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 [Page 48] 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 VVater, 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, [Page 50] 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 [Page 51] 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 [Page 48] 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 Overs­men, 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 Good­father, 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 [Page 54] 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 [Page 55] 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 [Page 56] 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; [Page 57] 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.

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 [Page 58] 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 [Page 60] 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, [Page 61] 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 [Page 62] 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.

[Page 64] 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, [Page 66] 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 M^cdowal 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 M^cdowal 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 [Page 68] 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 [Page 70] 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 [Page 71] 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, inrespect 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 [Page 73] [...]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 [Page 74] 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 [Page 75] 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 [Page 76] 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.

[Page 77] 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 [Page 78] 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 Church­men allowed to infer Confession, which is but extra judicialis confessio, and cannot prove, ad [...]viles aut criminales effectus, neither can the taking of the 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 [Page 79] 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, [Page 81] 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 [Page 83] 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, [Page 85] 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, [Page 87] 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.

M^r. 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, [Page 88] 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 Coal­heugh, 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 [Page 89] 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 M^ckartney. Eodem die.

HAlbert Irwing pursues M^ckartney 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 [Page 92] 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 forth­coming; or if a Creditor Confirm himself Executor Creditor to the Defunct Rebel, he will be preferred to the Fisk; by all which it appears, that the Re­bellion transmits not the Property. The Defender answered, that these In­stances do only show that the King prefereth Creditors, and takes but the be­nefit of what the Rebel had deductis debitis, or what was Contracted with him bona fide, but doth not say, that the Property of the Goods were not in the Fisk, but in the Rebel.

[Page 93] 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.

[Page 94] 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 M^cclean. Eodem die.

DAm Iean Acheson pursues the Laird of M^cclean, 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 M^ccleud.

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.

[Page 95] 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.

[Page 96] 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 M^cclellane. February 11. 1662.

DAvid Ramsay of Torbanie having raised Suspension, and Reduction of a Decreet against him, at the I [...]stan [...]e of Thomas M^cclellane, in Anno 1658. Insists upon this Reason, that he being pursued as Heir to his Father, at the Instance of Thomas M^cclellane, 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 [Page 97] 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 [Page 99] 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 [Page 100] 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, [Page 101] 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 [Page 102] 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 VVol­met, 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 [Page 107] 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 [Page 108] 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.

[Page 109] 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 M^cfarlane of Kirktoun. February 28. 1662.

WIlliam Hamiltoun pursues Iames M^cfarlane 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.

[Page 111]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 [Page 112] 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, [Page 113] 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.

[Page 114] 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 [Page 117] 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 thesaid 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 [Page 118] 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 [Page 121] 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 [Page 122] 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 [Page 124] 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 [Page 126] 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.

[Page 127] 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 VVitnesses, 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.

VVilliam VVachope contra Laird of Niddrie. Iuly 15. 1662.

THe said VVilliam VVachope 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 VVhitsonday, 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 VVriter 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.

[Page 128] The Lords found not the first Defense Relevant per se, but found the remnant Defenses Relevant, and assoilzied.

VVilliam Swintoun contra Iuly 18. 1662.

THe said VVilliam 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 quocun (que) 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, [Page 129] 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, [Page 130] 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 [...]rdinar 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.

[Page 131] 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.

[Page 133] 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 [Page 134] 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 [Page 135] 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 VVhitsonday, 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 VVife 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 [Page 136] 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 [Page 137] 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.

[Page 138] 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.

[Page 139] 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 [Page 140] expresseth what it meaned by Trust, viz. though getting assurance from persons that had been formerly in variance. 2ly. vvhat 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 [Page 141] 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 [Page 142] 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 [Page 143] 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 [Page 144] 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 VVormistoun. December 2. 1662.

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

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

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

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

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

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

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

The Lords having considered the Instrument, and that it was after Nasmiths Gift 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 [Page 151] 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 [Page 153] 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 fot 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 [Page 154] 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, where­ever 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 [Page 155] 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 [Page 157] 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 [Page 160] 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.

[Page 163] 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 [Page 164] 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 M^ckenzie. Eodem die.

BAlnagoun as Donator to the Escheat of his Father, pursues Mr, Thomas M^cken­zie 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 [Page 165] 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 [Page 166] 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 [Page 167] 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.

[Page 169] 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 [Page 170] 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.

[Page 171] 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.

[Page 172] 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 M^cgie, 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 [Page 173] 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 [Page 174] 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.

[Page 176] 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.

[Page 181] 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 [Page 182] 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 [Page 183] 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 [Page 184] 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 [Page 185] 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.