 2dly , There is a minute of Contract betwixt the Husband , his Wife and Raith of Edmonstoun , clearly showing the change of his mind , and restricting the Lady to her first Liferent . It was answered , that albeit in jure donationis , or where there was a clear and liquid excess of the Right received , exceeding the Right quite , any Deed evidencing the Change of the Husbands Will , might be sufficient to Recal it ▪ Yet that holds not here , where the Lady quite a certainty for a Casuality , viz. The profite of a Coal , which might many wayes have been ruined and unprofitable , in which case she would have nothing for her Joynture , and so it was permutatio spei , aut jactus retis , and at the time of the Wodset , was not of more value in buying and selling then the Joynture of the Lands , being certain . 2dly , This not being a pure Donation , the Husband could not Recal it till he had Restored his Wife to her first Liferent , and releaved her of all Burden and Distress she had sustained by the Wodset : neither had he shown his mind to Change , but only in part . And as to the Contract with Raith , it was in Contemplation of a Marriage , and was all founded on advancing Sums to Redeem the Wodset , whereby the Back-tack ceased . 3dly , The Defender connot exclude the Pursuer , unless he pay her all bygone years of her Joynture she wants from 1654 , to 1667. by Arrestments and Processes upon the Back-tack , and free her of the principal Sum and Annualrent , and satisfie her of the damnage she has Sustained by lying out of her Liferent , for all these years , and sustaining a long pursuit , wherein she is willing to acquiesce .

The Lords in respect of this offer , and that the Defender did also offer to free and relieve her , rested therein , and did not proceed to advise the former Points , in jure .

Bowers contra Lady Cowper . Iune 16. 1671.

BOwers pursues the Lady Cowper as vitious in●●●●●er with the Lord Cowpers Goods and Gear , for payment of a Debt of his , who alleadged Absolvitor , because she had a Disposition from her Husband of his Moveables . It was Replyed that the Disposition being between most conjunct persons , without a Cause onerous , was null by Exception by the Act of Parliament 1621. against fradulent Dispositions . It was answered , that the Disposition behoved at least to purge the vitious Intromission , and did stand ay and while it was Redeemed : For notwithstanding of the Tenor of the said Act , the Lords do not Sustain that Nullity by way of Exception or Reply .

The Lords found the Nullity competent by way of Exception , it being no Heretable Right , requiring the production of Authors Rights , but in respect of this colourable Title , restricted the vitious Intromission to the single value .

Lord Lovet contra Lord Mcdonald . Eodem die .

THe Lord Lovet pursues the Lord Mcdonald to count for the Superplus of a Wodset , from the Date of his Instrument of Requisition , in Anno 1663. whereupon he had raised Summons in Anno 1667. It was alleadged that the Instrument was at the Defenders Dwelling-house , when he was out of the Countrey , and bear no production of the Procutry , and only an offer of a Bond , with a Clause of Infeftment in all Lovets Land : and did not bear an offer of Caution . It was answered , that the Act did not require Requisition by Instrument , but quaevis insinuatio sufficit , and the Instrument bear Delivery of a Copy to the Defenders Lady in his House , there being no Procutry , for the Pursuer offered now to produce the same , and a surety by Infeftment was sufficient , the Act of Parliament mentioning no Caution .

The Lords found that the Requisition behoved to be by Letters of Supplement , at the Cross of Edinburgh , and Pear of Leith , seing the Defender was out of the Countrey , but Sustained the same , as to the Procutry , it being now produced , and sustained the offer of Surety , and Ordained it to be produced , Reserving the Objections and Answers of either Party thereanent .

Iohn Boyd contra Hugh Sinclar : Iune 17. 1671.

JOhn Boyd having a Right to some Teinds in Orknay , pursues Hugh Sinclar as Intrometter therewith , who alleadged Absolvitor , because he had Right to a Tack , set to umquhil Sinclar during his Life , and to his first Heir after him , during his Life , and nineteen years thereafter , which is not yet expyred ; for though the Defuncts eldect Son survived him , yet he was never entered Heir to him , neither did he possess thir Teinds , and Died shortly after his Father , but it is not nineteen years since the second Son Died , whose Retour is produced , as Heir to his Father .

The Lords found that the eldest Son Surviving his Father , although he never Possest , was the first Heir as to the Tack , and that he needed not be served Heir .

Alexander Alexander contra The Lord Saltoun . Iune 20. 1671.

THe Earl of Hadingtoun having obtained a Gift of Bastardy , and ultimus hares , of umquhil William Gray , Provost of Aberdere , did assign the same to Alexander Alexander , with a Process thereupon , against the Lord Saltoun , for payment of 5000. merks due by him by Bond , to the said umquhil William Gray . The Defender alleadged that this Bond being granted for the price of Land bought by him from the Bastard , and of the same Date with the Contract of Alienation thereof ; there was a Back-bond also of the same Date , by which the said William Gray was not only obliged in Warrandice , but also to procure himself Infeft , holden of the Earl of Mar , to purge an Inhibition at the instance of Ramsay , and to procure a Right of an Appryzing , at the Instance of the Lord Newbeath . The Pursuer answered , that the King or his Donator was not obliged to fulfill these Obligements of the Bastard , which were not liquide nor special . It was answered , that the Gift of Bastardy , or ultimus haeres , not falling to the King by Forefaulture , or any Delinquence , but by Deficience of the Bastards Heir , the Donator was in no better case , as to the fulfilling of these Obligements , then the Bastard or his Heir would be , if they were pursuing upon the Bond , who could not seek payment till the Obligements in the Alienation , or Back-bond , which were the Causes of this Bond were fulfilled .

Which the Lords found Relevant , as to the special Obligements of obtaining Infeftment , and purging the Inhibition and Appryzing , but not as to the general obligement of Warrandice , wherein no Distresse was alleadged .

Thomas Crawford contra Iames Halliburtoun . Eodem die .

THomas Crawford having Charged Iames Halliburtoun upon a Decreet Arbitral for payment of a sum . He Suspends , and alleadged that he was Interdicted at that time , and that the Interdicters did not consent to the Submission , or Decreet Arbitral . The Pursuer answered , First , That the Alleadgeance was not competent by Exception , but by Reduction . 2dly , That Interdictions had only the same Effect as Inhibitions , and did operate nothing as to Moveables , or personal Execution , even by way of Reduction .

Both which Defenses the Lords found Relevant .

John Neilson contra Menzies of Enoch . Iune 21. 1671.

JOhn Neilson as Assigney Constitute by Iohn Creightoun , pursues Menzies of Enoch for the Rents of certain Lands in Enoch upon this Ground , that there was a Tack set by James Menzies of Enoch of the saids Lands , to the said Iohn Creightoun for nineteen years , for payment of fourscore pounds Scots yearly of Tack-duty , thereafter by a Decreet Arbitral , betwixt Enoch and his eldest Son Robert , he is Decerned to Denude himself of the saids Lands , in favours of Robert , reserving his own Liferent : After which Decreet , Robert grants a second Tack to Creightoun , relating and Confirming the first nineteen years Tack , and setting the Land of new again for five merk of Tack Duty , in stead of the fourscorepounds : After which Tack Robert Dispones the Land irredeemably to Birthwood , but at that time Robert was not Infeft , but upon the very same day that the Disposition was granted to Birthwood , Robert Menzies is Infeft , and Birthwood is also Infeft : Birthwoods Right by progress comes in the Person of Iames Menzies , the Defender Roberts Brother . The Pursuer insisted for the Duties of the Land , over and above the fourscore pounds , during the Life of old Iames Menzies , and over and above the Tack-duty of five merks after his Death : For which the Defender alleadged Absolvitor , because he produces a Decreet at his instance against Creightoun the Tacks-man , Decerning him to Remove , because he was then resting several Terms Rent , and failed to pay the same , and to find Caution to pay the same in time coming . The Pursuer answered , that the said Decreet was in absence , and was null , because the Defender Libelled upon his own Infeftment , and upon a Tack set to Creightoun the Tacks-man by himself , and there was no such Tack produced by him , or could be produced , because the Tack , albeit it bear to be set by Iames Menzies , yet it was only set by James Menzies his Father , and not by himself .

The Lords found the Decreet null by Exception .

Whereupon the Defender alleadged that the Decreet at least , was a colourable Title , and he possessed by it bona fide till it was found null , & bonae fidei possessor facit fructus consumptos suos . It was answered , that a Title that needs Reduction , may be the Ground for Possession bona fide : but this is absoltely null by Exception . 2dly , The obtainer of the Decreet was in pessima fide , because imediatly after the obtaining it , it was Suspended , and the Tacks-man was able to instruct that there was no Duties resting at that time , and though Protestations were obtained , yet the Suspension was never Discust against the Tacks-man .

The Lords Repelled this Defense also .

The Defender further alleadged , that albeit he would make no opposition against the first Tack , yet the second Tack could have no effect against him , because , before it was cled with Possession , Robert Menzies setter thereof , was denuded in favours of Birthwood , from whom the Defender has Right , and it is unquestionable , that a Tack not attaining Possession , is no real Right , and that a singular Successor , Infeft before Possession on it , will exclude it . 2dly , As the Tack was not cled with Possession , so Robert who set it had no real Right in his Person when he set it , but only the Decreet Arbitral . The Pursuer answered to the first , that he opponed his new Tack , which contained not only a Ratification of the old Tack , but a new Tack de presenti , for five merk , and so was like a Charter by a Superiour with a novo damus , whereby the Tacks-man might ascribe his Possession to any of the Tacks he pleased ; and if this Tack had born expresly , a Reservation of the Fathers Liferent for eighty pounds yearly , it would have been unquestionably a valide Tack from the Date , and Payment to the Father by the Reservation , would be by vertue of the new Tack , as well as of the old : So likewise the Tacks-man might Renunce the old Tack , and retain the new ; or if the new Tack had been taken without mention of the Old , the same would have been cled with Possession , albeit it could not effectually exclude the payment of fourscore pounds to the Father , during his life , as having a better Right by the Reservation . As to the second Alleadgeance , albeit Robert who set the Tack , was not Infeft when he set it ; yet Robert being thereafter Infeft , his Right accresced to the Tacks-man in the same manner , as if he had been Infeft before , fictione juris . It was answered to the first , that the new Tack did not bear a Reservation of the old , but the Tacks-man having two Tacks in his Person at once , although he might quite either of them , or declare to which of them he ascribed his Possession , before the interest of any other Party : yet not having so done , he must be holden to Possess by the first , because he continued to pay the Tack-duty of the first , and never payed the Tack-duty of the second till the Setter was Denuded . To this it was answered , that the payment to the Liferenter , who had a better Right , did not import the Possessing by the first Tack , and the Tacks-man needed not declare his option till he was put to it , but Law presumes that he Possessed by that Right , which was most convenient for him .

As to this Point the Lords found that the Tacks-man might ascribe his Possession to either of the Tacks he pleased , both of them being set for a distinct Tack-duty , and that agibatur by the second Tack , that the Fathers Liferent should be Reserved .

As to the other Point , The Defender alleadged that the Infeftment of Robert who set the Tack , could not accresce to the Tacks-man ; because the same day Robert was Infeft , he was Denuded in favours of Birthwood , and he Infeft ; so that it must be presumed , that he was only Infeft to that effect , that Birthwoods Right might be valide . 2dly , It was offered to be proven , that Birthwood procured Roberts Infeftment by his own Means , and so it cannot accresce to any other in his prejudice . It was answered , that whoever procured the Infeftment of the Common Author , the fiction of Law did draw it back to all the Deeds done by that Author , that might arise from that Infeftment , which cannot be divided or altered , by the Acting or Declaration of either , or both Parties .

Which the Lords found Relevant , and found the Infeftment did accresce to the Tacks-man in the first place , whose Tack was prior with absolute Warrandice .

Lord Balmerino contra Hamiltoun of Little Prestoun . June 22. 1671.

Wishart in Leith did grant Infeftment of an Annualrent of fourty pounds yearly , out of two Tenements in Leith , in any part of them : Which Annualrent by progress belonged to Mr. Iohn Adamson , and after the Constitution of the Annualrent , the two Tenements were Transmitted to different Proprietars , and now the one belongs to the Lord Balmerino , and the other to Hamiltoun of Little Prestoun , the Annualrenter did only insist against Balmerino's Tenement , and upon an old Decreet of Poinding of the Ground of that Tenement , hath continued in Possession , and Distressed Balmerino : Who having Suspended on this Ground , that the Annualrent being out of two Tenements , whereof he had but the one , he could be only lyable but for the one half .

The Lords found that the Annualrenter might Distress any of the Tenements for the whole , but reserved to Balmerino his Relief as accords .

Whereupon Balmerino now pursues Little Prestoun to Repay him the half of the Annualrent , for which he was Distressed , because he having payed , did liberate Little Prestoun of the Annualrent , which affected both Tenements , they being now in different Heretors hands , behoved to infer a proportional Relief , as is ordinar in all Annualrents , Constitute upon any Barony or Tenement , which thereafter comes to be divided . The Defender alleadged Absolvitor , because he had bruiked his Tenement much more then fourty years before this Pursuit , free of any such Annualrent ; and therefore had prescribed the freedom thereof . The Pursuer answered , that Prescription was hindered by the Annualrenters Possession , in getting his Annualrent , which though it had been but by a Personal Obligement , it would have preserved his Right intire to all effects in the same manner , as payment by a principal Debitor hinders the Cautioners Bond to Prescribe , though he were free thereof for fourty years . It was answered , that albeit there might be ground for the Reply , where the Annualrent is Constitute out of one Barony or Tenement , whereon Infeftment may reach the whole , yet it cannot hold in this case , where the Annualrent is Constitute upon two distinct Tenements ; and where there behoved Seasing to be taken upon both of them , and if omitted upon one , that would be free .

The Lords found that payment of the Annualrent out of any of the Tenements , saved Prescription as to both .

Leslies contra Alexander Iaffray . Eodem die .

LEslies pursues Alexander Iaffray and others , for producing of Writs , and counting anent a Wodset Right , as being satisfied by intromission , and that as appearand Heirs , ad deliber●● dum .

Wherein the Lords refused to Sustain the Summons for Compt and Reckoning , but only for Exhibition , albeit there was a Practique produced , observed by Dury upon the 1● . of March 1637. betwixt Hume and Hume of Blackadder , wherein Compt and Reckoning was Sustained at an appearand Heirs instance , the Custom having been ever since contrair upon this Ground , that no Party should be troubled to Compt at the Instance of those , who when the Compt was closed , cannot exoner them , and yet may put them to make Litiscontestation and Probation in the Cause .

Duke of Buccleugh contra Parochioners of Eodem die .

THe Minister of Hasendein having obtained the Designation of a Gleib out of the Duke Land , who alleadged that the Minister having a Gleib before , extending at least to two Aikers , the Earl upon this Designation had gotten Possession thereof , and could only seek Relief for the Superplus . It was answered , that these two Aikers had never been designed as a Gleib ; but the Pursuers Predecessors were infeft therein , and in Possession thereof before the Ministers , and any Possession they had , was but by their sufference and con●●vance . It was answered ; that decennalis & triennalis possessor non tenesur docere de t●●u●o and the Minister was not only in Possession thirteen years ; but thirty years . It was answered , that albeit Possession may be a Title , yet it may be elided by the Pursuers Right , which cannot be taken away but by Prescription ; whereupon the question arose , how the Tollerance or Sufference of the Ministers Possession was probable , whether by Witnesses or not , seing Tollerances are not ordinarly so proven .

The Lords found that if the Ministers Possession were alleadged to have been 40. year , as belonging to the Kirk , that the Dukes Tollerance could only be proven by Writ , to elide the same , but if for fewer years , they found the Tollerance or Sufference probable by Witnesses .

Mr. Arthur Gordoun contra Laird of Drum . Eodem die .

MR. Arthur Gordoun as Assigney to a Decreet recovered against the Laird of Drum , Charges him thereupon . He Suspends on this Reason , that the Debt being originally due to a Defunct , his two Executors nominate , recovered the Decreet , and the one only assigned the whole to Mr. Arthur , whereby he can only have Right to the half . It was answered , that the other Executor being Dead before the Assignation , the Office accresced to the Surviver , who might uplift all that was in bonis defuncti , not uplifted . It was answered , that this Debt was no more in bonis defuncti , but being established in the Executors Person by Sentence , testamentum suit oxecatum , and the Deceased Executor's half behoved to belong to their Executors , and not to accresce .

Which the Lords Sustained .

Lady Ballagan contra Lord Drumlanrig . Iune 23. 1671.

THe Lady Ballagan being by her Contract of Marriage provided to certain Lands , and amongst others , to the Lands of Birks , the Contract bears , that she accepts of the saids Lands in full satisfaction of all further Conjunct-Fee , Liferent , or Terce : she was Infeft in the Lands of Birks by her Husband , but was not Confirmed by the Lord Drumlanrig Superiour , of whom the Lands held Ward . The Lady pursues the Tennents of Birks for Mails and Duties . Compearance is made for the Lord Drumlanrig Superiour , who craved preference , because the Lands are now by Ward in his hands by the Death of the Husband , and minority of the Heir . And as for the Ladies Infeftment , it can have no effect against the Ward , because it is not Confirmed . It was answered , that the Lands being Ward , and lesse then the third part of the Ward Lands , holden of the Lord Drumlanrig , the Lady has Right by Law thereto , as her Terce . It was answered , That by her Contract of Marriage , she had accepted the Lands provided therein , in satisfaction of her Tero● , which is the ordinar conception of a Renunciation , as when a Sum is accepted in satisfaction of any prior Debt , it imports a Renunciation and Discharge of the prior Debt , and an Inhibition prior to the last Bond , will Reduce any Right thereupon : Neither can it be maintained , as having an anterior Cause by the former Bonds ; yea , any Appryzing upon them would be void , because they are Renunced . It was answered for the Lady , First , That there was here no formal Renunciation , or Discharge of the Terce , and the acceptance of Lands for it , doth very well allow , that the Land accepted , may be bruiked as Terce , at least a Terce of that Land must be due , though no Terce of other Lands can be claimed : and albeit the Clause in satisfaction , in personal Rights , is commonly understood to Renunce and extinguish the prior Rights , unless they be Reserved : Yet it is not so in real Rights , for if any person have many Rights to Lands , and doth thereafter accept a Disposition of a part of the Lands in satisfaction of all his interest , that does not Renunce his former Rights to that Land , but he may defend himself with them all . So here accepting of Lands in satisfaction of a Terce , does not Renunce the Terce , as to the Lands accepted . 2dly , Albeit this Clause could import the Renuncing of all Terce , that can never be extended to the benefite of the Superiour , nor can it be understood the Contracters mind , to exclude the Wife from the Terce , to make it accresce to the Superiour , in both their prejudices , because the Husband by the Warrandice , must make out the Joynture . 3dly , Albeit the Renunciation could be profitable to the Superiour , yet it being by this Clause in the Contract , the Superiour cannot question the Ladies Infeftment , which is the cause of the Renunciation , but must adhere to the whole Clause , nam qui approbat non reprobat . It was answered , that the common Sense of this Clause of acceptance does still import a full Renunciation , neither can the intention , or meaning of the Parties import any thing , unlesse they had acted accordingly ; for it had been easie for them to have said , but prejudice of the Terce , as to thir Lands ; so that the Terce being Renunced , the Renunciation is profitable to all Parties having Interest , because the Right thereby Renunced is simply extinct : Neither needs the Superiour approve the Infeftment Un-confirmed , by making use of the Renunciation , for as there could be no pretence for that upon the naked Clause , without any Infeftment , so the meaning can only be , that if the Clause had been perfected by a valide Infeftment , he could not have quarrelled it .

The Lords preferred the Superiour , and found the acceptance a full Renunciation of the Terce , both as to the Lands accepted , and others .

Helen Hume contra Lord Iustice Clerk . Iune 28. 1671.

UMquhile Hume of Rentoun having made several Provisions to his Children , and amongst the rest to Helen Hume , and having recommended the same to his Son , now Justice Clerk ; he gave a Bond to the said Helen of two thousand Merks , payable upon Requisition of fourty days ; the said Helen pursued Registration of the Bond , wherein it being alleadged that any Requisition made was past from , by acceptance of Annualrent for Terms after .

The Lords Assoilzied from that Charge , until Requisition were made , and new Requisition being made since , before the Extracting the Absolvitor , The Lords Sustained the same . It was further alleadged Absolvitor , because the Bonds granted by the Father was done on Death-bed , and the Bond granted by the Defender his Son was in his Minority , and he had Reduction depending upon the saids two Reasons . The Pursuer replyed , that the Defender had Homologat the Bond in question by a posterior Contract , whereby he had appointed a yearly payment to his Mother , in satisfaction of this and the other Portions . The Defender duplyed , that that Contract was no Homologation , being Subscribed by him when he was Minor , having Curators , without their Consent , and so is null by exception . The Pursuer triplyed , that the Defender had Homologat the said Contract and Bond in question by these Deeds . First , That after Majority he had payed Annualrent . 2dly , That he had pursued Exhibition and Registration of the said Contract , and thereupon had obtained the same Registrat , and the Decreet Decerns Letters to be Direct at his Instance thereupon . It was answered , that the payment of the Annualrent , albeit voluntar , though it may exclude repetition of it self , it cannot infer Homologation of the whole Bond , especially the payment being made by a Brother to an Indigent Sister . 3dly , Payment of Annualrent cannot Homologat a Contract , which is null by exception . 4thly , Any payment that was made , was after the Decreet of Registration , and so necessar ; and as to the Exhibition , the pursuing for a Delivery of a Writ doth not import the approbation of the contents of it , but only a calling for it , because the Writ belongs to the Subscriber thereof , though he may quarrel the obligement therein contained , and albeit the Writ was ordained to be Registrat , yet there was neither Charge nor Execution used thereupon .

The Lords found the payment of the Annualrent in manner foresaid not to import Homologation , but they found that a Writ Subscribed by a Minor without Consent of his Curators , as it might be Ratified , so it might be Homologat , and that it was de facto Homologat by this Decreet of Registration , containing neither Reservation nor Protestation for quarrelling the Writ Registrat . It was further alleadged , that the new Requisition was null , bearing to proceed on a Procutry , and not bearing the Procutry produced . It was answered , the Procutry was not called for , and that the having of the Writs , which the Requisition mentioned , did import a Power to Require . 2dly , This is a Dilator after a Peremptor .

The Lords found the alleadgeance upon the nullity of the Requisition Receivable after the Peremptor , and Sustained the Requisition , the Pursuer producing the Procutry , which was the Warrand thereof before Extract .

Forbes of Watertoun contra Shein . Eodem die .

FOrbes of Watertoun pursues Reduction of an Apprizing ex capite inhibitionis . The Defender alleadged Absolvitor , because the Bond which was the ground of the Inhibition is satisfied , in so far as there followed thereupon an Apprizing , which came in the Person of the Debitors appearand Heir , and so is Redeemable from him , for the Sums he truly payed , by the Act 1661 ▪ betwixt Debitor and Creditor ; and it is offered to be proven , that the Sums he payed are satisfied by Intromission with the Rents of the Apprized Lands , or what is wanting the Defender will instantly satisfie or purge . It was answered , that albeit the Act of Parliament had declared that Apprizings might be satisfied by payment of the true Sums payed for them by the appearand Heir , that cannot extend to this Bond , or Inhibition , or Reduction thereupon , for the Pursuer may passe from his Apprizing , and yet make use of the Bond , and this alleadgeance will only be Relevant when he insists upon his Apprizing .

The Lords found the Defense Relevant , that the satisfaction of the Apprizing on the Bond did to all effects satisfie , and extinguish the Bond it self .

The Creditors of Balmerino contra The Lady Couper . Eodem die .

THe Deceast Lord C●●per having made an Heretable and irredeemable Right of his whole Estate and Dignity to his Lady and her Heirs : The Lord Balmerino his nearest Heir in the Estate , making use of the Names of certain of his Creditors , that he might not be necessitate to enter Heir , before the event of this Plea , pursues a Reduction of the said Disposition , as being on Death-bed . The Defender alleadged , First , That the Reason of Reduction , as it is Libelled , is not Relevant , that the Defunct contracted a deadly Disease before the making of the Disposition , and that he Died of the said Disease , which is not Relevant , unless the particular Disease were condescended upon , otherwise it will remain conjectural and unsure , and Witnesses cannot distinctly Depone whether he was sick or not , specially he being an oldMan , so that they could not distinguish betwixt sicknesse and weaknesse through old age . 2dly , The Reason is not Relevant , unless the Disease were alleadged to be morbus sonticus , that might affect the Mind , and infer a weaknesse , which is different from Fatuity or Insensibility . 3dly , The Defender alleadged Absolvitor , because he offered him to prove that the Defunct was in Health the time of the Disposition , at least in as good Health as he had been for several years or moneths before , when he did go ordinarly abroad to Kirk and Mercat , about all his Affairs , at least if he had any indisposition , it was not impedimentum rebus agendis , because it is offered to be proven that he constantly put on his Cloaths , and walked up and down his House , convoyed Strangers to their Chambers freely without being helped or supported , and in the same manner went down with others to their Horse to the Green , made several Accompts and Bargains , and frequently Played at Cards , all which must necessarly infer his Health , unless a circumstantial Disease were condescended upon and proven ▪ 2dly , The Defender offered to prove that after the Disposition , the Defunct went to Kirk and Mercat , at least to one or other of them , which the Law hath allowed as unquestionable evidences of Recovery of Health , and which therefore is Relevant , though Sicknesse was specially proven to have been Contracted before , and condescends that the Disposition being Dated the eight of December 1668. upon the Thursday immediatly after , the Defunct went to the Mercat of Couper , it being the Mercat day , and upon the Sabbath thereafter heard Sermon in the Kirk of Couper . The Pursuer answered , that this Reason of Reduction is most Relevant , and in the same Terms , that the Reason of Death-bed has alwayes been Libelled ; neither was it ever found necessar to condescend upon morbus sonticus , but as Craig expresses it sufficit si morbus precedat & mors sequatur , before the Defunct go abroad , yet probatis extremis presumuntur media , it is still presumed that so long as the Defunct after the Disease remained within Doors , that the Disease continued , and that presumptione juris & de jure , neither doth it admit a contrare probation , by alleadging that the Party convalesced medio tempore , otherwise then by his going out to publick Meetings at Kirk and Mercat , nor is there any necessity to condescend on the kinds of Diseases , which even Physitians themselves , and the most skilful can hardly determine . And as to the first Defense , offering to prove that the Defunct was in Health , it is contrare to the Libel , and no ways competent , for in the case of contrare alleadgeances , the Pursuer offering to prove Sickness , and the Defender offering to prove Health at the same time , the Pursuer as being in the Libel must be preferred , especially considering that where such Deeds are procured through importunity from Sick and Weak Persons , who would do any thing to get leave to Die in peace , the Contrivers by the same facility may debar the accesse of any , but such as they have confidence in , and who have cuncurred with them in the Contrivance , so that the Disponers Sicknesse is difficillimae probationis , yet quaelibet probatio sufficit , as in this case within a day or two of the Disposition , my Lord was put to violent nature to attempt to go to the Mercat , and three days after to the Kirk , in both which attempts he failed , which doth sufficiently presume that he was Sick before , and was not able to cover his Sicknesse for a little time to attain the Evidences that Law requires to infer Health , but if a contrare probation should be Sustained , or preferred as more pregnant , and which would be by familiar Persons in the House , and concurrers in the Contrivance , this ancient and excellent Law would easily be elided , and as to the evidences of Health they are no way Relevant , neither are any private acts , but the Law hath justly determined that the Disponer must appear publickly in the solemnest Meetings , that thereby it may be known that he is able to abide the Air , and that matters of this importance be not probable by two picked out prepared Witnesses , but that the samine be cleared by the whole Witnesses of a Kirk or Mercat , which cannot all be Brybed , and no few Witnesses dare adventure to Depone against that common knowledge , so that no private or domestick acts in or about the House can be equivalent to coming to Kirk and Mercat . And as to the second Defense , that the Defunct came out to Kirk and Mercat , it ought to be Repelled , because the pursuer offers to prove that he was supported . The Pursuer answered , that the Reply was not Relevant , unlesse it were condescended quomodo supported , and that it was by upholding the Defunct under the Oxter , or by the Elbow , but it is not Relevant to alleadge that the Defunct took any of the Company by the hand , or that they took him by the hand , especially if it was in rugged or uneven places , in respect of the Defuncts age , and that it is offered to be proven that he was ordinarly accustomed to take these who walked with him by the hand in such places , and for this there was alleadged a Practique lately done by the Lords betwixt Pargilleis and Pargilleis , whereby a Disposition by Pargilleis was Sustained , because he came to the Mercat of Calder , albeit he was helped to and from his Horse , and up and down the Stairs , and that he was not able to tell Money , and was never at the Kirk thereafter : and likewise a Practique in Anno 1647. was alleadged , whereby Graham Merchant in Edinburgh having made a Disposition to his Wifes Daughter , the same was Sustained , because he Lived a long time and did his Affairs in the House , and wrote the Disposition , being two or three sheet of Paper , all with his own hand , which is found sufficient though he did not go out to Kirk or Mercat . The Pursuer answered , that the Reply was most Relevant , even though the supporting were only by the hand , for albeit where there were reiterat acts of going abroad without design , such circumstances would not be noticed , yet where the going abroad was so near to the Disposition , and evidently done to validate the same , it hath been ultimus conatus naturae , and hath not been of custom , but of necessity , so that when such an attempt is made of design , if the Disponer have not so much strength as to walk without the help of any hand , it infers clearly the weaknesse and continuance of the Disease . The Defender repeated his alleadgeance , a●d offered to prove that not only the Defunct went out to Kirk or Mercat , but that he went freely by his own strength , no Body touching him .

The Lords being desirous that neither Party should have the sole probation by picking out such Witnesses as made most for them , but that all the Witnesses might be adduced , did before answer appoint either Party to adduce Witnesses to instruct the Defuncts condition the time of the Disposition , and thereafter , and anent the manner of his going abroad , and there being a great multitude of Witnesses adduced by either Party , the Lords considered the Relevancy and Probation both together , by which the Lords found that the Reason of Reduction was relevantly Lybelled , and that it was sufficiently proven , that the Defunct had contracted the Disease whereof the Died before the Disposition ; and as to the Defense and Reply the Witnesses proved all clearly , that he was supported to the Kirk , and from it , and that he fell a swoond in his return , but the Lords found it not necessare that the Defunct should both go to Kirk and Mercat unsupported , but that either was sufficient , but that where both was attempted shortly after , and upon design , the manifest failing in the attempt in going to the Kirk , did much weaken the prior attempt in going to the Mercat : As to which the Lords did consider that the going free to the Mercat behoved to include the free going to the Mercat place , and returning back from the same , not being supported in any place of the way , so that albeit many Witnesses Deponed the Defunct walked freely , none being by him in some parts of the way coming and going , there was no number of Witnesses that proved his walking freely all the way coming and going , even while he was within the Town , but that many Witnesses proved that he was supported , some in the whole way , and some as to several places , some by the Oxter , some by the Elbow , and most by the hand .

Therefore the Lords found the Reply Relevant of supporting even by the hand , in any place of the way within the Town , whether Even or Rugged , and found the same sufficiently proven , and therefore Reduced the Disposition , albeit the Defuncts custom to take those who walked with him by the hand was also proven , whereunto they had no regard , this going to Mercat being so soon after the Disposition , and so evidently of design to validat it , and the Defunct never having gone out after , except to the Kirk when he was supported , and fell a swoond ; and as to the Practique , that in Anno 1647. was not produced , but it was in consideration of a Sum left to the Church by that Disposition , and was generally cryed out against by all Persons , yet una hirundo , &c. And as for Pargilleis Case , the Lords perused the whole Debate and Testimonies , and found that Pergilleis Lived near a Mile from Calder , and that being an old Guttish Man he was accustomed to be helped to and from his Horse , and that he Rode to the Town , but that he Lighted then and walked freely through the Mercat , and up a Brae to my Lord Tarphichans House , and returned again to his Horse without any help , either by the hand or otherwise , and regarded not that he was helped up and down Stairs , or to and from his Horse , which the Law doth not require , but only the going freely from the Entry of the Town to the Mercat place , and back again unsupported .

The Lords did also find none of the private acts alleadged upon Relevant to prove Health , or equivalent to going to Kirk or Mercat , and that there was no necessity to condescend on particular Diseases .

Ioachim Burnmaster contra Captain Dishingtoun . Iune 29. 1671

CAptain Dishingtoun having obtained a Decreet before the Admiral , Adjudging a Ship taken by him at Sea the time of the late War with Holland , whereof Ioachim Burnmaster was Master , the said Ioachim raised Reduction of the said Admirals Decreet , on these Reasons , that his Ship and whole Goods did belong to the Subjects of Sweden , his Majesties Allies , and who had a particular Treaty with the King , bearing expresly , that no Person should be Seised who had a Swedish Pass , in the Terms particularly exprest in the Treaty ; Which Pass the Pursuer had , and produced when he was taken , and yet he was declared Prize , upon pretence that three of his Company were Hollanders , albeit the Treaty bears expresly that where such a Pass is found ulterius nihil exigatur , & in bona aut homines nullo modo inquiratur , and upon pretence that the Oaths of the Master and Company were contrare to the Pass , and proved that there were other owners then these in the Pass , and other Goods , viz. 15. Hogs-heads of Wine , and a quantity of Wine and Brandy wine , and Paper ▪ and that the Ship in question was not then Bought by the Swedes , nor did not go to , or from the parts mentioned in the Pass , albeit none of these saids points be Material ▪ nor did infer that the Ship , or Loading , or any part thereof did belong to the Kings Enemies , but did belong to the Swedes his Allies and Confederats , so that albeit they had had no Pass , or an unformal Pass , their Goods could not be taken from them , there being no Article in the Treaty declaring , that the not having a full and formal Pass should make such Ships Prize , but only that the having thereof should keep them from all question or inquiry . The Defender alleadged Absolvitor , because the Decreet of Adjudication was justly and Warrantably given , for Contrivances the time of the War being most ordinar ▪ the Dutch did frequently palliat their Trading under the pretence of the Kings Allies ; and in this Case it is evident , that the time of the Pass this Ship was in Holland , of a Dutch Build belonging to an Hollander Residing there , and no pretence of Buying the same by a Swede for a long time after , as appears by the vendition produced , which does not bear that the Ship was sold to any Swede , or for their use , but to a Swedish Factor in Holland , without mentioning to whose use , and so is justly suspect to have been for an other Dutchmans use , especially being found Navigable with three Dutchmen in the Company , and no Swede hath ever yet declared upon Oath that this Ship and Goods belonged to them , for by a Certificat of the Swedish Chamber of Commerce produced , that two Swedes did declare that they intended to Buy a Ship in Holland , called the blew Lilly , and yet the Pass of the same date bears , that they swore that the blew Lilly belongs to themselves and no other , and by the vendition the Name of the Ship was not the blew Lilly , so that all hath been but a Contrivance , and that there is nothing produced that necessarly evinces that the Ship and Goods belonged to the Swedes only , and seing the Pass is so palpably false in all the substantial points required by the Treaty , and by the Oath of the Pursuer himself , he cannot cloath himself with the Treaty , which he hath so grossly transgressed , nor hath he adduced sufficient proof that the Ship and Goods belonged to the Swedes . And whereas it is alleadged , that the being Sailed with Hollanders is no ground of Seisure by the Treaty , the same is opponed , which in the next Article to that alleadged upon for not enquiring in the Men and Goods , bears that Seisure shall not be made where such a Pass is nisi gravis suspitio subsit , and there could be no better ground of suspition , then that the Master when he was taken acknowledged the Contents of the Pass not to be true , or conform to the Treaty , and that a considerable part of the Company were Dutches , and as for any Letters produced , they are impetrate since the War upon misinformation .

The Lords adhered to the Decreet of Adjudication , and Assoilzied from the Reduction , and found the verity of the Pass canvelled by the Testimonies of the Skipper and Company , and the Certificat , and that most of the material requisits in the Passe were wanting , and no sufficient Evidence that the whole Ship and Loadning did truely belong to the Swedes .

Beidmen of the Magdalen Chappel contra Gavin Drisdail . Iune 30. 1671.

IAnet Rud having mortified an yearly Annualrent of a Merk Scots , out of a Tenement of hers to the poor Beidmen of the Magdalen Chappel ; they pursue Gavin Drisdail , now Heretor of the Tenement , for Poinding of the Ground ▪ Who alleadged Absolvitor , because he has bruiked the Tenement free of that Annualrent for more then fourty years , so that the Right thereof is prescribed . It was answered , that prescription runs not against the Poor , and things mortified for pious uses . 2dly , They are in the same condition with Minors , having Overseers chosen yearly . 3dly , The years of prescription must be accompted , abating the times of Pestilence and War , when there was no Session . It was answered , that prescription was the great security of the Leiges , and hath no exception by the Act of of Parliament , but only Minority , and neither by the Civil Law or our Custom , is the time of prescription compted per tempus utile , but per tempus continuum , in regard of the length of the longest prescription .

The Lords Sustained the Defense of prescription , and Repelled the Replyes .

Brody of Lethim and the Laird of Riccartoun contra The Lord Kenmure . Iuly 1. 1671.

BRody of Lethim as having Right from Riccartoun , having several years agoe obtained Decreet against the Tennents of the Mains of Kenmure , thereafter upon a motion for the Viscount of Kenmure the Decreet was stopped , and now the Pursuers desire out their Decreet . It was alleadged that the Cause having lyen over several years , must be wakened . It was answered that there being a Decreet pronunced , there was no more Process depending , and so needed not be wakend . It was answered , that a Decreet though pronunced , not being conditional to a day , but being absolute , and thereafter stopped , in respect the stop takes off the Decreet , the Process is in statu quo prius . It was answered , that the stop doth not recal the Decreet , but only hinders the Extract thereof till the Supplicant be further heard , and it is his part to insist in the Bill , and that it would be of very evil consequence if stopped Decreets were recalled , for then not only wakening would be necessar , but in case the Parties should Die , Transferance should be raised , and seing wakenings are not requisite in concluded Causes , much less after Sentence is pronunced .

The Lords found no necessity of wakening , but allowed the Defender to propone what further he had to alleadge .

Laird of Balfour contra Mr. William Dowglasse . Iuly 4. 1671.

THe Earl of Airlies Estate being Apprized by Mr. William Dowglasse since 1652. after the Legal was expired Mr. William was Infeft , and after his Infeftment , the Laird of Balfour Apprized the same Land , and thereupon pursues the Tennents for Mails and Duties . It was alleadged for the first Apprizer that he must be preferred ; First , Because he has the only Right , having an Apprizing expired , and Infeftment thereon , before the Pursuers Apprizing was Led , so that eo momento that he was Infeft upon his expired Apprizing , the common Debitor was fully Denuded , and there was no Right of Reversion , or any other in his Person that could be Apprized thereafter . It was answered , that by the Act of Parliament 1661. between Debitor and Creditor : It is provided that all Apprizings Led within year and day of the first effectual Apprizing shall come in therewith pari passu , and therefore the Pursuer having Apprized within year and day after the first Apprizers Apprizing became effectual by Infeftment , he must come in with him pari passu by the said Act , which makes no difference of expired , or unexpired Apprizings , and by that same Act the Debitor is not so Denuded by the expiring of the Legal and Infeftment , but that year and day is still allowed to subsequent Apprizers , which in effect is a prorogation of the Legal as to Concreditors . It was answered , that the Act of Parliament is opponed , bearing that Apprizings before , or within year and day after the first effective Apprizing shall come in pari passu , as if one Apprizing had been Led for all , which necessarly imports the calculation of the year to be from the date of the first effective Comprizing and not from the date of the Infeftment or Diligence , for the coming in as if one Apprizing had been for all , must relate to the Decreet of Apprizing , which as it is clear by the Letter of the Statute , so also by the Narrative and Motive thereof , bearing that Creditors did not know the condition of their Debitors Estate , which might be Apprized before they could do Diligence , whereas before they had only the benefit of Reversion , for remeed whereof the Parliament brings in all Apprizings that are before , or within a year , after the first effectual Apprizing , which before would have carried the sole Propert● , and factione juris , states all these Apprizings as Led in one day , so that the remeed is sufficient , by having a full year after the date of the Apprizing , and Correctory Statutes are to be strictly Interpret , and if the date of the Diligence be the Rule , an Apprizing after twenty year might be brought to admit a new one deduced after all that time , and not only so , but the Mails and Duties would belong proportionally to the last Apprizer for twenty years before it was Led . It was answered , that the year indulged by this Act of Parliament to Concreditors , must be from the time the Apprizing is effectual , for the words of the Statute bears , all Apprizings before , or within a year after the first effectual Comprizing &c. so that the year must not run from its being an Apprizing , but from its being an effectual Comprizing , and so from the Infeftment or Diligence , neither is the inconvenience shunned otherwise , for the only way then known for publication of real Rights was the Register of Seisings , and not the Register of the Allowance of Apprizings , which is only made necessar by an Act since , and it is very easie to make simulate executions of Apprizings , by taking away the Copies of Denunciation of the Ground , and Citation at the dwelling House of the Debitor , but if once a Seising be in the Register , all provident men take notice thereof , and albeit a Charge be sufficient in stead of a Seising which is not Registrat , yet the ordinar way of compleating Apprizings , which the Law notices is Infeftment , and seing Apprizings are now rigorous Rights , carrying any Estate without consideration of the value , Acts Correctory of them ought to be extended ex aequo , and the more wayes Concreditors have for getting notice of the Apprizing of their Debitors Estate the better , neither are the evil consequences upon the other hand of any moment , it being the first Apprizers fault ( if not his fraud ) that he obtains not Infeftment , or does Diligence therefore , for he may of purpose lye dormant , not only till year and day run , but untill the Legal expire , and thereby cut off the Diligences of all other Creditors , as in this very case the irredeemable Right of an Earldom shall be carried for 1500. pounds , and all the other Creditors excluded , so that the Apprizing is so far from making the case better , that it makes it much worse , as latent and fraudulent , for it cannot be imagined that if the second Apprizer had known that the first Apprizing was Led , but that he would have used Diligence within the year , at least within the Legal , for so soon as he saw a Seising in the Register , he did immediatly Apprize .

The Lords preferred the first Apprizer , and excluded the second , and found that the year is to be reckoned from the date of the first effectual Apprizing , and not from the Diligence , whereby it becomes effectual . In this Process the Lords Sustained this Reply , that the first Apprizing was to the behove of the common Debitor , or his eldest Son , and that they would purge the same by payment of what Sums were truly payed for it to the Apprizer , according to the said Act of Parliament 1661. without any Reduction or Declarator .

Helen Hume contra The Lord Iustice Clerk . Eodem die .

THere being a Bond granted by the Laird of Rentoun to Helen Hume his Daughter , obliging him and his Heirs to pay the Sum to her at her Age of ten years compleat with Annualrent , so long as she should suffer the same unpayed , and then subjoining this Clause , that in case she should die unmarried the Bond should be void : Whereupon the said Helen pursues the Lord Justice Clerk her Brother , who alleadged upon the foresaid Clause , that the effect thereof must necessarly be , that the said Helen should make no voluntare gratuitous Right in prejudice of her Father or his Heirs , that the Sum should return if she were not Married . It was answered , that this Clause not being the ordinar Clause of Substitution . Provision , or Return , cannot be understood a Suspensive Clause , hindring the lifting of the Money , neither yet a resolutive Clause in case the Pursuer Marry not , but it can only have the effect of a Clause of Substitution , that if the Pursuer died Un-married , and the Sum un-uplifted , or Disponed ; her Fathers Heir is preferred to her own Heir , or nearest of Kin , for the Term of payment being her age of ten years , she might then lift the Sum , and there is no provision to reimploy it of this Tenor , or to find Caution to Restore , if she were not Married . It was answered , that this Clause cannot be interpreted as a naked Substitution , but as a condition of the Bond , equivalent to that which is frequent in Provisions of Children , and Contracts of Marriage , that in case the Party had no Children , the sum should return , which was always interpret more than a single Substitution , and to import a Condition or Obligation against any voluntar Deed , or Disposition : And though the Party be thereby Feear of the Sum ; yet it imports a limited Fee , with a Provision to do no Deed in the contrair , without a Cause onerous : and albeit Re-imployment of the sum be not exprest in this Bond , it is implyed in the nature of it .

The Lords found , that seing the Bond had a particular Term , and no Condition to Re-imploy : and the question now was only of voluntar Dispositions , without Causes onerous , whereof there was none at present existent . The Lords Decerned the Sum to be payed to the Pursuer , reserving to the Defender his Reason of preference against any Disposition , or Assignation , without a Cause onerous , if the same should happen to be made .

Iohn Mccrae contra Lord Mcdonald . Iuly 6. 1671.

JOhn Mccrae as Heir to John Mccrae his Goodsire , pursues the Lord Mcdonald , as Heir to his Goodsire , for payment of a Bond of 400. merks in Anno 1629. granted by the Defenders Goodsire to the Pursuers Goodsire . The Defender alleadged absolvitor , because the Bond is prescribed . The Pursuer replyed , that the Prescription was impeded , partly by Minority , and was interrupted by a Citation at his Instance , against the Lord Mcdonald . It was answered , that the first Citation made , was null , being at the Mercat Cross of the Shire , by Dispensation , upon an unwarrantable suggestion , that there was not safe access to him , which has been past of Course by the Servants of the Bill-Chamber , whereas they ought specially to have represented the same , and the consideration thereof to the Lords ▪ and so being surreptitiously obtained , periculo petentis , it can import no interruption . 2dly , The Execution at the Mercat Cross , bears no leaving , or affixing of a Copy . And as for the second Citation , it is but one day before the fourty years be compleat , which being so small a time , is not to be regarded in Prescription , nam Lex non spectat minima , and it is also null , though it be done personally , as falling with the first Execution .

The Lords found that the first Citation was sufficient to interrupt Prescription , although it had not been formal , through want of a Copy , and declared they would sustain the Process thereupon , if the leaving of a Copy were added to the Execution subscribed by the Messenger , and abidden by as true . They found also , that the second Citation was sufficient interruption , though within a day of compleating the prescription , which was to be reckoned punctually de momento in momentum .

Strachan contra Gordouns . Iuly 7. 1671.

STrachan pursues Gordouns for a Spuilzie of four Oxen taken away from them by violence , being then in their Plough by George and William Gordouns and others . The Defenders alleadged absolvitor , because they offered them to prove , that the Oxon were their proper Goods , and were stollen from them , and that thereafter they were found straying upon the Pursuers Ground , and that they were proclaimed as Waith-goods by the Sheriff , and that by the Sheriffs Order direct to his Majors , the Defenders intrometted with them , and so did no wrong . The Pursuer Replyed , that no way granting the verity of the Defense , the same ought to be Repelled , because they having the Oxen in question , in their peaceable Possession four Months , they ought not to have been disturbed in their Peaceable Possession , in this Order , without the Citation or Sentence of a Judge : So that the Defenders having unwarrantably and violently Dispossessed them , spoliatus ante omnia restituendus , and they may pursue for Restitution as accords ; but the Pursuers are not now obliged to Dispute the Point of Right . 2dly , If need beis , they offer to prove that they acquired the Goods from the Laird of Glenkindy their Master , so that being Possessors bona fide cum titulo , they could not be summarly Spuilzied , or Dispossessed : For albeit stollen or strayed Goods may be summarly Recovered , de recenti , or from the Thieves ; yet cannot so be taken from a lawful Possessor , acquiring bona fide .

The Lords found the Defense Relevant , and admitted the same to the Defenders Probation : and found also that part of the Reply Relevant , that the Pursuers did Possess bona fide , by an onerous Title , Relevant to elide the Defense though it were proven , as to the Restitution of the Oxen to the Pursuer , and the ordinar profits thereof , but not the violent profits , for they found the Sheriffs Warrand being instructed , would excuse from the violent profits : but they found that the Defenders naked Possession , though for four months , by having the Goods in the Plough , would not infer Restitution or Spuilzie , but that the Goods being stollen or strayed , might be recovered Summarly .

Laird of Polmais contra The Tradsmen of Striveling . Eodem die .

THe Tradsmen of Striveling having Charged and troubled the Laird of Polmais Tennents , about St. Ninians Kirk , upon the Act of Parliament , prohibiting Workmen to exercise their Trades in the Suburbs of Royal Burrows , Polmais raised a Declarator for freeing of himself and his Tennents of the saids Charges , and that they might freely exercise all their Trades , especially about the Kirk of St. Ninians , which is about a Mile from Striveling , which being Dispute , and it condescended upon , that St. Ninians being a mile from Striveling , could no ways fall under the Act of Parliament , and could not be interpret a Suburb , being no ways adjacent to the Town .

The Lords found the Declarator and Condescendence Relevant , and Decerned .

Andrew and Adam Stevins contra Cornelius Neilson . Iuly 11. 1671.

ANdrew Stevin having made a Disposition of his Lands to Cornelius Neilson his Good-brother , and thereafter another Disposition to his Brother Adam Stevin . They pursue a Reduction of Cornelius Disposition . First , As being upon Trust , and only for the security of a thousand merks , whereanent , it being Debated anent the manner of Probation and Witnesses , ex officio , being craved for clearing the Trust by the Writer , Witnesses and Communers .

The Lords refused to Sustain the same , till first they considered the other Reason of Circumvention , which was Libelled thus , That the Disponer was a lavish , weak person , that the Disposition was elicite by his own Good-brother , for a thousand merks only , and that he keeped him privatly from the access of all other Friends , and drank him drunk , in which condition he was when the Disposition was Subscribed , and that it was not Read unto him , and it being excepted upon a Ratification , some Weeks after at another place , and the Reason of Circumvention repeated on the same Terms against that Ratification .

The Lords ordained Witnesses to be Examined ex officio , upon the Reason of Circumvention as to both , and specially , whether these Writs were Read at the Subscribing , and whether the Subscriber was Drunk , and whether he was thereby insensible or disordered in his Reason , or what were the Motives induced him to Subscribe .

Sir George Maxwel contra Maxwel of Kirkonnel . Eodem die .

SIr George Maxwel of Nether Pollock , pursues Maxwel of Kirkonnel , for payment of a Debt of his Fathers , as behaving himself as Heir by intromission with the Mails and Duties of his Fathers Lands of Kirkonnel . The Defender alleadged Absolvitor , because his Father was Denuded , and an Appryzer Infeft , and so could have no Heir in these Lands . It was Replyed , that notwithstanding of the Appryzing , the same remained Redeemable , and the Defunct remained in Possession , and the Defender his appearand heir , did continue his Possession , and so has behaved as Heir ; and though he had had a Right or Warrand from the Appryzer , yet during the Legal , it is immistio , having no other Cause nor Title . It must be presumed to be granted to him as appearand Heir , much more where he hath no Warrand from the Appryzers . 2dly , It is offered to be proven the Appryzers were satisfied by intromission , and what is wanting , the Pursuer offers to satisfie the same at the Bar ; for by the Act of Parliament 1661. betwixt Debitor and Creditor , Appryzings acquired by appearand Heirs , may be satisfied by the Defuncts Creditors , for the sums they truly payed out by the space of ten years : So that the Defender ought to condescend , and Depone what he gave out , and to count for his Intromission , and what is wanting , the Pursuer will pay . The Defender answered , that behaving as Heir , being an odious , universal , passive Title , any colourable Ground is sufficient to restrict it to the value intrometted with . And as to the offer to satisfie the Defender of the Appryzing , to which he has Right . It is not competent , hoc ordine ; for by the Act it is only introduced in favours of other Appryzers , and the Pursuer is a meer personal Creditor , without any Appryzing . It was answered , that the Narrative of that part of the Act , bears it expresly to be in favours of Creditors , and though the subsumption is only applyed to Appryzers , yet it is not exclusive , and by the common Custom , satisfaction of Appryzings by intromission , or present payment , is ever received by Exception or Reply .

The Lords found that behaving as Heir is sufficiently elided by any Right or Warrand from the Appryzers , as to intromission thereafter ; or that if the Defunct died not in Possession , But that the Appryzers had then , or thereafter attained Possession , before the intromission . But found that the appearand Heirs continuing in the Defuncts Possession without a Warrand , did infer behaviour , and that the offer to purge the Appryzing at the Bar , was competent , hoc ordine ▪ without burdening the Creditors with the Expenses of Appryzing , to make the appearand Heir lyable for what he intrometted with ; and that the appearand Heir should assign the Appryzing , whereupon the Creditor might continue Possession till he were satisfied of the sums now payed out .

Robert Lermont contra The Earl of Lauderdail . Iuly 12. 1671.

SIr Alexander Swintoun having Disponed his Estate of Swintoun , to Iohn Swintoun his Son , in his Contract of Marriage , there is a Clause therein , on thir Terms , that it shall be leisom to the said Sir Alexander , to affect and burden the Estate with Infeftments of Wodset or Annualrent , for the sum of fifty four thousand merks , for his Creditors and Bairns ; thereafter Sir Alexander grants a Bond of 1400. merks to the Laird of Smeatoun , and declares it to be a part of the fifty four thousand merks , whereof 2000. merks being now in the Person of Robert Lermont . He pursues the Earl of Lauderdail , as now come in the place of Iohn Swintoun by his Foresaulture , to pay the sums , or at least , that the Lands is , or may be burdened therewith , because the Forefault Persons Infeftment being qualified with the said Reservation , it is a real Burden affecting the Estate , and Swintouns Infeftment being publick , and thus qualified and burdened , was as to this point , the Creditors Infeftment , and his being Forefault , could not prejudge the Creditors , as to this real Burden , in a publick Infeftment , granted by the King . The Defender alleadged , that the Libel was not Relevant , for the Reservation being a meer Power of Burdening by Infeftment , it cannot be pretended that the Forefault Persons Infeftment is sufficient therefore . But seing Swintoun made no use of that power , albeit it might have been sufficient against Swintoun the Contracter , or his Heirs : It cannot militate against the King or his Donator , to whom the Fee returns by Forefaulture without any Burden , but what the King has consented to by publick Infeftments or Confirmations : And though old Swintoun had given the Pursuer a base Infeftment , it would have fallen by the Forefaulture , not having been Confirmed , much more when there is no Infeftment .

The Lords found the Libel not Relevant , and Assoilzied .

The Heirs of Mr. Thomas Lundy contra Earl of Southesk and others . Eodem die .

THe Estate of Sir Iames Keith of Powburn being Appryzed by several of his Creditors , they now compet for preference . Mr. Thomas Lundie who led the first Appryzing , was more then year and day before the rest , and thereupon his Heir craved preference . It was alleaged the Apprizing was null : First , Because it proceeded upon a Bond , carrying a Clause of Requisition , and the Claim of the Appryzing , did not Libel thereupon , so that albeit it be now produced and done debito tempore : Yet the Claim was not sufficiently instructed without it . 2dly , The Messenger did unwarrantably continue the Court of Appryzing till another Dyet , without any necessar Cause , which was never accustomed before , and is of very evil consequence , for thereby Messengers at their pleasure may continue , and weary out the Persons concerned , who might propone Defenses , or produce Suspensions , and are not obliged to attend the pleasure of the Messenger . 3dly , The Appryzing was at the Beitch-hill of Cowper , which is not within the Shire where the Lands ly : And albeit there be a Dispensation in the Letters , that ought not to have been granted , because Appryzings should only be in the head Burgh of the Shire , or in communi patriâ at Edinburgh , but especially seing the Warrand was obtained from the Lords of course , among the common Bills , without being Read or considered , and so is periculo petentis , and cannot prejudge the more formal Diligence of other Comprizers , especially seing Lundy Appryzed of new for the same sums , which will come in pari passu with the rest , being within year and day . It was answered , that it is inherent in all Jurisdictions to continue Processes to new Dyets , having keeped the first Dyet , and that the Messenger by the Letters is Constitute Sheriff , and there is no question but Sheriffs might , and did prorogate Dyets in Appryzings , and the Letters bears Warrand to fix Courts , one or more , and for the continuation , it was but to the next day , in regard of a great Speat , the Appryzing being upon the hill in the open field , the time of Rain , and it being m●dica mora , to the next day , which will give no Warrand to an Arbitrary continuation by Messengers , to what Interval they please . And as for the place , The Lords by Dispensation may appoint what place they see convenient ; and albeit the Dispensation had been of course , and that therein the Clerks had failed , yet the Parties obtainers of such Dispensations are secure thereby , and ought not to be prejudged .

The Lords Sustained the Appryzing , and found the Requisition now produced sufficient , and found that the continuing of the Dyet for so short a time , to be no ground of nullity , unless the Competitors could alleadge a special cause , that they did or might alleadged , whereby they were prejudged by leading the Appryzing the second day , rather than the first . The Lords did also Sustain the Dispensation of the place ; and having perused the Practique produced , at the Instance of the Lady Lucia Hamiltoun , anent an Appryzing , led at Glasgow by Dispensation : They found that the Lords did not annul the Appryzing on that Ground . But the Lords ordained , that no Bill bearing Dispensation , should pass of Course in time coming , but upon special Reasons , to be con●idered by the Lords , or the Ordinary upon the Bills ; and that Messengers should not continue the Dyets in Appryzings , but upon necessar Causes ; and ordained an Act to be insert in the Books of Sederunt for that effect .

Adam Gairns contra Isobel Sandilands . Eodem die .

ADam Gairns pursues Isobel Sandilands , as Representing her Father , to pay a Debt of his , and specially as behaving as Heir , by uplifting the Mails and Duties of a Tenement , wherein the Father Died Infeft , as of Fee , in so far as by Contract of Marriage betwixt Thomas Sandilands her Father , and Iohn Burn , and Isobel Burn his Daughter , The said Iohn Burn provided the said Tenement in thir Terms , viz. after the Obligements upon the Husbands part , it follows thus ( For the which Cause the said Iohn Burn binds and obliges him to Inseft Thomas Sandilands , and the said Isobel Burn , the longest liver of them two in Conjunctfee or Liferent , and the Heirs between them , Which failzying , the said Isobel her Heirs and Assigneys whatsomever ) By which Provision her Father being Feear and Infeft , the Defender is lyable . The Defender alleadged absolvitor , because by this Provision of the Conjunctfee of this Tenement , Isobel Burn the Defenders Mother was Feear , and her Father was but Liferenter , in respect the Termination of the Succession is to the Mothers Heirs , yea , and to her Assigneys , which necessarly imports , that she had power to Dispone . And it is a general Rule in Succession of Conjunct-Feears , that that Person is Feear upon whose Heirs the last Termination of the Tailzie or Provision ended , especially in this Case , where the Right of the Tenement flowes from the Womans Father . So that if there were any doubtfulness , it must be presumed , that the Fathers meaning was to give the Fee to his Daughter , having no other Children : Neither is this Land Disponed nomine dotis : And the Defender stands Infeft by Precept of Favour , as Heir to her Mother , and thereby bruiks bona fide , and her Infeftment must Defend her till it be Reduced . The Pursuer answered , that by the provision , the Husband was Feear , and the Wife was only Liferenter , because though the last Termination doth ordinarly rule the Fee : yet this is as favourable a Rule , that in Conjunct Provisions , potior est conditio masculi , and though the Termination be upon the Wifes Heirs whatsomever , yet they are but Heirs of Provision to the Husband , and he might have Disponed , and his Creditors may affect the Land , which holds in all Cases , except the Lands had been Disponed by the Wife her self , without a Cause onerous . But here the Husband is first named , and it is but a small parcel of Land , beside which , there is no other Tocher ; So that though it be not Disponed , nomine dotis , Yet being Disponed ( for the which Causes ) it is equivalent , and in the same Contract , the Husband is obliged to provide all Lands that he shall Acquire , or succeed to , to himself and his Wife , the longest liver of them two in Conjunct-fee or Liferent , and to the Heirs between them , Which failzying , the one half to the Husbands Heirs , and the other half to the Wifes Heirs and their Assigneys , and it cannot be imagined , that the meaning of these Clauses was , that the Fee of the Mans Conquest and Succession , should not be all Constitute in himself , but that the Wife should be Feear of the half . And in like manner , the Fathers meaning is clear , because the Clause bears not only in Contemplation of the Marriage , but for sums of Money received by the Father , which albeit left blank in the Contract , yet it cannot be thought , that in such a Narrative , he intended to make his Daughter Feear . And as for the adjection of her Assigneys , it is only ex stilo , for Assigneys is ever added after the last Termination of Heirs , and does always relate to all the Feears , and would extend to the Heirs of the Marriage , their Assigneys as well , as to the Wifes Heirs failing them . Likeas , Assigneys isin the same way adjected to the Clause of Conquest , wherein there is no ground to imagine that the Wife is Feear : and both bears the Husband and Wife to be Infeft in Conjunct-fee , or Liferent .

The Lords found that by this Provision , and Infeftment thereon , the Husband was Feear , and the Wife only Liferenter , and found no necessity to Reduce the Defenders Infeftment , as Heir to her Mother , not proceeding upon a Retour , but a Precept of Favour , But they found that the dubiousness of the case was sufficient to free her from the passive Title of Behaviour , but only for making forthcoming her intromission , quoad valorem : But it was not Debated nor Considered , whether as bonae fidei Possessor , by a colourable Title , being Infeft as Heir to her Mother , she would be free of the bygones , before this Pursuite .

Marjory Murray contra Isobel Murray . Eodem die .

UMquhil Murray having Infeft Isobel Murray his Wife in two Tenements , did thereafter by his Testament , leave a Legacy of a thousand pounds to their Daughter Marjory Murray , and gave other Provisions to the said Isobel his Wife , and provided his Daughter to the two Tenements : Which Testament his Wife Subscribes , and after his Death Confirms the same , but under Protestation , that her Confirmation should not prejudge her own Right . The Daughter pursues for the Legacy of 1000. pounds , and for the Rents of the Tenements , and alleadges that the 1000. pounds must be free to her , without being abated by Implement of the Mothers Contract ; And likewise the two Tenements by her Mothers consent and subscription . It was answered , that the Mothers subscription was a Donation betwixt Man and Wife , for being to the Mans Daughter , whom by the Law of Nature he is obliged to provide , it was all one as if it had been to himself . 2dly , her Subscription was obtained in luctu , her Husband being near his Death , and at his desire , ex revèrentia maritali , and the Confirmation can be no Homologation , because of the Protestation foresaid . It was answered , that it was protestatio contraria facto : and the Wife had no necessity to do it , for she might have Confirmed her self Executrix Creditrix .

The Lords found that there was here no Donation between Man and Wife , but in respect the Parties had not Debated the effect of reverentia maritalis , ordained them to be heard thereupon , and found the Protestation sufficient to take off the Ratification , or Homologation by the Confirmation , and found the Legacy of 1000. pounds to be left only according to the nature of a Legacy , out of the Defuncts free Goods , and would not exclude the Relict , or any Creditor .

Sir David Dumbar of Baldune contra Sir Robert Maxwel . Iuly 14. 1671.

SIr David Dumbar of Baldune being Infeft upon several Appryzings in the Estate of Kirkcudbright , pursues Reduction and Improbation against Sir Robert Maxwel of Orchartoun , of all Rights of the said Estate , granted by Baldune himself , or by umquhil Iohn Lord Kirkcudbright , or Thomas Lord Kirkcudbright , or any of their Predecessours , to whom they may Succeed jure sanguin●s , to the Defender . It was alleadged no Certification of any Writs made by the Predecessours of Iohn or Thomas , Lords Kirkcudbright , to whom they might succeed , jure sanguinis , because that can be no active Title to the Pursuer ; for if Iohn Lord Kirkcudbright himself were pursuing a Reduction , he would not have a sufficient active Title , to Reduce the Writs made by any Person to whom he was appearand Heir , unless he had been actually Heir : So neither can the Pursuer his Appryzer , have further interest then Lord Iohn himself : for albeit the Clause is Relevant passive against the Defenders , to produce all Writs made to them , or to their Predecessours , to whom they may succeed , jure sanguinis , because Reductions and Declarators are Competent against appearand Heirs , without any Charge to Enter Heir : Yet they are not competent to appearand Heirs , till they be actually Entered . It was answered , that the Pursuer being publickly Infeft , has good interest to call for all Writs that may burden the Land , to the effect he may improve the same , as an impediment hindering his Infeftment : But specially an Appryzer who has not his Authors Rights , and that this has been always the stile of the general Clause in Improbations .

The Lords found the Defense Relevant , and would grant Certification against no Writs , but such as were granted by person , whose Infeftments and Retours should be produced before Extract .

The Defender further alleadged , no Certification against any Rights made by Thomas or Iohn Lords Kirkcudbright , to the Defender , because no person was called to Represent them : Whereas it is known that George , Lord Iohn's Nevoy , is both appearand Heir-male and of Line , and that this has been the common Defense always Sustained . The Pursuer answered , that the only ground of this Defense , is when Defenders have Warrandice from their Authors ; and therefore the Pursuer ought to call their Authors , that their Rights in●erring Warrandice upon them , may not be Reduced , they not being heard : But here the Defender produces no Right from Lord Iohn , or Lord Thomas , and so the alleadgeance is not Relevant against the Production , but only in case such Rights be produced , it will be Relevant , when the Pursuer insists to Reduce the Writs produced .

The Lords Repelled the Defense , and reserved the same , if any Right should be produced by the Defender , bearing Warrandice .

Laird of Milntoun contra Lady Milntoun . Eodem die .

THe Laird of Milntoun having insisted in an Improbature against the Lady Milntoun , for annulling a Decreet of Divorce , obtained at her instance against Iohn Maxwel her Husband , the Relevancy whereof was Discust upon the 31. day of Ianuary 1671. and only the manner of Probation of the Corruption of Witnesses , by prompting them how to Depone , or by promising , or giving them Bribes , or any good Deed to Depone , more than their ordinar Charges , remained undiscust . It was alleadged , that such Reprobators were only probable by Writ , or Oath of the Party adducer of the Witnesses , post sententiam latam , for Reprobators upon Corruption , albeit they might be proven before Sentence , by Witnesses above exception as to giving of Bribes , which was a palpable Fact , yet not then , by prompting , or promising , or any words emitted , which are only probable by the Witnesses adduced , or by the Oath of the Adducer : Neither in that case , if the Witnesses adduced be above all exception , can Witnesses be adduced against them , but only their own Oath , or Oath of the Party : So that any Party that quarrels Witnesses by Reprobators , ought to do the same after they are adduced ▪ and before Sentence ; but if Sentence be once pronunced , and Extracted , it is res judicata , quaepro veritate habetur : And if Reprobators upon corruption , be used after the Sentence , upon Corruption ; the same can only be probable by the Oath of the Adducer : And neither by the Oath of the Witnesses adduced , who cannot annull their own Testimony , post jus quaesitum parti , nor by other Witnesses : and if it were otherwise , the greatest inconveniencies would follow : for then the Sentence and Securities of the people , founded thereon , might for fourty years space be quarrelled upon pretence of corruption , and singular Successors acquiring bona fide , might be outed of their Rights : As also , there shall be no Termination of Process ; for as the first Sentence may be Canvelled by Reprobators against the Testimonies , whereupon it proceeded : so may the second be Canvelled in the same manner by a second Reprobator , and so without end . And seing the Law of this Kingdom hath been so jealous of Probation by Witnesses , that it hath not allowed sums above 100. pounds to be proven thereby : So Witnesses should not be admitted in Reprobators , especially after Sentence . It was answered , that Reprobators being a necessar remeed against the Partiality and Corruption of Witnesses : and the question being only , the manner of Probation , by the Law of God and all Nations , Witnesses are the general mean of Probation , and so ought to take place in all Cases , where Law or Custom hath not restricted the same , and it cannot be pretended , that ever there was one Decision of the Lords finding Reprobators only probable scripto vel juramento : And it being acknowledged , that Witnesses are competent , ante sententiam , there is neither Law nor Reason to refuse the same , post sententiam , especially with us , where the Names of the Witnesses are never known till they be produced , neither is their Testimonies published , or ever known before Sentence : So that the other Party can have no interest to quarrel their Testimonies , or know them before Sentence , and so Reprobators shall never be effectual , unless proven by the Oath of the Party , that hath Corrupted them , which is as good as absolutely to refuse Reprobators ; for it cannot be imagined that a Party will Corrupt Witnesses , and not resolve to deny it upon Oath . And as ●o the inconvenience to singular Successors , the Oath of the Author may be as hazardous to them as Witnesses : and if the acquirer of the Sentence be denuded , if in that Case , even their Oath be not receivable , it is easie to Evacuat all Reprobators . And as for the inconvenience of perpetuating Processes , that holds , whether Witnesses be receivable in Reprobators before Sentence or after , and if admitting of Witnesses be so qualified , that it be only when the Witnesses in the first Sentence , are not above Exception , and the Witnesses in the Reprobators above all exception , and that it be in a palpable Fact of receiving Bribes , and recently only after Sentence , and with a liberty to the Obtainer of the Sentence , to astruct the same by other Witnesses , or Evidences , as in Improbations ; for Reprobator is a kind of Improbation , there can be no hazard of multiplying Reprobators , but this inconvenience , if it were Relevant , would not only take away all Reprobators , but all Reductions , for the Decreet Reductive may be quarrelled by a second Reduction , and that by a third , and so without end . But the inconvenience on the other hand is far greater , that all Parties will be sure to Corrupt Witnesses , if they do but resolve not to confess it , and Witnesses will be easie to be Corrupted , being secured against all Redargution : And whereas it is pretended , that Witnesses with us prove not above 100. pounds , that is only where Writ may , and uses to be adhibite , in paenam negligentium : But otherwayes Witnesses are adhibite in the greatest matters , as Improbation of Writs , Probation of Tenors , Extortion , Circumvention , Spuilzies , Ejections , and Intromissions of whatsomever kind or quantity .

The Lords found Reprobators upon Corruption , and prompting of Witnesses , only probable scripto vel juramento , after Sentence , this was contrair the opinion of many of the Lords , and was stoped till a further hearing at the Bar.

Earl of Hume contra The Laird of Rislaw . Iuly 18. 1671.

THe Kirk of Fogo having been a Kirk of the Abbacy of Kelso , when the same was Erected ; this Kirk was reserved in favours of the Earl of Hume , and Disponed to his Predecessors , whereupon he pursues the Laird of Rislaw for the Teinds of his Lands , as a part of the Teinds of Fogo , who alleadged absolvitor , because his Predecessors obtained Tack of their Teinds from the Minister of Fogo , as Parson thereof , which Tack , though it be now expyred , yet he bruiks , per tacitam reloca●ionem . The Pursuer Replyed , that his tacite Relocation was interrupted by Inhibitions produced . The Defender answered , that the Inhibitions were only at the instance of the Earl of Hume , who was never in Possession of his Teinds , whose Right he neither knew , nor was obliged to know , and the Earl ought to have used Declarator against the Defender , and the Parson of Fogo his Author ▪ which was the only habile way , and not the Inhition .

The Lords Sustained the Processe upon the Inhibition , and restricted the Spuilzie to wrongous Intromission , unless the Defender could propone upon a Right in the Person of himself , or his Author , that could either simply exclude the Earls Right , or at least give the Defender ▪ or his Author the benefite of a possessory Judgement , and put the Earl to Reduction or Declarator .

Whereupon the Defender alleadged , that the Parson of Fogo was presented by the King , as Parson of Fogo , and did so bruik by the space of thirteen years , which was sufficient to Defend him , in judicio possessorio . It was Replyed , First , That the Minister cannot pretend the benefit of a possessory Judgement , because his Possession was not peaceable , in so far as it was within the thirteen years , it was interrupted by the Pursuers Inhibitions . The Defender answered , that he offered to prove thirteen years Possession , at least seven years peaceable Possession , before any Inhibition , which is sufficient ; for as thirteen years Possession makes a presumptive Title , decennalis & triennalis possessor non tenetur docere de titulo : yet where the Defender produces a Title , viz. a Presentation as Parson , he is in the common Case of a possessory Judgement upon seven years Possession . The Pursuer further Replyed , that albeit the seven years were peaceable , and sufficient for a possessory Judgement ; yet the Defender cannot maintain his Possession by tacite Relocation , for he having no positive Right in his Person , his Tack being Expired , he can only maintain his Possession upon his Authors Right , as Parson , and so can be in no better Case than his Author , who if he were compearing , not pleading the benefite of a possessory Judgement , he would be excluded by this Reply , that he had acknowledged the Earls Right , and taken Assignation from him to the Tack-duty , due by the Defender , which , though it would not be sufficient after the Defenders Tack , to exclude the same , if it were not expired , yet it is sufficient against his tacite Relocation , which can only subsist , while his Author hath Right and Possession , and being but a presumptive continuation of the Right , it is easily taken away by any Deed of the Author . It was answered , that tacite Relocation being introduced by Law , was as strong as a Prorogation , and continuation of the Tack , which could not be prejudged by any posterior Deed of the Parson .

The Lords found the Defense upon the Parsons Right cled with seven years peaceable Possession Relevant in judicio possessorio , to defend the Defenders tacite Relocation , but found the Reply Relevant , that the Parson had accepted Assignation from the Pursuer , to make the Defender lyable for the ordinary profits , after the Assignation , and after the first Inhibition , but only for the Tack-duty till the first Inhibition , and found that the tacite Relocation was not in a like case , as if the Defender had a Tack , or Prorogation .

Andrew Harlaw contra Agnes Hume . Iuly 18. 1671.

ANdrew Harlaw having obtained Decreet against Agnes Hume , as Executrix to her Husband : She Suspends and raises Reduction on this Reason , that the inferiour Judge did wrong in Decerning her , being only Executrix Creditrix , as being lyable for the whole Inventar , because by the Law and Custom of this Kingdom , Executors Creditors , who Confirm only for obtaining payment of their Debt ▪ are lyable for no more but what they intromet with above the Debt due to them , and are not lyable for further Diligence as other Executors : Yea it was found upon the 11. of Iune 1629. observed by Dury , that an Executor having no interest , was not lyable for Diligence , but only to Assign in the Case betwixt Nivin and Hodge . It was answered , that Executors Creditors are lyable for intromission and omission as other Executors , because they accept an Office , and exclude others who would be lyable for Diligence , and they have no more advantage , but that they are preferred to others as being Creditors , and may pay themselves in the first place , and it would be of pernicious consequence , if their negligence should cause the interest of Children , though Orphants , as well as Creditors to perish ; and therefore the Lords did justly in Anno 1667. in the Case betwixt Bisket and Greig , find an Executor Creditor lyable for the whole Inventar , both for Intromission and Omission . It was answered , that it hath always been heretofore holden , that Executors Creditors were not in the case of other Executors as to Diligence , and that the ordinar Remeed was , that Creditors might pursue the Executor Creditor , and thereupon would obtain Assignations to any Debts in the Inventar they pleased , except such as had been uplifted by the Executor , for their own payment ; upon which Assignations they did always pursue for themselves , so that there was neither Exclusion nor obstacle to the Creditors , but on the contrair , they got Assignations , without being at the trouble to Confirm : So that this Confirmation being many years ago , it were against all Reason to make the Executors Creditors further lyable than they were then esteemed to be , which might also be drawn back against all Executors Creditors , which are very many .

The Lords having considered the Decision betwixt Bisket and Greig , that it was upon a recent Confirmation , and in favours of a Wife for her Provision , out of whose hands the Executor had recovered the Goods , though she was a priviledged Creditor : They found that this Executor Creditor being long before Confirmed , was not lyable for Diligence , but only for Intromission , and resolved to take it into consideration , whether Executors Confirming in time coming , should be lyable for Diligence , and to consider the inconvenience on both parts , and to make an Act of Sederunt thereanent .

Countess of Cassils contra Earl of Roxburgh . Eodem die .

THe Countess of Cassils in her Contract of Marriage with the Lord Ker , being provided to 5000. pounds , he did stante matrimonio , provide her to an Annualrent of 10000. merks further during her Lifetime , and upon his Death-bed , he made two Testaments of one date , by the one he nominate his Father Tutor to his Children , and left to him the Provisions of his Wife and Children , by the other he provided his Lady to 5000. pound more than her Contract , and named Provisions for his Children , but subjoyned a Clause , that if his Father , who was then in England , returned and made use of the other Testament , that this Testament should be null ▪ The Earl of Rox●urgh his Father did return , and was Infeft as Heir to his Son , and did Ratifie his Sons Bond of Provision of 10000. merks , and by his Testament , did expresly mention his Sons former Testament , and by vertue thereof named Tutors to his Oyes , and by a Bond a●part , gave different Provisions to them , from these appointed by their Fathers Testament , and this Earl of Roxburgh being Heir of Tailzie to him , did in his Contract of Marriage reserve the Pursuers Infeftment of this Annualrent , and did many years satisfie and take Discharges of the same ; and now she pursues the Earl , as contraverting the payment for some years bygone , and in time coming during her Life . The Defender alleadged absolvitor , because the Pursuer being competently provided by her Contract of Marriage , this additional Provision was a Donation betwixt Man and Wife , and so by the Law is Revockable at any time during the Husbands Life , even upon Death-bed , or by his Testament , not only by a direct Revocation , but by any thing that might import a change of his mind , and accordingly he hath Revocked the same by his Testament produced , adding only 5000. pounds to his Ladies Provision by her Contract , and albeit thereafter the late Earl did Ratifie and acknowledge this additional Provision , yet therein they were errore lapsi , not having known of this Testament of the Lord Ker , at least not having understood that it imported a Revocation of this Provision , and therefore may justly now Reclaim against it . The Pursuer answered , that this Testament imported no Revocation , which it did not mention , neither is the addition of 5000. pounds therein an indirect Revocation , which must ever be by an inconsistent Deed , but both these conditions are consistent , albeit that by the Testament it be modo inhabili , and it is very like that the Testator , being taken with a great Fever , did not remember of this Provision , or added the other 5000. pounds on this consideration , that the former Provision was only to take effect , after the Earl of Roxburghs Death ; so that the Lord Kers meaning might probably be to add 5000. pounds during his Fathers Lifetime . 2dly , Though the Testament could import a Revocation , yet the Testament it self being Conditional , only to stand in case his Father returned not to Scotland , and made use of the other Testament of the same date , all the Tenor of it , and this restricting Clause , is affected with the same Condition , so that if the Testator had said that he had restricted his Ladies additional Provision to 5000. pounds in case his Father returned not , but in that case left her to his Fathers provisions , it would be truly a conditional Revocation , which Condition is purified by the Fathers Return , and providing the Lady by his Ratification of this Bond of Provision , nor can it be justly alleadged , that both this and that Earl were errore lapsi , seing the Testament is produced by the Earl himself , and was never in the Ladies hands , and doubtless it hath been advised by the late Earl ere he Ratified , who was a most provident man , and his Ratification is dated at the Canongate , ubi fuit copia peritorum , and if Ratifications should become ineffectual , or if errore lapsus , should be Relevant upon the ignorance , or mistake of the import of a Writ ; Ratifications should be of no effect , but any ground that might defend the Ratifier before the Ratification , might annul the same upon pretence that he knew it not : and therefore errore lapsus is only understood de invincibili errore facti , but never de ignorantia juris quae neminem excusat .

The Lords found that any Revocation by the Testament was only Conditional , and became void by the Earls Returning , and making use of the other Testament ; and therefore Repelled the Defense in respect of the Reply , and had no necessity to determine anent the Confirmation , and Error alleadged .

Lindsay of Mount contra Maxwel of Kirkonnel . Iuly 20. 1671.

LIndsay of Mount being Donator to the Waird of the Estate of Kirkonnel , by the Death of the late Laird , and Minority of this Laird , pursues the Tennents for Mails and Duties . Compearance is made for the appearand Heir , as having Right by Disposition from his Grand-mother to an Appryzing , led at her Instance against her Son , and alleadged that there could be no Waird , because Kirkonnel the Kings Vassal was Denuded before his Death , and his Mother as Appryzer was Infeft . It was answered first , That this Apprizing was upon a Bond granted by the Defunct to his own Mother , for the behove of his Son , and appearand Heir , without any onerous Cause , and so was null and simulat , and a fraudful Contrivance , in prejudice of the King as Superiour , of his Casuality of Waird , and that it was found in the Case of the Lord Colvil , that a Vassal having married his appearand Heir in lecto , It was found a Fraudulent precipitation in defraud of the Waird . It was answered , that the alleadgeance was not Relevant , because there was nothing to hinder the Defunct to have Resigned in favours of his appearand Heir , without any Cause onerous , or to grant him a Bond that he might be Infeft upon Appryzing , or to grant such a Bond to any Person to the Heirs behove , he being in leige poustie , and there can be no presumption of Fraud , seing he might have obtained his Son Infeft directly , which the King refuses in no case , when the Granter is in leige poustie .

The Lords Repelled the Alleadgeance for the Donator , and Sustained the Appryzing .

The Donator further alleadged , that by the Act of Parliament 1661. betwixt Debitor and Creditor , It is provided , that the Debitor may cause the Appryzer Restrict himself to as much as will pay his Annualrent , and the Debitor may bruik the rest during the Legal ; and now the Donator is in place of the Debitor , so that what superplus there is more than will pay the Appryzers Annualrent ▪ must belong to the Donator . It was answered , that this Clause is peculiar , and personal to Debitors , and cannot be extended to Donators , who are not mentioned therein ; because Debitors when they crave Restriction , they are presumed as provident men , to uplift the rest for satisfying the Appryzing , or their other Debts , or for their Subsistence , and so being introduced wholly in their favours , it cannot be extended in favours of the Donator to their prejudice : For if the Appryzer Possess all , the superplus will satisfie the Appryzing ; whereas , if the Donator uplift the Superplus , the Debitor will be hudgely prejudged , neither the Appryzing , nor any other Debt of his being satisfied thereby , nor his Heir intertained therewith .

The Lords found that this Clause could not be extended to a Donator , and that there could not be a Waird , both by the Decease of the Appryzer and Debitor .

The Donator further alleadged , that the Appryzing was satisfied by Intromission within the Legal , which did extinguish the Appryzing , as to all Effects and Purposes , as if it had never been , and all Parties return to their Rights , as they were before the Appryzing ; and so consequently the Superiour , and his Donator has the Ward Duties , during the appearand Heirs minority , after the Appryzing is extinct ; for the Appryzing being but a Collateral Security , like an Infeftment for Relief , it is jus resolubile , and doth not fully Divest the Debitor , who needs not be Re-seased , as he would be in the case of a Wodset holden publick , but the Debitors own Infeftment Revives and stands valide , and the appearand Heir must be Infeft as Heir to the Defunct , which cannot be till he be legitimae aetatis , after the Ward . It was answered , that the Alleadgeance is not Relevant , unless the Appryzing had been satisfied in the Defuncts Life , for then his Infeftment would have Revived : But if any thing remained due , the appearand Heir hath the Right of Reversion as appearand Heir , and Intromission thereafter cannot Revive the Defuncts Infeftment .

The Lords found that so soon as the Appryzing was extinct , whether before the Defuncts Death or after , the Ward took effect , and the Donator had Right .

Laird of Birkinbog contra Iohn Grahame of Craigie . Eodem die .

IN a Competition amongst the Creditors of umquhile Sir Robert Dowglass of Tilliquhilly , a Disposition granted by Sir Robert to Grahame of Craigie , was called for to be Reduced upon this Reason , that it was granted by Sir Robert when he was a notorious and known Bankrupt , and fled and was latent , so that by the Act of Parliament 1621. he could not prefer one Creditor to another , being in that Condition , for that Act annuls all Dispositions made by Bankrupts , without a just and necessary cause , and there was no nec●ssity nor Justice for the Bankrupt to prefer one Creditor to another . It was answered , that unless there had been legal Diligence at the Pursuers instance , or that the Defenders Disposition had been without a cause onerous , there is no ground for that Act to hinder any Debitor , though Bankrupt , to prefer one Creditor to another , for if he had had the Money , he might have payed any he pleased , and the Cause is both just and necessary , because he might have been compelled by Law to have done the same , and there was nothing to hinder the Creditor , but that as he might have first Appryzed , so he might have taken the first Disposition from his Debitor . 2dly , The Pursuers Debt was for a Bargain of Victual Sold and Delivered to the common Debitor , but a Month before the Disposition in question , when he was alleadged to be Bankrupt .

The Lords found the last Alleadgeance Relevant , and Assoilzied from the Reduction , but did not decide upon the former alleadgeance .

Guthrie contra Mackarstoun . Eodem die .

IN a Competition betwixt an Heir and an Executor , anent the Rent of a Miln , where the Tacks-mans Entry was at Whitsunday , where the first Terms of payment of the Rent was at Candlemas , and the second at Whitesunday , the Liferenter having survived Candlemas , and died before Whitesunday : The question arose , how far the Executor of the Liferenter had Right , it being alleadged , that the Executor of the Liferenter could only have Right to the one half , the Liferenter having only survived the first Term as in House Mails .

The Lords found that the legal Terms of a Miln Rent being Whitesunday and Mertinmas , the Liferenter having survived both the legal Terms , had Right to the whole years Rent in the same way as in Land Rents , and not to the one Term as in House Mails .

Sir George Maxwel of Nether Pollock contra Maxwel of Kirkonnel . Iuly 21. 1671.

IN this pursuit related the 11th , of Iuly instant : It was further alleadged for the Defender , that the Pursuer cannot purge his Appryzing , as now being in the Person of the appearand Heir , by the Act of Parliament 1661 betwixt Debitor and Creditor , by payment of what truely the appearand Heir payed , because the express Provision in that Act is , that where ever the appearand Heir of the Debitor shall acquire Right to expired Apprizings hereafter , which cannot extend to this case , because the Right to this Apprizing was acquired before that Act , and because it was not an expired Appryzing , but the Legal then running . It was answered , that albeit the Disposition of the Appryzing granted to the appearand Heir , was prior to the Act , yet the Right was purchased posterior to the Act , for the Disposition could not give Right , but only the Infeftment following thereupon ; for if after that Disposition , any other had been Infeft upon Appryzing or Disposition by the Defenders Author , that posterior Infeftment would carry the Right , so that the Author cannot be said to be divested , or the appearand Heir invested , or stated in the Right , till his Infeftment , which is after the Act of Parliament . To the second , The Pursuer answered , that the Defenders Appryzing , albeit it was Redeemable , when he acquired Right thereto ; yet it becoming now irredeemable in his Person ; it cannot be denyed but he has acquired Right to an irredeemable Appryzing , albeit it was not irredeemable when he acquired the Right , yet he hath acquired Right to that Appryzing , that now is irredeemable ; for the Extinction of the legal Reversion , cursu temporis , is a Right accrescing to him , and acquired by him , and no Heretage to him : and seing the Words of the Act are capable of this interpretation , there can be no doubt of the Legislators mind , or that it should be thus interpret ; because otherwayes that excellent Provision would be evacuate , for the appearand Heir would alwayes acquire Right to an Appryzing before the Legal were expyred , though he should pay the Appryzer the full sum , and would make no use of it till the Legal were Expyred , and thereby carry the Right of the whole Estate , though it were of twenty times more value : But the only Motive of that Act of Parliament being , that albeit the Law gives Appryzers the Right of all that they Appryze at random , if they be not Redeemed within the Legal ▪ yet the Appryzer is ashamed to take so great Legal advantage ; and therefore ordinarly compones with the appearand Heir , who being favourable , makes no Bonds to bruik the whole Estate of his Predecessor , excluding all his other Creditors : and therefore this Remeed is introduced , which will be evacuate , if the Act of Parliament be not thus interpret , and that interpretation should be ever followed , which is according to Equity , and whereby the Statute may stand , and not be eluded . The Defender answered , that this Statute being Correctory of the Common Law , is strictly to be interpret , and not to be extended : and the Acquisition of Rights being ever interpret from the Disposition , and not from the Infeftment thereon , multo magis , should it be so interpret in this case , And as to that part thereof anent the Expyring of the Appryzing , the Pursuers Interpretation is not only constrained , but inconsistent with Justice , for ubi subest Remedium ordinarium non est recurrendum ad medium extraordinarium , for if the appearand Heir acquire Right to an Appryzing unexpyred , the Reason and Motive of the Statute ceases , for both the Debitor and Con-creditors may Redeem from the appearand Heir , and can pretend no necessity of extraordinary Remeed , especially if the appearand Heirs Right be not latent , but publick by Infeftment .

The Lords found that the appearand Heirs Right being only become Real by Infeftment after the Act of Parliament , that it was then to be understood to be acquired , when the Author was Denuded and the appearand Heir Invested , so that no posterior Right from his Author could Exclude him : And found also , that albeit the appearand Heirs Right were during the Legal , yet if it stood in his Person till the Legal were expyred , that the same fell within the Act of Parliament , and found it Redeemable by what the appearand Heir truly payed within ten years , to be counted from the Date of the acquiring of the Right , conform to the words of the Act , and not from the time the Appryzing became expyred thereafter .

Scot of Hassendene contra The Dutches of Buccleugh . Eodem die .

UMquhil Scot of Hassendene having no Children , Disponed his Estate to Buccleugh his Chief , who granted a Back-bond of the same Date , bearing the Disposition to have been granted upon the ground foresaid , and obliges himself and his Heirs , that in case Hassendene should have Heirs of his Body to succeed him , that he should denude in favours of these Heirs : and now his Son and Heir born thereafter , pursues the Dutches to Denude , who alleadged Absolvitor , because the Back-bond being now fourscore years since , is long ago Expyred . It was answered , that albeit the Date be so long since , yet the Prescription runs not from the date , but from the Death of the Pursuers Father , which is within fourty years , for the Pursuer could not be his Heir before he was Dead ; and the Back-bond bears , if Hassendene had Heirs to succeed to him . It was answered , that Heirs oftimes were interpret , Bairns that might be Heirs ; and if this Pursuer had pursued in his Fathers Life , he could not have been justly excluded , because his Father was not Dead , and he actually Heir , and so valebat agere , in his Fathers Life . It was answered , that although in some favourable Cases , Heirs be interpret to be Bairns that might be Heirs ; yet in odiosis , it is never so to be interpret , and there is nothing more odious , than to take away the Pursuers Inheritance , freely Disponed to Buccleugh by his Father , in case he had no Children upon Prescription , by such an extensive interpretation of the Clause . 2dly , If he had pursued in his Fathers Life , he might have been justly Excluded , because if he had happened to die without issue , before his Father Buccleugh had unquestionable Right , and so during his Fathers Life , he could not be compelled to Denude .

The Lords found that the Prescription did only run from the Death of the Father , and that this Pursuer could not have effectually pursued in his Fathers Lifetime .

Blair of Bethaick contra Blair of Denhead . Iuly 22. 1671.

PAtrick Blair of Bethaick as principal , and Patrick Blair of Ardblair as Cautioner , granted Bond to Iean Blair , and failing of her by Decease , to her Children equally amongst them , for the sum of 2550. m●rks , upon 5th of May 1624. there were five years Annualrent resting at the Death of the said Iean Blair , and now Captain Guthry her Executor pursues the Representatives of the Cautioner for payment thereof , who alleadge Absolvitor , because the last of these Annualrents being due in Anno 1630. There is fourty years run before this pursuit , or any other Diligence , and so the Bond it self is Prescribed , and specially these years Annualrents . The Pursuer Rep●yed , that the Prescription was interrupted , in so far as a part of the Principal Sum was payed within the years of Prescription . It was answered for the Defender , that the payment being mode to the Daughters of the principal Sum , it could have no effect as to the Annualrents preceeding Iean Blairs Death , which belonged not to her Daughters , as persons Substitute in the Bond , but to her Executors , so that the Bond might well be preserved , as to the principal Sum , and yet prescribe as to the Annualrents , these being two several Right , and stated in several Persons . It was answered , That the Interruption by payment was sufficient for preserving both Principal and Annual , for Prescription being odious , any Deed by which the Debitor and Creditor acknowledge the Right within the fourty years , is sufficient , not only as to the interest of the particular Actors , but as to all others who have interest in the same Right , as payment of any part of the Annualrent by one Person , preserves the whole Right against all the Cautioners and Co-principals , though they neither payed , nor were pursued within fourty years , so payment of any part of the Principal , must in the same manner preserve the Right of the Bond , as to all Annualrents , to whomsoever they belong , if they be not fourty years before that Interruption , by payment of a part of the principal .

Which the Lords found Relevant . This was stopped on the Lords own consideration , without a B●ll from the Parties , because by common Custom , though Annual had been constantly payed for fourty years , yet all preceeding prescribed , whereupon it was contrarily Decerned thereafter , February 7. 1672.

Alice Miller contra Bothwel of Glencorse . Eodem die .

ALice Miller pursues Improbation of a Minute of a Tack betwixt her and Glencorse who compeared and abode by the verity of the Tack , and the Writer and Witnesses of the Tack being Examined upon Oath , did Depone that they did not see Alice Miller Subscribe , and one of them Deponing that he had Subscribed at Glencorses instigation , who told him that he had caused set to Alice Millers Name , only one Witness who was Writer , and was Glencorse his Brother Deponed that he saw the said Alice Miller Subscribe with her own hand .

The Lords having this Day Advised the Cause , found that the Witnesses did not abide by the verity of the Subscription of the said Alice Miller , and did therefore improve the Minute , but found it not proven who was the Forger of the said Alice Millers Subscription .

Captain Guthrie contra The Laird of Mccairstoun . Iuly 25. 1671.

CAptain Guthrie having Married Dame Margaret Scot , and she dying in Possession of the Lands of Mannehill , Laboured by her Husband and her in the Moneth of April , Mccairstoun as Heretor of the Land , craves the Rent of the Land for that year , in respect the Liferenter neither lived till the first Legal Term , which is Whitesunday , nor till Martinmasse . It was answered , that by immemorial Custom , Liferenters have Right to the Cropt of Lands Sowed by themselves , whether they attain to the Term of Whi●esunday or not , neither were they ever found lyable for any Duty therefore .

Which the Lords Sustained .

Robert Baillie contra Mr. William Baillie . Iuly 27. 1671.

THe Laird of Lamingtoun having made a Tailzie of his Estate wherein William Baillie eldest Son to his Deceased eldest Son , is in the first place , and to him is Substitute Robert Baillie , Lamingtouns second Son , and the Heirs of his Body , reserving to the said Robert his Liferent , from the Fee of his Heirs , in case they succeed , and failzying of Roberts Heirs , to Master William Baillie , Lamingtouns Brother Son , after Lamingtouns Death there is a Contract betwixt this Lamingtoun and Mr. William Baillie on the one part , and Robert on the other , by which Lamingtoun obliges himself to pay to Robert , the sum of six hundreth merks during his Life , and Robert Renunces and Dispones to Lamingtoun his portion natural , and Bairns part of Gear , and all Bonds and Provisions made to him by his Father , and all Right he has to the Estate of Lamingtoun , or any part thereof , and that in favours of this Lamingtoun , and his Goodsires Heirs males , contained in his Procutry of Resignation . Robert Baillie raises a Declarator against Lamingtoun and Mr. William Baillie , for Declaring that this Contract could not be extended to exclude him or his Heirs from the Right of Tailzie in the Estate of Lamingtoun , failzying of this Laird and his Heirs , and that it could only be extended to any present Right Robert had to the Estate of Lamingtoun , but to no future Right , or hope of Succession , seing there is no mention either of Tailzie or Succession in the Contract . It was alleadged Absolvitor , because Robert getting 600. Merks yearly , he can instruct no Cause for it but this Renunciation , which must necessarly be so interpret , as to have effect , and so if it extend not to exclude him from the Tailzie , it had neither a Cause for granting the six hundreth merks , nor any effect thereon . It was answered , that Robert being a Son of the Family , and Renuncing his Portion natural , it was a sufficient Cause , and though there were no Cause , such general Renunciations could never be extended to future Rights , or hopes of Succession , unless the sum had been exprest .

Which the Lords found Relevant , and Declared accordingly .

Sir Iohn Keith contra Sir George Iohnstoun . Iuly 28. 1671.

THe Estate of Caskiben being Appryzed by Doctor Guil , Sir George Iohnstoun the appearand Heir , acquired Right to the Appryzing , in the Person of Phillorth , who by a Missive Letter , acknowledged the Trust , upon which Letter , Sir George raised Action against Phillorth , to compt for his intromission , and Denude himself , and upon the Dependence , raised Inhibition , yet Phillorth sold the Estate to Sir Iohn Keith , who to clear himself of the Inhibition , raised a Declarator that the Inhibition was null , and that his Estate was free of any burden thereof , because it wanted this essential Solemnity , that the Execution against Phillorth did not bear a Copy to be delivered , and that the Executions being so Registrat , he being a Purchaser for a just price ; and seing no valid Inhibition upon Record , he ought not to be Burdened therewith . The Defender alleadged Absolvitor : Because , First , The delivering of a Copy was no Essential Solemnitie , neither does any Law or Statute ordain the same : much less any Law declaring Executions void for want thereof : and albeit it be the common Stile , yet every thing in the Stile is not necessary ; for if the Messenger should have read the Letters , and showen them to the Partie , he could not say , but that he was both Certiorat and Charged not to Dispone . 2dly , The Executions bear , that Phillorth was Inhibit , personally apprehended . 3dly , The Inhibition comprehends both a Prohibition to the Party Inhibit , and to all the Leidges at the Mercat Cross , at which , the Execution bears a Copy was affixed , so that whatever defect might be pretended as to Phillorth , this Pursuer and all the Leidges were Inhibite to block or buy from him , so that the Pursuer has acted against the Prohibition of the Letters , and cannot pretend that he purchased bona fide , being so publickly Inhibit , and the Inhibition put in Record , he neither should nor did adventure to purchase , without special warrandice , to which he may recur . 4thly , Such Solemnities when omitted may be supplied ; for there is nothing more ordinar than in Summons to add any thing defective in the Executions , and abide by the truth thereof , and many times these Solemnities are presumed done , though not exprest , as a Seasing of a Miln was Sustained , though it bear not Delivery of Clap and Happer ; yet bearing a general with all Solemnities requisite , it was Sustained : and a Seasine of Land , though it bear not Delivery of Earth and Stone , seing it bear Actual , Real and Corporal Possession , and the Clause ●acta erant hac super solo &c. ut moris est : Yea , in other Solemnities which the Law expresly requires as three ●las●s in the Executions of Horning , and six knocks , and the affixing of a Stamp , have all been admitted by the Lords to be supplied , by proving that they were truely done , though not exprest in the Execution : Though Horning be odious and penal , inferring the loss of Moveables and Liferent ; therefore it ought much more to be supplied in the case of an Inhibition , which is much more favourable to preserve the Croditors Debt , and here the Messenger hath added to the Execution , that a Copie was Delivered , and Subscribed the same on the Margent , and it is offered to be proven by the Witnesses in the Execution , that it was truely so done . The Pursuer answered , that there was nothing more essential in an Execution , than delivering of a Copy , for showing or Reading of Letters was no Charge , but the delivering of the Copy was in effect the Charge ; and albeit Executions which require no Registration , and may be perfited by the Executor , at any time may be amended as to what was truly done ; Yet where Executions must necessarlie be Registrate within such a time , else they are null , after the Registration the Messenger is functus officio , and his assertion has no Faith : and seing the giving of a Copie is essential , and if it be omitted , would annul the Execution ; so after Registration it can●ot be supplied , because in so far the Execution is null , not being Registrate , debito tempore , for as the whole Execution would be null for want of Registration , so is any essential part : and whatever the Lords has supplied in Hornings , yet they did alwayes bear , that the same was lawfullie done according to the Custom in such cases ; and this Execution does not so much as bear that Phillorth was lawfullie Inhibite , but only according to the Command of the Letters which do not express any Solemnitie : and it hath been found by the Lords , that a Horning being Registrate , and not bearing a Copy Delivered , it was found null ; because that part was not in the Register , nor was it admitted to be supplied any way , but that it were proven by the Oath of the Keeper of the Register , that that Clause was upon the Margent of the Execution , when it was presented to the Registister , and was only neglected to be insert by him , which shows how necessar● a Solemnity the Lords have accompted the giving of a Copy , and Registrating thereof : And if Solemnities of this kind , be by Sentence passed over , it will not only incourage Messengers to neglect all accustomed Solemnities , but course of time may incroach on all other Solemnities ; whereas , if this be found necessar , none will ever hereafter omit it , or any other necessar Solemnity .

The Lords found the Inhibition null , and that the Delivering of a Copy was a necessar Solemnity , which not being contained in the Register , they would not admit the same to be supplied by Probation , in prejudice of a singular Successor , Acquiring for a just price .

Hadden contra The Laird of Glenegies . Eodem die .

HAdden being Donator to the Marriage of the Laird of Glenegies , pursues Declarator for the avail thereof . The Defender alleadged Absolvitor , because by an Act of Parliament 1640. It was Declared , That whosoever was killed in the present Service , their Waird and Marriage should not fall , Ita est , Glenegies was killed during the Troubles , at the Battel of Dumbar . It was Replyed , that the present Troubles could not extend further than to the Pacification , Anno 1641. After which there was peace till the end of the year , 1643. 2dly , The Parliament 1640. and all the Acts thereof are Rescinded . It was Duplyed , That the Troubles were the same , being still for the same Cause , and that the Rescissory Act contained a salvo of all private Rights Acquired by these Rescinded Acts. It was answered , that this was a publick Law , and the salvo was only of particular concessions by Parliament to privat Parties .

The Lords found that the Act 1640. reached no further than the Pacification , by which the Troubles then present were Terminate . The Lords Demured in this case upon remembrance of a Process before them , at the instance of the Heirs of Sir Thomas Nicolson , against the Heirs of the Laird of Streichen , upon the Gift of Streichens Waird , to Sir Thomas , who Died the time of the War , being Prisoner by occasion of the War , and after Pacification , that they might have seen what they had done in that Case , but did not get the Practicque , and the Parties being agreed , they Decided in manner foresaid , wherein this was not proponed nor considered , that the foresaid Act was always esteemed , an Exemption after the Pacification , during the whole Troubles , and no Waird for Marriage was found due that time , though many fell during the War , and if it had not been so esteemed , the same Motives that caused the first Act to be made in Anno 1640. would have moved the renewing thereof after the Pacification : and no doubt the King and Parliament Anno 1650. before Dumbar would have renewed the same for incouragement , in so dangerous a War , if it had not been commonly thought that the first Act stood unexpired .

Murray contra The Earl of Southesk , and other Appryzers of the Estate of Powburn . Eodem die .

JAmes Murray having Right to an Appryzing of the Estate of Sir Iames Keith of Powburn , led at the instance of Mr. Thomas Lundie , pursues thereupon for Mails and Duties . Compearance was made for the Earl of Southesk , and posterior Apprizers after Year and Day , who alleadged that by the Act of Parliament 1661. betwixt Debitor and Creditor . It is provided that the Lords of Session , at the desire of the Debitors , may ordain Appryzers to restrict their Possession to as much as will pay the Annualrent , the Debitor Ratifying their Possession , and now the Posterior Appryzers having Appryzed omne jus , that was in the Debitor , craved that the first Appryzer might Restrict himself to his Annualrent , and they preferred to the rest of the Duties . It was answered that this was a personal and peculiar priviledge in favours of the Debitor , that he might not unnecessarly be put from his Possession , and which he might make use of against all the Appryzers , if there were a superplus above the Annualrents , and it is upon condition that the Debitor Ratifie the Appryzers Possession , which is not competent to a posterior Appryzer , in whose favour this Clause was never meaned : But there is a special Clause for posterior Appryzers , being within year and day , to come in pari passu : neither can the posterior Appryzers have any interest , because the superplus will satisfie the first Appryzing pro tanto .

The Lords found the foresaid priviledge peculiar to the Debitor ; but found that the first Appryzer , seing he excluded the rest , behoved to compt from this time as if he had Possessed the whole .

The End of the first Part of the Decisions of the Lords of Session :